EXHIBIT 10.47
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of
August 5, 2002 by and between FAIR, ISAAC AND COMPANY, INCORPORATED, a Delaware
corporation ("FIC") located at 200 Smith Ranch Road, San Rafael, California
94903, and KENNETH J. SAUNDERS ("Employee").
W I T N E S S E T H:
WHEREAS, Employee is currently employed by HNC Software, Inc. ("HNC") as
Chief Financial Officer and Secretary; and
WHEREAS, pursuant to an Agreement and Plan of Merger dated as of April
28, 2002, among FIC, HNC and Northstar Acquisition Inc. (the "Merger
Agreement"), FIC is acquiring all of the outstanding shares of HNC by way of the
merger of HNC with a wholly owned subsidiary of FIC (the "Merger"), with HNC as
the surviving entity; and
WHEREAS, FIC intends to maintain and operate the business of HNC after
the Merger; and
WHEREAS, FIC desires to have the benefits of Employee's knowledge and
experience as a full-time employee of FIC without distraction by
employment-related uncertainties and considers such employment a vital element
to protecting and enhancing the best interests of FIC and its stockholders, and
Employee desires to be employed full-time with FIC; and
WHEREAS, FIC and Employee desire to enter into an agreement reflecting
the terms under which Employee will be employed by FIC after the Merger;
NOW, THEREFORE, in consideration of the mutual covenants set forth in
the Merger Agreement and this Agreement, the parties hereto agree as follows:
1. Effectiveness.
This Agreement shall become effective only upon the later of (i) the
Closing of the Merger as defined in the Merger Agreement (the "Closing") or (ii)
approval by FIC Board of Directors (the "Board") of Employee's employment as
Chief Financial Officer of FIC, which date shall be the "Effective Date."
2. Term.
FIC hereby agrees to employ Employee and Employee hereby agrees to be
employed by FIC on a full-time basis for a four-year period commencing on the
Effective Date and ending on the fourth anniversary of the Effective Date,
provided that such period shall be automatically extended for one year and from
year to year thereafter until notice of termination is given by FIC or Employee
to the other party hereto at least 60 days prior to the fourth anniversary of
the Effective Date or the one-year extension period then in effect, as the case
may be, unless sooner terminated as provided in Section 9(a) hereof (the
"Term"). Employee's employment is
contingent on his ability to prove his identity and authorization to work in the
United States for FIC and his compliance with the Immigration and Naturalization
Service's employment verification requirements.
3. Duties.
Employee shall serve as Chief Financial Officer of FIC upon the terms
and conditions set forth in this Agreement, and shall have the duties and
responsibilities that are customarily associated with such position. Employee
shall report directly to the Chief Executive Officer of FIC. Employee will also
have such other powers and duties as may be prescribed by the Chief Executive
Officer of FIC, the Board or by FIC's bylaws.
Employee is required to exercise his specialized expertise, independent
judgment and discretion to provide high-quality services, and to devote his full
business time, energies, efforts and abilities exclusively to his employment,
and shall use his best efforts and abilities to promote FIC's interests;
provided, however, that Employee may serve in any capacity with any civic,
educational or charitable organization, so long as such activities do not
interfere with his duties or obligations under this Agreement or arising out of
his position as an employee or an officer of FIC.
Employee shall follow Employer's written policies, including any
policies published on FIC's internal or external websites, and procedures
adopted from time to time by Employer and to which Employee has had access,
which the Employer may change at any time. During the Term, Employee may not
engage, directly or indirectly, in any business activity that competes with or
is adverse to FIC's business, whether alone or as a partner, officer, director,
employee, consultant or investor in such business activity, including but not
limited to soliciting or assisting or causing others to solicit employees of FIC
or its subsidiaries for competitive employment. Notwithstanding the foregoing,
Employee may own, as a passive investor, securities of any competitor
corporation, provided that Employee's direct holdings in any one such
corporation shall not in the aggregate constitute more than three percent (3%)
of the voting stock of such corporation and further provided that such
investment does not violate Employee's fiduciary duties owed to FIC.
4. Compensation.
FIC shall compensate Employee for the services rendered under this
Agreement as follows:
(a) A base salary at the annual rate of $341,000, less regular
payroll deductions, which covers all hours worked (the "Base Salary"), payable
at such other intervals and in such amounts in accordance with the
then-customary payroll practices of Employer for the payment of its employees.
Employee acknowledges that Employer's current payroll practices provide for
payment of annual base salaries on a bi-weekly basis in arrears. Employer will
review the Base Salary annually and may, in its sole discretion, increase the
Base Salary. Decreases in the Base Salary may be made if such is made generally
with respect to all other similarly situated employees and does not single out
Employee.
(b) Employee shall be reimbursed for all reasonable business
expenses incurred on behalf of FIC while on business, upon submission of
appropriate documentation in
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accordance with FIC's general policies, as they may be amended from time to time
during the Term.
(c) Employee shall also be eligible for an annual incentive bonus
under FIC's management incentive plan, as it may be changed or replaced from
time to time, on the same basis that such participation is normally granted to
vice presidents of FIC of similar levels of authority and base compensation.
Under FIC's current management incentive plan Employee shall be eligible for an
annual incentive bonus based on FIC's performance and Employee's achievement of
specific mutually agreed goals and objectives incorporating subjective and
objective measurable outcomes, with an annual payout opportunity from zero to
100% of the Base Salary, which bonus currently is calculated and paid on a
fiscal quarterly basis. Under the current plan, quarterly and year to date
performance will be considered in paying bonuses. Employee's participation will
begin on the first day of the first quarter that commences following the
Effective Date; provided, however, that Employee shall be eligible to receive a
pro-rated bonus for the partial quarter following the Effective Date on similar
terms.
(d) All payments of compensation made by FIC under this Agreement
to Employee will be subject to tax withholding as required pursuant to
applicable laws and regulations.
