EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("this Agreement") is made effective as of the
1st day of April, 2005 (the "Effective Date") by and between Signia Partners
Incorporated, a District of Columbia corporation with offices at 0000 Xxxxx Xxxx
Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 (the "Company") and a subsidiary of
FIND/SVP, INC., a New York corporation ("FIND"), and XXXXXXX XXXXXXX HOUSE, an
individual residing at 0000 Xxxxx 00xx Xxxxxx, Xxxxxxxxx, XX 00000 (the
"Executive").
PREMISES: The Executive has served the Company in an executive capacity
for a substantial period of time prior to the Effective Date. The Company
desires to continue to employ the Executive, and in the capacity described
herein, and the Executive desires to continue to be so employed by the Company.
The Company and the Executive also desire to set forth in writing their
understanding of the terms and conditions governing such employment. Unless the
context indicates otherwise, capitalized terms used herein but not defined
herein shall have the meanings given to such terms in the Stock Purchase
Agreement, dated as of March 14, 2005, by and among FIND and the Executive (the
"Purchase Agreement").
NOW, THEREFORE, in consideration of the foregoing and of the following
mutual promises, the Company and the Executive, each intending legally to be
bound, agree as follows:
Section 1. Contract of Employment. Subject to the terms hereof, the
Company employs the Executive and the Executive accepts his employment with the
Company for the Employment Period (as defined in Section 2 hereof). During the
Employment Period, the Executive shall serve in and shall occupy the position of
Chief Executive Officer of the Company. In that capacity the Executive shall
have responsibility for those duties that are customary to such office and
perform, for and on behalf of the Company, all of the duties of Chief Executive
Officer as shall reasonably be determined by the Board of Directors of the
Company and the Chief Executive Officer ("CEO") or Chief Operating Officer
("COO") of FIND from time to time. In addition, Executive shall, to the extent
appropriate, make reasonable efforts to maintain ongoing relationships with the
Company's key existing and prospective clients. Without limitation of any of the
foregoing, Executive also shall assume and carry out such duties or
responsibilities as from time to time may be assigned or delegated to the
Executive by the Board of Directors of the Company and the CEO or COO of FIND,
provided that such additional duties and responsibilities are fair and
reasonable under the circumstances, do not unreasonably increase the demands
upon the Executive's time or energies, and are not inconsistent with the
Executive's position as Chief Executive Officer. In fulfilling the
responsibilities of his position, the Executive will observe all lawful
policies, procedures and directions that from time to time may be adopted and
communicated by the Company, the Board of Directors of the Company or the CEO or
COO of FIND to the executive or administrative personnel of the Company
generally, including through the provisions of the personnel manuals of the
Company and FIND (to the extent applicable to the Company), as both may be
amended and in effect from time to time. In addition to his duties as Chief
Executive Officer of the Company, the Executive shall feel free to give Find his
input on Find's consolidated in-depth research and competitive intelligence
operations. In connection therewith, the Executive shall be a member of the
Find's Operating Management Group (the "OMG") whose function is to propose
initiatives and supplemental strategies needed to move Find to the next level of
growth and to apply Find's overall policies and strategies. To the extent
permitted by applicable law, FIND acknowledges that Executive, in his capacity
as Chief Executive Officer of the Company, will not be deemed by the Company to
be, as of the Effective Date, an "officer" of FIND as such term is defined in
Rule 16a-1 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"); provided, however, that Executive shall be solely responsible for any
ongoing compliance obligations he may have under Section 16(a) of the Exchange
Act and the rules and regulations promulgated thereunder.
Section 2. Employment Period. The term of the Executive's employment by
the Company (the "Employment Period") shall commence on the Effective Date and
shall continue until the earliest to occur of: (i) the third (3rd) anniversary
of the Effective Date; (ii) termination of the Executive's employment in
accordance with Sections 6(a), 6(b) or 6(c) hereof; or (iii) the date of the
Executive's death.
