NFO WORLDWIDE, INC.
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of December 1, 1997, by and between
NFO Worldwide, Inc., a Delaware corporation (the "Company"), and Xxxxxx X.
Xxxxxxxx (the "Executive").
The Board of Directors of the Company (the "Board") recognizes
that the Executive's contribution to the growth and success of the Company has
been substantial and desires to assure the Executive's continued employment with
the Company as its President -- Healthcare and Consumer Packaged Goods and to
compensate him therefor, and the Executive is willing to be employed by the
Company on the terms herein provided.
In consideration of the foregoing and the respective covenants
and agreements of the parties herein contained, the parties hereto agree as
follows:
1. Employment and Acceptance.
The Company hereby employs the Executive and the Executive
hereby accepts employment from the Company, upon the terms and conditions set
forth in this Agreement, for the period beginning on the date hereof and ending
as provided in paragraph 5 hereof (the "Employment Period").
2. Duties and Authority.
2.1 Duties. The Executive agrees to use his best
efforts, skill and abilities to promote the Company's interest in his capacity
as President -- Healthcare and Consumer Packaged Goods of the Company, and to
per form such duties (consistent with his status as set forth in this Section 2)
as may be assigned to him by the Board.
2.2 Title. The Executive shall be the President
-- Healthcare and Consumer Packaged Goods of the Company.
3. Place of Employment.
The duties to be performed by the Executive hereunder shall be
performed primarily at the executive headquarters of the Company's subsidiary,
Xxxxxxxx/Xxxxxx Associates, Inc., subject to reasonable travel requirements on
behalf of the Company.
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4. Compensation and Benefits.
4.1 Compensation. As compensation for services
to be rendered pursuant to this Agreement, the Company shall pay the Executive a
salary at the annual rate of no less than $280,000 (the "Base Salary"), payable
in accordance with the payroll policy of the Company, less such deductions or
amounts to be withheld as shall be required by applicable law and regulations.
The Executive's salary shall be reviewed annually and, at the discretion of the
Board, may be increased on each January 1 of the Employment Period.
4.2 Bonus. The Executive's incentive
compensation package ("Annual Bonus") shall be determined by the Compensation
Committee of the Board.
4.3 Employee Benefit Plans: Fringe Benefits.
Except as provided in the following sentence, the Company agrees to continue in
all material respects on terms at least as favorable to the Executive (as
determined in the good faith judgment of the Board) as those in effect on the
date hereof that the Executive currently receives, all group life,
hospitalization or disability insurance plans, health programs, pension plans,
profit sharing plans, similar benefit plans, automobile and relocation
allowances and other so-called "fringe benefits" of the Company (collectively,
"Fringe Benefits"). The Company agrees that each of the Fringe Benefits in
effect on the date hereof or at any time during the Employment Period shall not
be terminated, modified or replaced in any manner that materially reduces the
benefits to the Executive without the written consent of the Executive, unless
such termination or modification relates to a Fringe Benefit that is available
generally to employees of the Company or to executive employees of the Company
and such termination or modification affects all employees covered by such
Fringe Benefit.
4.4 Vacations. The Executive shall be entitled
to reasonable non-accumulating annual periods of vacation (not less than an
aggregate of four weeks in any calendar year) with full pay.
4.5 Country Club Membership. During the
Employment Period, the Company shall pay all of the Executive's fees, bonds and
annual dues for a country club membership. All personal expenses are to be paid
by the Executive.
4.6 Term Insurance. During the Employment
Period, the Company shall provide the Executive with a term life insurance
policy consistent with the policies of the Company's other members of the Office
of the President, providing coverage of $400,000 payable to a beneficiary to be
designated by the Executive.
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5. Term.
(a) The Employment Period shall end on December
1, 2000, provided that (i) the Employment Period shall terminate prior to such
date upon the Executive's resignation, death or permanent disability or
incapacity (as determined in good faith by the Board in its good faith judgment)
and (ii) the Employment Period may be terminated by the Company at any time
prior to such date for Cause (as defined below) or without Cause.
(b) If at any time the Employment Period is
terminated by the Company without Cause or the Employment Period is terminated,
at any time prior to a "Change in Control," by the resignation of the Executive
for the reason specified in subsections (i) or (iv) of the definition of "Good
Reason" (subject to the cure period contained in such definition), the Executive
shall be entitled to receive his Base Salary through December 1, 2000; provided,
however, that the Executive shall only be entitled to receive his Base Salary so
long as he has not materially breached the provisions of paragraphs 6, 7 and 8
hereof.
