EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT dated as of October 1, 1997, between Audits &
Surveys Worldwide, Inc., a Delaware corporation having an address at 000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "COMPANY"), and Xxxx X. Xxxxx, an
individual residing at 00 Xxxxx Xxx, Xxxxxx, Xxx Xxxx 00000-0000 ("EMPLOYEE").
W I T N E S S E T H:
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WHEREAS, Employee has been employed by the Company for more than 36
years; and
WHEREAS, the Company desires that Employee continue to be employed by
it and render services to it, and Employee is willing to be so employed and to
render such services to the Company, all upon the terms and subject to the
conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. EMPLOYMENT. Subject to and upon the terms and conditions
contained in this Agreement, the Company hereby agrees to continue to employ
Employee and Employee agrees to continue in the employ of the Company, for the
period set forth in Paragraph 2 hereof, to render to the Company, its affiliates
and/or subsidiaries the services described in Paragraph 3 hereof.
2. TERM. Employee's term of employment under this Agreement shall
be four and one-half (4-1/2) years, commencing on October 1, 1997, and shall
continue for a period through and including March 31, 2002, unless extended in
writing as hereinbelow provided or earlier terminated pursuant to the terms and
conditions set forth herein (the "EMPLOYMENT TERM"). Such term shall be extended
for successive one (1) year terms unless either party hereto gives written
notice to the other of its desire to terminate this Agreement at least ninety
(90) days prior to the commencement of any such extension.
3. DUTIES. (a) Employee shall serve as the senior operations
executive of the Company subject to the authority of the Board of Directors, the
Chief Executive Officer and the President of the Company. If elected by the
Board of Directors, Employee will serve as the Executive Vice President,
Operations of the Company. Employee shall perform all duties and services
incident to the positions held by him.
(b) Employee agrees to abide by all By-laws and policies
of the Company promulgated from time to time by the Company.
4. EXCLUSIVE SERVICES AND BEST EFFORTS. Employee agrees to devote
his best efforts, energies and skill to the discharge of the duties and
responsibilities attributable to his position, and to this end, he will devote
his full time and attention during regular business hours to the business and
affairs of the Company, subject to the provisions of the last sentence of
subparagraph 10(b) hereof
5. COMPENSATION. As compensation for his services and covenants
hereunder, Employee shall receive a salary ("SALARY"), payable pursuant to the
Company's normal payroll procedures in place from time to time, at the rate of
$225,000 per annum less all necessary and required federal, state and local
payroll deductions, and such bonuses as may be determined from time to time by
the Board of Directors of the Company.
6. BUSINESS EXPENSES. Employee shall be reimbursed for, and
entitled to advances (subject to repayment to the Company if not actually
incurred by Employee) with respect to, only those business expenses incurred by
him (a) which are reasonable and necessary for Employee to perform his duties
under this Agreement, and (b) for which Employee has submitted vouchers and/or
receipts in accordance with policies established from time to time by the
Company.
7. EMPLOYEE BENEFITS. (a) During the Employment Term, Employee
shall be entitled to such insurance, disability and health and medical benefits
and be entitled to participate in such retirement plans or programs as are from
time to time generally made available to executive employees of the Company
pursuant to the policies of the Company; PROVIDED THAT Employee shall be
required to comply with the conditions attendant to coverage by such plans and
shall comply with and be entitled to benefits only in accordance with the terms
and conditions of such plans. The Company may withhold from any benefits payable
to Employee all federal, state, local and other taxes and amounts as shall be
permitted or required to be withheld pursuant to any applicable law, rule or
regulation.
(b) Employee shall be entitled to vacation in accordance
with the Company's policy in effect for executive staff, which shall be taken at
such time or times as shall be mutually agreed upon with the Company.
8. DEATH AND DISABILITY. (a) The Employment Tenn shall terminate
on the date of Employee's death, in which event Employee's Salary, reimbursable
expenses and benefits owing to Employee through the date of Employee's death
shall be paid to his estate. Employee's estate will not be entitled to any other
compensation upon termination under this Agreement pursuant to this subparagraph
8(a).