Section 3. Time and Effort; Disclosure and Fair Dealing. During the
Employment Period, the Executive shall devote his entire business time, best
efforts, attention, energies, skill and abilities, during usual business hours
and at such other times as are reasonably required by his position as Chief
Executive Officer, by the CEO or COO of FIND, or by the Company's Board of
Directors, to (a) diligently and faithfully carry out his responsibilities and
duties hereunder; (b) use his best efforts to promote the success and expansion
of the Company's business, and (c) cooperate fully with the Board of Directors
and the CEO or COO of FIND in the advancement of the best interests of the
Company and FIND. During the Employment Period, the Executive shall carry out
his responsibilities and duties at the offices of the Company, which, for at
least the first eighteen (18) months of the Employment Period, shall be located
in Arlington, Virginia or a location in reasonable proximity thereto; provided,
that Executive may be required to travel from time to time in connection with
his duties hereunder and the demands of the business of the Company. Executive
shall not, without the prior written consent of the CEO or COO of FIND (x) do
anything or permit anything to be done at his direction inconsistent with his
duties to the Company or its Affiliates or opposed to their best interests, or
(y) become an officer, director, employee or consultant of, or otherwise become
associated with or engaged in, any business other than that of the Company;
provided, that the CEO or COO of FIND shall not unreasonably withhold such
consent as a result of (y) above, so long as such activity (i) shall occur
entirely on Executive's own time and does not materially interrupt, interfere
with, or otherwise detract from the Executive's performance of the duties and
responsibilities of the Executive to the Company, and (ii) does not benefit,
directly or indirectly, any organization or activity that in any manner competes
or is known to have planned to compete, directly or indirectly, with the Company
or FIND or any of their respective Affiliates. Any consent granted by the CEO or
COO of FIND pursuant to the preceding sentence may be limited from time to time
or revoked by the CEO or COO of FIND or the Board of Directors of the Company,
provided that such limitation or revocation shall be done in good faith based
upon a reasonable change in circumstances. Nothing in this Section 3 shall
prevent the Executive from engaging in additional activities in connection with
personal investments (including passive real estate and securities investments)
and community affairs that are not inconsistent with the Executive's duties
under this Agreement. The Executive will promptly disclose to the Company's
Board of Directors and the CEO or COO of FIND all information, opportunities,
developments and other matters coming to the Executive's attention that pertain
or are relevant to the operations of the Company or any of its Affiliates or to
the conduct of their respective businesses. The Executive will promptly
communicate, fully cooperate and deal fairly and openly with the Company's
directors, other officers or key personnel, and, in general, to the best of his
abilities, the Executive will work to achieve efficient and profitable operation
of the Company's business and the orderly conduct of the Company's affairs. For
purpose of this Agreement "Affiliate" shall mean (i) as to Executive or the
Company, any party, which directly or indirectly, whether alone or through one
or more intermediaries, controls, is controlled by, or is under common control
with Executive or the Company, as the case may be, and (ii) as to FIND, the
subsidiaries and related entities of FIND set forth in its filings with the U.S.
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934.
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Section 4. Confidentiality, Non-Competition and Non-Interference.
(a) Protection of Nonpublic Information. The Executive hereby
acknowledges that (a) during the course of the Executive's employment by the
Company the Executive has obtained or will obtain knowledge of and use
Confidential Information, as hereinafter defined, (b) public disclosure of such
Confidential Information could have an adverse effect on the Company, FIND or
their respective Affiliates and their respective businesses; and (c) the
provisions of this Section are reasonable and necessary to prevent the improper
use or disclosure of Confidential Information. Both during the Employment Period
and at all times thereafter, the Executive (i) shall treat as confidential all
Confidential Information, (ii) without the prior written consent of the CEO of
FIND, shall not use for any personal purposes, publish, reveal, divulge,
transfer or otherwise disclose, or directly or indirectly make available to any
party any of such Confidential Information except to such parties that either
(a) are employed by, or (b) have signed a confidentiality agreement with respect
to such Confidential Information with the Company or the Subsidiary, as the case
may be, which owns or has the right to use such Confidential Information, and
such parties have a need for such information for purposes that are in the best
interest of the Company or the Subsidiary, as the case may be, and (iii) shall
not use Confidential Information in any way that is detrimental to the interests
of the Company, FIND or their respective Affiliates. The term "Confidential
Information" shall mean any and all knowledge relating to the business and
affairs of the Company, FIND or their respective Affiliates, and their
respective trade secrets, business methodologies, financial information,
customer and personnel information and data, creditors, shareholders, directors,
contractors, agents, consultants, employees, terms of contracts, and other
confidential or nonpublic information pertaining to the business practices,
properties, services, products, ideas, know-how, improvements and developments
of the Company, FIND or their respective Affiliates, conceived, developed or
devised by or for the Company, FIND or their respective Affiliates, that is or
is intended by any of them to be of a confidential nature, including, but not
limited to, any and all knowledge relating to products, research, development,
inventions, manufacture, purchasing, accounting, finances, costs, profit
margins, marketing, merchandising, selling, customer lists, customer
requirements and personnel, pricing, pricing methods, computer programs and
software, databases and data processing and any and all other such knowledge,
information and materials, heretofore or hereafter during the term of this
Agreement, conceived, designed. created, used or developed by or relating to the
Company, FIND or their respective Affiliates. The term "Confidential
Information" shall include the aforementioned items notwithstanding the fact
that such information may or may not be explicitly marked as confidential and
notwithstanding the fact that such information could be independently developed
by third parties. Nothing contained in this Section 4(a), however, shall be
construed as imposing restraints upon the Executive's use of any knowledge or
information which is or becomes made publicly available by the Company, FIND or
their respective Affiliates or is otherwise general technical know how or
information that is in the public domain or has been rightfully obtained by the
Executive from persons other than the Company, FIND or their respective
Affiliates where such persons are under no obligation of trust or confidence to
the Company, FIND or its Affiliates. In the event that the Executive is
requested or required by subpoena, civil investigative demand or other process
to disclose any Confidential Information, the Executive shall promptly notify
the Company so that the Company may seek an appropriate protective order or
waive compliance with this Agreement. If, failing the entry of a protective
order, the Executive is, in the opinion of his counsel, compelled to disclose
Confidential Information, the Executive may disclose that portion of the
Confidential Information which his counsel advises in writing he is required to
disclose.
