EXHIBIT 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT effective as of the 17th day of January, 2002, by
and between FIND/SVP, INC., a New York corporation, having its principal
executive offices at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter referred to as the "Company"), and XXXXXX X. XXXXXXXXXX, an
individual residing at 000 Xxxxxxx Xxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000
(hereinafter referred to as the "Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company provides global business advisory and other
services; and
WHEREAS, the Company and Employee have entered into a letter agreement of
employment dated January 17, 2002 (the "Letter Agreement of Employment"),
pursuant to which the Employee is to be employed by the Company on a full-time
basis as its Executive Vice President - Strategic and Corporate Business
Development; and
WHEREAS, the Company and the Employee desire to formalize their
relationship as hereinafter set forth;
NOW, THEREFORE, in consideration of the terms and conditions hereinafter
set forth, the parties hereto agree as follows:
1. EMPLOYMENT; POSITION; RESPONSIBILITIES.
1.1 The Company hereby employs and engages the Employee to
serve as the Executive Vice President - Strategic and Corporate Business
Development of the Company. As such, Employee's primary responsibilities will
be:
(a) All sales-related strategies and initiatives, other
than with respect to traditional QCS Sales. Without limiting the generality of
the foregoing, such responsibilities shall be with respect to:
(i) Channel, Distribution and Contract sales.
(ii) A Strategic Account Program.
(iii) Outsourcing Programs.
(iv) SCRG and Live AnswerDesk.
(b) Assistance with traditional QCS sales.
(c) Identifying and evaluating acquisitions, strategic
alliances and joint venture opportunities.
(d) Operational assistance with SCRG and Live
AnswerDesk, as appropriate.
In addition thereto, as a senior executive of the Company,
Employee shall feel free to give the Company his input on any and all corporate
developments and issues. In connection therewith, Employee shall be a member of
the Company's Operating Management Group whose function is to propose
initiatives and supplemental strategies needed to move the Company to the next
level of growth and to apply the Company's overall policies and strategies.
Employee shall report to the Company's Chief Executive Officer on
all matters relating to Strategic and Corporate Business Development and Live
AnswerDesk and to the President on all matters relating to sales, marketing and
SCRG. The QCS Sales Manager shall report directly to the Company's Executive
Vice President with dotted-line reporting to Employee.
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1.2 The Employee hereby accepts said employment with the
Company on the terms and conditions herein set forth and agrees to devote his
full time, energy and skill during regular business hours exclusively to such
employment.
2. TERM OF EMPLOYMENT.
2.1 The term of employment hereunder shall commence no later
than February 19, 2002 ("Commencement Date") and shall continue until February
19, 2005 (the "Term"), except that Employee's employment shall terminate sooner
upon the occurrence of any of the following events:
(a) The death of the Employee;
(b) The incapacity of the Employee as defined below;
(c) An act or omission to act on the part of the
Employee which would constitute cause, as defined below, for the termination of
employment, and the giving of written notice to the Employee by the Company that
the Company elects to terminate the employment of the Employee;
(d) The Employee voluntarily leaves the employ of the
Company; or
(e) Resignation by the Employee for good reason as
defined below.
2.2 The term "incapacity" as that term is used in Section
2.1(b) above and Section 2.4(a) below shall be deemed to refer to and include
the absence of the Employee from his employment by reason of mental or physical
illness, disability or incapacity for a continuous period of 90 days or for a
period of 120 days in any six-month period, and the Company, at its option,
elects to treat such illness, disability or incapacity as permanent in nature.
