EX-10.9
Employment Agreement dated as of November 12, 1999 between the
Registrant and Xxxxxxxx X. Xxxxxxx
Exhibit 10.9
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement"), signed on ________, ____,
and effective as of November 12, 1999 (the "Effective Date"), is between
Navigant Consulting, Inc., a Delaware corporation (the "Company"), and Xxxxxxxx
X. Xxxxxxx (the "Executive").
RECITALS
A. The Executive has served as an independent director of the Company for
three years and possesses knowledge, skill and experience advantageous to the
Company.
B. The Company desires to employ the Executive as its Chairman of the
Board of Directors and Co-Chief Executive Officer, and the Executive desires to
accept such employment, on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Employment. Subject to the terms and conditions of this Agreement, the
Company agrees to employ the Executive, and the Executive agrees to be employed
by the Company, for the period stated in Paragraph 2 hereof.
2. Employment Term. The term of the Executive's employment by the Company
under this Agreement will begin as of November 12, 1999, and will continue,
subject to earlier termination as provided in Section 7 hereof, for a three-year
period ending November 12, 2002, or it will continue to a later date pursuant to
an extension or modification of this Agreement by mutual agreement of the
parties hereto from time to time (the "Employment Term").
3. Position and Responsibilities. During the period of his employment
hereunder, the Executive agrees to serve the Company, and the Company shall
employ the Executive, as one of its three Co-Chief Executive Officers. The
Executive also shall serve as Chairman of the Company's Board of Directors (the
"Board") until the annual meeting of stockholders of the Company to be held in
2000. The Company agrees that the Executive shall be nominated to serve as a
director of the Company at the annual meeting of stockholders of the Company to
be held in 2000 and, following the election of the Executive as a director at
such annual meeting, the Executive shall be elected to the office of Chairman of
the Board. During the Employment Term, the Executive shall possess such broad
powers and perform such duties and functions as are normally incident to the
position of Chairman of the Board and Co-Chief Executive Officer with an entity
of an equivalent size and nature as the Company, and the Executive will share
the powers and duties of Co-Chief Executive Officer with the other two Co-Chief
Executive Officers appointed by the Board in a manner which is mutually agreed
upon from time to time between the Executive, the other Co-Chief Executive
Officers and the Board.
4. Performance of Duties; Commitment of Time. During the Employment Term the
Executive shall discharge the following obligations:
(a) During the period of his employment hereunder and except for illness,
reasonable vacation periods, and reasonable leaves of absence, the Executive
shall, subject to Paragraph 4(c) hereof, devote his best efforts and a
reasonable amount of his business time (which shall be less than full-time),
attention, skill and efforts to the business and affairs of the Company and its
subsidiaries, affiliates and divisions, as such business and affairs now exist
and as they may be hereafter changed or added to.
(b) The Executive shall report directly and exclusively to the Board, and
he shall perform all of his duties in accordance with such reasonable
directions, requests, rules and regulations as are specified by the Board in
connection with his employment.
(c) Nothing herein shall preclude the Executive from devoting such
reasonable time as required to serve, or to continue to serve, on the boards of
directors of, or to hold any other offices or positions in or with respect to,
other companies, organizations or entities, provided that (i) the Executive
gives prior notice to the Company of such other activities, (ii) that such other
activities do not violate Paragraph 6 hereof, and (iii) such other activities
have no material effect on the time the Executive is required to spend in
connection with the services required of him hereunder. The Company acknowledges
that the Executive is currently involved with several businesses. The Executive
represents and warrants that such involvement will not affect the performance of
the Executive's duties as specified in this Paragraph 4.
5. Compensation and Benefits.
(a) Base Salary. During the Employment Term, the Executive will receive an
annual salary, payable in monthly or more frequent installments, of $500,000
subject to authorized withholding and other deductions. The annual salary will
be reviewed annually and, if appropriate, increased by the Company in the sole
discretion of the Compensation Committee of its Board. Such annual salary, as so
increased, is hereinafter referred to as the "Base Salary." In no event shall
the Executive's Base Salary be reduced below $500,000. Payments of Base Salary
have been made to The Saranow Group for the Executive's services to the Company
beginning on November 12, 1999, and extending through December 31, 1999.