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(b) Competitive Restrictions. During the Employment Period and
during the two (2) year period that begins on termination of the Employment
Period, the Executive shall not, whether for his account or for the account of
any other party other than the Company, FIND or their respective Affiliates
directly or indirectly engage or have any financial interest in, own, manage,
operate, finance, control or participate in the ownership, management,
operation, financing or control of, be employed by, associated with or in any
manner connected with, lend the Executive's name to or any similar name to, lend
the Executive's credit to or render services or advice to, any organization or
activity which in any manner competes with the Company, FIND or their respective
Affiliates with respect to their respective businesses. For purposes of this
Section 4(b), the term "compete" shall mean with respect to the Company, FIND
and their respective Affiliates: (i) with respect to or in connection with
conducting any business of the Company, FIND or their respective Affiliates,
calling on, soliciting, taking away, or accepting as a client or customer or
attempting to call on, solicit, take away or accept as a client or customer, any
individual, person, partnership, corporation, association or other entity or
enterprise that was a client or customer of the Company, FIND or their
respective Affiliates during the Employment Period or known by the Executive to
be a customer of the Company, FIND or their respective Affiliates during or
after the Employment Period but prior to the expiration of the two (2) year
period that begins on termination of the Employment Period; (ii) with respect to
any business reason other than in connection with the businesses of the Company,
FIND and their respective Affiliates, calling on, soliciting, taking away, or
accepting as a client or customer or attempting to call on, solicit, take away
or accept as a client or customer, any individual, person, partnership,
corporation, association or other entity or enterprise that was a client or
customer of the Company, FIND or their respective Affiliates during the
Employment Period or known by the Executive to be a customer of the Company,
FIND or their respective Affiliates during or after the Employment Period but
prior to the expiration of the two (2) year period that begins on termination of
the Employment Period; (iii) soliciting, taking away or attempting to solicit or
take away, employ or otherwise engage as an employee, independent contractor or
otherwise, any person who is an employee of the Company, FIND or their
respective Affiliates or was an employee of the Company, FIND or their
respective Affiliates during the Employment Period, on behalf of any individual,
person, partnership, corporation, association or other entity or enterprise
conducting a business which is substantially similar to the businesses of the
Company, FIND or their respective Affiliates; (iv) inducing or attempting to
induce any employee of the Company, FIND or their respective Affiliates to
terminate employment with the Company; (v) entering into or attempting to enter
into any business substantially similar to or competing in any way with the
business engaged in or in the process of being engaged in by the Company, FIND
or their respective Affiliates at the time of the termination of the Executive's
employment hereunder. Notwithstanding the foregoing sentence, if FIND has failed
to make payment of any amount under Sections 2.3, 2.4, 2.5 or 2.8 of the
Purchase Agreement required to be made pursuant to the terms of the Purchase
Agreement within sixty (60) days after the applicable Date of Determination (as
defined in the Purchase Agreement) or under Section 6(d)(II) of this Agreement
when due, then the restrictions contained in clause (v) of the prior sentence
shall terminate and have no further force and effect and the restrictions
contained in clauses (i) and (ii) of the prior sentence shall be suspended until
such payment in full is made by FIND to the Executive, at which time such
restrictions shall resume and shall continue to be in full force and effect;
provided, however, that the Executive will be entitled to continue servicing all
customers who have expressly engaged the Executive in writing to provide
business services prior to the resumption of the restrictions contained in
clauses (i) and (ii) of the prior sentence, provided, further, that, if such
payment is not made in full within one hundred and fifty (150) days after the
Date of Determination (as defined in the Purchase Agreement) or under Section
6(d)(II) when due, the restrictions contained in clauses (i) and (ii) shall
terminate and have no further force or effect.
