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Exhibit 10.5
CAMBRIDGE ENERGY RESEARCH ASSOCIATES, INC.
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of , 1997, between
Cambridge Energy Research Associates, Inc. (and any successor thereto,
"Employer"), a Massachusetts corporation, and (the "Employee").
W I T N E S S E T H:
WHEREAS, on , 1997 (the "Effective Date"), Global
Decisions Group LLC, a Delaware limited liability company (together with any
successor thereto, the "Parent LLC"), acquired (x) all of the outstanding
capital stock of MCM Group, Inc., a Delaware corporation ("MGI"), pursuant to
the merger of GDG Merger Corporation, a Delaware corporation and a wholly owned
subsidiary of Parent LLC, with and into MGI, with MGI as the surviving
corporation, and (y) all of the capital stock of Employer and certain of the
limited partnership interests of Cambridge Energy Research Associates Limited
Partnership, a Delaware limited partnership ("CERA LP"), pursuant to the
exchange of such capital stock and such partnership interests for limited
liability company interests and certain other contingent interests in the Parent
LLC (the "Transactions");
WHEREAS, on the Effective Date, the Parent LLC contributed to
Employer the partnership interests of CERA LP so acquired by the Parent LLC,
whereupon Employer became the sole partner of CERA LP and CERA LP was dissolved
by operation of law;
WHEREAS, prior to the Effective Date, the Employee was
employed by CERA LP pursuant to an employment agreement, dated , 199
(the "Prior Agreement");
WHEREAS, in order to secure the continued services of the
Employee following the Transactions, Employer desires to enter into this
agreement embodying the terms of such employment (this "Agreement"), which
Agreement shall replace and supersede the Prior Agreement in all respects;
WHEREAS, the Employee desires to accept such continued
employment on the terms and conditions set forth herein and enter into this
Agreement, whereupon the Prior Agreement shall be deemed to have been terminated
and to have no continuing force or effect;
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WHEREAS, Employer and the Employee agree that the Employee
will have a prominent role in the management of the business, and the
development of the goodwill, of the Parent LLC, Employer, MGI and their
respective subsidiaries (the Parent LLC, Employer, MGI and such subsidiaries
collectively referred to as the "MGI/CERA Group") and will establish and develop
relations and contacts with the principal customers of the MGI/CERA Group in the
United States and the rest of the world, all of which constitute valuable
goodwill of, and could be used by the Employee to compete unfairly with, the
MGI/CERA Group; and
WHEREAS, (i) in the course of his employment by Employer and
any provision of services to the other members of the MGI/CERA Group, the
Employee will obtain confidential information and trade secrets concerning the
worldwide business and operations of the MGI/CERA Group that could be used to
compete unfairly with the MGI/CERA Group, (ii) the covenants and restrictions
contained in Sections 8 through 13, inclusive, are intended to protect the
legitimate interests of the MGI/CERA Group and to protect their respective
goodwill, trade secrets and other confidential information and (iii) the
Employee desires to agree to be bound by such covenants and restrictions and to
enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration,
Employer and the Employee hereby agree as follows:
1. Agreement to Employ. Upon the terms and subject to the
conditions of this Agreement, Employer hereby employs the Employee and the
Employee hereby accepts employment by Employer.
2. Term; Position and Responsibilities.
(a) Term of Employment. Unless the Employee's employment shall
sooner terminate pursuant to Section 7, Employer shall employ the Employee for
an initial term commencing on the date hereof and ending on the third
anniversary thereof. Employment shall thereafter be deemed to be automatically
extended, upon the same terms and conditions, for successive periods of one
year each, unless either Employer or the Employee, at least six (6) months prior
to the expiration of the initial term or any extended term, shall give written
notice to the other of its intention not to renew such employment. The period
during
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which the Employee is employed pursuant to this Agreement, including any
extension thereof in accordance with the preceding sentence, shall be referred
to as the "Employment Period".
(b) Position and Responsibilities. During the Employment
Period, the Employee will serve as [title to be inserted, as applicable] of
Employer and have such duties and responsibilities as are customarily assigned
to individuals serving in such position and such other duties consistent with
the Employee's position as the Board of Directors of Employer ("Employer's
Board") shall specify from time to time. Additionally, Employer, in its sole
discretion and giving due consideration to the Employee's duties and
responsibilities in respect of the Employee, may request that the Employee
perform similar services for any member of the MGI/CERA Group. If the Employee
declines such request, the Employee may be required to perform such services
upon a vote of 75% of the members of Employer's Board of Directors. The Employee
will devote all of his skill, knowledge and working time to the performance of
such duties, responsibilities and services, except for (i) reasonable vacation
time as provided in Section 6(c) hereof and absence for sickness or similar
disability and (ii) to the extent that it does not interfere with the
performance of the Employee's duties hereunder, (A) such reasonable time as may
be devoted to service on boards of directors or the fulfillment of civic or
charitable responsibilities, (B) reasonable time as may be necessary from
time-to-time for personal financial matters and (C) reasonable time as may be
devoted to personal, non-business related writings and to the teaching of
university courses and similar activities to enhance the Employee's professional
reputation. The Employee shall perform his duties, responsibilities and services
from Employer's offices in [Cambridge, Massachusetts] [and] [Washington, D.C.]
