EXHIBIT 10.2
EMPLOYMENT AGREEMENT
AGREEMENT by and among The John Nuveen Company, a Delaware
corporation (the "Company"), and John P. Amboian (the "Executive") dated as of
the 1st day of November, 2002.
The Company has determined that because of the unique nature
of the Executive's services to the Company it is in its best interests and those
of its shareholders to assure that the Company will have the continued
dedication of the Executive, and to provide the Company with the continuity of
management the Company considers crucial to ensuring the Company's continued
success. Therefore, in order to accomplish these objectives, the Company desires
to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Effective Date. The "Effective Date" shall mean the date
hereof.
2. Employment Period. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to be employed by the Company subject
to the terms and conditions of this Agreement, for the period commencing on the
Effective Date and ending on the third anniversary thereof ("Initial Term");
provided, commencing on the second anniversary of the Effective Date and on each
anniversary of the Effective Date thereafter, the employment period shall be
extended by one year to create a new one year term until, at any time at or
after such date, the Company or the Executive delivers a written notice to the
other party that the employment period shall expire at the end of such one year
term (the Initial Term as so extended is the "Employment Period").
3. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period (A) the Executive shall
serve in the position set forth on Exhibit A with such authority, duties and
responsibilities as are commensurate with such position and as may be consistent
with such position, reporting to the person or persons set forth on Exhibit A,
and (B) the Executive's services shall be performed at the location or locations
set forth on Exhibit A.
(ii) During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is entitled, the
Executive agrees to devote substantially all of his attention and time during
normal business hours to the business and affairs of the Company and, to the
extent necessary to discharge the responsibilities assigned to the Executive
hereunder, to use the Executive's reasonable best efforts to perform faithfully
and efficiently such responsibilities. During the Employment Period, it shall
not be a violation of this Agreement for the Executive to (A) serve on
corporate, civic or charitable boards or
committees, (B) deliver lectures, fulfill speaking engagements or teach at
educational institutions and (C) manage personal investments, so long as such
activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement.
(b) Compensation.
(i) Base Salary. During the Employment Period, the
Executive shall receive an annual base salary ("Annual Base Salary") not less
than the amount set forth on Exhibit A. Any increase in Annual Base Salary shall
not serve to limit or reduce any other obligation to the Executive under this
Agreement. Annual Base Salary shall not be reduced after any increase and the
term Annual Base Salary as utilized in this Agreement shall refer to Annual Base
Salary as so increased.
(ii) Annual Incentives. For each fiscal year completed
during the Employment Period, the Executive shall be entitled to participate in
the Company's 2002 Executive Officer Performance Plan or its successor(s), which
shall provide for the opportunity to receive an annual incentive award
consistent with past practices and competitive pay practices, the value of which
is based upon a pre-established formula. The annual incentive award calculated
for Executive in accordance with such plan (or its successor(s)) shall be
referred to herein as the "Annual Bonus."
(iii) Other Benefits. During the Employment Period, the
Executive shall be entitled to participate in all employee pension, welfare,
perquisites, fringe benefit, and other benefit plans, practices, policies and
programs generally applicable to the most senior executives of the Company on a
basis and on terms no less favorable than that provided to the Executive
immediately prior to the Effective Date.
(iv) Expenses. During the Employment Period, the
Executive shall be entitled to receive prompt reimbursement for all expenses
incurred by the Executive in accordance with the Company's policies for its
senior executives.
(v) Vacation. During the Employment Period, the Executive
shall be entitled to paid vacation in accordance with the plans, policies,
programs and practices of the Company as in effect with respect to the senior
executives of the Company.
4. Termination of Employment.
(a) Death or Disability. The Executive's employment shall
terminate automatically upon the Executive's death during the Employment Period.
If the Company determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Executive written notice in accordance with
Section 11(a) of this Agreement of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), provided that, within the 30 days
after such receipt, the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean "total disability" as defined in the
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Company's long-term disability insurance plan (or such other Company-provided
long-term disability benefit plan sponsored by the Company in which Executive
participates at the time the determination of Disability is made).
