EXHIBIT 10.2
EMPLOYMENT AGREEMENT
AGREEMENT made this 27th day of
June, 1996, between FactSet Research
Systems Inc., a Delaware corporation
(the "Company"), and Howard E. Wille
(the "Executive").
The Executive is presently employed by the Company
as Chairman of the Board of Directors and Chief Executive
Officer.
The Board of Directors of the Company (the
"Board") recognizes that the Executive's contribution to the
growth and success of the Company has been substantial. The
Board desires to provide for the continued employment of the
Executive and to make certain changes in the Executive's
employment arrangements with the Company which the Board has
determined will reinforce and encourage the continued
attention and dedication to the Company of the Executive as
a member of the Company's management, in the best interest
of the Company and its shareholders. The Executive is
willing to commit himself to continue to serve the Company,
on the terms and conditions herein provided.
In order to effect the foregoing, the Company and
the Executive wish to enter into an employment agreement on
the terms and conditions set forth below. Accordingly, in
consideration of the premises and the respective covenants
and agreements of the parties herein contained, and
intending to be legally bound hereby, the parties hereto
agree as follows:
SECTION 1. Employment. The Company hereby agrees
to continue to employ the Executive, and the Executive
hereby agrees to continue to serve the Company, on the terms
and conditions set forth herein.
SECTION 2. Term. The employment of the Executive
by the Company as provided in Section 1 will commence on
September 1, 1996 and end on August 31, 1999 unless further
extended or sooner terminated as hereinafter provided.
Commencing on September 1, 1999, and each September 1
thereafter, the term of the Executive's employment shall
automatically be extended for one additional year to,
respectively August 31, 2000, and each August 31 thereafter,
unless, not later than one year prior to the end of the term
(as may be extended for one-year additional periods as
provided herein), either party hereunder shall have given
notice to the other party that it does not wish to extend
this Agreement. If the Company gives the Executive notice
that it does not wish to extend this Agreement, the
Executive shall be entitled to the termination benefits
provided in Section 8(d) hereof.
SECTION 3. Position and Duties. The Executive
shall serve as Chairman of the Board and Chief Executive
Officer of the Company and shall have such responsibilities,
duties and authority as he may have as of the date hereof
(or any position to which he may be promoted after the date
hereof) and as may from time to time be assigned to the
Executive by the Board that are consistent with such
responsibilities, duties and authority. The Executive shall
devote substantially all his working time and efforts to the
business and affairs of the Company.
SECTION 4. Place of Performance. In connection
with the Executive's employment by the Company, the
Executive shall be based at the principal executive offices
of the Company in the New York City Metropolitan area
(including, but not limited to, Greenwich, Connecticut),
except for required travel on the Company's business to an
extent substantially consistent with present business travel
obligations.
SECTION 5. Compensation and Related Matters. (a)
Salary. During the period of the Executive's employment
hereunder, the Company shall pay to the Executive an annual
base salary at a rate of $300,000, such salary to be paid in
substantially equal installments in accordance with the
Company's payroll practices for its executives. This salary
may be increased from time to time in accordance with normal
business practices of the Company and, if so increased,
shall not thereafter during the term of this Agreement be
decreased. Compensation of the Executive by salary payments
shall not be deemed exclusive and shall not present the
Executive from participating in any other compensation or
benefit plan of the Company. The salary payments (including
any increased salary payments) hereunder shall not in any
way limit or reduce any other obligation of the Company
hereunder, and no other compensation, benefit or payment
hereunder shall in any way limit or reduce the obligation of
the Company to pay the Executive's salary hereunder.
(b) Bonus Compensation. The Executive shall be
entitled to receive annual bonus compensation in an amount
determined by the Board in its discretion; provided,
however, that if any such bonus (or portion thereof) will
fail to be deductible by the Company by reason of section
162(m) of the Internal Revenue Code of 1986, as amended (the
"Code"), the payment of such bonus (or portion thereof) will
be deferred until the first date that the payment of such
bonus can be paid without failing to be deductible by the
Company.
(c) Expenses. During the term of the Executive's
employment hereunder, the Executive shall be entitled to
receive prompt reimbursement for all reasonable and
customary expenses incurred by the Executive in performing
services hereunder, including all expenses of travel and
living expenses while away from home on business or at the
request of and in the service of the Company, provided that
such expenses are incurred and accounted for in accordance
with the policies and procedures established by the Company.
