EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT dated as of July 1, 2000 between Total Research
Corporation, a Delaware corporation ("Company"), and Xxxxxxx Xxxxx
("Executive").
BACKGROUND
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Executive will serve as the Chief Financial Officer under an Employment
Agreement with Company effective July 1, 2000.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein and intending to be legally bound hereby, the parties hereto
agree as follows:
TERMS
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SECTION 1. CAPACITY AND DUTIES
1.1 EMPLOYMENT; ACCEPTANCE OF EMPLOYMENT. Company hereby employs Executive
and Executive hereby accepts employment by Company for the period and upon the
terms and conditions hereinafter set forth.
1.2 CAPACITY AND DUTIES.
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(a) Executive shall initially serve as Chief Financial Officer of the
Company. Executive shall perform the duties and have the responsibilities of a
Chief Financial Officer as described in the "Position Description" delivered to
Executive, as such "Position Description" may be revised by Company from time to
time, provided, however, that the Company may not make material changes without
the concent of the Executive. Executive shall perform such other duties and
shall have such authority consistent with his position as may from time to time
be specified by the Chief Executive Officer of Company. Executive may be
appointed by the Chief Executive Officer to another senior level position,
provided such appointment does not result in a reduction in Executive's
compensation and benefits under this Agreement. Executive shall report directly
to the Chief Executive Officer, and shall perform Executive's duties for Company
principally at Company's principal executive offices, presently in Princeton,
New Jersey, except for periodic travel that may be necessary or appropriate in
connection with the performance of Executive's duties hereunder.
(b) Executive shall devote Executive's full working time, energy, skill and
best efforts to the performance of Executive's duties hereunder, in a manner
that will faithfully and diligently further the business and interests of
Company, and shall not be employed by, or participate or engage in or in any
manner be a part of the management or operation of, any business enterprise
other than Company without the prior written consent of the Board of Directors
of Company (the "Board"). Notwithstanding the above, Executive shall be
permitted, to the extent such activities do not interfere or conflict with the
performance by Executive of Executive's duties and responsibilities hereunder,
(i) to manage Executive's personal, financial and legal affairs, and (ii) to
serve on civic, charitable or professional boards or committees (it being
expressly understood and agreed that Executive's continuing to serve on any such
board and/or committees on which Executive is serving, or with which Executive
is otherwise associated (each of which has been disclosed to Company in writing
prior to the execution of Executive's Agreement), as of the Commencement Date
(as defined below), shall be deemed not to interfere with the performance by
Executive of Executive's duties and responsibilities under this Agreement).
(c) Executive represents and warrants to Company that Executive is under no
contractual or other restriction or obligation which conflicts with, violates or
is inconsistent with the execution of this Agreement, the performance of
Executive's duties hereunder, or the other rights of Company hereunder.
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(d) During the Term, Executive shall be entitled to participate as a member
of the Company's Management Council. The Management Council shall consist of
Executive and certain other senior officers of the Company and shall serve as an
advisory and consultative body on such significant strategic and operating
issues as the Chairman or President of the Company determine to present to the
Management Council prior to decisions on such issues being made by the
President, the Executive Committee or the Board of Directors.
SECTION 2. TERM OF EMPLOYMENT
2.1 Term. The term of Executive's employment hereunder shall commence on
the date hereof (the "Commencement Date") and continue until June 30, 2002, as
further extended or unless sooner terminated in accordance with the other
provisions hereof (the "Term"). The second year of this Term (July 1, 2001-June
30, 2002) is based on the discretion of the Company. If the Company elects not
to employ the Executive for this second year term, the Executive will be
entitled to severance pay in accordance with Section 4.4 of this agreement.
SECTION 3. COMPENSATION
3.1 Basic Compensation. As compensation for Executive's services during the
Term, Company shall pay to Executive a salary effective July 1, 2000 in the
amount specified on Exhibit A, attached hereto and made a part hereof.. The
salary shall be payable in periodic installments in accordance with Company's
regular payroll practices for its executive personnel at the time of payment,
but in no event less frequently than monthly. Executive's annual salary, as
determined in accordance with this Section 3.1, is hereinafter referred to as
Executive's "Base Salary."
3.2 Performance Bonus. As additional compensation for the services rendered
by Executive to Company pursuant to this Agreement for the fiscal period
commencing July 1, 2000, the Executive shall be entitled to participate in the
Senior Management Compensation Plan, attached hereto and incorporated hereby as
Exhibit A (the "Compensation Plan").