(b) Annual Bonus. During the Employment Term, the Executive will be
eligible to receive an annual cash bonus based upon the Executive's and/or the
Company's achievement of performance goals or objectives. The bonus goals and
objectives shall be established by mutual agreement of the Compensation
Committee of the Board and the Executive. The Executive shall have a maximum
bonus opportunity of 100% of Base Salary and a target payment of 65% of Base
Salary. The Compensation Committee shall have the sole discretion to determine
whether the bonus goals and objectives have been met. A prorated bonus payment
of $35,000 for the period ending December 31, 1999, shall be paid to the
Executive by the Company within 15 days of the date this Agreement is signed.
(c) Long-Term Incentive Compensation. (i) The Company has granted the
Executive an option (the "Option") to purchase 300,000 shares of the Company's
common stock, par value $0.001 per share (the "Common Stock"). The purchase
price per share is the closing price of the Common Stock on the date of grant
(the "Exercise Price"). The Option has been granted in accordance with the
Company's Long-Term Incentive Plan and is subject to the terms and conditions
contained in the Stock Award Agreement to be entered into between the Company
and the Executive, which terms shall include: (i) the Option shall have a term
equal to the lesser of ten years measured from the date of grant or the longest
period permitted by the Company's Long-Term Incentive Plan after the date of the
termination of the Executive's employment with the Company; (ii) the greatest
portion of the Option shares allowable under the Company's Long-Term Incentive
Plan shall be issued as incentive stock options; (iii) the Option shares shall
vest and become exercisable 50% as of the date of grant, an additional 25% on
the date 6 months after the date of grant, and an additional 25% on the date 18
months after the date of grant; and (iv) in the event of a Change of Control
prior to the Executive's termination of employment, or the termination of
Executive's employment by the Company without Cause (as hereinafter defined) or
by the Executive for Good Reason (as hereinafter defined) the Executive shall
immediately become fully vested in his entire Option.
(d) Employee Benefits. During the Employment Term, the Executive will be
entitled to receive all benefits of employment generally available to other
members of the Company's senior executive management, upon his satisfaction of
the eligibility or participation criteria therefor.
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(e) Entitlement to Perquisites. For each fiscal year of the Company, or
portion thereof, occurring during the Employment Term, the Executive shall be
entitled to receive those perquisites from the Company which are generally
available to other members of the Company's senior executive management and they
shall specifically include, without limitation, reasonable hotel expenses while
in Chicago, an automobile allowance of $850 per month and downtown parking fees,
and reimbursement of dues and expenses associated with one downtown luncheon
club.
(f) Reimbursement of Travel and Entertainment Expenses. The Company shall
pay or reimburse the Executive, in accordance with its normal policies and
practices, for all reasonable hotel, travel and other expenses incurred by the
Executive in connection with the performance of his obligations hereunder. The
Company further agrees to furnish the Executive with such accommodations as
shall be suitable to the character of the Executive's position with the Company
and adequate for the performance of his duties hereunder (including those
reasonable hotel and entertainment costs he incurs while staying in Chicago on
Company business).
(g) Legal Fees. The Company shall pay, or reimburse the Executive for,
the legal fees and expenses of counsel to the Executive in connection with the
preparation, negotiation, execution and delivery of this Agreement.
(h) Withholding Taxes. There shall be deducted and withheld from the Base
Salary and all other compensation payable to the Executive during or for the
Employment Term any and all amounts required to be deducted or withheld under
the provisions of any statute, regulation, ordinance or order.