[Paris, France] and shall not be required by Employer to be personally based or
transferred anywhere other than the metropolitan area in which such office(s)
is/are now located, without the Employee's prior written consent. The Employee
represents that he is entering into this Agreement voluntarily and that his
employment hereunder and compliance by him with the terms and conditions of this
Agreement will replace and supersede the terms and conditions of the Prior
Agreement in all respects, and that the Prior Agreement shall be deemed to have
been terminated and to have no continuing force or effect. The Employee further
represents that this Agreement does not conflict with or result in the breach of
any agreement to which he is a party or by which he may be bound.
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3. Base Salary. As compensation for the services to be
performed by the Employee hereunder, Employer will pay the Employee an annual
base salary of $________ during the Employment Period. Employer will review the
Employee's base salary from time to time during the Employment Period, but not
less than on an annual basis, and, in the discretion of the Employer's Board,
may increase such base salary from time to time based upon such factors as
Employer's Board shall consider relevant. (The annual base salary payable to the
Employee under this Section 3, as the same may be increased from time to time,
shall hereinafter be referred to as the "Base Salary".) The Base Salary payable
under this Section 3 shall be reduced to the extent that the Employee elects to
defer such Base Salary under the terms of any deferred compensation or savings
plan maintained or established by Employer. Employer shall pay the Employee the
Base Salary in installments based on the Employer's regular payroll practices,
or in such other installments as may be mutually agreed upon by Employer and the
Employee.
4. Incentive Compensation. During the Employment Period, the
Employee shall participate in Employer's incentive compensation programs for its
executive officers existing from time to time, at a level commensurate with his
position and duties with the MGI/CERA Group, including [insert name of
performance bonus program to be adopted at Closing] (the "CERA Bonus Plan"),
pursuant to which the Employee shall be entitled to receive an annual incentive
award if [Employer] [the MGI/CERA Group] achieves the annual operating targets
and the Employee achieves the performance goals established by the Employer's
Board from time to time[, such performance bonus (i) to equal ___% of the
Employee's Base Salary for a fiscal year of Employer, if [Employer] [the
MGI/CERA Group] and the Employee achieve 100% of the performance objectives
established for such fiscal year and (ii) to be increased or reduced, in
accordance with the CERA Bonus Plan, if [Employer] [the MGI/CERA Group] or the
Employee exceeds or fails to achieve 100% of such performance objectives for
such fiscal year, respectively].
5. Employee Benefits. During the Employment Period, the
Employee will be entitled to participate in all of Employer's employee and
welfare benefits programs and plans, including, without limitation, life,
hospital, medical, dental and disability insurance ("Welfare Benefits") in
accordance with plans and programs of the MGI/CERA Group then available to
executive employees, as the same may be amended and in effect from time to time,
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provided that such Welfare Benefits shall be at least as favorable for three
years commencing on the date hereof as those provided to the Employee
immediately prior to the execution and delivery of this Agreement. The Employee
shall also be entitled to participate in all of Employer's profit sharing,
pension, retirement, deferred compensation and savings plans, if any, as the
same may be amended and in effect from time to time, at levels and having
interests commensurate with the Employee's then current period of service,
compensation and position.
6. Perquisites and Expenses.
(a) General. During the term of the Employee's employment
hereunder, the Employee shall be entitled to participate in the Cambridge Energy
Research Associates, Inc. LLC Unit Option Plan and any other special benefit or
perquisite program generally available from time to time to executive officers
of Employer, on the terms and conditions then prevailing under such plan or
program.
(b) Business Travel, Lodging, etc. Employer shall reimburse
the Employee for reasonable travel, lodging and meal expenses incurred by him in
connection with his performance of services hereunder upon submission of
evidence, satisfactory to Employer, of the incurrence and purpose of each such
expense and otherwise in accordance with Employer's business travel
reimbursement policies applicable to executives, as in effect from time to time,
provided that such policies shall permit the Employee to incur such expenses on
a first class or other equivalent basis.
(c) Vacation and Sick Days. The Employee shall be entitled to
five weeks of paid vacation per year, or such other longer period as Employer's
Board, in its discretion, may determine to be appropriate, without, except as
permitted in the discretion of the chairman of Employer's Board, carry-over
accumulation. The Employee shall be entitled to continue to accumulate paid sick
days in accordance with the policies of Employer in effect from time to time.