(b) Cause. The Company may terminate the Executive's
employment during the Employment Period for Cause. For purposes of this
Agreement, "Cause" shall mean:
(i) the willful and continued failure of the Executive to
perform substantially the Executive's duties with the Company or one of its
subsidiaries (other than any such failure resulting from incapacity due to
physical or mental illness), after a written demand for substantial performance
is delivered to the Executive by the Board of Directors of the Company (the
"Board") or its representative, which specifically identifies the manner in
which the Board believes that the Executive has not substantially performed the
Executive's duties, or
(ii) the willful engaging by the Executive in illegal
conduct or gross misconduct which is materially and demonstrably injurious to
the Company or its affiliates, or
(iii) conviction of a felony or guilty or nolo contendere
plea by the Executive with respect thereto; or
(iv) a material breach of Section 9 of this Agreement.
For purposes of this provision, no act or failure to act on the part of the
Executive shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's act or omission was in the best interests of the Company . Any act,
or failure to act, based upon express authority given pursuant to a resolution
duly adopted by the Board with respect to such act or omission or based upon the
advice of counsel for the Company shall be conclusively presumed to be done, or
omitted to be done, by the Executive in good faith and in the best interests of
the Company. The cessation of employment of the Executive shall not be deemed to
be for Cause unless and until there shall have been delivered to the Executive a
copy of a resolution duly adopted by the affirmative vote of not less than
two-thirds of the entire membership of the Board (not including the Executive)
after reasonable notice is provided to the Executive and the Executive is given
an opportunity, together with counsel, to be heard before the Board, finding
that, in the good faith opinion of the Board, the Executive has engaged in the
conduct described in subparagraph (i), (ii), (iii) or (iv) above, and specifying
the particulars thereof in detail.
(c) Good Reason. The Executive's employment may be terminated
by the Executive for Good Reason. For purposes of this Agreement, "Good Reason"
shall mean in the absence of a written consent of the Executive:
(i) any action by the Company which results in a material
diminution in the Executive's position, authority, duties or responsibilities as
contemplated by Section 3(a) of this Agreement, including for this purpose
without limitation actions that relate to the Executive's status, offices,
titles and reporting relationships and excluding for this purpose any action not
taken in bad faith and which is remedied by the Company promptly after receipt
of notice thereof given by the Executive;
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(ii) any failure by the Company to comply with any of the
provisions of Section 3(b) of this Agreement, other than a failure not occurring
in bad faith and which is remedied by the Company promptly after receipt of
notice thereof given by the Executive;
(iii) the Company requiring the Executive to be based at
any office or location other than that provided in Section 3(a)(i)(B) hereof,
provided that reasonable travel required in connection with Executive's
reporting relationships and responsibilities to the Board shall not be deemed a
breach hereof;
(iv) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by this Agreement
or the Company giving Executive a notice of the termination of the Employment
Period effective at the end of or after the Initial Term, pursuant to Section 2;
(v) any failure by the Company to comply with and satisfy
Section 10(b) of this Agreement, or
(vi) the failure of the Board to nominate the Executive
for election to the Board or to appoint the Executive to the applicable
Committee of the Board, or the Board effects the Executive's removal as a member
of the Board or a member of the applicable Committee or in the event the
Executive is not elected to the Board at any annual or special meeting of the
stockholders and the Board does not immediately thereafter elect the Executive
to the Board (to the extent legally permitted to do so).
