EXHIBIT 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of this 30th day of April, 2002,
between INFORMATION HOLDINGS INC. (the "Company"), and Xxxxx Xxxxxx (the
"Executive").
RECITALS:
WHEREAS, the Company and Executive have previously entered into an
Employment Agreement dated as of March 15, 2002 (the "Original Agreement")
pursuant to which Executive is currently employed by the Company as President
and Chief Executive Officer; and
WHEREAS, the Company and Executive desire to replace the Original
Agreement with this Agreement which will supersede the Original Agreement in all
respects;
NOW, THEREFORE, on the basis of the foregoing premises and in
consideration of the mutual covenants and agreements contained herein, the
parties hereto agree as follows:
Section 1. EMPLOYMENT. The Company hereby agrees to employ the
Executive and the Executive hereby accepts employment with the Company, on the
terms and subject to the conditions hereinafter set forth. Subject to the terms
and conditions contained herein, the Executive shall serve as a President and
Chief Executive Officer of the Company and, in such capacity, shall report
directly to the Board of Directors and shall have such duties as are typically
performed by a president and chief executive officer of a corporation, together
with such additional duties, commensurate with the Executive's position as a
President of the Company, as may be assigned to the Executive from time to time
by the Board of Directors of the Company (the "Board of Directors"). The
principal location of the Executive's employment shall be at the Company's
principal executive office located in the Greater New York Area, or such other
place that the Company and Executive shall jointly deem appropriate to locate
the office, although the Executive understands and agrees that he may be
required to travel from time to time for business reasons.
Section 2. TERM. Unless terminated pursuant to Section 6 hereof,
the Executive's employment hereunder shall commence on the date hereof and shall
continue until June 30, 2003 (the "Initial Term"). Thereafter, the Initial Term
shall extend automatically for an indeterminate number of consecutive periods of
one (1) year unless either party shall provide notice of termination not less
than sixty (60) days prior to the end of the Initial Term or any subsequent
one-year extension thereof. The Initial Term, together with any extension
pursuant to this Section 2, is referred to herein as the "Employment Term".
Section 3. COMPENSATION.
(a) SALARY. As compensation for the performance of the Executive's
services hereunder, the Company shall pay to the Executive an annual salary (the
"Salary"). From the
date hereof until June 30, 2002, the Company shall pay to Executive the Salary
currently in effect under the Original Agreement. For the year from July 1, 2002
through June 30, 2003, the Company shall pay to Executive a Salary of $825,000.
For the year from July 1, 2003 through June 30, 2004, the Company shall pay to
Executive a Salary of $900,000. The Salary shall be payable in accordance with
the payroll practices of the Company as the same shall exist from time to time.
In no event shall the Salary be decreased during the Employment Term.
(b) BONUS PLAN. The Executive shall be eligible to receive an
annual cash bonus ("Bonus") which shall be determined by the Board of Directors.
(c) BENEFITS. In addition to the Salary and Bonus, if any, the
Executive shall be entitled to participate in health, insurance, pension,
automobile and other benefits provided to other senior executives of the Company
on terms no less favorable than those available to such senior executives of the
Company. The Executive shall also be entitled to the same number of vacation
days, holidays, sick days and other benefits as are generally allowed to other
senior executives of businesses of comparable size and geography as the Company,
including a leased car. In addition to the regular health insurance provided to
other senior executives of the Company, the Company shall provide Executive with
supplemental health insurance providing for up to $35,000 reimbursement to
Executive for medical bills not covered by the Company's regular health
insurance plan.
(d) STOCK OPTIONS. On the date hereof, the Company shall grant to
Executive options to purchase 200,000 shares of the common stock of the Company,
par value $0.01 per share (the "Common Stock") (the option to purchase any one
share of Common Stock hereafter referred to as an "Option"). Each Option shall
have an exercise price equal to the fair market value of one share of Common
Stock as of the date of its grant. The Options shall be unexercisable until
vested. The Options shall vest and become exercisable at the rate of 100,000 on
the first anniversary of the date of grant and an additional 100,000 on the
second anniversary of the date of grant. To the extent not already vested, all
outstanding Options shall become immediately vested and exercisable upon a
Change of Control, as defined herein. The Options shall be granted pursuant to
the Information Holdings Inc. 1998 Stock Option Plan (the "Option Plan") and
shall have such other terms and conditions as are set forth in the Option
Agreement attached hereto as Exhibit A.