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For purposes of this Section 4(b), the "business" of the Company, FIND and
their respective Affiliates shall mean the (i) subscription-based research and
consulting services, (ii) short-answer or rapid-turnaround research and
consulting services, (iii) in-depth business research or competitive
intelligence services, (iv) strategic research and consulting, and (v) business
seminars and conferences businesses of the Company, FIND and their respective
Affiliates as currently conducted, plus any other information knowledge business
that the Company, FIND or their respective Affiliates enters into during the
Employment Period or is in the process of being engaged in at the time of
termination of the Executive's employment hereunder, plus the business of
Xxxx.xxx, LLC, a Delaware limited liability company of which FIND is a limited
partner. For purposes of this Section 4(b), the words "directly or indirectly"
as they modify the word "compete" shall mean (i) acting as an agent,
representative, consultant, officer, director, manager, independent contractor
or employee of any individual, person, partnership, corporation, association,
limited liability corporation, limited liability partnership or other entity or
enterprise which competes with the Company, FIND or their respective Affiliates,
or any of their respective businesses, (ii) participating in any such competing
entity or enterprise as an owner, member, partner, limited partner, joint
venturer, creditor or stockholder (except as a stockholder holding less than a
three percent (3 %) interest in a corporation whose shares are actively traded
on a regional or national securities exchange or have been registered under
Section 12(g) of the Securities and Exchange Act of 1934, as amended); and (iii)
communicating to any such competing entity or enterprise the names or addresses
or any other information concerning any past, present or identified prospective
client or customer.
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Notwithstanding the restrictions contained in this Section 4, the parties
acknowledge and agree that so long as the Executive is not employed by the
Company, the Executive's solicitation of a current or former customer or client
of the Company, FIND or their respective Affiliates (a "Restricted Customer")
will not, in and of itself, result in a breach of this Section 4(b) or Section
4(c) provided that the following conditions are met:
(i) the Executive does not solicit any person at the Restricted
Customer with whom the Executive had contact prior to the
termination of his employment with the Company (a "Restricted
Contact") nor any other person within such Restricted Contact's
department at the Restricted Customer;
(ii) the Executive's solicitation of the Restricted Customer
pertains to a product or service that is not competitive with the
business of the Company, FIND or their respective Affiliates;
(iii) the Executive's solicitation of a Restricted Customer is not,
at the time of the commencement of such solicitation, reasonably
likely to negatively impact the Company's relationship with such
Restricted Customer, including its business with such Restricted
Customer; and
(iv) the Executive is otherwise in compliance with each of the
covenants and agreements set forth in this Section 4.
(c) Non-Interference. At any time during the Employment Period or
the two (2) year period immediately thereafter, the Executive shall not
interfere with any of the Company, FIND's or their respective Affiliates'
relationships with any party, including any party who, at any time during the
Employment Period, was an employee, contractor, supplier or customer of any of
the Company, FIND or their respective Affiliates. At any time during or after
the Employment Period, the Executive shall not make public statements which may
negatively impact any of the Company, FIND or their respective Affiliates or any
of their respective shareholders, directors, officers, employees or agents with
respect to the customers, suppliers, products, personnel or business of any of
the Company, FIND or their respective Affiliates and, the Company, FIND and
their respective Affiliates shall not make public statements which negatively
impact Executive, except to the extent such statements by Executive or Company,
FIND or their respective Affiliates are (i) required by law (ii) made in a
manner consistent with an individual's fiduciary duties or (iii) in connection
with any arbitration, mediation, administrative action, or litigation
(including, without limitation pleadings, depositions, discovery requests and
testimony) relating to this Agreement. For purposes of this Section 4(c),
"interfere" shall mean acts or conduct that is reasonably likely to hamper,
hinder or disturb the relationships between the Company, FIND or their
respective Affiliates and any applicable party; provided, however, that the term
"interfere" shall not include any act of solicitation under Section 4(b)(i),
(ii) or (v) hereof that was permissible in accordance with the terms of Section
4(b) at the time that such act was committed.
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(d) Inventions, etc. Executive will promptly disclose to the Company
and the CEO of FIND all designs, processes, inventions, improvements,
discoveries and other information related to the business of the Company
(collectively "developments") conceived, developed or acquired by him alone or
with others during the Employment Period. All such developments shall be the
sole and exclusive property of the Company, and upon request the Executive shall
deliver to the Company all drawings, models and other data and records relating
to such developments. In the event any such developments shall be deemed by the
Company or the CEO of FIND to be patentable or copyrightable, the Executive
shall, while employed, at the expense of the Company, assist the Company in
obtaining any patents or copyrights thereon and execute all documents and do all
other things necessary or proper to obtain letters patent and copyrights and to
vest the Company with full title thereto.
(e) Acknowledgments by Executive. The Executive acknowledges that:
(a) the services to be performed by him under this Agreement are for a special,
unique, unusual, extraordinary and intellectual character; (b) the business of
the Company, FIND and their respective Affiliates is national and international
in scope and its products are marketed throughout the United States and in other
countries, territories and possessions; (c) the Company and FIND and their
respective Affiliates compete with other businesses that are or could be located
in any part of the United States and in other countries, territories and
possessions; and (d) the provisions of this Section 4 are reasonable and
necessary to protect the business of the Company and FIND and their respective
Affiliates and will not restrict Executive from earning a livelihood.
