Exhibit 10(m)
EMPLOYMENT AGREEMENT
(Amended and Restated as of November 21, 2001)
EMPLOYMENT AGREEMENT effective as of the 1st day of January, 1996, by and
between FIND/SVP, INC., a New York corporation, having its principal executive
offices at 625 Avenue of the Americas, New York, N.Y. 10011 (hereinafter
referred to as the "Company"), and XXXXXX X. XXXXXX, residing at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to as the "Employee").
This Employment Agreement supersedes the employment agreement between the
Company and the Employee dated May 7, 1991 and amended June 26, 1991, amended
and restated October 5, 1998 and amended November 15, 2000.
W I T N E S S E T H:
WHEREAS, the Employee is presently the President, Chief Executive Officer
and Treasurer of the Company; and
WHEREAS, the parties hereto desire to set forth in this Agreement the terms
and conditions of the Employee's continued employment as the President of the
Company;
NOW, THEREFORE, in consideration of the terms and conditions hereinafter
set forth, the parties hereto agree as follows:
1. EMPLOYMENT; POSITION, RESPONSIBILITIES.
1.1 The Company hereby employs and engages the Employee to serve as
the President of the Company and to perform the duties customarily associated
with such position, until at least December 31, 2002, subsequent to which the
Employee and the Chief Executive Officer of the Company will mutually agree on
the Employee's title and duties for the remainder of the term, as defined in
Section 2.1 hereof, it being the stated intent of the parties that the
Employee's primary responsibility and role shall involve the operations of the
business presently being conducted by the Company. In the event they are unable
to agree and there is a material diminution in the Employee's title, role or
responsibilities, then the Employee shall be entitled to
terminate his employment Pursuant to Section 3.6(b) below.
1.2 The Employee hereby accepts said employment with the Company on
the terms and conditions herein set forth and agrees to devote his full time,
energy and skill during regular business hours exclusively to such employment.
2. TERM OF EMPLOYMENT.
2.1 The term of employment hereunder shall commence as of the date
hereof and shall continue until December 31, 2005 (the "Term"), except that
Employee's employment shall terminate sooner upon the occurrence of any of the
following events:
(a) The death of the Employee;
(b) The incapacity of the Employee as defined below;
(c) An act or omission to act on the part of the Employee which
would constitute cause, as defined below, for the termination of employment, and
the giving of written notice to the Employee by the Company that the Company
elects to terminate the employment of the Employee; or
(d) The Employee voluntarily leaves the employ of the Company.
2.2 The term "incapacity" as that term is used in Section 2.1 (b)
above shall be deemed to refer to and include the absence of the Employee from
his employment by reason of mental or physical illness, disability or incapacity
for a continuous period of 120 days or for a period of 180 days in any one year
period, and the Company, at its option, elects to treat such illness, disability
or incapacity as permanent in nature.
2.3 The term "cause" as that term is used in Section 2.1(c) above
shall be defined as being for:
(a) A material default or breach of any of the representations,
warranties, obligations, covenants or agreements made by the Employee herein;
(b) The conviction of the Employee in a court of law of any crime
or offense involving money or other property or of a felony; or
(c) The misappropriation by the Employee of Company assets.
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3. COMPENSATION; RELATED MATTERS.
3.1 Employee shall be compensated for his services hereunder as
follows:
(a) From the date hereof through December 31, 2005, a base salary
at the rate of $273,000 per annum payable in accordance with the Company's
normal payroll procedures for executive employees; provided, however, that on
January 1 of each year during the Term, commencing January 1, 2003, the base
salary shall be adjusted for a cost of living increase based on the Consumer
Price Index for New York City for the twelve month period immediately preceding
such January 1 date. Employee shall also be entitled to additional increases in
base salary as may be determined from time to time by the Board of Directors or
any compensation committee appointed by the Board of Directors;
(b) A discretionary annual bonus in such amount as may be
determined by the Chief Executive Officer, Board of Directors or any
compensation committee appointed by the Board of Directors.