(d) Other Benefits. The Company shall maintain in
full force and effect, and the Executive shall be entitled
to continue to participate in, all of the employee benefit
plans and arrangements in effect on the date hereof in which
the Executive participates or plans or arrangements
providing the Executive with at least equivalent benefits
thereunder (including, without limitation, each retirement
plan, supplemental and excess retirement plans, employee
stock ownership plans' annual and long-term incentive
compensation plans, stock option and purchase plans, group
life insurance and accident plan, medical and dental
insurance plans, and disability plan), provided that the
Company shall not make any changes in such plans or
arrangements that would adversely affect the Executive's
rights or benefits thereunder; provided, however, that, such
a change may be made, including termination of such plans or
arrangements if it occurs pursuant to a program applicable
to all executives of the Company and does not result in a
proportionately greater reduction in the rights of or
benefits to the Executive as compared with any other
executive of the Company. The Executive shall be entitled to
participate in or receive benefits under any employee
benefit plan or arrangement made available by the Company in
the future to its executives and key management employees,
subject to and on a basis consistent with the terms,
conditions and overall administration of such plans and
arrangements. Nothing paid to the Executive under any plan
or arrangement presently in effect or made available in the
future shall be deemed to be in lieu of the salary payable
to the Executive pursuant to paragraph (a) of this Section.
Any payments or benefits payable to the Executive hereunder
in respect of any calendar year during which the Executive
is employed by the Company for less than the entire such
year shall, unless otherwise provided in the applicable plan
or arrangement be prorated in accordance with the number of
days in such calendar year during which he is so employed.
(e) Vacations. The Executive shall be entitled to
no less than the number of vacation days in each calendar
year, and to compensation in respect of earned but unused
vacation days, determined in accordance with the Company's
vacation policy as in effect on the date hereof. The
Executive shall also be entitled to all paid holidays and
personal days given by the Company to its executives.
(f) Services Furnished. The Company shall furnish
the Executive with office space, stenographic assistance and
such other facilities and services as shall be suitable to
the Executive's position and adequate for the performance of
his duties as set forth in Section 3 hereof.
SECTION 6. Offices. Subject to Sections 3 and 4,
the Executive agrees to serve without additional
compensation, if elected or appointed thereto, as a director
of the Company and any of its subsidiaries and in one or
more executive offices of any of the Company's subsidiaries,
provided that the Executive is indemnified for serving in
any and all such capacities on a basis no less favorable
than is currently provided by the Company to any other
director of the Company or any of its subsidiaries.
SECTION 7. Termination. The Executive's employment
hereunder may be terminated without any breach of this
Agreement only under the following circumstances:
(a) Death. The Executive's employment
hereunder shall terminate upon his death.
(b) Disability. If, as a result of the
Executive's incapacity due to physical or mental
illness, the Executive shall have been absent from
his duties hereunder on a full-time basis for the
entire period of six consecutive months, and
within thirty (30) days after written notice of
termination is given (which may occur before or
after the end of such six
month period) shall not have returned to the
performance of his duties hereunder on a full-time
basis, the Company may terminate the Executive's
employment hereunder.
(c) Cause. The Company may terminate the
Executive's employment hereunder for Cause. For
purposes of this Agreement, the Company shall have
"Cause" to terminate the Executive's employment
hereunder upon (i) the willful and continued
failure by the Executive to substantially perform
his duties hereunder (other than any such failure
resulting from the Executive's incapacity due to
physical or mental illness or any such actual or
anticipated failure after the issuance of a Notice
of Termination, as defined in Section 7(e), by the
Executive for Good Reason, as defined in Section
7(d)(ii)), after demand for substantial
performance is delivered by the Company that
specifically identifies the manner in which the
Company believes the Executive has not
substantially performed his duties, or (ii) the
willful engaging by the Executive in misconduct
which is materially injurious to the Company,
monetarily or otherwise (including, but not
limited to, conduct that constitutes Competitive
Activity, as defined in Section 10). For purposes
of this paragraph, no act, or failure to act, on
the Executive's part shall be considered "willful"
unless done, or omitted to be done, by him not in
good faith and without reasonable belief that his
action or omission was in the best interest of the
Company. Notwithstanding the foregoing, the
Executive shall not be deemed to have been
terminated for Cause without (1) reasonable notice
to the Executive setting forth the reasons for the
Company's intention to terminate for Cause, (2) an
opportunity for the Executive, together with his
counsel, to be heard before the Board, and (3)
delivery to the Executive of a Notice of
Termination, as defined in subsection (e) hereof,
from the Board finding that in the good faith
opinion of three-quarters (3/4) of the Board the
Executive was guilty of conduct set forth above in
clause (i) or (ii) hereof, and specifying the
particulars thereof in detail.