7. Termination of Employment.
(a) Termination Due to Death or Disability. In the event that
the Employee's employment hereunder terminates due to death, Employer will pay
the Employee's estate (or designated beneficiary) his Base Salary for a period
of
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12 months after the date of his death. In the event the Employee's employment is
terminated by Employer due to the Employee's Disability (as defined below), no
termination benefits shall be payable to or in respect of the Employee except as
provided in Section 7(f)(ii). For purposes of this Agreement, "Disability" shall
mean a physical or mental disability that prevents the performance by the
Employee of substantially all of his duties hereunder lasting for a continuous
period of six months or longer. The good faith judgment of Employer's Board as
to the Employee's Disability shall be final and shall be based on the
determination (evidenced by a written report or certificate) by a physician
selected by Employer or its insurers, and acceptable to the Employee or the
Employee's legal representative, that the Employee is incapable, due to mental
or physical illness, to perform his duties on a full-time basis for a
continuous period of six months or longer.
(b) Termination by Employer for Cause. The Employee's
employment may be terminated for "Cause" by Employer. "Cause" shall mean (i) the
willful failure of the Employee substantially to perform his duties as an
employee of, or in connection with his provision of services to, any member of
the MGI/CERA Group (other than any such failure due to physical or mental
illness), (ii) in the reasonable judgment of the Board, the Employee's engaging
in willful and serious misconduct that is injurious to Employer or any member of
the MGI/CERA Group, (iii) the Employee's conviction of, or entering a plea of
nolocontendere to, a crime that constitutes a felony, (iv) the material
violation by the Employee of any material federal or state securities law or (v)
the willful and material breach by the Employee of any of the covenants set
forth under Section 8, 9, 10 or 11 hereof or of any take-along or similar
covenants applicable to the limited liability company interests, or options to
purchase such limited liability company interests, of the Parent LLC held by the
Employee. Termination of employment of the Employee shall not be deemed to be
for Cause hereunder unless and until (A) in the event of any Cause defined in
clauses (i), (ii), (iv) and (v) of this paragraph (b), a written notice has been
delivered to the Employee by Employer which specifically identifies the Cause
which is the basis for termination and the Employee has failed to cure or remedy
the act or omission so identified within a period of fourteen (14) business days
after the Employee's receipt of Employer's notice and (B) Employer's Board of
Directors has voted to terminate the Employee for Cause, which vote shall be an
affirmative vote of not less than a majority of the members
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of Employer's Board of Directors (excluding the Employee if he is a member of
such Board), after reasonable notice has been provided to the Employee and the
Employee shall have been given an opportunity, together with counsel, to be
heard before Employer's Board of Directors. For purposes of this provision, no
act or failure to act on the part of the Employee shall be considered "willful"
unless it is done, or omitted to be done, by the Employee in bad faith or
without reasonable belief that the Employee's action or omission was in the best
interests of the MGI/CERA Group. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Employer's Board of
Directors or upon the instructions of such Board or based upon the advice of
counsel for Employer shall be conclusively presumed to be done, or omitted to be
done, by the Employee in good faith and in the best interests of the MGI/CERA
Group.
(c) Termination Without Cause. A termination "Without Cause"
shall mean a termination of employment by Employer other than due to Disability
as described in Section 7(a) or Cause as defined in Section 7(b).
(d) Termination by the Employee for Good Reason. The Employee
may terminate his employment for "Good Reason." "Good Reason" shall mean a
termination of employment by the Employee within 30 days following the
occurrence, without the Employee's consent, of the following: (i) any assignment
to the Employee of any duties that are significantly different from, and result
in a significant diminution of, the duties that he is to assume on the date
hereof pursuant to this Agreement (or duties pursuant to such other position
with Employer to which Employee may have been promoted with Employee's
approval), (ii) the failure of Employer to obtain the assumption of this
Agreement by any successor as contemplated by Section 14, (iii) any reduction of
the Employee's Base Salary or Welfare Benefits or incentive compensation
opportunity from the levels set forth in Sections 3, 4(a) and 5 hereof,
respectively, not including any increases thereof pursuant to such Sections or
(iv) Employer's requiring the Employee to be based at any office or location
other than as provided in Section 2 hereof or the Employer's requiring the
Employee to travel on Employer business to a substantially greater extent than
reasonably and customarily required in the performance of his responsibilities.
