1
EXHIBIT 10.22
EMPLOYMENT AGREEMENT BETWEEN
THE SOURCE INFORMATION MANAGEMENT COMPANY
AND XXXXX X. XXXXXX
This Agreement is made and entered into as of this 3rd day of January
2001, by and between THE SOURCE INFORMATION MANAGEMENT COMPANY, a Missouri
corporation ("The Source" or "Company"), and XXXXX X. XXXXXX ("Xxxxxx").
WHEREAS, Xxxxxx has made significant contributions to The Source and
the Board of Directors desires that Xxxxxx continue to be employed by the
Company under the terms and conditions set forth in this Employment Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Employment Period. The Company hereby employs Xxxxxx, and Xxxxxx hereby
accepts such employment from the Company, on the terms and conditions set forth
in this Agreement, for the period commencing on January 1, 2001 and ending on
January 31, 2004 (the "Employment Period"); provided that the Employment Period
will automatically be extended on January 31, 2004 and each January 31st
thereafter for additional one-year periods, unless either party shall, at least
90 days before such date, provide notice to the other party that the Employment
Period will not be extended, or unless his Agreement is terminated as set forth
in paragraph 5 of this Agreement.
2. Position and Duties. Xxxxxx shall serve as Executive Vice-President,
information Services reporting to the President of the Company, with such duties
as are customarily assigned to such position and such other duties and
responsibilities and in such other capacities as may be assigned to him from
time to time by the Board of Directors or the President of the Company. Xxxxxx
shall serve the Company faithfully, loyally and to the best of his abilities,
and shall devote his full working time and efforts to the business.
The parties understand and agree that this employment shall require that Xxxxxx
relocate from High Point, North Carolina to within commuting distance of New
York City.
3. Compensation.
(a) The Company agrees to pay Xxxxxx an annual base salary of $204,000,
unless otherwise agreed to by Xxxxxx and the Company, or unless increased by the
Board of Directors in its discretion. Such compensation shall be paid in
accordance with the Company's usual payroll practices for similarly situated
employees.
(b) In addition to Xxxxxx'x base salary, Xxxxxx shall also be eligible
for a bonus, to be awarded in the discretion of the Compensation Committee of
the Board of Directors. The bonus amount shall be between 0 and $100,00.00, with
payments, if any, to be made based on a schedule to be determined by Xxxxxx and
the President of the Company and approved by the Compensation Committee.
4. Expenses; Benefits; Options.
(a) The Company will pay directly, or reimburse Xxxxxx, for such items
of reasonable and necessary expense as are incurred by Xxxxxx in carrying out
his duties under this Agreement. All such expenses paid by Xxxxxx will be
promptly reimbursed, provided Xxxxxx complies with the policies, practices and
procedures of the Company for timely submission of expense reports, receipts and
similar documentation of such expenses.
(b) During the Employment Period, Xxxxxx shall be entitled to
participate in all benefit programs of the Company to the same extent as other
key executives. Subject to applicable eligibility requirements, Xxxxxx and/or
his family, as the case may be, shall be entitled to participate in, and shall
receive all benefits under, all welfare benefit plans, practices, policies and
programs provided by the Company to the same extent as other key executives,
including, but not limited to any comprehensive medical and dental plan,
retirement plan and profit sharing programs the Company may provide to its key
executives from time to time.
(c) The Company will provide Xxxxxx, subject to applicable waiting
periods, if any, with term life insurance in the amount of One Million Dollars
($1,000,000.00). The Company will also maintain a term life insurance policy on
Xxxxxx in the amount of One Million Dollars ($1,000,000.00) for the benefit of
the Company. Xxxxxx will cooperate with the Company in obtaining such policies.
(d) The Company will provide Xxxxxx with four (4) weeks of vacation per
year of this Agreement.
(e) The Company will, on the date of execution of this Agreement, xxxxx
Xxxxxx stock options under the Company's Omnibus Stock Option Plan to purchase
50,000 shares of the Company's common stock at an
2
exercise price equal to the last sale price at which such shares are
sold as reported by Nasdaq as of the market close on the date of
execution of this Agreement. Such options shall vest with respect to
16,667 shares on each of February 1, 2002 and 2003 and 16,666 on
February 1, 2004 but shall vest immediately in the circumstances
provided in the Company's standard form of option agreement.