6. Obligations of the Executive During and After Employment.
(a) The Executive acknowledges and agrees that solely by virtue of his
employment by, and relationship with, the Company, he will acquire "Confidential
Information," as defined in subparagraph (vii) below, as well as special
knowledge of the Company's relationships with its clients, and that, but for his
association with the Company, the Executive will not have had access to said
Confidential Information or knowledge of said relationships. The Executive
further acknowledges and agrees (1) that the Company has long term relationships
with its clients, and that those relationships were developed at great expense
and difficulty to the Company over several years of close and continuing
involvement; (2) that the Company's relationships with its clients are and will
continue to be valuable, special and unique assets of the Company and (3) that
the Company has the following protectable interests that are critical to its
competitive advantage in the industry and would be of demonstrable value in the
hands of a competitor: software designs and application; plans, modeling
products and tools (including, but not limited to, COMPPASS 2000); processes,
distribution networks, and protocols; research bases, systems, and industry
benchmarks; and concepts, ideas, marketing strategies, and other matters not
generally known to the public. In return for the consideration described in this
Agreement, and as a condition precedent both to the grant of the Option under
the Stock Award Agreement and the Company employing the Executive, and as an
inducement to the Company to do so, the Executive hereby represents, warrants
and covenants as follows:
(i) The Executive has executed and delivered this Agreement as his
free and voluntary act, after having determined that the provisions contained
herein are of a material benefit to him, and that the duties and obligations
imposed on him hereunder are fair and reasonable and will not prevent him from
earning a comparable livelihood following the termination of his employment with
the Company;
(ii) The Executive has read and fully understands the terms and
conditions set forth herein, has had time to reflect on and consider the
benefits and consequences of entering into this Agreement, and has had the
opportunity to review the terms hereof with an attorney or other representative
if he so chooses;
(iii) The execution and delivery of this Agreement by the Executive
does not conflict with, or result in a breach of or constitute a default under,
any agreement or contract, whether oral or written, to which the Executive is a
party or by which the Executive may be bound;
(iv) The Executive agrees that, during the time of his employment with
the Company and for a period of one year after termination of the Executive's
employment hereunder for any reason whatsoever or for no reason, whether
voluntary or involuntary, the Executive will not, except on behalf of the
Company, anywhere in
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North America or in any other place or venue where the Company or any affiliate,
subsidiary or division thereof now conducts or operates, or may conduct or
operate, its business prior to the date of the Executive's termination of
employment;
(A) directly or indirectly, contact, solicit or direct any
person, firm, corporation, association, or other entity to contact or solicit,
any of the Employer's clients or prospective clients (as they are hereinafter
defined) for the purpose of selling or distributing or attempting to sell or
distribute, any products and/or services in competition with the Company to its
clients during the term hereof. In addition, the Executive will not disclose the
identity of any such clients or prospective clients, or any part thereof, to any
person, firm, corporation, association, or other entity for any reason or
purpose whatsoever, except to the extent (1) required by any law, regulation or
order of any court or regulatory commission, department or agency, provided that
the Executive gives prompt notice of such requirement to the Company to enable
the Company to seek an appropriate protective order, or (2) such disclosure is
necessary to perform properly the Executive's duties under this Agreement;
(B) solicit on his own behalf or on behalf of any other person,
the services of any person who is an employee of the Company, nor solicit any of
the Company's employees to terminate employment with the Company;
(C) become directly or indirectly, an investor, owner or
stockholder (excluding investments representing less than 2% of the common stock
of a public company), lender, director, consultant, employee, agent or
salesperson, whether part-time or full-time, of any business which competes with
the Company in the marketing of products or services developed, marketed or
provided by the Company; and
(D) act as a consultant, advisor, officer, manager, agent,
director, partner, independent contractor, owner, or employee for or on behalf
of any of the Company's clients or prospective clients (as hereinafter defined),
with respect to any other business activities in which the Company engages
during the term hereof;
(v) The scope described above is necessary and reasonable in order to
protect the Company in the conduct of its business and that, if the Executive
becomes employed by another employer, he shall be required to disclose the
existence of this paragraph 6 to such employer and the Executive hereby consents
to and the Company is hereby given permission to disclose the existence of this
paragraph 6 to such employer.