3.3 Employee Benefits. During the Term, Executive shall be entitled to
participate in such of Company's employee benefit plans and benefit programs,
including medical, hospitalization, dental, disability, accidental death and
dismemberment and travel accident plans and programs, as may from time to time
be provided by Company for its senior executives generally. In addition, during
the Term Executive shall be eligible to participate in all pension, retirement,
savings and other employee benefit plans and programs maintained from time to
time by Company for the benefit of its senior executives generally. Company
shall have no obligation, however, to maintain any particular program or level
of benefits referred to in this Section 3.3.
3.4 Other Benefits. During the Term, the Company shall provide Executive
with an automobile allowance of $500.00 per month for the use of an automobile
owned or leased by him in accordance with the policies and procedures
established by the Company from time to time for executive employees.
3.5 Vacation. Executive shall be entitled to the normal and customary
amount of paid vacation provided to senior executives of the Company generally,
but in no event less than 20 days during each 12 month period, beginning on July
1, 2000. Any vacation days that are not taken in a given 12 month period shall
accrue and carry over from year to year up to a maximum of 20 days. The
Executive may be granted leaves of absence with or without pay for such valid
and legitimate reasons as the Board in its sole and absolute discretion may
determine, and is entitled to the same sick leave and holidays provided to other
senior executive officers of Company.
3.6 Expense Reimbursement. Company shall reimburse Executive for all
reasonable and documented expenses incurred by him in connection with the
performance of Executive's duties hereunder in accordance with its regular
reimbursement policies as in effect from time to time.
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SECTION 4. TERMINATION OF EMPLOYMENT
4.1 DEATH OF EXECUTIVE. If Executive dies during the Term, Company shall
not thereafter be obligated to make any further payments hereunder other than
amounts (including Base Salary, bonuses, expense reimbursement, etc.) accrued as
of the date of Executive's death in accordance with generally accepted
accounting principles (the "Accrued Obligations", which, for purposes of this
Agreement in situations other than death, shall reference the date of
termination).
4.2 DISABILITY OF EXECUTIVE. If Executive is permanently disabled (as
defined in Company's long-term disability insurance policy then in effect), then
the Board shall have the right to terminate Executive's employment upon 30 days'
prior written notice to Executive at any time during the continuation of such
disability. In the event Executive's employment is terminated for disability in
accordance with this Section 4.2, Company shall not thereafter be obligated to
make any further payments hereunder other than (i) Accrued Obligations through
the date of such termination and (ii) continued Base Salary and benefits, until
the earlier of (x) such time as payments to Executive commence under Company's
long-term disability insurance policy then in effect, or (y) the expiration of
the then current Term.
4.3 TERMINATION FOR CAUSE. Executive's employment hereunder shall terminate
immediately upon notice that the Board is terminating Executive for Cause (as
defined herein), in which event Company shall not thereafter be obligated to
make any further payments of Base Salary, bonus or other payments. "Cause" shall
be limited to the following:
(i) willful failure to substantially perform Executive's duties as
described in Section 1.2 (other than such failure resulting from Executive's
physical or mental illness, or the failure of Executive to perform such duties
during the remedy period set forth in Section 4.4 hereof following the issuance
of a Notice of Termination (as herein defined) by Executive for Good Reason,
unless an arbitrator acting pursuant to Section 6.2 hereof finds Executive to
have acted in bad faith in issuing such Notice of Termination), after (x) demand
for substantial performance is delivered by Company in writing that identifies
the manner in which Company believes Executive has not substantially performed
Executive's duties and (y) Executives' failure to cure such nonperformance
within ten days after receipt of such written demand.
(ii) willful misconduct that is materially and demonstrably injurious
to Company or any of its subsidiaries;
(iii) conviction or plea of guilty or nolo contendere to a felony or
to any other crime which involves moral turpitude or, if not involving moral
turpitude, the act giving rise to such conviction or plea is materially and
demonstrably injurious to the Company or any of its subsidiaries;
(iv) material violation of (x) Company's policies relating to sexual
harassment, substance or alcohol abuse or the disclosure or misuse of
Confidential Information (as hereinafter defined), or (y) other Company polices
set forth in Company manuals or written statements of policy provided in the
case of this clause (y) that such violation is materially and demonstrably
injurious to Company and continues for more than three (3) days after written
notice thereof is given to Executive by the Board; and
(v) material breach of any provision of this Agreement by Executive,
which breach continues for more then ten days after written notice thereof is
given by the Board to Executive.
