EMPLOYMENT AGREEMENT Exhibit 10.12
THIS AGREEMENT (the "Agreement"), made this twenty-eighth day of October,
1996 by and between MARKET FACTS, INC., a Delaware corporation (hereinafter
"MFI"), with its principal place of business at 0000 Xxxx Xxxx Xxxxx Xxxx,
Xxxxxxxxx Xxxxxxx, Xxxxxxxx, 00000 and Xxxxxx X. Xxxxx (hereinafter
"Executive"), an individual residing in Evanston, Illinois.
W I T N E S S E T H:
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WHEREAS, Executive is currently employed as the President and Chief
Executive Officer of MFI and MFI desires to continue to employ Executive on
terms which will encourage the attention and dedication of Executive to MFI as
one of its key employees; and
WHEREAS, Executive is willing to commit himself/herself to continue to
serve MFI on the terms and conditions set forth below; and
WHEREAS, in order to effect the foregoing, MFI and Executive wish to
enter in an employment agreement on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties, by the execution hereof do agree as
follows:
1. Employment. MFI employs Executive as its President and Chief
Executive Officer, and Executive accepts such employment and agrees to continue
to serve MFI, in each case upon and subject to the terms and conditions set
forth herein, which terms and conditions shall supersede any other oral or
written employment agreement(s) entered into by and between MFI and Executive
prior to the date of this Agreement.
2. Term. MFI agrees to employ Executive as provided in Section 1 hereof
for a term of employment (the "Term of Employment") commencing on such date (the
"Effective Date") as this Agreement shall be ratified and approved by the Board
of Directors of MFI (the "Board of Directors") in accordance with Section 22
hereof and continuing thereafter until terminated in accordance with the
provisions of Section 7 hereof.
3. Duties. MFI hereby employs, engages, and hires Executive in the
capacity set forth in Section 1 hereof and Executive hereby accepts and agrees
to such hiring, engagement and employment, subject to the general supervision
of, and pursuant to the orders, advice and direction of the Board of Directors.
Executive shall perform such other duties as are customarily performed by one
holding such position in other, same, or similar businesses or enterprises as
that engaged in by MFI, and shall also additionally render such other and
unrelated services and duties consistent with his/her executive officer status
in Section 1 hereof as may be assigned to him/her from time to time by MFI.
Executive shall devote all of his/her working time and efforts to the business
and affairs of MFI.
Executive shall perform such services wherever MFI shall in good faith
direct; however, Executive shall not be required to remove his/her permanent
residency from the Evanston, Illinois area or be absent from Evanston, Illinois
for such extended periods as to make his/her continued residence in Evanston,
Illinois not practicable.
4. Compensation. MFI agrees to pay Executive a base salary of
$192,504.00 (hereinafter "Base Salary") per year, which shall be payable in
accordance with MFI's customary payroll practices but not less frequently than
in equal amounts payable at two (2) week intervals. MFI may adjust the Base
Salary upward from time to time to conform to alterations, if any, in MFI's
compensation policy for officers.
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Based upon MFI's performance and Executive's individual performance and
at the sole discretion of the Board of Directors, Executive shall be eligible
for an annual bonus consistent with the provisions and goals set by the Board of
Directors for each bonus year, and shall be entitled to participate in other
stock and bonus compensation programs of MFI, in each case on a basis no less
favorable to Executive than that available to other officers of MFI with similar
responsibilities and duties.
5. Expenses. MFI shall reimburse Executive for his/her business expenses
(including expenditures for travel, meals, hotel accommodations, and the like)
incurred in the course of his/her employment hereunder, provided that Executive
submits the documentation necessary for deduction of the payments by MFI on its
income tax returns. In the event that any of Executive's expenses so reimbursed
pursuant to this Agreement are disallowed as a business expense by the tax
authorities due to lack of supporting evidence Executive shall be responsible to
MFI for any tax consequences incurred by MFI as a result thereof.
6. Executive Benefits. Executive shall be entitled to participate in
MFI's vacation, retirement, insurance, disability, medical coverage and other
fringe benefit programs in accordance with the terms of those programs, and this
Agreement is not intended to be in lieu of any rights, benefits and privileges
to which Executive may be entitled as an employee of MFI under any such programs
as may now be in effect or may hereafter be adopted. In no event shall
Executive's entitlement to vacation be determined under a policy that is less
favorable to him/her than MFI's vacation policy applicable to him/her as of the
date of this Agreement.