(f) Remedies. The Executive hereby acknowledges that a breach by the
Executive of the provisions of this Section 4 cannot reasonably or adequately be
compensated in damages in an action at law; and that a breach of any of the
provisions contained in this Section 4 will cause the Company, FIND and their
respective Affiliates irreparable injury and damage. By reason thereof, the
Executive hereby agrees that the Company, FIND and their respective Affiliates
shall be entitled, in addition to any other remedies it may have under this
Agreement or otherwise, to preliminary, temporary and permanent injunctive and
other equitable relief to prevent or curtail any actual or threatened breach of
this Section 4 by the Executive; provided, however, that no specification in
this Agreement of a specific legal or equitable remedy shall be construed as a
waiver or prohibition against the pursuing of other legal or equitable remedies
in the event of such a breach. None of the Company, FIND and their respective
Affiliates shall be required to post bond in connection with seeking any such
equitable remedies.
Section 5. Compensation and Benefits. The Executive and the Company agree
to the following compensation arrangements:
(a) Salary. For the services to be rendered by the Executive and in
consideration of the Executive's other undertakings in this Agreement, the
Company shall pay to the Executive a salary at the rate of Two Hundred Fifty
Thousand Dollars ($250,000.00) per year during the first year of the Employment
Period and Two Hundred Seventy Five Thousand ($275,000) per year during each of
the second and third years of the Employment Period, which shall be payable in
equal periodic installments according to the Company's normal payroll practices,
but no less frequently than monthly. The salary of Executive may be (but is not
required to be) increased from time to time in the discretion of the CEO of FIND
based upon such factors as each of the CEO of FIND and the Company's Board of
Directors may consider relevant. If the Employment Period ends on a day that
precedes the last accounting day of a fiscal or compensation period, any amounts
payable to the Executive for that period shall be reduced in accordance with a
fraction of which the numerator shall be the number of days of the period during
which the Employment Period was in effect and the denominator shall be the
number of days comprising the entirety of such fiscal or compensation period.
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(b) OMG Bonus Program. In addition to the Salary and benefits
provided hereunder, Executive shall be entitled to participate in any OMG bonus
incentive plan pursuant to the terms thereof, as may be adopted or amended from
time to time.
(c) Expense Reimbursement. The Company shall reimburse the Executive
for ordinary, necessary and reasonable expenses incurred by him in the
performance of the Executive's duties hereunder substantiated with proper
invoices, receipts, or other supporting documentation, including expenses of
travel, lodging and sustenance while away from home on business of the Company,
provided that such expenses are incurred and accounted for in accordance with
the reasonable policies and procedures established by the Board of Directors of
the Company and the CEO of FIND from time to time. Executive shall file expense
reports with respect to such expenses. Except such expenses that will be
reimbursed by a client or customer of the Consolidated Companies, Executive
shall not incur expenses in excess of $3,000 in connection with (i) a business
trip or (ii) any other individual or series of related personal expenditures
without the prior written authorization of the CEO of FIND.
(d) Benefit Plans. During the Employment Period, subject to the
eligibility and other conditions thereof and payment of any required
contributions, the Executive and his immediate family shall be entitled to
participate in all employee pension or welfare benefit plans and arrangements
generally maintained for executive employees of FIND (presently or in the
future, and subject to termination or amendment) and in which the Executive is
or may become eligible to participate (including, without limitation, any
defined benefit pension plan currently maintained by FIND, group life insurance,
accidental death and dismemberment plans, and medical plans) or, if during the
Employment Period the Executive cannot be covered by the Company's medical plan
or such medical plans are terminated or amended, the Company will use reasonable
efforts to provide Executive and his family with coverage comparable to the
medical plan of the Company on the date hereof. The Company and FIND retains the
right to terminate, alter, replace or modify benefits under any medical plans or
policies on a non-discriminatory basis from time to time.
(e) Vacations. During the Employment Period, the Executive shall be
entitled to four (4) weeks of paid vacation annually (subject to prorating for
partial years), to be taken at such times as are consistent with the needs of
the Company and the convenience of the Executive, plus such other holidays,
personal days or other days as may be determined in accordance with the
Company's policies as in effect from time to time. Unused parts of any vacation
and unused holidays will not be separately compensable or otherwise form the
basis for additional compensation and shall not be accumulated so as to be
available in respect of any subsequent 12-month period.
