EXHIBIT (e)(10)
FORM OF
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement"), dated as of June 2,
2000, by and between [Primark subsidiary] (the "Company"), a [State]
corporation and an indirect subsidiary of Primark Corporation ("Parent"), and
[name] (the "Executive").
WHEREAS, pursuant to an Agreement and Plan of Merger (the "Merger
Agreement") by and among Parent, Marquee Acquisition Corporation ("Purchaser")
and The Thomson Corporation, at the Effective Time (as defined in the Merger
Agreement) Purchaser will be merged with and into Parent (the "Merger"), and as
a result Parent will become a subsidiary of The Thomson Corporation;
WHEREAS, the Executive is currently employed by the Company;
and
WHEREAS, the Company desires to continue to employ the Executive on
the terms and conditions set forth below, and the Executive desires to be so
employed by the Company.
NOW, THEREFORE, the parties hereto agree as follows:
1. DUTIES; TERM. The Company agrees to employ the Executive, and the
Executive agrees to be so employed, in the position of [title] of
[Primark subsidiary], having duties, functions and responsibilities
substantially comparable to the Executive's current duties, functions and
responsibilities with the Company, and the Executive agrees to perform such
duties, functions and responsibilities for a period commencing at the
Effective Time and ending on the eighteen (18) month anniversary of the
Effective Time, unless sooner terminated in accordance with Section 4 hereof
(the "Term"). The Executive will report to a superior with responsibilities
at least equivalent to those of the Executive's superior immediately prior to
the Effective Time.
2. COMPENSATION AND RELATED MATTERS.
(a) BASE SALARY AND BONUS. As compensation for services rendered
hereunder, the Executive shall receive the annual salary ("Annual Salary")
and the annual bonus opportunity (established in a manner consistent with the
Company's existing year 2000 bonus plans) at no less than the amounts the
Executive
was entitled to receive from the Company immediately prior to the Effective
Time, to be paid in accordance with the Company's customary payroll practices.
The Executive will be entitled to participate in the Company's Long-Term
Incentive Plan, beginning with calendar year 2000.
(b) SPECIAL BONUS. If the Executive is employed by the Company for
the full eighteen-month Term, the Executive shall receive a special bonus
("Special Bonus"), paid in a lump sum on the day the eighteenth month term
expires equal to one-half the Annual Salary in effect at that time.
(c) BENEFITS. The Company shall provide the Executive with Executive
benefits that in the aggregate are substantially comparable to the benefits
provided by the Company to similarly situated executives.
(d) OTHER CONSIDERATION. As additional consideration for the Company
entering into this arrangement, the Executive agrees that any written or oral
agreements or understandings between the Executive and the Company are void and
of no further force and effect and this Agreement shall supersede all prior
agreements or understandings between the Executive and the Company. All options
owned by the Executive at the Effective Time shall be treated in such manner as
contemplated by the Merger Agreement.
3. TERMINATION OF EMPLOYMENT.
(a) At any time during the Term, and except as otherwise provided
in Sections 3(b) and 3(c) hereof, the Company shall only have the right to
terminate this Agreement and the Executive's employment with the Company
hereunder, upon written notice to the Executive, in the event the Executive
engages in conduct which constitutes "Cause." For purposes of this Agreement,
"Cause" shall mean (i) the conviction of the Executive of any felony (other
than one arising out of motor vehicle accidents or violations); (ii) the
gross neglect or willful misconduct of the Executive in connection with the
performance of the Executive's duties hereunder, or a failure to follow a
reasonable directive of the Company's Board of Directors not inconsistent
with the other provisions of this Agreement; or (iii) a material breach by
the Executive of any of the provisions of this Agreement. If this Agreement
and the Executive's employment with the Company hereunder is terminated for
Cause, or if the Executive voluntarily resigns from the Company
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without Good Reason (as hereinafter defined) during the Term, the Company shall
pay the Executive an amount equal to all earned but unpaid portions of the
Annual Salary (including pro rated bonus and the Company's Long-Term Incentive
Plan) and unused vacation days through the date of termination. Following any
such termination, the Executive shall not be entitled to receive any other
compensation or benefits from the Company hereunder.
