EXHIBIT 10-I
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AGREEMENT amended and restated as of October 1, 1999 by and between
AutoInfo, Inc., a Delaware corporation ("Auto") and Xxxxxxx Xxxxxxxxxx residing
at 00 Xxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 ("Xxxxxxxxxx").
WHEREAS, Xxxxxxxxxx is currently the President and Chief Financial Officer
of Auto; and
WHEREAS, the Company desires to assure itself of the benefit of
Xxxxxxxxxx'x services and experience for a period of time; and
WHEREAS, Xxxxxxxxxx is willing to enter into an agreement to that end with
the Company upon the terms and conditions herein set forth.
NOW THEREFORE, in consideration of the premises and covenants herein
contained, the parties hereto agree as follows:
1. Employment. Auto hereby employs Xxxxxxxxxx as its President and Chief
Financial Officer and Xxxxxxxxxx hereby accepts such employment and agrees to
perform his duties and responsibilities hereunder in accordance with the terms
and conditions hereinafter set forth.
2. Duties and Responsibilities. Xxxxxxxxxx shall be the President and
Chief Financial Officer of Auto during the Employment Term (as defined below).
Xxxxxxxxxx shall report to and be subject to the direction of the Board of
Directors (the "Board") of Auto and Xxxxxxxxxx shall perform such duties as may
be assigned to him from time to time by the Board; provided, that such duties
shall be of a nature consistent with the dignity and authority of the positions
of President and Chief Financial Officer. During the Employment Term Xxxxxxxxxx
shall, subject to the Company's vacation policy, devote substantially all of his
normal business time and attention to the businesses of Auto and its
subsidiaries and affiliates and shall perform such duties in a diligent,
trustworthy, loyal, businesslike and efficient manner, all for the purpose of
advancing the business of Auto and its subsidiaries and affiliates. Nothing
contained in this Agreement shall be deemed to prohibit Xxxxxxxxxx from devoting
a nominal amount of his time to his (and his family's) personal investments,
provided, however, that, in case of conflict, the performance of Xxxxxxxxxx'x
duties under this Agreement shall take precedence over his activities with
respect to such investments.
3. Term. The Term of this Agreement shall commence on the date hereof and
shall continue until September 30, 2001, unless terminated prior thereto in
accordance with the terms and provisions hereof (the "Employment Term").
4. Compensation. Auto shall pay to Xxxxxxxxxx a salary at the rate of
$150,000 per year, payable in such manner as Auto shall determine, but in no
event any less often than monthly, less withholding required by law and other
deductions agreed to by Xxxxxxxxxx. Xxxxxxxxxx'x annual salary may be increased
during the Employment Term in the sole discretion of the Board.
5. Bonus. In addition to the compensation provided for in Paragraph 4 of
this Agreement, Xxxxxxxxxx shall during the Employment Term participate in the
Company's then existing and effective profit sharing and bonus plans.
Furthermore Xxxxxxxxxx shall receive such other bonuses as determined in the
sole discretion of the Board.
6. Principal Office. Without Xxxxxxxxxx'x consent, Auto shall not require
Xxxxxxxxxx to maintain his principal office in any location other than the New
York, New Jersey, Connecticut tri-state area.
7. Expenses and Benefits.
(a) Auto shall, consistent with Auto's policy of reporting and
reimbursement of business expenses, reimburse Xxxxxxxxxx for such other ordinary
and necessary entertainment and business related expenses as shall be incurred
by Xxxxxxxxxx in the course of the performance of his duties under this
Agreement.
(b) Auto recognizes that Xxxxxxxxxx will be required to incur
significant travel in rendering services to Auto hereunder and in connection
therewith Auto shall during the Employment Term provide Xxxxxxxxxx with a
automobile allowance of $750 per month which the parties agree shall be used to
pay all of the expenses associated with the operation of an automobile
including, without limitation, maintenance, repair and insurance costs.
(c) Xxxxxxxxxx shall be entitled to participate, to the extent he
qualifies, in such life insurance, hospitalization, disability and other medical
insurance plans or programs as are generally made available to executive
officers of Auto which shall be consistent with the programs and benefits
currently offered to Xxxxxxxxxx.
8. Termination and Termination Benefits.
(a) Termination by the Company.
(i) For Cause. Notwithstanding any provision contained herein,
the Company may terminate this Agreement at any time during the Employment Term
for "cause". For purposes of this subsection 8(a)(i), "cause" shall mean (1) the
continuing failure by the Executive to substantially perform his duties
hereunder for any reason other than total or partial incapacity due to physical
or mental illness, (2) gross negligence or gross malfeasance on the part of the
Executive in the performance of his duties hereunder that
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demonstrably cause harm to the Company, and (3) the conviction of the Executive,
by a court of competent jurisdiction, of a felony or other crime involving moral
turpitude. Termination pursuant to this subsection 8(a)(i) shall be effective
immediately upon giving the Executive written notice thereof stating the reason
or reasons therefor with respect to clauses (2) and (3) above, and 15 days after
written notice thereof from the Company to the Executive specifying the acts or
omissions constituting the failure and requesting that they be remedied with
respect to clause (1) above, but only if the Executive has not cured such
failure within such 15 day period. In the event of a termination pursuant to
this subsection 8(a)(i), the Executive shall be entitled to payment of his Base
Compensation and the benefits pursuant to Section 7 hereof up to the effective
date of such termination.
