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Exhibit 10.24
FORM OF FRIESS
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereafter the "Employment Agreement") is
entered into as of August 28, 2001, by and among FA (DE) Acquisition Company,
LLC, a Delaware limited liability company (the "Manager Member"), Friess
Associates of Delaware, LLC, a Delaware limited liability company (the
"Employer"), and (the "Employee").
W I T N E S S E T H:
WHEREAS, (i) Friess Associates of Delaware, Inc., a Delaware
corporation ("FAID") and (ii) Foster S. Friess together own all of the
outstanding membership interests in the Employer as of the date hereof;
WHEREAS, (i) Friess Associates, Inc., a Delaware corporation ("FAI"),
(ii) The Community Foundation of Jackson Hole, a Wyoming non-profit
corporation ("CFJH"), (iii) NCCF Support, Inc., a Georgia non-profit
corporation ("NCCF" and, collectively with CFJH, the "Charities"), (iv) the
Employee and (v) certain other key employees of Friess Associates, LLC, a
Delaware limited liability company (the "WY LLC") together own all of the
outstanding membership interests in the WY LLC as of the date hereof, and the
WY LLC, as an affiliated company of the Employer, will engage in the business
of investment management with the Employer, and together they will conduct
the Friess business formerly conducted by FAI and FAID;
WHEREAS, pursuant to that certain Purchase Agreement, dated as of
August 28, 2001 (the "Purchase Agreement") by and among Affiliated Managers
Group, Inc. ("AMG"), a Delaware corporation and the manager member of, and
holder of all of the outstanding membership interests in, the Manager Member,
FAID, Friess Associates, Inc., a Delaware corporation ("FAI" and,
collectively with FAID, the "Friess Companies") and certain other parties as
set forth therein, AMG has agreed to cause the Manager Member to purchase (i)
from FAID at the "Closing" (as such term is defined in the Purchase
Agreement) (the "Closing") all of the membership interests in the Employer
owned by FAID (other than certain retained minority membership interests to
be held by FAID as of immediately following the Closing), (ii) from Foster S.
Friess at the Closing all of the membership interests in the Employer owned
by Foster S. Friess and (iii) from FAID on the third anniversary of the
Closing (subject to certain conditions set forth in the Purchase Agreement) a
portion of the retained minority membership interest held by FAID as of
immediately following the Closing, and as of the Closing the Manager Member
will become the "manager" of the Employer within the meaning of the Act;
WHEREAS, pursuant to that certain Management Owner Purchase Agreement,
dated as of August 28, 2001 (the "Management Owner Purchase Agreement") by and
among AMG, the Employee and certain other key employees of the Employer and the
WY LLC, and as a condition precedent to the Employee having agreed to enter into
this Employment Agreement, AMG has agreed (subject to the conditions set forth
in the Management Owner Purchase
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Agreement) to cause the Manager Member to purchase from the Employee and such
other key employees of the Employer and the WY LLC at the Closing all of the
ownership interests in the WY LLC owned by the Employee and such other key
employees of the Employer and the WY LLC, and to pay to the Employee at the
Closing a cash purchase price in respect of such purchased ownership interest
of approximately ;
WHEREAS, as a further condition precedent to the Employee having
agreed to enter into this Employment Agreement, at the Closing the Employee
will be granted (subject to the conditions set forth in the Management Owner
Purchase Agreement) new membership interests in the Employer and the WY LLC,
and will become a Non-Manager Member of the Employer and the WY LLC and a
member of their respective Management Committees as of immediately following
the Closing; reference is hereby made to that certain Amended and Restated
Limited Liability Company Agreement of the Employer dated as of the date
hereof and effective as of the Closing, as the same may be amended and/or
restated from time to time (the "LLC Agreement");
WHEREAS, in addition to his material participation in the proceeds
resulting from the sale of the business of the WY LLC to AMG (as described in
the foregoing recitals), the Employee will receive substantial economic and
other benefits if the transactions contemplated by the Purchase Agreement and
the Management Owner Purchase Agreement are consummated, both as a
Non-Manager Member of the Employer from and after the Closing and pursuant to
the terms of this Employment Agreement and the LLC Agreement;
WHEREAS, it is a condition precedent to the obligation of AMG to
consummate the transactions contemplated by the Purchase Agreement and the
Management Owner Purchase Agreement that the Employee, as a seller of
membership interests in the Employer and a key employee of the Employer,
enter into and be bound by an employment agreement with the Employer in the
form hereof, supplanting as of the Closing any previous employment agreement
or arrangement that Employee may have had with the Employer or either of the
Friess Companies;
WHEREAS, it is a condition precedent to the Employee becoming a
Non-Manager Member of the Employer at the Closing that the Employee enter
into and be bound by an employment agreement with the Employer in the form
hereof;
WHEREAS, the Manager Member and the Employer recognize the importance
of the Employee to the Employer and the WY LLC and to the Employer's and the
WY LLC's ability to retain their client relationships, and desire that the
Employer employ the Employee for the period of employment and upon and
subject to the terms herein provided;
WHEREAS, the Manager Member and the Employer wish to be assured that
the Employee will not compete with the Employer, the WY LLC or any of their
respective Controlled Affiliates during the period of employment and for a
period thereafter, and that the Employee will not solicit any Past, Present,
or Potential Clients of FAID, FAI or the Employer during the period of
employment and for a period thereafter upon and subject to the terms herein
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provided, as any such competition or solicitation by the Employee would
damage the Employer's goodwill among Clients and the general public;
WHEREAS, the Employee desires to be employed by the Employer and to
refrain from competing with the Employer, the WY LLC or any of their
respective Controlled Affiliates or soliciting Past, Present or Potential
Clients for the periods and upon and subject to the terms herein provided; and
WHEREAS, the Employee has been employed by the Employer or the Friess
Companies for approximately years, has while so employed contributed to
the acquisition and retention of Clients, and will continue to seek to
acquire and retain Clients and to generate goodwill in the future as an
officer, employee and agent of the Employer.
