Exhibit 10.18
SEPARATION AGREEMENT
SEPARATION AGREEMENT ("Agreement") made and executed as of December
31, 2003 by and between FIND/SVP, INC., a New York corporation having its
principal executive offices at 625 Avenue of the Americas, New York, N.Y. 10011
(the "Company"), and XXXXXX X. XXXXXX, residing at 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, X.X. 00000 ("Xxxxxx").
WITNESSETH
WHEREAS, Xxxxxx was employed by the Company pursuant to that certain
Employment Agreement (Amended and Restated as of November 21, 2001), as amended
by Amendment No. 1 to Employment Agreement (Amended and Restated as of November
21, 2001), dated as of December 31, 2002 (the "Employment Agreement); and
WHEREAS, the Company and Xxxxxx have mutually agreed to terminate
Xxxxxx'x employment as an officer of the Company as of December 31, 2003 (the
"Termination Date"); and
WHEREAS, the Company and Xxxxxx desire that Xxxxxx provide
consulting services; and
WHEREAS, the parties desire to memorialize certain agreements
between them in regard to Xxxxxx'x termination from the Company.
NOW, THEREFORE, in consideration of the premises and mutual promises
herein contained, it is agreed as follows:
1. TERMINATION OF EMPLOYMENT AGREEMENT. The parties acknowledge and
agree that this Agreement terminates and supercedes all of the provisions of the
Employment Agreement as well as any and all other employment agreements between
the Company and Xxxxxx, including but not limited to the employment agreement
between the Company and Xxxxxx dated May 7, 1991 and amended June 26, 1991,
amended and restated October 5, 1998 and amended November 15, 2000; provided,
however, that the provisions of 5 (Restrictive Covenants), 6 (Restrictive
Covenants Severable) and 7 (Remedies) contained in the Employment Agreement
which, by reference thereto, are incorporated herein as though fully set forth
herein, shall survive the termination of the Employment Agreement and remain
binding on Xxxxxx for the benefit of, and be enforceable by, the Company. For
purposes of Sections 5, 6 and 7 of the Employment Agreement, the "Covenant
Period", as used therein, shall refer to the Term of Xxxxxx'x affiliation with
the Company, including Xxxxxx'x engagement as a consultant pursuant to Section 3
of this Agreement (including any additional periods of engagement of Xxxxxx as a
consultant agreed upon by the parties pursuant to Section 3.C), and a period of
two (2) years immediately following the termination thereof.
2. PAYMENTS AND BENEFITS TO XXXXXX.
In full settlement of all Claims as hereinafter defined in
Section 15.A ("Release of the Company"), and in consideration of the provisions
contained herein or incorporated by reference from the Employment Agreement,
including, without limitation, confidentiality and non-competition, the Company
shall provide the following to Xxxxxx (hereinafter collectively referred to as
"Retirement Benefits"), provided that Xxxxxx is not in breach of his
representations, warranties, covenants or obligations under this Agreement or
Sections 5, 6 and 7 of the Employment Agreement:
A. from the date hereof through September 30, 2004, the Company
shall continue to pay Xxxxxx his base salary at the rate of $259,954 per annum
payable in accordance with the Company's normal payroll procedures for executive
employees, subject to withholding for applicable taxes and other amounts;
provided, however, that Xxxxxx will not be entitled to any compensation for
vacation or personal days that may accrue during such period;
B. participation, to the extent Xxxxxx qualifies, in any health
or other group insurance plan of the Company and participation in any employee
benefit programs of the Company for its key employees generally, in each case
until September 30, 2004; provided, however, that the Company shall provide
Xxxxxx and his immediate family members with medical coverage and dental
coverage until July 24, 2010, except that in the event that the Company is no
longer able to provide medical coverage or dental coverage to Xxxxxx, the
Company will procure replacement medical coverage or dental coverage, as the
case may be, with terms and coverage limitations substantially similar to those
received by Xxxxxx as of the date hereof;
C. payment by the Company of $456 toward the monthly premium
for Xxxxxx'x disability insurance through December 31, 2005; and
D. at the Company's expense, access to the car currently leased
by the Company for use by Xxxxxx until March 31, 2005.
