EXHIBIT 10J
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AGREEMENT amended and restated as of December 6, 2000 by and between
AutoInfo, Inc., a Delaware corporation ("Auto") and Xxxxxxx Xxxxxxxxxx residing
at 00 Xxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 ("Xxxxxxxxxx").
WHEREAS, Xxxxxxxxxx and Auto are parties to that certain Employment
Agreement dated April 10, 1997 (the "Initial Agreement"), pursuant to which
Xxxxxxxxxx is employed as the President and Chief Financial Officer of Auto; and
WHEREAS, Auto desires to assure itself of the benefit of Xxxxxxxxxx'x
services and experience for a period of time and Xxxxxxxxxx is willing to enter
into an agreement to that end with Auto; and
WHEREAS, Auto and Xxxxxxxxxx desire to amend and restate the Initial
Agreement upon the terms and conditions herein set forth.
NOW THEREFORE, in consideration of the premises and covenants herein
contained, the parties hereto agree as follows:
1. Employment. Auto hereby employs Xxxxxxxxxx as its Executive Vice
President and Chief Financial Officer and Xxxxxxxxxx hereby accepts such
employment and agrees to perform his duties and responsibilities hereunder in
accordance with the terms and conditions hereinafter set forth. Xxxxxxxxxx
hereby resigns his position as President of Auto.
2. Duties and Responsibilities. Xxxxxxxxxx shall be the Executive Vice
President and Chief Financial Officer of Auto during the Employment Term (as
defined below). Xxxxxxxxxx shall report to and be subject to the direction of
the President and Board of Directors (the "Board") of Auto and Xxxxxxxxxx shall
perform such duties as may be assigned to him from time to time by the President
and Board; provided, that such duties shall be of a nature consistent with the
dignity and authority of the positions of Executive Vice President and Chief
Financial Officer. During the Employment Term Xxxxxxxxxx shall, subject to
Auto's vacation policy (which shall provide Xxxxxxxxxx with four (4) weeks of
fully paid vacation per annum), devote substantially all of his normal business
time and attention to the businesses of Auto and its subsidiaries and affiliates
and shall perform such duties in a diligent, trustworthy, loyal, businesslike
and efficient manner, all for the purpose of advancing the business of Auto and
its subsidiaries and affiliates. Nothing contained in this Agreement shall be
deemed to prohibit Xxxxxxxxxx from devoting a nominal amount of his time to his
(and his family's) personal investments, provided, however, that, in case of
conflict, the performance of Xxxxxxxxxx'x duties under this Agreement shall take
precedence over his activities with respect to such investments.
3. Term. The Term of this Agreement shall commence on the date hereof and
shall continue until December 31, 2003, unless terminated prior thereto in
accordance with the terms and provisions hereof (the "Employment Term").
4. Compensation. Auto shall pay to Xxxxxxxxxx a salary at the rate of
$75,000 per year (the "Base Compensation"), payable in such manner as Auto shall
determine, but in no event any less often than monthly, less withholding
required by law and other deductions agreed to by Xxxxxxxxxx. Xxxxxxxxxx'x
annual salary may be increased during the Employment Term in the sole discretion
of the Board.
5. Bonus. In addition to the Base Compensation provided for in Paragraph 4
of this Agreement, Xxxxxxxxxx shall during the Employment Term participate in
Auto's then existing and effective profit sharing and bonus plans. Furthermore,
Xxxxxxxxxx shall receive such other bonuses as determined in the sole discretion
of
the Board; provided, however, that for the year ending December 31, 2001, 2002
and 2003, in no event shall such bonus be less than an amount equal to ten
percent (10%) of Auto's consolidated combined pre-tax profit, excluding the
effect of any non-cash compensation based upon the issuance of stock options and
/ or warrants, (the "Operating Profit"), in excess of $100,000 and up to
$1,250,000. Commencing with the quarter ending March 31, 2002, an amount equal
to five percent (5%) of the Operating Profit in excess of $25,000 for such
quarter then ended shall be paid, within fifty (50) days of the close of such
quarter, as an advance against the bonus for that calendar year. Such cumulative
interim advances shall be applied against the bonus as computed for the years
ended December 31, 2002 and 2003. In the event the advances paid to Xxxxxxxxxx
during 2002 and 2003 exceed the annual bonus payable to Xxxxxxxxxx based upon
Auto's actual Operating Profit for the years ended December 31, 2002 and 2003,
Xxxxxxxxxx shall promptly reimburse Auto an amount equal to the difference
between the amount of advances received during such year and the actual bonus,
if any, payable for such year.