Initially capitalized terms used and not otherwise defined herein
shall have their respective meanings as such terms are defined in the LLC
Agreement in the form executed and delivered by the parties thereto on the
date hereof (a conformed copy of which is attached hereto as Exhibit A), or
as such terms may be defined in any subsequent amendment to such Agreement
solely to the extent the Employee has consented in writing to such amendment.
AGREEMENTS
In consideration of the premises, the mutual covenants and the
agreements hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto covenant and agree as follows:
SECTION 1. EFFECTIVENESS; TERM OF EMPLOYMENT; COMPENSATION.
(a) This Employment Agreement shall constitute a binding agreement
between the parties as of the date hereof; PROVIDED, HOWEVER, that in the
event that (i) the Purchase Agreement is terminated for any reason without
the Closing (as such term is defined in the Purchase Agreement) having
occurred, (ii) prior to the Closing, the Employee's employment with the DE
LLC is terminated at the election of the DE LLC for any reason or (iii) the
Closing shall not have occurred for any reason within after the date
hereof, then in any such event this Employment Agreement shall be terminated
without further obligation or liability on the part of any party hereto
(other than with respect to any breaches of the terms of this Employment
Agreement occurring prior to the date of such termination of this Employment
Agreement, for which the party breaching this Employment Agreement shall
remain liable notwithstanding such termination of the Purchase Agreement or
termination of employment, as the case may be).
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(b) The Employer hereby agrees to employ the Employee for a period of
ten (10) years beginning on the Closing Date (the "Term"), and the Employee
hereby accepts such employment and agrees to be employed by the Employer for
the Term (in each case subject to termination of the Employee's employment
solely as provided herein). As consideration for the Employee's performance
hereunder, the Employer will pay the Employee for his services during the
Term hereof such amounts as shall be determined by the Management Committee
or its delegate(s) consistent with the provisions of Article III of the LLC
Agreement (including, by way of example and not of limitation, the provisions
of Section 3.5(c) of the LLC Agreement with regard to the use of Operating
Allocation and the provisions of Schedule B to the LLC Agreement), subject to
such payroll and withholding deductions as are required by law. Consistent
with the provisions of Section 3.5(c) of the LLC Agreement (but subject to
the provisions of Schedule B to the LLC Agreement), the Employee's
compensation (including salary and bonus) will be periodically reviewed and
adjusted (with respect to both increases and/or decreases).
(c) For purposes of the definition of "Retirement" set forth in the
LLC Agreement, the Employee may Retire (subject to the notification
requirements contained in such definition) any time on or after the
anniversary of the Closing Date; PROVIDED, HOWEVER, that, solely in the
event that the Employee and together deliver to the Employer and the
Manager Member an irrevocable written notice, jointly executed and delivered
by each such person in his sole discretion, on or prior to the
anniversary of the Closing Date of their determination to exchange their
respective minimum Retirement dates set forth in their Employment Agreements,
then in such event, the Employee thereafter shall be permitted to Retire
(subject to the notification requirements contained in the definition of
"Retirement") any time on or after the anniversary of the Closing Date.
SECTION 2. OFFICE AND DUTIES.
(a) During the Term of this Employment Agreement and while employed by
the Employer, the Employee shall hold such positions and perform such duties
relating to the Employer's businesses and operations as may from time to time
be assigned to him in accordance with the provisions of Article III of the
LLC Agreement. During the Term of this Employment Agreement and while
employed by the Employer, the Employee shall devote substantially all of his
working time to his duties hereunder and shall, to the best of his ability,
perform such duties in a manner which will further the business and interests
of the Employer, the WY LLC and their respective Controlled Affiliates. The
Employee agrees that the Employee will travel to whatever extent is
reasonably necessary in the conduct of the Employer's business.