3.2 The Company shall reimburse the Employee for all reasonable
expenses incurred by him in connection with the business of the Company,
provided Employee shall submit proper supporting documentation for such
expenses.
3.3 Employee shall be eligible, to the extent he qualifies, for
participation in any health or other group insurance plan of the Company and
shall also be entitled to participate in any employee benefit programs of the
Company for its key employees or for its employees generally. The Company shall
provide the Employee and his immediate family members with Blue Cross/Blue
Shield or equivalent and major medical coverage.
3.4 Employee shall be entitled to a five (5) week paid vacation per
year during the Term, to be taken at such times as are consistent with the needs
of the Company and the convenience of the Employee. Such vacation period may be
extended beyond five weeks if consistent with Company policy.
3.5 Employee shall be guaranteed access to a car which is owned or
leased by the Company and to continuation of such other perquisites and benefits
as may be presently
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provided by the Company.
3.6 (a) In the event the Employee's employment by the Company is
terminated for "cause" pursuant to Section 2.1(c) hereof, or by virtue of
Section 2.1(d) hereof because the Employee voluntarily leaves the employ of the
Company (other than for the reasons set forth in Section 3.6(b) below), the
Employee shall be entitled to (i) the compensation provided for by Section 3. 1
(a) only up until the date of termination of his employment.
(b) Notwithstanding anything to the contrary contained in Section
3.6(a) above, if the Employee voluntarily leaves the employ of the Company on
account of a material diminution of title, role or responsibilities as provided
for in section 1.1 hereof or on account of the Company being acquired and its
principal office being moved to a location which is greater than 50 miles from
New York City, or if the Employee voluntarily leaves the employ of the Company
on account of a Change in Control (as defined in Section 4 hereof), then the
Employee shall be entitled to receive the compensation and benefits (but only to
the extent legally allowable) provided for in Sections 3.1, 3.2 and 3.5 hereof
for the balance of the Term; provided, however, that if such termination
pursuant to subdivision (i) or (ii) herein occurs at a time when there is less
than two years left in the Term, the compensation and benefits provided for in
Sections 3. 1, 3.2 and 3.5 shall continue for a period of two (2) years from the
date of termination on the same basis that the Employee received compensation
during the last year of the Term. The Employee shall have no obligation to
mitigate damages and shall be entitled to the compensation and benefits (but
only to the extent legally allowable) provided for herein even if Employee is
employed elsewhere.
(c) In the event that the Company terminates the Employee's
employment for "cause," and a court of law or other tribunal ultimately
determines that such termination was without cause, the Employee shall be
entitled to receive double the amount of compensation provided for in Section 3.
1 hereof from the date of termination until the end of the Term.
(d) In the event the Employee's employment by the Company is
terminated for reason other than cause or the Employee voluntarily leaving the
employ of the Company, the
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Employee (or his estate in the event such termination is due to the death of the
Employee or the Employee dies subsequent to such termination) shall be entitled
to receive the compensation provided for in Section 3.1 hereof for the balance
of the Term, the medical insurance-benefits provided for in Section 3.3 hereof
for the balance of the Term (but only to the extent legally allowable), shall
have no obligation to mitigate damages, and shall be entitled to the
compensation provided for herein even if Employee is employed elsewhere;
provided, however, that if such termination occurs at a time when there is less
than one year left in the Term, the compensation provided for in Section 3.1
shall continue for a period of one year from the date of termination on the same
basis that the Employee received compensation during the last year of the Term.