Notwithstanding anything herein to the contrary, any
termination of Executive's employment with the Company under the following
circumstances shall be deemed to be a termination for Good Reason for all
purposes of this Agreement:
A. any termination of Executive's employment which would
constitute a "Qualifying Termination" under The St. Paul Companies,
Inc. ("St. Paul") Amended and Restated Special Severance Policy as
in effect from time to time, or any successor plan or policy, if
Executive were a "Tier 1" employee (or other term designating the
most senior management level) of St. Paul; or
B. the resignation by the Executive for any reason during
the 60-day period following the six-month anniversary of a Change of
Control of the Company (as defined from time to time under the
Second Amendment and Restatement of The John Nuveen Company 1996
Equity Incentive Award Plan or any successor thereto (the "Nuveen
Plan")), where Executive was not actively and substantively involved
in the negotiation of the terms of such Change of Control
transaction or event; or
C. the resignation by the Executive at any time during
the two-year period following a Change of Control of the Company (as
defined from time to time under the Nuveen Plan), in connection with
which, or subsequent to which, (1) Executive's position, title,
authority, duties or responsibilities are changed adversely, (2) any
change is made, without Executive's consent, to the business
strategy or business
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operations of the Company which is inconsistent in any material
respect with the business strategy or business operations of the
Company immediately prior to such Change of Control, or (3)
Executive is asked to report to any person (i) other than the chief
executive officer or the board of directors of a publicly traded
company that is the Company or a successor to the Company (if the
Company is publicly traded immediately prior to such Change of
Control) or (ii) the Chief Executive Officer of the ultimate parent
company of the acquiring company (in the event the Company is no
longer publicly held and this Agreement remains in effect
immediately prior to such Change of Control).
(d) Notice of Termination. Any termination by the Company for
Cause, or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 11(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated and (iii) if the
Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder. In the event of any
termination of employment the Executive shall resign from all positions with the
Company and its affiliates.
(e) Date of Termination. "Date of Termination" means (i) if
the Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein within 30 days of such notice, as the case may
be, (ii) if the Executive's employment is terminated by the Company other than
for Cause or Disability, the Date of Termination shall be the date on which the
Company notifies the Executive of such termination and (iii) if the Executive's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the Disability
Effective Date, as the case may be.
5. Obligations of the Company upon Termination.
(a) Good Reason; Other Than for Cause. If, during the
Employment Period, the Company shall terminate the Executive's employment other
than for Cause, death or Disability or the Executive shall terminate employment
for Good Reason:
(i) except as specified below, the Company shall pay to
the Executive in a lump sum in cash within 30 days after the Date of Termination
the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary
through the Date of Termination to the extent not theretofore paid,
and (2) the product of (x) the average Annual Bonus paid to the
Executive in respect of the three completed fiscal years
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prior to the Date of Termination (the "Recent Average Bonus"), and
(y) a fraction, the numerator of which is the number of days in the
fiscal year in which the Date of Termination occurs through the Date
of Termination, and the denominator of which is 365, in each case to
the extent not theretofore paid (the sum of the amounts described in
clauses (1) and (2), shall be hereinafter referred to as the
"Accrued Obligations"); and
B. the amount equal to the product of (x) three and (y)
the sum of (I) the Executive's Annual Base Salary and (II) the
Recent Average Bonus; and
(ii) any stock options, restricted stock and restricted
share units held by the Executive or a permitted transferee (whether granted
under this Agreement or otherwise) shall vest immediately (with option
exercisability continuing until the end of the option term); and
(iii) for three years after the Executive's Date of
Termination, the Company shall continue welfare benefits to the Executive and/or
the Executive's family at least equal to those which would have been provided to
them in accordance with the plans, programs, practices and policies described in
Section 3(b)(iii) of this Agreement if the Executive's employment had not been
terminated in accordance with the most favorable plans, practices, programs or
policies of the Company and its subsidiaries applicable generally to other peer
executives and their families, provided, however, that if the Executive becomes
reemployed with another employer and is eligible to receive medical or other
welfare benefits under another employer provided plan, the medical and other
welfare benefits described herein shall be secondary to those provided under
such other plan during such applicable period of eligibility. For purposes of
determining eligibility (but not the time of commencement of benefits) of the
Executive for retiree benefits pursuant to such plans, practices, programs and
policies, the Executive shall be considered to have remained employed (for
purposes of both age and service) until three years after the Date of
Termination and to have retired on the last day of such period; and
(iv) the Executive shall be deemed to have an additional
three years of age and service for purposes of the Company's defined benefit
pension plans, which benefit shall be paid through a nonqualified pension plan
of the Company; and
(v) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is eligible to
receive under any plan, program, policy or practice or contract or agreement of
the Company and its affiliates (such amounts and benefits, the "Other Benefits")
in accordance with the terms and normal procedures of each such plan, program,
policy or practice.
