EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("this Agreement") is made effective as of the
1st day of April, 2005 (the "Effective Date") by and between ATLANTIC RESEARCH &
CONSULTING, INC., a Massachusetts corporation with offices at 000 Xxxxx Xxxxxx,
Xxxxxx, XX 00000 (the "Company") and a subsidiary of FIND/SVP, INC., a New York
corporation ("FIND"), and XXXXX XXXXXX, an individual residing at 00 Xxxx Xxxxx
Xxx, Xxxxxx, XX 00000 (the "Executive").
PREMISES: The Executive has served the Company in an executive capacity
for a substantial period of time prior to the Effective Date. The Company
desires to continue to employ the Executive, and in the capacity described
herein, and the Executive desires to continue to be so employed by the Company.
The Company and the Executive also desire to set forth in writing their
understanding of the terms and conditions governing such employment. Unless the
context indicates otherwise, capitalized terms used herein but not defined
herein shall have the meanings given to such terms in the Stock Purchase
Agreement, dated as of March 14, 2005, by and among FIND and the Executive (the
"Purchase Agreement").
NOW, THEREFORE, in consideration of the foregoing and of the following
mutual promises, the Company and the Executive, each intending legally to be
bound, agree as follows:
Section 1. Contract of Employment. Subject to the terms hereof, the
Company employs the Executive and the Executive accepts his employment with the
Company for the Employment Period (as defined in Section 2 hereof). During the
Employment Period, the Executive shall serve in and shall occupy the position of
Chairman of the Company and in such position shall serve as the most senior
executive officer of the Company. In that capacity the Executive shall have
responsibility for those duties that are customary to such office and position
and perform, for and on behalf of the Company, all duties as shall, from time to
time, reasonably be determined by either (i) the Board of Directors of the
Company, (ii) the Chief Executive Officer of FIND ("CEO"), or (iii) another
officer of FIND (or one of its subsidiaries) mutually agreed to in writing by
Executive and the CEO (the "Other Officer"). In addition, Executive shall use
his best efforts (provided it is commercially reasonable to do so) to maintain
ongoing relationships with the Company's key existing and prospective clients.
Without limitation of any of the foregoing, Executive also shall assume and
carry out such other duties or responsibilities as may be, from time to time,
reasonably assigned or delegated to the Executive by the Board of Directors of
the Company, the CEO or the Other Officer. In fulfilling the responsibilities of
his position, the Executive will observe all lawful policies, procedures and
directions that from time to time may be adopted by the Company, the CEO or the
Other Officer and which are applicable to the executive or administrative
personnel of the Company generally, including, without limitation, any lawful
policies, procedures and directions set forth in the personnel manuals of the
Company and FIND (to the extent applicable to the Company), as both may be
amended and in effect from time to time. In addition to his duties as Chairman
of the Company, the Executive shall feel free to give FIND his input on Find's
consolidated in-depth research and competitive intelligence operations. In
connection therewith, during the Employment Period, the Executive shall be a
member of the Find's Operating Management Group (the "OMG") whose function is to
propose initiatives and supplemental strategies needed to move Find to the next
level of growth and to apply Find's overall policies and strategies.
Section 2. Employment Period. The term of the Executive's employment by
the Company (the "Employment Period") shall commence on the Effective Date and
shall continue until the earliest to occur of: (i) the third (3rd) anniversary
of the Effective Date; (ii) termination of the Executive's employment in
accordance with Sections 6(a), 6(b) or 6(c) hereof; or (iii) the date of the
Executive's death.