(vi) For purposes of this Paragraph 6, "client" shall be defined as
any person, firm, corporation, association, or entity that purchased any type of
product and/or service from the Company or is or was doing business with the
Company within the 12-month period immediately preceding termination of the
Executive's employment. For purposes of this Paragraph 6, "prospective client"
shall be defined as any person, firm, corporation, association, or entity
contacted or solicited in writing by the Company or who contacted the Company
within the 12-month period immediately preceding the termination of the
Executive's employment for the purpose of having such persons, firms,
corporations, associations, or entities become a client of the Company;
(vii) Both during his employment and thereafter he will not, for any
reason whatsoever, use for himself or disclose to any person not employed by the
Company any "Confidential Information" of the Company acquired by the Executive
during his relationship with the Company, except to the extent that such
Confidential Information (a) becomes a matter of public record or is published
in a newspaper, magazine or other periodical, or in other media, available to
the general public, other than as a result of any act or omission of the
Executive, (b) is required to be disclosed by law, regulation or order of any
court or regulatory commission, department or agency, provided that the
Executive gives prompt notice of such requirement to the Company to enable the
Company to seek an appropriate protective order, or (c) is required to be
disclosed in order to perform properly the Executive's duties under this
Agreement. The Executive further agrees to use Confidential Information solely
for the purpose of performing duties with the Company and further agrees not to
use Confidential Information for his own private use or commercial purposes. The
Executive agrees that "Confidential Information" includes but is not limited to:
(1) any financial, engineering, business, planning, operations, services,
potential services, products, potential products, technical information and/or
know-how, organization charts, formulas, business plans, production, purchasing,
marketing, pricing, sales, profit, personnel, customer, broker, supplier, or
other lists or information of the Company; (2) any papers, data, records,
processes, methods, techniques, systems, models, samples, devices, equipment,
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compilations, invoices, client lists, or documents of the Company; (3) any
confidential information or trade secrets of any third party provided to the
Company in confidence or subject to other use or disclosure restrictions or
limitations; and (4) any other information, written, oral, or electronic,
whether existing now or at some time in the future, and whether pertaining to
current or future developments, which pertains to the Company's affairs or
interests or with whom or how the Company does business. The Company
acknowledges and agrees that Confidential Information does not include
information properly in the public domain;
(viii) During and after the term of employment hereunder, the
Executive will not remove from the Company's premises any documents, records,
files, notebooks, correspondence, reports, video or audio recordings, computer
printouts, computer programs, computer software, price lists, microfilm,
drawings, or other similar documents containing Confidential Information,
including copies thereof, whether prepared by him or others, except as his
duties under this Agreement shall require, and in such cases, will promptly
return such items to the Company. Upon termination of his employment with the
Company, all such items including summaries or copies thereof, then in the
Executive's possession, shall be returned to the Company immediately;
(ix) All ideas, inventions, designs, processes, discoveries,
enhancements, plans, writings, and other developments or improvements (the
"Inventions") conceived by the Executive, alone or with others, during the term
of his employment, whether or not during working hours, that are within the
scope of the Executive's business operations or that relate to any of the
Company's work or projects (including any and all inventions based wholly or in
part upon ideas conceived during the Executive's employment with the Company),
are the sole and exclusive property of the Company. The Executive further agrees
that (1) he will promptly disclose all Inventions to the Company and hereby
assigns to the Company all present and future rights he has or may have in those
Inventions, including without limitation those relating to patent, copyright,
trademark or trade secrets; and (2) all of the Inventions eligible under the
copyright laws are "work made for hire." At the request of and without charge to
the Company, the Executive will do all things deemed by the Company to be
reasonably necessary to perfect title to the Inventions in the Company and to
assist in obtaining for the Company such patents, copyrights or other protection
as may be provided under law and desired by the Company, including but not
limited to executing and signing any and all relevant applications, assignments
or other instruments. Notwithstanding the foregoing, pursuant to the Employee
Patent Act, Illinois Public Act 83-493, the Company hereby notifies the
Executive that the provisions of this subparagraph (ix) shall not apply to any
Inventions for which no equipment, supplies, facility or trade secret
information of the Company was used and which were developed entirely on the
Executive's own time, unless (1) the Invention relates (i) to the business of
the Company, or (ii) to actual or demonstrably anticipated research or
development of the Company, or (2) the Invention results from any work performed
by the Executive for the Company;
(x) All client lists, supplier lists, and client and supplier
information are and shall remain the exclusive property of the Company,
regardless of whether such information was developed, purchased, acquired, or
otherwise obtained by the Company or the Executive. The Executive also agrees to
furnish to the Company on demand at any time during his employment, and upon the
termination of his employment, any records, notes, computer printouts, computer
programs, computer software, price lists, microfilm, or any other documents
related to the Company's business, including originals and copies thereof; and
(xi) The Executive may become aware of "material" nonpublic
information relating to clients whose stock is publicly traded. The Executive
acknowledges that he is prohibited by law as well as by Company policy from
trading in the shares of such clients while in possession of such information or
directly or indirectly disclosing such information to any other persons so that
they may trade in these shares. For purposes of this subparagraph (xi),
"material" information may include any information, positive or negative, which
might be of significance to an investor in determining whether to purchase, sell
or hold the stock of publicly traded clients. Information may be significant for
this purpose even if it would not alone determine the investor's decision.