Cause shall not exist under this Section 4.3 unless and until Company has
delivered to Executive a copy of a resolution duly adopted by a majority of the
Board at a meeting of the Board called and held for such purpose (or by
unanimous written consent of the Board), finding that such Cause exists in the
good faith opinion of the Board. This Section 4.3 shall not prevent Executive
from challenging in any arbitration proceeding or court of competent
jurisdiction the Board's determination that Cause exists
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or that Executive has failed to cure any act (or failure to act), to the extent
permitted by this Agreement, that purportedly formed the basis for the Board's
determination. Company must provide such notice to Executive that it is
intending to terminate Executive's employment for Cause within one hundred and
twenty (120) days after the Board has actual knowledge of the occurrence of the
event it believes constitutes Cause.
4.4 TERMINATION WITHOUT CAUSE OR BY EXECUTIVE FOR GOOD REASON.
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(a) If (i) Executive's employment is terminated by Company for any reason
(other than (x) Cause or (y) disability of Executive) or (ii) Executive's
employment is terminated by Executive for Good Reason # c.(ii) or c.(iv), then
Company shall within thirty (30) days of termination of employment pay to
Executive a lump sum cash payment equal to Executive's Base Salary for a period
equal to the greater of (x) the date of termination of employment through the
date that is one (1) year after the date of delivery of a proper notice of
termination of employment or nonrenewal of the Agreement or (y) the then
remaining Term (the "Severance Payment"). Termination by the Executive for Good
Reason for any reason other than c.(ii) and c.(iv), will entitled the Executive
to a lump sum cash payment equal to the Executive's Base Salary for a period
equal to six months. Further, in the event of termination by Company under such
circumstances Company shall maintain in full force and effect, for the continued
benefit of Executive, Executive's spouse and Executive's dependents for the
remaining balance of the unexpired Term as of the date of termination, the
medical, hospitalization, dental, long term disability and life insurance
programs in which Executive, Executive's spouse and Executive's dependents were
participating immediately prior to the date of such termination at substantially
the level in effect and upon substantially the same terms and conditions
(including without limitation contributions required by Executive for such
benefits) as existed immediately prior to the date of termination (except to the
extent thereafter reduced for senior executives of Company generally); provided,
that if Executive, Executive's spouse or Executive's dependents cannot continue
to participate in the Company programs providing such benefits, the Company
shall arrange to provide Executive, Executive's spouse and Executive's
dependents with the economic equivalent of such benefits which they otherwise
would have been entitled to receive under such plans and programs, provided that
such benefits shall terminate upon the date or dates Executive receives coverage
and benefits which are substantially similar, taken as a whole, without waiting
period or pre-existing condition limitations, under the plans and programs of a
subsequent employer. Upon making the payments described in this Section 4.4,
Company shall have no further obligation to Executive hereunder.
(b) Notwithstanding the foregoing, if Executive's employment is terminated
by Company within the term of this agreement, without Cause or Change
of Control, the Severance Payment shall be reduced to six months.
Additionally, termination of the Executive's employment as a result of
the Executive's failure to achieve the performance goals as indicated
on the Executive's Term Sheet, Exhibit A, will entitle the Executive
to three months of Severance Payment
(c) (c) "Good Reason" shall mean the following:
(i) material breach of Company's obligations hereunder, provided that
Executive shall have given reasonably specific written notice thereof to
Company, and Company shall have failed to remedy the circumstances within 60
days thereafter;
(ii) any decrease in Executive's salary below the amount set forth in
the Compensation Plan (except for decreases that are in conjunction with
decreases in salaries generally) or any material reduction in the general nature
of Executive's duties or authority to a level inconsistent with a senior
executive position, unless previously agreed to in writing by Executive;
(iii) the failure of Executive to be appointed initially to the
positions set forth in Section 1.2(a);
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(iv) the relocation of Executive's principal place of employment by
the Company to a location more than thirty (30) miles from Princeton, New
Jersey;
(v) the failure of any successor in interest of Company to be bound by
the terms of this Agreement or to compensate the Executive at a level less than
what the Executive is being paid as the time of a Change of Control.;
(vi) The financial Bonus Goals established by the Company in the
Senior Management Compensation Plan for any fiscal year are more than 125% of
the financial Bonus Goals for the preceding fiscal year and are not approved in
writing by the Chief Executive Officer or, if Xxxxxx Xxxxxxxxx is not then
serving as Chief Executive Officer, approved by a majority of the participants
in the Compensation Plan; or
Executive must provide notice to Company that Executive is intending to
terminate Executive's employment for Good Reason within one hundred and twenty
(120) days after Executive has actual knowledge of the occurrence of an event he
believes constitutes Good Reason. Executive's right to terminate Executive's
employment hereunder for Good Reason shall not be affected by Executive's
Disability. Subject to compliance by Executive with the notice provisions of
Section 4.4(c)(i), Executive's continued employment prior to terminating
employment for Good Reason shall not constitute consent to, or a waiver of
rights with respect to, any act or failure to act constituting Good Reason. In
the event Executive delivers to the Company a Notice of Termination for Good
Reason, Executive agrees to appear before a meeting of the Board called and held
for such purpose (after reasonable notice) and specify to the Board the
particulars as to why Executive believes adequate grounds for termination for
Good Reason exist. No action by the Board, other than the remedy of the
circumstances within the time periods specified in Section 4.4(c)(i), shall be
binding on Executive.