(c) If the Employment Period is terminated by
the Company for Cause or is terminated pursuant to clause (a)(i) above, the
Executive shall be entitled to receive his Base Salary through the date of
termination; provided, however, that, notwithstanding the foregoing, if the
Employment Period shall be terminated pursuant to clause (a)(i) above by the
resignation of the Executive for "Good Reason" at any time following a "Change
in Control" of the Company, the Executive shall be entitled to receive, and the
Company shall be required to provide to the Executive, the Executive's
then-current Base Salary through the later of (i) December 1, 2000, or (ii) the
first anniversary of such resignation, and, in such event, the Executive shall
also be entitled to receive, and the Company shall be required to provide to the
Executive, a pro-rated portion of the Executive's bonus for the year in which
such resignation occurs, such bonus to be payable within thirty days of such
termination.
For purposes of this Agreement, the phrase "Change in Control"
shall mean the following and shall be deemed to have occurred if any of the
following events shall have occurred: (i) any "person" or "group" (as such terms
are used in Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended, (the "Exchange Act")) is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act as in effect on the date hereof, except
that a person shall be deemed to be the "beneficial owner" of all shares that
any such person has the right to acquire pursuant to any agreement or
arrangement or upon exercise of conversion rights, warrants, options or
otherwise, without regard to the sixty-day period referred to in such Rule),
directly or indirectly, of securities representing 30% or more of the combined
voting power of the Company's then outstanding voting securities; or (ii) at any
time during any period of two consecutive years (not including any period prior
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to the execution of this Agreement), individuals who at the beginning of such
period constituted the Board and any new directors, whose election by the Board
or nomination for election by the Company's stockholders was approved by a vote
of at least two-thirds (2/3) of the Company directors then still in office who
either were the Company directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any
reason to constitute a majority thereof. Notwithstanding the foregoing, a Change
in Control shall not be deemed to occur merely by reason of an acquisition of
Company securities by, or any consolida tion, merger or exchange of securities
with, any entity that, immediately prior to such acquisition, consolidation,
merger or exchange of securities, was a "subsidiary", as such term is defined
below. For these purposes, the term "subsidiary" means (i) any corporation of
which 95% of the capital stock of such corporation is owned, directly or
indirectly, by the Company and (ii) any unincorporated entity in respect of
which the Company has, directly or indirectly, an equivalent degree of
ownership.
For purposes of this Agreement "Good Reason" shall mean the
following and shall be deemed to have occurred if any of the following events
shall have occurred: (i) the Executive is removed from the position of President
-- Healthcare and Consumer Packaged Goods, or is assigned duties and
responsibilities that are inconsistent, in a material adverse respect, with the
scope of duties and responsibilities associated with the Executive's position as
President -- Healthcare and Consumer Packaged Goods; (ii) the Company fails to
pay the Executive any amounts otherwise due hereunder; (iii) the Executive's
Base Salary is reduced or his Fringe Benefits are reduced; or (iv) the Company's
requiring the Executive to move his primary place of employment to a location
that is 50 miles or more from Xxxxxxxx/Xxxxxx Associates, Inc. headquarters in
Owings Mills, Maryland; provided, in any such case, that the Executive has
notified the Company in writing of the basis for claiming his entitlement to
resign from his employment for Good Reason and the Company has failed to cure
such condition within 10 days following the receipt of such notice from the
Executive.
(d) The Executive shall receive Fringe Benefits
during any period in which the Executive is entitled to receive his Base Salary
hereunder, and thereafter such rights to Fringe Benefits shall cease.
(e) In the event of a "Change in Control" of the
Company, or in the event that the Employment Period is terminated by the Company
without Cause, each of the Executive's stock options granted under the NFO
Worldwide, Inc. Stock Option Plan (the "Plan") shall immediately become fully
exercisable. In the case of termination of the Employment Period by the Company
without Cause, or if the Employment Period is terminated pursuant to clause
(a)(i) above by the resignation of the Executive for "Good Reason" at any time
following a "Change in Control" of the Company, each of the Executive's stock
options granted under the Plan shall remain exercisable for a period of 12
months after such termination, except
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to the extent the Committee (as defined in the Plan) permits exercise after such
date in accordance with the Plan.