5. Employee Benefits and Expenses.
In addition to the compensation specified in Section 4 above, Employee
shall be entitled to participate in any benefit plan or arrangement for, or to
receive employment benefits, such as medical, dental, vision care insurance and
life insurance, which are normally available to employees of Employer, on the
same basis that such participation or such benefits are normally granted to such
employees and to perquisites and fringe benefits no less favorable than those
generally received by any other vice-president of FIC of similar levels of
authority (the "Benefit Plans"). Employee shall also be entitled to holidays and
paid time off ("PTO") in accordance with FIC's policies as they may be in effect
from time to time. Employer reserves the right to modify, suspend or discontinue
any and all Benefit Plans and benefits, holidays and PTO policies and practices
at any time without notice to or recourse by Employee, so long as such action is
taken generally with respect to other similarly situated persons and does not
single out Employee. Employee, to the extent not prohibited by law, shall
receive service credit that includes his employment by HNC and Risk Data
Corporation prior to the Closing under all Benefit Plans and paid time off
("PTO") policies. A list and description of the foregoing benefits and policies
has been provided to Employee. These benefits and policies may change from time
to time.
All expenses reasonably incurred by Employee, including but not limited
to, relocation expenses (if Employer relocates Employee to a work location other
than the San Diego, California metropolitan area after employment hereunder
commences), travel, telephone, entertainment and miscellaneous expenses in
connection with the proper discharge of his duties of employment will be paid by
Employer in accordance with Employer's relocation and/or reimbursement policy as
established and amended from time to time and generally distributed to employees
of Employer.
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6. Place of Employment.
During the Term, Employee shall perform the services he is required to
perform at Employer's office in San Diego, California. Employer may from time to
time require Employee to travel temporarily to other locations on Employer's
business; provided, however, that Employee will perform the substantial majority
of his services at the Employer's San Diego, California offices. Subject to
Employee's consent, and subject to Sections 9(b) and 12(c) hereof, Employer
reserves the right to transfer Employee to any other place or places determined
by Employer at any time in good faith deemed necessary or advisable by Employer
for business purposes and in such case, shall pay such relocation expenses as
provided for in Employer's then current written relocation policy.
7. Stock Options.
(a) On the first business day following the Closing, Employee
shall be granted options to purchase two hundred thousand (200,000)
non-qualified shares of FIC common stock, at an exercise price equal to the
closing sale price of FIC common stock on the New York Stock Exchange on August
6, 2002, pursuant to the Nonstatutory Stock Option Agreement (attached as
Exhibit A) and the Notice of Grant of Stock Options and Options Agreement to be
entered into as of the Effective Date between FIC and Employee. Such agreement
shall provide that 25% of such options shall be subject to vesting on each of
the first four anniversaries of the grant date, conditioned upon Employee's
continued employment by FIC. The option shall have a term of ten years from the
date of grant.
(b) Approximately six (6) months after the Effective Date
Employee shall be eligible for additional options to purchase up to sixty
thousand (60,000) non-qualified shares of FIC common stock, at an exercise price
equal to the closing sale price of FIC common stock on the New York Stock
Exchange on the date of grant, pursuant to the Fair, Isaac and Company,
Incorporated 1992 Long-term Incentive Plan (attached as Exhibit B) and the Stock
Option Agreement to be entered into between FIC and Employee for such grant.
Such agreement shall provide that 25% of such options shall be subject to
vesting on each of the first four anniversaries of the grant date, conditioned
upon Employee's continued employment by FIC. The option shall have a term of ten
years from the date of grant. This grant is entirely contingent upon the sole
good faith assessment by the Chief Executive Officer that the following broad
objectives have been satisfactorily achieved by Employee, as solely determined
by the Chief Executive Officer:
(i) Significant improvement of core accounting and
reporting function to build process rigor, data reliability, regulatory
compliance and timeliness, including but not limited to staff integration.
(ii) Building an effective investor relations strategy and
taking appropriate steps to implement it;
(iii) Playing a central role on leading and facilitating
merger integration activities. In this capacity Employee will serve as a
critical regional Employee (San Diego) charged with ensuring real-time
resolution of issues that arise.
(c) Employee shall be eligible to receive options based on FIC's
annual key manager grant cycle starting with the November, 2003 cycle.
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8. Waiver of Certain Rights; Non-Waiver of April 1, 2002 HNC
Software Letter Agreement.
Except as specified in the proviso below, Employee agrees to irrevocably
relinquish and waive any rights he has pursuant to any employment or other
service arrangements and agreements he has with HNC, and all such arrangements
and agreements shall be deemed terminated as of the Closing; provided, however,
that the letter agreement by and between Employee and HNC Software effective
April 1, 2002 (the "Letter Agreement") shall remain in full force and effect.
9. Termination.
(a) Employee may terminate his employment hereunder for any
reason upon thirty (30) days' prior written notice to FIC. Employee's employment
hereunder will terminate automatically upon the death or Disability (as defined
below) of Employee or upon expiration of the Term after notice as provided in
Section 2 above. FIC may terminate Employee's employment hereunder, with or
without "Cause" (as defined below), upon thirty (30) days' prior written notice
to Employee; provided, however, that, immediately upon receipt of such notice,
Employee shall cease to hold himself out to any third party as an officer of
FIC, shall refrain from acting as an officer of FIC (including but not limited
to refraining from executing contracts and instruments in the name or on behalf
of FIC) and shall refrain from taking any action which may lead any third party
to believe that he is authorized to act on behalf of FIC.
(b) In the event that Employee's employment hereunder is
terminated by FIC without "Cause" or by Employee for "Pre-Change of Control Good
Reason" (as defined below) then, if (and only if) Employee has not materially
breached this Agreement and Employee has executed and delivered to FIC a full
and unconditional release and non-solicit agreements in accordance with Section
11 in form satisfactory to FIC, Employee shall be entitled to the following
payments:
(i) 200% of the Base Salary, in accordance with the
payroll practices described in Section 4(a) (the "Base Salary Severance");
(ii) a bonus equal to 100% of the Base Salary (the
"Severance Bonus"), it being understood that no bonus with respect to any
succeeding anniversary or anniversaries would thereafter be payable; and
(iii) any accrued but unused paid time off (PTO) through
the date of termination.
In addition, Employee's options that would otherwise vest within the
twelve-month period following the termination date shall immediately vest on the
date of termination.