3. CONSULTING.
A. During the one year period ending December 31, 2004 (the
"Consulting Period"), Xxxxxx will provide the Company no fewer than 80 hours of
consulting services without compensation therefor. Xxxxxx will, as soon as
practicable after the last day of each month of the Consulting Period (but in no
event later than the tenth day following the last day of each month of the
Consulting Period), provide the Company with a written record (a "Time Sheet")
of the number of hours of consulting services provided by Xxxxxx during such
month, which record shall include a brief description of the nature of each of
the services performed and the amount of time devoted to each of such services.
To the extent mutually agreed upon by Xxxxxx and the Company, such consulting
services shall include Xxxxxx continuing to oversee the activities of the
Company's Marketing Department by participating in its weekly meetings through
March 15, 2004.
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B. The Company hereby engages Xxxxxx to provide 300 additional
hours of consulting services during the remainder of the Consulting Period upon
completion of the 80 hours of consulting services described in Section 3.A. In
connection with such engagement, Xxxxxx shall continue to provide Time Sheets as
described in Section 3.A. Compensation for such services shall consist of a fee
(the "Consulting Fee") which in no event shall exceed $40,000, to be paid in
installments of $10,000 (subject to withholding for applicable taxes and other
amounts to the extent required by applicable law) on or before the first normal
payroll day following the end of each fiscal quarter.
C. The Company may engage Xxxxxx to provide consulting services
in addition to those described in Sections 3.A and 3.B on such terms and for
such period as the parties may mutually agree.
D. To facilitate Xxxxxx'x performance of his duties as a
consultant, the Company will
(i) permit Xxxxxx to continue to use the office he used
immediately prior to the date of this Agreement until February 29, 2004. The
Company will not terminate the employment of Xxxx Xxxxxxxxxx prior to February
15, 2004. The Company will provide Xxxxxx with either (x) an office, if
reasonably possible, or (y) a workstation until the earlier of (a) the
termination of Xxxxxx'x consulting services pursuant to Sections 3.A and 3.B
above or (b) December 31, 2004;
(ii) provide Xxxxxx with a laptop computer as soon as is
reasonably practicable for use during the Consulting Period, which laptop
computer Xxxxxx may retain upon completion of the employee's consulting services
pursuant to Sections 3.A and 3.B;
(iii) pay Xxxxxx'x World Presidents' Organization
membership dues for 2004;
(iv) reimburse Xxxxxx for the documented cost of his home
office Internet connection, provided that such reimbursement shall not exceed
$150 for any month, until the termination of Xxxxxx'x consulting services
pursuant to Sections 3.A and 3.B above; and
(v) permit Xxxxxx to use the Company's car service during
the one-year period ending December 31, 2004, provided that the expense incurred
in connection therewith shall not exceed $9,400 in the aggregate during such
period.
X. Xxxxxx will use his commercially reasonable efforts as
quickly as is practicable to organize and provide to and review with the
appropriate persons all of Xxxxxx'x files and records relating to the Company's
past, present and future operations, but shall not be required to spend in
excess of fifty (50) hours in connection therewith. Xxxxxx'x time spent
performing the obligations of this Section 3.E will not be included in
determining the amount of time Xxxxxx has devoted to the consulting services
described in Sections 3.A, 3.B and 3.C above.
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4. DIRECTORSHIP. Commencing January 1, 2004, while Xxxxxx serves as
a director on the Board of Directors of the Company, Xxxxxx will be entitled to
receive compensation for his service as a director on the Board of Directors of
the Company commensurate with that received by the Company's other non-employee
directors. Xxxxxx'x time spent performing his obligations as a director will not
be included in determining the amount of time Xxxxxx has devoted to the
consulting services described in Sections 3.A, 3.B and 3.C above.
5. TITLE. During the Consulting Period, Xxxxxx'x title shall be
"Founder & Director", unless and until such time as Xxxxxx ceases to be a member
of the Company's Board of Directors, at which time Xxxxxx'x title shall be
"Founder".
6. STOCK MATTERS.
A. (i) Xxxxxx may enter into a written plan for trading
securities as described in Rule l0b5-1(c)(1)(i)(A)(3) promulgated under the
Securities Exchange Act of 1934, as amended (the "Rule 10b5-1 Plan"), which plan
will contain the limitations set forth in Exhibit A attached hereto.
