EXHIBIT 10.19
October 0, 0000
Xxxxx X. Xxxx
000 Xxxxxx Xxxx Xxxxx Xxxx
Xxxxxx, XX 00000
Re: Employment Agreement Extension and Amendment
Dear Xxxxx:
We are pleased to extend the term of your employment, and to amend the
terms of the Employment Agreement dated December 19, 1997, as amended by
Amendment No. 1 thereto dated January 1999 (the "Employment Agreement"), between
you (the "Executive") and Axe-Houghton Associates, Inc. (the "Company"), as set
forth below.
Capitalized terms used in this letter agreement (this "Amendment") but not
defined herein have the meanings set forth in the Employment Agreement. Certain
capitalized terms used herein are defined in Section 6 below.
1. EMPLOYMENT PERIOD. The Initial Period is hereby extended through January 1,
2003 and, if a Sale is completed on or prior to such date, through the third
anniversary of the completion of the Sale, unless sooner terminated in
accordance with Section 4 of the Employment Agreement.
2. BONUS POOL. (a) Beginning with the year 2000, the Bonus Pool shall equal 35%
of Pre-Bonus Pre-Tax Profits, less the deductions specified in Section 3(B)(2)
of the Employment Agreement.
(b) The Small Cap Group as defined in Section 3(B) of the Employment
Agreement shall include, but not be limited to, the technology-growth and focus
growth-disciplines.
3. GOOD REASON. The definition of Good Reason contained in Section 4(H)(2) of
the Employment Agreement is hereby amended to include the event that the Company
relocates
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Executive's place of employment more than twenty (20) miles from the Company=s
current office location in Rye Brook, New York without Executive's consent.
4. SALE. If a Sale is completed on or before January 1, 2003, Executive shall
receive 18.75% of Group Value plus $500,000 (the "Proceeds Allocation"), of
which 33 1/3% shall be paid on each of the first three anniversaries of the
completion of the Sale. As soon as practicable following the completion of any
such Sale, the Company shall deposit into an escrow account (the "Escrow
Account"), which Escrow Account shall be invested in money market securities,
cash in an amount equal to the Proceeds Allocation (other than any portion of
the Proceeds Allocation attributable to the Contingent Payments (as defined
below)). The payment to be made to the Executive pursuant to the first sentence
of this Section 4 shall be made from the Escrow Account and shall be accompanied
by a distribution of 90% of the investment earnings on the portion of the Escrow
Account being distributed from the date on which the account is created to the
date of such distribution. Each time a payment is made pursuant to this Section
an amount equal to 10% of the investment earnings on the portion of the Escrow
Account being distributed shall be returned to the Company. Notwithstanding the
foregoing, (A) to the extent that a portion of the Proceeds is deposited into an
escrow or similar arrangement or is subject to future or contingent payment (the
"Contingent Payments"), the Proceeds Allocation applicable to such portion
(together with any interest earned thereon) shall not be paid to Executive
unless and until actually received by the Company, Xxxxxx or the stockholders of
Xxxxxx, as the case may be; and (B) if, following completion of the Sale, the
Company terminates Executive's employment for Cause or Executive terminates her
employment without Good Reason, no further payments shall be made pursuant to
this Section 4 and all amounts remaining in the Escrow Account shall be released
to the Company. In the event of the Executive's death after a Sale, the Company
shall make any payments due under this Section 4 which would otherwise have been
payable to the Executive to the Executive's estate or designated beneficiary. In
the event the Employment Period terminates after a Sale as a result of the
Executive's Disability, the Company shall make any payments due under this
Section 4 which would otherwise have been payable to the Executive to the
Executive or the Executive's legal representative.
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5. STOCK OPTION. As soon as practicable following the execution of this
Amendment and subject to the approval of the Compensation and Stock Option
Committee (the "Committee") of the Board of Directors of Xxxxxx (the "Xxxxxx
Board"), Executive shall be granted a ten (10)-year non-qualified option to
purchase 50,000 shares of common stock of Xxxxxx (the "Option") under the
Amended and Restated 1996 Long Term Stock Incentive Plan of Xxxxxx (the "Amended
Plan"). The Option shall be granted at an exercise price per share equal to the
Fair Market Value (as defined in the Amended Plan) of a share of Xxxxxx common
stock on the date of grant as determined by the Committee. The Option shall
become exercisable to the extent of 33 1/3% of the shares covered thereby on
each of the first three anniversaries of the date of grant. The Option shall be
subject to the terms and conditions of the Amended Plan (including acceleration
of exercisibility upon a Change in Control) and shall be evidenced by a grant
certificate containing terms consistent with this Section 5.
6. TERMINATION OF EMPLOYMENT. The Termination Payments under Section 4(B) of the
Employment Agreement shall include, in addition to the amounts specified
therein, an amount equal to the product of (a) the amount of the Bonus Pool
determined as of the day on which the Employment Period terminates and (b) the
average percentage of the Bonus Pool actually paid to the Executive as Bonus
Awards for the three years in the Employment Period immediately preceding the
year in which the Employment Period terminates.