(b) During the Term of this Employment Agreement (and thereafter while
employed by the Employer), the Employee shall, solely with the prior written
consent of the Management Committee and the Manager Member (such consent not
to be unreasonably withheld or withdrawn), be permitted to serve as a member
of the board of directors of charitable organizations and private or public
companies, PROVIDED that the Manager Member in its reasonable discretion
determines that such directorships do not, individually or in the aggregate,
(i) interfere with the performance of the Employee's duties and
responsibilities hereunder or (ii)
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conflict, or create the appearance of conflict, with the business of the
Employer or create the appearance of significant involvement with any other
endeavor.
SECTION 3. BENEFITS. During the Term of this Employment Agreement, the
Employee shall participate, to the extent he is eligible and in a manner and
to an extent that is fair and appropriate in light of his position and duties
with the Employer at such time, in all bonus, pension, profit sharing, group
insurance, or other fringe benefit plans which the Employer may hereafter in
its sole and absolute discretion make available generally to its officers
pursuant to the provisions of Article III of the LLC Agreement, but the
Employer will not be required to establish any such program or plan. The
Employee shall be entitled to such vacations and to such reimbursement of
expenses as the Employer's policies allow, from time to time, to officers
having comparable responsibilities and duties.
SECTION 4. TERMINATION OF EMPLOYMENT. Notwithstanding any other
provision of this Employment Agreement, Employee's employment with the
Employer shall be terminated only in the following circumstances:
(a) At any time by the Manager Member (with prior or concurrent notice
to the Management Committee specifying the reasons for the decision), or by
the Management Committee (including for all purposes the Employee) with the
prior written consent of the Manager Member, if For Cause; or
(b) At any time by the Management Committee (including for all
purposes the Employee) with the prior written consent of the Manager Member,
if not For Cause; or
(c) At any time by the Manager Member, or by the Management Committee
(including for all purposes the Employee) with the prior written consent of
the Manager Member, upon the Permanent Incapacity of the Employee; or
(d) Upon the death of the Employee.
SECTION 5. ALL BUSINESS TO BE THE PROPERTY OF THE EMPLOYER; ASSIGNMENT
OF INTELLECTUAL PROPERTY; CONFIDENTIALITY.
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(a) The Employee agrees that any and all presently existing investment
advisory businesses of the Employer, the WY LLC and their respective
Controlled Affiliates (including business of either of their predecessors,
FAID and FAI, or any predecessor thereto), and all businesses developed by
the Employer, the WY LLC, any of their respective Controlled Affiliates or
any predecessor thereto, including by such Employee or any other employee of
the Employer, the WY LLC or any of their respective Controlled Affiliates or
any predecessor thereto, including, without limitation, all investment
methodologies, all investment advisory contracts, fees and fee schedules,
commissions, records, data, client lists, agreements, trade secrets, and any
other incident of any business developed by the Employer, the WY LLC, their
respective Controlled Affiliates or any predecessor thereto, or earned or
carried on by the Employee for the Employer, the WY LLC, any of their
respective Controlled Affiliates or any predecessor thereto, and all trade
names, service marks and logos under which the Employer, the WY LLC or any of
their respective Controlled Affiliates (or any predecessor thereto) do or
have done business, and any combinations or variations thereof and all
related logos, are and shall be the exclusive property of the Employer, the
WY LLC or such Controlled Affiliate, as applicable, for its or their sole
use, and (where applicable) shall be payable directly to the Employer, the WY
LLC or such Controlled Affiliate (as applicable). In addition, the Employee
acknowledges and agrees that the investment performance of the accounts
managed by the Employer, the WY LLC or any Controlled Affiliate of either of
them (or any predecessor thereto, including without limitation FAID or FAI,
and any predecessors thereto) was attributable to the efforts of the team of
professionals at the Employer, the WY LLC, such Controlled Affiliate or such
predecessor thereto, and not to the efforts of any single individual or
subset of such team of professionals, and that therefore, the performance
records of the accounts managed by the Employer, the WY LLC or any of their
respective Controlled Affiliates (or any predecessor to any of them) are and
shall be the exclusive property of the Employer, the WY LLC or such
Controlled Affiliate, as applicable (and not of any other Person or Persons).
