Exhibit 10.4
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement"), is made and entered into
as of April 10, 2000, effective for all purposes and in all respects as of April
10, 2000 (the "Commencement Date") between INFORMATION VENTURES LLC, a Delaware
corporation (the "Company"), and Xxx Xxxxxx (the "Executive").
R E C I T A L S:
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WHEREAS, the Company recognizes that the future growth, profitability
and success of the Company's business will be substantially and materially
enhanced by the employment of the Executive by the Company; and
WHEREAS, the Company desires to employ the Executive and the Executive
has indicated his willingness to provide his services, on the terms and
conditions set forth herein.
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.
(a) DUTIES. 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 and subject to the terms and conditions
imposed on the Executive by the Employment Agreement and Restrictive Covenants,
dated January 1, 1998, between the Executive and TFS Database Group, as the same
may be amended, superseded, modified or replaced (the "Ancillary Agreement").
Subject to the terms and conditions contained herein, the Executive shall serve
as President of XxxxxxxxxXxxxxxxxxxx.xxx, a wholly owned subsidiary of the
Company ("XX.xxx"), or in any other senior executive capacity designated by the
Company and, as agreed to in writing by the Executive. In such capacity, the
Executive shall report to the Chief Executive Officer of the Company (the "CEO")
and shall have such duties as are typically performed by a President of a
corporation, together with such additional duties, commensurate with the
Executive's position as President of a subsidiary of the Company, as may be
assigned to the Executive from time to time by the CEO or Board of Directors of
the Company (the "Board of Directors").
(b) LOCATION. The principal location of the Executive's employment
initially shall be in the greater New York
metropolitan area. The Executive understands and agrees that he may be required
to travel 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 during the initial period ending on the second anniversary of the date
hereof (the "Initial Term"). Thereafter, the Executive's term of employment
shall extend automatically for consecutive periods of one (1) year unless either
party shall provide notice of nonrenewal not less than one hundred and twenty
(120) days prior to the end of the Employment Term. The Initial Term, together
with any extension pursuant to this Section 2, is referred to herein as the
"Employment Term". In the event that the Company fails to renew the Employment
Term by providing a notice of nonrenewal to the Executive, the Company shall
permit the Executive to spend time, during the normal working hours of such one
hundred and twenty (120) day period, pursuing future employment or similar
opportunities and such actions on the part of the Executive shall not be a
breach or violation of this Agreement; provided, that such endeavors by the
Executive do not materially interfere with the Executive's duties hereunder or
violate any of the provisions of Section 7 herein.
Section 3. Compensation.
(a) SALARY. As compensation for the performance of the Executive's
services hereunder, the Company shall pay to the Executive a salary (the
"Salary") of $250,000 per annum, increased as of January 1 of each calendar year
during the Employment Term (beginning on January 1, 2001) by the then-current
inflation rate as reflected by the Consumer Price Index for Urban Wage Earners
and Clerical Workers for the New York Metropolitan Area, as published by the
Bureau of Labor Statistics of the U.S. Department of Labor. The Salary shall be
payable in accordance with the payroll practices of the Company as the same
shall exist from time to time for its senior executive employees. 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") in an amount up to 50% of the Salary, based upon meeting
performance goals for each calendar year during the Employment Term. Such
performance goals shall be mutually determined by the Executive, on the one
hand, and the CEO or the Board of Directors, on the other hand. Bonus amounts
shall be paid on or before April 1 of the year immediately following the end of
the calendar year to which the Bonus relates. In the event of a termination of
employment pursuant to Section 6(a), (b), (e), (f) or (g) below, the Company
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shall pay to the Executive or the Executive's estate a prorated portion, through
the date of termination and assuming the maximum performance of the goals for
the entire calendar year, of the Bonus for the calendar year in which such
termination occurs. In the event of such termination of employment, the prorated
Bonus amount shall be paid no later than three (3) months following such
termination. For all purposes hereof, it is understood and agreed that the
Executive need not be employed by the Company at the time that a Bonus amount is
to be paid.
(c) BENEFITS. In addition to the Salary and Bonus, if any, the
Executive shall be entitled to participate in health, insurance, pension 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 the Company.
