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Exhibit 10.13
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT (the "Agreement") is dated as of December 3,
1996 between DATASTREAM INTERNATIONAL, INC., a Delaware corporation ("DII"),
PRIMARK CORPORATION, a Michigan Corporation (the "Company"), PRIMARK INFORMATION
SERVICES UK LIMITED, a corporation organized under the laws of the United
Kingdom and Wales ("Primark UK"), and XXX XXXXXXXXXX (the "Executive").
WHEREAS, pursuant to an employment agreement dated as of June 30, 1995 by
and between the above referenced parties (the "Old Employment Agreement"), the
Executive is employed as Managing Director of Datastream International Limited,
a corporation organized under the laws of the United Kingdom and Wales
("Datastream"); and
WHEREAS, all of the parties to the Old Employment Agreement desire to
cancel and terminate substantially all of the provisions of such agreement; and
WHEREAS, Primark Corporation and Executive desire to execute a new
employment agreement setting forth all of the terms and conditions of the
Executive's employment relationship with Primark.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. CANCELLATION OF OLD EMPLOYMENT AGREEMENT. Except as stated below, the
employment agreement dated June 30, 1995 by and between DII, the Company,
Primark UK and the Executive (the "Old Employment Agreement") is hereby
cancelled and terminated and each party thereto releases all of the other
parties thereto from any claims, damages, obligations or liabilities that such
party may have against any other party thereto relating to the employment of
the Executive. Notwithstanding anything herein to the contrary, the Restrictive
Covenants contained in Paragraph 8 to the Old Employment Agreement shall
continue to survive and shall not be deemed cancelled or terminated. The
Executive hereby resigns voluntarily effective as of this date, from all
positions and offices he holds with Datastream, DII, Primark UK and their
affiliates.
2. EMPLOYMENT AND SALARY.
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(a) As of the date hereof, Executive shall be employed as Senior Vice
President of Marketing for the Company. In such capacity, the Executive
shall render on a full-time basis marketing services ("services") to the
Company of the type customarily performed by persons serving in a similar
executive officer capacity and shall report to the Chief Executive Officer
of the Company. In
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devoting his full-time and undivided attention during normal business hours
to the foregoing responsibilities, Executive shall be permanently located
in DII's New York office. During the term of this Agreement, there shall be
no material increase or decrease in the duties and responsibilities of the
Executive otherwise than as provided herein, unless the parties otherwise
agree in writing.
(b) The Company agrees to pay the Executive during the term of this
Agreement an annual salary of $325,000 with such salary to be increased
from time to time as determined by the Company's Chief Executive Officer
and approved by the Company's Board of Directors. The salary of the
Executive shall not be decreased at any time during the term of this
Agreement from the amount then in effect, unless the Executive otherwise
agrees in writing. The salary under this Paragraph 2 shall be payable by
the Company to the Executive in equal installments during each month
pursuant to the Company's standard pay practices.
3. BONUS.
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(a) The Executive shall have the opportunity to earn a bonus at
target of 40 percent of his annual salary determined on the basis of
the attainment of annual financial and/or non-financial targets for the
Company. It is expressly understood, however, that the amount of the bonus
shall increase or decrease depending upon the amount by which the actual
annual financial and/or non-financial results for the Company exceed or
fall short of the targets. The formula for establishing the amount of bonus
to be paid, in the event the targets are exceeded or not achieved, shall be
established annually by the Company's Chief Executive Officer and approved
by the Company's Board of Directors.
(b) In no event shall Executive earn or be entitled to receive an
annual bonus greater than 80% of his salary, nor shall the Executive
receive an annual bonus less than $75,000.
4. PARTICIPATION IN EMPLOYEE BENEFIT PLANS; INSURANCE; OTHER FRINGE
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BENEFITS.
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(a) While the Executive shall be governed by the Company's policies
applicable to other employees and executive officers, the Executive shall
not be entitled to participate in any plan of the Company's relating to
pension, profit-sharing, group life insurance, medical coverage,
disability, dental, education, or other retirement or employee benefits
that the Company had adopted or may adopt for the benefit of its executive
officers or employees, and Executive expressly waives such participation.
(b) Notwithstanding the foregoing, the Executive shall be entitled
to receive the following fringe benefits during the term of this Agreement:
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(i) Participation in stock-based plans such as the Company's
Employee Stock Ownership Plan and any stock based plan that may be
adopted in the future for the benefit of the Company's employees;
(ii) The Executive shall be entitled to a vacation of 20 days
during each year of his employment pursuant to this Agreement. The
Executive shall also be entitled to all public holidays observed by
the Company.