(e) Notice of Termination. Any termination by Employer
pursuant to Section 7(a), 7(b) or 7(c), or by the
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Employee pursuant to Section 7(d), shall be communicated by a written "Notice of
Termination" addressed to the other party to this Agreement. A "Notice of
Termination" shall mean a notice stating that the Employee's employment here
under has been or will be terminated, setting forth the termination date, which
shall be no earlier than the date on which the Notice of Termination is given,
indicating the specific termination provisions in this Agreement relied upon and
setting forth in reasonable detail the facts and circumstances claimed to
provide a basis for such termination of employment.
(f) Payments Upon Certain Terminations.
(i) In the event of a termination of the Employee's
employment by Employer Without Cause or a termination by the Employee
of his employment for Good Reason during the Employment Period, subject
to Section 7(h), Employer shall pay to the Employee (or following his
death, to the Employee's beneficiary):
(A)(1) his Base Salary, payable in installments, based on the
Employer's regular payroll practices, for the period
beginning on the Date of Termination and ending on the last
day of the Employment Period, determined without regard to the
fact of the termination of the Employee's employment (as the
Employment Period may have been extended prior to the Date of
Termination pursuant to Section 2(a) or otherwise); and
(2) an amount equal to the greater of
(i) the excess of:
(x) if, as of the Date of Termination, the -
MGI/CERA Group has achieved at least the pro
rata portion (based on the number of days
from the beginning of the then current
fiscal year to the Date of Termination (the
"Proportionate Period")) of the applicable
targets established under the CERA Bonus
Plan for the fiscal year that includes the
Date of Termination, an amount equal to the
amount of incentive compensation that would
have been payable to the Employee for such
fiscal year under the
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CERA Bonus Plan had he remained employed for the
entire fiscal year, over
(y) the amount of incentive compensation previously paid
or, at the election of the Employee, deferred for the
Proportionate Period, and
(ii)
(x) the pro rata portion (based on the Proportionate
Period) of an amount computed by multiplying the
amount of incentive compensation that would have been
payable to the Employee for such fiscal year under
the CERA Bonus Plan had he remained employed for the
entire fiscal year and assuming all targets had been
met pursuant to such Plan by a percentage equal to
the average of the percentages of the incentive
compensation bonuses actually paid to [list other two
CERA Principals] for such fiscal year under the CERA
Bonus Plan], over
(y) the amount of incentive compensation previously paid
or, at the election of the Employee, deferred for the
Proportionate Period,
in either case payable in one lump sum as soon as reasonably
practicable following receipt by Employer of the MGI/CERA
Group's financial statements for the applicable fiscal year
(accompanied by an audit report of its accountants), less
(B) any amount paid or to be paid to the Employee under the terms
of any severance plan or program of Employer, if any, as in
effect on the Date of Termination;
provided that Employer may, in its sole discretion, at any time, pay to
the Employee in a single lump sum and in satisfaction of Employer's
obligations under clauses (A)(1) and (2) of this sentence, an amount
equal to (x) the installments of the Base Salary then remaining
to be paid to the Employee pursuant to clause (A)(1) of
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this sentence, and the amount, if any, then remaining to be paid to the
Employee pursuant to clause (A)(2) of this sentence, less (y) the
amount, if any, remaining to be paid to the Employee pursuant to any
plan or program referred to in clause (B) of this sentence. If the
Employee's employment shall so terminate, (1) for the balance of the
Employment Period, (determined without regard to the fact of the
termination of the Employee's employment (as the Employment Period may
have been extended prior to the Date of Termination pursuant to Section
2(a) or otherwise) or such longer period as may be provided by the
terms of the applicable plan, program, practice or policy, Employer
shall continue to provide to the Employee and/or Employee's family
Welfare Benefits (other than disability insurance) at least equal to
those that would have been provided to him or them in accordance with
Section 5 if the Employee's employment had not been so terminated or,
if more favorable to the Employee, as in effect generally during such
Employment Period with respect to other senior executives of the
Company and their families and (2) the Employee shall have no
affirmative duty to seek new employment. If the Employee obtains new
employment and the Employer has not paid a lump sum to the Employee
pursuant to the proviso to the first sentence of this Section 7(f)(i),
any salary continuation payments to which the Employee may be entitled
pursuant to clause (A)(1) of the first sentence of this Section 7(f)(i)
shall be reduced or canceled to the extent that any salary, fees or
other cash compensation from such employment is paid or payable to or
on behalf of the Employee. Any benefits payable to the Employee and/or
the Employee's family under clause (1) of the second sentence of this
Section 7(f)(i) or any otherwise applicable plans, policies and
practices of Employer, including all Welfare Benefits described in
Section 5 hereof, shall be reduced or canceled to the extent of any
comparable benefit cover age offered to the Employee for whom the
Employee performs services, including consulting services.