Pursuant to the "Market Facts Flexible Benefits Plan" (the "Flex Plan")
as currently in effect, employees of MFI are entitled to select (and pay the
premiums cost for) life insurance coverage in an amount equal to a selected
multiple of their earnings (as defined in the Flex Plan) for the prior calendar
year. For so long as MFI shall elect to maintain a life insurance option for its
executive officers pursuant to the Flex Plan or another comparable successor
plan, MFI shall furnish to Executive, at MFI's expense, life insurance coverage
pursuant to the Flex Plan, or such other comparable plan, in an amount equal to
one (1) year of Executive's calendar year earnings (as determined pursuant to
the Flex Plan or such other comparable plan).
7. Termination.
(a) Basis. Executive's employment may be terminated hereunder by MFI
or Executive without any breach of this Agreement under the following
circumstances and subject to the provisions set forth elsewhere herein:
(i) MFI, Without Cause. MFI may terminate Executive's employment
hereunder at any time by written notice to Executive.
(ii) Executive, Without Cause. Executive may terminate his/her
employment hereunder at any time by giving MFI not less than sixty (60)
days prior written notice.
(iii) Death. Executive's employment hereunder shall terminate upon
his/her death.
(iv) Disability. MFI may terminate the Executive's employment
hereunder at any time in the event of Executive's disability.
"Disability" is defined to mean Executive's inability to substantially
perform his/her normal duties for sixteen (16) weeks (not necessarily
continuous or calendar weeks) during any twelve (12) successive months;
and in the event of a dispute as to Executive's inability to perform
his/her duties, MFI may refer the same to a licensed practicing physician
of MFI's choice, and Executive agrees to submit to such tests and
examination as such physician shall deem appropriate.
(v) For Cause. MFI may terminate Executive's employment hereunder at
any time for Cause. "Cause" shall mean (a) an act of proven fraud or
dishonesty on the part of Executive, or (b) a willful and material breach
of this Agreement by the Executive, which breach has not been cured and
remedied by Executive within sixty (60) days after written notice from
the Board of Directors to Executive describing such breach in reasonable
detail.
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(vi) By Mutual Agreement. This Agreement may be terminated at any
time by the mutual agreement of the parties. Any such termination shall
be memorialized by an agreement which is reduced to writing and signed by
Executive and a duly appointed officer of MFI.
(b) Notice of Termination. Any termination of Executive's employment
by MFI or by Executive (other than pursuant to Section 7(a)(iii) above) shall be
communicated by written Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment if such termination is
pursuant to clauses (iv) or (v) of Section 7(a).
(c) Date of Termination. For purposes of this Agreement, "Date of
Termination" shall mean the date specified in the Notice of Termination as the
last day of employment of Executive or, if no such date is specified, (i) on the
sixtieth (60th) day following Notice of Termination if such notice is given
pursuant to Section 7(a)(ii) above, and (ii) in all other cases, at the end of
the month in which the Notice of Termination is given.
8. Rights Upon Termination.
(a) If Executive's employment is terminated other than pursuant to
Section 7(a)(v) herein, MFI shall pay to Executive the unpaid portion of any
Base Salary due and payable to Executive at and as of the Date of Termination.
In addition, if Executive's employment is terminated other than pursuant to
Sections 7(a)(iii) or (v) herein, Executive shall receive the Base Salary
payable to Executive under Section 4 above at the intervals provided therein,
from the Date of Termination to the respective date set forth below:
(i) if Executive's employment is terminated pursuant to the
provisions of Section 7(a)(i) hereof, the one (1) year anniversary date
of the date of the Notice of Termination;
(ii) if Executive's employment is terminated pursuant to the
provisions of Section 7(a)(ii) hereof, the date specified in the Notice
of Termination or if no such termination date is specified, the 60th day
after the date of the Notice of Termination (or such earlier applicable
date as may be provided herein);
(iii) if Executive's employment is terminated pursuant to the
provisions of Section 7(a)(iv) by reason of Executive's Disability, then
until the first anniversary of the Date of Termination, Executive shall
be entitled to receive such portion of Base Salary as would have been
paid to Executive pursuant to MFI's disability programs then in effect,
if such Notice of Termination had not been given by MFI; and
(iv) if Executive's employment is terminated pursuant to the
provisions of Section 7(a)(vi), the termination date mutually agreed by
MFI and Executive.
(b) If Executive's employment is terminated by his/her death, or if
Executive's death shall occur prior to his/her receipt of the payments provided
for in Section 8(a) above, such payment(s) shall be paid to Executive's
designated beneficiary, or if he or she predeceases Executive, to Executive's
estate.
9. Executive's Ability to Contract for Company. To the extent Executive
is so authorized by MFI's Board of Directors or By-Laws, and until such time as
a Notice of Termination is given pursuant to Section 7(b) hereof, Executive
shall have the right to make any contracts or commitments for or on behalf of
MFI, to sign or endorse any commercial paper, contracts, advertisements, or
instrument of any nature, and to enter into any obligation binding MFI to the
payment of money or otherwise.