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(f) Stock Options. Pursuant to the terms of the FIND/SVP, INC. 2003
Stock Incentive Plan, or such other stock incentive plan of FIND as may be in
effect from time to time (the "Plan") the Executive shall be granted options to
purchase up to 25,000 shares of Common Stock per year at the end of each
calendar year of the term with such number of shares granted based upon the
performance criteria set forth on Schedule 5(f) hereof, which number of shares
shall be prorated during any calendar year in which the Executive was employed
by the Company for less than the full year. The terms and provisions of the
options and any other compensation paid pursuant to this Section shall be more
fully set forth in stock option agreements and other appropriate agreements to
be entered into by the Executive and FIND. The grant thereof shall be subject to
the terms of the Plan and the execution of such agreements. If an amount of
shares or options under the Plan are not immediately available for issuance
pursuant to the terms hereof, such shares and options will be issued promptly
upon becoming available.
(g) Tax and Other Withholdings. The amounts payable under this
Section 5 or Section 6(d) hereof are subject to all applicable federal and state
income tax, social security and other governmentally mandated withholdings, and
any contributions the Executive may authorize to be withheld from his
compensation.
(h) Indemnification. FIND shall, or shall cause the Company to,
indemnify Executive if the Executive is a party to or threatened to be made a
party to or otherwise involved in any proceeding by reason of the fact that
Executive is or was an agent of the Company, including any proceeding based upon
any act or inaction by Executive in his capacity as an agent of the Company,
against any and all expenses, judgments, fines and penalties actually and
reasonably incurred by him in connection with such proceeding, but only if the
Executive acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Company, and, with respect to any
criminal proceeding, had no reasonable cause to believe his conduct was
unlawful. FIND shall, or shall cause the Company to, advance all expenses
incurred by Executive in connection with any proceeding to which Executive is a
party or is threatened to be made a party by reason of the fact that Executive
is or was an agent of the Company. Executive hereby undertakes to repay such
amounts advanced only if, and to the extent that, it shall ultimately be
determined that Executive is not entitled to be indemnified by FIND or the
Company as authorized by this Agreement. The advances to be made hereunder shall
be paid by FIND or the Company to or on behalf of Executive within thirty (30)
days following delivery of a written request therefor by Executive to FIND and
the Company. The provisions for indemnification and advancement of expenses set
forth in this Section 5(h) shall not be deemed exclusive of any other rights
which Executive may have under any provision of law, the Company's Certificate
of Incorporation or By-Laws, other agreements or otherwise, and Executive's
rights hereunder shall continue after Executive has ceased acting as an agent of
the Company and shall inure to the benefit of Executive's heirs, executors and
administrators.
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Section 6. Termination of Employment.
(a) For Cause. The Company may terminate the Executive's employment
and all of the Company's obligations hereunder (unless such provisions
explicitly survive termination) at any time for Cause, as defined below. Such
termination shall be evidenced by written notice delivered to the Executive,
unequivocally stating the Company's decision to terminate the Executive's
employment under this Section 6(a) and specifying the facts forming the basis
for the Cause for such termination. Such termination shall be effective on the
date stated in such notice; provided, that in no event shall such termination
date be more than sixty (60) days after the date that the notice is delivered.
For purposes hereof, the term "Cause" shall mean one or more of the following:
(i) the court appointment of a conservator or like official for the person or
property of the Executive; (ii) the Executive's conviction of, or the entering
of a guilty plea or plea of no contest with respect to, a crime of moral
turpitude or a felony; (iii) the issuance of a court order, judgment or decree
enjoining or having the effect of preventing the Executive from performing his
duties under this Agreement; (iv) the Executive's failure to substantially
perform his duties hereunder under the direction of the CEO of FIND or to adhere
to any written Company policy generally applied (or FIND policy applicable to
the Company and generally applied) if the Executive has been given a reasonable
opportunity to comply with such duties or policy or cure his failure to comply
(which reasonable opportunity must be granted by notice no less than thirty (30)
days preceding termination of this Agreement, if reasonably curable during such
period, or if not reasonably curable in such period, the Executive commences to
cure such breach within such period and diligently proceeds to cure such breach
no later than forty (40) days after the giving of notice, except that if two
such prior notices have been received by Executive for substantively the same or
related matter, no further notice or cure or compliance period shall be
required); (v) because of his physical or mental illness, injury, disability or
incapacity, the Executive does not fulfill his duties hereunder on a full-time
basis for either seventy-five (75) consecutive days or one hundred twenty (120)
days in any period of eighteen (18) months; (vi) the Executive's commission of
an act of fraud, deception or dishonesty when acting for the Company or under
other circumstances, and such act xxxxx or may reasonably be expected to harm
the Company or any of its Affiliates or their respective businesses, including,
without limitation, (A) the appropriation (or attempted appropriation) of a
material business opportunity of the Company, including attempting to secure or
securing any personal profit in connection with any transaction entered into on
behalf of the Company and (B) the misappropriation (or attempted
misappropriation) of any of the Company's funds or property; (vii) the
Executive's gross negligence or willful misconduct in connection with his duties
hereunder; or (viii) the Executive's breach of any of the covenants contained in
Section 4 hereof.