(ii) Notwithstanding any provision contained herein, the
Company may terminate this Agreement at any time during the Employment Term
without "cause" upon 120 days' notice to the Executive. In the event of a
termination pursuant to this subsection 8(a)(ii), the Executive shall be
entitled to payment of his Base Compensation and the benefits pursuant to
Section 7 hereof up to the effective date of such termination plus a severance
payment equal to $75,000. In order to effect a termination of this Agreement
pursuant to this provision, simultaneously with the delivery of the termination
notice provided for herein, the Company shall have deposited in escrow with
Morse, Zelnick, Rose & Lander, LLP the amount of $75,000 representing the
severance payment provided for herein, which shall be released to Xxxxxxxxxx on
the 120th day following the date of the termination notice, provided Xxxxxxxxxx
shall not be in material breach of this Agreement.
(iii) Disability. If due to illness, physical or mental
disability, or other incapacity, the Executive shall fail, for a total 90 days
during any 120 day period ("Disability"), to substantially perform the principal
duties required by this Agreement, the Company may terminate this Agreement upon
30 days' written notice to the Executive; provided, however that if the
Executive commences to perform the duties required by this Agreement within such
30-day period and performs such services for 25 out of 30 of the ensuing work
days, then such notice shall be void. In the event of a termination pursuant to
this subsection 8(a)(iii), the Executive shall be (1) paid his Base Compensation
until the Termination Date and his Pro Rata Share of any Incentive Compensation
to which he would have been entitled for the year in which such termination
occurs, and (2) provided with employee benefits pursuant to Section 4, to the
extent available, for the remainder of the Employment Term; provided, however,
that any compensation to be paid to the Executive pursuant to this subsection
8(a)(iii) shall be offset against any payments received by the Executive
pursuant to any policy of disability insurance the premiums of which are paid
for by the Company. Nothing herein shall be construed to violate any Federal or
State law including the Family and Medical Leave Act of 1993, 27 U.S.C.S.
ss.2601 et seq., and the Americans With Disabilities Act, 42 U.S.C.S. ss.12101
et seq.
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(b) Termination by the Executive
(i) For Good Reason. The Executive may terminate this
Agreement at any time during the Employment Term for "good reason" upon 30 days'
written notice to the Company (during which period the Executive shall, if
requested in writing by the Company, continue to perform his duties as specified
under this Agreement). "Good reason" shall mean: (1) the Company's failure to
make any of the payments or provide any of the benefits to the Executive under
this Agreement; or (2) the Company's material breach of any provision of this
Agreement; provided, however, that the Company has not cured, or made
substantial efforts to cure, such failure or breach within the aforementioned 30
day period. In the event of a termination of this Agreement by the Executive for
"good reason" pursuant to this subsection, the Executive shall be paid a
termination payment in the amount of $75,000. The termination payment be paid to
the Executive no later than 5 days following the effective date of the
Executive's termination. For purposes of this subsection 8(b), the date of
termination of the Executive's employment shall be date on which the Executive
ceases to perform services for the Company.
(ii) Without Good Reason. The Executive may terminate this
Agreement at any time during the Employment Term for any reason upon 60 days'
written notice to the Company (during which period the Executive shall continue
to perform his duties as specified under this Agreement). In the event of a
termination pursuant to this subsection 8(b)(ii), the Executive shall be
entitled to payment of his Base Compensation and the benefits pursuant to
Section 4 hereof up to the effective date of such termination.
(c) Stock Options and Other Benefits. In the event that the
Executive is terminated for reasons other than for "cause" or in the event the
Executive terminates this Agreement for "good reason", any stock options then
held by the Executive and/or any other benefits subject to specified vesting
criteria, shall immediately vest in the Executive; provided, however, all stock
options then held by the Executive and/or any other benefits subject to
specified vesting criteria shall expire and/or terminate 90 days after the date
this Agreement is terminated. The Company agrees to take such steps and to
execute such documents as shall be necessary to effectuate the foregoing.
(d) Death Benefit. Notwithstanding any other provision of this
Agreement, this Agreement shall terminate on the date of the Executive's death.
In such event the Company shall pay Executive's Base Salary to his wife, if she
survives him, or, if she does not survive him, in equal shares to his children
who survive him, through the end of the month in which such death occurs. In
addition, the Company shall pay to Executive's wife, if she survives him, or, if
she does not survive him, in equal shares to his children who survive him, the
Pro Rata Share of any Incentive Compensation to which Executive would have been
entitled for the year in which such death occurs.
(e) No Mitigation. The Executive shall not be required to mitigate
the amount of any payments provided for by this Agreement by seeking employment
or otherwise,
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nor shall the amount of any payment or benefit provided in this Agreement be
reduced by any compensation or benefit earned by the Executive after termination
of his employment.