2.3 The term "cause" as that term is used in Section 2.1(c)
above and Sections 2.4(a) and 3.6 below shall be defined as being for:
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(a) the Employee's conviction in a court of law of any
crime involving money or other property or of a felony;
(b) the Employee's failure or refusal to substantially
perform his duties hereunder, other than any such failure or refusal resulting
from his incapacity, or the Employee's failure or refusal to carry out the
directives of the Company's Chief Executive Officer or President, or the willful
taking of any action by the Employee which results in damage to the Company, or
the material default or breach by Employee of any obligation, representation,
warranty, covenant or agreement made by Employee herein; provided, however, that
the Company shall have given Employee written notice of any such cause for
termination in accordance with Sections 2.1(c) and 7 hereof and Employee shall
have failed to cure such cause (if curable) within 15 days after the date of
such notice. If the cause for termination is cured within the 15 day period, it
shall be deemed for all purposes that cause for termination has not occurred
(except that if the same or a similar event to the one resulting in notice
pursuant to this subsection 2.3(b) recurs after a cure, the right to cure the
second cause of termination, after notice with respect to the second event shall
have been given, shall expire 24 hours after the time the notice is given); or
(c) the Employee's breach of any of the provisions of
Section 4 hereof.
2.4 The term "good reason" as that term is used in Section
2.1(e) above shall be defined as the following:
(a) the diminution of Employee's position or
responsibilities and status with the Company;
(b) a relocation of the Company's principal offices and
place of Employee's employment further than 50 miles from the Employee's
principal residence;
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(c) a breach by the Company of any of its compensation
obligations under this Agreement; or
(d) a change of control of the Company, which for
purposes of this Agreement shall be defined to occur upon the acquisition by any
person, including a group (as defined in Section 13(d) of the Securities
Exchange Act of 1934, as amended), other than the Company or any of its
subsidiaries or any employee benefit plan maintained by the Company or any of
its Subsidiaries, of beneficial ownership of 30% or more of the outstanding
stock of the Company entitled to vote.
3. COMPENSATION: RELATED MATTERS.
3.1 (a) Employee shall receive a salary for his services
hereunder at the rate of $200,000 per annum, payable in accordance with the
Company's normal payroll procedure for executive employees.
(b) In addition to the Employee's salary, the Employee:
(i) May receive a bonus of up to $60,000, as
follows:
(A) up to $30,000 pursuant to the terms of
a quantitative senior management plan under development; and
(B) up to an additional $30,000, at the
discretion of the Company's Chief Executive Officer and President;
and
(ii) Employee shall receive an "override" on all
bookings generated by Employee during the first six (6) months of
the Term that are a direct result of Employee's existing business
relationships on the Commencement Date ("Bookings"), such
"override" to be computed as follows: 5% of the first $250,000 in
Bookings, 4% of Bookings between $250,000 and $750,000, and 3% of
Bookings
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above $750,000. Payment of such "override" shall be made to
Employee within 10 days after the end of the month during which
the revenues from such Bookings are received by the Company.
(c) On an annual basis beginning December 2002, the
Company shall review the Employee's performance and other relevant factors
relating to salary and bonus. Any increase in salary and/or bonus at such time
shall be at the discretion of the Company's Chief Executive Officer and
President.
3.2 The Company shall reimburse the Employee for all reasonable
expenses incurred by him in connection with the business of the Company,
provided Employee shall submit proper supporting documentation for such
expenses.
3.3 Employee shall be eligible, to the extent he qualifies, for
participation in any health or other group insurance plan of the Company and
shall also be entitled to participate in any employee benefit programs of the
Company for its key employees or for its employees generally.
3.4 Employee shall be entitled to a four (4) week paid vacation
annually, to be taken at such times as are consistent with the needs of the
Company and the convenience of the Employee, plus such other holidays, personal
days or other days as may be determined in accordance with the Company's
policies as in effect from time to time.
3.5 (a) In the event the Employee's employment by the
Company is terminated for "cause" pursuant to Section 2.1(c) hereof, or by
virtue of Section 2.1(d) hereof because the Employee voluntarily leaves the
employ of the Company, the Employee shall be entitled to (i) the compensation
provided for by Section 3.1 (a) hereof, (ii) compensation accrued pursuant to
Section 3.1 (b) hereof, and (iii) compensation based upon revenues received
pursuant to Section 3.1 (b) (ii) hereof, in each case only up until the date of
termination of his employment.