(ii) Notwithstanding the provisions of the Rule 10b5-1
Plan or otherwise, Xxxxxx agrees that he will not, and will not permit any
beneficial owner or any of his agents, affiliates, successors, heirs, personal
representatives or assigns to, transfer or sell more than 250,000 shares of
Company common stock (subject to appropriate adjustment to account for any stock
split, stock dividend or similar event affecting shares of Company common stock
generally) during any one-year period until the later of (a) the termination of
Xxxxxx'x engagement as a consultant to the Company pursuant to Section 3 or (b)
December 31, 2006; provided, however, that the limitations of this Section
6.A(ii) shall no longer apply upon the occurrence of a Change of Control (as
such term is defined in Section 4 of the Employment Agreement).
X. Xxxxxx may not at any time sell or transfer a block of
10,000 or more shares of Company common stock (subject to appropriate adjustment
to account for any stock split, stock dividend or similar event affecting shares
of Company common stock generally), unless:
(i) Such sale or transfer is pursuant to the terms of the
Rule l0b5-1 Plan; or
(ii) At least ten (10) trading days prior to such sale or
transfer Xxxxxx shall have provided the Company with written notice of Xxxxxx'x
intention to sell or transfer such stock, which notice shall indicate the number
of shares to be sold or transferred and the general terms, to the extent known
or knowable, of such sale or transfer. Upon receipt of such notice, the Company
may, in its sole discretion, choose to purchase or place the block of shares
described in such notice on terms substantially similar to those described in
such notice until ten (10) trading days following the date of receipt of such
notice. If the Company does not elect to purchase or place the block of shares
described in such notice, Xxxxxx may effect the sale
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or transfer of such block of shares on the terms (except that such sale may be
effected at a lower price if necessary as a result of market conditions at the
time of such sale) and at the time described in such notice.
C. Employee recognizes that his breach of the limitations set
forth in Sections 6.A and 6.B above would result in a material breach of this
Agreement. As it would be difficult to quantify the damages suffered by the
Company from such breach, in the event of such breach, Employee agrees to pay to
the Company, as liquidated damages, an amount equal to the gross proceeds of any
and all sales of shares effected in violation of any of the limitations set
forth in Sections 6.A or 6.B above.
D. The Company and Xxxxxx hereby agree that Xxxxxx holds the
following options to purchase Company common stock issued under the Company's
1996 Stock Option Plan and/or the Company's 2003 Stock Incentive Plan (the
"Plans"):
(i) options to purchase 20,000 shares of Company common
stock at $1.062 per share expiring July 10, 2010;
(ii) options to purchase 50,000 shares of Company common
stock at $0.625 per share expiring February 13, 2011; and
(iii) options to purchase 15,000 shares of Company common
stock at $3.6875 per share expiring March 9, 2010.
Effective as of the date of this Agreement, all of Xxxxxx'x rights and interests
in the options described in clause (iii) are hereby terminated and shall have no
further effect. Xxxxxx hereby agrees that, subject to the applicable terms of
the Plans and any applicable option agreements, Xxxxxx may, in his discretion,
exercise those options described in clause (i) above and clause (ii) above,
provided that, in the event any or all of such options have not been exercised
on or before the date that is ninety (90) days following the date of this
Agreement, all of Xxxxxx'x rights and interests in such options shall be
terminated as of such date and shall have no further effect.
7. DEFERRED COMPENSATION AGREEMENT. The parties hereby acknowledge
and agree that commencing January 1, 2004, in satisfaction of the parties'
obligations under the Deferred Compensation and Salary Continuation Agreement
between the Company and Xxxxxx dated June 30, 1984, Xxxxxx shall receive such
payments as are set forth on Exhibit B attached hereto.
8. SPLIT DOLLAR LIFE INSURANCE. Xxxxxx is the insured party under
Northwestern Mutual Life Insurance Policy #00-000-000 dated August 15, 1994
("Policy #1") and Northwestern Mutual Life Insurance Policy #00-000-000 dated
January 11, 1995 ("Policy #2"), each providing a benefit payable upon death of
$500,000. The Company and Xxxxxx agree that (i) on or before December 31, 2003,
the Company has or will have transferred Policy #1 to Xxxxxx and (ii) on or
before March 15, 2004, the Company will transfer Policy #2 to Xxxxxx. The
parties agree that in connection with each of the transfers set forth in the
preceding sentence, (a) the Company will be entitled to retain the excess cash
value, if any, of Policy #1 and Policy
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#2, and (b) the Company will have paid the remaining premium due on each of such
policies prior to their respective transfers, but in no event shall the Company
be obligated to pay any amount or incur any further obligation.