Section 4. EXCLUSIVITY. During the Employment Term, the Executive
shall devote his full time to the business of the Company, shall faithfully
serve the Company, shall in all respects conform to and comply with the lawful
and reasonable directions and instructions given to him by the Board of
Directors in accordance with the terms of this Agreement, shall use his best
efforts to promote and serve the interests of the Company and shall not engage
in any other business activity, whether or not such activity shall be engaged in
for pecuniary profit, except that the Executive may (i) participate in the
activities of professional trade organizations related to the business of the
Company, (ii) serve on the board of directors of other companies which do not
have competing interests with the business interests of the Company and (iii)
engage in personal investing activities with respect to companies and other
entities that do not have competing interests with those of the Company;
PROVIDED that activities set forth in these clauses (i), (ii) and (iii), either
singly or in the aggregate, do not interfere in any material respect with the
services to be provided by the Executive hereunder or conflict with Executive's
duty of
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loyalty to the Company; and FURTHER PROVIDED that the foregoing shall
not preclude the Executive from owning less than 2% of the shares of a public
company.
Section 5. REIMBURSEMENT FOR EXPENSES. The Executive is authorized
to incur reasonable expenses in the discharge of the services to be performed
hereunder, including expenses for travel, entertainment, lodging and similar
items in accordance with the Company's expense reimbursement policy, as the same
may be modified by the Board of Directors from time to time. The Company shall
reimburse the Executive for all such proper expenses upon presentation by the
Executive of itemized accounts of such expenditures in accordance with the
financial policy of the Company, as in effect from time to time.
Section 6. TERMINATION AND DEFAULT.
(a) DEATH. This Agreement shall automatically terminate upon the
death of the Executive and upon such event, either prior to or following a
Change of Control, the Executive's estate shall be entitled to receive the
amounts specified in Section 6(f) below as if termination had occurred for Good
Reason prior to a Change of Control. In addition, in the event of the death of
Executive, all outstanding stock options then held by Executive, issued pursuant
to the Option Plan (or any successor plan), shall become fully vested and
exercisable.
(b) DISABILITY. If the Executive is unable to perform the duties
required of him under this Agreement because of illness, incapacity, or physical
or mental disability, this Agreement shall remain in full force and effect and
the Company shall pay all compensation required to be paid to the Executive
hereunder, unless the Executive is unable to perform the duties required of him
under this Agreement for an aggregate of 180 days (whether or not consecutive)
during any 12-month period during the term of this Agreement, in which event
this Agreement (other than Sections 6(f), 7, 8, and 10 hereof), including, but
not limited to, the Company's obligations to pay any Salary or to provide any
privileges under this Agreement, shall terminate at the end of the 180 days of
complete disability. In addition, in the event of such termination upon
disability, all outstanding stock options then held by Executive, issued
pursuant to the Option Plan (or any successor plan), shall become fully vested
and exercisable.
(c) JUST CAUSE. The Company may terminate the Executive's
employment during any term hereunder with or without "Just Cause" as that term
is defined below. In the event of termination pursuant to this Section 6(c) for
Just Cause, the Company shall deliver to the Executive written notice setting
forth the basis for such termination, which notice shall specifically set forth
the nature of the Just Cause which is the reason for such termination.
Termination of the Executive's employment hereunder shall be effective upon
delivery of such notice of termination. For purposes of this Agreement, "Just
Cause" shall mean: (i) the Executive's willful failure (other than a failure
resulting from Executive's complete or partial incapacity due to physical or
mental illness or impairment), neglect or refusal to perform the material duties
of his position hereunder which failure, neglect or refusal shall not have been
corrected by the Executive within 30 days of receipt by the Executive of written
notice from the Company of such failure, neglect or refusal, which notice shall
specifically set forth the nature of said failure, neglect or refusal, (ii) any
willful or intentional act of the Executive that has the effect of materially
injuring the business of the Company or its affiliates in any material respect;
(iii) conviction of the Executive for the commission of a felony; or (iv) the
commission by the
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Executive of an act of fraud or embezzlement against the Company. No act, or
failure to act, by the Executive shall be considered "willful" unless committed
without good faith and without a reasonable belief that the act or omission was
in the Company's best interest.
