EXHIBIT 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT effective as of the 13th day of May 2002, by and
between FIND/SVP, INC., a New York corporation, having its principal executive
offices at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter
referred to as the "Company"), and XXXXX X. XXXXX, an individual residing at 00
Xxxxxxxxxx Xxxx Xxxxx, Xxx. 00, Xxxxxxxxxx, Xxx Xxxx 00000 (hereinafter referred
to as the "Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company provides global business advisory and other
services; and
WHEREAS, the Company and Employee have entered into a letter agreement of
employment dated May 13, 2002 (the "Letter Agreement of Employment"), pursuant
to which the Employee is to be employed by the Company on a full-time basis as
its Senior Vice President and Chief Financial Officer; and
WHEREAS, the Company and the Employee desire to formalize their
relationship as hereinafter set forth;
NOW, THEREFORE, in consideration of the terms and conditions hereinafter
set forth, the parties hereto agree as follows:
1. EMPLOYMENT; POSITION; RESPONSIBILITIES.
1.1 The Company hereby employs and engages the Employee to
serve as the Senior Vice President and Chief Financial Officer of the Company.
In addition thereto, as a senior executive of the Company,
Employee shall feel free to give the Company his input on any and all corporate
developments and issues. In connection
therewith, Employee shall be a member of the Company's Operating Management
Group whose function is to propose initiatives and supplemental strategies
needed to move the Company to the next level of growth and to apply the
Company's overall policies and strategies. Employee shall report to the
Company's Chief Executive Officer.
1.2 The Employee hereby accepts said employment with the
Company on the terms and conditions herein set forth and agrees to devote his
full time, energy and skill during regular business hours exclusively to such
employment.
2. TERM OF EMPLOYMENT.
2.1 The term of employment hereunder shall commence no later
than May 13th, 2002 ("Commencement Date") and shall continue until May 13th,
2005 (the "Term"), except that Employee's employment shall terminate sooner upon
the occurrence of any of the following events:
(a) The death of the Employee;
(b) The incapacity of the Employee as defined below;
(c) An act or omission to act on the part of the
Employee which would constitute cause, as defined below, for the termination of
employment, and the giving of written notice to the Employee by the Company that
the Company elects to terminate the employment of the Employee;
(d) The Employee voluntarily leaves the employ of the
Company; or
(e) Resignation by the Employee for good reason as
defined below; or
(f) The Employee is terminated with or without cause.
2.2 The term "incapacity" as that term is used in Section
2.1(b) above and Section 2.4(a) below shall be deemed to refer to and include
the absence of the Employee from his employment by reason of mental or physical
illness, disability or incapacity for a continuous period
2
of 90 days or for a period of 120 days in any six-month period, and the Company,
at its option, elects to treat such illness, disability or incapacity as
permanent in nature.
2.3 The term "cause" as that term is used in Section 2.1(c)
above and Sections 2.4(a) and 3.6 below shall be defined as being for:
(a) the Employee's conviction in a court of law of any
crime involving money or other property or of a felony;
(b) the Employee's failure or refusal to substantially
perform his duties hereunder, other than any such failure or refusal resulting
from his incapacity, or the Employee's failure or refusal to carry out the
directives of the Company's Chief Executive Officer, or the willful taking of
any action by the Employee not directed by CEO which results in material damage
to the Company, or the material default or breach by Employee of any obligation,
representation, warranty, covenant or agreement made by Employee herein;
provided, however, that the Company shall have given Employee written notice of
any such cause for termination in accordance with Sections 2.1(c) and 7 hereof
and Employee shall have failed to cure such cause (if curable) within 15 days
after the date of such notice. If the cause for termination is cured within the
15 day period, it shall be deemed for all purposes that cause for termination
has not occurred (except that if the same or a similar event to the one
resulting in notice pursuant to this subsection 2.3(b) recurs after a cure, the
right to cure the second cause of termination, after notice with respect to the
second event shall have been given, shall expire 24 hours after the time the
notice is given); or
(c) the Employee's breach of any of the provisions of
Section 4 hereof.
2.4 The term "good reason" as that term is used in Section
2.1(e) above and Section 3.6 below shall be defined as the following:
3
(a) the material diminution of Employee's position or
responsibilities and status with the Company;
(b) a relocation of the Company's principal offices and
place of Employee's employment further than 50 miles from the Employee's
principal residence;
(c) a breach by the Company of any of its compensation
obligations under this Agreement; or
(d) a change of control of the Company, which for
purposes of this Agreement shall be defined to occur upon the acquisition by any
person, including a group (as defined in Section 13(d) of the Securities
Exchange Act of 1934, as amended), other than the Company or any of its
subsidiaries or any employee benefit plan maintained by the Company or any of
its Subsidiaries, of beneficial ownership of 30% or more of the outstanding
stock of the Company entitled to vote.