(iii) The Executive shall be reimbursed by the Company for
reasonable travel and other expenses which are incurred and accounted
for in accordance with the Company's normal practices or as otherwise
agreed to by the Company and the Executive.
(iv) The provision of an automobile under a three-year lease
with the right of the Executive to purchase such automobile at the
end of such three-year lease pursuant to the terms of the lease
provided that the total lease payments over the three-year period
shall not exceed $30,000.
(v) The Executive shall be entitled to receive up to $3,000
annually as reimbursement for expenses incurred in obtaining tax and
estate planning assistance.
(vi) The Executive shall be entitled to be covered under the
Company's life insurance policy in an amount equal to two times
salary.
(vii) Participation in the foregoing fringe benefits shall not
reduce the salary or bonus payable to the Executive under Paragraph 2
or 3 above.
5. STOCK OPTIONS AND OTHER LONG-TERM INCENTIVES.
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(a) The stock option of 100,000 shares of common stock of the Company
granted to the Executive under the terms of the Old Employment Agreement
shall continue to vest in 3 equal installments with the final installment
vesting on June 30, 1998.
(b) All vested Value Appreciation Rights that have been granted to
the Executive under Primark UK's Long-Term Incentive Plan ("Incentive
Plan") shall be deemed exercised as of September 30, 1996 and that date
shall be the Valuation Date, as that term is defined in the Incentive Plan.
Any monies payable to Executive due to the aforementioned exercise shall be
paid to him as soon as practicable following the execution of this
Agreement by all parties. All Value Appreciation Rights that have been
granted to the Executive that are
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unvested as of the date hereof shall be cancelled and shall never become
exercisable.
6. TERM. The term of this Agreement shall be for a period commencing as
of the date hereof and ending June 30, 1998.
7. TERMINATION OF EMPLOYMENT.
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(a) Notwithstanding any provision of this Agreement, the employment
of the Executive pursuant to this Agreement shall be terminated immediately
upon (i) the death of the Executive; (ii) a determination by the Board of
Directors of the Company, acting in good faith with reasonable basis in
fact, but made in the sole discretion of such Board, that the Executive has
performed his services in a materially unsatisfactory manner, provided,
however, such determination shall not be arbitrary or capricious and
provided further that prior to any such determination being made, the
Executive shall be notified of the grounds for the termination whereupon
the Executive shall have thirty (30) days to correct the same unless such
time period is extended by the Board of Directors in its sole discretion;
(iii) a determination by the Board of Directors of the Company, acting in
good faith and with reasonable basis in fact, but made in the sole
discretion of such Board, that the Executive (a) has become physically or
mentally incapacitated and unable to perform his normal duties under this
Agreement and that such incapacity or inability has continued for a period
of three consecutive calendar months, (b) has breached any of the terms of
this Agreement, provided that Executive shall be given written notice of
such breach and shall have fifteen days from the date of receipt of such
notice to cure the breach or if the breach is of a type which cannot be
readily cured within 15 days shall have taken material steps to cure such
breach, (c) has refused or failed to carry out any reasonable order of the
Board of Directors of the Company, (d) has demonstrated gross negligence in
the execution of his duties which resulted or could result in material harm
to the Company, or (e) has committed misconduct by willfully violating
established corporate policies, or by committing a felony, or by engaging
in unlawful acts detrimental to the Company.
(b) The parties acknowledge and agree that damages which will result
to Executive from employment termination by the Company without cause shall
be extremely difficult or impossible to establish or prove, and agree that,
unless the termination is for cause pursuant to Paragraph 7(a)(iii)(b),
(c), (d) or (e), the Company shall be obligated, concurrently with such
termination, to make a lump sum cash payment to the Executive as severance
pay of an amount equal to the sum of his then monthly salary times 18
months. In addition, in the event of the employment termination of the
Executive by the Company without cause pursuant to Paragraph 7(a)(i),
(iii)(a), all stock options referred to in Paragraph 5 shall become
immediately vested. Notwithstanding anything herein to the contrary, if the
Company terminates the employment of the Executive pursuant
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to Paragraph 7(a)(ii), then the Company shall pay to Executive a lump sum
amount equal to the greater of (i) the sum of his then monthly salary times
the number of months remaining under the term of this Agreement, or (ii)
the sum of his then monthly salary times 18 months. In addition, in the
event of the employment termination of the Executive by the Company
pursuant to Paragraph 7(a)(ii), (a)(iii)(b), (c), (d) or (e), all unvested
stock options referred to in Paragraph 5 shall expire effective on the date
of such termination.