Section 3. Time and Effort; Disclosure and Fair Dealing. During the
Employment Period, the Executive shall devote his entire business time, best
efforts, attention, energies, skill and abilities, during usual business hours
and at such other times as are reasonably required by his position as Chairman
of the Company, by the CEO, by the Other Officer, or by the Board of Directors
of the Company, to (a) diligently and faithfully carry out his responsibilities
and duties hereunder; (b) use his best efforts to promote the success and
expansion of the Company's business, and (c) cooperate fully with the Board of
Directors of the Company, the CEO and the Other Officer in the advancement of
the best interests of the Company and FIND. During the Employment Period, the
Executive shall carry out his responsibilities and duties at the offices of the
Company; provided, that Executive may be required to travel from time to time in
connection with his duties hereunder and the demands of the business of the
Company, it being acknowledged that the Executive shall not be required to
travel for more than 20% of his business time in any calendar year. Executive
shall not, without the prior written consent of the CEO or the Other Officer do
anything, or permit anything to be done at his direction, that is inconsistent
with his duties to the Company or its Affiliates or that he knows is opposed to
their best interests. Executive shall not become an officer, director, employee
or consultant of, or otherwise become associated with or engaged in, any
business other than that of the Company; provided, that with the prior written
consent of the CEO (which shall not be unreasonably withheld), the Executive
shall be entitled to serve as (i) on the Board of Directors of other companies
(other than non-public companies or their Affiliates), or (ii) an advisor to
other businesses, provided that such companies and businesses do not compete
with the Company or its Affiliates and such service does not impede on
Executive's duties to the Company and its Affiliates hereunder. Any such consent
granted by the CEO may be revoked by the CEO from time to time upon the CEO
reasonably determining that any such service is detrimental to the interests of
the Company or its Affiliates. The Executive will promptly disclose to the
Company's Board of Directors, the CEO and the Other Officer all material
information, opportunities, developments and other matters coming to the
Executive's attention that pertain or are relevant to the operations or conduct
of the Company or, to the knowledge of the Executive, any of its Affiliates or
to the conduct of their respective businesses. The Executive will promptly
communicate, fully cooperate and deal fairly and openly with the Company's
directors, other officers or key personnel, and, in general, to the best of his
abilities, the Executive will work to achieve efficient and profitable operation
of the Company's business and the orderly conduct of the Company's affairs. For
purpose of this Agreement "Affiliate" shall mean (i) as to Executive or the
Company, any party, which directly or indirectly, whether alone or through one
or more intermediaries, controls, is controlled by, or is under common control
with Executive or the Company, as the case may be, and (ii) as to FIND, the
subsidiaries and related entities of FIND set forth in its filings with the U.S.
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934.
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Section 4. Confidentiality, Non-Competition and Non-Interference.
(a) Protection of Nonpublic Information. The Executive hereby
acknowledges that (a) during the course of the Executive's employment by the
Company the Executive has obtained or will obtain knowledge of and use
Confidential Information, as hereinafter defined, (b) public disclosure of such
Confidential Information could have an adverse effect on the Company, FIND or
their respective Affiliates and their respective businesses; and (c) the
provisions of this Section are reasonable and necessary to prevent the improper
use or disclosure of Confidential Information. Both during the Employment Period
and at all times thereafter, the Executive (i) shall treat as confidential all
Confidential Information, (ii) without the prior written consent of the CEO or
Other Officer, shall not use for any personal purposes, publish, reveal,
divulge, transfer or otherwise disclose, or directly or indirectly make
available to any party any of such Confidential Information except to such
parties that either (a) are employed by the Company, (b) have signed a
confidentiality agreement with respect to such Confidential Information with the
Company or (c) are attorneys, accountants or other professional service
providers to FIND or the Company and bound by a duty of client confidentiality,
and such parties have a need for such information for purposes that are in the
best interest of the Company, and (iii) shall not knowingly use Confidential
Information in any way that is detrimental to the interests of the Company, FIND
or their respective Affiliates. The term "Confidential Information" shall mean
any and all knowledge relating to the business and affairs of the Company, FIND
or their respective Affiliates, and their respective trade secrets, business
methodologies, financial information, customer and personnel information and
data, creditors, shareholders, directors, contractors, agents, consultants,
employees, terms of contracts, and other confidential or nonpublic information
pertaining to the business practices, properties, services, products, ideas,
know-how, improvements and developments of the Company, FIND or their respective
Affiliates, conceived, developed or devised by or for the Company, FIND or their
respective Affiliates, that is or is intended by any of them to be of a
confidential nature, including, but not limited to, any and all knowledge
relating to products, research, development, inventions, manufacture,
purchasing, accounting, finances, costs, profit margins, marketing,
merchandising, selling, customer lists, customer requirements and personnel,
pricing, pricing methods, computer programs and software, databases and data
processing and any and all other such knowledge, information and materials,
heretofore or hereafter during the term of this Agreement, conceived, designed,