(d) STOCK OPTIONS. On the April 25, 2000, the Company shall grant to
Executive options to purchase 100,000 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 its respective date of grant. The Options shall be unexercisable
until vested. The Options shall vest and become exercisable at the rate of 25%
per year at the end of each full year after the grant date, provided Executive
is then employed. The Options shall be granted pursuant to the Information
Holdings Inc. 1998 Stock Option Plan (the "Option Plan") and shall be "incentive
stock options" within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended ("Section 422"), to the maximum extent allowed under Section
422. The Options shall have such other terms and conditions (including
accelerated vesting) as are set forth in the Stock Option Agreement attached
hereto as Exhibit A.
(e). RELOCATION EXPENSES; TEMPORARY LIVING EXPENSES. Upon submission
of properly documented receipts, the Company shall reimburse Executive for (i)
reasonable moving costs in connection with Executive's relocation of himself and
his family from Maryland to a location near the Company's main headquarters in
the greater New York City metropolitan area prior to the date that is six months
from the Commencement Date, (ii) reasonable costs for trips to the greater New
York City metropolitan area to search for a residence, (iii) reasonable real
estate commissions and other closing costs and related expenses with respect to
the sale of Executive's current residence in Maryland in connection with or
following such
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relocation and (iv) reasonable closing costs on a new residence in the greater
New York City metropolitan area, including up to two points on a new mortgage.
In addition, for a period of six months from the Commencement Date or until
Executive relocates his family to such location, if earlier, the Company shall
reimburse Executive for the reasonable costs of temporary housing in such New
York location and reasonable travel between Maryland and such location for the
purpose of visiting his family. Such reimbursement for temporary housing and
reasonable travel shall not exceed $20,000 and shall be subject to submission of
properly documented housing and travel receipts. If all or any portion of the
amounts payable to or on behalf of the Executive under this Section 3(e) (the
"Reimbursed Amounts") is subject to income tax payable by the Executive (after
taking into account whether any such amounts are legally permissible income tax
deductions to the Executive), the Company shall pay to the Executive an
additional amount (the "Gross-up Amount") to the extent necessary to place the
Executive in the same after-tax position as he would have been in had the
Reimbursed Amounts not been subject to income tax. The determination of the
Gross-up Amount shall be made by the Company's regular accounting firm and the
computation supporting such determination shall be submitted to the Executive.
If the Executive does not dispute such determination within fifteen (15) days
after receipt of the computation from the Company, then the Company shall make
payment of the Gross-up Amount within five (5) days of the conclusion of such
fifteen (15)-day period. However if the Executive disputes the determination
made by the Company's accounting firm, then the Executive shall give notice to
the Company within such fifteen (15)-day period, and, within ten (10) days
thereafter, the Company and the Executive shall mutually select a nationally
recognized accounting firm (the "Second Firm") which shall make the aforesaid
determination within ten (10) days after its selection. Such determination of
the Gross-up Amount by the Second Firm shall be binding and conclusive on the
parties. The Executive shall bear all costs and expenses of the Second Firm in
the event that the determination of the Gross-up Amount by the Second Firm does
not differ from the determination by the Company's accounting firm by more than
twenty percent (20%); however, if such difference is greater than twenty percent
(20%), then the Executive and the Company shall equally bear such costs and
expenses.
Section 4. EXCLUSIVITY. During the Employment Term, the Executive
shall devote his full time to the business of XX.xxx and the Company, shall
faithfully serve XX.xxx and the Company, shall in all respects conform to and
comply with the lawful and reasonable directions and instructions given to him
by the CEO and Board of Directors in accordance with the terms of this
Agreement, shall use his reasonable best efforts to promote
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and serve the interests of XX.xxx and 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 XX.xxx
and the Company and (ii) engage in personal investing activities, PROVIDED that
activities set forth in these clauses (i) and (ii), either singly or in the
aggregate, do not interfere in any material respect with the services to be
provided by the Executive hereunder.
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 XX.xxx's expense reimbursement policy for senior
executives (which is understood to be substantially equivalent to the policy in
effect for the Company's senior executives), as the same may be modified by the
CEO or 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 XX.xxx, as in effect from time to time.
Section 6. TERMINATION.
(a) DEATH. This Agreement shall automatically terminate upon the death
of the Executive, and upon such event, the Executive's estate shall be entitled
to receive the amounts specified in Section 3(b) above and 6(h) below as if
termination had occurred Without Cause (as defined below).