In the event Employee is in material breach of this Agreement at the
time of termination by FIC without "Cause" or by Employee for "Pre-Change of
Control Good Reason", FIC shall provide Employee written notice of the specific
grounds for such breach within one week of such termination. If Employee cures
such breach within 30 days of receipt of such notice and is not otherwise in
material breach (which breach shall also be subject to 30 days' written notice
and
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opportunity to cure), then Employee shall be entitled to the payments and other
benefits outlined in this Section 9(b).
(c) In the event that Employee's employment hereunder is
terminated voluntarily by Employee, by FIC with "Cause", by reason of Employee's
death or Disability, or upon expiration of the Term after notice as provided in
Section 2, then Employee shall be entitled to receive his Base Salary and
benefits earned through the Termination Date, in accordance with the practices,
policies and plans of FIC then in effect.
(d) Termination due to a Change in Control Event shall be
governed by Section 10 below. If Employee is eligible for benefits under Section
10, Employee shall not be entitled to receive any benefits under Section 9(b).
(e) Regardless of the reason for the termination of this
Agreement or of Employee's employment hereunder, Employee shall continue to be
subject to and bound by the provisions of Sections 14 through 20, inclusive,
after any termination of employment or termination of this Agreement.
(f) In the event of a termination of employment of Employee for
any reason, possession of each corporate record and file shall be retained by
FIC, and Employee or his heirs, assigns and legal representatives shall have no
right whatsoever in any such material, information or property. Employee agrees
to deliver to FIC at termination of employment or at any time upon written
request by FIC, all memoranda, notes, plans, records, records, reports and other
documents relating to the business of FIC and its subsidiaries which he may have
within his possession or control.
10. Change in Control Events.
No amounts or benefits shall be payable or provided for pursuant to this
Section 10 unless a Change in Control Event shall occur during the Term.
(a) For purposes of this Agreement, a "Change in Control Event"
shall be deemed to have occurred if any of the following occur in one or a
series of related transactions:
(i) Any "person" (as defined in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended, or any successor statute
thereto (the "Exchange Act")) acquires or becomes a "beneficial owner" (as
defined in Rule 13d-3 or any successor rule under the Exchange Act), directly or
indirectly, of securities of FIC representing 30% or more of the combined voting
power of FIC's securities entitled to vote generally in the election of
directors ("Voting Securities") then outstanding or 30% or more of the shares of
common stock of FIC ("Common Stock") outstanding, provided, however, that the
following shall not constitute an Event pursuant to this Section 10(a)(i):
(A) any acquisition or beneficial ownership by FIC
or a subsidiary of FIC;
(B) any acquisition or beneficial ownership by any
employee benefit plan (or related trust) sponsored or maintained by FIC or one
or more of its subsidiaries;
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(C) any acquisition or beneficial ownership by any
corporation (including without limitation an acquisition in a transaction of the
nature described in Section 10 (a)(iii)) with respect to which, immediately
following such acquisition, more than 70%, respectively, of (x) the combined
voting power of FIC's then outstanding Voting Securities and (y) the Common
Stock is then beneficially owned, directly or indirectly, by all or
substantially all of the persons who beneficially owned Voting Securities and
Common Stock, respectively, of FIC immediately prior to such acquisition in
substantially the same proportions as their ownership of such Voting Securities
and Common Stock, as the case may be, immediately prior to such acquisition; or
(D) any acquisition of Voting Securities or Common
Stock directly from FIC; and;
Continuing Directors shall not constitute a majority of the
members of the Board of Directors of FIC. For purposes of this Section 10(a)(i),
"Continuing Directors" shall mean: (A) individuals who, on the date hereof, are
directors of FIC, (B) individuals elected as directors of FIC subsequent to the
date hereof for whose election proxies shall have been solicited by the Board of
Directors of FIC or (C) any individual elected or appointed by the Board of
Directors of FIC to fill vacancies on the Board of Directors of FIC caused by
death or resignation (but not by removal) or to fill newly-created
directorships, provided that a "Continuing Director" shall not include an
individual whose initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the threatened election or removal
of directors (or other actual or threatened solicitation of proxies or consents)
by or on behalf of any person other than the Board of Directors of FIC; or,
(ii) Consummation of a reorganization, merger or
consolidation of FIC or a statutory exchange of outstanding Voting Securities of
FIC (other than a merger or consolidation with a subsidiary of FIC), unless
immediately following such reorganization, merger, consolidation or exchange,
all or substantially all of the persons who were the beneficial owners,
respectively, of Voting Securities and Common Stock immediately prior to such
reorganization, merger, consolidation or exchange beneficially own, directly or
indirectly, more than 70% of, respectively, (x) the combined voting power of the
then outstanding voting securities entitled to vote generally in the election of
directors of the corporation resulting from such reorganization, merger,
consolidation or exchange and (y) the then outstanding shares of common stock of
the corporation resulting from such reorganization, merger, consolidation or
exchange in substantially the same proportions as their ownership, immediately
prior to such reorganization, merger, consolidation or exchange, of the Voting
Securities and Common Stock, as the case may be; or.
(iii)(x) Approval by the shareholders of FIC of a complete
liquidation or dissolution of FIC or (y) the sale or other disposition of all or
substantially all of the assets of FIC (in one or a series of transactions),
other than to a corporation with respect to which, immediately following such
sale or other disposition, more than 70% of, respectively, (1) the combined
voting power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors and (2) the then
outstanding shares of common stock of such corporation is then beneficially
owned, directly or indirectly, by all or substantially all of the persons who
were the beneficial owners, respectively, of the Voting Securities and Common
Stock immediately prior to such sale or other disposition in substantially the
same proportions as their ownership, immediately prior to such sale or other
disposition, of the Voting Securities and Common Stock, as the case may be; or
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(iv) A majority of the members of the Board of Directors
of the Company shall have declared that a Change in Control Event has occurred
or that a Change of Control Event will occur upon satisfaction of specified
conditions, in which case the Change in Control Event shall be deemed to occur
upon satisfaction of such specified conditions; or
(v) FIC enters into a letter of intent, an agreement in
principle or a definitive agreement relating to a Change in Control Event
described in Section 10(a)(i), 10(a)(ii), 10(a)(iii) or 10(a)(iv) hereof that
ultimately results in such a Change in Control Event, or a tender or exchange
offer or proxy contest is commenced which ultimately results in a Change in
Control Event described in Section 10(a)(i) hereof; or
(v) There shall be an involuntary termination of
employment of the Employee or Termination for Good Reason (as defined below),
and the Employee reasonably demonstrates that such event (x) was requested by a
party other than the Board of Directors of FIC that had previously taken other
steps reasonably calculated to result in a Change in Control Event described in
Section 10(a)(i), 10(a)(ii), 10(a)(iii) or 10(a)(iv) hereof and which ultimately
results in a Change in Control Event described in Section 10(a)(i), 10(a)(ii),
10(a)(iii) or 10(a)(iv) hereof, or (y) otherwise arose in connection with or in
anticipation of a Change in Control Event described in Section 10(a)(i),
10(a)(ii), 10(a)(iii) or 10(a)(iv) hereof that ultimately occurs.