5. Termination of Employment. This Employment Agreement may be terminated at
any time prior to the expiration of the Employment Period set forth in paragraph
1, or during any extended period of employment, upon the occurrence of any of
the following events:
(a) By mutual written agreement of the Company and Xxxxxx to terminate
Xxxxxx'x employment with the Company;
(b) Immediately upon Xxxxxx'x death;
(c) At the Company's option, by action of the Company's Board of
Directors on thirty (30) days written notice, in the event of Xxxxxx'x
disability, defined as illness, injury, disease or other physical or mental
incapacity resulting in Xxxxxx'x failure to substantially perform his duties
under this Agreement for a period of one hundred twenty (120) consecutive days.
The termination of employment shall be effective on the 30th day after receipt
by Xxxxxx of such notice ("Disability Termination Date"), unless Xxxxxx is able
to, and does, return to full-time performance of his duties before that date.
(d) By the Company, immediately upon written notice to Xxxxxx, for
cause, which shall include: (1) conviction of a felony; (2) engaging in acts of
fraud, dishonesty, stealing, embezzlement or misappropriation of funds; (3)
excessive, unexcused absenteeism from work (other than for injury, illness or
incapacity covered under subparagraph (c) above); (4) violation of any of the
provisions of paragraph 6 of this Agreement, or other material breach or failure
by Xxxxxx to perform his duties and obligations under this Agreement. The
failure of the Company to set forth any fact or circumstance in a notice of
termination for cause shall not constitute a waiver of a right to assert, and
shall not preclude the Company from asserting such fact or circumstance in or
attempt to enforce any right under or provision of this Agreement.
6. Covenants of Xxxxxx. Xxxxxx covenants to and agrees with the Company as
follows:
(a) Except as required in Xxxxxx'x duties to the Company, Xxxxxx will
not disclose or divulge to any person, entity, firm or company, or use for
Xxxxxx'x benefit or the benefit of any other person, entity, firm or company,
directly or indirectly, as the same may exist during the term of Xxxxxx'x
employment by the Company or at the date of such termination, any knowledge,
information, business methods, techniques, devices, customer lists, supplier
lists, business plans, software, programs or other data of the Company, without
regard to whether all of the foregoing matters will be otherwise deemed
confidential, material or important, the parties stipulating that as between
them, the same are important, material and confidential and greatly affect the
effective and successful conduct of the business and the goodwill of the
Company.
(b) During the term of Xxxxxx'x employment with the Company and
thereafter for a period of two (2) years, Xxxxxx will not, in any manner,
directly or indirectly with or through any other person or entity:
(i) Solicit, divert, take away or interfere with any of the
customers, trade, suppliers, business, patronage, employees or agents of the
Company, or employ any person who was an employee of the Company at any time
during the two year period prior to the date of such employment; or
(ii) Engage, directly or indirectly, either personally or as
an employee, partner, associate, officer, manager, agent, advisor, associate,
consultant or otherwise, or by means of any corporate or other entity or device,
in competition with the business of the Company in the United States or Canada
as such business exists on the date of Xxxxxx'x cessation of employment, or as
to which the Company has formulated definitive plans, of which Xxxxxx has
knowledge, to enter into during the term of this Agreement or as of the date of
the cessation of Xxxxxx'x employment.
(c) It is the intention of the parties to restrict the activities of
Xxxxxx under paragraph 6(b) (ii) only to the extent necessary for the protection
of the business interests of the Company, and the parties specifically covenant
and agree that should any of the provisions thereof, under any set of
circumstances, be determined by a court having jurisdiction to be too broad for
that purpose or invalid or unenforceable for any reason, it is the intention and
agreement of the parties that such provisions shall be so interpreted and
applied by such court in such a narrower sense as shall be necessary to make the
same valid and enforceable to the maximum extent possible, consistent with the
intent of the parties expressed in this Agreement.
(d) The covenants and agreements of Xxxxxx contained in paragraph 6(a)
and (b) shall be construed as independent of any other provision of this
Agreement and given for valuable independent consideration, and the
3
existence of any defense, claim or cause of action against the Company, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of such covenants and agreements.
7. Documents. Upon the cessation of Xxxxxx'x employment with the
Company, for any reason, all documents, records, software, programs, models,
financial statements and projections, notebooks, invoices, statements and
correspondence, including copies thereof, relating to the business of the
Company then in Xxxxxx'x possession or under Xxxxxx'x control, whether prepared
by Xxxxxx or others, will be left with or returned to the Company, it being
recognized and agreed that each of the foregoing constitutes property of the
Company.