(b) If, during the Employment Term, in the opinion of a
duly licensed physician selected by the Company, Employee, because of physical
or mental illness or incapacity,
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shall become substantially unable to perform the duties and services required of
him under this Agreement for a period of 120 consecutive days or 180 days in the
aggregate during any nine-month period, the Company may, upon at least ten (10)
days' prior written notice given at any time after the expiration of such 120 or
180-day period, as the case may be, to Employee of its intention to do so,
terminate his employment as of such date as may be set forth in the notice. In
case of such termination, Employee shall be entitled to receive his Salary,
reimbursable expenses and benefits owing to Employee through the date of
termination. Employee will not be entitled to any other compensation under this
Agreement upon termination of his employment pursuant to this subparagraph 8(b).
9. TERMINATION. The Company may terminate the employment of
Employee for cause, as such term is interpreted by the courts of New York. Upon
such termination, the Company shall be released from any and all further
obligations under this Agreement, except that the Company shall be obligated to
pay Employee his Salary, reimbursable expenses and benefits owing to Employee
through the day on which Employee is terminated. Employee will not be entitled
to any other compensation upon termination under this Agreement pursuant to this
Paragraph 9.
10. DISCLOSURE OF INFORMATION AND RESTRICTIVE COVENANT. Employee
acknowledges that, by his employment, he has been and will be in a confidential
relationship with the Company and will have access to confidential information
and trade secrets of the Company, its subsidiaries and affiliates. Confidential
information and trade secrets include, but are not limited to, customer,
supplier and client lists, panels and interviewers, price lists, marketing,
strategies and procedures, operational techniques, business plans and systems,
quality control procedures and systems, special projects and survey and market
research, including projects, research and reports for any entity or client, and
any other records, files, drawings, discoveries, applications, data and
information concerning the business of the Company and its customers and clients
which are not in the public domain. Employee agrees that in consideration of the
execution of this Agreement by the Company:
(a) Employee will not, during the term of this Agreement
or at any time thereafter, use, or disclose to any third party, trade secrets or
confidential information of the Company, including, but not limited to,
confidential information or trade secrets belonging or relating to the Company,
its subsidiaries, affiliates, customers and clients or proprietary procedures of
the Company, its subsidiaries, affiliates, customers and clients. Proprietary
procedures shall include, but shall not be limited to, all information which is
known only by employees of the Company, its subsidiaries and affiliates or
others in a confidential relationship with the Company or its subsidiaries and
affiliates which relates to business matters.
(b) Employee will not, during the term of this Agreement,
directly or indirectly, under any circumstance other than at the direction and
for the benefit of the Company, engage in or participate in any business
activity, including, but not limited to, acting as a director, officer,
employee, agent, independent contractor, partner, consultant, licensor or
licensee, franchisor or franchisee, proprietor, syndicate member, shareholder or
creditor or with a person having any other relationship with any other business,
company, firm, occupation or business activity, that is, directly
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or indirectly, competitive with any business carried on by the Company or any of
its subsidiaries or affiliates during the term of this Agreement. The ownership
by Employee of 3% or less of the issued and outstanding shares of a class of
securities which is traded on a national securities exchange or in the
over-the-counter market, shall not cause Employee to be deemed a shareholder
under this subparagraph 10(b) or constitute a breach of Paragraph 4 hereof.
(c) Employee will not, during the term of this Agreement
and for a period of three (3) years thereafter, on his behalf or on behalf of
any other business enterprise, directly or indirectly, under any circumstance
other than at the direction and for the benefit of the Company, solicit or
induce any creditor, customer, client, supplier, officer, employee or agent of
the Company or any of its subsidiaries or affiliates to sever his or its
relationship with or leave the employ of any of such entities.
(d) Nothing contained in this Paragraph 10 shall be
construed as prohibiting Employee from being engaged by a client or customer of
the Company upon his termination of employment by the Company.