3. COMPENSATION: RELATED MATTERS.
3.1 (a) Employee shall receive a salary for his
services hereunder at the rate of $160,000 per annum, payable in accordance with
the Company's normal payroll procedure for executive employees.
(b) In addition to the Employee's salary, the
Employee will be eligible to receive a bonus as part of the OMG Bonus Plan. Such
bonus will be determined at the discretion of the Chief Executive Officer.
(c) On an annual basis beginning January 1, 2003,
the Company shall review the Employee's performance and other relevant factors
relating to salary and bonus. If the Employee is employed by the Company as of
January 1, 2003, he will receive a minimum salary
4
increase of 10%. Any further increase in salary shall be at the discretion of
the Company's Chief Executive Officer.
3.2 The Company shall reimburse the Employee for all reasonable
expenses incurred by him in connection with the business of the Company,
provided Employee shall submit proper supporting documentation for such
expenses.
3.3 Employee shall be eligible, to the extent he qualifies, for
participation in any health or other group insurance plan of the Company and
shall also be entitled to participate in any employee benefit programs of the
Company for its key employees or for its employees generally.
3.4 Employee shall be entitled to a four (4) week paid vacation
annually, to be taken at such times as are consistent with the needs of the
Company and the convenience of the Employee, 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.
3.5 (a) In the event the Employee's employment by the
Company is terminated for "cause" pursuant to Section 2.1(c) hereof, or by
virtue of Section 2.1(d) hereof because the Employee voluntarily leaves the
employ of the Company, the Employee shall be entitled to (i) the compensation
provided for by Section 3.1 (a) hereof, and (ii) compensation accrued pursuant
to Section 3.1 (b) hereof, in each case only up until the date of termination of
his employment.
(b) In the event the Employee's employment by the
Company is terminated for any reason other than cause or by virtue of Section
2.1(d) hereof because the Employee voluntarily leaves the employ of the Company,
the Employee (or his estate in the event such termination is due to the death of
the Employee or the Employee dies subsequent to such termination) shall be
entitled to receive (i) the compensation provided for in Section 3.1(a) hereof
5
for a period of six (6) months from the date of termination, and (ii) any monies
due and owing to the Employee pursuant to Section 3.1 (b) hereof.
3.6 GRANT OF STOCK OPTIONS. Effective as of the date of the
Execution of this Employment Agreement (the "Execution Date"), the Company has
granted to the Employee a ten-year Incentive Stock Option (the "Option") to
purchase seventy-five thousand (75,000) shares of the Company's common stock,
par value $.0001 per share ("Common Stock"), at the fair market value thereof,
pursuant to, and in accordance with, the terms of the Company's 1996 Stock
Option Plan. The Option shall vest to the extent of fifteen thousand (15,000)
shares on the Execution Date and the balance ratably at the end of each of the
first three years of Employee's employment hereunder by the Company; provided,
however, that in the event of termination of the Employee's employment by the
Company without cause, as defined in Section 2.3 above, in addition to that
portion of the Option that has vested on the date of such termination, the
portion of the Option that would vest within three (3) months of the date of
such termination shall vest as of the date of such termination.
4. RESTRICTIVE COVENANTS.
4.1 Employee acknowledges that the Company is in the
information services business and that the Employee, as an Executive Officer of
the Company, will be familiar in detail with the activities of the Company and
will participate in formulating the activities; that he will continue to be
familiar in detail with the activities and future plans of the Company as they
continue to develop during his employment; and that his position will give him a
thorough knowledge of the Company's customers, suppliers and servicing and
marketing operations and will place him in close and continuous contact with the
Company's customers and suppliers. Employee further acknowledges that if he were
to compete with the Company by organizing, directing, advising,
6
assisting or becoming an employee of any competing business entity, as defined
below, he could do great harm to the Company and would materially diminish or
destroy the value to the Company of its customer and supplier relationships and
servicing and marketing arrangements.
Accordingly, during the Term of his employment by the Company and
for a period of one (1) year immediately following the termination thereof (the
Term of employment and the subsequent one (1) year period being collectively
referred to as the "Covenant Period"), unless otherwise consented to by the
Company in writing, Employee shall not engage as founder, principal, partner,
executive officer or owner of any competing business entity, as defined below;
provided, that the Employee shall be permitted during the Covenant Period to own
less than a 5% interest as a stockholder (and in no other capacity) in a company
which is listed on any national stock exchange even though it may be in
competition with the Company.
