EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated the 21st day of November, 2001, by and
between FIND/SVP, INC., a New York corporation, having its principal executive
offices at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000 (hereinafter referred
to as the "Company"), and XXXXX XXXXX, with an office at 000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, XX 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 desires to employ Employee on a full-time basis as
its Chief Executive Officer, and Employee desires to be so employed by the
Company, pursuant to the terms and conditions 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; Directorship.
1.1 The Company hereby employs and engages the Employee to
serve as the Chief Executive Officer of the Company, with the authority and
responsibilities appropriate and customary to such position. Employee shall
report to the Board of Directors of the Company and all executive employees of
the Company shall report to the Employee. On the date hereof, and at each annual
meeting of shareholders during the term of Employee's employment hereunder, the
Company shall use its best efforts to cause the Employee to be nominated and
elected to the Board of Directors of the Company, to serve until the next
succeeding annual meeting of shareholders of the Company and until his successor
is duly elected and qualified.
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, except for reasonable time spent for trade,
civic and charitable activities, as a member of a board of directors of a
business entity which is not competitive with the Company, and to attend to
personal business, so long as such activities do not interfere with the
performance of the Employee's responsibilities as a senior executive of the
Company in accordance with this Agreement.
2. Term of Employment.
2.1 The term of employment hereunder shall commence as of the
date hereof (the "Commencement Date") and shall continue until November 20th,
2004 (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 in
accordance with Section 2.3 below that the Company elects to terminate the
employment of the Employee, which notice shall state in reasonable detail the
reasons for such termination;
(d) the Employee terminates his employment for "Good
Reason" (as defined below), upon a "Change of Control" (as defined below) or
without Good Reason; or
(e) the Company terminates the Employee's employment
without cause.
2.2 The term "incapacity" as that term is used in Section 2.1
(b) above shall be deemed to refer to and include the inability of the Employee
to perform his normal duties hereunder by reason of mental or physical illness,
disability or incapacity for a continuous period of 120 days or for a period of
180 days in any one year 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 shall be
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defined as being for:
(a) The Employee's gross negligence or willful
misconduct in bad faith in the discharge of his duties and responsibilities
hereunder or the Employee's refusal (provided he is not incapacitated as per
paragraph 2.2 above) to comply substantially with the Company's reasonable
written directions, such reasonable directions being consistent with the
Employee's duties under paragraph 1 above; provided, however, that the Company
shall have given the Employee 20 days prior written notice that the Company
elects to terminate the employment of the Employee, which notice shall state the
reasons for such termination, and during the 20-day period following receipt by
the Employee of such notice, the Employee shall have an opportunity to cure the
alleged conduct and to attend a special meeting of the Board of Directors called
for the purpose of reviewing the Company's proposed termination of the Employee;
or
(b) The conviction of the Employee in a court of law
of any crime or offense involving money or other property or of a felony; or
(c) The misappropriation by the Employee of Company
assets.
3. Compensation: Related Matters.
3.1 (a) Employee shall receive salary for his services at
the rate of $100,000 per annum, subject to increases by the Board of Directors
of the Company, from time to time, payable in accordance with the Company's
normal payroll procedures for executive employees.
(b) At the discretion of the Board of Directors of
the company, the Employee shall be eligible to receive an annual bonus.
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 supporting documentation for such
expenses consistent with the Company's policies.
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
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employee benefit programs of the Company for its key employees or for its
employees generally, including without limitation, any stock option or purchase
plan and any profit-sharing or pension plan. The Company shall provide the
Employee and his immediate family members with Blue Cross/Blue Shield or
equivalent and major medical coverage.
3.4 Employee shall be entitled to a five (5) week paid
vacation per year during the Term, to be taken at such times as are consistent
with the needs of the Company and the convenience of the Employee. Such vacation
period may be extended beyond five weeks if consistent with Company policy.
3.5 The Company shall provide, maintain and insure an
automobile for Employee's use (the "Automobile").
3.6 (a) In the event the Employee's employment by the Company
is terminated for "cause" pursuant to Section 2.1(c) hereof, or because the
Employee voluntarily leaves the employ of the Company without Good Reason or on
account of a "Change in Control" as set forth in Section 3.6(b) below, the
Employee shall be entitled to the compensation provided for by Section 3.1 only
up until the date of termination of his employment.
(b) In the event the Employee leaves the employment of the
Company (A) for Good Reason, as defined below, or (B) on account of a Change in
Control (as defined in Section 4 hereof), then the Employee shall be entitled to
receive the compensation and benefits (but only to the extent legally allowable)
provided for in Sections 3.1, 3.3 and 3.5 hereof, for the balance of the Term;
provided, however, that if such termination occurs at a time when there is less
than two years left in the Term, the compensation and benefits (but only to the
extent legally allowable) provided for in Sections 3.1, 3.3 and 3.5 shall
continue for a period of two (2) years from the date of termination. Employee
shall have no obligation to mitigate payments and benefits received, and shall
be entitled to the compensation provided for herein even if Employee is employed
elsewhere. For purposes hereof, "Good Reason" shall mean the following: (i) the
dimunition of Employee's
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position, duties, responsibilities and status with the Company as contemplated
hereunder or any removal of the Employee from any positions or offices the
Employee held as contemplated hereunder, except in connection with the
termination of the Employee's employment by the Company for Cause or incapacity;
(ii) the failure of the Company to assign to the Employee duties consistent with
his position, duties, responsibilities and status with the Company as
contemplated hereunder; or (iii) a relocation of the Company's principal offices
and place of Employee's employment outside of Manhattan or further than 25 miles
from the Employee's principal residence.