8. Remedies.
(a) At the expiration of the initial term, or any extension thereof, or
upon the termination of this Agreement for any of the reasons other than death
or disability set forth in paragraph 5, unless otherwise agreed by the Company
and Xxxxxx, the obligation of the Company to pay further compensation to Xxxxxx
shall cease, provided, however, that all other obligations hereunder (including
the obligation of the Company to pay to Xxxxxx compensation earned by Xxxxxx
through the date of such termination) of either party to the other party at the
time of such expiration or termination shall not be affected by such termination
or expiration;
(b) If Xxxxxx'x employment under this Agreement terminates by reason of
Xxxxxx'x death or disability prior to January 31, 2004, (i) the Company shall
pay any earned but unpaid portion of Xxxxxx'x Annual Base Salary as of the date
of his death or Disability Termination Date, to Xxxxxx or his estate or legal
representative, as applicable, in a lump sum in cash within 30 days after the
date of his death or Disability Termination Date, and (ii) the Option shall vest
with respect to all shares as to which it has not been exercised and shall
terminate 90 days after the date of his death or Disability Termination Date. In
addition, if Xxxxxx'x employment is terminated by reason of disability, the
Company will continue to pay to Xxxxxx until the earlier of January 31, 2004 or
the date of Xxxxxx'x death, cash in an amount equal to Xxxxxx'x Annual Base
Salary, less any amounts received by Xxxxxx under any disability insurance
coverage maintained for Xxxxxx by the Company, such payments to be made in
accordance with the Company's usual payroll practices. The Company shall have no
further obligations under this Agreement.
(c) It is expressly agreed that the breach or evasion of the terms of
this Agreement by Xxxxxx will result in immediate and irreparable injury to the
Company, for which the payment of money damages would be an inadequate remedy,
and will authorize recourse to the equitable remedies of injunction and specific
performance, as well as to all other legal or equitable remedies to which the
Company may be entitled. No remedy conferred by any of the specific provisions
of this Agreement is intended to be exclusive of any other remedy, and each and
every remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity, by statute or
otherwise. The election of any one or more remedies by the Company shall not
constitute a waiver of the right to pursue other available remedies.
(d) In the event the Company or Xxxxxx institutes a suit at law or in
equity for the purpose of enforcing the provisions of this Agreement, the
prevailing party in any such action shall be entitled to recover reasonable
attorneys' fees and expenses and related costs and expenses, in addition to any
other judgment, award or remedy to which the prevailing party may be entitled.
9. Severability. All agreements and covenants herein contained are severable and
the invalidity or unenforceability of any other provision shall not effect the
validity or enforceability of any other provision in this Agreement. If any
provision in this Agreement shall be held invalid or unenforceable in part, the
remaining portion of such provision, together with all other provisions in this
Agreement shall continue in full force and effect and, subject to subparagraph
6(c), shall be interpreted as if such invalid agreements or covenants were not
contained herein.
10. Waiver or Modification. No waiver, amendment or modification of this
Agreement or any portion hereof shall be valid unless in writing and duly
executed by the party to be charged therewith. The failure of the Company or
Xxxxxx to exercise or otherwise act with respect to any of its or his rights
hereunder in the event of a breach of any of the terms or conditions hereof by
the other shall not be construed as a waiver of such breach, nor prevent the
Company or Xxxxxx, as the case may be, from thereafter enforcing strict
compliance with any and all of the terms and conditions hereof.
11. Notices. All notices, requests, demands, consents or other communications
hereunder shall be in writing and shall be deemed to have been given if
delivered personally or mailed by certified, registered or Express mail, return
receipt requested, or next business day courier service (such as Federal
Express), if to the Company, to:
The Source Information Management Company
Attention: Xxxxx Xxxxxx
00 X. 00xx Xxxxxx
4
Suite 3110
New York, New York, 10016
and, if to Xxxxxx, to:
Xxxxx X. Xxxxxx
-----------------
-----------------
-----------------
or to such other address to which a party gives notice to the other party in
accordance with this paragraph 11. Notices and communication shall be effective
when actually received by the addressee.
12. Construction.
(a) This Employment Agreement shall be governed by and construed under
the laws of the State of Missouri, provided that the sole and absolute venue for
purposes of suit shall be St. Louis County, Missouri, notwithstanding the place
of execution hereof or the performance of any acts under this Agreement and any
other jurisdiction.
(b) For purposes of paragraph 6, references to the Company shall
include all companies or other entities controlled by, controlling, or under
common control with the Company, whether such control is exercised through
ownership or other direction of the management or policies of any such company
or entity, and all licensees of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
THE SOURCE INFORMATION
MANAGEMENT COMPANY
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
------------------------- --------------------------
Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx
President