(b) DISABILITY. If the Executive is fully unable to perform the
essential duties required of him under this Agreement, with or without
accommodation, 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 fully 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 Employment Term, in which event this Agreement (other
than Sections 7, 8 and 12 hereof), including, but not limited to, the Company's
obligations to pay any Salary or other compensation or to provide any privileges
under this Agreement, shall terminate at the end of the 180 days of complete
disability.
(c) CAUSE. The Company may terminate the Executive's employment during
the Employment Term with "Cause" as that term is defined below. In the event of
termination pursuant to this
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Section 6(c) with 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 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, "Cause" shall mean: (i) the Executive's failure (except where due to
a disability contemplated by Section 6(b) hereof), neglect or refusal to perform
the essential 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 and in detail set forth the nature of
said failure, neglect or refusal; (ii) any willful or intentional act of the
Executive that has the effect of injuring the reputation or business of the
Company or its affiliates in any material respect; (iii) any continued or
repeated absence from the Company, unless such absence is (A) approved or
excused by the Board of Directors or (B) is the result of the Executive's
illness, or incapacity (in which event the provisions of Section 6(b) hereof
shall control); (iv) use of illegal drugs by the Executive or repeated
drunkenness which drunkenness affects the Executive's ability to perform his
duties hereunder; (v) conviction of the Executive for the commission of a
felony; or (vi) the commission by the Executive of an act of fraud or
embezzlement against the Company.
(d) RESIGNATION. Unless otherwise provided in Section 6(f) below in
the case of a termination of employment for Good Reason, the Executive shall
have the right to terminate his employment at any time by giving notice of his
resignation to the Company.
(e) WITHOUT CAUSE. The Company may terminate the Executive's
employment during the Employment Term "Without Cause", as that term is defined
below, at any time by giving notice to the Executive. A termination of the
Executive's employment "Without Cause" shall mean a termination initiated by the
Company for any reason other than Cause or on account of a Disability. A
termination Without Cause shall be effective immediately upon notice given by
the Company to the Executive.
(f) GOOD REASON. The Executive shall have the right to terminate his
employment for Good Reason under the following circumstances: (i) 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; (ii) the failure of the Company to provide
the benefits in accordance with Section 3(c) hereof; (iii) a material diminution
in the Executive's responsibilities
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or authority; (iv) a requirement that the Executive relocate outside of the
greater New York metropolitan area; or (v) the failure of any successor to all
or substantially all of the business and/or assets of the Company to assume the
Agreement; provided, however, that Good Reason shall not exist upon a
termination of employment described in Section 6(b), (c), (d) or (e). The date
of termination of the Executive's employment under this Section 6(f) shall be
the date the Executive gives the Company written notice of a termination for
Good Reason setting forth the basis for such termination.
(g) 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(g); or
(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
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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.
(h) PAYMENTS.
(i) In the event that the Executive resigns or the Executive's
employment hereunder terminates for 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.
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(ii) In the event (A) the Executive's employment hereunder is
terminated by the Company Without Cause, (B) the Executive's employment
hereunder is terminated by the Executive for Good Reason or (C) the Executive
resigns within 90 days following a Change of Control pursuant to Section 6(g)
hereof, in addition to the amounts specified in (i) above, 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
the greater of (x) the remainder of the Employment Term or (y) six (6) months
from the effective date of the termination of employment (the "Severance Term")
and 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.
(iii) In the event that the Company fails to renew the Employment
Term by providing to the Executive a notice nonrenewal pursuant to Section 2
herein, in addition to the amounts specified in (i) above, 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 the expiration of the
Employment Term periodically, in accordance with the Company's prevailing
payroll practices, for a period of four (4) months from the expiration date of
the Employment Term (the "Nonrenewal Term") and 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 Nonrenewal Term.
(iv) 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(h), 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(h) and his obligations under Sections 7, 8 and 12
hereunder.
(v) If the Executive secures employment, any consulting or other
similar arrangement during the period that any payment is continuing to the
Executive pursuant to the provisions of this Section 6(h), then the Company
shall not have the right to reduce the amounts to be paid hereunder by the
amount of the Executive's earnings from such other employment, consulting or
other arrangement.
Section 7. NON-DISCLOSURE, NON-INTERFERENCE AND INVENTIONS.