9. BOOK COPYRIGHT. As soon as practicable following execution of
this Agreement, the Company shall execute such documents as are reasonably
requested by Xxxxxx to effect the transfer of ownership of all rights in the
book, "The Art of Being Well Informed" (the "Book"). The Company agrees that if
Xxxxxx publishes an update of the Book, such publishing will not constitute a
violation of Section 5 of Employment Agreement.
10. NO RE-EMPLOYMENT. Except as otherwise specifically provided
herein, Xxxxxx acknowledges and agrees that the Company and any of its
subsidiaries, affiliates or related companies are under no legal or contractual
duty to re-employ, rehire or retain him in any capacity and that he will not
apply for re-employment with the Company or any of its subsidiaries, affiliates
or related companies in any capacity. The Company acknowledges that Xxxxxx'x
consulting and other obligations pursuant to this Agreement do not constitute
full- time employment, and Xxxxxx may simultaneously provide services as an
employee, consultant or otherwise to any person or entity without any reduction
in his benefits hereunder, provided that the provision of such services does not
violate the terms of Section 5 of the Employment Agreement.
11. NO DENIGRATION.
X. Xxxxxx shall not denigrate or defame the Company, its
subsidiaries, affiliates and related companies, or cause any negative publicity
to be disseminated about the Company, its subsidiaries, affiliates and related
companies and their respective products and services either orally or in
writing. Without limiting the generality of the foregoing, Xxxxxx shall not,
without the Company's prior written consent, in any manner disclose, divulge or
discuss his tenure, relationship and performance with the Company and its
subsidiaries, affiliates or related companies; provided, that, Xxxxxx shall be
permitted to disclose the dates of his employment with the Company, his position
and responsibilities and, only in connection with interviews for employment or
consulting positions, Xxxxxx shall be permitted to disclose only facts that the
Company has publicly disclosed.
B. The Company shall not denigrate or defame Xxxxxx or cause
any negative publicity to be disseminated about Xxxxxx either orally or in
writing. Without limiting the generality of the foregoing, the Company shall
not, without Xxxxxx'x prior written consent, in any manner disclose, divulge or
discuss his tenure, relationship and performance with the Company and its
subsidiaries, affiliates or related companies; provided, that, the Company shall
be permitted to make any disclosure as is permissible pursuant to Section 12.C.
12. CONFIDENTIALITY OF AGREEMENT.
A. Except as provided in Sections 12.B and 12.C below, Xxxxxx
and the Company shall mutually agree on the nature, content and timing of any
public announcement or press release relating to the subject matter, terms or
conditions of this Agreement.
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X. Xxxxxx shall keep the terms and conditions of this Agreement
confidential except as may be required by law, and except that Xxxxxx may
discuss this Agreement with his attorney, if any, his accountant, financial
adviser or members of his immediate family residing with him, provided, in all
cases, each such person agrees to keep the information confidential and not to
disclose it to others. Xxxxxx recognizes that his breach of this confidentiality
provision would result in a material breach of this Agreement. As it would be
difficult to quantify the damages suffered by the Company from such breach, in
the event of such breach, Xxxxxx agrees to pay to the Company, as liquidated
damages, an amount equal to the payments received hereunder by Xxxxxx.
C. The Company is subject to or may become subject to the
requirements of Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Securities Exchange Commission, one or more national
securities exchanges, or certain other regulatory or legislative bodies. As
such, the Company may, without the consent of Xxxxxx, disclose any information
relating to the subject matter, terms or conditions of this agreement to the
extent that the Company, in its reasonable discretion, shall determine such
disclosure is advisable pursuant to any law, rule or regulation, including the
rules of a national securities exchange, is necessary or desirable in connection
with the operation of its business or its financial disclosures, or is advisable
or necessary in connection with any legal, administrative or regulatory
proceedings; provided, however, that the Company shall provide Xxxxxx an
opportunity to review a draft copy of any proposed disclosure as early as is
reasonably practicable prior to its publication or release. Subject to the
foregoing, the Company will use its reasonable efforts to keep the terms and
conditions of this Agreement confidential.