Notwithstanding anything stated in this Section 10(a), a Change in
Control Event shall not be deemed to occur with respect to Employee if (x) the
acquisition or beneficial ownership of the 30% or greater interest referred to
in Section 10(a)(i) is by Employee or by a group, acting in concert, that
includes Employee or (y) a majority of the then combined voting power of the
then outstanding voting securities (or voting equity interests) of the surviving
corporation or of any corporation (or other entity) acquiring all or
substantially all of the assets of FIC shall, immediately after a
reorganization, merger, exchange, consolidation or disposition of assets
referred to in Section 10(a)(ii) or 10(a)(iii), be beneficially owned, directly
or indirectly, by Employee or by a group, acting in concert, that includes
Employee.
(b) For purposes of this Agreement, a "subsidiary" of FIC shall mean any
entity of which securities or other ownership interests having general voting
power to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by FIC.
(c) If any Change in Control Event shall occur during the Term, then the
Employee shall be entitled to receive from FIC or its successor (which term as
used herein shall include any person acquiring all or substantially all of the
assets of FIC) a cash payment and other benefits on the following basis (unless
the Employee's employment by FIC is terminated voluntarily or involuntarily
prior to the occurrence of the earliest Change in Control Event to occur (the
"First Change in Control Event"), in which case Employee shall be entitled to no
payment or benefits under this Section 10):
(i) If at the time of, or at any time after, the occurrence of
the First Change in Control Event and prior to the end of the Transition Period,
the employment of Employee with FIC is voluntarily or involuntarily terminated
for any reason (unless such termination is a voluntary termination by Employee
other than for Post-Change of Control Good Reason, is on account of the death or
Disability of the Employee or is a termination by FIC for Cause), subject to the
limitations set forth in Section 11, Employee shall be entitled to the
following:
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(A) FIC shall pay Employee's full base salary through the
Termination Date at the rate then in effect.
(B) FIC or its successor, within 90 days after the
Termination Date, shall make a cash payment to Employee in an amount equal to
two times the sum of (A) the Base Salary of Employee in effect immediately prior
to the First Change in Control Event plus (B) a cash bonus equal to 100% of the
Base Salary.
(C) For a 24-month period after the Termination Date, FIC
shall allow Employee to participate in any health, disability and life insurance
plan or program in which the Employee was entitled to participate immediately
prior to the First Event as if Employee were an employee of FIC during such
24-month period; provided, however, that in the event that Employee's
participation in any such health, disability or life insurance plan or program
of FIC is barred, FIC, at its sole cost and expense, shall arrange to provide
Employee with benefits substantially similar to those which Employee would be
entitled to receive under such plan or program if Employee were not barred from
participation. Benefits otherwise receivable by Employee pursuant to this
section 10(a)(iii) shall be reduced to the extent comparable benefits are
received by Employee from another employer or other third party during such
24-month period, and Employee shall promptly report receipt of any such benefits
to FIC.
(D) Any outstanding and unvested stock options granted to
Employee shall be accelerated and become immediately exercisable by Employee and
shall remain exercisable for the lesser of one year from the date of termination
or the original ten-year term of the option and any restricted stock awarded to
Employee and subject to forfeiture shall be fully vested and shall no longer be
subject to forfeiture.
(ii) FIC shall also pay to Employee all legal fees and expenses
incurred by the Employee as a result of such termination, including, but not
limited to, all such fees and expenses, if any, incurred in contesting or
disputing any such termination or in seeking to obtain or enforce any right or
benefit provided by this Section 10.
(iii) In addition to all other amounts payable to Employee under
this Section 10(c), Employee shall be entitled to receive all benefits payable
to Employee under any other plan or agreement relating to retirement benefits.
(iv) Employee shall not be required to mitigate the amount of any
payment or other benefit provided for in this Section 10 by seeking other
employment or otherwise, nor shall the amount of any payment or other benefit
provided for in this Section 10(c) be reduced by any compensation earned by
Employee as the result of employment by another employer after the Termination
Date or otherwise, except as specifically provided in this Agreement.
11. Conditions to Receipt of Termination Benefits.
Notwithstanding any other provision of this Agreement, FIC will not pay
to Employee, and Employee will not be entitled to receive, any payment pursuant
to Sections 9(b) or 10(c) unless and until:
(a) Employee executes, and there shall be effective following any
statutory period for revocation or rescission, a release that irrevocably and
unconditionally releases FIC,
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any person acquiring FIC or its assets, and their past and current shareholders,
directors, officers, employees and agents from and against any and all claims,
liabilities, obligations, covenants, rights and damages of any nature
whatsoever, whether known or unknown, anticipated or unanticipated; provided,
however, that the release shall not adversely affect Employee's rights to
receive benefits to which he is entitled under this Agreement or Employee's
rights to indemnification under applicable law, the charter documents of FIC,
any insurance policy maintained by FIC or any written agreement between FIC and
Employee; and
(b) Employee executes an agreement prohibiting Employee for a
period of one (1) year following the Termination Date from soliciting,
recruiting or inducing, or attempting to solicit, recruit or induce, any
employee of FIC or of any FIC acquiring FIC or its assets to terminate the
employee's employment.