As used in this Agreement, the term "competing business entity"
shall mean any corporation, firm, partnership, association, trust, group, joint
venture, or individual proprietorship in a rapid response information-on-demand,
business research business which is directly competitive with the Company and
for which the average charge per inquiry is less than $1,000.
4.2 Except during the term of his employment as part of his
duties herein, Employee shall not, during the Covenant Period or thereafter,
disclose to any business entity any confidential information regarding the
customers, suppliers, marketing arrangements or methods of operation of the
Company, or any other confidential information of the Company, except that
nothing contained in this sentence shall be construed to prevent Employee from
using any general technical know-how and information that is in the public
domain or of a nature known generally throughout the industry.
7
4.3 Employee shall, during the Term of his employment, promptly
reveal to the Company all matters coming to Employee's attention pertaining to
the business or interests of the Company.
4.4 Unless otherwise consented to by the Company in writing,
Employee shall not, (a) for a period of two (2) years immediately following the
termination of Employee's employment, knowingly hire or solicit for hiring, on
his own behalf or on behalf of any business entity, any key employee of the
Company, and (b) for a period of one (1) year following such termination
knowingly directly solicit, contact, do business with, call upon or communicate
with any customer, former customer or prospective customer (defined as any
entity for which the Company provided a written proposal within 6 months of the
termination of the Executive's employment) of the Company for the purpose of
providing rapid response information-on-demand, business research services, or
any other business engaged in by the Company at the time of the Employee's
separation from employment.
4.5 Employee shall not, during his Term of employment or upon
termination thereof, remove from the offices of the Company, any studies,
samples, reports, plans, contracts, publications, customer lists or other
similar items nor copies or facsimiles thereof, except as the same may relate to
the performance of Employee's duties hereunder, or as otherwise authorized by
the Company.
5. RESTRICTIVE COVENANTS SEVERABLE.
The provisions of Section 4 of this Agreement contain a number of
separate and divisible covenants, all of which are included respectively in said
Section for the purpose of brevity only, and each of which shall be construed as
a separate covenant and shall be separately enforceable, and if any court of
competent jurisdiction shall determine that any part of said Section,
8
or any part of any sentence or paragraph thereof, or any such separate covenant
therein contained, is unduly restrictive or void, the remaining part or parts,
or the other separate covenants, shall be considered valid and enforceable,
notwithstanding the voidance of such part or separate covenant.
6. REMEDIES.
Employee acknowledges that it will be impossible to measure in
money the damage to the Company of a breach of any of the provisions of Section
4; that any such breach will cause irreparable injury to the Company and that
the Company, in addition to any other rights and remedies existing at law or
equity or by statute, shall be entitled to an injunction or restraining order
restraining Employee from doing or continuing to do any such acts and any other
violations or threatened violations of Section 4, and Employee hereby consents
to the issuance of any such injunction or restraining order without bond or
security.
7. NOTICES.
All notices required or permitted to be given by any party
hereunder shall be in writing and delivered in person or mailed by registered or
certified mail, return receipt requested, to the other parties addressed as
follows:
(a) If to the Employee to 00 Xxxxxxxxxx Xxxx Xxxxx, Xxx. 00,
Xxxxxxxxxx, Xxx Xxxx 00000;
(b) If to the Company to 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000; or to such other addresses as the parties may direct by notice
given pursuant hereto. Any notice mailed as provided above shall be deemed
completed on the date of receipt.
8. ENTIRE AGREEMENT.
The provisions hereof constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede, replace and
terminate all existing oral or written
9
agreements concerning such subject matter. No modification, supplement or
discharge hereof shall be effective unless in writing and executed by or on
behalf of the parties hereto.
9. WAIVER.
No waiver by any party of any condition, term or provision of this
Agreement shall be deemed to be a waiver of a preceding or succeeding breach of
the same or any other condition, term or provision hereof.
10. ASSIGNABILITY.
This Agreement, and its rights and obligations may not be assigned
by Employee. This Agreement shall be binding upon the Company and its successors
and assigns.
11. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
12. ARBITRATION.
Any dispute or controversy arising among or between the parties
hereto regarding any of the terms of this Agreement or the breach hereof, the
determination of which is not otherwise provided for herein, on the written
demand of any of the parties hereto shall be submitted to and determined by
arbitration held in the City of New York in accordance with the rules then
obtaining of the American Arbitration Association. Any award or decision made by
the arbitrators shall be conclusive in the absence of fraud, and judgment upon
said award or decision may be entered in any court having jurisdiction thereof.
10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
FIND/SVP, INC.
By:
---------------------------------- ----------------------------------
XXXXX X. XXXXX XXXXX X. XXXXX
CHIEF EXECUTIVE OFFICER
11
