Exhibit 10.9
EMPLOYMENT AGREEMENT
This Employment Agreement is made as of March 6, 1996 by and among
Metromail Corporation, a Delaware corporation (the "Company"), and Xxxxxx X.
Xxxxxxx (the "Executive").
WHEREAS, the Company desires to employ the Executive as its Senior Vice
President, General Counsel and Chief Administrative Officer, and the Executive
desires to accept such employment, for the term and upon the conditions set
forth in this Agreement.
Agreement
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Now, therefore, the parties hereto hereby agree as follows:
1. Employment. Subject to the terms and conditions set forth in this
Agreement, the Company offers and the Executive hereby accepts employment,
effective as of the time of the closing of the Company's initial public offering
of its common stock ("Common Stock") (the date of such closing being referred to
herein as the "Effective Date").
2. Term. Subject to earlier termination as hereafter provided, the
Executive shall be employed hereunder for an original term commencing on the
Effective Date and ending at 5:00 p.m., Chicago time, on the fourth anniversary
of the Effective Date, or such later date to which the parties may agree. The
term of this Agreement is hereafter referred to as "the term of this Agreement"
or "the term hereof". If the closing of the Company's initial public offering of
its Common Stock is not consummated on or before June 30, 1996, this Agreement
shall automatically terminate and be without further force or effect.
3. Capacity and Performance.
3.1. Offices. During the term hereof, the Executive shall serve as the
Company's Senior Vice President, General Counsel and Chief Administrative
Officer. The Executive shall be subject to the direction of, and shall have
such powers, duties and responsibilities consistent with the Executive's
position as Senior Vice President, General Counsel and Chief Administrative
Officer as may from time to time be prescribed by, the Chairman. In
addition, for so long as the Executive is employed by the Company and,
unless otherwise determined by the Company's Board of Directors
(the "Board"), without further compensation, the Executive shall serve as a
director of one or more of the Company's subsidiaries if so elected or
appointed from time to time.
3.2. Performance. During the term hereof, the Executive shall be
employed by the Company and shall perform and discharge (faithfully,
diligently and to the best of the Executive's ability) such duties and
responsibilities on behalf of the Company and its subsidiaries as may be
designated from time to time by the Chairman and which are consistent with
the Executive's position as Senior Vice President, General Counsel and
Chief Administrative Officer. During the term hereof, the Executive shall
devote the Executive's full business time and attention to the advancement
of the business and interests of the Company and its subsidiaries and to
the discharge of the Executive's duties and responsibilities hereunder.
Nothing contained herein shall be construed to prohibit or restrict the
Executive from (a) serving in various capacities in community, civic,
religious or charitable organizations, or (b) attending to personal
business and investment matters. It is expressly agreed that any such
service or activity permitted by the previous sentence shall not
unreasonably interfere with the performance of the Executive's duties and,
if so, the Executive, after consultation with the Chairman, will comply
with the reasonable requests of the Chairman to cease or limit the service
or activity.
4. Compensation and Benefits. As compensation for all services performed by
the Executive under this Agreement and subject to Section 5 hereof and
performance of the Executive's duties and of the obligations to the Company and
its subsidiaries, pursuant to this Agreement or otherwise:
4.1. Base Salary. During the term hereof, the Company shall pay the
Executive a base salary at the rate of $230,000 per year, payable in
accordance with the payroll practices of the Company for its executives and
subject to increase at any time or from time to time by the Board in its
sole discretion. Such base salary, as from time to time increased, is
hereafter referred to as the "Base Salary". The Base Salary payable to the
Executive in 1996 shall be prorated for the period from the Effective Date
through December 31, 1996 and for any subsequent period of service less
than one full year.