(d) GOOD REASON. The Executive may resign for "Good Reason" if he
resigns from his employment hereunder following a Substantial Breach (as
hereinafter defined) and such Substantial Breach shall not have been corrected
by the Company within thirty (30) days of receipt by the Company of written
notice from the Executive of the occurrence of such Substantial Breach, which
notice shall specifically set forth the nature of the Substantial Breach which
is the reason for such resignation. The term "Substantial Breach" means (i) such
actions taken by the Company or its Members which prevent the Executive from
performing his responsibilities hereunder; PROVIDED, HOWEVER, that the Members'
exercise of its right to approve or not approve any transaction shall not be
deemed to be an action which would prevent the Executive from performing his
responsibilities hereunder; (ii) the failure by the Company to pay to the
Executive the Salary and Bonus, if any, in accordance with Sections 3(a) and
3(b) hereof; (iii) the failure by the Company to allow the Executive to
participate in the Company's employee benefit plans generally available from
time to time to senior executives of the Company; (iv) a material diminution in
the Executive's responsibilities or authority or a requirement to relocate that
is not in accordance with the provisions of Section 1 hereof; or (v) the failure
of any successor to all or substantially all of the business and/or assets of
the Company to assume this Agreement; PROVIDED, HOWEVER, that the term
"Substantial Breach" shall not include a termination of the Executive's
employment hereunder pursuant to Sections 6(b) or (c) hereof. The date of
termination of the Executive's employment under this Section 6(d) shall be the
effective date of any resignation specified in writing by the Executive, which
shall not be less than thirty (30) days after receipt by the Company of written
notice of such resignation, provided that such resignation shall not be
effective pursuant to this Section 6(d) and the Substantial Breach shall be
deemed to have been cured if such Substantial Breach is corrected by the Company
during such 30-day period.
(e) CHANGE OF CONTROL. During the 90-day period following a Change
of Control, the Executive shall have the right to immediately resign his
employment. A Change of Control shall be deemed to have occurred:
(i) upon the acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person"), other than
Warburg, Xxxxxx Ventures, L.P., either directly or indirectly through one or
more affiliated entities (collectively "Warburg"), of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or
more of either (x) the then outstanding shares of common stock of the Company
(the "Outstanding Company Common Stock") or (y) the combined voting power of the
then outstanding voting securities of the Company entitled to vote generally in
the election of directors (the "Outstanding Company Voting Securities");
PROVIDED, HOWEVER, that for purposes of this subsection (i), the following
acquisitions shall not constitute a Change of Control: (A) any acquisition by
the Company, (B) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or (C) any acquisition by any corporation
pursuant to a transaction which complies with clauses (A), (B), and (C) of
subsection (iii) of this Section 6(e); or
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(ii) if individuals who, as of the date hereof,
constitute the Board of Directors (the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board of Directors; PROVIDED, HOWEVER,
that any individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's shareholders, was approved
by a vote of at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board; or
(iii) upon the consummation of a reorganization, merger
or consolidation or sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each case, unless,
following such Business Combination, (A) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination (including,
without limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets either directly or
through one or more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, as the case may
be, (B) no Person (excluding (1) Warburg, (2) any corporation resulting from
such Business Combination, or (3) any employee benefit plan (or related trust)
of the Company or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 50% or more of, respectively, the
then outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination and (C) at least a majority of the members of
the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board, providing for such
Business Combination; or
(iv) upon the approval by the shareholders of the Company
of a complete liquidation or dissolution of the Company.
In the event that Executive resigns pursuant to this Section 6(e) or
if the Company terminates Executive's employment without Just Cause following a
Change of Control, the Company shall pay to Executive in a lump sum an amount
equal to three times (i) the Salary in effect immediately prior to the
termination of employment plus (ii) the Bonus Executive received for the fiscal
year immediately prior to the fiscal year in which his termination of employment
occurred; PROVIDED, HOWEVER, that if such Change of Control occurs in calendar
year 2002, the Salary described in clause (i) above shall equal the Salary as
currently in effect under the Original Agreement, and the Bonus described in
clause (ii) above shall equal 50% of the Salary
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as currently in effect under the Original Agreement. Payments pursuant to this
Section 6(e) shall not apply to termination of Executive's employment on account
of his death.
