November 21, 2001
Xxx Xxxxxx
c/o Xxxxxx Equities, LLC
000 Xxxxxxxx Xxxxx Xxxxxx
Xxxxx X-000
Xxx, Xxx Xxxx 00000
Dear Ian:
You and the undersigned, Find/SVP, Inc. (the "Company") have had
discussions regarding your engagement as a consultant to the Company. When
agreed to and accepted by you in the space provided below, the following shall
constitute our agreement regarding the foregoing:
1. Consulting Services.
(a) The Company hereby engages you, and you hereby accept the
engagement, to render consulting services to the Company on all aspects of its
business, including, without limitation, finance, mergers and acquisitions, and
management, and to help the Company develop a strategic plan for its business
(collectively, the "Services").
(b) The Services shall be rendered by you on an "as needed" basis.
(c) The Services shall commence as of the date hereof and shall
continue for a period of three (3) years, unless sooner terminated by either
party upon thirty (30) days prior written notice to the other party.
(d) As compensation for the Services, the Company shall grant and
deliver to you a ten year Non-Incentive Stock Option (the "Option") to purchase
seventy thousand (70,000) shares of the Company's common stock, par value $.0001
per share at a price of $.41 per share, pursuant to the terms of the Company's
1996 Stock Option Plan (which would be amended to increase the number of shares
covered by such Plan to facilitate the issuance of the Options to be granted
hereunder) or a new stock option plan to be adopted by the Company. The Option
shall vest ratably at the end of each of the first three years of its term, and
such vesting shall accelerate and vest immediately in the event of a Change in
Control of the Company or upon termination of this Agreement without "cause", or
upon your death or permanent disability. For the purpose of this Agreement, a
"Change of Control" shall mean:
(i) The acquisition by any person, entity or "group," within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934
(the "Exchange Act")
(excluding, for this purpose, you, any group (as defined above) of which
Employee is a member, the Company or its subsidiaries, or any employee benefit
plan of the Company or its subsidiaries which acquires beneficial ownership of
voting securities of the Company) of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of more than 50% of either the
then outstanding shares of common stock of the Company or the combined voting
power of the Company's then outstanding voting securities entitled to vote
generally in the election of directors; or
(ii) Individuals who, as of the date hereof, constitute the Board
(as of the date hereof the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board, provided that any person becoming a director
subsequent to the date hereof whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the election of the
Directors of the Company, as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Exchange Act) shall be, for purposes of this
Agreement, considered as though such person were a member of the Incumbent
Board.
2. Confidentiality; Non-Compete; Non-Solicitation.
(a) You acknowledge that the Company is in the information services
business and that as a consultant you will be familiar in detail with the
activities of the Company and will participate in formulating the activities;
that you will continue to be familiar in detail with the activities and future
plans of the Company as they continue to develop during your consulting term;
and that your position will give you a thorough knowledge of the Company's
customers, suppliers and servicing and marketing operations and will place you
in close and continuous contact with the Company's customers and suppliers. You
further acknowledge that if you were to compete with the Company by organizing,
directing, advising, assisting or becoming an employee of or consultant to any
business entity, as defined below, competing with the Company, you could do
great harm to the Company and would materially diminish or destroy the value to
the Company of its customer and supplier relationships and servicing and
marketing arrangements.
Accordingly, during the term of this agreement and for a period of
one (1) year immediately following the termination thereof (the term of this
agreement and the subsequent one (1) year period being collectively referred to
as the "Covenant Period") unless otherwise consented to by the Company in
writing, you shall not, within any city, town or county in which the Company or
any of its affiliates conducts or does any business, directly or indirectly,
either for yourself or as an officer, director, stockholder, partner, associate,
employee, consultant, agent, independent contractor, or representative, become
or be interested in or associated with any other business or business entity, as
defined below (except a parent, subsidiary or affiliate of the Company), which
is engaged directly or indirectly in any line of business which is competitive
with any line of business in which the Company may be engaged at the time of
termination of your consulting services hereunder; provided, that the you shall
be permitted to own less than a 5% interest as a stockholder (and in no other
capacity) in a company which is listed on any stock exchange or recognized
over-the-counter market system even though it may be in competition with the
Company. The
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restrictions of this Section 2 shall not apply in the event of a Change of
Control or termination of this Agreement by the Company without cause.
As used in this Agreement, the term "business entity" shall include,
but not be limited to, any corporation, firm, partnership, association, trust,
group, joint venture, or individual proprietorship.
(b) You shall not, during the Covenant Period or thereafter,
disclose to any business entity any confidential information regarding the
customers, suppliers, marketing arrangements or methods of operation of the
Company, or any other confidential information of the Company, except that
nothing contained in this sentence shall be construed to prevent you from using
or disclosing any general technical knowhow and information that is (i) in the
public domain or of a nature known generally throughout the industry, (ii)
required by law, (iii) was known to you prior to its disclosure by the Company,
(iv) is or becomes generally available to the public other than as a result of
an unauthorized disclosure by you; (v) becomes available to you through a source
other than the Company, or (vi) is independently developed by you.