4.2. Bonus Compensation. During the term hereof, the Company from time
to time shall pay the Executive an annual bonus (the "Bonus"). The Bonus in
respect of 1996 (the "1996 Bonus") will be calculated and payable in
accordance with and based on the following factors:
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(a) (1) If the Company's net income for 1996, as set forth in the
Company's audited financial statements (the "1996 Net Income"), is
less than $15,000,000, adjusted as set forth in subparagraph (b)
below (the "Minimum Target"), the 1996 Bonus shall equal zero;
(2) If the 1996 Net Income is equal to or greater than the Minimum
Target but less than $17,528,000, adjusted as set forth in
subparagraph (b) below (the "Base Target"), the 1996 Bonus shall equal
the sum of (i) 22.5% of the Executive's Base Salary as of the
Effective Date plus (ii) the number obtained by multiplying 22.5% of
the Executive's Base Salary as of the Effective Date by a fraction
(which shall not be greater than one), the numerator of which is the
difference between the 1996 Net Income and the Minimum Target and the
denominator of which is the amount determined by subtracting the
Minimum Target from the Base Target;
(3) If the 1996 Net Income is equal to or greater than the Base
Target but less than $23,528,000, adjusted as set forth in
subparagraph (b) below (the "Maximum Target"), the 1996 Bonus shall
equal the sum of (i) 45% of the Executive's Base Salary as of the
Effective Date plus (ii) the number obtained by multiplying 45% of the
Executive's Base Salary as of the Effective Date by a fraction (which
shall not be greater than one), the numerator of which is the
difference between the 1996 Net Income and the Base Target and the
denominator of which is the amount determined by subtracting the Base
Target from the Maximum Target; or
(4) If the 1996 Net Income is equal to or greater than the Maximum
Target, the 1996 Bonus shall equal 90% of the Executive's Base Salary
as of the Effective Date.
Any compensation paid to the Executive as Bonus shall be in addition to the
Base Salary. The 1996 Bonus, if any, shall be pro-rated by multiplying (x)
the amount of the 1996 Bonus by (y) a fraction, the numerator of which is
the lesser of (I) the number of days from and including the Effective Date
through and including December 31, 1996 and (II) the number of days from
and including the Effective Date through and including the date of the
Executive's termination of employment and the denominator of which is 366.
Except with respect to the 1996 Bonus, any Bonus payable to the Executive
shall be pro-rated for any period of service less than a full year by
multiplying (x) the amount of the Bonus calculated for such year by (y) a
fraction, the numerator of which is the number of days from and including
January 1 of such year
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through and including the effective date of the Executive's termination of
employment and the denominator of which is 365. All bonus and benefit plans
are subject to annual review and change by the Board relative to key
strategic objectives for the year.
(b) Prior to determining the 1996 Bonus, each of the Minimum Target, the
Base Target and the Maximum Target shall be adjusted for changes occurring
during the period April 1, 1996 through the Effective Date by making those
adjustments reflected as Operating Structure and Capital Structure
Adjustments in the Unaudited Pro Forma Consolidated and Combined Statements
of Income set forth in the Form S-1 Registration Statement filed by the
Company in accordance with the footnotes thereto.
4.3. Stock Options. The Company shall establish the 1996 Long-Term
Incentive Plan (the "Plan") for management/employees of the Company. As of
the Effective Date, the Company shall grant to the Executive, pursuant to
the Plan, options to purchase a total of 70,000 shares of Common Stock at
an exercise price equal to the initial public offering price (the
"Options"), which amount shall include options to purchase 20,000 shares of
Common Stock as consideration for the cancellation of 5,000 shares of
restricted stock of X.X. Xxxxxxxxx & Sons Company ("RRD"). Subject to the
termination of employment provisions contained in the agreement evidencing
the Options, the Options will become exercisable in four annual
installments on the one year (25%), two year (25%), three year (25%) and
four year (25%) anniversaries of the Effective Date, subject to
acceleration of vesting in accordance with the terms of the agreement
evidencing the Options. Within three months after the Effective Date the
Company shall cause all shares subject to the Options to be registered on
Form S-8.
4.4. Vacations. During the term hereof, the Executive shall be
entitled to five (5) weeks of vacation per annual vacation period of the
Company (currently March 1 of each year through the last day of February of
the following year), such vacation to be taken at such times and intervals
as shall be determined by the Executive in the Executive's reasonable
discretion, provided, that, for the annual vacation period commencing on
March 1, 1996 and ending on February 28, 1997, the Executive's number of
vacation days for the period commencing on the Effective Date and ending on
February 28, 1997 shall be reduced by the number of vacation days taken by
the Executive (whether as an employee of RRD or the Company) during the
period commencing on March 1, 1996 and ending on the day prior to the
Effective Date. The Executive may not accumulate or carry over from one
calendar year to another any unused, accrued vacation time. The Executive
shall not be entitled to compensation for vacation time not taken.