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(b) In the event the Employee's employment by the
Company is terminated for any reason other than cause or by virtue of Section
2.1(d) hereof because the Employee voluntarily leaves the employ of the Company,
the Employee (or his estate in the event such termination is due to the death of
the Employee or the Employee dies subsequent to such termination) shall be
entitled to receive (i) the compensation provided for in Section 3.1(a) hereof
for a period of six (6) months from the date of termination, and (ii) any monies
due and owing to the Employee pursuant to Section 3.1 (b) hereof.
3.6 GRANT OF STOCK OPTIONS. Effective as of the date of the
Letter Agreement of Employment, the Company has granted to the Employee a
ten-year Incentive Stock Option (the "Option") to purchase one hundred thousand
(100,000) shares of the Company's common stock, par value $.0001 per share
("Common Stock"), at the fair market value thereof on January 17, 2002, pursuant
to, and in accordance with, the terms of the Company's 1996 Stock Option Plan.
The Option shall vest to the extent of twenty thousand shares on the
Commencement Date and the balance ratably at the end of each of the first three
years of Employee's employment hereunder by the Company; provided, however, that
(a) such vesting shall accelerate in the event the Employee leaves the employ of
the Company on account of a change in control (as defined in Section 2.4(d)
above), and (b) in the event of termination of the Employee's employment by the
Company without cause, as defined in Section 2.3 above, in addition to that
portion of the Option that has vested on the date of such termination, the
portion of the Option that would vest within six (6) months of the date of such
termination shall vest as of the date of such termination.
4. RESTRICTIVE COVENANTS.
4.1 Employee acknowledges that the Company is in the
information services business and that the Employee, as an Executive Officer of
the Company, will be familiar in detail
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with the activities of the Company and will participate in formulating the
activities; that he will continue to be familiar in detail with the activities
and future plans of the Company as they continue to develop during his
employment; and that his position will give him a thorough knowledge of the
Company's customers, suppliers and servicing and marketing operations and will
place him in close and continuous contact with the Company's customers and
suppliers. Employee further acknowledges that if he were to compete with the
Company by organizing, directing, advising, assisting or becoming an employee of
any competing business entity, as defined below, he could do great harm to the
Company and would materially diminish or destroy the value to the Company of its
customer and supplier relationships and servicing and marketing arrangements.
Accordingly, during the Term of his employment by the Company and
for a period of one (1) year immediately following the termination thereof (the
Term of employment and the subsequent one (1) year period being collectively
referred to as the "Covenant Period"), unless otherwise consented to by the
Company in writing, Employee shall not engage as founder, principal, partner,
executive officer or owner of any competing business entity, as defined below;
provided, that the Employee shall be permitted during the Covenant Period to own
less than a 5% interest as a stockholder (and in no other capacity) in a company
which is listed on any national stock exchange even though it may be in
competition with the Company.
As used in this Agreement, the term "competing business entity"
shall mean any corporation, firm, partnership, association, trust, group, joint
venture, or individual proprietorship in a rapid response information-on-demand,
business research business which is directly competitive with the Company and
for which the average charge per inquiry is less than $1,000; provided that such
term will not include, and will not be deemed to prevent Employee from being
employed in, the business research field or from being employed by any company
providing
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market research, primary consumer research, or other consulting services, as
such terms are generally described in the industry, or from being employed by
customers of Employer in a non-competitive function.
4.2 Employee shall not, during the Covenant Period or
thereafter, disclose to any business entity any confidential information
regarding the customers, suppliers, marketing arrangements or methods of
operation of the Company, or any other confidential information of the Company,
except that nothing contained in this sentence shall be construed to prevent
Employee from using any general technical know-how and information that is in
the public domain or of a nature known generally throughout the industry.
4.3 Employee shall, during the Term of his employment, promptly
reveal to the Company all matters coming to Employee's attention pertaining to
the business or interests of the Company.
