EMPLOYMENT AGREEMENT BETWEEN
THE SOURCE INFORMATION MANAGEMENT COMPANY AND
_________________________
This Agreement is entered into as of October ____, 1997, between THE
SOURCE INFORMATION MANAGEMENT COMPANY, a Missouri corporation ("Company"), and
________________ ("EXECUTIVE").
WHEREAS, EXECUTIVE is a founder of the business of the Company and is
presently serving as ________ and _______________________ of the Company and has
made significant contributions to the Company during the term of his employment;
and
WHEREAS, the Company and EXECUTIVE desire that EXECUTIVE continue to be
employed by the Company under the terms and conditions set forth in this
Employment Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties agree as follows:
1. Employment. The Company hereby employs EXECUTIVE, and EXECUTIVE
hereby accepts such employment from the Company, upon the terms and conditions
set forth in this Agreement. EXECUTIVE represents that his employment by the
Company under the terms of this Agreement will not violate or result in a breach
of any agreement or obligation to which EXECUTIVE is a party or by which he may
be bound.
2. Position and Duties of EXECUTIVE. During EXECUTIVE's employment by
the Company, EXECUTIVE shall exercise the authority and perform the duties of
the ________ and _______________________ of the Company. EXECUTIVE shall at all
times faithfully, industriously and to the best of his ability, experience and
talents, perform all of the duties of the aforementioned office and all other
duties described in this Agreement.
3. Term of Employment. The term of EXECUTIVE's employment under this
Agreement shall extend from the date hereof through January 31, 1999 and
thereafter automatically continue for additional one year periods unless
terminated by either EXECUTIVE or the Company as of the expiration of the
initial term or additional terms upon: (a) the giving of sixty (60) days' notice
of termination or (b) in the case of the Company, the payment of termination pay
equal to the level of Base Compensation then payable to EXECUTIVE for a sixty
(60) day period, or any combination of an aggregate of sixty (60) days notice
and termination pay by the Company. This Employment Agreement may also be
terminated at any time prior to the expiration of any term of employment upon
the earlier occurrence of any of the following events:
(a) By mutual written consent of the Company and EXECUTIVE;
(b) Immediately upon EXECUTIVE's death;
(c) By the Company, upon the permanent total disability of
EXECUTIVE which, for purposes hereof, shall be deemed to have occurred
upon the first anniversary of the date of an event resulting in a
continuing condition which prevents EXECUTIVE from discharging
EXECUTIVE's principal duties hereunder;
(d) By the Company, immediately upon written notice to
EXECUTIVE, for Cause, as hereinafter defined;
(e) By EXECUTIVE, immediately upon at least thirty days'
written notice to Company, in the event of the failure of Company to
maintain Employment Conditions, as hereinafter defined.
The term "Cause" as used in this Agreement shall mean (i) the
conviction of EXECUTIVE of a felony or (ii) the material breach by EXECUTIVE of
any of EXECUTIVE's obligations under this Agreement or any other agreement
between Company and EXECUTIVE.
Notwithstanding the foregoing, an act or event shall not entitle either
party to terminate this Agreement if it is of such a nature that substantially
all detriment otherwise resulting therefrom can be cured and eliminated by
appropriate action, and the offending party causes such action to be taken,
within ten days following written notice thereof from the other party.
The term "Employment Conditions" as used in this Agreement shall mean
any of the following (i) the withdrawal by Company from EXECUTIVE of any
substantive part of EXECUTIVE's responsibilities, duties or authority as
previously discharged or exercised for the benefit of the Company without
EXECUTIVE's consent; (ii) the assignment by Company to EXECUTIVE of substantive
additional duties or responsibilities which are inconsistent with the duties or
responsibilities previously discharged or exercised for the benefit of the
Company, without EXECUTIVE's consent ; (iii) the relocation of EXECUTIVE's
principal place of employment without EXECUTIVE's consent to a place outside the
St. Louis metropolitan area; (iv) the failure of EXECUTIVE to continue in the
office of ________ and _______________ _______ of Company without EXECUTIVE's
consent; (v) the harassment of EXECUTIVE intended, designed or which would have
the foreseeable effect of causing EXECUTIVE to resign or abandon EXECUTIVE's
employment with Company; or (vi) the material breach by Company of this
Agreement or any other agreement to which Company and EXECUTIVE are a party.