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4.5. Other Benefits. During the term hereof and subject to any
contribution therefor generally required of executives of the Company, the
Executive shall be entitled to participate in all employee benefit plans
and other programs (including, but not limited to, any medical, dental,
retirement, disability, life insurance, sick leave and other benefits) from
time to time adopted by the Board and in effect for executives of the
Company generally, except to the extent such plans are in a category of
benefit otherwise already provided to the Executive. Such participation
shall be subject to (i) the terms of the applicable plan documents, (ii)
generally applicable Company policies and (iii) the discretion of the Board
or any administrative or other committee provided for in or contemplated by
such plan. The Executive's service period with X.X. Xxxxxxxxx & Sons
Company, a Delaware corporation, or its affiliates shall be credited with
respect to any service period requirement of any plan adopted by the
Company. The Company may alter, modify, add to or delete its employee
benefit plans at any time as the Board, in its sole judgment, determines to
be appropriate.
4.6. Business Expenses. The Company shall pay or reimburse the
Executive for all reasonable business expenses incurred or paid by the
Executive in the performance of the Executive's duties and responsibilities
hereunder, subject to (i) any expense policy of the Company set by the
Board from time to time, and (ii) such reasonable substantiation and
documentation requirements as may be specified by the Board from time to
time.
4.7. Severance. In the event the Executive's employment with the
Company is terminated by the Company other than for Cause or terminated by
the Executive pursuant to Section 5.5, the Executive will be entitled to
twelve (12) monthly severance payments, each in an amount equal to the
Executive's then applicable Base Salary, calculated on a monthly basis, at
the time of such termination (i.e., 1/12th of the Base Salary).
5. Termination of Employment and Severance Benefits. Notwithstanding the
provisions of Section 2 hereof, the Executive's employment hereunder shall
terminate prior to the expiration of the term of this Agreement under the
following circumstances:
5.1. Retirement or Death. In the event of the Executive's retirement
or death during the term hereof, the Executive's employment hereunder shall
immediately and automatically terminate. In the event of the Executive's
retirement after the age of sixty-five, age fifty-five with the prior
consent of the Board or death during the term hereof, the Company shall pay
to the Executive (or in the case of death, the Executive's designated
beneficiary or, if no beneficiary has been designated by the Executive, to
the
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Executive's estate) (i) Base Salary earned but unpaid through and
including the date of such retirement or death, (ii) any amount payable
pursuant to Section 4.6, (iii) any unpaid portion of any Bonus for any
fiscal year preceding the year in which such retirement or death occurs
that was earned but had not previously been paid and (iv) at the times the
Company pays its executives bonuses in accordance with its general payroll
policies, any Bonus which would have been paid had such retirement or death
not occurred during the fiscal year of such retirement or death (pro-rated
based on a formula, the numerator of which shall be the number of days
during the fiscal year of such retirement or death in which the Executive
was employed by the Company and the denominator of which shall be 365 or
366, as the case may be).
5.2. Disability.
5.2.1. The Company may terminate the Executive's employment
hereunder, upon written notice to the Executive, in the event that the
Executive becomes disabled during the Executive's employment hereunder
through any illness, injury, accident or condition of either a
physical or psychological nature and, as a result, is unable to
perform substantially all of the Executive's duties and
responsibilities hereunder for an aggregate of one hundred eighty
(180) days during any period of three hundred and sixty-five (365)
consecutive calendar days.
5.2.2. The Board may designate another employee to act
temporarily in the Executive's place during any period of the
Executive's disability. Notwithstanding any such designation, the
Executive shall continue to receive the Base Salary in accordance with
Section 4.1 and to receive benefits in accordance with Section 4.5, to
the extent permitted by the then current terms of the applicable
benefit plans, until the Executive becomes eligible for disability
income benefits under any disability income plan maintained by the
Company or until the termination of the Executive's employment,
whichever shall first occur. Upon becoming so eligible, or upon such
termination, whichever shall first occur, the Company shall pay to the
Executive (i) Base Salary earned but unpaid through and including the
date of such eligibility or termination, (ii) any amount payable
pursuant to Section 4.6, (iii) any unpaid portion of any Bonus for any
fiscal year preceding the year in which such eligibility or
termination occurs that was earned but had not previously been paid,
(iv) during the eighteen-month period commencing on such date of
eligibility or termination, amounts (payable from time to time at the
times the Company pays its executive in accordance with its general
payroll policies) equal to the difference, if positive, between the
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Base Salary for the Executive for such period, or portion thereof, and
the amounts of disability income benefits that the Executive receives
pursuant to the above-referenced disability income plan in respect of
such period, and (v) at the times the Company pays its executives
bonuses in accordance with its general payroll policies, any Bonus
which would have been paid had disability not occurred during the
fiscal year in which such eligibility or termination occurs (pro-rated
based on a formula, the numerator of which shall be, as applicable,
(i) the number of days from and including January 1 of the fiscal year
in which such eligibility occurs to but excluding the date of such
eligibility or (ii) the number of days on which the Executive was
employed by the Company during the fiscal year in which such
termination occurs and the denominator of which shall be 365 or 366,
as the case may be).