(d) Termination by the Executive. (i) The
Executive may terminate his employment hereunder
(A) for Good Reason or (B) if his health should
become impaired to an extent that makes his
continued perfor-
mance of his duties hereunder hazardous to his
physical or mental health or his life, provided
that the Executive shall have furnished the
Company with a written statement from a qualified
doctor to such effect and provided, further, that,
at the Company's request, the Executive shall
submit to an examination by a doctor selected by
the Company and such doctor shall have concurred
in the conclusion of the Executive's doctor.
(ii) For purposes of this Agreement,
"Good Reason" shall mean (A) a failure by the
Company to comply with any material provision
of this Agreement which has not been cured
within ten (10) days after notice of such
noncompliance has been given by the Executive
to the Company, or (B) any purported
termination of the Executive's employment
which is not effected pursuant to a Notice of
Termination satisfying the requirements of
paragraph (e) hereof (and for purposes of
this Agreement no such purported termination
shall be effective).
(e) Notice of Termination. Any termination of
the Executive's employment by the Company or by
the Executive (other than termination pursuant to
subsection (a) hereof) shall be communicated by
written Notice of Termination to the other party
hereto in accordance with Section 12. For purposes
of this Agreement, a "Notice of Termination" shall
mean a notice which shall indicate the specific
termination provision in this Agreement relied
upon and shall set 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.
(f) Date of Termination. "Date of
Termination" shall mean (i) if the Executive's
employment is terminated by his death, the date of
his death, (ii) if the Executive's employment is
terminated pursuant to subsection (b) above,
thirty (30) days after Notice of Termination is
given (provided that the Executive shall not have
returned to the performance of his duties on a
full-time basis during such thirty (30)-day
period), (iii) if the Executive's employment is
terminated pursuant to subsection (c) above, the
date specified in the Notice of Termination, and
(iv) if the Executive's
employment is terminated for any other reason, the
date on which a Notice of Termination is given;
provided, however, that, if within thirty (30)
days after any Notice of Termination is given the
party receiving such Notice of Termination
notifies the other party that a dispute exists
concerning the termination, the Date of
Termination shall be the date on which the dispute
is finally determined, either by mutual written
agreement of the parties, by a binding and final
arbitration award or by a final judgment, order or
decree of a court of competent jurisdiction (the
time for appeal therefrom having expired and no
appeal having been perfected).
SECTION 8. Compensation Upon Termination or During
Disability. (a) During any period that the Executive fails
to perform his duties hereunder as a result of incapacity
due to physical or mental illness ("disability period"), the
Executive shall continue to receive his full salary at the
rate then in effect for such period until his employment is
terminated pursuant to Section 7(b) hereof, provided that
payments so made to the Executive during the first 180 days
of the disability period shall be reduced by the sum of the
amounts, if any, payable to the Executive at or prior to the
time of any such payment under disability benefit plans of
the Company or under the Social Security disability
insurance program, and which amounts were not previously
applied to reduce any such payment.
(b) If the Executive's employment is terminated by
his death, the Company shall pay any amounts due to the
Executive under Section 5 through the date of his death in
accordance with Section 11(b).
(c) If the Executive's employment shall be
terminated by the Company for Cause or by the Executive for
other than Good Reason, the Company shall pay the Executive
his full salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given and the
Company shall have no further obligations to the Executive
under this Agreement.