created, used or developed by or relating to the Company, FIND or their
respective Affiliates. The term "Confidential Information" shall include the
aforementioned items notwithstanding the fact that such information may or may
not be explicitly marked as confidential and notwithstanding the fact that such
information could be independently developed by third parties. Nothing contained
in this Section 4(a), however, shall be construed as imposing restraints upon
the Executive's use of any information which is or becomes made publicly
available by the Company, FIND or their respective Affiliates or is or has been
rightfully obtained by the Executive from persons other than the Company, FIND
or their respective Affiliates where such persons are under no obligation of
trust or confidence to the Company, FIND or its Affiliates. In the event that
the Executive is requested or required by subpoena, civil investigative demand
or other process to disclose any Confidential Information, the Executive shall
promptly notify the Company so that the Company may seek an appropriate
protective order or waive compliance with this Agreement. If, failing the entry
of a protective order, the Executive is, in the opinion of his counsel,
compelled to disclose Confidential Information, the Executive may disclose that
portion of the Confidential Information which counsel for the Company advises in
writing he is required to disclose.
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(b) Competitive Restrictions. During the Employment Period and
during the two (2) year period that begins on termination of the Employment
Period, the Executive shall not, whether for his account or for the account of
any other party other than the Company, FIND or their respective Affiliates
directly or indirectly engage or have any financial interest in, own, manage,
operate, finance, control or participate in the ownership, management,
operation, financing or control of, be employed by, associated with or in any
manner connected with, lend the Executive's name to or any similar name to, lend
the Executive's credit to or render services or advice to, any organization or
activity which in any manner competes with the Company, FIND or their respective
Affiliates with respect to their respective businesses. For purposes of this
Section 4(b), the term "compete" shall mean with respect to the Company, FIND
and their respective Affiliates: (i) with respect to or in connection with
conducting any business of the Company, FIND or their respective Affiliates,
calling on, soliciting, taking away or accepting as a client or customer or
attempting to call on, solicit, take away or accept as a client or customer, any
individual, person, partnership, corporation, association or other entity or
enterprise that was a client or customer of the Company, or known by the
Executive to have been a client or customer of FIND or its Affiliates, in each
case during the Employment Period or known by the Executive to be a customer of
the Company, FIND or their respective Affiliates after the Employment Period but
prior to the expiration of the two (2) year period that begins on termination of
the Employment Period; (ii) with respect to any business reason other than in
connection with the businesses of the Company, FIND and their respective
Affiliates, calling on, soliciting, taking away, or accepting as a client or
customer or attempting to call on, solicit, take away or accept as a client or
customer, any individual, person, partnership, corporation, association or other
entity or enterprise that was a client or customer of the Company, or known by
the Executive to have been a client or customer of FIND or its Affiliates, in
each case during the Employment Period or known by the Executive to be a
customer of the Company, FIND or their respective Affiliates after the
Employment Period but prior to the expiration of the two (2) year period that
begins on termination of the Employment Period; (iii) soliciting, taking away or
attempting to solicit or take away, employ or otherwise engage as an employee,
independent contractor or otherwise, any person who is an employee of the
Company, FIND or their respective Affiliates or was an employee of the Company,
FIND or their respective Affiliates during the Employment Period, on behalf of
any individual, person, partnership, corporation, association or other entity or
enterprise conducting a business which is substantially similar to the
businesses of the Company, FIND or their respective Affiliates; (iv) inducing or
attempting to induce any employee of the Company, FIND or their respective
Affiliates to terminate employment with the Company; (v) entering into or
attempting to enter into any business substantially similar to or competing in
any way with the business engaged in or, to the knowledge of the Executive,
planned to be engaged in by the Company, FIND or their respective Affiliates at
the time of the termination of the Executive's employment hereunder. For
purposes of this Section 4(b), the "business" of any Person shall mean the
business of such Person as currently conducted and any other business that such
Person enters into during the Employment Period. For purposes of this Section
4(b), the words "directly or indirectly" as they modify the word "compete" shall
mean (i) acting as an agent, representative, consultant, officer, director,
manager, independent contractor or employee of any individual, person,
partnership, corporation, association, limited liability corporation, limited
liability partnership or other entity or enterprise which competes with the
Company, FIND or their respective Affiliates, or any of their respective
businesses, (ii) participating in any such competing entity or enterprise as an
owner, member, partner, limited partner, joint venturer, creditor or stockholder
(except as a stockholder holding less than a one percent (1 %) interest in a
corporation whose shares are actively traded on a regional or national
securities exchange or have been registered under Section 12(g) of the
Securities and Exchange Act of 1934, as amended); and (iii) communicating to any
such competing entity or enterprise the names or addresses or any other
information concerning any past, present or identified prospective client or
customer.