(b) This Agreement and the Executive's employment with the Company
hereunder may also be terminated by the Company without Cause, or by the
Executive upon the occurrence of an event constituting Good Reason. For purposes
of this Agreement, "Good Reason" shall mean (i) the failure of the Company to
cure any diminution of the Executive's functions, duties, responsibilities or
reporting level under this Agreement; (ii) a reduction in the Executive's Annual
Salary, annual bonus opportunity or any Long-Term Incentive Plan participation
during the Term; (iii) the failure of the Company to cure any other material
breach of this Agreement; or (iv) the Executive's relocation by the Company or a
successor thereto to a location more than 50 miles from the Executive's place of
employment prior to the Effective Time, in the case of (i), (ii), or (iii)
above, the Company having failed to cure the event constituting Good Reason
within ten (10) days following written notice from the Executive. In the event
that the Executive's employment with the Company shall terminate during the Term
on account of termination by the Company without Cause, or by the Executive with
Good Reason, then the Company shall pay or provide to the Executive, as the
Executive's sole and exclusive remedy hereunder, (A) an amount equal to all
earned but unpaid portions of the Annual Salary (including pro rated bonus) and
unused vacation days through the date of termination; (B) group life,
disability, sickness, hospitalization and accident insurance benefits equivalent
to those to which the Executive would have been entitled if he had continued
working for the Company for an additional twelve (12) month period; (C) a
continuation of the Executive's Annual Salary for twelve (12) months from the
date of termination to be paid in accordance with the Company's normal payroll
practices; (D) a pro-rata portion of the Special Bonus described in paragraph
2(b) based upon the ratio of (x) the number of full months from the Effective
Time to the date of termination to (y) the Term; and (E) any earned and unpaid
amounts under any long-term incentive plan.
(c) This Agreement and the Executive's employment with the Company
hereunder shall terminate immediately and automatically upon (i) the death or
Disability (defined below) of the Executive; or (ii) the expiration of the Term.
For purposes of this Agreement, "Disability" shall mean that the Company
determines that due to physical or mental infirmity, whether total or partial,
the Executive is substantially unable to perform the Executive's services
hereunder for
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(x) a period of 90 consecutive days, or (y) shorter periods aggregating 90 days
during any continuous period of 180 days; provided, however, that any physical
or mental infirmity resulting from alcohol or drug abuse shall not be considered
a "Disability" hereunder. If this Agreement and the Executive's employment with
the Company hereunder is terminated on account of (i) or (ii) above, then the
Company shall pay the Executive, or the Executive's estate, conservator or
designated beneficiary, as the case may be, an amount equal to all earned but
unpaid portions of the Annual Salary (including pro rated bonus) and unused
vacation days through the date of termination, and following any such
termination, neither the Executive, nor the Executive's estate, conservator or
designated beneficiary, as the case may be, shall be entitled to receive any
other compensation or benefits from the Company hereunder, provided, however,
that if the Executive's employment is terminated on account of (ii) above, and
the Company has not previously offered to renew this Employment Agreement on
commercially reasonable terms, and at least equal to the terms in this
agreement, as determined by the Company in good faith, then the Company shall
also pay or provide to the Executive (x) a continuation of the Executive's
Annual Salary for twelve (12) months from the date of termination to be paid in
accordance with the Company's normal payroll practices and (y) group life,
disability, sickness, hospitalization and accident insurance benefits equivalent
to those to which the Executive would have been entitled if the Executive had
continued working for the Company for an additional twelve (12) month period.
4. RESTRICTIVE COVENANTS.
(a) The Executive acknowledges that (i) the Company is engaged and
in the future will be engaged in the business of developing and providing
products and services relating to financial information (the foregoing, together
with any other businesses that the Company or its affiliates over which the
Executive has responsibility under this Agreement may engage in from the date
hereof to the date of the termination of this Agreement, being hereinafter
referred to as the "Company Business"); (ii) the Executive's services to the
Company have been and will be, special and unique; (iii) the Executive's work
for the Company has and will give the Executive, access to trade secrets of and
confidential information concerning the Company; (iv) the Company Business is
national and international in scope; (v) the Parent would not have entered into
the Merger Agreement but for the agreements and covenants contained in this
Section 4; and (vi) the agreements and covenants contained in this Section 4 are
essential to protect the business and goodwill of the Company. In order to
induce the Company to enter into this Agreement and the Parent to enter into the
Merger Agreement, the Executive covenants and agrees that:
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(b) In consideration for the payments provided for hereunder, during
the Term hereof and for a period equal to one year after the termination or
expiration of the Executive's employment by Company (whether or not pursuant to
this Agreement), however caused, (the "Restricted Period"), the Executive shall
not, unless otherwise approved by the Company, other than as specifically
provided in this Agreement directly or indirectly, (i) engage in the Company
Business as conducted on the date hereof or as it may hereafter be conducted
during the course of the Executive's employment, or a business competitive with
the Company Business; (ii) assist any person in conducting a business
competitive with the Company Business, provided, however, that this is not
intended to restrict the Executive's ownership of up to 1% of the securities of
a publicly traded company that engages in the Company Business; or (iii)
interfere with business relationships (whether formed heretofore or hereafter)
between the Company and customers of or suppliers to the Company Business. The
Executive agrees that in the event of a breach or threatened breach by the
Executive of this section the Company shall be entitled to seek injunctive
relief restraining the breaching party from engaging in any of the aforesaid
prohibited activities. Nothing hereunder, however, shall be construed as
prohibiting the Company from pursuing any other remedies available to it in law
or in equity.