5.2.3. Except as provided in Section 5.2.2, while receiving
disability income payments under any disability income plan maintained
by the Company, the Executive shall not be entitled to receive any
Base Salary under Section 4.1 or Bonus payments under Section 4.2 but
shall continue to participate in the Company's benefit plans in
accordance with Section 4.5 and the terms of such plans, until the
termination of the Executive's employment. During the eighteen-month
period from and including the date of termination, the Company shall
pay for the cost of the Executive's participation in the Company's
group medical and dental plans, provided that the Executive is
entitled to continue such participation under applicable law and the
terms of such plan.
5.2.4. If any question shall arise as to whether during any
period the Executive is disabled through any illness, injury, accident
or condition of either a physical or psychological nature so as to be
unable to perform substantially all of the Executive's duties and
responsibilities hereunder, the Executive may, and at the request of
the Company shall, submit to a medical examination by a physician
selected by the Company to whom the Executive or the Executive's duly
appointed guardian, if any, has no reasonable objection to determine
whether the Executive is so disabled and such determination shall for
the purposes of this Agreement be conclusive of the issue. If such
question shall arise and the Executive shall fail to submit to such
medical examination, the Board's determination of the issue shall be
binding on the Executive.
5.3. By the Company for Cause. The Company may terminate the
Executive's employment hereunder for Cause as provided in Section 11.2. If
the Executive's employment hereunder is terminated for Cause, the Company
shall have no further
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obligation or liability to the Executive relating to the Executive's
employment hereunder, or the termination thereof, except that the Company
shall pay to the Executive (i) Base Salary earned but unpaid through and
including the date of termination and (ii) any amount payable pursuant to
Section 4.6.
5.4. By the Company other than for Cause. The Company may terminate
the Executive's employment hereunder other than for Cause at any time after
the one year anniversary of the Effective Date upon two weeks prior written
notice to the Executive. In the event of such termination, then the
Company shall pay the Executive (i) Base Salary earned but unpaid through
and including the date of termination, (ii) any amount payable pursuant to
Section 4.6, (iii) the amounts specified in Section 4.7, (iv) any unpaid
portion of any Bonus for any fiscal year preceding the year in which such
termination occurs that was earned but had not previously been paid and (v)
at the times the Company pays its executives bonuses in accordance with its
general payroll policies, any Bonus which would have been paid had
termination not occurred during the fiscal year in which such termination
occurs (pro-rated based on a formula, the numerator of which shall be the
number of days during the fiscal year in which such termination occurs the
Executive was employed by the Company and the denominator of which shall be
365 or 366, as the case may be).
5.5. By the Executive upon Breach or for Good Reason. The Executive
may terminate the Executive's employment hereunder (i) in the event that
the Company fails to perform, in any material respect, its obligations
under this Agreement, after written notice to the Company setting forth in
reasonable detail the nature of such breach if such breach remains uncured
for a period of 30 days following such written notice to the Company, (ii)
there is a diminution in the material responsibilities, duties and powers
of the Executive or (iii) the Company's principal executive offices or the
Executive's office are moved from their present location to a location
outside of the Chicago Metropolitan Area. In the event of termination in
accordance with this Section 5.5, then the Company shall pay to the
Executive (i) Base Salary earned but unpaid through and including the date
of termination, (ii) any amount payable pursuant to Section 4.6, (iii) the
amounts specified in Section 4.7, (iv) any unpaid portion of any Bonus for
any fiscal year preceding the year in which such termination occurs that
was earned but had not previously been paid and (v) at the times the
Company pays its executives bonuses in accordance with its general payroll
policies, any Bonus which would have been paid had termination not occurred
during the fiscal year in which such termination occurs (pro-rated based on
a formula, the numerator of which shall be the
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number of days during the fiscal year in which such termination occurs the
Executive was employed by the Company and the denominator of which shall be
365 or 366, as the case may be).