(b) For Good Reason. The Executive shall be entitled to terminate
Executive's employment and all of his obligations hereunder (except the
obligations set forth in (i) Section 4 unless otherwise permitted pursuant to
Section 4(g) hereof and (ii) Sections 6(d) and 6(e)) for Good Reason, as defined
below, and as of the expiration of a period of thirty (30) days following the
Executive's delivery of a written notice to the Company setting forth his
election to terminate the Executive's employment hereunder and specifying the
facts forming the basis for the Executive's exercise of his right of termination
pursuant to this Section. For purposes of this Agreement, "Good Reason" shall
mean (i) any act or omission on the part of the Company , Find or their
respective Affiliates which constitutes a material breach of this Agreement,
unless the Company , Find or their respective Affiliates, as applicable, ceases,
corrects and cures all adverse effects of such breach within the thirty (30) day
notice period specified in this Section, if reasonably curable during such
period, or if not reasonably curable in such period, the Company commences to
cure such breach within such period and diligently proceeds to cure such breach
no later than forty (40) days after the giving of notice, (ii) the material
diminution of Executive's position, duties, responsibilities and status with the
Company, or (iii) a relocation of the Executive's offices to more than a twenty
(20) mile radius outside of Arlington, Virginia.
10
(c) Other than for Cause. Subject to Executive's rights pursuant to
Section 6(d) hereof, the Company shall be entitled to terminate this Agreement
for any or no reason.
(d) Compensation and Benefits Following Termination.
(I) If the Executive's employment with the Company is terminated by
the Company upon the death of Executive, for Cause in accordance with Section
6(a) hereof or by the Executive for other than Good Reason in accordance with
Section 6(b) hereof, the Company shall pay the Executive, without deduction or
set off except for tax, social security or other mandated withholdings, the
amounts set forth in subsections (A) and (B) below:
(A) On or before the executive's payroll date next following the
day on which such termination becomes effective (the
"Termination Date"), an amount equal to that proportion of the
Executive's salary, at the rate then in effect, determinable
under Section 5(a) hereof, and
(B) With reasonable promptness following the Termination Date,
reimbursement for all expenses subject to reimbursement under
Section 5(c) hereof.
(II) If the Executive's employment with the Company is terminated
(a) by the Company other than for Cause (except as a result of the death of
Executive), or (b) by the Executive for Good Reason, the Executive shall
continue to be provided his Base Salary and the benefits specified in Section
5(d) for a period that is the greater of one year and the time remaining in the
Employment Period; provided, however, that if the Company discovers that the
Executive has violated any part of Section 4 hereof, the Executive shall not be
entitled to such payments.
(III) After termination of the Employment Period and any additional
period for which he is being paid or due salary pursuant to Section 6(d)(II)
hereof, Executive shall be entitled, at his own cost, to continue any medical
benefits provided to him during the Employment Period to the extent permitted
under the policies and plans of the Company.
(IV) Executive agrees that no payments or benefits shall be due
Executive after the Employment Period under this Section 6 or otherwise with
respect to this agreement or Executive's employment with the Company until such
time as Executive executes before a notary the Release annexed hereto as Exhibit
6(d)(IV) hereto and delivers an original counterpart thereof to the CEO of FIND.
(e) Use and Return of Materials. At the termination of the
Employment Period, irrespective of the reasons for such termination, the
Executive shall return to the CEO of FIND the originals and all copies of
correspondence, memoranda, papers, files, records and other materials that may
at any time have come into his possession and relate to the business and affairs
of the Company or any of its Affiliates.
11
Section 7. Costs of Enforcement. In the event that either party brings an
action to enforce such party's rights under this Agreement, including any
provision of Section 4 hereof, any party or parties prevailing in such action by
judgment or order of a court of competent jurisdiction shall be entitled to
recover from the party or parties against whom the order is given or the
judgment is entered all costs and expenses, including reasonable attorneys'
fees, incurred by the prevailing party or parties with respect to such action,
such award of costs and expenses to be determined by the Court.
Section 8. Reasonableness of Restrictions: Severability. The Executive has
carefully read and considered the provisions of Section 4 hereof, and agrees
that the restrictions set forth in such Section are fair and are reasonably
required for the protection of the legitimate interests of the Company. In the
event that, notwithstanding the foregoing, any section of this Agreement, or any
other part hereof, shall be held by a court of competent jurisdiction to be
invalid or unenforceable, the remaining provisions thereof and hereof shall
nevertheless continue to be valid and enforceable as though the invalid or
unenforceable parts had not been included therein. Without limiting the
foregoing, in the event that any provision of Section 4 hereof relating to the
time period or the areas of restriction (or both) shall be held by a court of
competent jurisdiction to exceed the maximum time period or area such court
deems reasonable and enforceable, the time period or areas of restriction (or
both) deemed reasonable and enforceable by the court shall become and thereafter
be the maximum time period or areas of restriction (or both). The periods of
time applicable to any covenant in Section 4 shall be extended by the duration
of any violation by the Executive of such covenant. The Executive shall, while
the covenants under Section 4 are in effect, give notice to the Company, within
ten days after accepting any other employment, of the identity of the
Executive's employer. The Company may notify such employer that the Executive is
bound by this Agreement and, at the Company's election, furnish such employer
with a copy of the relevant portions of this Agreement.