(c) You shall, during the term of this agreement, promptly reveal to
the Company all matters coming to your attention pertaining to the business or
interests of the Company.
(d) Unless otherwise consented to by the Company in writing, you
shall not, for a period of one (1) year immediately following the termination of
your consulting services, hire or solicit for hiring, on your own behalf or on
behalf of any business entity, any person known to you to be a key employee of
the Company as of the date of termination.
(e) You shall not, during the term of this agreement or upon
termination thereof, remove from the offices of the Company, any studies,
samples, reports, plans, contracts, publications, customer lists or other
similar items nor copies or facsimiles thereof, except as the same may relate to
the performance of your duties hereunder, or as otherwise authorized by the
Company.
(f) The provisions of Section 2 of this agreement contain a number
of separate and divisible covenants, all of which are included respectively in
said Section for the purpose of brevity only, and each of which shall be
construed as a separate covenant and shall be separately enforceable, and if any
court of competent jurisdiction shall determine that any part of said Section,
or any part of any sentence or paragraph thereof, or any such separate covenant
therein contained, is unduly restrictive or void, the remaining part or parts,
or the other separate covenants, shall be considered valid and enforceable,
notwithstanding the voidance of such part or separate covenant.
(g) You acknowledge that it will be impossible to measure in money
the damage to the Company of a breach of any of the provisions of Section 2;
that any such breach will cause irreparable injury to the Company and that the
Company, in addition to any other rights and remedies existing at law or equity
or by statute, shall be entitled to an seek injunction or restraining order
restraining you from doing or continuing to do any such acts and any other
violations or
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threatened violations of Section 2, and you hereby consent to the issuance of
any such injunction or restraining order without bond or security.
3. Expenses. The Company shall reimburse you for all reasonable
expenses incurred by you in connection with the business of the Company;
provided that you shall submit proper supporting documentation for such
expenses.
4. Notices.
All notices required or permitted to be given by any party hereunder
shall be in writing and delivered in person or mailed by registered or certified
mail, return receipt requested, to the other parties addressed as follows:
(a) If to you to Xxx Xxxxxx c/o Xxxxxx Equities, LLC, 555 Xxxxxxxx
Xxxxx Xxxxxx Xxxxx X-000, Xxx, Xxx Xxxx 00000 with a copy to Xxxxxx X. Xxxxxxxx,
Esq., c/o Kane Xxxxxxx PC, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
(b) If to the Company to 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000; or to such other addresses as the parties may direct by notice given
pursuant hereto. Any notice mailed as provided above shall be deemed completed
on the date of receipt.
5. Entire Agreement.
The provisions hereof constitute the entire agreement between the
parties with respect to the subject matter hereof and supersede, replace and
terminate all existing oral or written agreements concerning such subject
matter. No modification, supplement or discharge hereof shall be effective
unless in writing and executed by or on behalf of the parties hereto.
6. Waiver.
No waiver by any party of any condition, term or provision of this
agreement shall be deemed to be a waiver of a preceding or succeeding breach of
the same or any other condition, term or provision hereof.
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7. Assignability.
This agreement, and its rights and obligations may not be assigned
by you. This agreement shall be binding upon the Company and its successors and
assigns; provided, however, that you may assign this Agreement to an entity in
which you own a majority of the equity interests.
8. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
9. Arbitration.
Any dispute or controversy arising among or between the parties
hereto regarding any of the terms of this agreement or the breach hereof, the
determination of which is not otherwise provided for herein, on the written
demand of any of the parties hereto shall be submitted to and determined by
arbitration held in the City of New York in accordance with the rules then
obtaining of the American Arbitration Association. Any award or decision made by
the arbitrators shall be conclusive in the absence of fraud, and judgment upon
said award or decision may be entered in any court having jurisdiction thereof.
10. No Third Party Beneficiaries.
Each of the provisions of this Agreement is for the sole and
exclusive benefit of the parties hereto and shall not be deemed for the benefit
of any other person or entity.
11. Due Authorization.
The execution delivery and performance of this Agreement by the
Company has been duly authorized by all require corporate sections on the part
of the Company.
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12. Execution in Counterparts.
This Agreement may be executed in counterparts, all of which shall
be deemed to be an original as against any party whose signature appears
thereon, and all of which shall together constitute one and the same instrument.
This Agreement shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all of the parties
reflected hereon as the signatures.
Very truly yours,
AGREED TO AND ACCEPTED: FIND/SVP, INC.
By:
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XXX XXXXXX
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