4.4 Unless otherwise consented to by the Company in writing,
Employee shall not, (a) for a period of one (1) year immediately following the
termination of Employee's employment, hire or solicit for hiring, on his own
behalf or on behalf of any business entity, any key employee of the Company, and
(b) for a period of one (1) year following such termination directly solicit,
contact, do business with, call upon or communicate with any customer, former
customer or prospective customer (defined as any entity for which the Company
provided a written proposal within 6 months of the termination of the
Executive's employment) of the Company for the purpose of providing rapid
response information-on-demand, business research services which is directly
competitive with the Company and for which the average charge per inquiry is
less than $1,000, or any other business engaged in by the Company at the time of
the Employee's separation from employment. This restriction will not apply to
any customer, former customer or
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prospective customer with whom Employee had no substantial contact or to any
line of business of the Company in which Employee had no involvement, during the
last two (2) years of employment with the Company.
4.5 Employee shall not, during his Term of employment or upon
termination thereof, remove from the offices of the Company, any studies,
samples, reports, plans, contracts, publications, customer lists or other
similar items nor copies or facsimiles thereof, except as the same may relate to
the performance of Employee's duties hereunder, or as otherwise authorized by
the Company.
5. RESTRICTIVE COVENANTS SEVERABLE.
The provisions of Section 4 of this Agreement contain a number of
separate and divisible covenants, all of which are included respectively in said
Section for the purpose of brevity only, and each of which shall be construed as
a separate covenant and shall be separately enforceable, and if any court of
competent jurisdiction shall determine that any part of said Section, or any
part of any sentence or paragraph thereof, or any such separate covenant therein
contained, is unduly restrictive or void, the remaining part or parts, or the
other separate covenants, shall be considered valid and enforceable,
notwithstanding the voidance of such part or separate covenant.
6. REMEDIES.
Employee acknowledges that it will be impossible to measure in
money the damage to the Company of a breach of any of the provisions of Section
4; that any such breach will cause irreparable injury to the Company and that
the Company, in addition to any other rights and remedies existing at law or
equity or by statute, shall be entitled to an injunction or restraining order
restraining Employee from doing or continuing to do any such acts and any other
violations or
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threatened violations of Section 4, and Employee hereby consents to the issuance
of any such injunction or restraining order without bond or security.
7. NOTICES.
All notices required or permitted to be given by any party
hereunder shall be in writing and delivered in person or mailed by registered or
certified mail, return receipt requested, to the other parties addressed as
follows:
(a) If to the Employee to 000 Xxxxxxx Xxxx Xxxx, Xxxxxx,
Xxxxxxxxxxx 00000;
(b) If to the Company to 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000; or to such other addresses as the parties may direct by notice
given pursuant hereto. Any notice mailed as provided above shall be deemed
completed on the date of receipt.
8. ENTIRE AGREEMENT.
The provisions hereof constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede, replace and
terminate all existing oral or written agreements concerning such subject
matter. No modification, supplement or discharge hereof shall be effective
unless in writing and executed by or on behalf of the parties hereto.
9. WAIVER.
No waiver by any party of any condition, term or provision of this
Agreement shall be deemed to be a waiver of a preceding or succeeding breach of
the same or any other condition, term or provision hereof.
10. ASSIGNABILITY.
This Agreement, and its rights and obligations may not be assigned
by Employee. This Agreement shall be binding upon the Company and its successors
and assigns.
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11. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
12. ARBITRATION.
Any dispute or controversy arising among or between the parties
hereto regarding any of the terms of this Agreement or the breach hereof, the
determination of which is not otherwise provided for herein, on the written
demand of any of the parties hereto shall be submitted to and determined by
arbitration held in the City of New York in accordance with the rules then
obtaining of the American Arbitration Association. Any award or decision made by
the arbitrators shall be conclusive in the absence of fraud, and judgment upon
said award or decision may be entered in any court having jurisdiction thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
FIND/SVP, INC.
By:
---------------------------------- ----------------------------------
Name: XXXXX XXXXX XXXXXX X. XXXXXXXXXX
Title: CHIEF EXECUTIVE OFFICER
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