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(c) Non-Interference. At any time during the Employment Period or
the two (2) year period immediately thereafter, the Executive shall not
knowingly interfere with any of the Company, FIND's or their respective
Affiliates' relationships with any party, including any party who, at any time
during the Employment Period, was an employee, contractor, supplier or customer
of any of the Company, FIND or their respective Affiliates. At any time during
or after the Employment Period, the Executive shall not make public statements
which may reasonably be deemed to negatively impact any of the Company, FIND or
their respective Affiliates or any of their respective shareholders, directors,
officers, employees or agents with respect to the customers, suppliers,
products, personnel or business of any of the Company, FIND or their respective
Affiliates. For purposes of this Section 4(c), "interfere" shall mean acts or
conduct that is reasonably likely to hamper, hinder or disturb the relationships
between the Company, FIND or their respective Affiliates and any applicable
party.
(d) Inventions, etc. Executive will promptly disclose to the Company
and the CEO all designs, processes, inventions, improvements, discoveries and
other information related to the business of the Company (collectively
"developments") conceived, developed or acquired by him alone or with others
during the Employment Period. All such developments shall be the sole and
exclusive property of the Company, and upon request the Executive shall deliver
to the Company all drawings, models and other data and records relating to such
developments. In the event any such developments shall be deemed by the Company
or the CEO to be patentable or copyrightable, the Executive shall, while
employed, at the expense of the Company, assist the Company in obtaining any
patents or copyrights thereon and execute all documents and do all other things
necessary or proper to obtain letters patent and copyrights and to vest the
Company with full title thereto.
(e) Acknowledgments by Executive. The Executive acknowledges that:
(a) the services to be performed by him under this Agreement are for a special,
unique, unusual, extraordinary and intellectual character; (b) the business of
the Company, FIND and their respective Affiliates is national and international
in scope and its products are marketed throughout the United States and in other
countries, territories and possessions; (c) the Company and FIND and their
respective Affiliates compete with other businesses that are or could be located
in any part of the United States and in other countries, territories and
possessions; and (d) the provisions of this Section 4 are reasonable and
necessary to protect the business of the Company and FIND and their respective
Affiliates and will not restrict Executive from earning a livelihood.
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(f) Remedies. The Executive hereby acknowledges that a breach by the
Executive of the provisions of this Section 4 cannot reasonably or adequately be
compensated in damages in an action at law; and that a breach of any of the
provisions contained in this Section 4 will cause the Company, FIND and their
respective Affiliates irreparable injury and damage. By reason thereof, the
Executive hereby agrees that the Company, FIND and their respective Affiliates
shall be entitled, in addition to any other remedies it may have under this
Agreement or otherwise, to preliminary, temporary and permanent injunctive and
other equitable relief to prevent or curtail any actual or threatened breach of
this Section 4 by the Executive; provided, however, that no specification in
this Agreement of a specific legal or equitable remedy shall be construed as a
waiver or prohibition against the pursuing of other legal or equitable remedies
in the event of such a breach. None of the Company, FIND and their respective
Affiliates shall be required to post bond in connection with seeking any such
equitable remedies.