Examples include a potential business acquisition, internal financial
information that departs in any way from what the market would expect, the
acquisition or loss of a major contract, or an important financing transaction.
(b) Remedy for Breach. The Executive agrees that in the event of a
material breach or threatened material breach of any of the covenants contained
in this Paragraph 6, the Company will have the right and remedy to have such
covenants specifically enforced by any court having jurisdiction, it being
acknowledged and agreed that
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any material breach of any of the covenants will cause irreparable injury to the
Company and that money damages will not provide an adequate remedy to the
Company.
(c) Blue-Penciling. The Executive acknowledges and agrees that the
noncompetition and nonsolicitation provisions contained herein are reasonable
and valid in geographic, temporal and subject matter scope and in all other
respects, and do not impose limitations greater than are necessary to protect
the goodwill, Confidential Information and other business interests of the
Company. Nevertheless, if any court determines that any of said noncompetition
and other restrictive covenants and agreements, or any part thereof, is
unenforceable because of the duration or geographic scope of such provision,
such court will have the power to reduce the duration or scope of such
provision, as the case may be, and, in its reduced form, such provision will
then be enforceable to the maximum extent permitted by applicable law.
7. Termination of Employment.
(a) Termination as a Result of Death or Disability. The Executive's
employment with the Company shall terminate automatically upon the Executive's
death during the Employment Term. If the Disability of the Executive has
occurred during the Employment Term (pursuant to the definition of "Disability"
set forth below), the Company may give to the Executive written notice of its
intention to terminate the Executive's employment. In such event, the
Executive's employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Company (the "Disability Effective
Date"), provided that, within the 30 days after receipt of notice, the Executive
shall not have returned to substantial performance of the Executive's duties.
For purposes of this Agreement, "Disability" shall mean the absence of the
Executive from the Executive's duties with the Company for 120 consecutive days,
or a total of 180 days in any 12-month period, as a result of incapacity due to
mental or physical illness which is determined to be total and permanent by a
physician jointly selected by the Company and the Executive or the Executive's
legal representative, or, if the parties cannot agree on the selection of such
physician then each shall choose a physician and the two physicians shall
jointly select a physician to make such binding determination.
(b) Termination by the Company for Cause. The Company may terminate the
Executive's employment during the Employment Term for Cause at any time upon
written notice from the Board specifying such Cause and the expiration of the
cure period specified below, and thereafter, the Company's obligations hereunder
(other than the obligation to pay any accrued salary or benefit) shall cease and
terminate; provided, however, that such written notice shall not be delivered
until after the Board shall have given the Executive written notice specifying
the conduct alleged to have constituted such Cause. The Executive shall have 30
days to cure the matters specified in the notice delivered by the Board (to the
extent that such matters are curable). For purposes of this Agreement, "Cause"
shall mean the Executive's willful misconduct, dishonesty or other willful
actions (or willful failures to act) which are materially and demonstrably
injurious to the Company, or a material breach by the Executive of one or more
terms of this Agreement, which shall include the Executive's habitual neglect of
the material duties required of him under this Agreement. For purposes of this
Section, no act or failure to act, on the part of the Executive, shall be
considered "willful" unless it is done, or omitted to be done, by the Executive
in bad faith or without reasonable belief that the Executive's action or
omission was in the best interests of the Company. Any act, or failure to act,
based upon authority given pursuant to a resolution duly adopted by the Board or
based upon the advice of counsel for the Company shall be conclusively presumed
to be done, or omitted to be done, by the Executive in good faith and in the
best interests of the Company. The cessation of employment of the Executive
shall not be deemed to be for Cause unless and until there shall have been
delivered to the Executive a copy of a resolution duly adopted by the Board by
the vote of a majority of the entire Board at a meeting of the Board duly called
and held for such purpose, at which the Executive shall have an opportunity to
be present and to be heard, finding that, in the good faith opinion of the
Board, the Executive is guilty of the conduct described above, and specifying
the particulars thereof in detail.