(f) PAYMENTS. In the event that the Executive resigns without Good
Reason or the Executive's employment hereunder terminates for Just Cause, the
Company shall pay to the Executive all amounts accrued but unpaid hereunder
through the date of termination in respect of Salary, unused vacation or
unreimbursed expenses. In the event the Executive's employment hereunder is
terminated by the Company without Just Cause or by the Executive with Good
Reason, in addition to the amounts specified in the foregoing sentence, (i) the
Executive shall continue to receive the Salary (less any applicable withholding
or similar taxes) at the rate in effect hereunder on the date of such
termination periodically, in accordance with the Company's prevailing payroll
practices, for a period of twelve months following the date of such termination
(the "Severance Term") and (ii) the Executive (and/or his covered dependents)
shall continue to receive any health or insurance benefits provided to him as of
the date of such termination in accordance with Section 3(c) hereof during the
Severance Term. The severance amounts payable in Section 6(f)(i) above upon a
termination of employment shall only be payable in the event that Executive
terminates employment prior to a Change of Control. Any severance payment to
Executive for termination of employment following a Change of Control shall be
governed by Section 6(e); provided, however, that the payments and benefits
pursuant to the first sentence of this Section 6(f) and subsection (ii) above
shall continue to apply for a termination of Executive's employment following a
Change of Control. Amounts owed by the Company in respect of the Salary or
reimbursement for expenses under the provisions of Section 5 hereof shall,
except as otherwise set forth in this Section 6(f), be paid promptly upon any
termination. Upon any termination of this Agreement, all of the rights,
privileges and duties of the Executive hereunder shall cease, except for his
rights under this Section 6(f) and his obligations under Sections 7, 8, 9, 10,
and 11 hereunder.
(g) TAX RESTORATION PAYMENT. In the event it is determined that any
payment or distribution of any type to or for the benefit of the Executive,
pursuant to this Agreement or otherwise, by the Company, any person who acquires
ownership or effective control of the Corporation, or ownership of a substantial
portion of the assets of the Corporation (within the meaning of section 280G of
the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations
thereunder) or any affiliate of such Person (the "Total Payments") would be
subject to the excise tax imposed by section 4999 of the Code or any interest or
penalties with respect to such excise tax (such excise tax, together with any
such interest and penalties, are collectively referred to as , the "Excise
Tax"), then the Executive shall be entitled to receive an additional payment (a
"Tax Restoration Payment") in an amount such that, after payment by the
Executive of all taxes (including any interest or penalties imposed with respect
to such taxes), including any Excise Tax, imposed upon the Tax Restoration
Payment, the Executive retains an amount of the Tax Restoration Payment equal to
the Excise Tax imposed upon the Total Payments.
Section 7. NON-DISCLOSURE NON-INTERFERENCE AND INVENTIONS.
(a) NO COMPETING EMPLOYMENT. The Executive acknowledges that the
agreements and covenants contained in this Section 7 are essential to protect
the value of the Company's business and assets and by his current employment
with the Company and its
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subsidiaries, the Executive has obtained and will obtain such knowledge,
contacts, know-how, training and experience and there is a substantial
probability that such knowledge, know-how, contacts, training and experience
could be used to the substantial advantage of a competitor of the Company and to
the Company's substantial detriment. Therefore, the Executive agrees that for
the period commencing on the date of this Agreement and ending on the second
anniversary of the termination of the Executive's employment hereunder (such
period is hereinafter referred to as the "Restricted Period" and the two-year
period during the Restricted Period following executive's termination of
employment is hereinafter referred to as the "Post Termination Period"), the
Executive shall not participate or engage, directly or indirectly, for himself
or on behalf of or in conjunction with any person, partnership, corporation or
other entity, whether as an employee, agent, officer, director, shareholder,
partner, joint venturer, investor or otherwise, in any business activities in
the United States if such activity consists of any activity undertaken or
expressly contemplated to be undertaken by the Company or any of its
subsidiaries or by the Executive at any time during the Employment Term;
PROVIDED, HOWEVER, that the foregoing shall not preclude the Executive from
owning less than 2% of the shares of a public company. Notwithstanding the
foregoing, this Section 7(a) shall not apply if the Company terminates the
Executive's employment without Just Cause or the Executive resigns for Good
Reason pursuant to Section 6(d).