Section 5. Compensation and Benefits. The Executive and the Company
agree to the following compensation arrangements:
(a) Salary. For the services to be rendered by the Executive and in
consideration of the Executive's other undertakings in this Agreement, the
Company shall pay to the Executive a salary at the rate of Two Hundred Eleven
Thousand Dollars ($211,000.00) per annum, which shall be payable in equal
periodic installments according to the Company's normal payroll practices, but
no less frequently than monthly. If the Employment Period ends on a day that
precedes the last accounting day of a fiscal or compensation period, any amounts
payable to the Executive for that period shall be reduced in accordance with a
fraction of which the numerator shall be the number of days of the period during
which the Employment Period was in effect and the denominator shall be the
number of days comprising the entirety of such fiscal or compensation period.
(b) OMG Bonus Program. In addition to the Salary and benefits
provided hereunder, Executive shall be entitled to participate in any OMG bonus
incentive plan pursuant to the terms thereof, as may be adopted or amended from
time to time.
(c) Expense Reimbursement. The Company shall reimburse the Executive
for ordinary, necessary and reasonable expenses incurred by him in the
performance of the Executive's duties hereunder substantiated with proper
invoices, receipts, or other supporting documentation, including expenses of
travel, lodging and sustenance while away from home on business of the Company,
provided that such expenses are incurred and accounted for in accordance with
the reasonable policies and procedures established by the Board of Directors of
the Company, by the CEO or by the Other Officer from time to time. Executive
shall file expense reports with respect to such expenses. Except such expenses
that will be reimbursed by a client or customer of the Company, Executive shall
not incur expenses in excess of $3,000 in connection with (i) a business trip or
(ii) any other individual or series of related personal expenditures without the
prior written authorization of the CEO or the Other Officer.
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(d) Benefit Plans. During the Employment Period, subject to the
eligibility and other conditions thereof and payment of any required
contributions, the Executive and his immediate family shall be entitled to
participate in all employee pension or welfare benefit plans and arrangements
generally maintained for executive employees of FIND (presently or in the
future, and subject to termination or amendment) and in which the Executive is
or may become eligible to participate (including, without limitation, any
defined benefit pension plan currently maintained by FIND, group life insurance,
accidental death and dismemberment plans, and medical plans). The Company and
FIND retains the right to terminate, alter, replace or modify benefits under any
medical plans or policies on a non-discriminatory basis from time to time.
(e) Vacations. During the Employment Period, the Executive shall be
entitled to five (5) weeks of paid vacation annually (subject to prorating for
partial years), to be taken at such times as are consistent with the needs of
the Company and the convenience of the Executive, plus such other holidays,
personal days or other days as may be determined in accordance with the
Company's policies as in effect from time to time. Unused parts of any vacation
and unused holidays will not be separately compensable or otherwise form the
basis for additional compensation and shall not be accumulated so as to be
available in respect of any subsequent 12-month period.
(f) Stock Options. Pursuant to the terms of the FIND/SVP, INC. 2003
Stock Incentive Plan, or such other stock incentive plan of FIND as may be in
effect from time to time (the "Plan") the Executive shall be granted options to
purchase up to 25,000 shares of Common Stock per year during the each year of
the Term (the "Options") with such number of shares granted being based upon
performance criteria to be determined at the beginning of each such year by
FIND. The parties hereto agree that the first year performance criteria is set
forth on Exhibit 5(f) hereto. The terms and provisions of the Options and any
other compensation paid pursuant to this Section shall be more fully set forth
in stock option agreements and other appropriate agreements to be entered into
by the Executive and FIND. The grant of Options shall be subject to the terms of
the Plan and the execution of such agreements. If an amount of shares or Options
under the Plan are not immediately available for issuance pursuant to the terms
hereof, such shares and options will be issued promptly upon becoming available.
Subject to applicable law, the Options shall be "incentive stock options" under
the Plan.
(g) Tax and Other Withholdings. The amounts payable under this
Section 5 or Section 6(d) hereof are subject to all applicable federal and state
income tax, social security and other governmentally mandated withholdings, and
any contributions the Executive may authorize to be withheld from his
compensation.