(c) The Executive understands and agrees that such severance pay and
accelerated vesting of stock options shall be in lieu of all other claims
which the Executive may make by reason of such termination.
8. RESTRICTIVE COVENANTS.
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(a) The Executive agrees that during the term of this Agreement and
for a 24-month period after his termination of employment, he shall not
knowingly compete, directly or indirectly, with the products or services of
the Company, its subsidiaries or affiliates, nor shall he induce or assist
others to knowingly compete, directly or indirectly, with the products or
services of the Company, its subsidiaries or affiliates.
(b) Unless authorized or instructed in writing by the Company, the
Executive shall not, except as required in the conduct of the Company's
business, during or after the term of this Agreement, disclose to others,
or use, any of the Company's inventions or discoveries or its secret or
confidential information, knowledge or data, (oral, written, or in
machine-readable form) which the Executive may obtain during the course of
or in connection with the Executive's employment, including such
inventions, discoveries, information, knowledge, know-how or data relating
to machines, equipment, products, systems, software, research and/or
development, designs, compositions, formulae, processes, or business
methods, whether or not developed by the Company or from third parties, and
irrespective or whether or not such inventions, discoveries, information,
knowledge or data have been identified by the Company as secret or
confidential, unless and until, and then to the extent and only to the
extent that, such inventions, discoveries, information, knowledge or data
become available to the public otherwise than by the Executive's act or
omission.
(c) During the term of this Agreement and for a period of two years
thereafter the Executive shall not, except as required in the conduct of
the Company's business, disclose to others, or use, any of the information
relating to present and prospective customers of the Company, business
dealings with such customers, prospective sales and advertising programs
and agreements with representatives or prospective representatives of the
Company, present or prospective sources of supply or any other business
arrangements of the
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Company, including but not limited to customers, customer lists, costs,
prices and earnings, whether or not such information is developed by the
Executive, by others in the Company or obtained by the Company from third
parties, and irrespective of whether or not such information has been
identified by the Company as secret or confidential, unless and until, and
then to the extent and only to the extent that, such information becomes
available to the public otherwise than by the Executive's act or omission.
(d) Executive agrees that all improvements, developments, or
discoveries conceived or made by him, either alone or with others, during
his employment with the Company and for a 24-month period thereafter which
relate to current or likely future business of the Company or any of its
affiliates, whether or not conceived or made on the Company's time or with
the Company's resources, are the sole and exclusive property of the Company
and the Company may use or pursue them without restriction or further
compensation. Executive hereby assigns and transfers to the Company all of
his right title and interest in and to such improvements, developments and
discoveries.
(e) All computer software, computer programs, source codes, object
codes, magnetic tapes, printouts, samples, notes, records, reports,
documents, customer lists, photographs, catalogs and other writings,
whether copyrightable or not, relating to or dealing with the Company's
business and plans, and those of others entrusted to the Company, which are
prepared or created by the Executive or which may come into his possession
during or as a result of his employment, are the property of the Company,
and upon termination of his employment, the Executive agrees to return all
such computer software, computer programs, source codes, object codes,
magnetic tapes, printouts, samples, notes, records, reports, documents,
customer lists, photographs, catalogs and writings and all copies thereof
to the Company. The Company may withhold the Executive's outstanding salary
checks against return of these materials and any other materials of the
Company or its customers.
(f) During the term of this Agreement and for a 24-month period
after his termination of employment, the Executive shall not induce or
attempt to induce any customer of the Company or any affiliate to reduce
its business with the Company or any affiliate or solicit or attempt to
solicit any employee of the Company or any affiliate to leave the employ of
the Company or any of its affiliates.
(g) The above covenants on the part of the Executive shall survive
termination of this Agreement, and the existence of any claim or cause of
action of the Executive against the Company or its affiliates, whether
predicated on this Agreement or otherwise, shall not constitute a defense
to the enforcement by the Company of such covenants. The Executive agrees
that a remedy at law for any breach of the foregoing covenants would be
inadequate and that the Company
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shall be entitled to a temporary and permanent injunction or any order for
specific performance of such covenants without the necessity of proving
actual damage to the Company.