(d) If the Company elects not to renew his contract, the Executive will be
entitled to six months of severance pay and will have a non-compete for a period
of six months.
(e) If the Executive elects not to accept the renewal of his contract, the
Executive will be entitled to six months of severance pay and will have a
non-compete for a period six months.
4.5 CHANGE IN CONTROL.
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(a) If, during the Term, there should be a Change of Control (as defined
herein), and within one year thereafter either (i) Executive's employment should
be terminated for any reason other than for Cause or (ii) Executive terminates
Executive's employment for Good Reason (other than under Section 4.4(c)(vi)),
Company shall, on or before Executive's last day of full-time employment
hereunder, pay to Executive, the amounts set forth in Section 4.4 above,
provided that it is the intention of the parties that the payments under this
Section 4.5 shall not constitute "excess parachute payments" within the meaning
of Section 280G of the Internal Revenue Code of 1986, as amended. Accordingly,
notwithstanding anything in this Agreement to the contrary, if any of the
amounts otherwise payable under this Section would constitute "excess parachute
payments," or if the independent accountants acting as auditors for Company on
the date of the Change in Control determine that such payments may constitute
"excess parachute payments," then the amounts otherwise payable under this
Agreement shall be reduced to the maximum amounts that may be paid without any
such payments constituting, or potentially constituting, "excess parachute
payments."
(b) Upon the occurrence of a Change in Control, any stock options
previously granted to Executive that are not then exercisable, ie. unvested,
shall immediately vest and become exercisable by Executive . The Company shall
execute all necessary amendments to the applicable stock option plans and
agreements provided such amendments are permitted by law and will not adversely
affect the tax status or qualification of the plan as an Incentive Stock Option
Plan or Non-qualified Stock Option Plan.
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(c) Upon making the payments described in this Section 4.5, Company shall
have no further obligation to Executive hereunder.
(d) A "Change in Control" of Company shall be deemed to have occurred if:
(1) at any time after the date hereof, there shall occur (i) any
consolidation or merger of Company in which Company is not the continuing or
surviving corporation or pursuant to which the shares of common stock of Company
("Common Stock") would be converted into cash, securities or other property, or
(ii) any sale, lease, exchange or other transfer (in one transaction or a series
of related transactions) of assets accounting for 50% or more of total assets or
50% or more of the total revenues of Company, other than, in case of either (i)
or (ii) a consolidation or merger with, or transfer to, a corporation or other
entity of which, or of the parent entity of which, immediately following such
consolidation, merger or transfer, (x) more than 50% of the combined voting
power of the then outstanding voting securities of such entity entitled to vote
generally in the election of directors (or other determination of governing
body) is then beneficially owned (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934) by all or substantially all of the individuals
and entities who were such owners of Common Stock immediately prior to such
consolidation, merger or transfer in substantially the same proportion, as among
themselves, as their ownership of Common Stock immediately prior to such sale
consolidation, merger or transfer, or (y) a majority of the directors (or other
governing body) consists of members of the Board of Directors of Company in
office on the date hereof for purposes of (2) below or approved as provided in
(2) below;
(2) at any time after the date hereof, (x) members of the Board
of Directors of Company in office on the date hereof (including any designated
as contemplated by Section 4.2 of the Stock Purchase Agreement made as of April
16, 1998 between Company and Xxxxx Xxxxxxx) plus (y) any new director (excluding
a director designated by a person or group who has entered into an agreement
with Company to effect a transaction described in Section 4.5(d)(1)) whose
election by the Board of Directors of Company or nomination for election by
Company's stockholders was approved by (i) Executive (if a director) or (ii) a
vote of at least a majority of the directors then still in office who either
were directors on the date hereof or whose election or nomination for election
was previously so approved, shall cease for any reason to constitute a majority
of the Board; or
(3) at any time after the date hereof, the stockholders of
Company approve a complete liquidation or dissolution of Company, except in
connection with a recapitalization or other transaction which does not otherwise
constitute a Change of Control for purposes of Section 4.5(a)(1) above.