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Section 6. Termination of Employment.
(a) For Cause. The Company may terminate the Executive's employment
and all of the Company's obligations hereunder at any time for Cause, as defined
below. Such termination shall be evidenced by written notice delivered to the
Executive, unequivocally stating the Company's decision to terminate the
Executive's employment under this Section 6(a) and specifying the Cause for such
termination. Such termination shall be effective on the date stated in such
notice; provided, that in no event shall such termination date be more than
sixty (60) days after the date that the notice is delivered. For purposes
hereof, the term "Cause" shall mean one or more of the following: (i) the court
appointment of a conservator or like official for the person or property of the
Executive; (ii) the Executive's conviction of, or the entering of a guilty plea
or plea of no contest with respect to a felony; (iii) the issuance of a court
order, judgment or decree enjoining or having the effect of preventing the
Executive from performing his duties under this Agreement; (iv) the Executive's
failure to substantially perform his duties hereunder under the direction of the
CEO or the Other Officer or to adhere to any written Company policy generally
applied (or FIND policy applicable to the Company and generally applied) if the
Executive has been given a reasonable opportunity to comply with such duties or
policy or cure his failure to comply (which reasonable opportunity must be
granted by notice no less than twenty (20) business days preceding termination
of this Agreement, except that if two such prior notices have been received by
Executive for substantively the same or related matter, no further notice or
cure or compliance period shall be required), provided, that it is understood
that the Company's failure to achieve its business plan or projections shall not
be considered a failure to perform duties hereunder; (v) because of his physical
or mental illness, injury, disability or incapacity, the Executive does not
fulfill his duties hereunder on a full-time basis for either sixty (60)
consecutive days or one hundred twenty (120) days in any period of eighteen (18)
months; (vi) the Executive's commission of an act of fraud, deception or
dishonesty when acting for the Company or under other circumstances, and such
act xxxxx or may reasonably be expected to harm the Company or any of its
Affiliates or their respective businesses, including, without limitation, (A)
the appropriation (or attempted appropriation) of a material business
opportunity of the Company, including attempting to secure or securing any
personal profit in connection with any transaction entered into on behalf of the
Company and (B) the misappropriation (or attempted misappropriation) of any of
the Company's funds or property; (vii) the Executive's gross negligence or
willful misconduct in connection with his duties hereunder; or (viii) the
Executive's breach of any of the covenants contained in Section 4 hereof.
(b) For Good Reason. The Executive shall be entitled to terminate
Executive's employment and all of his obligations hereunder (except the
obligations set forth in (i) Sections 4, 6(d), 6(e) and 7-13) for Good Reason,
as defined below, and as of the expiration of a period of twenty (20) business
days following the Executive's delivery of a written notice to the Company
setting forth his election to terminate the Executive's employment hereunder and
specifying briefly the facts forming the basis for the Executive's exercise of
his right of termination pursuant to this Section. For purposes of this
Agreement, "Good Reason" shall mean (i) any act or omission on the part of the
Company which constitutes a material breach of this Agreement, unless the
Company ceases, corrects and cures all adverse effects of such breach within the
thirty (30) business day notice period specified in this Section, if reasonably
curable during such period, or if not reasonably curable in such period, the
Company commences to cure such breach within such period and thereafter promptly
cures such breach; or (ii) FIND or the Board of Directors of the Company causes,
without the prior consent of Executive (A) a material adverse change in the
Executive's title or authority, (B) a material reduction in the duties and
responsibilities of the Executive, provided that any reassignment of any of the
Executive's duties or responsibilities to another employee of the Company who
reports, directly or indirectly (through one or more employees), to the
Executive shall not constitute Good Reason, (C) a material reduction in the
salary or benefits of the Executive, or (D) a relocation of the Executive's
principal work location more than twenty (20) miles from Boston, Massachusetts.
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(c) Other than for Cause. Subject to Executive's rights pursuant to
Section 6(d) hereof, the Company shall be entitled to terminate the Executive's
employment and all of the Company's obligations hereunder for any or no reason.
(d) Compensation and Benefits Following Termination.