(ii) If, during the Employment Period, the Employee's
employment shall terminate upon his death, Disability or retirement on
or after age 60, or if the Employee shall terminate his employment
without Good Reason or if Employer shall terminate the Employee's
employment for Cause, subject to Section 7(h), Employer shall pay the
Employee his Base Salary through the Date of Termination or, in the
case of the Employee's death,
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through twelve months following the Date of Termination, plus, in the
case of termination upon the Employee's death, Disability or retirement
on or after age 60, the excess of (x) if, as of the Date of
Termination, [Employer] [the MGI/CERA Group] has achieved at least the
pro rata portion (based on the Proportionate Period) of the applicable
targets established under the CERA Bonus Plan for the fiscal year that
includes the Date of Termination, an amount equal to the product of (A)
the amount of incentive compensation that would have been payable to
the Employee for such fiscal year under the CERA Bonus Plan had he
remained employed for the entire fiscal year and (B) a fraction, the
numerator of which is equal to the number of days in such fiscal year
that precedes the Date of Termination (but not including any time
between the onset of a physical or mental disability that is determined
to be a Disability and the resulting Date of Termination) and the
denominator of which is equal to 365, over (y) the amount of incentive
compensation previously paid or, at the election of the Employee,
deferred for the Proportionate Period. Any benefits, including Welfare
Benefits and disability benefits, if any, pursuant to Employer's
disability program, payable to or in respect of the Employee under any
otherwise applicable plans, policies and practices of Employer shall
not be limited by this provision.
(g) Date of Termination. As used in this Agreement, the term
"Date of Termination" shall mean (i) if the Employee's employment is terminated
by his death or retirement on or after age 60, the date of his death or
retirement, (ii) if the Employee's employment is terminated by the Employee
without Good Reason, the date of termination set forth in the Notice of
Termination, (iii) if the Employee's employment is terminated by Employer for
Cause, the date of termination set forth in the Notice of Termination, and (iv)
if the Employee's employment is terminated by Employer Without Cause, due to the
Employee's Disability or by the Employee for Good Reason, 30 days after the date
of termination set forth in the Notice of Termination.
(h) Resignation from Offices and Board Member ships. Effective
as of any Date of Termination under this Section 7 or otherwise as of the date
of the Employee's termination of employment with Employer, the Employee shall
resign in writing from all (i) offices then held by him with Employer or any
other member of the MGI/CERA Group and (ii) Board memberships then held by him
on the Boards of
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(x) Employer or any other member of the MGI/CERA Group or (y) any other
organization with which he is affiliated by virtue of his position with Employer
or any other member of the MGI/CERA Group. The Employee shall execute all
documents and instruments and take all other actions reasonably requested by
Employer to effectuate such resignations. All payments due or to become due to
the Employee pursuant to this Agreement, including any such payments pursuant to
Section 7(f), and, to the fullest extent permitted by applicable law, pursuant
to any otherwise applicable plan, policy, program or practice of Employer or any
other member of the MGI/CERA Group, shall be subject to such resignations by the
Employee and the performance by Employee of each of his obligations under this
Section 7(h).
8. Unauthorized Disclosure. During the period of the
Employee's employment with Employer or any other member of the MGI/CERA Group
and the five-year period following any termination of such employment, without
the prior written consent of Employer's Board or its authorized representative,
except to the extent required by an order of a court having apparent
jurisdiction or under subpoena from an appropriate government agency, in which
event, the Employee will use reasonable efforts to consult with Employer's Board
prior to responding to any such order or subpoena, and except as required in the
performance of his duties here under, the Employee shall not disclose any
confidential or proprietary trade secrets, customer lists, proprietary designs,
information regarding product development, marketing plans, sales plans, prices,
profits, costs, contracts, management organization information (including data
and other information relating to members of Employer's Board or of the Board of
any other member of the MGI/CERA Group, or management of Employer or any other
member of the MGI/CERA Group), operating policies or manuals, business plans,
financial records, or other financial, commercial, business or technical
information relating to Employer or any other member of the MGI/CERA Group that
Employer or any other member of the MGI/CERA Group may receive belonging to
suppliers, customers or others who do business with Employer or any other member
of the MGI/CERA Group (collectively, "Confidential Information") to any third
person. Notwithstanding the foregoing, "Confidential Information" shall not
include (i) any information that has been previously disclosed to the public or
is in the public domain other than as a result of the Employee's breach of this
Section 8, (ii) any information which is or becomes available to the Employee on
a non-confidential basis from a third party, provided that such third party was
not known by
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the Employee to be bound by a confidentiality agreement or contractual
obligation of confidentiality with respect to such information, (iii) is
disclosed by Employer to a third party without a duty of confidentiality or (iv)
is independently developed by a third party without the advice or assistance of
the Employee.