13. ACKNOWLEDGMENT OF PAYMENT AND RECEIPT. The parties acknowledge
that all payments for wages and benefits due to Xxxxxx as of the date hereof
have been paid by the Company and received by Xxxxxx, and that there are no
further obligations of the Company to Xxxxxx except as specifically set forth in
this Agreement. The parties further acknowledge that all payments and services
due to the Company by Xxxxxx as of the date hereof have been paid or provided by
Xxxxxx and received by the Company, and that there are no further obligations of
Xxxxxx to the Company except as specifically set forth in this Agreement. For
the avoidance of doubt, the Company and Xxxxxx agree that Xxxxxx will not
receive any compensation for accrued vacation or personal days.
14. AGREEMENTS AND REPRESENTATIONS:
X. Xxxxxx'x right to receive the Retirement Benefits set forth
in Section 2 above are specifically contingent on the following agreements and
representations:
(i) Xxxxxx acknowledges and represents that he has no
Company property in his possession or control.
(ii) Without limiting the generality of Section 14.A
hereof, Xxxxxx represents, warrants and covenants that he has returned all
Company credit cards, repaid
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all bonds, deposits and other amounts previously paid by or posted by the
Company for Xxxxxx'x benefit, and returned all Company property.
(iii) Xxxxxx hereby acknowledges and reaffirms the
provisions of Sections 5, 6 and 7 of the Employment Agreement, as amended
hereby.
(iv) Xxxxxx represents that he has not violated the
Employment Agreement or any applicable laws, rules or regulations.
(v) Except as provided in Section 9, Xxxxxx acknowledges
that he has no right, title or interest in or to any intellectual property of
the Company, including, but not limited to, any patent, trademark, trade dress,
service xxxx, copyright, design or products and shall not assert any claim
thereto.
(vi) Xxxxxx agrees that he will not solicit, encourage or
otherwise cause any employee or consultant of the Company to terminate his/her
employment or business affiliation with Company.
(vii) Xxxxxx agrees to assist the Company in connection
with any legal action, arbitration, administrative proceeding, investigation or
other action in which he may be requested to testify, consult or otherwise
collaborate with the Company, and in connection therewith, he will be
compensated at the per diem rate of $750 (or a pro-rata portion of such amount
for any partial days), plus reasonable expenses.
(viii) Xxxxxx represents that he has not filed any claims,
complaints, charges or lawsuits (collectively "Actions") against the Company and
any parent, subsidiary and related corporations and divisions of any of them,
and the members, owners, stockholders, predecessors, successors, assigns,
agents, directors, officers, employees and representatives of any of them with
any governmental agency, arbitrator, or any court with respect to his employment
or separation from employment, and that he will not do so at any time hereafter;
provided, however, this clause shall not limit Xxxxxx from filing a lawsuit for
the sole purpose of enforcing his rights under this Agreement.
(ix) Xxxxxx acknowledges that Xxxxxx has voluntarily
terminated his employment as an officer of the Company as of the Termination
Date.
B. The Company represents that it has not filed any Actions
against Xxxxxx with any governmental agency, arbitrator, or any court with
respect to his employment or separation from employment, and that it will not do
so at any time hereafter; provided, however, this clause shall not limit the
Company from filing a lawsuit for the sole purpose of enforcing its rights under
this Agreement.