(b) The Employee acknowledges that, in the course of performing
services hereunder and otherwise (including, without limitation, for the
Employer's predecessors, FAID and FAI or any predecessor thereto), the
Employee has had, and will from time to time have, access to information of a
confidential or proprietary nature, including without limitation, all
confidential or proprietary investment methodologies, trade secrets,
proprietary or confidential plans, client identities and information, client
lists, service providers, business operations or techniques, records and data
("Intellectual Property") owned or used in the course of business by the
Employer, the WY LLC or their respective Controlled Affiliates. The Employee
agrees always to keep secret and not ever publish, divulge, furnish, use or
make accessible to anyone (otherwise than in the regular business of the
Employer, the WY LLC and their respective Controlled Affiliates or as
required by court order or by law (after consultation with outside counsel))
any Intellectual Property of the Employer, the WY LLC or any Controlled
Affiliate of either of them unless such information can be shown to be
publicly available (other than as a result of a breach of this paragraph (b)
by the Employee). At the termination of the Employee's services to the
Employer and its Affiliates, all data, memoranda, client lists, notes,
programs and other papers, items and tangible media, and reproductions
thereof relating to the foregoing matters in the Employee's possession or
control, shall be returned to the Employer and remain in its possession.
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(c) The Employee acknowledges that, in the course of entering into
this Employment Agreement, the Employee has had and, in the course of the
operation of the Employer and any Controlled Affiliates thereof, the Employee
will from time to time have, access to Intellectual Property owned by or used
in the course of business by AMG. The Employee agrees, for the benefit of the
Employer and its Members, and for the benefit of the Manager Member and AMG,
always to keep secret and not ever publish, divulge, furnish, use or make
accessible to anyone (otherwise than at the Manager Member's request or by
court order or by law (after consultation with outside counsel)) any
knowledge or information regarding Intellectual Property (including, by way
of example and not of limitation, the transaction structures utilized by AMG)
of AMG unless such information can be shown to be publicly available (other
than as a result of a breach of this paragraph (c) by the Employee). At the
termination of the Employee's service to the Employer and its Affiliates, all
data, memoranda, documents, notes and other papers, items and tangible media,
and reproductions thereof relating to the foregoing matters in the Employee's
possession or control shall be returned to AMG and remain in its possession.
(d) The provisions of this Section 5 shall not be deemed to limit any
of the rights of the Employer or the Members under the LLC Agreement or under
applicable law, but shall be in addition to the rights set forth in the LLC
Agreement and those which arise under applicable law.
SECTION 6. NON-COMPETITION COVENANT.
(a) Until the later of (i) two (2) years following the termination of
the Employee's employment with the Employer and all of its Affiliates or (ii)
twelve (12) years from the Closing Date, the Employee shall not, directly or
indirectly, engage in any Prohibited Competition Activity.
(b) In addition to, and not in limitation of, the provisions of
Section 6(a), the Employee agrees, for the benefit of the Employer, the
Manager Member and their respective Affiliates, that from and after the
termination of the Employee's employment with the Employer and its Affiliates
and until the later of (i) two (2) years following the termination of the
Employee's employment with the Employer and all of its Affiliates or (ii)
twelve (12) years from the Closing Date, the Employee shall not, directly or
indirectly, whether as owner, part owner, shareholder, partner, member,
director, officer, trustee, employee, agent or consultant, or in any other
capacity, on behalf of himself or any Person other than the Employer, the WY
LLC and their respective Controlled Affiliates:
(i) provide Investment Management Services to any Person that is
a Past, Present or Potential Client, PROVIDED, HOWEVER, that this clause
(i) shall not be applicable to Clients (including Potential Clients) who
are also members of the Immediate Family of the Employee;
(ii) solicit or induce, whether directly or indirectly, any
Person for the purpose (which need not be the sole or primary purpose) of
(A) causing any funds (other than funds of which the Employee and/or
members of his Immediate Family are the sole
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beneficial owners) with respect to which the Employer, the WY LLC or any
of their respective Controlled Affiliates provides Investment Management
Services to be withdrawn from such management, or (B) causing any Client
(including any Potential Client) not to engage the Employer, the WY LLC
or any of their respective Controlled Affiliates to provide Investment
Management Services for any additional funds, PROVIDED, HOWEVER, that
this clause (ii)(B) shall not be applicable to Clients (including
Potential Clients) who are also members of the Immediate Family of the
Employee;
(iii) contact or communicate with, whether directly or indirectly,
any Past, Present or Potential Clients in connection with Investment
Management Services; PROVIDED, HOWEVER, that this clause (iii) shall not
be applicable to Clients (including Potential Clients) who are also
members of the Immediate Family of the Employee; or
(iv) (A) solicit or induce, or attempt to solicit or induce,
directly or indirectly, any employee or agent of, or consultant to, the
Employer, the WY LLC or any of their respective Controlled Affiliates to
terminate its, his or her relationship therewith, (B) hire any employee,
external researcher or similar agent or consultant, or former employee,
external researcher or similar agent or consultant of the Employer, the
WY LLC or any of their respective Controlled Affiliates who was employed
by or acted as an external researcher or similar agent or consultant of
the Employer or the WY LLC (or either of their predecessors, FAID and FAI