(c) Termination by the Executive for Good Reason. The Executive's
employment with the Company may be terminated by the Executive for Good Reason.
For purposes of this Agreement, "Good Reason" shall mean any of the following
actions, if taken without the express written consent of the Executive: (1) any
material change by the Company in the Executive's title, functions, duties, or
responsibilities, which changes would cause the Executive's position with the
Company to become of significantly less responsibility, importance or scope as
compared to the position and attributes that applied to the Executive as of the
Effective Date; (2) any material failure
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by the Company to comply with any of the provisions of the Agreement; or (3) the
requirement made by the Company that the Executive change his manner of
performing his responsibilities so as to require a change in his residence.
(d) Notice of Termination. Any termination by the Company for Cause, or by
the Executive for Good Reason, shall be communicated by Notice of Termination
to the other party. For purposes of this Agreement, a "Notice of Termination"
means a written notice which (1) indicates the specific termination provision in
this Agreement relied upon, (2) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated and
(3) if the Date of Termination (as defined in Section (e) hereof) is other than
the date of receipt of such notice, specifies the termination date (which date
shall be not more than 30 days after the giving of such notice). The failure by
the Executive or the Company to set forth in the Notice of Termination any fact
or circumstance which contributes to a showing of Good Reason or Cause shall not
waive any right of the Executive or the Company, respectively, hereunder or
preclude the Executive or the Company, respectively, from asserting such fact or
circumstance in enforcing the Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (1) if the Executive's
employment is terminated by the Company for Cause, the expiration of the cure
period specified in Paragraph 7(b) hereof, (2) if the Executive's employment is
terminated by the Executive for Good Reason, the date of receipt of the Notice
of Termination or any later date specified therein, as the case may be, (3) if
the Executive's employment is terminated by reason of death or Disability, the
date of death of the Executive or the Disability Effective Date, as the case may
be, and (4) if the Executive's employment is terminated by the Company other
than for Cause or Disability, or by the Executive without Good Reason, 30 days
after the date of receipt by the non-terminating party of a written notice of
termination or such shorter time as the Board thereafter specifies in a written
notice to the Executive.
(f) Change of Control of the Company. For the purpose of this Agreement, a
"Change of Control" shall have been deemed to have occurred if at any time
during the Employment Term:
(i) the Company sells or otherwise disposes in an arms length
transaction assets of the Company having a fair market value of at least
60% of the total assets of the Company and its subsidiaries on a
consolidated basis, or the Company sells or otherwise disposes of a
majority of the equity ownership or voting control of any member of any
corporation or other entity holding substantially all of the assets of the
Company, in a single transaction or series of related transactions, or
(ii) acquisition by (A) any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person")
or (B) two or more Persons of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of more than 50% of either
(1) the shares of Common Stock outstanding immediately after such
acquisition (the "Company Common Stock") or (2) the combined voting power
of the voting securities of the Company entitled to vote generally in the
election of directors outstanding immediately after such acquisition (the
"Company Voting Securities"); provided, however, that for purposes of this
subsection (i) the following acquisitions of securities shall not
constitute or be included when determining whether there has been a Change
of Control: (1) any acquisition by the Company, or (2) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company; or
(iii) consummation of a reorganization, merger or consolidation or the
sale or other disposition of all or substantially all of the assets of the
Company, or the acquisition of the assets of another corporation by the
Company (in each case, a "Business Combination"), unless, following any
such Business Combination, (A) all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the Company
Common Stock and Company Voting Securities outstanding immediately prior to
such Business Combination beneficially own, directly or indirectly, more
than 60% of, respectively, the then outstanding shares of common stock or
the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case may
be, of the corporation resulting from such Business Combination (including,
without limitation, a corporation which as a result of such transaction
owns the Company or all or substantially all of the Company's assets either
directly or through one or more subsidiaries) in substantially the same
proportions as their
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ownership, immediately prior to such Business Combination, of the Company
Common Stock and Company Voting Securities outstanding, as the case may be,
(B) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan or related trust of the Company or
any corporation resulting from such Business Combination) beneficially
owns, directly or indirectly, 50% or more of, respectively, the then
outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding
voting securities of such corporation except to the extent that such
ownership existed prior to the Business Combination and (C) at least a
majority of the members of the board of directors of the corporation
resulting from such Business Combination were members of the Board at the
time of the execution of the initial agreement, or of the action of the
Board, providing for such Business Combination.