(I) If the Executive's employment with the Company is terminated by
the Company upon the death of Executive, for Cause in accordance with Section
6(a) hereof or by the Executive for other than Good Reason in accordance with
Section 6(b) hereof, the Company shall pay the Executive, without deduction or
set off except for tax, social security or other mandated withholdings, the
amounts set forth in subsections (A) and (B) below:
(A) On or before the executive's payroll date next following the day
on which such termination becomes effective (the "Termination Date"), an amount
equal to that proportion of the Executive's salary, at the rate then in effect,
determinable under Section 5(a) hereof, and
(B) With reasonable promptness following the Termination Date,
reimbursement for all expenses subject to reimbursement under Section 5(c)
hereof.
(II) If the Executive's employment with the Company is terminated
(a) by the Company other than for Cause (except as a result of the death of
Executive), or (b) by the Executive for Good Reason, the Executive shall
continue to be provided his Base Salary for a period that is the greater of one
year and the time remaining in the Employment Period; provided, however, that if
the Company discovers that the Executive has violated any part of Section 4
hereof, the Executive shall not be entitled to such payments.
(III) After termination of the Employment Period and any additional
period for which he is being paid or due salary pursuant to Section 6(d)(II)
hereof, Executive shall be entitled, at his own cost, to continue any medical
benefits provided to him during the Employment Period to the extent permitted
under the policies and plans of the Company.
(IV) Executive agrees that no payments or benefits shall be due
Executive after the Employment Period under this Section 6 or otherwise with
respect to this agreement or Executive's employment with the Company until such
time as Executive executes before a notary a Release in the form annexed hereto
as Exhibit 6(d)(IV) hereto and delivers an original counterpart thereof to the
CEO or the Other Officer.
(e) Use and Return of Materials. At the termination of the
Employment Period, irrespective of the reasons for such termination, the
Executive shall return to the CEO or the Other Officer the originals and all
copies of correspondence, memoranda, papers, files, records and other materials
that may at any time have come into his possession and relate to the business
and affairs of the Company or any of its Affiliates.
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Section 7. Costs of Enforcement. In the event that either party
brings an action to enforce such party's rights under this Agreement, including
any provision of Section 4 hereof, any party or parties prevailing in such
action by judgment or order of a court of competent jurisdiction shall be
entitled to recover from the party or parties against whom the order is given or
the judgment is entered all costs and expenses, including reasonable attorneys'
fees, incurred by the prevailing party or parties with respect to such action,
such award of costs and expenses to be determined by the Court.
Section 8. Reasonableness of Restrictions: Severability. The
Executive has carefully read and considered the provisions of Section 4 hereof,
and agrees that the restrictions set forth in such Section are fair and are
reasonably required for the protection of the legitimate interests of the
Company. In the event that, notwithstanding the foregoing, any section of this
Agreement, or any other part hereof, shall be held by a court of competent
jurisdiction to be invalid or unenforceable, the remaining provisions thereof
and hereof shall nevertheless continue to be valid and enforceable as though the
invalid or unenforceable parts had not been included therein. Without limiting
the foregoing, in the event that any provision of Section 4 hereof relating to
the time period or the areas of restriction (or both) shall be held by a court
of competent jurisdiction to exceed the maximum time period or area such court
deems reasonable and enforceable, the time period or areas of restriction (or
both) deemed reasonable and enforceable by the court shall become and thereafter
be the maximum time period or areas of restriction (or both). The periods of
time applicable to any covenant in Section 4 shall be extended by the duration
of any violation by the Executive of such covenant. The Executive shall, while
the covenants under Section 4 are in effect, give notice to the Company, within
ten days after accepting any other employment, of the identity of the
Executive's employer. The Company may notify such employer that the Executive is
bound by this Agreement and, at the Company's election, furnish such employer
with a copy of the relevant portions of this Agreement.
Section 9. Successors and Assigns. This Agreement shall bind and
inure to the benefit of the successors and assigns of the Company and the
Executive's heirs and legal representatives. This Agreement and the rights,
interest and benefits of the Executive shall not, however, be subject to
voluntary or involuntary assignment, transfer, or hypothecation, directly or
indirectly, by the Executive or his heirs and legal representatives without the
prior written consent of the Board of Directors of the Company.