6. Principal Office. Without Xxxxxxxxxx'x consent, Auto shall not require
Xxxxxxxxxx to maintain his principal office in any location other than within a
25 mile radius of Boca Raton, Florida. If Auto's executive offices shall be
relocated to any location outside of the 25 mile radius of Boca Raton, Florida,
Auto shall reimburse Xxxxxxxxxx for any and all reasonable moving expenses
actually incurred by him. In addition, for the period commencing on the date
hereof and through August 31, 2001, Xxxxxxxxxx shall maintain an office in
Stamford, Connecticut, where he shall spend approximately fifty percent (50%) of
his time. During this period, all reasonable costs associated with business
related travel between the Stamford and Boca Raton offices shall be borne by
Auto. Upon permanent relocation to the Boca Raton area, Xxxxxxxxxx shall be
reimbursed for all reasonable relocation expenses in an amount not to exceed
$10,000.
7. Expenses and Benefits.
(a) Auto shall, consistent with Auto's policy of reporting and
reimbursement of business expenses, reimburse Xxxxxxxxxx for such other ordinary
and necessary entertainment and business related expenses as shall be incurred
by Xxxxxxxxxx in the course of the performance of his duties under this
Agreement.
(b) Auto recognizes that Xxxxxxxxxx will be required to incur
significant travel in rendering services to Auto hereunder and in connection
therewith Auto shall during the Employment Term provide Xxxxxxxxxx with a
automobile allowance of $750 per month which the parties agree shall be used to
pay all of the expenses associated with the operation of an automobile
including, without limitation, maintenance, repair and insurance costs.
(c) Xxxxxxxxxx shall be entitled to participate, to the extent he
qualifies, in such life insurance, hospitalization, disability and other medical
insurance plans or programs as are generally made available to executive
officers of Auto.
8. Termination and Termination Benefits.
(a) Termination by Auto.
(i) For Cause. Not withstanding any provision contained
herein, Auto may terminate this Agreement at any time during the Employment Term
for "cause". For purposes of this subsection 8(a)(i), "cause" shall mean (1) the
continuing failure by Xxxxxxxxxx to substantially perform his duties hereunder
for any reason other than total or partial incapacity due to physical or mental
illness, (2) gross negligence or willful misconduct on the part of
Xxxxxxxxxx in the performance of his duties hereunder that demonstrably cause
harm to Auto, and (3) the conviction of Xxxxxxxxxx, by a court of competent
jurisdiction, of a felony or other crime involving moral turpitude. Termination
pursuant to this subsection 8(a)(i) shall be effective immediately upon giving
Xxxxxxxxxx written notice thereof stating the reason or reasons therefore with
respect to clauses (2) and (3) above, and 15 days after written notice thereof
from Auto to Xxxxxxxxxx specifying the acts or omissions constituting the
failure and requesting that they be remedied with respect to clause (1) above,
but only if Xxxxxxxxxx has not cured such failure within such 15 day period. In
the event of a termination pursuant to this subsection 8(a)(i), Xxxxxxxxxx shall
be entitled to payment of his Base Compensation and the benefits pursuant to
Section 7 hereof up to the effective date of such termination.
(ii) Notwithstanding any provision contained
herein, Auto may terminate this Agreement at any time during the
Employment Term without "cause" upon 30 days' notice to Xxxxxxxxxx. In the
event of a termination pursuant to this subsection 8(a)(ii), Xxxxxxxxxx
shall be entitled to payment of his Base Compensation plus, upon
determination of Annual Operating Profit, a pro rata portion of any
bonuses earned pursuant to Paragraph 5 hereof and the benefits pursuant to
Section 7 hereof up to the effective date of such termination plus a
severance payment equal to $75,000, which shall be payable in ten (10)
equal monthly installments commencing on the date of termination.
(iii) Disability. If due to illness, physical or mental
disability, or other incapacity, Xxxxxxxxxx shall fail, for a total 90 days
during any 120 day period ("Disability"), to substantially perform the principal
duties required by this Agreement, Auto may terminate this Agreement upon 30
days' written notice to Xxxxxxxxxx; provided, however that if Xxxxxxxxxx
commences to perform the duties required by this Agreement within such 30-day
period and performs such services for 25 out of 30 of the ensuing work days,
then such notice shall be void. In the event of a termination pursuant to this
subsection 8(a)(iii), Xxxxxxxxxx shall be (1) paid his Base Compensation until
the termination date and, upon determination of Annual Operating Profit, a pro
rata portion of any bonus to which he would have been entitled for the year in
which such termination occurs, and (2) provided with employee benefits pursuant
to Section 7(c), to the extent available, for the remainder of the Employment
Term; provided, however, that any compensation to be paid to Xxxxxxxxxx pursuant
to this subsection 8(a)(iii) shall be offset against any payments received by
Xxxxxxxxxx pursuant to any policy of disability insurance the premiums of which
are paid for by Auto. Nothing herein shall be construed to violate any Federal
or State law including the Family and Medical Leave Act of 1993, 27 U.S.C.S.
ss.2601 et seq., and the Americans With Disabilities Act, 42 U.S.C.S. ss.12101
et seq.