(f) For purposes of this Agreement, "Cause"
shall mean (i) the commission of a felony or a crime involving moral turpitude
or the commission of any other act involving dishonesty, disloyalty or fraud
with respect to the Company or any of its subsidiaries, (ii) conduct tending to
bring the Company or any of its subsidiaries into substantial public disgrace or
disrepute, (iii) substantial and repeated failure to perform duties as
reasonably and lawfully directed by the Board, (iv) gross negligence or willful
misconduct with respect to the Company or any of its subsid iaries or (v) any
other material breach of this Agreement which is not cured within 15 days after
written notice thereof to the Executive.
6. Confidential Information. The Executive acknowledges
that the information, observations and data obtained by him while employed by
the Company (including those obtained while employed by the Company and its
predecessors prior to the date of this Agreement) concerning the business or
affairs of the Company or any subsidiary of the Company ("Confidential
Information") are the property of the Company or such subsidiary. Therefore,
Executive agrees that he shall not disclose to any unauthorized person or use
for his own account any Confidential Information without the prior written
consent of the Board, unless and to the extent that the afore mentioned matters
are or become generally known to and available for use by the members of the
industry in which the Company operates other than as a result of Executive's
acts or omissions to act. Executive shall deliver to the Company at the
termination of the Employment Period, or at any other time the Company may
request, all memoranda, notes, plans, records, reports, computer tapes and
software and other documents and data (and copies thereof) relating to the
Confidential Information, Work Product (as defined in Section 7) or the business
of the Company or any subsidiary which he may then possess or have under his
control.
7. Inventions and Work Product. The Executive agrees
that all inventions, innovations, improvements, developments, methods, designs,
analyses, drawings, reports, and all similar or related information which
relates to the Company or any of its subsidiaries' actual or anticipated
business, research and development or existing or future products or services
and which are conceived, developed or made by Executive while employed by the
Company, such subsidiary or the Company's predecessors ("Work Product") belong
to the Company or such subsidiary. The Executive will promptly disclose such
Work Product to the Board and perform all actions reasonably requested by the
Board (whether during or after the Employment Period) to establish and confirm
such ownership (including, without limitation, assignments, consents, powers of
attorney and other instruments).
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8. Non-Compete, Non-Solicitation.
(a) The Executive acknowledges that in the
course of his employment with the Company and its subsidiaries he will become
familiar, and during his employment with the Company and its predecessors he has
become familiar, with the Company's and its subsidiaries' trade secrets and with
other confidential information concerning the Company, its subsidiaries and the
Company's predecessors and that his services have been and will be of special,
unique and extraordinary value to the Company and its subsidiaries. Therefore,
the Executive agrees that, during the Employment Period and in the case of (x)
termination for Cause, resignation (other than resignation for "Good Reason"
following a "Change in Control") or, if applicable, the expiration (and
non-renewal) of the Employment Period on December 1, 2000, for three years
thereafter, or (y) termination without Cause, during the period in which the
Executive receives payment of Base Salary pursuant to Section 5(b) (without
regard to the proviso contained therein) (the applicable period being referred
to herein as the "Initial Noncompete Period"), he shall not directly or
indirectly own, manage, control, participate in, consult with, render services
for, or in any manner engage in any business competing with the businesses of
the Company or its subsidiaries as such businesses exist or are in process on
the date of the termination of the Executive's employment (any of the foregoing,
to "Compete"), within any geographical area in which the Company or its
subsidiaries engage or plan to engage in such businesses. In addition, the
Executive agrees that he shall not Compete in any such geographical area during
the two years following the termination of the Initial Noncompete Period (the
"Limited Noncompete Period" and, together with the Initial Noncompete Period,
the "Noncompete Period"); provided, however, that the Executive may perform
consulting services during the Limited Noncompete Period so long as any such
consulting services provided to any Client (as defined below) of the Company or
its subsidiaries (collectively, the "Companies"), are not the same as,
substantially similar to, or otherwise compete with, services offered by any of
the Companies. For purposes of this Section 8, the term "Client" shall mean a
person or entity who on the date of the termination of the Executive's
employment is a client of any of the Companies, or was a client of any of the
Companies at any time during the three years prior to such date. The Company and
the Executive agree, that in providing the consulting services referred to in
the proviso above, the Executive (i) may employ commonly accepted "generic
market research techniques" (such as focus groups), (ii) may not promote, use or
sell proprietary techniques, sales materials, programs or software of any of the
Companies or any techniques, sales materials, programs or software derived
therefrom and (iii) may not promote or position such services in a manner that
competes with any of the Companies. Nothing herein shall prohibit the Executive
from being a passive owner of not more than 5% of the outstanding stock of any
class of a corporation which is publicly traded, so long as the Executive has no
active participation in the business of such corporation.