9. Non-Competition. During the period of Employee's
employment and, following any termination thereof, (x) if the Employee's
employment shall have been terminated by Employer Without Cause or by the
Employee for Good Reason, the period ending on the first anniversary of the Date
of Termination and (y) if such employment shall have been terminated for any
other reason, the period ending on the later of (i) the first anniversary of the
Date of Termination and (ii) the last day upon which any payments are made
pursuant to Section 7(f)(i)(A)(1) or 7(f)(i)(B), the Employee shall not,
directly or indirectly, (A) as an individual proprietor, partner, member,
principal, officer, employee, agent, consultant or stockholder, develop,
produce, market, sell or render (or assist any other person in developing,
producing, marketing, selling or rendering) products or services competitive
anywhere in the United States or elsewhere in the world with, or (B) engage in
business with, serve as an agent or consultant to, become an individual
proprietor, partner, member, principal or stockholder (other than a holder of
less than 1% of the outstanding voting shares of any publicly held company) of
or become employed in an executive capacity by, any person, firm or other entity
("Competitor") a substantial portion of whose business competes anywhere in the
United States or elsewhere in the world with a substantial portion of the
business of the MGI/CERA Group that relates to the financial information,
financial analysis, energy information and analysis or any other business then
engaged in by any members of the MGI/CERA Group, provided, that this Section 9
shall not be deemed to prohibit the Employee from teaching courses at
educational institutions or writing books or articles for public sale or making
appearances on television or preparing or otherwise participating in television
programs. For the purposes of this Section 9, a "substantial portion" (x) in the
case of the business of Competitor shall mean a line or lines of business that
account for more than 50% of the consolidated revenues of Competitor and (y) in
the case of the MGI/CERA Group shall mean a line or lines of business that
account for more than 25% of the consolidated revenues of the MGI/CERA Group, in
each case for the fiscal year ended immediately prior to the date on which the
Employee first proposes to engage in any
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of the activities described in clause (B) of the immediately preceding sentence;
provided, however, that in the case of a Competitor that has had less than three
full years of operations, a "substantial portion" shall mean a line or lines of
business accounting for more than 50% of the projected consolidated revenues of
such Competitor for the two fiscal years next succeeding the date on which the
Employee first proposes to engage in any of the activities described in clause
(B) of the immediately preceding sentence. Whether any such person, firm or
entity so competes shall be determined in good faith by Employer's Board. For
purposes of this Section 9, the phrase employment "in an executive capacity"
shall mean employment in any position in connection with which the Employee has
or reasonably would be viewed as having powers and authorities with respect to
any other person, firm or other entity or any part of the business thereof that
are substantially similar, with respect thereto, to the powers and authorities
assigned to any executive officer of Employer as described in the By-Laws of
Employer as in effect on the date hereof, a copy of the relevant portions of
which has been delivered to and reviewed by the Employee on or prior to the date
hereof.
10. Non-Solicitation of Employees. Except in connection with
the performance of his duties for the MGI/CERA Group, during the period of the
Employee's employment with Employer or any other member of the MGI/CERA Group
and thereafter for any period that the Employee is receiving payments pursuant
to Section 7(f)(i)(A)(1) or 7(f)(i)(B) (the "Restriction Period"), the Employee
shall not, directly or indirectly, for his own account or the account of any
other person or entity with which he shall become associated in any capacity,
(a) solicit for employment or employ the services of any person who at the time
is employed by or otherwise engaged to perform services for Employer or any
other member of the MGI/CERA Group, regard less of whether such employment is
direct or through an entity with which such person is employed or associated, or
otherwise intentionally interfere with the relationship of Employer or any other
member of the MGI/CERA Group with any person or entity who or which is at the
time employed by or otherwise engaged to perform services for the Employer or
any other member of the MGI/CERA Group, including under this clause (a) any
person who performs services on behalf of the Employer or any other member of
the MGI/CERA Group as an independent sales agent or sales representative or (b)
induce any employee of Employer or any other member of the MGI/CERA Group to
engage in any activity which the Employee
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is prohibited from engaging in under Sections 9, 10 and 11 hereof or to
terminate his employment with Employer or any other member of the MGI/CERA
Group.
11. Non-Solicitation of Clients. During the Restriction
Period, the Employee shall not, directly or indirectly, solicit for himself or
any other person, firm or entity anywhere in the United States or elsewhere in
the world any business relationship of a nature that is substantially
competitive with the business or relationship of Employer or any other member of
the MGI/CERA Group with any person, firm or corporation which was a customer,
client or distributor of Employer or any other member of the MGI/CERA Group at
any time during the Employment Period (in the case of any such activity during
the Employment Period) or during the twelve-month period preceding the date of
Employee's termination of employment with or the provision of services to
Employer or any other member of the MGI/CERA Group other than any such
solicitation during Employee's employment with Employer or any other member of
the MGI/CERA Group on behalf of Employer or any other member of the MGI/CERA
Group.