12. Definitions.
As used herein, the following terms shall have the meaning set forth in
below for purposes of this Agreement:
(a) "Cause" shall mean: (i) an act or acts of personal dishonesty
taken by Employee and intended to result in substantial personal enrichment of
Employee at the expense of the Company, (ii) Employee's willful breach of
Employee's material obligations under this Agreement or Employee's willful
failure or repeated refusal to perform or observe Employee's duties,
responsibilities and obligations as an Employee of the Company for reasons other
than disability or incapacity, (iii) the existence of any court order or
settlement agreement prohibiting Employee's continued employment with the
Company; (iv) if Employee has signed and/or entered into a written or oral
non-competition agreement, confidentiality agreement, proprietary information
agreement, trade secret agreement or any other agreement which would prevent
Employee from working for the Company and/or from performing Employee's duties
at the Company; or (v) the willful engaging by Employee in illegal conduct that
is materially and demonstrably injurious to the Company. For the purposes of
this definition, no act or failure to act on Employee's part shall be considered
"dishonest," "willful" or "deliberate" unless done or omitted to be done by
Employee in bad faith and without reasonable belief that Employee's action or
omission was in, or not opposed, to the best interests of the Company. Any act,
or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or based upon the advice of counsel for the Company shall
be conclusively presumed to be done, or omitted to be done, by Employee in good
faith and in the best interests of the Company.
(b) "Disability" shall mean Employee's absence from his duties
with FIC on a full time basis for 180 consecutive business days, as a result of
Employee's incapacity due to physical or mental illness, unless within 30 days
after written notice of intent to terminate is given by FIC following such
absence Employee shall have returned to the full time performance of Employee's
duties.
(c) "Pre-Change of Control Good Reason" shall mean, if, prior to
a Change of Control, without the Employee's express written consent, any of the
following shall occur:
(i) The assignment to Employee of any material duties
inconsistent with Employee's status or position with FIC, or any other action by
FIC that results in a substantial diminution in such status or position,
excluding any isolated, insubstantial, or
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inadvertent action not taken in bad faith and which is remedied by FIC promptly
after receipt of notice thereof from Employee.
(ii) A material reduction by FIC in Employee's annual Base
Salary or target incentive (other than consistently with a reduction instituted
for all senior executives of FIC);
(iii) FIC requiring Employee to relocate to any place
other than a location within forty miles of FIC's San Diego location, except for
required travel on FIC business consistent with Section 6 hereof.
(d) "Post-Change of Control Good Reason" shall mean, if, on or
following a Change of Control, without the Employee's express written consent,
any of the following shall occur:
(i) The Assignment to Employee of any material duties
inconsistent with Employee's status or position with FIC, or any other action by
FIC that results in a substantial diminution in such status or position,
excluding any isolated, insubstantial, or inadvertent action not taken in bad
faith and which is remedied by FIC promptly after receipt of notice thereof from
Employee.
(ii) A material reduction by FIC in Employee's annual Base
Salary or target incentive in effect immediately prior to the First Change in
Control Event or Termination;
(iii) The failure by FIC to continue to provide Employee
with benefits at least as favorable in the aggregate to those enjoyed by
Employee under FIC's pension, life insurance, medical, health and accident,
disability, deferred compensation, incentive awards, employee stock options or
savings plans in which Employee was participating at the time of the First
Change in Control Event, the taking of any action by FIC that would directly or
indirectly materially reduce any of such benefits or deprive Employee of any
material fringe benefit enjoyed at the time of the First Change in Control
Event, or the failure by FIC to provide Employee with the number of paid
vacation days to which Executive is entitled at the time of the First Change in
Control Event, but excluding any failure or action by FIC that is not taken in
bad faith and which is remedied by FIC promptly after receipt of notice thereof
from Employee;
(iv) FIC requiring Employee to relocate to any place other
than a location within forty miles of the location at which Employee performed
his primary duties immediately prior to the First Change in Control Event, or if
Employee is based at FIC's principal executive offices to a location more than
forty miles from its location immediately prior to the First Change in Control
Event, except for required travel on FIC business to an extent substantially
consistent with Employee's prior business travel obligations; or
(v) The failure of the Company to obtain agreement form
any successor to assume and agree to perform this Agreement, as contemplated in
Section 22(b).
(e) Other than in Section 10(a) hereof, the term "person" shall
mean an individual, partnership, corporation, estate, trust or other entity.
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(f) "Termination Date" shall mean the date of termination of
Employee's employment, which in the case of termination for Disability shall be
the 30th day after notice is given as required in Section 12(b).
(g) "Transition Period" shall mean the one-year period commencing
on the date of the earliest to occur of an Event described in Section 10(a)(i),
10(a)(ii), 10(a)(iii) or 10(a)(iv) hereof (the "Commencement Date") and ending
on the first anniversary of the Commencement Date.
13. Excise Tax.
(a) Notwithstanding anything contained herein to the contrary,
prior to the payment of any amounts pursuant to Section 10(c) hereof, an
independent national accounting firm designated by FIC (the "Accounting Firm")
shall compute whether there would be any "excess parachute payments" payable to
Employee, within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), taking into account the total "parachute
payments," within the meaning of Section 280G of the Code, payable to Employee
by FIC or any successor thereto under this Agreement and any other plan,
agreement or otherwise. If there would be any excess parachute payments, the
Accounting Firm will compute the net after-tax proceeds to Employee, taking into
account the excise tax imposed by Section 4999 of the Code, if (i) the payments
hereunder were reduced, but not below zero, such that the total parachute
payments payable to Employee would not exceed three (3) times the "base amount"
as defined in Section 280G of the Code, less One Dollar ($1.00), or (ii) the
payments hereunder were not reduced. If reducing the payments hereunder would
result in a greater after-tax amount to Employee, such lesser amount shall be
paid to Employee. If not reducing the payments hereunder would result in a
greater after-tax amount to Employee, such payments shall not be reduced. The
determination by the Accounting Firm shall be binding upon FIC and Employee
subject to the application of Section 13(b) hereof.
(b) As a result of uncertainty in the application of Sections
280G of the Code, it is possible that excess parachute payments will be paid
when such payment would result in a lesser after-tax amount to Employee; this is
not the intent hereof. In such cases, the payment of any excess parachute
payments will be void ab initio as regards any such excess. Any excess will be
treated as an overpayment by FIC to Employee. Employee will return the
overpayment to FIC, within fifteen (15) business days of any determination by
the Accounting Firm that excess parachute payments have been paid when not so
intended, with interest at an annual rate equal to the rate provided in Section
1274(d) of the Code (or 120% of such rate if the Accounting Firm determines that
such rate is necessary to avoid an excise tax under Section 4999 of the Code)
from the date Employee received the excess until it is repaid to FIC.