9. (Intentionally left blank.)
10. CHANGE OF CONTROL. If the employment of Executive is terminated
unilaterally by the Company within one year following the sale to one person or
group of sixty percent (60%) or more of the common stock of the Company other
than to a corporation wholly owned, directly or indirectly, by the Company, and
such termination is for reasons other than as set forth in Paragraphs
7(a)(iii)(b), 7(a)(iii)(c), 7(a)(iii)(d) or 7(a)(iii)(e), then all stock
options referred to in Paragraph 5 shall become vested on the date of such
termination, and Executive shall receive upon such termination of employment a
lump sum equal to the product of (i) the Executive's then monthly salary times
(ii) the number of months remaining under the term of this Agreement.
11. ASSIGNMENT. The rights and obligations of the Company under this
Agreement shall be assigned by the Company to the successors in interest
of the Company. This Agreement may not be assigned by the Executive, but any
amounts owing to the Executive upon his death shall inure to the benefit of his
heirs, legatees, personal representative, executor or administrator.
12. AMENDMENTS OR ADDITIONS. No amendments or additions to this Agreement
shall be binding unless in writing and signed by all parties hereto.
13. PARAGRAPH HEADINGS. The paragraph headings used in this Agreement
are included solely for convenience and shall not affect, or be used in
connection with, the interpretation of this Agreement.
14. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof.
15. NOTICE. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
Registered mail, return receipt requested, postage prepaid, as follows:
If to DII:
Datastream International, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
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If to the Company
Primark Corporation
0000 Xxxxxx Xxxxxx, Xxxxx 0000X
Xxxxxxx, XX 00000
Attention: General Counsel and Secretary
If to Primark UK:
Primark Information Services UK Limited
Xxxxxxxx Xxxxx
00-00 Xxxx Xxxx
Xxxxxx, Xxxxxxx XX0X 0XX
If to the Executive:
Xx. Xxx Xxxxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 1598
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notice of change of address shall be
effective only upon receipt.
16. GOVERNING LAW. This Agreement shall be governed by the laws of the
United States to the extent applicable and otherwise by the State of New York.
17. ARBITRATION OF DISPUTES. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof shall be settled by binding
arbitration in accordance with the laws of the State of New York by three
arbitrators, one of whom shall be appointed by the Company, one by the
Executive and the third by the first two arbitrators. The Company and the
Executive agree to appoint their arbitrator within 90 days of receipt of a
notice delivered in accordance with Paragraph 17 hereunder from the other party
setting forth a description of the controversy or claim and the requesting that
the arbitrators be appointed. If either party fails to select an arbitrator
within such 90-day period the non-failing party may appoint a second arbitrator
and the failing party shall be deemed to have waived its or his rights to
appoint an arbitrator. If the first two arbitrators cannot agree on the
appointment of a third arbitrator, then the third arbitrator shall be appointed
by the American Arbitration Association. Such arbitration shall be conducted in
accordance with the rules of the American Arbitration Association, except with
respect to the selection of arbitrators which shall be provided in this
Paragraph 17. Judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof. In the event that it shall be
necessary or desirable for the Executive to retain legal counsel and/or incur
other costs and expenses in connection with the enforcement of any or all of
the Executive's rights under this Agreement and assuming that the Executive is
more successful in such enforcement than the
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Company, the Company shall pay or the Executive shall be entitled to recover
from the Company, as the case may be, the Executive's reasonable attorneys' fees
and other reasonable costs and expenses in connection with the enforcement of
said rights (including the enforcement of any arbitration award in court).
18. ENTIRE AGREEMENT. The foregoing contains the entire agreement between
the parties relating to the subject matter of this Agreement, and this Agreement
supersedes all prior understandings and agreements relating to employment of the
Executive.
ATTEST: Datastream International, Inc.
/s/ XXXXXXX X. XXXXXXX By: /s/ XXXXXX X. XXXXXXXX
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Title: Chairman
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ATTEST: Primark Corporation
/s/ XXXXXXX X. XXXXXXX By: /s/ XXXXXX X. XXXXXXXX
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Title: Chairman
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ATTEST: Primark Information Services UK Limited
/s/ XXXXXXX X. XXXXXXX By: /s/ XXXXXX X. XXXXXXXX
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Title: Chairman
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WITNESS: Executive
/s/ XXXXX X. XXXXXX By: /s/ XXX XXXXXXXXXX
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Xxx Xxxxxxxxxx