12. Return of Documents. In the event of the termination of
the Employee's employment for any reason, the Employee will deliver to Employer
all property and non-personal documents and data of any nature and in whatever
medium pertaining to employment with or, the provision of services to, Employer
or any other member of the MGI/CERA Group, and he will not take with him any
such property, documents or data of any description or any reproduction thereof,
or any documents containing or pertaining to any Confidential Information.
Whether documents or data are "personal" or "non-personal" shall be determined
as follows: the Employee shall present any documents or data that he wishes to
take with him to the chief legal officer of Employer for his review. Such chief
legal officer shall make an initial determination whether any such documents or
data are personal or non-personal, and with respect to such documents or data
that he determines to be non-personal, shall notify the Employee either that
such documents or data must be retained by Employer or that Employer must make
and retain a copy thereof before the Employee may take such documents or data
with him. Any disputes as to the personal or non-personal nature of any such
documents or data shall first be presented to the Chairman of Employer's Board
or to another representative designated by Employer's Board (such Chairman or
representative, the "Chairman"), and if such disputes are not promptly resolved
by the Employee and the
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Chairman, such disputes shall be resolved through arbitration pursuant to
Section 17(b).
13. Injunctive Relief with Respect to Covenants. Employee
acknowledges and agrees that the covenants, obligations and agreements of the
Employee with respect to noncompetition, nonsolicitation, confidentiality and
Employer property relate to special, unique and extraordinary matters and that a
violation of any of the terms of such covenants, obligations or agreements will
cause Employer irreparable injury for which adequate remedies are not available
at law. Therefore, the Employee agrees that Employer shall be entitled to an
injunction, restraining order or such other equitable relief (without the
requirement to post bond) as a court of competent jurisdiction may deem
necessary or appropriate to restrain the Employee from committing any violation
of the covenants, obligations or agreements referred to in this Section 13.
These in junctive remedies are cumulative and in addition to any other rights
and remedies Employer may have. If Employer does not prevail in obtaining the
injunctive relief it seeks, Employer shall reimburse the Employee for any legal
expenses incurred by him in defending against the imposition of such injunctive
relief. Employer and the Employee hereby irrevocably submit to the exclusive
jurisdiction of the courts of the States of New York and Delaware and the
Federal courts of the United States of America, located in the State, City and
County of New York or in the District of Delaware, as applicable, in respect of
the injunctive remedies set forth in this Section 13 and the interpretation and
enforcement of Sections 8, 9, 10, 11, 12 and 13 insofar as such interpretation
and enforcement relate to any request or application for injunctive relief in
accordance with the provisions of this Section 13, and the parties hereto hereby
irrevocably agree that (i) the sole and exclusive appropriate venue for any suit
or proceeding relating solely to such injunctive relief shall be in such a
court, (ii) all claims with respect to any request or application for such
injunctive relief shall be heard and determined exclusively in such a court,
(iii) any such court shall have exclusive jurisdiction over the person of such
parties and over the subject matter of any dispute relating to any request or
application for such injunctive relief and (iv) each hereby waives any and all
objections and defenses based on forum, venue or personal or subject matter
jurisdiction as they may relate to an application for such injunctive relief in
a suit or proceeding brought before such a court in accordance with the
provisions of this Section 13. All disputes not relating to any request or
application for injunctive relief
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in accordance with this Section 13 shall be resolved by arbitration as
contemplated by Section 17(b).
14. Assumption of Agreement. Employer will require any
successor (by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of Employer, by agreement in
form and substance reasonably satisfactory to the Employee, to expressly assume
and agree to perform this Agreement in the same manner and to the same extent
that Employer would be required to perform it if no such succession had taken
place. Failure of Employer to obtain such agreement prior to the effectiveness
of any such succession shall be a breach of this Agreement and shall entitle the
Employee to compensation from Employer in the same amount and on the same terms
as the Employee would be entitled hereunder if Employer terminated his
employment Without Cause as contemplated by Section 7, except that for purposes
of implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination.
15. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof,
and all promises, representations, understandings and arrangements with respect
thereto. All prior correspondence and proposals (including summaries of proposed
terms) and all prior promises, representations, understandings, arrangements and
agreements relating to such subject matter (including but not limited to those
made to or with the Employee by any other person or entity) are merged herein
and superseded hereby.