15. GENERAL RELEASES.
A. RELEASE OF THE COMPANY. In consideration of the Retirement
Benefits provided hereunder, and the covenants, obligations and undertakings of
the Company
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hereunder, Xxxxxx irrevocably, unconditionally and generally releases, acquits
and forever discharges the Company, any related corporation, entity and
affiliate of each of the foregoing, and each of its members, owners,
stockholders, predecessors, successors, assigns, agents, directors, officers,
employees and representatives, and all persons acting by, through, under or in
concert with any of them (collectively "Releasees") from any and all claims,
charges, complaints, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts and expenses (including attorneys' fees and costs actually
incurred) of any nature whatsoever (collectively, "Claims"), and arising out of
or relating to any matter or thing whatsoever including, but not limited to, any
and all Claims whatsoever arising from the Employment Agreement and Xxxxxx'x
employment with and termination from the Company (including without limitation,
wrongful discharge and breach of contract), any and all Claims arising from
federal, state or local statute or regulation (including without limitation
Title VII of the Civil Rights Act of 1964, as amended, Americans with
Disabilities Act, Age Discrimination in Employment Act, Family & Medical Leave
Act, Fair Labor Standards Act, state and local laws against discrimination,
state and local wage and hour and state and local labor laws), and any and all
Claims arising under common law, whether in contract or in tort. Excluded from
the scope of this Release of the Company are the Company's obligations under
this Agreement and the Company's indemnity obligations under the New York
Business Corporation Law and the Certificate of Incorporation, as amended, and
by-laws, as amended, of the Company for the benefit of officers and directors,
provided that all applicable conditions to such indemnification have been
satisfied. The Company shall make available to Xxxxxx any director and officer
insurance policy coverage that had been maintained during Xxxxxx'x employment
with the Company, provided Xxxxxx has satisfied all coverage requirements.
B. The scope of the release given in Section 15.A above is from
the beginning of the world through the date of this Agreement and binds Xxxxxx,
his heirs, distributees, successors, assigns, estate and representatives.
C. RELEASE OF XXXXXX. The Company hereby irrevocably,
unconditionally and generally releases, acquits and forever discharges Xxxxxx
from any and all Claims arising out of or relating to any matter or thing
whatsoever including, but not limited to, any and all Claims whatsoever arising
from the Employment Agreement and Xxxxxx'x employment with and termination from
the Company, any and all Claims arising from federal, state or local statute or
regulation, and any and all Claims arising under common law, whether in contract
or in tort. Excluded from the scope of this Release of Xxxxxx are Xxxxxx'x
obligations under this Agreement.
D. The scope of the release given in Section 15.C above is from
the beginning of the world through the date of this Agreement and binds the
Company and its successors, assigns and representatives.
16. COMPLETE AGREEMENT, NO REPRESENTATIONS, NO MODIFICATION. All
prior understandings between the parties are merged herein; no representations
or promises have been made by either the Company or Xxxxxx to the other unless
set forth herein; and any modification or termination of this Agreement must be
in writing signed by the party to be charged.
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17. ACKNOWLEDGMENT OF STATUTORY NOTICE. Xxxxxx acknowledges that
before execution of this Agreement, he received a copy of this Agreement with a
cover letter from the Company advising: (a) that he has the right, and is
encouraged, to consult an attorney with regard to this Agreement and (b) that he
had twenty-one (21) days to consider the Agreement and (c) that once the
Agreement was signed, he could revoke it during the immediate seven (7) days
following the signing of this Agreement. Xxxxxx acknowledges that he has been
represented by Xxxxx X. Xxxxxx, Esq., 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, and
by the law firm of Xxxxxxxx Xxxxxx with respect to the negotiation and execution
of this Agreement. Xxxxxx further acknowledges that notwithstanding his right to
consider this Agreement for 21 days, if he has signed this Agreement sooner than
the expiration of said 21 days, he has done so knowingly and voluntarily, and he
expressly waives his right to consider this Agreement for the balance of the 21
days. The Company hereby agrees to pay up to 50% of the reasonable, documented
legal fees payable to Xxxxxxxx Xxxxxx by Xxxxxx solely in connection with
Xxxxxx'x retirement, termination of employment and the review and execution of
this Agreement; provided, however, that the Company will not be obligated to pay
an amount in excess of $3,000 pursuant to this sentence without the advance
written consent of the Chief Executive Officer of the Company.
18. RIGHT TO REVOKE. This Agreement may be revoked by Xxxxxx within
seven (7) days of its execution by written notice to the Company. In the event
that Xxxxxx exercises his right to revoke this Agreement within such 7 day
period, the entire Agreement including, without limitation, the Company's
obligation to pay the Retirement Benefits and the mutual releases contained
herein, shall be null and void. Xxxxxx'x and the Company's payment obligations
to each other at the signing of this Agreement shall be deferred until the
expiration of the seven (7) day period referred to herein, and such payments
shall be due and payable immediately thereafter, provided that such period has
expired and Xxxxxx has not exercised such right of revocation.
