Employment Agreement - The Corporate Executive Board Co. and James J. McGonigle
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of the 21st of
January, 1999 and effective as of the Effective Date (as defined herein), is
made and entered into by and between The Corporate Executive Board Company
(hereinafter "the Company") and James J. McGonigle (hereinafter the
"Executive").
WHEREAS, the Company employs the Executive, among other things, as its
Chief Executive Officer; and
WHEREAS, the Executive and the Company desire to memorialize the terms and
conditions of the Executive's employment with the Company in a written binding
contract.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
and for other good and valuable consideration, the adequacy of which is hereby
acknowledged, the parties agree as follows:
1. Employment
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The Company hereby agrees to employ the Executive on the terms and
conditions stated herein, to perform and discharge such services and duties as
are reasonably required of the Chief Executive Officer, and such other
substantially similar services and duties as he may be assigned from time to
time by the Company's Board of Directors (the "Board") and such other persons as
they may designate. The Executive agrees to accept such employment with the
Company as of the Effective Date on the terms and conditions stated herein, and
to devote his full and best efforts, energies and abilities to the Company on a
full-time basis, provided, however, that the Executive may serve as a director
of any company that is not directly or indirectly in competition with the
Company, as long as such service as a director does not interfere with his
duties and obligations to the Company.
2. Term; Effective Date
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The term of this Agreement shall commence as of an Initial Public
Offering of any shares of capital stock of the Company (the "Effective Date")
and shall continue until this Agreement is terminated pursuant to Section 8
below. The Executive may be terminated by the Company at will at anytime.
However, a termination of the Executive shall be governed by the provisions of
Section 8 below. Until the Effective Date, the provisions of the Employment
Agreement, dated October 30, 1997, between the Company and the Executive (the
"Original Employment Agreement") shall continue in full force and effect in
accordance with its terms and conditions. In the event the Executive ceases to
be employed by the Company prior to the Effective Date, this Agreement shall
become null and void and of no further force and effect. For purposes of this
Agreement, the term "Initial Public Offering" shall mean the effectiveness of a
registration statement under the Securities Act of 1933, as amended, covering
any of the capital stock of the Company and the completion of a sale of such
stock thereunder, if as a result of such
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sale (i) the Company becomes a reporting company under Section 12(b) or 12(g) of
the Securities Exchange Act of 1934, as amended, and (ii) such stock is traded
on the New York Stock Exchange or the American Stock Exchange, or is quoted on
the NASDAQ Market.
3. Compensation
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As compensation for services rendered by the Executive during his
employment under this Agreement, the Company shall, commencing with the
Effective Date, pay him a base salary at the rate of Four Hundred Forty Thousand
Dollars ($440,000.00) per annum, payable in installments in accordance with the
Company's policy governing salary payments to executive employees generally.
The Board will review the Executive's salary periodically and may, in its sole
discretion, grant increases to the Executive's salary rate.
4. Benefits
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The Company shall provide the Executive with all of the standard
benefits it provides to other executive employees who are similarly situated, as
such benefits may be modified from time to time, including without limitation
vacation, holidays, sick leave, group health insurance, short term and long term
disability insurance, life insurance and participation in the 401(k) plan.
Notwithstanding the foregoing, the Company agrees to maintain for the benefit of
the Executive short term and long term disability insurance with coverage
amounts at least equal to such coverage amounts maintained by the Company with
respect to the Executive on the Effective Date. In addition, the Company
agrees, subject to the Board's approval, to reimburse the Executive for
membership fees and other reasonable expenses incurred with respect to the
Executive's participation in community and business-related organizations.
5. Expenses
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The Company shall reimburse the Executive for all reasonable and
necessary business expenses incurred by him in the performance of his duties
hereunder, in accordance with its policies, and provided they are vouchered in a
form satisfactory to the Internal Revenue Service and consistent with company
policy for the deduction of such expenses.
6. Compliance With Other Agreements
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The Executive represents and warrants that his performance hereunder
shall not conflict with any other agreements to which he is a party. He further
represents and warrants that he will not use in his performance hereunder any
information, material or documents of a former employer which are trade secrets
or are otherwise confidential or proprietary to said employer, unless he has
first obtained written authorization from such former employer for their
possession or use. The Executive agrees not to enter into any agreement, either
written or oral, which may conflict with this Agreement, and he authorizes the
Company to make known the terms of this Agreement to any person or entity.
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7. Exclusive Services, Confidential Information, Business Opportunities,
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Non-Competition, Non-Solicitation and Work Product
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On or prior to the Effective Date, the Executive and the Company shall
execute the Agreement Concerning Exclusive Services, Confidential Information,
Business Opportunities, Non-Competition, Non-Solicitation and Work Product, as
amended and restated (the "Non-Competition Agreement"), which is hereby
incorporated herein in its entirety by this reference.