(b) Cause; Other than for Good Reason. If the Executive's
employment shall be terminated for Cause or the Executive terminates his
employment without Good Reason during the Employment Period, this Agreement
shall terminate without further obligations to the Executive other than the
obligation to pay or provide to the Executive an amount equal to the amount set
forth in clause (1) of Section 5(a)(i)(A) above, and the timely payment or
provision of the Other Benefits, in each case to the extent theretofore unpaid.
In the event the Executive
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gives the Company notice of termination of the Employment Period effective at
the end of or after the Initial Term, pursuant to Section 2, the Company shall
pay Executive the Accrued Obligations provided for in Section 5(a)(i)(A)(1), and
shall provide the Executive (and his spouse, as applicable) Other Benefits.
(c) Death. If the Executive's employment is terminated by
reason of the Executive's death during the Employment Period, this Agreement
shall terminate without further obligations to the Executive's legal
representatives under this Agreement, other than for payment of Accrued
Obligations and the timely payment or provision of the Other Benefits.
Additionally, any stock options, restricted stock and restricted stock units
(collectively, "Stock Awards") held by the Executive shall immediately vest.
Accrued Obligations shall be paid to the Executive's estate or beneficiary, as
applicable, in a lump sum in cash within 30 days of the Date of Termination.
(d) Disability. If the Executive's employment is terminated by
reason of the Executive's Disability during the Employment Period, this
Agreement shall terminate without further obligations to the Executive, other
than for payment of Accrued Obligations and the timely payment or provision of
Other Benefits. Accrued Obligations shall be paid to the Executive in a lump sum
in cash within 30 days of the Date of Termination. Additionally, all Stock
Awards shall immediately vest. With respect to the provision of Other Benefits
upon the Executive's Disability, the term Other Benefits as utilized in this
Section 5(d) shall include, and the Executive shall be entitled after the
Disability Effective Date to receive, disability and other benefits as in effect
at any time thereafter generally with respect to senior executives of the
Company.
6. Non-exclusivity of Rights. Except as specifically provided,
nothing in this Agreement shall prevent or limit the Executive's continuing or
future participation in any plan, program, policy or practice provided by the
Company, or any of its affiliates and for which the Executive may qualify, nor,
subject to Section 11(f), shall anything herein limit or otherwise affect such
rights as the Executive may have under any contract or agreement with the
Company, or its affiliates. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan, policy, practice or
program of or any contract or agreement with the Company or its affiliates at or
subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program or contract or agreement except as explicitly
modified by this Agreement. As used in this Agreement, the terms "affiliated
companies" and "affiliates" shall include any company controlled by, controlling
or under common control with the Company.
7. Full Settlement. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and such amounts
shall not be reduced whether or not the Executive obtains other employment. The
Company agrees to pay, to the full extent permitted by law, all legal fees and
expenses which the Executive may reasonably incur as a result of any contest by
the Company, the Executive or others of the
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validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof (including as a result of any
contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986, as amended (the "Code"), if the Executive prevails on any material
claim made by Executive, and disputed by the Company under the terms of this
Agreement.