10. Non-Competition Provisions. Executive agrees that during his/her
employment with MFI and for a period of one (1) year following the Date of
Termination, Executive shall not, directly or indirectly:
(a) solicit or otherwise attempt to induce any clients of MFI on
whose account Executive has worked during the two (2) years prior to the
termination of Executive's employment to terminate their relationship with MFI
or otherwise divert from MFI and/or its affiliates any trade or business being
conducted by such customers with MFI or otherwise provide any services similar
to the services provided by MFI to such customers; or
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(b) recruit, solicit or otherwise induce or influence any employee
or agent of MFI to terminate their employment or agency relationship with MFI,
or employ, seek to employ, or cause any other business competitive to MFI to
employ or seek to employ any person who is then (or was at any time within the
six months prior thereto) employed by MFI.
11. Confidential Information. Executive recognizes that as a key member
of the management of MFI, Executive has and will continue to occupy a position
of trust with respect to such business information of a secret or confidential
nature which is the property of MFI or any of its subsidiaries or affiliates and
which has been or will be used by or imparted to Executive from time to time in
the course of Executive's duties. Executive therefore agrees that:
(a) Executive shall not at any time during the term of this
Agreement or thereafter, except in the performance of his/her duties hereunder,
use or disclose directly or indirectly to any third person any such information.
(b) Executive shall return promptly on the termination of
Executive's employment for whatever reason (or in the event of Executive's
death, Executive's personal representative shall return) to MFI at its direction
and expense any and all copies of records, drawings, writings, blueprints,
materials, memoranda and other data pertaining to such secret or confidential
information.
(c) The term "information of a secret or confidential nature" means
information of any nature and in any form which at the time or times concerned
is not generally known to those persons engaged in businesses similar to those
conducted or contemplated by MFI which relates to any one or more of the aspects
of MFI's business, including, but not limited to, tests, test procedures, test
programs and systems, patents and patent applications; copyrights or copyright
applications, inventions and improvements, whether patentable or not; writings
whether copyrightable or not; development projects; machines; machine designs
and the materials for machines; policies, processes, formulas, techniques, know-
how, data, data bases, computer designs, computer programs whether embodied in
source or object code, computer languages or formats and other facts relating to
design, construction, development utilization, manufacturing or servicing of
machines or programs or relating to materials for machines or programs; to plant
layout or to plant operations; policies, processes, formulas, techniques, know-
how and other facts relating to sales, marketing advertising, promotions,
financial matters, customers, customer lists, customers' purchases, or
requirements, and other trade secrets, both tangible and intangible, in writing
and orally imparted.
12. Intellectual Property Rights.
(a) MFI shall have all rights including international priority
rights in: all tests, procedures, inventions, developments and discoveries,
whether or not patentable, and all suggestions, proposals, computer programs and
writings, including any copyright interests therein, which Executive authors,
conceives or makes, either solely or jointly with others during his/her
employment with MFI which: (i) relate to any subject matter with which
Executive's work for MFI may be concerned; (ii) relate to the business products
or services or actual or demonstrably anticipated research or development
projects of MFI; (iii) involve the use of the time, equipment, materials or
facilities of MFI; or (iv) relate or are applicable to any phase of MFI's
business. Further, Executive agrees to execute all documents and to take all
actions as may be necessary in order to assign all rights to or otherwise vest
good title to MFI in the property and proprietary rights described in this
subparagraph (a).
(b) MFI shall have no rights in inventions and writings made or
conceived by Executive prior to his/her employment with MFI which are: (i)
embodied in a United States Letters Patent, Copyright Registration or an
application for United States Letters Patent or Copyright Registration filed
prior to the commencement of his/her employment; or (ii) owned by a former
employer prior to Executive's employment by MFI; or (iii) disclosed in detail in
a writing attached hereto or provided to MFI within one (1) week of the
execution hereof. The acceptance of such disclosure by MFI shall not create a
confidential relationship.
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In addition to the foregoing, MFI shall have no rights in any inventions
made or conceived by Executive which do not involve any equipment, supplies,
facilities or materials of MFI and which are developed entirely on Executive's
own time unless: (i) the invention relates to the business, products or services
of MFI; (ii) the invention relates to actual or demonstrably anticipated
research or development projects of MFI, or (iii) the invention results from any
services performed by Executive for MFI.