4.6 TERMINATION BY EXECUTIVE WITHOUT GOOD REASON. In the event
Executive's employment is voluntarily terminated by Executive
without Good Reason, the Executive will not be entitled to any
severance pay.
4.7 MITIGATION. Executive shall not be required to mitigate amounts
payable under this Section 4 by seeking other employment or
otherwise, and there shall be no offset against amounts due
Executive under this Agreement on account of subsequent
employment except as specifically provided herein.
SECTION 5. NON-COMPETITION AND CONFIDENTIALITY
5.1 NON-COMPETITION.
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(a) During the Term and for a period of one year thereafter (the
"Non-Competition Period"), Executive shall not, directly or indirectly, own,
manage, operate, join, control, participate in, invest in or otherwise be
connected or associated with, in any manner, including, without limitation, as
an officer, director, employee, distributor, independent contractor, independent
representative, partner, consultant, advisor, agent, proprietor, trustee or
investor, any Competing Business located in any state or region
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(including foreign jurisdictions) where Company conducts business; provided,
however, that ownership of 1% or less of the stock or other securities of a
corporation, the stock of which is listed on a national securities exchange or
is quoted on the NASDAQ Stock Market's National market, shall not constitute a
breach of this Section 5, so long as the Executive does not in fact have the
power to control, or direct the management of, or is not otherwise engaged in
activities with, such corporation.
(b) For purposes hereof, the term "Competing Business" shall mean any
business or venture which is substantially similar to the whole or any
significant part of the business conducted by Company.
(c) Notwithstanding the above, the Non-Competition Period shall be limited
to the period for which a Severance Payment is received under Section 4.4(a)
above if Executive's employment is terminated (i) by Company without Cause, (ii)
by Executive for Good Reason, (iii) as a result of non-renewal of the Agreement
by Company or (iv) as result of the non-renewal of the Agreement by the
Employee,.
(d) If the Executive's employment is terminated for any reason other than
the reasons specified in Section 5.1(c) above and Executive is not entitled to a
Severance Payment under Section 4.4(a) as a result of such termination, the
Non-Competition Period shall be waived.
(e) If the Executive elects not to renew his agreement, the
Non-Competition Period will be for six months and the Executive will
be entitled to six months of severance pay as referenced in Section
4.4(e) above.
5.2 NO SOLICITATION. During the Term, including any unexpired portion
thereof, and for a period of one year thereafter, the Executive shall not,
directly or indirectly, including on behalf of, for the benefit of, or in
conjunction with, any other person or entity, (i) solicit, assist, advise,
influence, induce or otherwise encourage in any way, any employee of Company to
terminate Executive's relationship with Company for any reason, or assist any
person or entity in doing so, or employ, engage or otherwise contract with any
employee or former employee of Company in a Competing Business or any other
business unless such former employee shall not have been employed by Company for
a period of at least one year, (ii) interfere in any manner with the
relationship between any employee and Company or (iii) contact, service or
solicit any existing clients, customers or accounts of Company on behalf of a
Competing Business, either as an individual on Executive's own account, as an
investor, or as an officer, director, partner, joint venturer, consultant,
employee, agent or sales man of any other person or entity.
5.3 CONFIDENTIAL INFORMATION.
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(a) "Confidential Information" shall mean confidential records and
information, including, but not limited to, development, marketing, purchasing,
organizational, strategic, financial, managerial, administrative, manufacturing,
production, distribution and sales information, distribution methods, data,
specifications and processes (including the Transferred Property as hereinafter
defined) presently owned or at any time hereafter developed by Company or its
agents or consultants or used presently or at any time hereafter in the course
of the business of Company, that are not otherwise part of the public domain.