(b) NONDISCLOSURE OF CONFIDENTIAL INFORMATION. The Executive,
except in connection with his employment hereunder, shall not disclose to any
person or entity or use, either during the Employment Term or at any time
thereafter, any information not in the public domain or generally known in the
industry, in any form, acquired by the Executive while employed by the Company
or any predecessor to the Company's business or, if acquired following the
Employment Term, such information which, to the Executive's knowledge, has been
acquired, directly or indirectly, from any person or entity owing a duty of
confidentiality to the Company or any of its subsidiaries or affiliates,
relating to the Company, its subsidiaries or affiliates. The Executive agrees
and acknowledges that all of such information, in any form, and copies and
extracts thereof, are and shall remain the sole and exclusive property of the
Company, and upon termination of his employment with the Company, the Executive
shall return to the Company the originals and all copies of any such information
provided to or acquired by the Executive in connection with the performance of
his duties for the Company, and shall return to the Company all files,
correspondence and/or other communications received, maintained and/or
originated by the Executive during the course of his employment.
(c) NO INTERFERENCE. During the Restricted Period, the Executive
shall not, whether for his own account or for the account of any other
individual, partnership, firm, corporation or other business organization (other
than the Company), directly or indirectly solicit, endeavor to entice away from
the Company or its subsidiaries, or otherwise directly interfere with the
relationship of the Company or its subsidiaries with any person who, to the
knowledge of the Executive, is employed by or otherwise engaged to perform
services for the Company or its subsidiaries (including, but not limited to, any
independent sales representatives or organizations) or who is, or was within the
then most recent twelve-month period, a customer or client, of the Company, its
predecessors or any of its subsidiaries. The placement of any general classified
or "help wanted" advertisements and/or general solicitations to the public at
large shall not constitute a violation of this Section 7(c) unless the
Executive's name is contained in such advertisements or solicitations.
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(d) INVENTIONS, ETC. The Executive hereby sells, transfers and
assigns to the Company or to any person or entity designated by the Company all
of the entire right, title and interest of the Executive in and to all
inventions, ideas, disclosures and improvements, whether patented or unpatented,
and copyrightable material, made or conceived by the Executive, solely or
jointly, during his employment by the Company which relate to methods,
apparatus, designs, products, processes or devices, sold, leased, used or under
consideration or development by the Company, or which otherwise relate to or
pertain to the business, functions or operations of the Company or which arise
from the efforts of the Executive during the course of his employment for the
Company. The Executive shall communicate promptly and disclose to the Company,
in such form as the Company requests, all information, details and data
pertaining to the aforementioned inventions, ideas, disclosures and
improvements; and the Executive shall execute and deliver to the Company such
formal transfers and assignments and such other papers and documents as may be
necessary or required of the Executive to permit the Company or any person or
entity designated by the Company to file and prosecute the patent applications
and, as to copyrightable material, to obtain copyright thereof. Any invention
relating to the business of the Company and disclosed by the Executive within
one year following the termination of his employment with the Company shall be
deemed to fall within the provisions of this paragraph unless proved to have
been first conceived and made following such termination.
(e) NON-COMPETE PAYMENT. In consideration for the covenants made by
Executive in this Section 7, the Company shall pay to Executive during the Post
Termination Period an annual amount equal to 50% of Executive's Salary in effect
as of the date immediately prior to Executive's termination of employment with
the Company (the "Non-Compete Payment"). The Non-Compete Payment shall be
payable in installments over the course of the Post Termination Period in
accordance with the normal payroll practices of the Company as in effect from
time to time; provided, however, that in the event that Executive resigns for
Good Reason or is terminated without Just Cause and receives severance payments
pursuant to Section 6(f)(i) herein, the Non-Compete Payment, during the first 12
months of the Post Termination Period, shall be fully offset by such severance
payments and the Company's only obligation under this Section 7(e) shall be to
pay the Non-Compete Payment to Executive during the second 12 months of the Post
Termination Period.