(b) Termination by Xxxxxxxxxx
(i) For Good Reason. Xxxxxxxxxx may terminate this Agreement
at any time during the Employment Term for "good reason" upon 30 days' written
notice to Auto (during which period Xxxxxxxxxx shall, if requested in writing by
Auto, continue to perform his duties as specified under this Agreement). "Good
Reason" shall mean: (1) Auto's failure to make any of the payments or provide
any of the benefits to Xxxxxxxxxx under this Agreement; or (2) Auto's breach of
any material term of this Agreement; provided, however,
that Auto has not cured, or made substantial efforts to cure, such failure or
breach within the aforementioned 30 day period. In the event of a termination of
this Agreement by Xxxxxxxxxx for "good reason" pursuant to this subsection,
Xxxxxxxxxx shall be paid a termination payment in the amount of $75,000, which
shall be payable in ten equal monthly installments commencing on the date of
termination.
(ii) Without Good Reason. Xxxxxxxxxx may terminate this
Agreement at any time during the Employment Term for any reason upon 60 days'
written notice to Auto (during which period Xxxxxxxxxx shall continue to perform
his duties as specified under this Agreement). In the event of a termination
pursuant to this subsection 8(b)(ii), Xxxxxxxxxx shall be entitled to payment of
his Base Compensation and the benefits that had actually accrued up to the
effective date of such termination.
(c) Stock Options and Other Benefits. In the event that Xxxxxxxxxx
is terminated for reasons other than for "cause" or in the event Xxxxxxxxxx
terminates this Agreement for "good reason", any stock options then held by
Xxxxxxxxxx and/or any other benefits subject to specified vesting criteria,
shall immediately vest in Xxxxxxxxxx; provided, however, all stock options then
held by Xxxxxxxxxx and/or any other benefits subject to specified vesting
criteria shall expire and/or terminate 90 days after the date this Agreement is
terminated. The Company agrees to take such steps and to execute such documents
as shall be necessary to effectuate the foregoing.
(d) Death Benefit. Notwithstanding any other provision of this
Agreement, this Agreement shall terminate on the date of Xxxxxxxxxx'x death. In
such event Auto shall pay Xxxxxxxxxx'x Base Salary to his wife, if she survives
him, or, if she does not survive him, in equal shares to his children who
survive him, through the end of the month in which such death occurs. In
addition, Auto shall pay to Xxxxxxxxxx'x wife, if she survives him, or, if she
does not survive him, in equal shares to his children who survive him, upon
determination of the Annual Operating Profit, a pro rata portion of any bonus to
which Xxxxxxxxxx would have been entitled for the year in which such death
occurs.
(e) No Mitigation. Xxxxxxxxxx shall not be required to mitigate the
amount of any payments provided for by this Agreement by seeking employment or
otherwise, nor shall the amount of any payment or benefit provided in this
Agreement be reduced by any compensation or benefit earned by Xxxxxxxxxx after
termination of his employment.
9. Non-Competition. Xxxxxxxxxx covenants and agrees that during his
employment hereunder and (i) for a period of two years after his employment
hereunder is terminated, or (ii) the period after his employment hereunder is
terminated and during which Xxxxxxxxxx actually receives severance payments, he
will not, without the prior written consent of Auto, (a) compete with the
business of Auto or any of its subsidiaries or affiliates and, in particular, he
will not without such consent, directly or indirectly, own, manage, operate,
finance, join, control or participate in the ownership, management, operation,
financing or control of, or be connected as a director, officer, employee,
partner, consultant or agent with, any business in competition with or similar
to the business of Auto or any of its subsidiaries or affiliates; provided,
however, that Xxxxxxxxxx may own up to two percent of the capital stock of any
publicly traded corporation in competition with the business of Auto or any of
its subsidiaries or affiliates if the fair market value of such corporation's
outstanding capital stock
exceeds $100 million, and (b) divert, take away, interfere with or attempt to
divert, take away or interfere with any present or former employee or customer
of Auto or any of its subsidiaries or affiliates. Except during any period that
Xxxxxxxxxx is actually receiving severance payments, the provisions of this
Section 9 shall no longer be applicable if Xxxxxxxxxx'x employment is terminated
by Auto (other than for cause) or by Xxxxxxxxxx pursuant to the provisions of
Section 8(b)(i) hereof during the Employment Term. In the event that the
provisions of this Section 9 should ever be deemed to exceed the time or
geographic limitations or any other limitations permitted by applicable law,
then such provisions shall be deemed reformed to the maximum permitted by
applicable law. Xxxxxxxxxx acknowledges and agrees that the foregoing covenant
is an essential element of this Agreement and that, but for the agreement of
Xxxxxxxxxx to comply with the covenant, Auto would not have entered into this
Agreement, and that the remedy at law for any breach of the covenant will be
inadequate and Auto, in addition to any other relief available to it, shall be
entitled to temporary and permanent injunctive relief without the necessity of
proving actual damage.