5.6. By the Executive Other than upon Breach or for Good Reason.
The Executive may terminate the Executive's employment hereunder at any
time upon ninety (90) days' written notice to the Company. In the event of
termination of the Executive pursuant to this Section 5.6, the Board may
elect to waive the period of notice, or any portion thereof, and, whether
or not the Board so elects, the Company shall pay to the Executive (i) Base
Salary for the full notice period and (ii) any amount payable pursuant to
Section 4.6.
5.7. Post-Agreement Employment. In the event the Executive remains
in the employ of the Company or any of its Affiliates following termination
of this Agreement, by the expiration of the term hereof or otherwise, then
such employment shall be at will, unless otherwise agreed in writing.
6. Effect of Termination. The provisions of this Section 6 shall apply in
the event of termination due to the expiration of the term of this Agreement,
pursuant to Section 5 or otherwise.
6.1. Receipt of Certain Benefits. It is the mutual intention of the
Company and the Executive that the Executive receive the full benefit of
the compensation and benefits provided to the Executive during the term
hereof which compensation and benefits may be payable over periods beyond
the particular year of employment. The Executive shall not be obligated to
seek other employment by way of mitigation of the amounts due to the
Executive nor shall the Executive's earnings after termination reduce the
Company's obligations hereunder. Nothing in this Section 6.1 is intended
or shall be construed to affect the rights and obligations of the Company
and its Affiliates, on the one hand, and the Executive, on the other, with
respect to any loans, stock pledge arrangements, option plans or other
agreements to the extent said rights or obligations survive termination of
employment under the provisions of the documents relating thereto.
6.2. Termination of Benefits. Except for medical and dental
insurance coverage continued pursuant to Sections 5.2 hereof and any right
of continuation of health coverage to the extent provided by Sections 601
through 608 of ERISA, benefits shall terminate pursuant to the terms of the
applicable benefit plans based on the date of termination of the
Executive's employment without regard to any continuation of Base
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Salary or other payments to the Executive following such date of
termination pursuant to Section 5.
6.3. Survival of Certain Provisions. Provisions of this Agreement
shall survive any termination if so provided herein or if necessary or
desirable fully to accomplish the purposes of such provision, including,
without limitation, the obligations of the Executive under Sections 7 and 8
hereof. The obligation of the Company to make payments to or on behalf of
the Executive under Sections 4.7, 5.4 or 5.5 hereof is expressly
conditioned upon the Executive's continued full performance of obligations
under Sections 7 and 8 hereof. The Executive recognizes that, except as
expressly provided in Section 4.7, 5.4 or 5.5, no compensation is earned
after termination of employment.
7. Confidential Information; Intellectual Property.
7.1. Confidentiality. The Executive acknowledges that the Company
and its Affiliates continually develop Confidential Information, that the
Executive may develop Confidential Information for the Company or its
Affiliates and that the Executive may learn of Confidential Information
during the course of employment. The Executive will comply with the
policies and procedures of the Company for protecting Confidential
Information and shall never disclose to any Person (except as required by
applicable law or for the proper performance of the Executive's duties and
responsibilities to the Company and its Affiliates), or use for the
Executive's own benefit or gain or otherwise use in a manner adverse to the
interests of the Company and its Affiliates, any Confidential Information
obtained by the Executive incident to the Executive's employment or other
association with the Company or any of its Affiliates. The Executive
understands that this restriction shall continue to apply after the
Executive's employment terminates, regardless of the reason for such
termination. Notwithstanding the foregoing, the Executive's covenant not
to disclose Confidential Information does not apply to information which
(i) becomes generally available to the public or otherwise becomes known
through sources other than the Executive, (ii) is subsequently disclosed to
the Executive by a source other than the Company who was under no duty of
confidence or (iii) is required to be disclosed by the Executive through
discovery in litigation or by order of a court or otherwise as required by
law.