(e) It is expressly agreed by Employee that the nature
and scope of each of the provisions set forth above in this Paragraph 10 are
reasonable and necessary. If, for any reason, any aspect of the above provisions
as it applies to Employee is determined by a court of competent jurisdiction to
be unreasonable or unenforceable, the provisions shall only be modified to the
minimum extent required to make the provisions reasonable and/or enforceable, as
the case may be. Employee acknowledges and agrees that his services are of
unique character and expressly grants to the Company or any subsidiary or
affiliate of the Company or any successor of any of them, the right to enforce
the above provisions through the use of all remedies available at law or in
equity, including, but not limited to, injunctive relief
(f) This Paragraph 10 and Paragraphs 11, 12 and 13 hereof
shall survive the expiration or termination of this Agreement for any reason.
11. COMPANY PROPERTY. (a) Any patents, inventions, discoveries,
applications or processes designed, devised, planned, applied, created,
discovered or invented by Employee in the course of Employee's employment under
this Agreement and which pertain to any aspect of the Company's or its
subsidiaries' or affiliates' business shall be the sole and absolute property of
the Company, and Employee shall promptly report the same to the Company and
promptly execute any and all documents reasonably requested to assure the
Company the full and complete ownership thereof.
(b) All records, files, lists, including
computer generated lists, drawings, documents, equipment and similar items
relating to the Company's business which Employee shall prepare or receive from
the Company shall remain the Company's sole and exclusive property. Upon
termination of this Agreement, Employee shall promptly return to the Company all
property of the Company in his possession. Employee further represents that he
will not copy or cause to be copied,
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print out or cause to be printed out any software, documents or other materials
originating with or belonging to the Company, except under Court order. Employee
additionally represents that, upon termination of his employment with the
Company, he will not retain in his possession any such software, documents or
other materials.
12. REMEDIES. It is mutually understood and agreed that Employee's
services are special, unique, unusual, extraordinary and of an intellectual
character giving them a peculiar value, the loss of which cannot be reasonably
or adequately compensated in damages in an action at law. Accordingly, in the
event of any breach of this Agreement by Employee, including, but not limited
to, the breach of the non-disclosure, non-solicitation and non-compete clauses
under Paragraph 10 hereof, the Company shall be entitled to equitable relief by
way of injunction or otherwise in addition to any damages which the Company may
be entitled to recover. In addition, the Company shall be entitled to
reimbursement from Employee, upon request, of any and all reasonable attorneys'
fees and expenses incurred by it in enforcing any term or provision of this
Agreement.
13. REPRESENTATIONS AND WARRANTIES OF EMPLOYEE. (a) In order to
induce the Company to enter into this Agreement, Employee hereby represents and
warrants to the Company as follows: (i) Employee has the legal capacity and
unrestricted right to execute and deliver this Agreement and to perform all of
his obligations hereunder; (ii) the execution and delivery of this Agreement by
Employee and the performance of his obligations hereunder will not violate or be
in conflict with any fiduciary or other duty, instrument, agreement, document,
arrangement or other understanding to which Employee is a party or by which he
is or may be bound or subject; and (iii) Employee is not a party to any
instrument, agreement, document, arrangement or other understanding with any
person (other than the Company) requiring or restricting the use or disclosure
of any confidential information or the provision of any employment, consulting
or other services.
(b) Employee hereby agrees to indemnify and hold harmless
the Company from and against any and all losses, costs, damages and expenses
(including, without limitation, its reasonable attorneys' fees) incurred or
suffered by the Company resulting from any breach by Employee of any of his
representations or warranties set forth in subparagraph 13(a) hereof
14. WAIVER OF JURY TRIAL AND CONSENT TO NEW YORK JURISDICTION AND
VENUE. In any action, suit or proceeding in any jurisdiction brought against the
Employee by the Company, or vice versa, the Employee and the Company each waive
trial by jury. The Employee hereby consents and agrees that the Supreme Court of
the State of New York for the County of New York and the United States District
Court for the Southern District of New York each shall have personal
jurisdiction and proper venue with respect to any dispute between the Employee
and the Company. In any dispute with the Company, the Employee will not raise,
and hereby expressly waives, any objection or defense to any such jurisdiction
as an inconvenient forum.