or any predecessor thereto) or their respective Controlled Affiliates at
any time during the two (2) year period preceding such hiring of such
Person or (C) work in any enterprise involving Investment Management
Services with any employee, external researcher or similar agent or
consultant or former employee, external researcher or similar agent or
consultant, of the Employer, the WY LLC or any of their respective
Controlled Affiliates who was employed by or acted as an agent or
consultant to the Employer, the WY LLC (or either of their predecessors,
FAID and FAI or any predecessor thereto) or their respective Controlled
Affiliates at any time during the two (2) year period preceding the
termination of the Employee's employment (excluding for all purposes of
this sentence, secretaries and persons holding other similar positions);
PROVIDED, HOWEVER, that this Section 6(b) shall not prohibit any firm,
corporation or other business organization of which the Employee is an
employee (but of which he is not a holder of any equity or other ownership
interests therein, other than holdings of publicly traded stock which (in the
aggregate with the holdings of his Affiliates and Immediate Family members)
constitutes less than five percent (5%) of the outstanding stock of such
entity) from engaging in such activities so long as the Employee can
affirmatively demonstrate that he did not cause or induce such activities,
has no participation or other involvement in such activities whatsoever and
does not assist or facilitate in such activities in any manner (whether
through the provision of information or otherwise) and PROVIDED, FURTHER,
that Section 6(b)(iv)(C) shall not prohibit the Employee from working at any
firm, corporation or other business organization of which the Employee is an
employee (but of which he is not a holder of any equity or other ownership
interests therein, other than holdings of publicly traded stock which (in the
aggregate with the holdings of his Affiliates and Immediate Family members)
constitute less than five percent (5%) of the outstanding stock of such
entity) provided that (I) such firm, corporation or other business
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organization has at least one hundred (100) employees as of the date the
Employee becomes an employee thereof and (II) the Employee can affirmatively
demonstrate that he does not personally work (directly or indirectly) with
any employee, external researcher or similar agent or consultant (or former
employee, external researcher or similar agent or consultant) described in
Section 6(b)(iv)(C).
For purposes of this Section 6(b), (x) the term "Past Client" shall be
limited to those Past Clients who were recipients of Investment Management
Services, directly or indirectly, from the Employer or the WY LLC (including
either of their predecessors, FAID and FAI or any predecessor thereto) and/or
their respective Controlled Affiliates at the date of termination of the
Employee's employment or at any time during the two (2) years immediately
preceding the date of such termination and (y) the term "Potential Client"
shall be limited to those Persons to whom an offer (as described in the
definition of "Potential Client") to provide Investment Management Services
was made within two (2) years prior to the date of termination of the
Employee's employment.
Notwithstanding the provisions of Sections 6(a) and 6(b), the Employee
may make passive personal investments in an enterprise which is competitive
with AMG or the Employer the shares or other equity interests of which are
publicly traded; PROVIDED, his holdings therein, together with any holdings
of his Affiliates and members of his Immediate Family, are less than five
percent (5%) of the outstanding shares or comparable interests in such entity.
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(c) The Employee, the Employer and the Manager Member agree that the
periods of time and the unlimited geographic area applicable to the covenants
of this Section 6 are reasonable in view of (i) the Employee's sale to the
Manager Member of his ownership interest in the WY LLC, an affiliated company
of the Employer that engages in the business of investment management with
the Employer and together with the Employer conducts the business formerly
conducted by the Friess Companies, (including without limitation the
resulting transfer of goodwill of the WY LLC associated therewith, which
goodwill the parties hereto acknowledge will be amortized by the Manager
Member over a period of time greater in length than the period of such
non-competition covenants, giving the Manager Member and the Employer a
continuing protectable interest in the enforcement of such non-competition
covenants during the entire stated term thereof)) in connection with the sale
of the Friess business provided for in the Purchase Agreement and Management
Owner Purchase Agreement, (ii) the Employee's receipt of approximately
dollars ( ) in connection with the business sale described in the
preceding clause (i), (iii) the Employee's receipt of a significant minority
membership interest in the Employer and the WY LLC on the Closing Date (and
his resulting status as a Non-Manager Member of the Employer and the WY LLC
from and after such date), (iv) the Employee's receipt of the payments
specified in Section 1 above, (v) the geographic scope and nature of the
business in which the Employer, the WY LLC and their respective Controlled
Affiliates are engaged (including the Employer's and the WY LLC's
predecessors, FAID and FAI), (vi) the Employee's knowledge of the Employer's
and the WY LLC's (and their predecessors, FAID's and FAI's) businesses and
(vii) the Employee's relationships with the Employer's and the WY LLC's (and
their predecessors, FAID's and FAI's) investment advisory clients. Each of
the Employee, the Employer and the Manager Member acknowledges and agrees
that it has been represented by legal counsel in connection with the
transactions contemplated hereby. However, if such period or such area
nonetheless should be adjudged unreasonable in any judicial proceeding, then
the period of time shall be reduced by such number of months or such area
shall be reduced by elimination of such portion of such area, or both, as are
deemed unreasonable, so that this covenant may be enforced in such maximum
area and during such maximum period of time as are adjudged to be reasonable.