8. Termination
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If, for any reason, the Executive's employment by the Company is
terminated, the Executive immediately shall resign his position as a director of
the Company. The termination of the Executive's employment by the Company shall
be governed by the following:
(a) By the Company
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(i) Termination for Cause
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The Company may terminate the employment of the Executive for Cause at
any time upon three (3) months notice to the Executive. For purposes of this
Agreement, "Cause" for termination shall mean the commission of a material act
of fraud, theft or dishonesty against the Company; conviction for any felony; or
willful non-performance of material duties which is not cured within sixty (60)
days after receipt of written notice to the Executive from the Board of
Directors. In the event of a termination pursuant to this Section 8(a)(i), the
Company may at any time prior to the expiration of the notice period provided in
the immediately preceding sentence relieve the Executive of his duties and pay
him his salary for the remainder of such notice period. In the event of
termination pursuant to this Section 8(a)(i), the Executive shall not be
entitled to any further compensation or benefits from the Company except such
compensation or benefits which have been earned prior to the date of termination
pursuant to the express terms of this Agreement, the Stock Option Agreement, as
amended (the "Stock Option Agreement"), between the Company and the Executive or
the Non-Compete Agreement.
(ii) Termination Without Cause
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The Company, in its sole discretion, may terminate the employment of
the Executive at any time without "Cause" as defined by Section 8(a)(i) or
without any other cause whatsoever. For purposes of this Section 8(a)(ii), a
termination without cause shall not include a death or disability (as defined in
Section 8(a)(iii) below) or a termination by the Executive (as defined in
Section 8(b) below), but a termination without cause shall include a significant
diminution of the Executive's employment duties or compensation, removal as
Chief Executive Officer of the Company or a material breach of this Agreement by
the Company. In addition, following the Initial Public Offering, if, as a result
of one or more related transactions, the majority of the capital stock of the
Company or substantially all of its assets are purchased by, or the Company is
merged with, another company, entity or person, the Executive shall be deemed to
have been terminated without Cause, if, after such transactions,
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there is a material reduction in the Executive's responsibility for, and
authority over, the same internal functions of the Company's business as he had
prior to such transactions, a reduction in the base salary of the Executive or
the Executive is required to relocate his place of employment to a location that
is more than thirty-five (35) miles from the location of the Company's
headquarters at the time of such transactions. In the event of termination
pursuant to this Section 8(a)(ii), (A) (I) Company shall pay the Executive an
amount equal to 125% of one year's base salary of the Executive at the time of
such termination and (II) all of the options granted to the Executive shall vest
and immediately become exercisable and such options shall expire ninety (90)
days after such termination without Cause and (B) the Executive shall not be
entitled to any further compensation or benefits from the Company except for
such compensation or benefits which have been earned prior to the date of
termination pursuant to the express terms of this Agreement, the Stock Option
Agreement or the Non-Competition Agreement.
(b) Death or Disability
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The Executive's employment shall be terminated in the event of his
death or disability. The term "disability" shall mean a serious and permanent
medical incapacity or disability that precludes the Executive from performing
professional work. The Company, at its option and expense, shall be entitled to
retain a physician reasonably acceptable to the Executive to confirm the
existence of such incapacity or disability. In the event of termination under
this Section 8(b), neither the Executive nor his estate shall be entitled to any
compensation or benefits from the Company except for such compensation or
benefits which have been earned prior to the date of termination pursuant to the
express terms of this Agreement or which are provided pursuant to the express
terms of the Stock Option Agreement.
(c) By the Executive
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The Executive may voluntarily terminate his employment at any time
upon three (3) months' written notice to the Company. A voluntary termination
by the Executive shall not include a date on which the Executive ceases to be
employed by the Company due to death or disability (as defined in Section 8(b)
above). In the event of such voluntary termination by the Executive, the
Company may at any time prior to the expiration of the notice period relieve him
of his duties and pay him his salary in lieu of notice for the remainder of said
notice period. In the event of termination pursuant to this Section 8(c), the
Executive shall not be entitled to any compensation or benefits from the Company
except for such compensation or benefits which have been earned prior to the
date of termination pursuant to the express terms of this Agreement or which are
provided pursuant to the express terms of the Stock Option Agreement.