8. Obligations of the Company upon Termination of Employment.
(a) Termination by the Company Other Than for Cause, Death or Disability or
by the Executive for Good Reason or for any Reason Following a Change of
Control. If during the Employment Term (i) the Company terminates the
Executive's employment other than for Cause, death or Disability, (ii) the
Executive terminates his employment for Good Reason, or (iii) following a Change
of Control, the Executive terminates his employment for any reason, then in any
such case the Company shall pay to the Executive in a lump sum in cash within 30
days after the Date of Termination (or, in the event any amounts due cannot be
determined within this period, as soon thereafter as is practicable) an amount
equal to (A) two times the Executive's then current Base Salary plus (B) two
times the annual bonus most recently paid to the Executive. The provisions of
this Subparagraph 8(a) shall not affect any rights of the Executive under the
Company's benefit plans or programs.
(b) Termination as a Result of the Executive's Disability or Death. If
during the Employment Term the Executive's employment is terminated by reason of
the Executive's Disability or death, then the Company shall pay to the Executive
or the Executive's legal representatives in a lump sum in cash within 30 days
after the Date of Termination (or, in the event any amounts due cannot be
determined within this period, as soon thereafter as is practicable) an amount
equal to one times (A) the Executive's then current Base Salary plus (B) the
annual bonus most recently paid to the Executive. The provisions of this
Subparagraph 8(b) shall not affect any rights of the Executive's heirs,
administrators, executors, legatees, beneficiaries or assigns under the
Company's benefit plans or programs.
(c) Termination by the Company for Cause or by the Executive other than
for Good Reason. If during the Employment Term either (i) the Executive's
employment is terminated by the Company for Cause or (ii) the Executive
voluntarily terminates his employment prior to a Change of Control, excluding
termination by him for Good Reason, then the Company shall have no further
obligation to the Executive other than the obligation to pay to the Executive
(A) his Base Salary through the Date of Termination and (B) any other
compensation and benefits due to the Executive in accordance with this
Agreement, in each case to the extent theretofore unpaid.
9. Golden Parachute Provision.
In the event that in the opinion of tax counsel selected by the Executive
and compensated by the Company ("Executive's Tax Counsel"), a payment or benefit
received or to be received by the Executive following his termination of
employment (whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company or any of its subsidiaries, affiliates
or divisions) (collectively, with the payments provided for in the foregoing
provisions of Section 8, the "Post Termination Payments") would be subject to
excise tax (in whole or in part) as a result of Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code"), and as a result of such excise
tax, the net amount of Post Termination Payments retained by the Executive
(taking into account federal and state income taxes and such excise tax) would
be less than the net amount of Post Termination Payments retained by the
Executive (taking into account federal and state income taxes) if the Post
Termination Payments were reduced or eliminated as described in this Section 9,
then the Post Termination Payments shall be reduced or eliminated until no
portion of the Post Termination Payments is subject to excise tax, or the Post
Termination Payments are reduced to zero. For purposes of this limitation (i) no
portion of the Post Termination Payments the receipt or enjoyment of which the
Executive shall have waived in writing prior to the date
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of payment following termination of the Post Termination Payments shall be taken
into account, (ii) no portion of the Post Termination Payments shall be taken
into account which in the opinion of Executive's Tax Counsel does not constitute
a "parachute payment" within the meaning of Section 280G(b)(2) of the Code,
(iii) the Post Termination Payments shall be reduced only to the extent
necessary so that the Post Termination Payments (other than those referred to in
clauses (i) and (ii)) in their entirety constitute reasonable compensation for
services actually rendered within the meaning of Section 280G(b)(4) of the Code
or are otherwise not subject to excise tax, in the opinion of Executive's Tax
Counsel, and (iv) the value of any non-cash benefit and all deferred payments
and benefits included in the Post Termination Payments shall be determined by
the mutual agreement of the Company and the Executive in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code.