4. Compensation.
(a) As compensation for EXECUTIVE's services under the
Agreement and subject to adjustment as provided below, the Company
shall pay EXECUTIVE, commencing on the date hereof and continuing
throughout EXECUTIVE's employment by the Company, an annual base rate
of compensation (the "Base Compensation") of ___
___________________________________ ($_______), which Base Compensation
shall be payable at such intervals as the Company pays its other senior
executive employees, but in any event, not less frequently than
semi-monthly. Each fiscal year (commencing after the conclusion of the
fiscal year ending January 31, 1998), the Compensation Committee of the
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Board of Directors of the Company (the "Board") will set the
EXECUTIVE's Base Compensation for that fiscal year, taking into account
the performance of the EXECUTIVE, the total compensation paid to the
_________ officers of similar companies of comparable size to that of
the Company performing similar duties and having similar authority and
responsibilities and such other factors deemed relevant by the
Committee; provided however that in no event shall such Base
Compensation for any annual period be less than the Base Compensation
set forth for the immediately preceding annual period times a fraction
the numerator of which is the Consumer Price Index for All Urban
Consumers derived from the United States Cities Average for the third
month preceding the month in which the Company's fiscal year is
concluded and the denominator of which is the base index figure of
157.5.
(b) In addition to EXECUTIVE's Base Compensation, EXECUTIVE
shall be entitled to receive a bonus (the "Annual Bonus") each year in
such amount and/or on such basis as the Compensation Committee of the
Company's Board of Directors shall determine to be reasonable and
appropriate based on such criteria as the Compensation Committee shall
have established. EXECUTIVE shall have no vested right to receive an
Annual Bonus and EXECUTIVE agrees that the amount, if any, of the
Annual Bonus shall be in the sole discretion of the Compensation
Committee.
5. Expenses; Fringe Benefits.
(a) The Company will pay directly, or reimburse EXECUTIVE, for
such items of reasonable and necessary expense as are authorized by the
Company and incurred by EXECUTIVE in the interest of the business of
the Company. All such expenses paid by EXECUTIVE will be reimbursed by
the Company upon the presentation by EXECUTIVE of an itemized account
of such expenditures, sufficient to support their deductibility to the
Company for federal income tax purposes (without regard to whether or
not the Company's deduction for such expenses is limited for federal
income tax purposes), within thirty (30) days after the date such
expenses are incurred.
(b) The Company will provide EXECUTIVE with health and life
insurance and other fringe benefits normally accorded the Company's
executive officers (which may entail employee contributions); provided,
however, that the foregoing shall not obligate the Company to continue
any such benefits in force, or to maintain such benefits at their
present standards and levels, at any time as to such class of
employees. EXECUTIVE shall also be entitled to participate in all other
insurance and retirement plans, retirement benefits, death benefits,
salary continuation benefits, stock option plans and other perquisites
and fringe benefits generally available for the senior executive
officers of The Company.
(c) The Company will provide EXECUTIVE with four (4) weeks of
vacation per year of this Agreement.
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6. Covenants of EXECUTIVE. EXECUTIVE covenants to and agrees with the
Company as follows:
(a) Except as required in EXECUTIVE's duties to the Company,
EXECUTIVE will not disclose or divulge to any person, entity, firm or
company, or use for EXECUTIVE's benefit or the benefit of any other
person, entity, firm or company, directly or indirectly, as the same
may exist during the term of EXECUTIVE's employment by the Company or
at the date of such termination, any knowledge, information, business
methods, techniques, devices, customer lists, supplier lists, business
plans, software, programs or other data of the Company, without regard
to whether all of the foregoing matters will be otherwise deemed
confidential, material or important, the parties stipulating that as
between them, the same are important, material and confidential and
greatly affect the effective and successful conduct of the business and
the goodwill of the Company;
(b) Except as required in EXECUTIVE's duties to the Company,
EXECUTIVE will not disclose or divulge to any person, entity, firm or
company, or use for EXECUTIVE's benefit or the benefit of any other
person, entity, firm or company, directly or indirectly, as the same
may exist during the term of EXECUTIVE's employment by the Company or
at the date of such termination, any knowledge, information, business
methods, techniques, devices, customer lists, supplier lists, business
plans, software, programs or other data of the Company, without regard
to whether all of the foregoing matters will be otherwise deemed
confidential, material or important, the parties stipulating that as
between them, the same are important, material and confidential and
greatly affect the effective and successful conduct of the business and
the goodwill of the Company;
(c) During the term of EXECUTIVE's employment with the Company
and thereafter for a period of two (2) years, EXECUTIVE will not, in
any manner, directly or indirectly with or through any other person or
entity:
(i) Solicit, divert, take away or interfere with any
of the customers, trade, suppliers, business, patronage,
employees or agents of the Company, or employ any person who
was an employee of the Company at any time during the two year
period prior to the date of such employment; or
(ii) Engage, directly or indirectly, either
personally or as an employee, partner, associate, officer,
manager, agent, advisor, associate, consultant or otherwise,
or by means of any corporate or other entity or device, in
competition with the business of the Company in the United
States or Canada as such business exists on the date of
EXECUTIVE's cessation of employment, or as to which the
Company has formulated definitive plans, of which EXECUTIVE
has knowledge, to enter into during the term of this Agreement
or as of the date of the cessation of EXECUTIVE's employment.