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(b) During the Employment Period, Noncompete
Period and, if applicable, for the period of three years following the
expiration (and non-renewal) of the Employment Period on December 1, 2000, the
Executive shall not directly or indirectly through another entity (i) induce or
attempt to induce any employee of the Company or any subsidiary to leave the
employ of the Company or such subsidiary, or in any way interfere with the
relationship between the Company or any subsidiary and any employee thereof,
(ii) hire any person who was an employee of the Company or any subsidiary at any
time during the Employment Period, or (iii) induce or attempt to induce any
customer, supplier, licensee or other business relation of the Company or any
subsidiary to cease doing business with the Company or such subsidiary, or in
any way interfere with the relationship between any such customer, supplier,
licensee or business relation and the Company or any subsidiary.
(c) If, at the time of enforcement of this
paragraph 8, a court shall hold that the duration, scope or area restrictions
stated herein are unreasonable under circumstances then existing, the parties
agree that the maximum duration, scope or area reasonable under such
circumstances shall be substituted for the stated duration, scope or area and
that the court shall be allowed to revise the restrictions contained herein to
cover the maximum period, scope and area permitted by law.
(d) In the event of the breach or a threatened
breach by the Executive of any of the provisions of this paragraph 8, the
Company, in addition and supplementary to other rights and remedies existing in
its favor, may apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive or other relief in order to enforce or
prevent any violations of the provisions hereof (without posting a bond or other
security).
9. Other Provisions.
9.1 Indemnification. The Company shall indemnify
the Executive against, and shall advance expenses incurred by the Executive in
the investigation and defense of, any claim arising out of his employment under
this Agreement to the fullest extent permitted by the Delaware General
Corporation Law.
9.2 Notices. Any notice or communication
required or permitted hereunder shall be in writing and shall be delivered by
certified, registered or express mail, postage prepaid. Any such notice shall be
deemed given when so delivered as follows:
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(i) If to the Company, to:
NFO Worldwide, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
(ii) If the Executive, to the Executive in care
of the Company at the above address, with a copy to the Executive at his
then-current residence.
Any party may change its address for notices hereunder by
notice to the other parties in accordance with this Section 9.2.
9.3 Governing Law. This Agreement shall be
governed by and interpreted in accordance with the laws of the State of
Connecticut applicable to agreements made and to be performed entirely within
such state.
9.4 Entire Agreement; Amendments and Waivers.
This instrument is the entire agreement of the parties with respect to the
subject matter hereof and may not be amended, supplemented, canceled or
discharged except by written instrument executed by both parties hereto. The
Employment Agreement dated as of January 1, 1996 between Xxxxxxxx/Xxxxxx
Associates, Inc. and the Executive is hereby terminated as of the date hereof
and is replaced hereby. The parties do not intend to confer any benefit
hereunder on any third person, and, without limiting the generality of the
foregoing, the parties may, in writing, without notice to or consent of any
third person, at any time waive any rights hereunder or amend this Agreement in
any respect or terminate this Agreement. If either party should waive any breach
of any provision of this Agreement, such party will not thereby be deemed to
have waived any preceding or succeeding breach of the same provision or any
breach of any other provision of this Agreement.
9.5 Validity. The invalidity or unenforceability
of any provision or provisions of this Agreement shall not affect the validity
or enforceability of any other provision of this Agreement, which shall remain
in full force and effect.
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9.6 Assignment. This Agreement, and any rights
and obligations hereunder, may not be assigned by any party hereto without the
prior written consent of the other party.
9.7 Headings. Section headings are inserted
herein for convenience only and do not constitute a part, and shall not affect
the interpretation, of this Agreement.
9.8 Counterparts. This Agreement may be executed
in counterparts, each of which shall be deemed to be an original and all of
which together shall constitute one and the same instrument.
9.9 Survival. Paragraphs 6, 7 and 8 and those
provisions of Paragraph 5 regarding compensation of the Executive following
termination of employment, shall survive and continue in full force in
accordance with their terms notwithstanding any termination of the Employment
Period.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
NFO WORLDWIDE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman, President and
Chief Executive Officer
/s/ Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X. Xxxxxxxx