10. Governing Law; Arbitration; Jurisdiction; Attorneys' Fees.
This Agreement is made and entered into and will be governed by and
interpreted in accordance with the laws of the State of Illinois. The Company
and the Executive agree that any dispute regarding this Agreement, that cannot
be resolved amicably by the parties, will be submitted to arbitration within 60
days of the date the dispute arose and will be resolved in accordance with the
rules of the American Arbitration Association for expedited cases then in
effect. The arbitrator will be mutually selected by the parties or in the event
the parties cannot mutually agree, then appointed by the American Arbitration
Association. Any arbitration will be held in Chicago, Illinois and the
arbitrator will apply Illinois law. Judgment upon any award rendered by the
arbitrator will be final and binding and may be entered in any court of
competent jurisdiction. The arbitrator will not be empowered to award damages in
excess of compensatory damages and each party hereby irrevocably waives any
damages in excess of compensatory damages. Notwithstanding the foregoing, the
Company will have the absolute right to seek equitable remedies in any state
court of competent jurisdiction in the State of Illinois, County of Xxxx, or in
a United States District Court in the State of Illinois pursuant to Paragraph
6(b) hereof. By Executive's execution and delivery of this Agreement, the
Executive irrevocably submits to and accepts the exclusive jurisdiction of each
of such courts and waives any objection (including any objection to venue or any
objection based upon the grounds of forum non conveniens) which might be
asserted against the bringing of any such action, suit or other legal proceeding
in such courts. The parties shall be responsible for their own costs and
expenses under this Section 10.
11. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes any and all previous agreements, written or oral, regarding the
subject matter hereof between the parties hereto. This Agreement shall not be
modified or amended, except by a written agreement signed by the parties hereto.
(b) Notices. All notices, requests, demands and other communications
required or permitted to be given or made under this Agreement shall be in
writing and shall be deemed to have been given if delivered by hand, sent by
generally recognized overnight courier service, telex or telecopy with
confirmation of receipt, or mail:
(i) to the Company:
Navigant Consulting, Inc.
Attn: General Counsel
000 X. Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
with a copy to:
Winston & Xxxxxx
Attention: Gov. Xxxxx X. Xxxxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
(ii) to the Executive:
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Xxxxxxxx X. Xxxxxxx
000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
with a copy to:
Sidley & Austin
Attention: Xxxxxx Xxxxxxxxxx
Bank Xxx Xxxxx
00 Xxxxx Xxxxxxxx
Xxxxxxx, XX 00000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications will be effective when
actually received by the addressee.
(c) Successors.
This Agreement is personal to the Executive and without the prior written
consent of the Company it shall not be assignable by the Executive otherwise
than by will or the laws of descent and distribution. This Agreement will inure
to the benefit of and be enforceable against the Executive's legal
representatives. This Agreement will inure to the benefit of and be binding upon
the Company and its successors and assigns. The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation, share
exchange or otherwise) to all or substantially all of the business and/or assets
of the Company to assume expressly and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to perform
it if no such succession had taken place. For purposes of this Agreement, the
term "Company" means the Company as hereinbefore defined and any successor to
its business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
(d) Severability. If any provision of this Agreement is held invalid or
unenforceable, either in its entirety or by virtue of its scope or application
to given circumstances, such provision will thereupon be deemed modified only to
the extent necessary to render such provision valid, or not applicable to given
circumstances, or excised from this Agreement, as the situation may require, and
this Agreement will be construed and enforced as if such provision had been
included herein as so modified in scope or application, or had not been included
herein, as the case may be. Should this Agreement, or any one or more of the
provisions hereof, be held to be invalid, illegal or unenforceable within any
governmental jurisdiction or subdivision thereof, the Agreement or any such
provision or provisions will not as a consequence thereof be deemed to be
invalid, illegal or unenforceable in any other governmental jurisdiction or
subdivision thereof.
(e) Waiver. The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder, will not be deemed to be
a waiver of such provision or right or any other provision or right of this
Agreement.
(f) Counterparts. This Agreement may be executed in two counterparts, each
of which will be deemed an original and both of which taken together will
constitute a single instrument.
(signature page follows)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
------------------------------------
Xxxxxxxx X. Xxxxxxx
Navigant Consulting, Inc.
By __________________________________
Its _________________________________
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