(b) Executive hereby sells, transfers and assigns to Company, or to any
person or entity designated by Company, all of Executive's entire right, title
and interest in and to all inventions, ideas, methods, developments, disclosures
and improvements (the "Inventions"), whether patented or unpatented, and
copyrightable material, and all trademarks, trade names, all goodwill associated
therewith and all federal and state registrations or applications thereof, made,
adopted or conceived by solely or jointly, in whole or in part (collectively,
the "Transferred Property"), during the Term which (i) relate to methods,
apparatus, designs, products, processes or devices sold, leased, used or under
construction or development by Company or (ii) otherwise relate to or pertain to
the business, products, services, functions or operations of the Company.
Executive shall make adequate written records of all Inventions, which records
shall be Company's property and shall communicate promptly and disclose Company,
in such forms Company requests, all information, details and data pertaining to
the aforementioned Inventions. Whether during the Term or thereafter, Executive
shall execute and deliver to
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Company such formal transfers and assignments and such other papers and
documents as may be required of Executive to permit Company, or any person or
entity designated by Company, to file and prosecute patent applications
(including, but not limited to, records, memoranda or instruments deemed
necessary by Company for the prosecution of the patent application or the
acquisition of letters patent in the United states, foreign counties or
otherwise) and, as to copyrightable material, to obtain copyrights thereon, and
as to trademarks, to record the transfer of ownership of any federal or state
registrations or applications.
(c) All such Confidential Information is considered secret and will be
disclosed to the Executive in confidence, and Executive acknowledges that, as a
consequence of Executive's employment and position with Company, Executive may
have access to and become acquainted with Confidential Information. Except in
the performance of Executive's duties as an employee of Company, Executive shall
not, during the term and at all times thereafter, directly or indirectly for any
reason whatsoever, disclosure or use any such Confidential Information. All
records, files, drawings, documents, equipment and other tangible items,
wherever located, relating in any way to or containing Confidential Information,
which Executive has prepared, used or encountered or shall in the future
prepare, use or encounter, shall be and remain Company's sole and exclusive
property and shall be included in the Confidential Information. Upon termination
of Executive's agreement, or whenever requested by Company, Executive shall
promptly deliver to Company any and all of the Confidential Information and
copies thereof, not previously delivered to Company, that may be in the
possession or under the control of the Executive. The foregoing restrictions
shall not apply to the use, divulgence, disclosure or grant of access to
Confidential Information to the extent, but only to the extent, (i) expressly
permitted or required pursuant to any other written agreement between Executive
and Company, (ii) such Confidential Information has been publicly disclosed (not
due to a breach by the Executive of Executive's obligations hereunder, or by
breach of any other person, of a fiduciary or confidential obligation to Company
or (iii) the Executive is required to disclose Confidential Information by or to
any court of competent jurisdiction or any governmental or quasi-governmental
agency, authority or instrumentality of competent jurisdiction, provided,
however, that the Executive shall, prior to any such disclosure, immediately
notify Company of such requirements and provided further, however, that the
Company shall have the right, at its expense, to object to such disclosures and
to seek confidential treatment of any Confidential Information to be so
disclosed on such terms as it shall determine.
5.4 ACKNOWLEDGEMENT; REMEDIES; SURVIVAL OF THIS AGREEMENT.
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(a) Executive acknowledges that violation of any of the covenants and
provisions set forth in this Agreement would cause Company irreparable damage
and agrees that Company's remedies at law for a breach or threatened breach of
any of the provisions of this Agreement would be inadequate and, in recognition
of this fact, in the event of a breach or threatened breach by Executive of any
of the provisions of this Agreement, it is agreed that, in addition to the
remedies at law or in equity, Company shall be entitled, without the posting of
a bond, to equitable relief in the form of specific performance, a temporary
restraining order, temporary or permanent injunction, or any other equitable
remedy which may then be available for the purposes of restraining Executive
from any actual or threatened breach of such covenants. Without limiting the
generality of the foregoing, if Executive breaches or threatens to breach this
Section 5 hereof, such breach or threatened breach will entitle Company to
enjoin Executive from disclosing any Confidential Information to any Competing
Business, to enjoin any Competing Business from retaining Executive or using any
such Confidential Information, to enjoin Employee form rendering personal
services to or in connection with any Competing Business. The rights and
remedies of the parties hereto are cumulative and shall not be exclusive, and
each such party shall be entitled to pursue all legal and equitable rights and
remedies and to secure performance of the obligations and duties of the other
under this Agreement, and the enforcement of one or more of such rights and
remedies by a party shall in no way preclude such party from pursuing, at the
same time or subsequently, any and all other rights and remedies available to
it.
(b) The provisions of this Agreement shall survive the termination of
Executive's employment with Company.