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(d) It is the intention of the parties to restrict the
activities of EXECUTIVE under paragraph 6(c)(ii) only to the extent
necessary for the protection of the business interests of the Company,
and the parties specifically covenant and agree that should any of the
provisions thereof, under any set of circumstances, be determined by a
court having jurisdiction to be too broad for that purpose or invalid
or unenforceable for any reason, it is the intention and agreement of
the parties that such provisions shall be so interpreted and applied by
such court in such a narrower sense as shall be necessary to make the
same valid and enforceable to the maximum extent possible, consistent
with the intent of the parties expressed in this Agreement.
(e) The covenants and agreements of EXECUTIVE contained in
paragraph 6(b) and (c) shall be construed as independent of any other
provision of this Agreement and given for valuable independent
consideration, and the existence of any defense, claim or cause of
action against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the
Company of such covenants and agreements.
7. Documents. Upon the cessation of EXECUTIVE's employment with the
Company, for any reason, all documents, records, software, programs, models,
financial statements and projections, notebooks, invoices, statements and
correspondence, including copies thereof, relating to the business of the
Company then in EXECUTIVE's possession or under EXECUTIVE's control, whether
prepared by EXECUTIVE or others, will be left with or returned to the Company,
it being recognized and agreed that each of the foregoing constitutes property
of the Company.
8. Remedies.
(a) At the expiration of the initial term, or any extension
thereof, or the termination of this Agreement by mutual consent of the
parties, the death of EXECUTIVE or for Cause, unless otherwise agreed
by the Company and EXECUTIVE, the obligation of the Company to pay
further compensation to EXECUTIVE shall cease, provided, however, that
all other obligations hereunder of either party to the other party at
the time of such expiration or termination shall not be affected by
such termination or expiration;
(b) In the event this Agreement is terminated by the Company
as a result of the permanent total disability of EXECUTIVE, EXECUTIVE
shall be entitled to receive one-half EXECUTIVE's base compensation and
full benefits provided for in this Agreement for a period of
twenty-four months following the date of such termination.
(c) In the event this Agreement is terminated by EXECUTIVE as
a result of the Company's failure to maintain Employment Conditions,
EXECUTIVE shall be entitled to a severance payment, payable within ten
days after the date of termination, equal to 200% of EXECUTIVE's annual
base compensation in effect immediately prior to such termination, plus
any earned but unpaid bonus.
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(d) The Company and EXECUTIVE agree that the following
provisions shall immediately and automatically become operational upon
the occurrence of a Change of Control (as described in Schedule I
hereof), without further action on the part of either the Company or
EXECUTIVE:
(i) In the event of the involuntary termination or
significant reduction in the position, duties or
responsibilities of EXECUTIVE (a "Termination"), EXECUTIVE
shall be entitled to an additional bonus, payable within sixty
(60) days of the occurrence of the Termination, equal to Three
Hundred percent (300%) of the greater of the Base Compensation
in effect as of the day of such Change of Control or in effect
as of the date of such Termination if the Termination occurs
within two years following the Change of Control.
(ii) All options to purchase shares of the common
stock of the Company held by EXECUTIVE pursuant to a stock
option or other incentive compensation plan of the Company
("Stock Options") shall be fully vested and exercisable.
(iii) All restrictions on restricted stock of the
Company held by EXECUTIVE pursuant to a restricted stock or
other incentive compensation plan of the Company (the
"Restricted Stock") that may result in the forfeiture of such
stock shall terminate.
(iv) EXECUTIVE shall also be awarded a bonus (the
"Special Executive Bonus") on a "grossed-up" basis (to take
into account the taxability for federal and state income tax
purposes of the Special Executive Bonus to the EXECUTIVE)
equal to the amount of federal and state income tax payable by
the EXECUTIVE arising from the vesting of EXECUTIVE's
interests in Stock Options or the elimination of restrictions
on Restricted Stock, assuming the maximum statutory rate of
federal and state income tax then applicable to an individual
taxpayer.