9. Non-Competition. Xxxxxxxxxx covenants and agrees that during his
employment hereunder and for a period of two years after his employment
hereunder is terminated, he will not, without the prior written consent of Auto,
(a) compete with the business of Auto or any of its subsidiaries or affiliates
and, in particular, he will not without such consent, directly or indirectly,
own, manage, operate, finance, join, control or participate in the ownership,
management, operation, financing or control of, or be connected as a director,
officer, employee, partner, consultant or agent with, any business in
competition with or similar to the business of Auto or any of its subsidiaries
or affiliates; provided, however, that Xxxxxxxxxx may own up to two percent of
the capital stock of any publicly traded corporation in competition with the
business of Auto or any of its subsidiaries or affiliates if the fair market
value of such corporation's outstanding capital stock exceeds $100 million, and
(b) divert, take away, interfere with or attempt to take away any present or
former employee or customer of Auto or any of its subsidiaries or affiliates.
The provisions of this Section 9 shall no longer be applicable if Xxxxxxxxxx'x
employment is terminated by Auto (other than for cause) or by Xxxxxxxxxx
pursuant to the provisions of Section 8(b)(i) hereof during the Employment Term.
In the event that the provisions of this Section 9 should ever be deemed to
exceed the time or geographic limitations or any other limitations permitted by
applicable law, then such provisions shall be deemed reformed to the maximum
permitted by applicable law. Xxxxxxxxxx acknowledges and agrees that the
foregoing covenant is an essential element of this Agreement and that, but for
the agreement of Xxxxxxxxxx to comply with the covenant, the Company would not
have entered into this Agreement, and that the remedy at law for any breach of
the covenant will be inadequate and the Company, in addition to any other relief
available to it, shall be entitled to temporary and permanent injunctive relief
without the necessity of proving actual damage.
10. Confidential Information. Xxxxxxxxxx recognizes and acknowledges that
the customer lists, patents, inventions, copyrights, methods of doing business,
trade secrets and proprietary information of Auto including, without limitation,
as the same may exist from time to time, are valuable, special and unique assets
of the business of Auto. Except in the ordinary course of business or as
required by law, Xxxxxxxxxx shall not, during or after the Employment Term,
disclose any such list of customers or any part thereof, any such patents,
inventions, copyrights, methods of doing business, trade secrets or proprietary
information which are not otherwise in the public domain to any person, firm,
corporation or other entity for any reason whatsoever. In addition, Xxxxxxxxxx
specifically acknowledges and agrees that the remedy at law for any breach of
the foregoing shall be inadequate and that AutoInfo and the Company, in addition
to any other relief available to them, shall be entitled to temporary and
permanent injunctive relief without the necessity of proving actual damage.
11. COBRA. In the event of Xxxxxxxxxx'x death during the term of this
Agreement, Auto shall make all COBRA medical premium payments for Xxxxxxxxxx'x
family for the three year period following his death.
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12. Opportunities. During his employment with Auto, Xxxxxxxxxx shall not
take any action which might divert from Auto or any of its subsidiaries or
affiliates any opportunity which would be within the scope of any of the present
or future businesses of Auto or any of its subsidiaries or affiliates.
13. Contents of Agreement, Parties in Interest, Assignment, etc. This
Agreement sets forth the entire understanding of the parties hereto with respect
to the subject matter hereof. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective heirs, representatives, successors and assigns of the parties hereto,
except that the duties and responsibilities of Xxxxxxxxxx hereunder which are of
a personal nature shall neither be assigned nor transferred in whole or in party
by Xxxxxxxxxx. This Agreement shall not be amended except by a written
instrument duly executed by Auto and Xxxxxxxxxx.
14. Severability. If any term or provision of this Agreement shall be held
to be invalid or unenforceable for any reason, such term or provision shall be
ineffective to the extend of such invalidity or unenforceability without
invalidating the remaining terms and provisions hereof, and this Agreement shall
be construed as if such invalid or unenforceable term or provision had not been
contained herein.
15. Notices. Any notice, request, instruction or other document to be
given hereunder by any party to the other party shall be in writing and shall be
deemed to have been duly given when delivered personally or five (5) days after
dispatch by registered or certified mail, postage prepaid, return receipt
requested, to the party to whom the same is so given or made:
If to Auto
addressed to: AutoInfo, Inc.
c/o Morse, Zelnick, Rose & Lander, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxx, Esq.
If to Xxxxxxxxxx
addressed to: Xxxxxxx Xxxxxxxxxx
00 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
or at such other address as the one party shall specify to the other party in
writing.
16. Counterparts and Headings. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all which
together shall
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constitute one and the same instrument. All headings are inserted for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement.
17. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of New York.
18. Arbitration. Any disputes arising hereunder shall be submitted to
arbitration before a single arbitrator in New York City under the rules and
regulations of the American Arbitration Association. Any award in such
arbitration proceeding may be enforced in any court of competent jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
AUTOINFO, INC.
By:
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Xxxxxx Xxxxxxx, Director
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Xxxxxxx Xxxxxxxxxx
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