15. NOTICE. Except as otherwise expressly provided, any notice,
request, demand or other communication permitted or required to be given under
this Agreement shall be in writing, shall be sent by one of the following means
to the Employee at his address set forth on the first page
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of this Agreement and to the Company at its address set forth on the first page
of this Agreement, Attention: Xx. Xxxxxxx Xxxxx, Chief Executive Officer, with a
copy to Xxxxxx Xxxxxx Flattau & Klimpl, LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxx, Esq. (or to such other address
as shall be designated hereunder by notice to the other parties and persons
receiving copies, effective upon actual receipt) and shall be deemed
conclusively to have been given: (i) on the first business day following the day
timely deposited with Federal Express (or other equivalent national overnight
courier) or United States Express Mail, with the cost of delivery prepaid or for
the account of the sender; (ii) on the fifth business day following the day duly
sent by certified or registered United States mail, postage prepaid and return
receipt requested; or (iii) when otherwise actually received by the addressee on
a business day (or on the next business day if received after the close of
normal business hours or on any non-business day).
16. INTERPRETATION; HEADING. The parties acknowledge and agree
that the terms and provisions of this Agreement have been negotiated, shall be
construed fairly as to all parties hereto, and shall not be construed in favor
of or against any party. The section headings contained in this Agreement are
for reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
17. SUCCESSORS AND ASSIGNS; ASSIGNMENT; INTENDED BENEFICIARIES.
Neither this Agreement, nor any of Employee's rights, powers, duties or
obligations hereunder, may be assigned by Employee. This Agreement shall be
binding upon and inure to the benefit of Employee and his heirs and legal
representatives and the Company and its successors. Successors of the Company
shall include, without limitation, any corporation or corporations acquiring,
directly or indirectly, all or substantially all of the assets of the Company,
whether by merger, consolidation, purchase, lease or otherwise, and such
successor shall thereafter be deemed "the Company" for the purpose hereof
18. NO WAIVER BY ACTION; CUMULATIVE RIGHTS, ETC. Any waiver or
consent from the Company respecting any term or provision of this Agreement or
any other aspect of the Employee's conduct or employment shall be effective only
in the specific instance and for the specific purpose for which given and shall
not be deemed, regardless of frequency given, to be a further or continuing
waiver or consent. The failure or delay by either party hereto at any time or
times to require performance of, or to exercise any of his or its powers, rights
or remedies with respect to, any term or provision of this Agreement or any
other aspect of the Employee's conduct or employment in no manner (except as
otherwise expressly provided herein) shall affect such party's right at a later
time to enforce any such term or provision.
19. COUNTERPARTS; NEW YORK GOVERNING LAW; AMENDMENTS; ENTIRE
AGREEMENT. This Agreement may be executed in two counterpart copies, each of
which may be executed by one of the parties hereto, but all of which, when taken
together, shall constitute a single agreement binding upon all of the parties
hereto. This Agreement and all other aspects of the Employee's employment shall
be governed by and construed in accordance with the applicable laws pertaining
in the State of New York (other than those that would defer to the substantive
laws of another jurisdiction). Each and every modification and amendment of this
Agreement shall be in writing and
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signed by the parties hereto, and any waiver of, or consent to any departure
from, any term or provision of this Agreement shall be in writing and signed by
each affected party hereto. This Agreement contains the entire agreement of the
parties and supersedes all prior representations, agreements and understandings,
oral or otherwise, between the parties with respect to the matters contained
herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
AUDITS & SURVEYS WORLDWIDE, INC.
By: /s/ H. Xxxxxx Xxxxxxx, Xx.
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Name: H. Xxxxxx Xxxxxxx, Xx.
Title: President
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