9. Arbitration
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The parties shall endeavor to settle all disputes by amicable
negotiations. Any claim, dispute, disagreement or controversy that arises among
the parties relating to this Employment Agreement (excluding enforcement by the
Company of its rights under the Non-Competition Agreement) that is not amicably
settled shall be resolved by arbitration, as follows:
(a) Any such arbitration shall be heard in the District of Columbia,
before a
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panel consisting of one (1) to three (3) arbitrators, each of whom shall be
impartial. Except as the parties may otherwise agree, all arbitrators shall be
appointed in the first instance by the appropriate official in the District of
Columbia office of the American Arbitration Association or, in the event of his
or her unavailability by reason of disqualification or otherwise, by the
appropriate official in the New York City office of the American Arbitration
Association. In determining the number and appropriate background of the
arbitrators, the appointing authority shall give due consideration to the issues
to be resolved, but his or her decision as to the number of arbitrators and
their identity shall be final. Except as otherwise provided in this Section 9,
all of the arbitration proceedings shall be conducted in accordance with the
rules of the arbitrators.
(b) An arbitration may be commenced by any party to this Agreement by
the service of a written request for arbitration upon the other affected
parties. Such request for arbitration shall summarize the controversy or claim
to be arbitrated, and shall be referred by the complaining party to the
appointing authority for appointment of arbitrators ten (10) days following such
service or thereafter. If the panel of arbitrators is not appointed by the
appointing authority within thirty (30) days following such reference, any party
may apply to any court within the District of Columbia for an order appointing
arbitrators qualified as set forth below.
(c) All attorneys' fees and costs of the arbitration shall in the
first instance be borne by the respective party incurring such costs and fees,
but the arbitrators shall have the discretion to award costs and/or attorneys'
fees as they deem appropriate under the circumstances. The parties hereby
expressly waive punitive damages, and under no circumstances shall an award
contain any amount that in any way reflects punitive damages.
(d) Judgment on the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof.
(e) It is intended that controversies or claims submitted to
arbitration under this Section 8 shall remain confidential, and to that end it
is agreed by the parties that neither the facts disclosed in the arbitration,
the issues arbitrated, nor the views or opinions of any persons concerning them,
shall be disclosed to third persons at any time, except to the extent necessary
to enforce an award or judgment or as required by law or in response to legal
process or in connection with such arbitration.
10. Non-Waiver
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It is understood and agreed that one party's failure at any time to
require the performance by the other party of any of the terms, provisions,
covenants or conditions hereof shall in no way affect the first party's right
thereafter to enforce the same, nor shall the waiver by either party of the
breach of any term, provision, covenant or condition hereof be taken or held to
be a waiver of any succeeding breach.
11. Severability
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In the event that any provision of this Agreement conflicts with the
law under which this Agreement is to be construed, or if any such provision is
held invalid or unenforceable
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by a court of competent jurisdiction or any arbitrator, such provision shall be
deleted from this Agreement and this Agreement shall be construed to give full
effect to the remaining provisions thereof.
12. Governing Law
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This Agreement shall be interpreted, construed and governed according
to the laws of the District of Columbia, without regard to the principle of
conflicts of laws thereof.
13. Headings and Captions
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The paragraph headings and captions contained in this Agreement are
for convenience only and shall not be construed to define, limit or affect the
scope or meaning of the provisions hereof.
14. Survival
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The provisions of the Non-Competition Agreement and the Stock Option
Agreement (and any agreements incorporated therein by reference) shall survive
the termination and/or expiration of this Agreement.
15. Entire Agreement
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This Agreement, including the agreements expressly incorporated by
reference herein pursuant to Sections 7 and 8(a)(i) above (and any agreements
incorporated therein by reference), contains and represents the entire agreement
of the parties and supersedes all prior agreements, representations or
understandings, oral or written, express or implied with respect to the subject
matter hereof. This Agreement may not be modified or amended in any way unless
in a writing signed by both the Executive and the Company.
16. Assignability
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Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the prior written consent of the other.
Subject to the foregoing, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their heirs, successors and assigns.
17. Notices
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All notices required or permitted hereunder shall be in writing and
shall be deemed properly given if delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested, or sent by telegram,
telex, telecopy or similar form of telecommunication, and shall be deemed to
have been given when received. Any such notice or communication shall be
addressed: (a) if to the Company, to Chairman of the Board, The Corporate
Executive Board Company, The Watergate, 600 New Hampshire Avenue, N.W.,
Washington, D.C. 20037; or (b) if to the Executive, to his last known home
address on file with the Company; or to such other address as the parties shall
have furnished to one another in writing.
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18. Counterparts
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This Agreement may be executed in two or more counterparts all of
which shall have the same force and effect as if all parties hereto had executed
a single copy of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement,
to be effective as of the Effective Date.
THE CORPORATE EXECUTIVE BOARD COMPANY
/s/ James J. McGonigle By: /s/ Harold L. Siebert
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James J. McGonigle Name: Harold L. Siebert
Title: Chairman
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