FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (the "Amendment") is entered
into as of the 1st day of January 2005, by and between FIND/SVP, INC., a New
York corporation (the "Company") and Xxxxx Xxxxx ("Employee").
WHEREAS, the Company and the Employee are parties to an Employment
Agreement entered into as of November 21, 2001 (the "Employment Agreement"); and
WHEREAS, the Company and the Employee now desire to amend and modify
certain terms and provisions of the Employment Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. Defined Terms; Section References. Any capitalized term used, but not
defined, in this Amendment shall have the meaning given thereto in the
Employment Agreement. All section references herein refer to the applicable
section of the Employment Agreement.
2. The date "November 20, 2004" in Section 2.1 is deemed amended and
replaced with "December 31, 2007."
3. Section 3.1 is deemed amended in its entirety as set forth below:
3.1 (a) Employee shall receive salary for his services at the rate of
$250,000 per annum ("Base Salary"), subject to increases by the
Compensation Committee of the Board of Directors of the Company, from time
to time, payable in accordance with the Company's normal payroll
procedures for executive employees.
(b) At the discretion of the Compensation Committee of the Board of
Directors of the Company, the Employee shall be eligible to receive an
annual bonus based on performance. In addition to any other bonus(es),
whether based on performance or otherwise, that the Compensation Committee
may award to Employee, the Company's bonus program shall (a) provide that
Employee shall earn 50% of Base Salary in each year of the Term if the
Company achieves the Company's (adjusted) EDITDA target for each year of
such Term, and (b) provide that Employee shall earn 100% of Base Salary in
each year of the Term if the Company achieves 120% of the Company's EBITDA
target for each year of such Term. The Company shall in good faith
determine the EBITDA target for each year of the Term on or prior to
January 31 of such year.
4. Section 3.6 is deemed amended in its entirety as set forth below:
(a) In the event the Employee's employment by the Company is terminated
for "cause" pursuant to Section 2.1(c) hereof, or by virtue of Section
2.1(d) hereof because the Employee voluntarily leaves the employ of the
Company (other than for "Good Reason" or on account of a "Change in
Control" as set forth in Section 3.6(b) below), the Employee shall be
entitled to the compensation provided for by Section 3.1 only up until the
date of termination of his employment.
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(b) In the event the Employee leaves the employment of the Company (A) for
Good Reason (as defined below), (B) on account of a Change in Control (as
defined in Section 4 hereof),or (C) is terminated by the Company without
Cause, then the Employee shall be entitled to receive the compensation and
benefits (but only to the extent legally allowable) provided for in
Sections 3.1(a), 3.3 and 3.5 hereof, for the greater of (a) the balance of
the Term or (b) a period of two (2) years from the date of termination.
Employee shall also receive a lump sum payment in an amount equal to the
sum of: (i) the amount of the Employee's bonus that should have been paid
with respect to that part of the fiscal year in which the date of
termination occurs, absent the termination of the Employee's employment,
(ii) the Employee's actual earned bonus for any completed fiscal year or
period not theretofore paid and (iii) the unpaid portion of any amount
earned by the Employee prior to the date of such termination pursuant to
any benefit program in which the Employee participated during the Term,
including without limitation, any accrued vacation pay to the extent no
theretofore paid. For purposes of calculating the amount of any partial
year bonus to be awarded pursuant to 3.6(b)(i) above, the Company's actual
EBITDA through the last completed month prior to the date of termination
shall be measured against the Company's EBITDA target prorated for the
portion of such fiscal year through the date of termination taking into
account the number of completed months during such fiscal year through the
date of termination, and for purposes of clarity, Base Salary shall be the
amount of Base Salary earned prior to the date of termination. Employee
shall have no obligation to mitigate payments and benefits received, and
shall be entitled to the compensation provided for herein even if Employee
is employed elsewhere.