8. Certain Additional Payments by the Company. If at any time
for any reason any payment or distribution (a "Payment") by the Company or any
other person or entity to or for the benefit of the Executive is determined to
be a "parachute payment" (within the meaning of Section 280G (b) (2) of the
Code), whether paid or payable or distributed or distributable pursuant to the
terms of this Agreement or otherwise in connection with or arising out of his
employment with the Company or a change in ownership or excise tax imposed by
Section 4999 of the Code or any interest or penalties are incurred by the
Executive ( the "Excise Tax"), then within a reasonable period of time after
such determination is reached the Company shall pay to the Executive an
additional payment (the "Gross-Up Payment") in an amount such that the net
amount retained by the Executive, after deduction of any Excise Tax on such
Payment and any federal, state or local income or employment tax or other taxes
and Excise Tax on the Gross-Up Payment, shall equal the amount of such Payment
(including any interest or penalties with respect to any of the foregoing). All
determinations concerning the application of the foregoing shall be made by a
nationally recognized firm of independent accountants (together with legal
counsel of its choosing) selected by the Company after consultation with the
Executive (which may be the Company' independent auditors), whose determination
shall be conclusive and binding on all parties. The fees and expenses of such
accountants and counsel (including counsel for the Executive) shall be borne by
the Company. If such independent auditors determine that no Excise Tax is
payable by the Executive, it shall furnish the Executive with an opinion that
the Executive has substantial authority not to report any Excise Tax on his
Federal income tax return. In the event the Internal Revenue Service assesses
the Executive an amount of Excise Tax in excess of that determined in accordance
with the foregoing, the Company shall pay to the Executive an additional
Gross-Up Payment, calculated as described above in respect of such excess Excise
Tax, including a Gross-Up Payment in respect of any interest or penalties
imposed by the Internal Revenue Service with respect to such excess Excise Tax.
9. Confidential Information/Nonsolicitation.
(a) The Executive shall hold in a fiduciary capacity for the
benefit of the Company all secret or confidential information, knowledge or data
relating to the Company or any of its subsidiaries, and their respective
businesses, which shall have been obtained by the Executive during the
Executive's employment by the Company or any of its subsidiaries and which shall
not be or become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this Agreement). After
termination of the Executive's employment with the Company, the Executive shall
not, without the prior written consent of the company or as may otherwise be
required by law or legal process (provided the company has been given notice of
and opportunity to challenge or limit the scope of disclosure purportedly so
required), communicate or divulge any such information, knowledge or data to
anyone other than the Company and those designated by it, except as reasonably
necessary in
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connection with enforcement of the Executive's right under this Agreement or his
defense of any civil or criminal investigation or proceeding.
(b) While employed by the Company or any of its subsidiaries
and for twelve months after the Executive's termination of employment, the
Executive will not, directly or indirectly, solicit for employment by other than
the Company or its subsidiaries or hire any person employed by the Company or
its subsidiaries at any time during the six months prior to the Executive's Date
of Termination.
(c) The provisions of this Section 9 shall remain in full
force and effect until the expiration of the period specified herein
notwithstanding the earlier termination of the Executive's employment hereunder.
10. Successors.
(a) This Agreement is personal to the Executive and without
the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives. This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(b) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of its business and/or assets to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
As used in this Agreement, "Company" shall mean the Company as hereinbefore
defined and any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law, or otherwise.
11. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without reference to
principles of conflict of laws. The parties hereto irrevocably agree to submit
to the jurisdiction and venue of the courts of the State of Delaware, in any
action or proceeding brought with respect to or in connection with this
Agreement. The captions of this Agreement are not part of the provisions hereof
and shall have no force or effect. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
At the most recent address on file for the Executive at the Company.
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If to the Company:
The John Nuveen Company
333 West Wacker Drive
Chicago, Illinois 60606
Attention: Chief Executive Officer
With a copy to the Company's General Counsel at the same address
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The Company may withhold from any amounts payable under
this Agreement such Federal, state, or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon
strict compliance with any provision of this Agreement or the failure to assert
any right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 4 of this Agreement, shall not be deemed to be a waiver of
such provision or right or any other provision or right of this Agreement.
(f) From and after the Effective Date this Agreement shall
supersede any other employment, severance or change of control agreement between
the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization from its Board of Directors,
the Company has caused these presents to be executed in its name and on its
behalf, all as of the day and year first above written.
/s/ JOHN P. AMBOIAN
------------------------------
Executive
THE JOHN NUVEEN COMPANY
By: /s/ ALAN G. BERKSHIRE
---------------------------
Title: Senior Vice President
---------------------------
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Exhibit A
Executive: John P. Amboian
Positions: President of the Company; member of the Executive Committee and Bonus
Committee of the Board of Directors of the Company
Reporting relationship: To the Chief Executive Officer or to the Board of
Directors
Location: Chicago, Illinois
Annual base salary: $500,000
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