(c) In the event that the Company terminates the
Employee's employment for "cause," and a court of law or other tribunal
ultimately determines that such termination was without cause, the Employee
shall be entitled to receive double the amount of compensation provided for in
Section 3.1 hereof from the date of termination until the end of the Term.
(d) In the event the Employee's employment by the Company
is terminated for reason other than Cause or the Employee voluntarily leaves the
employ of the Company other than for reasons stated in Section 3.6(b), the
Employee shall be entitled to receive the compensation and benefits (but only to
the extent legally allowable) provided for in Sections 3.1 and 3.5 hereof for
the balance of the Term, shall have no obligation to mitigate damages, and shall
be entitled to the compensation provided for herein even if there is less than
one year left on the Term, the compensation and benefits (but only to the extent
legally allowable) shall continue for a period of one year from the date of
termination.
3.7 Upon the Commencement Date, the Company shall grant to the
Employee a ten-year Non-Incentive Stock Option (the "Option") to purchase seven
hundred thousand (700,000) shares of the Company's common stock, par value
$.0001 per share (as the same may be reduced by 50% of any stock options granted
to Xxxxxxx Xxxxx in the event he is employed by the Company
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as an employee or consultant) at a price of $.41 per share, pursuant to the
terms of the Company's 1996 Stock Option Plan (which has been amended to
increase the number of shares covered by such Plan to facilitate the issuance of
the Options to be granted hereunder) or a new stock option plan to be adopted by
the Company. The Option shall vest ratably at the end of each of the first three
years of the Term, and such vesting shall accelerate in the event the Employee
leaves the employ of the Company for Good Reason (as defined in Section 3.6
hereof), or on account of a Change in Control (as defined in Section 4 hereof)
in the event that the Employee's employment herein is terminated by the Company
without Cause (pursuant to Section 2.16 hereof), or upon the death of the
Employee. In all of such cases, the holder of the Option shall have one year to
exercise the Option. The Company agrees to register the shares underlying the
Option as soon as praticable following the Commencement Date.
4. Change of Control.
4.1 For the purpose of this Agreement, a "Change of Control"
shall mean:
(a) The acquisition by any person, entity or "group,"
within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934 (the "Exchange Act") (excluding, for this purpose, Employee, any
group (as defined above) of which Employee is a member, the Company or its
subsidiaries, or any employee benefit plan of the Company or its subsidiaries
which acquires beneficial ownership of voting securities of the Company) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of more than 30% of either the then outstanding shares of common
stock of the Company or the combined voting power of the Company's then
outstanding voting securities entitled to vote generally in the election of
directors; or
(b) Individuals who, as of the date hereof,
constitute the Board (as of the date hereof the "Incumbent Board") cease for any
reason to constitute at least a majority of the
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Board, provided that any person becoming a director subsequent to the date
hereof whose election, or nomination for election by the Company's shareholders,
was approved by a vote of at least a majority of the directors then comprising
the Incumbent Board (other than an election or nomination of an individual whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election of the Directors of the Company, as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) shall be, for purposes of this Agreement, considered as though
such person were a member of the Incumbent Board.
5. Restrictive Covenants.
5.1 Employee acknowledges that the Company is in the
information services business and that the Employee, as Chief Executive Officer
of the Company, will be familiar in detail 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.
Accordingly, during the Term of his employment by the Company
and for a period of two years immediately following the termination thereof (the
Term of employment and the subsequent one year period being collectively
referred to as the "Covenant Period") unless otherwise consented to by the
Company in writing, Employee shall not, within any city, town or county in which
the Company or any of its affiliates conducts or does any business, directly or
indirectly, either for himself or as an officer, director, stockholder, partner,
associate, employee, consultant, agent, independent contractor, or
representative, render services to any other business or business entity, as
defined below (except a parent, subsidiary or affiliate of the Company), which
is engaged directly or indirectly in any line of business which is competitive
with any line of business
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in which the Company may be engaged at the time of termination of Employee's
employment hereunder; provided, however the restrictive provisions of this
paragraph shall not apply in the event the Employee is terminated by the Company
without Cause or the Employee resigns for Good Reason or upon a Change in
Control and the Company is paying the Employee pursuant to Section 3.6 above;
provided, further, however, that the Employee shall be permitted to own less
than a 5% interest as a stockholder (and in no other capacity) in any public
company even though it may be in competition with the Company.
As used in this Agreement, the term "business entity" shall
include, but not be limited to, any corporation, firm, partnership, association,
trust, group, joint venture, or individual proprietorship.
5.2 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 knowhow and information that is in the
public domain, any information of a nature known generally throughout the
industry, any information that prior to being obtained by the Employee from the
Company was in the possession of the Employee, or information that is
subsequently disclosed to the Employee by a third party not under any obligation
to retain such information in confidence.
5.3 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.
5.4 Unless otherwise consented to by the Company in writing,
Employee shall not, for a period of two years immediately following the
termination of Employee's employment, solicit for hiring, on his own behalf or
on behalf of any business entity, any key employee of the
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Company.
5.5 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.
6. Restrictive Covenants Severable.
The provisions of Section 5 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.
7. 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
5; that any such breach will cause irreparable injury to the Company and that in
addition to any other rights and remedies existing at law or equity or by
statute, the Company 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 threatened violations of Section 5, and Employee hereby consents
to the issuance of any such injunction or restraining order without bond or
security.
8. 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
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the other parties addressed as follows (if mailed, it shall be deemed delivered
three business days after being mailed):
(a) If to the Employee to625 Avenue of the Americas, Xxx Xxxx,
XX 00000; with a copy to Xxxxxxx X. Xxxxxx, Esq., Xxxxxx Xxxxxx & Xxxxxx LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 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.
9. 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.
10. 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.
11. 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.
12. Governing Law.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
13. 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
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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.
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
Title:
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