(d) The Employee agrees (on behalf of himself and parties under his
control) not to make any communication to any third party (including, by way
of example and not of limitation, any Client (including Potential Clients) or
employee of the Employer, AMG or any other Affiliate of AMG), which would, or
is reasonably likely to, disparage, create a negative impression of, or in
any way be harmful to the business or business reputation of the Employer,
AMG, any of AMG's other Affiliates or their respective successors and
assigns, and the then current and former officers, directors, partners,
members and employees of each of the foregoing.
(e) The Manager Member agrees that none of the senior executives of
the Manager Member or AMG. will make any communication to any third party
(including, by way of example and not of limitation, any Client (including
Potential Clients) or employee of the Employer) which would, or is reasonably
likely to, disparage, create a negative impression of, or in any way be
harmful to the business reputation of the Employee.
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SECTION 7. NOTICES. All notices hereunder shall be in writing and
shall be delivered, sent by recognized overnight courier or mailed by
registered or certified mail, postage and fees prepaid, to the party to be
notified at the party's address shown below. Notices which are hand delivered
or delivered by recognized overnight courier shall be effective on delivery.
Notices which are mailed shall be effective on the third day after mailing.
(i) If to the Employer:
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with a copy to:
Affiliated Managers Group, Inc.
Two International Place, 23rd Floor
Boston, MA 02110
Attention: Nathaniel Dalton, Executive Vice President
Facsimile No.: (617) 747-3380
(ii) if to the Employee, to the most recent address of the
Employee on file with the Employer with a copy to:
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(iii) if to the Manager Member:
c/o Affiliated Managers Group, Inc.
Two International Place, 23rd Floor
Boston, MA 02110
Attention: Nathaniel Dalton, Executive Vice President
Facsimile No.: (617) 747-3380
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with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017
Attention: Robert Goldbaum
Facsimile No.: (212) 455-2502
unless and until notice of another or different address shall be given as
provided herein.
SECTION 8. THIRD-PARTY BENEFICIARY; ASSIGNABILITY. AMG is an intended
third-party beneficiary of the provisions of this Employment Agreement. This
Employment Agreement may be assigned by the Employer, AMG or the Manager
Member (in each case with respect to its rights hereunder) without the
consent of the Employee or the Management Committee, but in the case of the
Employer, only to a successor of the business of the Employer; and PROVIDED,
HOWEVER, that no such assignment by the Manager Member or AMG shall relieve
the Manager Member or AMG (as applicable) of its respective obligation to
make any payment pursuant to that certain Put Option Agreement with the
Employee of even date herewith (except to the extent otherwise expressly
provided therein with respect to AMG). This Employment Agreement shall be
binding upon and inure to the benefit of the Employer and the Manager Member,
and to any person or firm who may succeed to substantially all of the assets
of the Employer or the Manager Member. This Employment Agreement shall not be
assignable by the Employee.
SECTION 9. ENTIRE AGREEMENT. This Employment Agreement contains the
entire agreement between the Employer and the Employee with respect to the
subject matter hereof, and supersedes from and after the Closing all prior
oral and written agreements between the Employer and the Employee with
respect to the subject matter hereof, including without limitation any oral
agreements relating to compensation. In the event of any conflict between the
provisions hereof and of the LLC Agreement, the provisions hereof shall
control.
SECTION 10. REMEDIES UPON BREACH.