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(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 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 or its subsidiaries 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 first anniversary of the termination of the
Executive's employment hereunder (such period is hereinafter referred to as the
"Restricted Period"), the Executive shall not engage, directly or indirectly,
for himself or on behalf of any person or entity, in any business activities
which directly compete with the intellectual property information business or
intellectual property transactional business of the Company or any of its
subsidiaries or which directly compete with any other business line of the
Company or any subsidiary that the Executive becomes directly responsible for in
the course of his employment hereunder; PROVIDED, HOWEVER, that the foregoing
shall not preclude the Executive from owning less than 1% of the shares of a
public company; and PROVIDED, FURTHER, that the foregoing restrictions do not
encompass working for those who license their own intellectual property.
(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
proprietary 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.
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(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.
(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 any of its subsidiaries, or which
otherwise relate to or pertain to the business, functions or operations of the
Company or any of its subsidiaries 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 or any of its subsidiaries which is discovered, designed,
implemented or developed 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.
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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. REPRESENTATIONS AND WARRANTIES OF THE EXECUTIVE. The
Executive represents and warrants to the Company as follows:
(a) This Agreement, upon execution and delivery by the Executive, will
be duly executed and delivered by the Executive and (assuming due execution and
delivery hereof by the Company) will be the valid and binding obligation of the
Executive enforceable against the Executive in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
performance of this Agreement in accordance with its terms and conditions by the
Executive (i) requires the approval or consent of any governmental body or of
any other person or (ii) except as provided in the Ancillary Agreement,
conflicts with or results in any breach or violation of, or constitutes (or with
notice or lapse of time or both would constitute) a default under, any
agreement, instrument, judgment, decree, order, statute, rule, permit or
governmental regulation applicable to the Executive. Without limiting the
generality of the foregoing, other than the provisions contained herein, except
as provided in the Ancillary Agreement, the Executive is not a party to any
non-competition, non-solicitation, no hire or similar agreement that restricts
in any way the Executive's ability to engage in any business or to solicit or
hire the employees of any person.
The representations and warranties of the Executive contained in this
Section 9 shall survive the execution, delivery and performance of this
Agreement.
Section 10. 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
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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 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 (subject to the Executive's rights hereunder) 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 11. 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 Directors. 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 12. VALIDITY, ENFORCEABILITY 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. The invalidity or unenforceability of any provision or provisions of
this Agreement shall not affect the validity or enforceability of any other
provision or provisions of this Agreement, which shall remain in full force and
effect. If any provision of this Agreement is held to be invalid, void or
unenforceable in any jurisdiction, any court or arbitrator so holding shall
substitute a valid, enforceable provision that preserves, to the maximum lawful
extent, the terms and intent of such provisions of this Agreement. If any of the
provisions of, or covenants contained in, this Agreement are hereafter construed
to be invalid or unenforceable in any jurisdiction, the same shall not affect
the remainder of the provisions or the enforceability thereof in any other
jurisdiction, which shall be given full effect, without regard to the invalidity
or unenforceability in such other jurisdiction. Any such holding shall affect
such provision of this Agreement, solely as to that jurisdiction, without
rendering that or any other provisions of this Agreement invalid, illegal,
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or unenforceable in any other jurisdiction. If any covenant should be deemed
invalid, illegal or unenforceable because its scope, either geographical or
temporal, is considered excessive, such covenant will be modified so that the
scope of the covenant is reduced only to the minimum extent necessary to render
the modified covenant valid, legal and enforceable.
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 13. NOTICES.
(a) 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:
(i) if to the Executive, to the last known address of the
Executive as contained on the books of the Company, or
(ii) if to the Company, to Information Holdings, Inc., 0000
Xxxxxx Xxxxxx, Xxxxxxxx, XX, 00000, marked for the attention of the President,
or at such other address as it may have furnished in writing to the Executive.
(b) 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.
Section 14. 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 15. ENTIRE AGREEMENT. This Agreement and Exhibit A constitute
the entire understanding and agreement of the parties hereto regarding the
employment of the Executive. This Agreement supersedes all prior negotiations,
discussions, correspondence, communications, understandings and agreements
between the parties relating to the subject matter of this Agreement.
Section 16. 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: /s/ XXXXX XXXXXX
--------------------------
Xxxxx Xxxxxx
Chief Executive Officer
By: /s/ XXX XXXXXX
---------------------------
Xxx Xxxxxx
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