7.2. Return of Documents. All documents, records, tapes and other
media of every kind and description relating to the business, present or
otherwise, of the Company or its Affiliates and any copies, in whole or in
part, thereof (the "Documents"), whether or not prepared by the Executive,
shall be the sole and
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exclusive property of the Company and its Affiliates. The Executive shall
safeguard all Documents and shall surrender to the Company at the time the
Executive's employment terminates, or at such earlier time or times as the
Board or its designee may specify, all Documents then in the Executive's
possession or control.
7.3. Assignment of Rights to Intellectual Property. The Executive
shall promptly and fully disclose all Intellectual Property to the Company.
The Executive hereby assigns and agrees to assign to the Company (or as
otherwise directed by the Company) the Executive's full right, title and
interest in and to all Intellectual Property. The Executive agrees to
execute any and all applications for domestic and foreign patents,
copyrights or other proprietary rights and to do such other acts (including
without limitation the execution and delivery of instruments of further
assurance or confirmation) requested by the Company to assign the
Intellectual Property to the Company and to permit the Company to enforce
any patents, copyrights or other proprietary rights to the Intellectual
Property. The Executive will not charge the Company for time spent in
complying with these obligations. All copyrightable works that the
Executive creates shall be considered "work made for hire".
8. Agreement not to Compete with the Business. The Executive agrees that
during the term of the Executive's employment hereunder and for a period of
twelve (12) months following the date of termination thereof (the "Non-
Competition Period"), the Executive will not, directly or indirectly (a) own,
manage, operate, control or participate in any manner in the ownership,
management, operation or control of, or be connected as an officer, employee,
partner, director, principal, consultant, agent or otherwise with, or have any
financial interest in, or aid or assist anyone else in the conduct of, any
business, venture or activity which competes with the business of the Company,
or any group, division or subsidiary of the Company, as described in the
Company's Registration Statement on Form S-1 relating to the Company's initial
public offering of Common Stock or, beginning with the Company's Annual Report
on Form 10-K for the year ending December 31, 1996, the Company's most recent
Annual Report on Form 10-K filed with the Securities and Exchange Commission
prior to the date (the "Date of Termination") the Executive's employment under
this Agreement is terminated (hereinafter "Competitive Business"), in the United
States, Canada, the United Kingdom or any other geographic area where such
Competitive Business is being conducted at the Date of Termination or (b)
recruit or otherwise seek to induce any employees of the Company or any of its
subsidiaries to terminate their employment or violate any agreement with or duty
to the Company or any of its subsidiaries. It is understood and agreed that,
for the purposes of the foregoing provisions of this Section 8, (i) no business,
venture or activity shall be deemed to be a Competitive Business unless not less
than five percent of the Company's consolidated gross sales or operating income
is derived from, or not less than five
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percent of the Company's consolidated assets are devoted to, such business,
venture or activity; and (ii) no business, venture or activity conducted by any
entity by which the Executive is employed or in which the Executive is
interested or with which the Executive is connected or associated shall be
deemed to be a Competitive Business unless it is one from which five percent or
more of such entity's consolidated gross sales or operating income is derived,
or to which five percent or more of such entity's consolidated assets are
devoted; provided, however, that if the actual gross sales or operating income
or assets of such entity derived from or devoted to such business, venture or
activity is equal to or in excess of 10% of the most nearly comparable figure
for the Company, such business, venture or activity of such entity shall be
deemed to be a Competitive Business. Further, ownership of not more than five
percent of the voting stock of any publicly held corporation shall not, of
itself, constitute a violation of this Section 8.
9. Enforcement of Covenants. The Executive acknowledges that the
Executive has carefully read and considered all the terms and conditions of this
Agreement, including without limitation the restraints imposed upon the
Executive pursuant to Sections 7 and 8 hereof. The Executive agrees that said
restraints are necessary for the reasonable and proper protection of the Company
and its Affiliates and that the restraints are reasonable as to the definition
of Competitive Business and length of time. The Executive further acknowledges
that, were the Executive to breach any of the covenants or agreements contained
in Sections 7 or 8 hereof, the damage to the Company could be irreparable. The
Executive therefore agrees that the Company, in addition to any other remedies
available to it, shall be entitled to preliminary and permanent injunctive
relief against any breach or threatened breach by the Executive of any of said
covenants or agreements. The parties further agree that in the event that any
provision of Section 7 or 8 hereof shall be determined by any Court of competent
jurisdiction to be unenforceable by reason of its being extended over too great
a time, too large a geographic area or too great a range of activities, such
provision shall be deemed to be modified to permit its enforcement to the
maximum extent permitted by law.