(a) In the event that the Employee breaches any of the non-competition
or non-solicitation provisions of this Employment Agreement (or otherwise
violates any of the stated terms of any such provisions) (including without
limitation following the termination of his employment with the Employer and
its Affiliates), and in any such case such breach or violation has resulted
or is reasonably likely to result in harm that is not immaterial or
insignificant to (x) AMG or any of its Controlled Affiliates (other than the
Employer, the WY LLC and their respective Controlled Affiliates), or (y) the
Employer, the WY LLC and their respective Controlled Affiliates (taken as a
whole), then in any such case (A) the Employee (and any related Non-Manager
Member and Permitted Transferees thereof) shall forfeit its right to receive
any payment for its LLC Interests under Section 3.11 or Section 7.1 of the
LLC Agreement and for its WY LLC Interests under Section 3.11 or Section 7.1
of the WY LLC Agreement, although it shall cease to be a Non-Manager Member
in accordance with the provisions of Section 3.11 of the LLC Agreement and a
"Non-Manager Member" of the WY
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LLC in accordance with the provisions of Section 3.11 of the WY LLC
Agreement, (B) AMG (and any of its assignees thereunder) shall have no
further obligations under any promissory note theretofore issued to the
Employee (or to any related Non-Manager Member or Permitted Transferee
thereof) pursuant to Section 3.11 of the LLC Agreement or Section 3.11 of the
WY LLC Agreement, (C) the Manager Member (and any of its assignees
thereunder) shall have no further obligations under any Contingent
Consideration theretofor issued to the Employee (or to any related
Non-Manager Member or Permitted Transferee thereof) pursuant to Section 3.11
or 7.1 of the LLC Agreement or any "Contingent Consideration" theretofor
issued to the Employee (or to any related "Non-Manager Member" or "Permitted
Transferee" thereof) pursuant to Section 3.11 or 7.1 of the WY LLC Agreement,
and (D) the Employer and the WY LLC shall be entitled to withhold any other
payments to which the Employee (or its related Non-Manager Member) otherwise
would be entitled to offset damages resulting from such breach; PROVIDED,
HOWEVER, that the Employer and the WY LLC shall not be permitted to withhold
any compensation, distribution or other payments that the Employee (or its
related Non-Manager Member) is otherwise entitled to receive out of the
Operating Allocation or the Owners' Allocation of the Employer or the WY LLC
absent either an admission of such breach by the Employee (or its related
Non-Manager Member) or the rendering of a settlement, judgment or arbitral
decision establishing such breach.
(b) The Employee agrees that any breach of the provisions of this
Employment Agreement by the Employee could cause irreparable damage to the
Employer and the other Members, and that the Employer (by action of the
Management Committee) and the Manager Member shall have the right to an
injunction or other equitable relief (in addition to other legal remedies) to
prevent any violation of the Employee's obligations hereunder.
SECTION 11. ARBITRATION OF DISPUTES. Any controversy or claim arising
out of or relating to this Employment Agreement or the breach hereof or
otherwise arising out of the Employee's employment or the termination of that
employment (including, without limitation, any claims of unlawful employment
discrimination whether based on age or otherwise) shall, to the fullest
extent permitted by law, be settled by arbitration in any forum and form
agreed upon by the parties or, in the absence of such an agreement, under the
auspices of the American Arbitration Association ("AAA") in New Castle
County, Delaware in accordance with the Employment Dispute Resolution Rules
of the AAA, including, but not limited to, the rules and procedures
applicable to the selection of arbitrators, except that the arbitrator shall
apply the law as established by decisions of the U.S. Supreme Court, the
Court of Appeals for the Third Circuit and the U.S. District Court for the
District of Delaware in deciding the merits of claims and defenses under
federal law or any state or federal antidiscrimination law, and any awards to
the Employee for violation of any antidiscrimination law shall not exceed the
maximum award to which the Employee would be entitled under the applicable
(or most analogous) federal antidiscrimination or civil rights laws. In the
event that any person or entity other than the Employee, the Employer or the
Manager Member may be a party with regard to any such controversy or claim,
such controversy or claim shall be submitted to arbitration subject to such
other person or entity's agreement. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The
parties covenant that they will participate in the arbitration in good faith.
Each party to such arbitration shall bear its own costs and expenses in
connection therewith. This Section 11 shall be specifically enforceable.
Notwithstanding the
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foregoing, this Section 11 shall not preclude any party hereto from pursuing
a court action for the sole purpose of obtaining a temporary restraining
order and/or a preliminary injunction in circumstances in which such relief
is appropriate; PROVIDED, that any other relief shall be pursued through an
arbitration proceeding pursuant to this Section 11. Furthermore, this Section
11 shall not be construed in any way to prevent the Employer or the Manager
Member from pursuing a court action against any person not a party to this
Agreement for claims under local, state or federal law.
SECTION 12. CONSENT TO JURISDICTION. To the extent that any court
action is permitted consistent with or to enforce Section 6 of this
Employment Agreement, the parties hereby consent to the jurisdiction of the
Chancery Court of the State of Delaware and the United States District Court
for the District of Delaware. Accordingly, with respect to any such court
action, the Employee (a) submits to the personal jurisdiction of such courts;
(b) consents to service of process at the address determined pursuant to the
provisions of Section 7 hereof; and (c) waives any other requirement (whether
imposed by statute, rule of court, or otherwise) with respect to personal
jurisdiction or service of process. Nothing contained in this section shall
affect the right of the Employer or the Manager Member to serve legal process
in any other manner permitted by law or affect the right of the Employer or
the Manager Member to bring any court action against any person not a party
to this Agreement for claims under local, state or federal law.
SECTION 13. THIRD-PARTY AGREEMENTS AND RIGHTS.