(d) If (A) in breach of this Agreement, the
Company shall terminate the Executive's employment other
than for disability pursuant to Section 7(b) or for Cause
(it being understood that a purported termination for
disability pursuant to Section 7(b) or for Cause which is
disputed and finally determined not to have been proper
shall be a termination by the Company in breach of this
Agreement), including any failure by the Company to extend
the term of this Agreement for any additional one year
period as provided in Section 2 hereof, or (B) the Executive
shall terminate his employment for Good Reason, then
(i) the Company shall pay the Executive his
full salary through the Date of Termination at the
rate in effect at the time Notice of Termination
is given and all other unpaid amounts, if any, to
which the Executive is entitled as of the Date of
Termination under any compensation plan or program
of the Company, at the time such payments are due;
(ii) in lieu of any further salary payments
to the Executive for periods subsequent to the
Date of Termination, the Company shall pay as
liquidated damages to the Executive an amount
equal to three times the sum of (1) the
Executive's annual salary rate in effect as of the
Date of Termination and (2) the highest annual
amount payable to the Executive under the
Company's annual and long-term incentive
compensation plans during the three calendar years
which are the calendar year prior to the year in
which such Date of Termination occurs and the
immediately preceding two calendar years; such
payment to be made in a lump sum on or before the
fifth day following the Date of Termination;
(iii) if termination of the Executive's
employment arises out of a breach by the Company
of this Agreement, the Company shall pay all other
damages to which the Executive may be entitled as
a result of such breach, including damages for any
and all loss of benefits to the Executive under
the Company's employee benefit plans which the
Executive would have received if the Company had
not breached this Agreement and had the
Executive's employment continued for the full term
provided in Section 2 hereof, and including all
legal fees and expenses incurred by him as a
result of such termination, including the fees and
expenses of enforcing the terms of this Agreement.
(e) If the Executive shall terminate his
employment under clause (B) of subsection 7(d)(i) hereof,
the Company shall pay the Executive his full salary through
the Date of Termination at the rate in effect at the time
Notice of Termination is given.
(f) Unless the Executive is terminated for Cause,
the Company shall maintain in full force and effect, for the
continued benefit of the Executive for the greater of the
number of years (including partial years) remaining in the
term of employment hereunder or the number three (3), all
employee benefit plans and programs in which the Executive
was entitled to participate immediately prior to the Date of
Termination provided that the Executive's continued
participation is possible under the general terms and
provisions of such plans and programs. In the event that the
Executive's participation in any such plan or program is
barred, the Company shall arrange to provide the Executive
with benefits substantially similar to those which the
Executive would otherwise have been entitled to receive
under such plans and programs from which his continued
participation is barred.
(g) In the event that the Executive becomes
entitled to the payments provided in clauses (i)-(iii) of
Section 8(d) (the "Severance Payments"), if any of the
Severance Payments will be subject to the excise tax imposed
under section 4999 of the Code (the "Excise Tax"), the
Company shall pay to the Executive an additional amount (the
"Gross-Up Payment") such that the net amount retained by the
Executive, after deduction of any Excise Tax on the
Severance Payments and any Federal, state and local income
and employment tax and Excise Tax upon the payment provided
for by this Section 8(g), shall be equal to the Severance
Payments. For purposes of determining whether any of the
Severance Payments will be subject to the Excise Tax and the
amount of such Excise Tax, (i) any other payments or
benefits received or to be received by the Executive in
connection with a change in ownership or control (within the
meaning of section 280G of the Code and the regulations
promulgated thereunder) of the Company or the Executive's
termination of employment (whether pursuant to the terms of
this Agreement or any other plan, arrangement or agreement
with the Company, any person whose actions result in a
change in control or any Person affiliated with the Company
or such Person) shall be treated as "parachute payments"
within the meaning of section 280G(b)(2) of the Code, and
all "excess parachute payment" within the meaning of section
280G(b)(1) of the Code shall be treated as subject to the
Excise Tax, unless in the opinion of tax counsel selected by
the Company's independent auditors and reasonably acceptable
to the Executive such other payments or benefits (in whole
or in part) do not constitute parachute payments, including
by reason of
Section 280G(b)(4)(A) of the Code, or such excess parachute
payments (in whole or in part) represent reasonable
compensation for services actually rendered, within the
meaning of section 280G(b)(4)(B) of the Code, in excess of
the "base amount" allocable to such reasonable compensation,
or are otherwise not subject to the Excise Tax, (ii) the
amount of the Severance Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of
(A) the total amount of the Severance Payments or (B) the
amount of excess parachute payments within the meaning of
section 280(G)(b)(1) of the Code (after applying clause (i),
above), and (iii) the value of any non-cash benefits or any
deferred payment or benefit shall be determined by the
Company's independent auditors in accordance with the
principles of sections 280G(d)(3) and (4) of the Code. For
purposes of determining the amount of the Gross-Up Payment,
the Executive shall be deemed to pay Federal income taxes at
the highest marginal rate of Federal income taxation in the
calendar year in which the Gross-Up Payment is to be made
and state and local income taxes at the highest marginal
rate of taxation in the state and locality of the
Executive's residence on the Date of Termination, net of the
maximum reduction in Federal income taxes which could be
obtained from deduction of such state and local taxes.