10. Conflicting Agreements. The Executive hereby represents and warrants
that the execution of this Agreement and the performance of the Executive's
obligations hereunder will not breach or be in conflict with any other agreement
to which or by which the Executive is a party or is bound and that the Executive
is not now subject to any covenants against competition or similar covenants
that would affect the performance of the Executive's obligations hereunder. The
Executive will not disclose to or use on behalf of the Company or any of its
Affiliates any proprietary information of a third party without such party's
consent.
11. Definitions. Terms defined elsewhere in this Agreement are used
herein as so defined. In addition, the following terms shall have the following
meanings:
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11.1. Affiliates. "Affiliates" means all persons and entities
directly or indirectly controlling, controlled by or under common control
with the Company.
11.2. Cause. The following events or conditions shall constitute
"Cause" for termination: (i) the willful failure by the Executive to
substantially perform the Executive's duties to the Company (other than any
such failure resulting from the Executive's incapacity due to physical or
mental illness), including the Executive's obligations under this Agreement
or (ii) a willful and material breach by the Executive of Section 7.1, 7.3
or 8 or (iii) a conviction for fraud, embezzlement or other act of
dishonesty by the Executive that causes material injury to the Company or
any of its Affiliates or (iv) conviction of, or plea of nolo contendere to,
any felony involving dishonesty or moral turpitude.
For purposes of this Section 11.2, no act or failure to act on the
Executive's part shall be deemed "willful" unless done, or omitted to be
done, by the Executive not in good faith and without reasonable belief that
the actions or omissions were in the best interest of the Company.
Notwithstanding and with respect to clause (i) only in the immediately
preceding paragraph, the Executive shall not be deemed terminated for Cause
unless and until there shall have been delivered to the Executive a copy of
a letter from the Chairman (after reasonable notice to the Executive and an
opportunity for the Executive, together with the Executive's counsel, to be
heard by the Chairman and after the Executive has been provided with a
period of not less than 30 days within which to correct the situation)
finding that in the opinion of the Chairman the Executive engaged in the
conduct set forth in such clause (i) and specifying the particulars in
reasonable detail.
11.3. Confidential Information. "Confidential Information" means any
and all information of the Company and its Affiliates that is not generally
known by others with whom they compete or do business, or with whom they
plan to compete or do business and any and all information the disclosure
of which would otherwise be adverse to the interests of the Company or any
of its Affiliates. Confidential Information includes without limitation
such information relating to (i) the services or products sold or offered
by the Company or any of its Affiliates, (ii) the costs, sources of supply,
financial performance and strategic plans of the Company and its
Affiliates, (iii) the identity and special needs of the customers of the
Company and its Affiliates and (iv) the people and organizations with whom
the Company and its Affiliates have business relationships and those
relationships. Confidential Information also includes comparable
information that the Company or any of its Affiliates have received
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belonging to others or which was received by the Company or any of its
Affiliates with any understanding that it would not be disclosed.
11.4. ERISA. "ERISA" means the federal Employee Retirement Income
Security Act of 1974 or any successor statute, and the rules and
regulations thereunder, and in the case of any referenced section thereof
any successor section thereto, collectively and as from time to time
amended and in effect.
11.5. Intellectual Property. "Intellectual Property" means
inventions, discoveries, developments, methods, processes, compositions,
works, concepts and ideas (whether or not patentable or copyrightable or
constituting trade secrets) conceived, made, created, developed or reduced
to practice by the Executive (whether alone or with others, whether or not
during normal business hours or on or off Company premises) during the
Executive's employment that relate to either the business of the Company or
any of its Affiliates or any prospective activity of the Company or any of
its Affiliates.
11.6. Person. "Person" means an individual, a corporation, an
association, a partnership, a limited liability company, an estate, a trust
and any other entity or organization.
12. Withholding. All payments made by the Company under this Agreement
shall be reduced by any tax or other amounts required to be withheld by the
Company under applicable law.