(c) During and after the Restricted Period, the Executive shall keep
secret and retain in strictest confidence and shall not use for the benefit of
the Executive or others, except in connection with the business and affairs of
the Company and its affiliates, all confidential information relating to the
Company Business or to the Company or to the business of any of the Company's
affiliates, including, but not limited to, "know-how," trade secrets, customer
lists, subscription lists, details of consultant contracts, pricing policies,
operational methods, marketing plans or strategies, product development
techniques or plans, business acquisition plans, technical processes, new
personnel acquisition plans, processes, designs and design projects, inventions,
software, source codes, object codes, system documentation, research projects
and other business affairs relating to the Company Business or to any affiliate
of the Company learned by the Executive heretofore or hereafter, and
shall not disclose them to anyone outside of the Company and its affiliates,
either during or after employment by the Company or any of its affiliates,
except (i) as required in the course of performing the Executive's duties
hereunder; (ii) with the Company's express written consent, or (iii) pursuant to
legal process. Notwithstanding the foregoing, the obligations of the Executive
in this Section 4(c) shall not apply to confidential information (A) which at
the date hereof or thereafter becomes a matter of public knowledge without
breach by the Executive of this
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Agreement; or (B) which is obtained by the Executive from a person other than
the Company or an affiliate of the Company who is under no obligation of
confidentiality to the Company.
(d) During the Restricted Period and so long as the Executive is
employed by the Company the Executive shall not, directly or indirectly (i)
hire, solicit or encourage any employee to leave the employment of the Company
or any of its affiliates; or (ii) hire any such employee who has voluntarily
left the employment of the Company or any of its affiliates within one year of
the termination of such employee's employment with the Company or any of its
affiliates.
(e) Upon termination of the Executive's employment with the Company,
all documents, records, notebooks, and similar repositories of or containing
trade secrets or intellectual property then in the Executive's possession,
including copies thereof, whether prepared by the Executive or others, will be
promptly returned to or left with the Company.
(f) Rights and Remedies Upon Breach. If the Executive breaches, or
threatens to commit a breach of, any of the provisions of Section 4 (the
"Restrictive Covenants"), the Company shall have the right and remedy to have
the Restrictive Covenants specifically enforced by any court having equity
jurisdiction, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to the Company and that money
damages will not provide adequate remedy to the Company. Such rights and
remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Company under law or in equity.
5. EFFECTIVE TIME OF AGREEMENT. This Agreement shall become
effective at the Effective Time; provided, however, that if the Merger is not
consummated, this Agreement shall be void and of no further force and effect.
6. AMENDMENT. This Agreement may be amended only by a written agreement
signed by the parties hereto.
7. BINDING EFFECT. This Agreement is not assignable by the Executive.
None of the Executive's rights under this Agreement shall be subject to any
encumbrances or the claims of the Executive's creditors. This Agreement shall
be binding upon and inure to the benefit of the Company and any successor
organization which shall succeed to the Company by merger or consolidation or
operation of law, or by acquisition of all or substantially all of the assets of
the Company (provided that a successor by way of acquisition of assets shall
have undertaken in writing to assume the obligations of the Company hereunder).
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8. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its
conflict of laws provisions.
9. SEVERABILITY. If any provision of this Agreement shall for any
reason be held invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof shall not be affected or
impaired thereby.
10. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement,
and supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof and thereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first above written.
[Signature of Executive]
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[Name of Executive]
[Primark subsidiary]
[Signature of Officer]
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[Name of Officer]
[Office]
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