(c) Executive will disclose promptly in writing to MFI all ideas,
inventions, improvements, discoveries and writings, whether or not patentable or
copyrightable, made or conceived by him/her either solely or in collaboration
with others during his/her employment with MFI, whether or not during regular
working hours, and, if based on confidential information as defined in Paragraph
11(c) hereof, within one (1) year thereafter, if such inventions or writings
relate to either: (i) the subject of Executive's work for MFI; (ii) products,
projects, programs or business of MFI of which Executive had knowledge in the
course of Executive's work or otherwise; or (iii) any business of MFI during
Executive's employment.
(d) Executive shall maintain for disclosure to MFI complete written
records of all such inventions and writings. Such records shall bear dates and
signatures and show (i) the full nature thereof, and (ii) the critical dates
pertaining to conception, development, reduction to practice, and embodiment in
a tangible form. Such records shall be the sole property of and be readily
available to MFI.
(e) Executive will, during the term of his/her employment and
thereafter, at the request of MFI and without expense to Executive: (i)
cooperate in the procurement in the name of Executive of patent, utility model,
design and copyright protection to cover such inventions and writings, including
the execution of domestic, foreign, divisional, continuing and re-issue
applications for Letters Patent, Utility Models, Designs and Copyright
Registrations and assignments thereof; and (ii) execute all documents, make all
rightful oaths, testify in all proceedings in Government Offices or in the
Courts concerning such inventions and writings, and generally do everything
lawfully possible in any controversy or otherwise to aid MFI to obtain, enjoy
and enforce proper protection of such property.
13. Remedy. Executive understands that MFI would not have any adequate
remedy at law for the material breach or threatened breach by Executive of any
one or more of the covenants set forth in this Agreement and agrees that in the
event of any such material breach or threatened breach, MFI shall be entitled to
preliminary and permanent injunctive relief without bond in any court of
competent jurisdiction, which rights shall be cumulative and in addition to any
other rights or remedies to which MFI may be entitled.
14. Headings. The headings of the sections and subsections of this
Agreement are inserted for convenience of reference only and shall not
constitute a part hereof.
15. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original.
16. Assignment. This Agreement shall not be assignable by either party
without the express written consent of the other party hereto.
17. Amendment and Modification. No amendment or modification of the terms
of this Agreement shall be binding upon either party unless reduced to writing
and signed by Executive and a duly appointed officer of MFI.
18. Notices. All notices, reports and payments made pursuant to this
Agreement shall be addressed to MFI to the attention of the Chief Executive
Officer at the address set forth in the first paragraph of this Agreement.
Notices to Executive shall be addressed as set forth hereinafter:
Xxxxxx X. Xxxxx
Market Facts, Inc.
0000 Xxxx Xxxx Xxxxx Xxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Either addressee may change its (his/her) address upon prior written
notice.
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19. Repayment of Compensation. In the event that either (a) all or any
portion of the amounts payable and benefits provided to the Executive under this
Agreement from and after the date hereof are disallowed by the Internal Revenue
Service as deductible expenses on grounds that they do not constitute a
"reasonable allowance" of compensation and/or (b) such amounts and benefits are
deemed by a court of competent jurisdiction (the "court") to constitute a waste
of corporate assets, Executive agrees to reimburse to MFI such amounts and
benefits to the extent of the disallowance and/or the amount of payments and
benefits deemed to constitute such waste within thirty (30) days after MFI has
notified Executive of the amount so disallowed and/or characterized. Executive
hereby also agrees to any modification of the terms of this Agreement which MFI
deems necessary and/or appropriate in light of the Internal Revenue Service's
disallowance and/or the court's finding.
20. Entire Agreement. This Agreement contains the entire agreement
between Executive and MFI and supersedes any and all previous agreements,
written or oral, between the parties relating to the subject matter hereof.
21. Severability. The provisions of this Agreement shall be severable.
The unenforceability or invalidity of any one or more provisions, clauses, or
sentences hereof shall not render any other provision, clause or sentence herein
contained unenforceable or invalid. The portion of the Agreement which is not
invalid or unenforceable shall be considered enforceable and binding on the
parties and the invalid or unenforceable provision(s), clauses(s) or sentence(s)
shall be deemed excised, modified or restricted to the extent necessary to
render the same valid and enforceable, and this Agreement shall be construed as
if such invalid or unenforceable provision(s), clause(s), or sentence(s) were
omitted.
22. Effective Date. This Agreement shall become effective only upon and
subject to the approval of the Board of Directors of MFI.
23. Governing Law. This Agreement shall be governed, construed and
enforced in accordance with the internal laws of the State of Illinois,
excluding any choice of law rules which may direct the application of the laws
of another jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate on the date first above written.
Xxxxxx X. Xxxxx
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Executive
MARKET FACTS, INC.
By: Xxxxx X. Xxxxxxx
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