(a) The Employee hereby confirms that the Employee is not bound by the
terms of any agreement with any previous employer or other party which
restricts in any way the Employee's use or disclosure of information or the
Employee's engagement in any business. The Employee represents to the
Employer that the Employee's execution of this Employment Agreement, the
Employee's employment with the Employer and the performance of the Employee's
proposed duties for the Employer will not violate any obligations the
Employee may have to any such previous employer or other party. In the
Employee's work for the Employer, the Employee will not disclose or make use
of any information in violation of any agreements with or rights of any such
previous employer or other party, and the Employee will not bring to the
premises of the Employer any copies or other tangible embodiments of
non-public information belonging to or obtained from any such previous
employment or other party.
(b) The Employee agrees to provide written notice of the provisions of
Section 6 of this Agreement (and shall provide a copy of such notice
concurrently to the Employer), together with a copy thereof, to any
enterprise engaged in whole or in part in the provision of Investment
Management Services for which the Employee acts as an employee following his
termination of employment with the Employer prior to acting in such capacity.
SECTION 14. LITIGATION AND REGULATORY COOPERATION. During and after
the Employee's employment, the Employee shall cooperate fully with the
Employer in the defense or prosecution of any claims or actions now in
existence or which may be brought in the future against or on behalf of the
Employer or the Manager Member or their Affiliates which relate to events or
occurrences that transpired while the Employee was employed by the Employer
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(including, without limitation, its predecessor, the Manager Member, or any
predecessor thereto). The Employee's full cooperation in connection with such
claims or actions shall include, but not be limited to, being available to
meet with counsel to prepare for discovery or trial and to act as a witness
on behalf of the Employer or the Manager Member or their Affiliates at
mutually convenient times. During and after the Employee's employment, the
Employee also shall cooperate fully with the Employer, the Manager Member and
their Affiliates in connection with any investigation or review of any
federal, state or local regulatory, quasi-regulatory or self-governing
authority (including, without limitation, the Securities and Exchange
Commission) as any such investigation or review relates to events or
occurrences that transpired while the Employee was employed by the Employer
(including, without limitation, its predecessor, the Manager Member, and any
predecessor thereto). The Employer shall reimburse the Employee for any
reasonable out-of-pocket expenses incurred in connection with the Employee's
performance of obligations pursuant to this Section 14.
SECTION 15. WAIVERS AND FURTHER AGREEMENTS. Neither this Employment
Agreement nor any term or condition hereof, including without limitation the
terms and conditions of this Section 15, may be waived or modified in whole
or in part as against the Manager Member, the Employer or the Employee,
except by written instrument executed by or on behalf of each of the parties
hereto other than the party seeking such waiver or modification, expressly
stating that it is intended to operate as a waiver or modification of this
Employment Agreement or the applicable term or condition hereof, it being
understood that any action under this Section 15 on behalf of the Employer
may be taken only with the approval of the Manager Member as the Manager
Member of the Employer. Each of the parties hereto agrees to execute all such
further instruments and documents and to take all such further action as the
other party may reasonably require in order to effectuate the terms and
purposes of this Employment Agreement.
SECTION 16. AMENDMENTS; EMPLOYER'S CONSENTS. This Employment Agreement
may not be amended, nor shall any change, modification, consent, or discharge
be effected except by written instrument executed by or on behalf of the
party against whom enforcement of any change, modification, consent or
discharge is sought, provided that any action under this Section 16 on behalf
of the Employer may be taken only with the prior written approval of the
Manager Member. Whenever under this Agreement the consent of the Employer is
required, that consent shall only be effective if given with the prior
written consent of the Manager Member.
SECTION 17. SEVERABILITY. If any provision of this Employment
Agreement shall be held or deemed to be invalid, inoperative or unenforceable
in any jurisdiction or jurisdictions, because of conflicts with any
constitution, statute, rule or public policy or for any other reason, such
circumstance shall not have the effect of rendering the provision in question
unenforceable in any other jurisdiction or in any other case or circumstance
or of rendering any other provisions herein contained unenforceable to the
extent that such other provisions are not themselves actually in conflict
with such constitution, statute or rule of public policy, but this Employment
Agreement shall be reformed and construed in any such jurisdiction or case as
if such invalid, inoperative, or unenforceable provision had never been
contained herein and such provision
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reformed so that it would be enforceable to the maximum extent permitted in
such jurisdiction or in such case.
SECTION 18. GOVERNING LAW. This Employment Agreement shall be governed
by and construed and enforced in accordance with the laws of the State of
Delaware, without regard to any rules or principles regarding conflicts or
choice of law, or any rule or canon of construction which interprets
agreements against the drafting party.
SECTION 19. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
IN WITNESS WHEREOF the parties have executed this Employment Agreement
as of the date first above written.
FRIESS ASSOCIATES OF DELAWARE, LLC
By:
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Name: Foster S. Friess
Title: President
FA (DE) ACQUISITION COMPANY, LLC,
as the Manager Member from and
after the Closing
By: AFFILIATED MANAGERS GROUP, INC.,
its manager member
By:
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Name:
Title:
EMPLOYEE:
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Name:
[Employment Agreement]