(v) All agreements with the Company by EXECUTIVE to
refrain from selling any securities of the Company shall
terminate.
(e) It is expressly agreed that the breach or evasion of the
terms of this Agreement by EXECUTIVE will result in immediate and
irreparable injury to the Company, for which the payment of money
damages would be an inadequate remedy, and will authorize recourse to
the equitable remedies of injunction and specific performance, as well
as to all other legal or equitable remedies to which the Company may be
entitled. No remedy conferred by any of the specific provisions of this
Agreement is intended to be exclusive of any other remedy, and each and
every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in
equity, by statute or otherwise. The election of any one or more
remedies by the Company shall not constitute a waiver of the right to
pursue other available remedies.
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(f) In the event the Company or EXECUTIVE institutes a suit at
law or in equity for the purpose of enforcing the provisions of this
Agreement, the prevailing party in any such action shall be entitled to
recover reasonable attorneys' fees and expenses and related costs and
expenses, in addition to any other judgment, award or remedy to which
the prevailing party may be entitled.
9. Severability. All agreements and covenants herein contained are
severable, and in the event any of them shall be held to be invalid by any
competent court, this Agreement shall continue in full force and effect and,
subject to subparagraph 6(d), shall be interpreted as if such invalid agreements
or covenants were not contained herein.
10. Waiver or Modification. No waiver, amendment or modification of
this Agreement or any portion hereof shall be valid unless in writing and duly
executed by the party to be charged therewith. The failure of the Company or
EXECUTIVE to exercise or otherwise act with respect to any of its or his rights
hereunder in the event of a breach of any of the terms or conditions hereof by
the other shall not be construed as a waiver of such breach, nor prevent the
Company or EXECUTIVE, as the case may be, from thereafter enforcing strict
compliance with any and all of the terms and conditions hereof.
11. Notices. All notices, requests, demands, consents or other
communications hereunder shall be in writing and shall be deemed to have been
given if delivered personally or mailed by certified, registered or Express
mail, return receipt requested, or next business day courier service (such as
Federal Express), if to the Company, to:
The Source Information Management Company
Attention: S. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and, if to EXECUTIVE, to:
--------------------------
--------------------------
--------------------------
or to such other address to which a party gives notice to the other in
accordance with this paragraph 11.
12. Construction.
(a) This Employment Agreement shall be governed by and
construed under the laws of the State of Missouri, provided that the
sole and absolute venue for purposes of suit shall be St. Louis County,
Missouri, notwithstanding the place of execution hereof or the
performance of any acts under this Agreement in any other jurisdiction.
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(b) For purposes of paragraph 6, references to the Company
shall include all companies or other entities controlled by,
controlling, or under common control with the Company, whether such
control is exercised through ownership or other direction of the
management or policies of any such company or entity, and all licensees
of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THE SOURCE INFORMATION
MANAGEMENT COMPANY
By:
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SCHEDULE I
A Change in Control shall be deemed to have occurred as of the first
date that (A) any individual, corporation (other than the Company),partnership,
trust, association, pool, syndicate, or any other entity or any group of persons
acting in concert becomes the beneficial owner, as that concept is defined in
Rule 13d-d promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, as the result of any one or more
securities transactions (including gifts and stock repurchases but excluding
transactions described in subdivision (C) below and transactions with
EXECUTIVE), of securities of the Company then possessing twenty-five percent
(25%) or more of the voting power for the election of directors of the Company,
or (B) "approved directors" shall constitute less than a majority of the entire
Board of Directors of the Company, with "approved directors" defined to mean the
members of the Board as of the date of this Agreement and any subsequently
elected members of such Board who shall be nominated or approved by a majority
of the approved directors on the Board prior to such election, or (C) the
Company shall have entered into a binding agreement for a Sale of the Company,
as defined below, and shall have received all required corporate, regulatory and
other approvals for consummating such transaction. For the purposes of
subdivision (C) of the preceding sentence, "Sale of the Company" shall mean (i)
any consolidation, merger or stock-for-stock exchange involving the Company or
the securities of the Company in which the holders of voting securities of the
Company immediately prior to the consummation of such transaction own, as a
group, immediately after such consummation, voting securities of the Company
(or, if the Company does not survive such transaction, voting securities of the
corporation surviving such transaction) having less than fifty percent (50%) of
the total voting power in an election of directors of the Company (or such other
surviving corporation), or (ii) any sale, lease, exchange or other transfer (in
one transaction or a series of related transactions) of all, or substantially
all, of the assets of the Company to a party which is not controlled by or under
common control with the Company.
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