(c) All fees, costs and expenses (including, but not limited to,
the cost of retaining experts) of the Accounting Firm shall be borne by FIC and
FIC shall pay such fees, costs, and expenses as they become due. In performing
the computations required hereunder, the Accounting Firm shall assume that taxes
will be paid for state and federal purposes at the highest possible marginal tax
rates which could be applicable to Employee in the year of receipt of the
payments, unless Employee agrees otherwise.
14. Proprietary Information.
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Employee is required to, and agrees to sign and abide by the terms of
Employer's Non-Disclosure Agreement (Exhibit C) and Customer Information
Confidentiality Agreement (Exhibit D) (collectively the "Proprietary Information
Agreements") attached hereto as Exhibits C and D. Employee agrees that the
Non-Disclosure Agreement and Customer Information Confidentiality Agreements are
separate agreements independently supported by good and adequate consideration
and, notwithstanding anything in this Agreement to the contrary, shall be
severable from the other provisions of, and shall survive, this Agreement.
15. Dispute Resolution Procedure.
If Employee disputes any determination made by FIC regarding Employee's
eligibility for any Change of Control Events benefits under Section 10, the
amount or terms of payment of any benefits under Section 10, or FIC's
application of any provision of Section 10, then Employee shall, before pursuing
any other remedies that may be available to Employee, seek to resolve such
dispute by submitting a written claim notice to FIC. The notice by Employee
shall explain the specific reasons for Employee's claim and basis therefor. The
Board of Directors shall review such claim and FIC will notify Employee in
writing of its response within sixty (60) days of the date on which Employee's
notice of claim was given. The notice responding to Employee's claim will
explain the specific reasons for the decision. Employee shall submit a written
claim hereunder before pursuing any other process for resolution of such claim.
This Section 15 does not otherwise affect any rights that Employee or FIC may
have in law or equity to seek any right or benefit under this Agreement.
Nothing herein shall limit any remedy available under the Proprietary
Information Agreements with respect to violations or threatened violations
thereof, including the pursuit of injunctive relief in court.
16. Representations and Warranty of Employee.
Employee represents and warrants to FIC that the performance of his
duties hereunder will not violate any agreement with or any trade secret of any
other person or entity.
17. Notices.
All notices, requests, demands and other communication called for or
contemplated hereunder shall be in writing and shall be deemed to have been duly
given when delivered personally or when mailed by United States certified or
registered mail, postage prepaid, addressed to the parties or their successors
in interest at the following addresses or such other addresses as the parties
may designate by notice in the manner aforesaid:
If to FIC: Fair, Isaac and Company, Incorporated.
4295 Lexington Avenue North
St. Paul, MN 55126 USA
Attn: Chief Executive Officer
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With a copy to: Fair, Isaac and Company, Incorporated
4295 Lexington Avenue North
St. Paul, MN 55126 USA
Attn: General Counsel
If to Employee:
18. Governing Law.
This Agreement and the resolution of any disputes hereunder shall be
governed by and construed in accordance with the laws of the State of
California.
19. Entire Agreement.
The terms of this Agreement are intended by the parties to be the final
expression of their agreement with respect to the subject matter hereof and may
not be contradicted by evidence of any prior or contemporaneous agreements,
representations or promises of any kind, whether written, oral, express or
implied, between HNC or FIC and Employee with respect to the subject matters
herein, including any former employment agreements. This Agreement is intended
as the complete and exclusive agreement between the parties with respect to
Employee's employment by FIC, and no extrinsic evidence whatsoever may be
introduced in any judicial, administrative, or other legal proceeding involving
this Agreement
20. Validity.
If any provision of this Agreement, or the application thereof to any
person, place or circumstance, shall be held to be invalid, unenforceable or
void, the remainder of this Agreement and such provision as applied to other
persons, places and circumstances shall remain in full force and effect.
21. Employee Acknowledgment.
Employee acknowledges that he has had an opportunity to consult with his
own separate counsel regarding the terms of this Agreement.
22. Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the benefit
of the successors, legal representatives and assigns of the parties hereto;
provided, however, that the Employee shall not have any right to assign, pledge
or otherwise dispose of or transfer any interest in this Agreement or any
payments hereunder, whether directly or indirectly or in whole or in part,
without the written consent of FIC or its successor.
(b) FIC will require any successor (whether direct or indirect,
by purchase of a majority of the outstanding voting stock of FIC or all or
substantially all of the assets of FIC, or by merger, consolidation or
otherwise), by agreement in form and substance satisfactory to Employee, to
assume expressly and agree to perform this Agreement in the same manner and to
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the same extent that FIC would be required to perform it if no such succession
had taken place. Failure of FIC to obtain such agreement prior to the
effectiveness of any such succession (other than in the case of a merger or
consolidation) shall be a breach of this Agreement and shall entitle Employee to
compensation from FIC in the same amount and on the same terms as Employee would
be entitled hereunder in the event of termination by FIC without Cause. As used
in this Agreement, "FIC" shall mean FIC as hereinbefore defined and any
successor to its business and/or assets as aforesaid that is required to execute
and deliver the agreement as provided for in this Section 22(b) or that
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
23. Integration.
In the event that any payments or benefits become payable to Employee
pursuant to Section 9 or 10 of this Agreement, then this Agreement will
supersede and replace any other agreement, plan or program applicable to
Employee to the extent that such other agreement, plan or program provides for
payments or benefits to Employee arising out of the involuntary termination of
Employee's employment or termination by Employee for Good Reason. In addition,
the acceleration of stock options and lapsing of forfeiture provisions of
restricted stock provided pursuant to Section 10(c)(i)(D) of this Agreement
shall not be subject to the provisions of Article 13 of FIC's 1992 Long-Term
Incentive Plan (or similar successor provision or plan).