Section 10. Modification and Waiver. No modification or waiver of
any of the provisions of this Agreement, and no extension or renewal of or
substitution for this Agreement shall be binding upon either of the parties
hereto unless made in writing and signed by the Executive and signed on behalf
of the Company by its duly authorized officer.
Section 11. Entire Agreement. This Agreement and the applicable
provisions of the Purchase Agreement constitute the entire agreement between the
parties hereto with respect to the employment of the Executive and supersede any
and all prior agreements, whether oral or written, concerning such employment.
Section 12. Notices. All notices and other communications provided
in connection with this Agreement shall be in writing and shall be deemed
effectively given in all respects (a) when received, if manually delivered or
delivered by overnight mail courier; or (b) at the time of transmission if
transmitted by facsimile (with confirmed receipt) and confirmed in written hard
copy actually delivered prior to the end of the third business day thereafter.
10
Notice to the Company shall be addressed to:
FIND/SVP, INC.
000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Chief Executive Officer
and
Xxxx Xxxxxxx, P.C.
1350 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
or at such other address or to the attention of such other person as the Company
may designate by written notice to the Executive.
Notices to the Executive shall be addressed to:
Xxxxx Xxxxxx
00 Xxxx Xxxxx Xxx
Xxxxxx, XX 00000
and
Company Counsel, LLC
00 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
or at such other address or to the attention of such other person as the
Executive may designate by written notice to the Company and FIND.
Section 13. Choice of Law; Jurisdiction and Venue. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
without reference to the choice of law principles thereof. The parties further
agree (a) that this Agreement shall be subject to the exclusive jurisdiction of
the courts of New York County, New York and the Federal District Court for the
Southern District of New York; (b) that any breach of any term or condition of
this Agreement shall be deemed to be a breach occurring in the State of New York
by virtue of a failure to perform an act required to be performed in the State
of New York and irrevocably and expressly agree to submit to the jurisdiction of
the courts of the State of New York and the Federal District Court for the
Southern District of New York for the purpose of resolving any disputes among
the parties relating to this Agreement or the transactions contemplated hereby;
and (c) to irrevocably waive, to the fullest extent permitted by law, any
objection which they may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement, or any
judgment entered by any court in respect hereof brought in New York County, New
York or the Federal District Court for the Southern District of New York and
further irrevocably waive any claim that any suit, action or proceeding brought
in New York County, New York or the Federal District Court for the Southern
District of New York has been brought in an inconvenient forum.
11
Section 14. Counterparts; Facsimile Transmission This Agreement may be
executed in one or more counterparts, each of which shall be deemed to be an
original copy of this Agreement and of which, when taken together, shall be
deemed to constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement by facsimile shall be
effective as delivery of a manually executed counterpart of this Agreement,
provided, however, that in each instance an original executed counterpart shall
be promptly delivered to the other party by hand or overnight courier.
Section 15. Survival. The provisions of Sections 4, 6(d), 6(e) and 7 shall
survive the termination of this Agreement.
Section 16. Participation of Parties. The parties hereto acknowledge that
this Agreement and all matters contemplated herein, have been negotiated among
all parties hereto and their respective legal counsel and that all such parties
have participated in the drafting and preparation of this Agreement from the
commencement of negotiations at all times through the execution hereof.
(signature page follows)
12
IN WITNESS WHEREOF, the Company and the Executive have duly executed this
Agreement on or as of the Effective Date.
COMPANY:
ATLANTIC RESEARCH & CONSULTING, INC.
By:/s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: President
EXECUTIVE:
/s/ Xxxxx Xxxxxx
--------------------------------
XXXXX XXXXXX
ACCEPTED AND AGREED TO
WITH RESPECT TO THE SPECIFIC
PROVISIONS OF SECTIONS
1, 5(b), 5(d) and 5(f):
FIND/SVP, INC.
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Chief Financial Officer,
Senior Vice President, Secretary and
Treasurer