SECTION 9. No Mitigation. The Executive shall have
no duty to mitigate damages by seeking other employment. The
Company shall have no right of offset hereunder with respect
to any compensation or benefits received by the Executive
from or in connection with any employment subsequent to his
employment termination with the Company.
SECTION 10. Noncompetition. During the period of
the Executive's employment hereunder and for two years
thereafter, the Executive shall not, directly or indirectly,
own, manage, operate, join or control, be employed by or
participate in the ownership, management, operation or
control of, or be a consultant to or connected in any other
manner with, any business, firm or corporation which is
similar to or competes with a principal business of the
Company or its subsidiaries (a "Competitive Activity"). For
these purposes, the Executive's ownership of securities or a
public company not in excess of one percent of any class of
such securities shall not be considered to be competition
with the Company or its subsidiaries.
SECTION 11. Successors; Binding Agreement. (a) The
Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business and/or assets of
the Company, by agreement in form and substance satisfactory
to the Executive, to expressly assume 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. Failure of the Company to obtain
such assumption and agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and
shall entitle the Executive to compensation from the Company
in the same amount and on the same terms as he would be
entitled to hereunder if he terminated his employment for
Good Reason, except that for purposes of implementing the
foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination. As used
in this Agreement, "Company" shall mean the Company as
herein before defined and any successor to its business
and/or assets as aforesaid which executes and delivers the
agreement provided for in this Section 11 or which otherwise
becomes bound by all the terms and provisions of this
Agreement by operation of law.
(b) This Agreement and all rights of the Executive
hereunder shall inure to the benefit of and be enforceable
by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any
amounts would still be payable to him hereunder if he had
continued to live, all such amount unless otherwise provided
herein, shall be paid in accordance with the terms of this
Agreement to the Executive's devisee, legatee, or other
designee or, if there be no such designee, to the
Executive's estate.
SECTION 12. Notice. For the purposes of this
Agreement, notices, demands and all other communications
provided for in this Agreement shall be in writing and shall
be deemed to have been duly given when delivered or (unless
otherwise specified) mailed by United States certified or
registered mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
Howard E. Wille
291 Round Hill Road
Greenwich, CT 06831
If to the Company:
FactSet Research Corporation
One Greenwich Plaza
Greenwich, CT 06830
Attn: Corporate Secretary
or to such other address as any party may have furnished to
the others in writing in accordance herewith, except that
notices of change of address shall be effective only upon
receipt.
SECTION 13. Miscellaneous. No provisions of this
Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing
signed by the Executive and such officer of the Company as
may be specifically designated by the Board. No waiver by
either party hereto at any time of any breach by the other
party hereto 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 or
subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject
matter hereof have been made by either party which are not
set forth expressly in this Agreement. The validity,
interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of
Connecticut without regard to its conflicts of law
principles.
SECTION 14. Validity. The invalidity or
unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in
full force and effect.
SECTION 15. Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together will
constitute one and the same instrument.
SECTION 16. Arbitration. Any dispute or
controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration,
conducted before a panel of three arbitrators in New York,
New York, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be
entered on the arbitrator's award in any court having
jurisdiction; provided, however, that the Company shall be
entitled to seek a restraining order or injunction in any
court of competent jurisdiction to prevent any continuation
of any violation of the provisions of Section 10 of the
Employment Agreement and the Executive hereby consents that
such restraining order or injunction may be granted without
the necessity of the Company's posting any bond, and
provided further that the Executive shall be entitled to
seek specific performance of his right to be paid until the
Date of Termination during the pendency of any dispute or
controversy arising under or in connection with this
Agreement. The expense of such arbitration shall be borne by
the Company.
SECTION 17. Entire Agreement. This Agreement sets
forth the entire agreement of the parties hereto in respect
of the subject matter contained herein and supersedes all
prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral
or written, by any officer, employee or representative of
any party hereto; and any prior agreement of the parties
hereto in respect of the subject matter contained herein is
hereby terminated and cancelled.
IN WITNESS WHEREOF, the parties have executed this
Agreement on the date and year first above written.
FACTSET RESEARCH SYSTEMS INC.
by /s/ Ernest S. Wong
-------------------------
Name: Ernest S. Wong
Title: Senior Vice
President and
Chief Financial
Officer
EXECUTIVE
/s/ Howard E. Wille
-------------------------
Howard E. Wille
Attest:
/s/ Ernest S. Wong
--------------------
by Ernest S. Wong