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SECTION 6. MISCELLANEOUS
6.1 ARBITRATION. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in Princeton,
New Jersey, in accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. The parties consent to the
authority of the arbitrator, if the arbitrator so determines, to award fees and
expenses (including legal fees) to the prevailing party in the arbitration.
Notwithstanding the foregoing, Company shall be entitled to enforce the
provisions of Section 5 hereof through proceedings brought in a court of
competent jurisdiction as contemplated by Section 6.9 hereof.
6.2 SEVERABILITY; REASONABLENESS OF AGREEMENT. If any term, provision or
covenant of this Agreement or part thereof, or the application thereof to any
person, place or circumstance shall be held to be invalid, unenforceable or void
by a court of competent jurisdiction, the remainder of this Agreement and such
term, provision or covenant shall remain in full force and effect, and any such
invalid, unenforceable or void term, provision or covenant shall be deemed,
without further action on the part of the parties hereto, modified, amended and
limited, and the court shall have the power to modify, amend and limit any such
term, provision or covenant, to the extent necessary to render the same and the
remainder of the Agreement valid, enforceable and lawful. In this regard, the
Executive understands that the provisions of Section 5 may limit Executive's
ability to earn a livelihood in a business similar or related to the business of
Company, but nevertheless agrees and acknowledges that (i) the provisions of
Section 5 are reasonable and necessary for the protection of Company, and do not
impose a greater restraint than necessary to protect the goodwill or other
business interest of Company and (ii) such provisions contain reasonable
limitations as to the time and the scope of activity to be restrained. In
consideration of the foregoing and in light of Executive's education, skills and
abilities, Executive agrees that all defenses by Executive to the strict
enforcement of such provisions are hereby waived by Executive.
6.3 KEY EMPLOYEE INSURANCE. Company shall have the right at its expense to
purchase insurance on the life of Executive, in such amounts as it shall from
time to time determine, of which Company shall be the beneficiary. Executive
shall submit to such physical examinations as may reasonably be required and
shall otherwise cooperate with Company in obtaining such insurance.
6.4 ASSIGNMENT; BENEFIT. This Agreement shall not be assignable by
Executive, other than Executive's rights to payments or benefits hereunder,
which may be transferred only by will or the laws of descent and distribution.
Upon Executive's death, this Agreement and all rights of Executive hereunder
shall inure to the benefit of and be enforceable by Executive's beneficiary or
beneficiaries, personal or legal representatives, or estate, to the extent any
such person succeeds to Executive's interests under this Agreement. No rights or
obligations of Company under this Agreement may be assigned or transferred
except that Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of Company to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that Company would be
required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean Company as herein before defined and any
successor to its business and/or assets (by merger, purchase or otherwise) which
executes and delivers the agreement provided for in this Section 6.4 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
6.5 NOTICES. All notices hereunder shall be in writing and shall be
sufficiently given if hand-delivered, sent by documented overnight delivery
service or registered or certified mail, postage prepaid, return receipt
requested or by telegram or telefax (confirmed by U.S. mail), receipt
acknowledged, addressed as set forth below or at such other address for either
party as may be specified in a notice given as provided herein by such party to
the other. Any such notice shall be deemed to have been given as of the date
received, in the case of personal delivery, or on the date shown on the receipt
or confirmation therefor, in all other cases. Any and all service of process and
any other notice in any such action, suit or proceeding shall be effective
against any party if given as provided in this Agreement;
9
provided that nothing herein shall be deemed to affect the right of any party to
serve process in any other manner permitted by law.
(a) If to Company:
Total Research Corporation
Princeton Corporate Center
0 Xxxxxxxxxxxx Xxx
Xxxxxxxxx, XX 00000
With copies to:
Xxxxxx X. Xxxxxx, Esq.
Drinker Xxxxxx & Xxxxx LLP
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxx, Esq.
Kramer, Levin, Naftalis & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
The Executive
Xxxxxxx Xxxxx
0 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
6.6 TERMINATION PROCEDURES. Any termination of Executive's employment by
the Company or by Executive during the Term (other than termination pursuant to
death) shall be communicated by written Notice of Termination to the other party
hereto in accordance with Section 5.5. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so indicated.
6.7 ENTIRE AGREEMENT AND MODIFICATION. This Agreement constitutes the
entire agreement between the parties hereto with respect to the matters
contemplated herein and supersedes all prior agreements and understandings with
respect thereto. No amendment, modification, or waiver of this Agreement shall
be effective unless in writing. Neither the failure nor any delay on the part of
any party to exercise any right, remedy, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege preclude any other or further exercise of the
same or of any other right, remedy, power, or privilege with respect to such
occurrence or with respect to any other occurrence.