19. COUNTERPART ORIGINALS. This Agreement may be executed in
identical counterpart documents each of which shall be deemed an original, but
all of which together shall constitute one and the same agreement. Facsimile
signatures shall be deemed acceptable and binding on the parties.
20. NOTICE. 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 Xxxxxx to 000 Xxxx 00 Xxxxxx, Xxx Xxxx, XX 00000,
with a copy to:
Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
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(b) If to the Company to 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, with a copy to:
Xxxx Xxxxxxx, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
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.
21. NO ADMISSION. This Agreement is entered into by the parties for
settlement purposes only and does not constitute an admission of wrongdoing of
any kind.
22. SEVERABILITY. In the event that any one or more of the
provisions contained in this Agreement shall be declared invalid, void or
unenforceable, the remainder of the provisions of this Agreement shall remain in
full force and effect, and such invalid, void or unenforceable provision shall
be interpreted as closely as possible to the manner in which it was written.
23. GOVERNING LAW. This Agreement has been negotiated in and shall
be deemed executed and delivered within the State of New York and is made in
contemplation of its interpretation and effect being construed in accordance
with the laws of the State of New York, applicable to contracts fully executed,
delivered and performed in the State of New York, and it is expressly agreed
that it shall be construed in accordance with the laws of the State of New York
without giving effect to the principles of its conflicts of laws rules.
24. HEADINGS, ETC. The headings and captions contained in this
Agreement are for convenience of reference only and in no way define, limit or
describe the scope or intent of this Agreement or in any way affect this
Agreement. Unless the context otherwise specifically requires, words importing
the singular include the plural and vice-versa. The terms "hereunder", "hereto",
"herein" and similar terms relate to this entire Agreement not to any particular
paragraph or provision of this Agreement.
25. ENTIRE AGREEMENT. This Agreement, including the terms of the
Employment Agreement specifically incorporated herein by reference and any
schedules or annexes hereto, constitutes the entire agreement among the parties
with respect to the subject matter hereof and supersedes, replaces and
terminates 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.
26. 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.
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27. ASSIGNABILITY. This Agreement and its rights and obligations may
not be assigned by Xxxxxx or the Company without the other party's consent. This
Agreement shall be binding upon each of Xxxxxx and the Company and their
respective successors and permitted assigns. Notwithstanding the foregoing, the
Company may assign its rights and obligations hereunder to the acquiring party
or parties or an affiliate thereof without Xxxxxx'x consent in the event of a
Change of Control (as such term is defined in Section 4 of the Employment
Agreement); provided that the assignee or assignees agree in writing to assume
the obligations of the Company hereunder; and provided further that the Company
remains liable for all monetary obligations owed to Xxxxxx hereunder if the
assignee defaults in paying them as due.
28. ARBITRATION. Any dispute or controversy arising among or between
the parties hereto regarding any of the terms of this Agreement or the
Employment Agreement to the extent incorporated herein by reference, or the
breach hereof or thereof, 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.
29. KNOWING AND VOLUNTARY AGREEMENT. This Agreement has been entered
into after negotiation and review of its terms and conditions by parties under
no compulsion to execute and deliver a disadvantageous agreement. No ambiguity
or omission in this Agreement shall be construed or resolved against any party
on the ground that this Agreement or any of its provisions was drafted or
proposed by that party. Xxxxxx acknowledges that he has been represented by
counsel in the negotiation of this Agreement.
IN WITNESS WHEREOF, the parties have made and executed this
Agreement on the date first set forth above.
FIND/SVP, INC.
By: /s/ Xxxxx Xxxxx
------------------------
Name:
Title:
/s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
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EXHIBIT A
The Rule 105-1 Plan will provide that the administrator of such plan may sell
no more than 5,000 shares of Company common stock (subject to appropriate
adjustment to account for any stock split, stock dividend or similar event
affecting shares of Company common stock generally) in any one-month period,
and that for any given month, all sales for such month shall be executed during
any two (2) five (5) business day periods of the administrator's choosing
(which may or may not be contiguous), each of which periods must begin on a
Monday and end on a Friday.
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EXHIBIT B
The Company will pay Xxxxxx $1,800 per month until July 24, 2010, then $4,750
per month until and including the month ending December 31, 2013.
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