7. CERTAIN DEFINITIONS. The following capitalized terms have the following
meanings:
(A) GROUP VALUE means the value of the Small Cap Group determined in such
manner as Executive and the Company shall mutually agree.
(B) XXXXXX means Xxxxxx Group Inc.
(C) PROCEEDS means the consideration paid upon completion of the Sale as
the purchase price for the Small Cap Group, the Company or Xxxxxx, as the case
may be, and the consideration agreed to be paid as additional purchase price
therefor in the future.
(D) SALE means the first to occur of a sale or disposition by asset or
stock sale, merger, consolidation or otherwise of the Small Cap Group, the
Company, or Xxxxxx,
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provided that no Sale shall be deemed to have occurred by reason of a sale or
disposition of the Small Cap Group or the Company to Xxxxxx or its subsidiaries
(or a plan for the benefit of their employees) or to the stockholders of Xxxxxx
in a spin-off or similar transaction. A sale or disposition of all or
substantially all the Company's assets shall be treated as a Sale of the Company
and not as a Sale of the Small Cap Group. A sale or disposition of all or
substantially all of Xxxxxx'x assets shall be treated as a Sale of Xxxxxx and
not as a Sale of the Company; a sale or disposition of less than all or
substantially all of Xxxxxx'x assets which includes the capital stock of the
Company shall be treated as a sale of the Company; and otherwise a sale of
assets by Xxxxxx which does not include the Small Cap Group shall not constitute
a Sale hereunder. A merger or consolidation of Xxxxxx with another entity shall
not constitute a Sale hereunder if, immediately thereafter, at least 66 2/3% of
the outstanding voting stock of the surviving entity is owned by persons who
were stockholders of Xxxxxx immediately prior to such merger or consolidation or
at least 66 2/3% of the members of the board of directors (or similar governing
body) of the surviving entity are persons who were members of the Xxxxxx Board
(as defined below) immediately prior to such merger or consolidation. An
acquisition by a person or entity of capital stock of Xxxxxx shall not
constitute a Sale unless such person or entity acquires a majority of the
outstanding capital stock of Xxxxxx. A Sale shall be deemed completed when the
closing has occurred and not before.
8. ASSISTANCE IN A SALE. Executive understands that the Xxxxxx Board will
determine whether or not a Sale is in the best interests of Xxxxxx and, if the
Xxxxxx Board approves a Sale, the terms and conditions of the Sale (including
the amount and form of Proceeds). As a material inducement to the Company to
enter into this Agreement, Executive agrees: (A) to maintain the confidentiality
of any discussions regarding a possible Sale (including any proposed or final
terms of and/or prospects of a Sale); (B) not to engage in any negotiations or
discussions with any third party regarding a potential Sale without the prior
written consent of Xxxxxx; (C) to discharge her fiduciary duty and duty of
loyalty to the Company and Xxxxxx; (D) to cooperate in good faith with any
efforts to sell the Small Cap Group, the Company or Xxxxxx; (E) to assist in a
Sale; (F) to comply with all reasonable requests for assistance and information
in connection with a Sale: and (G) to participate in discussions
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with prospective buyers and their advisors and the Company's and Xxxxxx'x
advisors relating to all operations of the Small Cap Group.
9. LEGAL EXPENSES. The Company shall pay reasonable legal fees and expenses
incurred by Executive and Xxxxx X. Xxxxxxx in connection with the amendments to
their employment agreements in a total amount not to exceed $7,500 in the
aggregate for both of them together.
10. EMPLOYMENT AGREEMENT TO CONTINUE. This Amendment is hereby incorporated into
the Employment Agreement, and the Employment Agreement, as amended by this
Amendment, shall remain and continue in full force and effect in accordance with
its terms and is hereby ratified, confirmed and acknowledged by each party
hereto. The Employment Agreement, as amended by this Amendment, contains the
entire agreement of the parties with respect to the relationship between
Executive, on the one hand, and the Company and Xxxxxx, on the other hand. That
relationship is an employment relationship and the Employment Agreement and this
Amendment shall not be construed to create a partnership or joint venture.
11. COUNTERPARTS. This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed to be an original,
and all of which taken together shall constitute one and the same instrument.
12. ASSIGNMENT. In addition to the provisions relating to assignment set forth
in Section 12 of the Employment Agreement, the Employment Agreement, as amended
by this Amendment, shall be assignable by the Company to any successor in
interest to the business of the Small Cap Group whether by the purchase of
substantially all of its assets or otherwise, and shall not terminate or be
terminable by reason of a Sale.
13. GOVERNING LAW. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflict of laws.
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If this Amendment accurately describes our understanding, please sign and
return the enclosed copy.
Sincerely yours,
AXE-HOUGHTON ASSOCIATES, INC.
By: /s/ Xxxx X. Xxxx, Xx.
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Chief Executive Officer
AGREED:
/s/ Xxxxx Xxxx
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XXXXX XXXX
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