6.8 GOVERNING LAW. This Agreement is made pursuant to, and shall be
construed and enforced in accordance with, the laws of the State of New Jersey
and the federal laws of the United States of America, to the extent applicable,
without giving effect to otherwise applicable principles of conflicts of law.
The parties hereto expressly consent to the jurisdiction of any state or federal
court located in New Jersey, and to venue therein, and consent to the service of
process in any such action or proceeding by certified or registered mailing of
the summons and complaint therein directed to Executive or Company, as the case
may be, at its address as provided in Section 6.6 hereof.
10
6.9 WITHHOLDING. All payments hereunder shall be subject to any required
withholding of Federal, state and local taxes pursuant to any applicable law or
regulation.
6.10 HEADINGS; COUNTERPARTS. The headings of paragraphs in this Agreement
are for convenience only and shall not affect its interpretation. This Agreement
may be executed in two or more counterparts, each of which shall be deemed to be
an original and all of which, when taken together, shall be deemed to constitute
the same Agreement.
6.11 FURTHER ASSURANCES. Each of the parties hereto shall execute such
further instruments and take such other actions as the other party shall
reasonably request in order to effectuate the purposes of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE EXECUTIVE TOTAL RESEARCH CORPORATION
By /s/Xxxxxxx Xxxxx By /s/Xxxxxx Xxxxxxxxx
------------------------- -----------------------------------------
Name Xxxxxx Xxxxxxxxx
President and CEO
-----------------------------------------
Title
11
Exhibit A
SENIOR MANAGEMENT COMPENSATION TERM SHEET
FISCAL YEAR 2001
NAME: XXXXXXX XXXXX
----
TITLE: CHIEF FINANCIAL OFFICER
-----
BASE SALARY: $200,000
-----------
CAR ALLOWANCE: $500 MONTHLY PAID QUARTERLY
-------------
BONUS OPPORTUNITY:
-----------------
Compensates the Executive on the bottom line financial performance of the
Company as reflected in the financial goals listed below. The amount of the
bonus is discretionary and will be is based on the CEO and Executive Committee's
assessment of performance. In the event of a change of control, the financial
goals on this term sheet will be ratified or adjusted through mutual agreement
of the Executive and the successor board.
OPTIONS:
-------
Granting of 100,000 incentive stock options on July 3, 2000 at an option price
of $2.6875 per share. A separate options agreement will be forthcoming outlining
all of the terms and conditions associated with this grant.
Vesting of the options for calendar years 2001 and 2002, are contingent on
acceptable job performance as evaluated by the CEO. The vesting schedule for
these options is: o 33,000 on July 3, 2000 o 33,000 on July 1, 2001 o 34,000 on
July 1, 2002
If there is a change of control during the Executive's first year of employment
(July 1, 2000 - June 30, 2001), 50% of the remaining unvested options will
immediately vest. Additionally, the Executive will be entitled to 100% of the
cash value of the remaining unvested options that will be paid to the Executive
in a cash lump sum payment at the end of the first year of employment.
If there is a change of control during the Executive's second year of employment
(July 1, 2001 - June 30, 2002) all unvested options will immediately vest.
Severance Entitlement:
---------------------
If there is a Change of Control and the Executive is offered compensation in an
amount less than that indicated above or if the principal place of employment is
more than 30 miles from Princeton, the Executive would be entitled to one (1)
year of severance pay. This severance entitlement supercedes any entitlement
referenced in the Executive's Employment Agreement.
Performance Goals:
-----------------
Financial Goals:
---------------
Quarter Net Income
------- ----------
1st $500,000
2nd $500,000
A-1
3rd $750,000
4th $850,000
Non-Financial Goals:
-------------------
1. Complete upgrading of financial systems and MIS function by June 30, 2001
to include;
- online project P(L)
- quarterly business P(L) 15 days after quarter end
- separate quarterly P(L) for US and UK data collection
businesses
2. All public reporting must be completed on time and to satisfaction of Audit
Committee.
3. Be available to support M&A activity of the Board.
Please sign on the line provided below as your understanding and acknowledgement
of the terms of your employment.
/s/Xxxxxxx Xxxxx July 1, 2001
----------------------------------- ----------------------------------
Xxxxxxx Xxxxx Date
A-1