(e) In the event the Employee's employment is terminated by the
Company without "cause" then the Company may, at its option, determine to pay an
amount no greater than two times the Employee's base salary at the time of
termination in shares of common stock of the Company; provided, however, that
(i) such shares are fully registered for resale by the Employee immediately
after issuance; (ii) the average closing bid price of the common stock for the
ten business days prior to issuance "(Trading Period") is at least $2.00 (such
price referred to as the "Average Price"); (iii) the average daily trading
volume during the Trading Period is at least 15,000 shares; (iv) the receipt of
such shares and subsequent sale of such shares within six months by Employee
will not subject the Employee to liability under Section 16 of the Securities
Exchange Act of 1934; and (v) the entire amount owed and to be owed to the
Employee under Section 3.6(d) is paid in a lump sum within 60 days of
termination.
4. CHANGE OF CONTROL.
4.1 For the purpose of this Agreement, a "Change of Control" shall
mean:
(a) 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, Employee, 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
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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 30% or more 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
(b) 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.
5. RESTRICTIVE COVENANTS.
5.1 Employee acknowledges that the Company is in the information
services business and that the Employee, as President of the Company, will be
familiar in detail with the activities of the Company and will participate in
formulating the activities; that he will continue to be familiar in detail with
the activities and future plans of the Company as they continue to develop
during his employment; and that his position will give him a thorough knowledge
of the Company's customers, suppliers and servicing and marketing operations and
will place him in close and continuous contact with the Company's customers and
suppliers. Employee further acknowledges that if he were to compete with the
Company by organizing, directing, advising, assisting or becoming an employee of
any business entity, as defined below, competing with the Company, he 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
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arrangements.
Accordingly, during the Term of his employment by the Company and
for a period of two (2) years immediately following the termination thereof (the
Term of employment and the subsequent two (2) year period being collectively
referred to as the "Covenant Period") unless otherwise consented to by the
Company in writing, Employee 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 himself 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 as of the date hereof; provided, however that the Employee shall be
permitted after the Term of his employment has terminated but during the
Covenant Period to own less than a 5% interest as a stockholder (and in no other
capacity) in company which is listed on any national stock exchange even though
it may be in competition with the Company.
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.
5.2 Employee 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 Employee from
using any general technical knowhow and information that is in the public domain
or of a nature known generally throughout the industry.
5.3 Employee shall, during the Term of his employment, promptly reveal
to the Company all matters coming to Employee's attention pertaining to the
business or interests of
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the Company.
5.4 Unless otherwise consented to by the Company in writing, Employee
shall not, for a period of two (2) years immediately following the termination
of Employee's employment, hire or solicit for hiring, on his own behalf or on
behalf of any business entity, any key employee of the Company.
5.5 Employee shall not, during his Term of employment or upon
termination thereof, remove from the offices of the Company, any studies,
samples, reports, plans, contracts, publications, customer lists or other
similar item nor copies or facsimiles thereof, except as the same may relate to
the performance of Employee's duties hereunder, or as otherwise authorized by
the Company.
6. RESTRICTIVE COVENANTS SEVERABLE.
The provisions of Section 5 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.
7. REMEDIES.
Employee acknowledges that it will be impossible to measure in money
the damage to the Company of a breach of any of the provisions of Section 5;
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 injunction or restraining order
restraining Employee from doing or continuing to do any such acts and any other
violations or threatened violations of Section 5, and Employee hereby consents
to the
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issuance of any such injunction or restraining order without bond or security.
8. 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 the Employee to 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 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.
9. ENTIRE AGREEMENT.
The provisions hereof constitute the entire agreement among 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.
10. 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.
11. ASSIGNABILITY.
This Agreement, and its rights and obligations may not be assigned by
Employee. This Agreement shall be binding upon the Company and its successors
and assigns.
12. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
13. ARBITRATION.
Any dispute or controversy arising among or between the parties hereto
regarding
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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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
FIND/SVP, INC.
By: /s/ Xxxxx Xxxxx /s/ Xxxxxx X. Xxxxxx
---------------------------- ---------------------------
Name: Xxxxx Xxxxx XXXXXX X. XXXXXX
Title: Chief Executive Officer
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