13. Miscellaneous.
13.1. Assignment. Neither the Company nor the Executive may make any
assignment of this Agreement or any interest herein (provided, however,
that nothing contained herein shall be construed to place any limitation or
restriction on the transfer of the Common Stock in addition to any
restrictions set forth in any agreement applicable to such shares), by
operation of law or otherwise, without the prior written consent of the
other; provided, however, that the Company may assign its rights and
obligations under this Agreement without the consent of the Executive in
the event that the Company shall hereafter effect a reorganization,
consolidate with, or merge into, any other Person or transfer all or
substantially all of its properties or assets to any other Person, in which
event such other Person shall be deemed the "Company" hereunder for all
purposes. The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of
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the business or assets of the Company to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if the succession had not taken place.
This Agreement shall inure to the benefit of and be binding upon the
Company and the Executive, and their respective successors, executors,
administrators, heirs and permitted assigns.
13.2. Severability. If any portion or provision of this Agreement
shall to any extent be declared illegal or unenforceable by a court of
competent jurisdiction, then the application of such provision in such
circumstances shall be deemed modified to permit its enforcement to the
maximum extent permitted by law, and both the application of such portion
or provision in circumstances other than those as to which it is so
declared illegal or unenforceable and the remainder of this Agreement shall
not be affected thereby, and each portion and provision of this Agreement
shall be valid and enforceable to the fullest extent permitted by law.
13.3. Waiver; Amendment. No waiver of any provision hereof shall be
effective unless made in writing and signed by the waiving party. The
failure of either party to require the performance of any term or
obligation of this Agreement, or the waiver by either party of any breach
of this Agreement, shall not prevent any subsequent enforcement of such
term or obligation or be deemed a waiver of any subsequent breach. This
Agreement may be amended or modified only by a written instrument signed by
the Executive and the Company.
13.4. Notices. Any and all notices, requests, demands and other
communications provided for by this Agreement shall be in writing and shall
be effective when delivered in person or two business days after being
deposited in the United States mail, postage prepaid, registered or
certified, and addressed (a) in the case of the Executive, to Xxxxxx X.
Xxxxxxx at Metromail Corporation, 000 Xxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000 or, (b) in the case of the Company, at its principal place of
business and to the attention of Board of Directors; or to such other
address as either party may specify by notice to the other.
13.5. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the terms and conditions of
the Executive's employment and, except as otherwise provided herein,
supersedes all prior communications, agreements and understandings, written
or oral, with the Company with respect to the terms and conditions of the
Executive's employment.
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13.6. Headings. The headings and captions in this Agreement are for
convenience only and in no way define or describe the scope or content of
any provision of this Agreement.
13.7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which together
shall constitute one and the same instrument.
13.8. Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic substantive laws of the State of
Illinois without giving effect to any choice or conflict of laws provision
or rule that would cause the application of the domestic substantive laws
of any other jurisdiction.
13.9. Consent to Jurisdiction. Each of the Company and the
Executive, by its or the Executive's execution hereof, (i) hereby
irrevocably submits to the exclusive jurisdiction of the state courts of
the State of Illinois for the purpose of any claim or action arising out of
or based upon this Agreement or relating to the subject matter hereof, (ii)
hereby waives, to the extent not prohibited by applicable law, and agrees
not to assert by way of motion, as a defense or otherwise, in any such
claim or action, any claim that it is not subject personally to the
jurisdiction of the above-named courts, that its property is exempt or
immune from attachment or execution, that any such proceeding brought in
the above-named courts is improper, or that this Agreement or the subject
matter hereof may not be enforced in or by such court, and (iii) hereby
agrees not to commence any claim or action arising out of or based upon
this Agreement or relating to the subject matter hereof other than before
the above-named courts or any applicable governmental agency nor to make
any motion or take any other action seeking or intending to cause the
transfer or removal of any such claim or action to any court other than the
above-named courts whether on the grounds of inconvenient forum or
otherwise. Each of the Company and the Executive hereby consents to
service of process in any such proceeding in any manner permitted by
Illinois law, and agrees that service of process by registered or certified
mail, return receipt requested, at its address specified pursuant to
Section 13.4 hereof is reasonably calculated to give actual notice.
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IN WITNESS WHEREOF, this Agreement has been executed by the Company, by its
duly authorized representative, and by the Executive, as of the date first above
written.
THE COMPANY: METROMAIL CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Secretary
THE EXECUTIVE: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxxx
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