Section 8. INJUNCTIVE RELIEF. Without intending to limit the
remedies available to the Company, the Executive acknowledges that a breach of
any of the covenants contained in Section 7 hereof may result in material
irreparable injury to the Company or its subsidiaries or affiliates for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of such a breach or
threat thereof, the Company shall be entitled to obtain a temporary restraining
order and/or a preliminary or permanent injunction, without the necessity of
proving irreparable harm or injury as a result of such breach or threatened
breach of Section 7 hereof, restraining the Executive from engaging in
activities prohibited by Section 7 hereof or such other relief as may be
required specifically to enforce any of the covenants in Section 7 hereof.
Section 9. SUCCESSORS AND ASSIGNS; NO THIRD-PARTY BENEFICIARIES.
This Agreement shall inure to the benefit of, and be binding upon, the
successors and assigns of each of the parties, including, but not limited to,
the Executive's heirs and the personal representatives of the Executive's
estate; PROVIDED, HOWEVER, that neither party shall assign or delegate any of
the
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obligations created under this Agreement without the prior written consent
of the other party. Notwithstanding the foregoing, the Company shall have the
unrestricted right to assign this Agreement and to delegate all or any part of
its obligations hereunder to any of its subsidiaries or affiliates, but in such
event such assignee shall expressly assume all obligations of the Company
hereunder and the Company shall remain fully liable for the performance of all
of such obligations in the manner prescribed in this Agreement. Nothing in this
Agreement shall confer upon any person or entity not a party to this Agreement,
or the legal representatives of such person or entity, any rights or remedies of
any nature or kind whatsoever under or by reason of this Agreement.
Section 10. WAIVER AND AMENDMENTS. Any waiver, alteration,
amendment or modification of any of the terms of this Agreement shall be valid
only if made in writing and signed by the parties hereto; PROVIDED, HOWEVER,
that any such waiver, alteration, amendment or modification is consented to on
the Company's behalf by the Board of Directress. No waiver by either of the
parties hereto of their rights hereunder shall be deemed to constitute a waiver
with respect to any subsequent occurrences or transactions hereunder unless such
waiver specifically states that it is to be construed as a continuing waiver.
Section 11. SEVERABILITY AND GOVERNING LAW. The Executive
acknowledges and agrees that the covenants set forth in Section 7 hereof are
reasonable and valid in geographical and temporal scope and in all other
respects. If any of such covenants or such other provisions of this Agreement
are found to be invalid or unenforceable by a final determination of a court of
competent jurisdiction (a) the remaining terms and provisions hereof shall be
unimpaired and (b) the invalid or unenforceable term or provision shall be
deemed replaced by a term or provision that is valid and enforceable and that
comes closest to expressing the intention of the invalid or unenforceable term
or provision. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE.
Section 12. NOTICES.
(i) All communications under this Agreement shall be in
writing and shall be delivered by hand or mailed by overnight courier or by
registered or certified mail, postage prepaid:
(1) if to the Executive such address as the Executive may
have furnished the Company in writing,
(2) if to the Company, at c/o Warburg, Xxxxxx Ventures,
L.P., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, marked for the attention
of the Board of Directors, or at such other address as it may have furnished in
writing to the Executive, or
(ii) Any notice so addressed shall be deemed to be given:
if delivered by hand, on the date of such delivery; if mailed by courier, on the
first business day following the date of such mailing; and if mailed by
registered or certified mail, on the third business day after the date of such
mailing.
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Section 13. SECTION HEADINGS. The headings of the sections and
subsections of this Agreement are inserted for convenience only and shall not be
deemed to constitute a part thereof, affect the meaning or interpretation of
this Agreement or of any term or provision hereof.
Section 14. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement of the parties hereto regarding the employment of
the Executive. This Agreement supersedes the Original Agreement and all prior
negotiations, discussions, correspondence, communications, understandings and
agreements between the parties relating to the subject matter of this Agreement.
Section 15. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
INFORMATION HOLDINGS INC.
By:
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By:
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XXXXX XXXXXX