10. Confidential Information. Xxxxxxxxxx recognizes and acknowledges that
the customer lists, patents, inventions, copyrights, methods of doing business,
trade secrets and proprietary information of Auto including, without limitation,
as the same may exist from time to time, are valuable, special and unique assets
of the business of Auto. Except in the ordinary course of business or as
required by law, Xxxxxxxxxx shall not, during or after the Employment Term,
disclose any such list of customers or any part thereof, any such patents,
inventions, copyrights, methods of doing business, trade secrets or proprietary
information which are not otherwise in the public domain (other than as a result
of an act or omission of Xxxxxxxxxx) to any person, firm, corporation or other
entity for any reason whatsoever. In addition, Xxxxxxxxxx specifically
acknowledges and agrees that the remedy at law for any breach of the foregoing
shall be inadequate and that AutoInfo and Auto, in addition to any other relief
available to them, shall be entitled to temporary and permanent injunctive
relief without the necessity of proving actual damage.
11. COBRA. In the event of Xxxxxxxxxx'x death during the term of this
Agreement, Auto shall make all COBRA medical premium payments for Xxxxxxxxxx'x
family for the longer of (i) one (1) year following his death or (ii) the
balance of the Employment Term.
12. Opportunities. During his employment with Auto, Xxxxxxxxxx shall not
take any action which might divert from Auto or any of its subsidiaries or
affiliates any opportunity which would be within the scope of any of the present
or future businesses of Auto or any of its subsidiaries or affiliates.
13. Contents of Agreement, Parties in Interest, Assignment, etc. This
Agreement supercedes the Initial Agreement and sets forth the entire
understanding of the parties hereto with respect to the subject matter hereof.
All of the terms and provisions of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective heirs,
representatives, successors and assigns of the parties hereto, except that the
duties and responsibilities of Xxxxxxxxxx hereunder which are of a personal
nature shall neither be assigned nor transferred in whole or in party by
Xxxxxxxxxx. This Agreement shall not be amended except by a written instrument
duly executed by Auto and Xxxxxxxxxx.
14. Severability. If any term or provision of this Agreement shall be held
to be invalid or unenforceable for any reason, such term or provision shall be
ineffective to the extend of such invalidity or unenforceability without
invalidating the remaining terms and provisions hereof, and this Agreement shall
be construed as if such invalid or unenforceable term or provision had not been
contained herein.
15. Notices. Any notice, request, instruction or other document to be
given hereunder by any party to the other party shall be in writing and shall be
deemed to have been duly given when delivered personally, upon delivery by a
nationally recognized overnight courier service or five (5) days after dispatch
by registered or certified mail, postage prepaid, return receipt requested, to
the party to whom the same is so given or made:
If to Auto
addressed to: AutoInfo, Inc.
Morse, Zelnick, Rose & Lander, LLP
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxx, Esq.
If to Xxxxxxxxxx
addressed to: Xxxxxxx Xxxxxxxxxx
00 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
or at such other address as the one party shall specify to the other party in
writing.
16. Counterparts and Headings.This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all which
together shall constitute one and the same instrument. All headings are inserted
for convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
17. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Delaware.
18. Arbitration. Any disputes arising hereunder shall be submitted to
arbitration before a single arbitrator in Palm Beach County, Florida under the
rules and regulations of the American Arbitration Association. Any award in such
arbitration proceeding may be enforced in any court of competent jurisdiction.
19. Costs of Enforcement. Each of the parties hereto shall pay all
reasonable fees and expenses (including attorneys' fees) incurred by the other
party in any contest or dispute arising under this Agreement or in enforcing his
or its rights hereunder if such other party is the prevailing party in any such
contest, dispute or law enforcement action.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
AUTOINFO, INC.
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Xxxxx Xxxxxxx, President
/s/ Xxxxxxx Xxxxxxxxxx
---------------------------------
Xxxxxxx Xxxxxxxxxx