Section 9. Successors and Assigns. This Agreement shall bind and inure to
the benefit of the successors and assigns of the Company and the Executive's
heirs and legal representatives. This Agreement and the rights, interest and
benefits of the Executive shall not, however, be subject to voluntary or
involuntary assignment, transfer, or hypothecation, directly or indirectly, by
the Executive or his heirs and legal representatives without the prior written
consent of the Board of Directors of the Company.
Section 10. Modification and Waiver. No modification or waiver of any of
the provisions of this Agreement, and no extension or renewal of or substitution
for this Agreement shall be binding upon either of the parties hereto unless
made in writing and signed by the Executive and signed on behalf of the Company
by its duly authorized officer.
Section 11. Entire Agreement. This Agreement and the applicable provisions
of the Purchase Agreement constitute the entire agreement between the parties
hereto with respect to the employment of the Executive and supersede any and all
prior agreements, whether oral or written, concerning such employment.
Section 12. Notices. All notices and other communications provided in
connection with this Agreement shall be in writing and shall be deemed
effectively given in all respects (a) when received, if manually delivered or
delivered by overnight mail courier; or (b) at the time of transmission if
transmitted by facsimile (with confirmed receipt) and confirmed in written hard
copy actually delivered prior to the end of the third business day thereafter.
12
Notice to the Company shall be addressed to:
FIND/SVP, INC.
000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Chief Executive Officer
With copies to:
Xxxx Xxxxxxx, P.C.
1350 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
or at such other address or to the attention of such other person as the Company
may designate by written notice to the Executive.
Notices to the Executive shall be addressed to:
Xxxxxxx Xxxxxxx House
0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000
With a copy to:
Shulman, Rogers, Gandal, Pordy & Xxxxx, P.A.
00000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Xxxxx Xxxxxxx
Fax: (000) 000-0000
Section 13. Choice of Law; Jurisdiction and Venue. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
without reference to the choice of law principles thereof. The parties further
agree (a) that this Agreement shall be subject to the exclusive jurisdiction of
the courts of New York County, New York; (b) that any breach of any term or
condition of this Agreement shall be deemed to be a breach occurring in the
State of New York by virtue of a failure to perform an act required to be
performed in the State of New York and irrevocably and expressly agree to submit
to the jurisdiction of the courts of the State of New York for the purpose of
resolving any disputes among the parties relating to this Agreement or the
transactions contemplated hereby; and (c) to irrevocably waive, to the fullest
extent permitted by law, any objection which they may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating
to this Agreement, or any judgment entered by any court in respect hereof
brought in New York County, New York, and further irrevocably waive any claim
that any suit, action or proceeding brought in New York County, New York has
been brought in an inconvenient forum.
13
Section 14. Counterparts; Facsimile Transmission This Agreement may be
executed in one or more counterparts, each of which shall be deemed to be an
original copy of this Agreement and of which, when taken together, shall be
deemed to constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement by facsimile shall be
effective as delivery of a manually executed counterpart of this Agreement,
provided, however, that in each instance an original executed counterpart shall
be promptly delivered to the other party by hand or overnight courier.
Section 15. Survival. The provisions of Sections 4, 6(d), 6(e) and 7 shall
survive the termination of this Agreement.
Section 16. Participation of Parties. The parties hereto acknowledge that
this Agreement and all matters contemplated herein, have been negotiated among
all parties hereto and their respective legal counsel and that all such parties
have participated in the drafting and preparation of this Agreement from the
commencement of negotiations at all times through the execution hereof.
14
IN WITNESS WHEREOF, the Company and the Executive have duly executed this
Agreement on or as of the Effective Date.
COMPANY:
SIGNIA PARTNERS INCORPORATED
By:/s/ Xxxxx Xxxxx
---------------------
Name: Xxxxx Xxxxx
Title: Vice President
EXECUTIVE:
/s/ Xxxxxxx Xxxxxxx House
----------------------------
XXXXXXX XXXXXXX HOUSE
ACCEPTED AND AGREED TO
WITH RESPECT TO THE SPECIFIC
PROVISIONS OF SECTIONS
5(d) and 5(f):
FIND/SVP, INC.
By: /s/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