24. No Offsets. No amount payable to Employee pursuant to this Agreement
shall be reduced for purposes of offsetting either directly or indirectly any
indebtedness or liability of Employee to FIC, unless FIC claims in good faith
that an indebtedness or liability of Employee to FIC exists as a result of acts
by Employee that are illegal or constitute a violation of Employee's fiduciary
duties to FIC.
25. Attorney Fee Reimbursement.
Employee shall be entitled to reimbursement of reasonable attorneys' fees for
reviewing this Agreement and related documentation, not to exceed $10,000.
26. Miscellaneous.
No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing and signed
by the parties, and, to the extent required, is approved by the Board. No waiver
by either party hereto at any time of any breach by the other party to this
Agreement 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 to similar time.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
FAIR, ISAAC AND COMPANY, INCORPORATED
By
-------------------------------------
Title
-----------------------------------
EMPLOYEE
/s/ Kenneth J. Saunders
----------------------------------------
KENNETH J. SAUNDERS
Exhibits attached:
Exhibit A Nonstatutory Stock Option Agreement
Exhibit B 1992 Long-Term Incentive Plan
Exhibit C Employer's Non-Disclosure Agreement
Exhibit D Customer Information Confidentiality Agreement
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- --------------------------------------------------------------------------------
EXHIBIT A
- --------------------------------------------------------------------------------
NOTICE OF GRANT OF STOCK OPTION
Fair, Isaac and Company, Incorporated
Id: 94:1499887
200 Smith Ranch Road
San Rafael, CA 94903
- --------------------------------------------------------------------------------
Kenneth J. Saunders OPTION NUMBER: _________________
PLAN: None
ID: _________________
- --------------------------------------------------------------------------------
Effective 8/6/2002, you have been granted a Non-Qualified Stock Option to buy
200,000 shares of common stock of Fair, Isaac and Company, Incorporated ("Fair,
Isaac") at $31.2600 per share (the "Option"). The Option will expire on August
5, 2012 (the "Expiration Date"). This Option is not granted pursuant to the
terms of the Fair, Isaac 1992 Long-Term Incentive Plan.
The total option price of the shares granted is $6,252,000.00.
Subject to the Terms and Conditions of Nonstatutory Stock Option Agreement
attached to this Notice, the Option shall become exercisable as to the number of
shares of common stock on the dates specified below.
SHARES VESTING DATE
------ ------------
50,000 8/6/2003
50,000 8/6/2004
50,000 8/6/2005
50,000 8/6/2006
By your signature and Fair, Isaac's signature below, you and Fair, Isaac agree
that this Notice of Grant of Stock Option and the Terms and Conditions of
Nonstatutory Stock Option Agreement, which is attached hereto constitute the
Nonstatutory Stock Option Agreement governing this Option.
- --------------------------------------------------------------------------------
- ---------------------------------------- -------------------------
Andrea M. Fike, Vice President Date:
Fair, Isaac and Company, Incorporated
- ---------------------------------------- -------------------------
Kenneth J. Saunders Date:
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FAIR, ISAAC AND COMPANY, INCORPORATED
TERMS AND CONDITIONS OF NONSTATUTORY STOCK OPTION AGREEMENT
FOR EXECUTIVE OFFICERS
These are the terms and conditions applicable to the NONSTATUTORY
STOCK OPTION granted by Fair, Isaac and Company, Incorporated, a Delaware
corporation ("Fair, Isaac"), to you, the optionee listed on the Notice of Grant
of Stock Option attached hereto as the cover page (the "Cover Page"), effective
as of the date of grant. The Cover Page together with these Terms and Conditions
of Nonstatutory Stock Option Agreement constitute the Nonstatutory Stock Option
Agreement (the "Option Agreement").
NONSTATUTORY This Option is not intended to qualify as an incentive
stock option under Section 422 of the Internal Revenue
Code.
VESTING Your Option vests and will be exercisable on the Vesting
Dates, as shown on the Cover Page. In addition, your
entire Option vests and will be exercisable in full in the
event that:
- your service as an employee or director of Fair, Isaac
(or any subsidiary) terminates because of your
Disability or death, or
- any written employment agreement (other than an option
agreement) between you and Fair, Isaac provides for
acceleration of this Option in connection with a
change in control of Fair, Isaac or upon any other
specified event or combination of events.
No additional shares become exercisable after your
employment or service with Fair, Isaac has terminated for
any reason.
EXERCISE PERIOD The right to purchase shares under this Option Agreement
terminates at 3:00 p.m. Pacific Time on the earliest of
- the Expiration Date shown on the Cover Page; or
- the 90th day after the termination date of your
service as an employee or director of Fair, Isaac (or
any subsidiary), except if your termination results
from Retirement, Disability or death or if your
termination was in connection with a change in control
of Fair, Isaac and any employment agreement or other
written agreement between you and Fair, Isaac requires
that any payments be made to you as a result of such
termination; or
- the anniversary date of your Retirement as an employee
or director of Fair, Isaac (or any subsidiary); or
- the anniversary date of the commencement of your
Disability, if you become disabled while an employee,
director, consultant or advisor of Fair, Isaac (or any
subsidiary); or
- the anniversary date of your death, if you die while
an employee or director of Fair, Isaac (or any
subsidiary); or
- the anniversary date of your termination, if your
termination was in connection with a change in control
of Fair, Isaac and any employment agreement or other
written agreement between you and Fair, Isaac requires
that any payments be made to you as a result of such
termination.
LEAVES OF For purposes of this Option, your service does not
ABSENCE terminate when you go on a military leave, a sick leave or
another bona fide leave of absence, if the leave was
approved by Fair, Isaac in writing. Unless you return to
active work upon termination of your approved leave, your
service will be treated as terminating on the later of 90
days after you went on leave or the date that your right
to return to active work is guaranteed by law or by a
contract.
RESTRICTIONS You may not exercise this Option if the issuance of shares
ON EXERCISE at that time would violate any law or regulation, as
determined by Fair, Isaac. Moreover, you cannot exercise
this Option unless you have returned a signed copy of the
Option Agreement to Fair, Isaac.