16. Indemnification. Employer agrees that it shall indemnify
and hold harmless the Employee to the fullest extent permitted by Delaware law
from and against any and all liabilities, costs, claims and expenses including
without limitation all costs and expenses incurred in defense of litigation,
including attorneys' fees, arising out of the employment of the Employee
hereunder, except to the extent arising out of or based upon the bad faith or
willful misconduct of the Employee. Costs and expenses incurred by the Employee
in defense of litigation, including attorneys' fees, shall be paid by Employer
in advance of the final disposition of such litigation upon receipt of an
undertaking adequate under Delaware law made by or on behalf of the Employee to
repay such amount if it shall ultimately be determined that the Employee is not
entitled to be indemnified by Employer under this Agreement.
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17. Miscellaneous.
(a) Binding Effect. This Agreement shall be binding on and
inure to the benefit of Employer and its successors and permitted assigns. This
Agreement shall also be binding on and inure to the benefit of the Employee and
his heirs, executors, administrators and legal representatives. This Agreement
shall not be assignable by either party hereto without the prior written consent
of the other party hereto, except pursuant to this Section 17(a) as hereinafter
provided. Each of Parent LLC and Employer may effect such an assignment without
prior written approval of the Employee upon the transfer of all or substantially
all of its business and/or assets (whether by purchase, merger, consolidation or
otherwise), provided that the successor to such business and/or assets shall
expressly assume and agree to perform this Agreement in accordance with the
provisions of Section 14.
(b) Arbitration. Any dispute or controversy arising under or
in connection with this Agreement (except in connection with any request or
application for injunctive relief in accordance with Section 13) shall be
resolved by binding arbitration. The arbitration shall be held in The City of
New York, New York and except to the extent in consistent with this Agreement,
shall be conducted in accordance with the Commercial Arbitration rules of the
American Arbitration Association then in effect at the time of the arbitration,
and otherwise in accordance with principles which would be applied by a court of
law or equity. The arbitrator shall be acceptable to both Employer and the
Employee. If the parties cannot agree on an acceptable arbitrator, the dispute
shall be heard by a panel of three arbitrators, one appointed by Employer, one
appointed by the Employee, and the third appointed by the other two arbitrators.
All expenses of arbitration shall be borne by the respective party who incurs
the expense, or, in the case of joint expenses, by both parties in equal
portions, except that, in the event the Employee prevails on the principal
issues of such dispute or controversy, all such expenses shall be borne by the
Employer.
(c) Governing Law. This Agreement shall be governed by and
constructed in accordance with the laws of the State of Delaware.
(d) Taxes. Employer may withhold from any payments made under
the Agreement all federal, state, city or
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other applicable taxes as shall be required pursuant to any law, governmental
regulation or ruling.
(e) Amendments. No provision of this Agreement may be
modified, waived or discharged unless such modification, waiver or discharge is
approved by Employer's Board or a person authorized thereby and is agreed to in
writing by the Employee and, in the case of any such modification, waiver or
discharge affecting the rights or obligations of the Parent LLC, is approved by
the Board of Directors of Parent LLC or such officer of the Parent LLC as may be
specifically designated for such purpose by such Board. No waiver by any party
hereto at any time of any breach by any other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No waiver of any provision of
this Agreement shall be implied from any course of dealing between or among the
parties hereto or from any failure by any party hereto to assert its rights
hereunder on any occasion or series of occasions.
(f) Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
(g) Notices. Any notice or other communication required or
permitted to be delivered under this Agreement shall be (i) in writing, (ii)
delivered personally, by courier service or by certified or registered mail,
first-class postage prepaid and return receipt requested, (iii) deemed to have
been received on the date of delivery or on the third business day after the
mailing thereof, and (iv) addressed as follows (or to such other address as the
party entitled to notice shall hereafter designate in accordance with the terms
hereof):
(A) if to Employer, to it at:
Cambridge Energy Research Associates, Inc.
Xxxxxxx Square
00 Xxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
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(B) if to the Employee, to him at the address listed on the
signature page hereof.
Copies of any notices or other communications given under this Agreement shall
also be given to:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Brera Capital Partners, LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Xxxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
and
Xxxx and Xxxx
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
(h) Survival. Sections 7(h), 8, 9, 10, 11, 12, 13, 14, 15, 16
and 17 and, if the Employee's employment terminates in a manner giving rise to a
payment under Section 7(f), Section 7(f) shall survive the termination of the
employment of the Employee hereunder.
(i) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
(j) Headings. The section and other headings contained in this
Agreement are for the convenience of the parties only and are not intended to be
a part hereof or to affect the meaning or interpretation hereof.
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IN WITNESS WHEREOF, Employer has duly executed this Agreement
by its authorized representatives and the Employee has hereunto set his hand, in
each case effective as of the date first above written.
CAMBRIDGE ENERGY RESEARCH ASSOCIATES,
INC.
By:
-----------------------------------
Name:
Title:
[ ]
------------------
Name of Employee
--------------------------------
Address:
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