For purposes hereof, "Good Reason" shall mean the following: (i) the
dimunition of Employee's position, duties, responsibilities and status
with the Company as contemplated hereunder or any removal of the Employee
from any positions or offices the Employee held as contemplated hereunder,
except in connection with the termination of the Employee's employment by
the Company for cause or incapacity, (ii) the failure of the Company to
assign to the Employee duties consistent with his position, duties,
responsibilities and status with the Company as contemplated hereunder; or
(iii) a relocation of the Company's principal offices and place of
Employee's employment outside of Manhattan or further than 25 miles from
the Employee's current principal residence.
(c) In the event that the Company terminates the Employee's employment for
"cause," and a court of law or other tribunal ultimately determines that
such termination was without cause, the Employee shall be entitled to
receive double the amount of compensation provided for in Section 3.1
hereof from the date of termination until the end of the Term.
(d) In the event the Employee's employment by the Company is terminated as
a result of a Nonrenewal Event (as defined below), the Employee shall be
entitled to receive the compensation and benefits (but only to the extent
legally allowable) provided for in Sections 3.1 and 3.5 hereof, for a
period of one year from the date of termination. For purposes of this
Agreement, a "Nonrenewal Event" shall occur in the event that the Employee
ceases to continue employment with the Company after the expiration of the
Term because the Company does not offer to continue the Employee's
employment hereunder on terms that are substantially the same as the terms
contained in this Agreement.
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5. Section 3 is amended by adding a new subparagraph (3.8) at the end
thereof as follows:
3.8 Executive shall be granted a total of 450,000 shares of restricted
stock (the "Restricted Stock") under the Company's 2003 Stock Incentive
Plan (the "Plan") or such other similar stock plan that the Company may
have in place at the time as follows: (a) 100,000 shares of Restricted
Stock at the commencement of year 1 of the Term; (b) 150,000 shares of
Restricted Stock at the commencement of year 2 of the Term; and (c)
200,000 shares of Restricted Stock at the commencement of year 3 of the
Term. In the event that the Company does not have a stock incentive
plan in place with enough shares to be granted to Employee, the Company
shall use its commercially reasonable efforts to obtain stockholder
approval for a new equity compensation plan or an amendment to an
existing plan and then grant such Restricted Stock under such plan.
The restrictions on the award shall vest as follows: (i) 100% on the
date the Average Closing Price exceeds three dollars and twenty five
cents ($3.25) per share in year 1 of the Term, (ii) 100% on the date
the Average Closing Price exceeds four dollars ($4.00) per share in
year 2 of the Term, (iii) 100% on the date the Average Closing Price
exceeds five dollars ($5.00) per share in year 3 of the Term or (iv)
the date there is a Change of Control (as defined in Section 4) of the
Company. For purposes of this Agreement, "Average Closing Price" shall
mean the average closing price of the Company's common stock quoted on
the NASDAQ System or such other exchange where the Company's common
stock may be traded for fifteen (15) consecutive trading days. The
number of shares granted and the target share price shall be adjusted
for changes in the common stock as outlined in Section 18.1 of the Plan
or as otherwise mutually agreed in writing between the parties. The
terms of the Restricted Stock granted hereunder shall each be set forth
in a Restricted Stock Award Agreement attached hereto as Exhibit A.
6. Except as expressly amended by this Amendment, the Employment Agreement
shall remain in full force and effect.
7. This Amendment shall be governed by, and construed in accordance with
the laws of the state of New York applicable to contracts executed, and to be
fully performed, in such state.
8. This Amendment may be executed in any number of counterparts and via
facsimile, but all such counterparts will together constitute one and the same
agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the day and year first written above.
COMPANY: EMPLOYEE
FIND/SVP, INC.
By: /s/ Xxxx Xxxxxxxxx /s/ Xxxxx Xxxxx
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Name: Xxxx Xxxxxxxxx Xxxxx Xxxxx
Title: Chief Operating Officer
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