NOTICE OF If you do not exercise this Option through an automated
EXERCISE electronic exercise vehicle approved by Fair, Isaac, then
you must notify Fair, Isaac of your intent to exercise
this Option by completing the appropriate Notice of
Exercise form and delivering it to the address provided on
the Notice of Exercise before your right to purchase
shares under this Option Agreement terminates. If you send
your Notice of Exercise by facsimile transmission, it will
be effective only if it is promptly confirmed by filing a
form with an original signature.
The Notice of Exercise must specify how many shares you
wish to purchase and must specify how your shares should
be registered (in your name only or in your and your
spouse's names as community property or as joint tenants
with right of survivorship).
If someone else wants to exercise this Option after your
death, that person must prove to Fair, Isaac's
satisfaction that he or she is entitled to do so.
FORM OF PAYMENT When you submit your Notice of Exercise, you must include
payment of the exercise price shown on the Cover Page for
the shares you are purchasing. Payment may be made in one
(or a combination of two or more) of the following forms
as approved by Fair, Isaac in its sole discretion:
- Your personal check, a cashier's check or a money
order;
- Irrevocable directions to a securities broker approved
by Fair, Isaac to sell shares underlying this Option
and to deliver all or a portion of the sale proceeds
to Fair, Isaac in payment of the exercise price and
the balance of the sale proceeds to you; all pursuant
to a special "Notice of Exercise" form provided by
Fair, Isaac; or
- Certificates for shares of Fair, Isaac common stock
that you have owned for at least 12 months, along with
any forms needed to effect a transfer of those shares
to Fair, Isaac with the value of the shares,
determined as of the effective date of the exercise of
this Option, applied to the exercise price.
WITHHOLDING You will not be allowed to exercise this Option unless you
TAXES make acceptable arrangements to pay any withholding taxes
that may be due as a result of the exercise of this
Option. These arrangements must be satisfactory to Fair,
Isaac. You may direct Fair, Isaac to withhold shares with
a market value equal to the withholding taxes due from the
shares to be issued as a result of your exercise of this
Option.
RESTRICTIONS By signing the Option Agreement, you agree not to sell any
ON RESALE shares at a time when applicable laws or Fair, Isaac
policies prohibit a sale.
TRANSFER OF Prior to your death, only you or a permitted assignee as
OPTION defined herein may exercise this Option (unless this
Option or a portion thereof has been transferred to your
former spouse by a domestic relations order by a court of
competent jurisdiction). You may transfer this Option or a
portion of this Option by gift to members of your
immediate family, a partnership consisting solely of you
and/or members of your immediate family, or to a trust
established for the benefit of you and/or members of your
immediate family (including a charitable remainder trust
whose income beneficiaries consist solely of such
persons). For purposes of the foregoing, "immediate
family" means your spouse, children or grandchildren,
including step-children or step-grandchildren. Any of
these persons is a "permitted assignee." However, such
transfer shall not be effective until you have delivered
to Fair, Isaac notice of such transfer. You cannot
transfer, pledge, hypothecate, assign or otherwise dispose
of this Option, including using this Option as security
for a loan. Any attempts to do any of these things
contrary to the provisions of this Option, and the levy of
any attachment or similar process upon this Option, shall
be null and void. You may, however, dispose of this Option
in your will or by a written beneficiary designation. Such
a designation must be filed with Fair, Isaac on the proper
form.
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RETENTION Neither your Option nor the terms of this Option Agreement
RIGHTS give you the right to continue as an employee or director
of Fair, Isaac (or any subsidiaries) in any capacity.
Fair, Isaac (and any subsidiaries) reserve the right to
terminate your service at any time, with or without cause,
subject to the terms of any written employment agreement
signed by you and Fair, Isaac.
STOCKHOLDER You, or your assignees, estate, beneficiaries or heirs,
RIGHTS have no rights as a stockholder of Fair, Isaac until a
certificate for any portion of the shares underlying this
Option has been issued. No adjustments are made for
dividends or other rights if the applicable record date
occurs before your stock certificate is issued.
ADJUSTMENTS In the event of a subdivision of the common stock of Fair,
Isaac ("Common Stock") outstanding, a declaration of a
divided payable in Common Stock, a declaration of a
dividend payable in a form other than Common Stock in an
amount that has a material effect on the price of the
Common Stock, a combination or consolidation of the
outstanding Common Stock (by reclassification or
otherwise) into a lesser number of shares, a
recapitalization, a spinoff or a similar occurrence, the
Compensation Committee of the Board of Directors of Fair,
Isaac shall make appropriate adjustments in one or more of
(a) the number of shares underlying this Option, or (b)
the exercise price of this Option. Except as provided
herein, you shall have no rights by reason of any issue by
Fair, Isaac of stock of any class or securities
convertible into stock of any class, any subdivision or
consolidation of shares of stock of any class, the payment
of any stock dividend or any other increase or decrease in
the number of shares of stock of any class. In the event
that Fair, Isaac is a party to a merger or other
reorganization, this Option shall be subject to the
agreement of merger or reorganization. Such agreement may
provide, without limitation, for the assumption of this
Option by the surviving corporation or its parent, for its
continuation by Fair, Isaac (if Fair, Isaac is a surviving
corporation), for accelerated vesting or for settlement in
cash.
APPLICABLE LAW This Agreement will be interpreted and enforced under the
laws of the State of Delaware (without regard to its rules
on choice of law).
OTHER This Option Agreement and any written agreement between
AGREEMENTS you and Fair, Isaac (or any subsidiaries) providing for
acceleration of options granted to you by Fair, Isaac upon
a change in control of Fair, Isaac constitute the entire
understanding between you and Fair, Isaac regarding this
Option. Any other prior agreements, commitments or
negotiations concerning this Option are superseded. This
Agreement may be amended only in writing.
DEFINITIONS "Retirement" means that you are eligible for normal
retirement or early retirement, as defined as follows:
- "Normal Retirement Age" means age 65
- "Early Retirement" means age 55 and completed 10 Years
of Service. One Year of Service is the completion of
at least 1,000 hours of service during the year.
"Disability" means that you are unable to engage in any
substantial gainful activity by reason of a medically
determinable, physical or mental impairment which can be
expected to result in death or which has lasted (or can be
expected to last) for a continuous period of not less than
12 months.
BY SIGNING THE COVER PAGE, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS
DESCRIBED ABOVE.
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