Exhibit 99(c)(16)
EMPLOYMENT AGREEMENT
This Employment Agreement dated as of January 19, 1999, between Audits
& Surveys Worldwide, Inc., a Delaware corporation having an address at 000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), and H. Xxxxxx
Xxxxxxx, Xx., an individual residing at 00 Xxxxx Xxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000 ("Employee").
W I T N E S S E T H :
WHEREAS, Employee has been employed by the Company for more than 30
years; and
WHEREAS, the Company, United News & Media Group Limited ("Group Ltd.")
and United Information Acquisition Corp. ("Acquisition") have entered into that
certain Agreement and Plan of Merger dated as of the date hereof (the "Merger
Agreement"), pursuant to which Acquisition will make a cash tender offer (the
"Offer") to acquire all outstanding shares of common stock, $.01 par value, of
the Company (the "Common Stock"), and, following the consummation of the Offer,
Acquisition will merge with and into the Company, in each case, subject to the
terms and conditions in the Merger Agreement; and
WHEREAS, subject to and upon the purchase by Acquisition of more than
50% of the Common Stock pursuant to the Offer, the Company and Employee desire
to terminate that certain Employment Agreement dated March 24, 1995, as amended,
between the Company and Employee and, simultaneously therewith, the Company,
United and Employee desire to set forth terms pursuant to which Employee will
render services to the Company.
NOW, THEREFORE, in consideration of the mutual covenants and agree
ments contained herein, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Employment Services. Subject to and upon the terms and
conditions contained in this Agreement, the Company hereby agrees to continue to
employ Employee, and Employee agrees to continue in the employ of the Company,
during the period set forth in Paragraph 2 hereof to render to the Company the
services described in Paragraph 3 hereof.
2. Term. Subject to the terms hereof, Employee's term of employment
under this Agreement shall begin on the date Acquisition (or any of its
affiliates) acquires more than 50% of the Common Stock pursuant to the Offer and
shall continue for a period through and including March 24, 2002, unless
extended as hereinbelow provided or earlier terminated pursuant to the terms and
conditions set forth herein (the "Employment Term"). The Employment Term shall
be extended for successive one (1) year terms unless either party hereto gives
written notice to the other of its desire to terminate this Agreement at least
ninety (90) days prior to the commencement of any such
extension. The Company and Employee hereby agree that if Acquisition (or any of
its affiliates) does not acquire more than 50% of the Common Stock pursuant to
the Offer, this Agreement shall be null and void ab initio. In such case, the
Company and Employee hereby agree that the Company will continue to employ
Employee and Employee will continue to be employed by the Company pursuant to
the terms of that certain Employment Agreement dated March 24, 1995 between
Employee and the Company, as amended by Agreements dated March 25, 1997 and June
30, 1997 between Employee and the Company.
3. Duties.
(a) The Company hereby retains Employee to perform, and
Employee agrees to render to the Company on the terms herein set forth, such
consultative and advisory services as may from time to time be mutually agreed
upon by Employee and the Board of Directors or officers of the Company. In each
case, such consultative and advisory services shall be limited to matters
involving finances of the Company, prospective mergers and acquisitions
involving the Company, major consultations for Company clients and joint
ventures involving the Company. If agreed to by Employee, such services may
also be rendered to affiliates of the Company. No time period or date of
completion for services to be rendered by Employee shall be effective against
Employee unless mutually agreed to by the Company and Employee.
(b) It is expressly understood and agreed that Employee
shall devote only so much time, and shall consult with and advise the officers
and directors of the Company, only to such extent and at such times as Employee
shall determine are required. Notwithstanding anything in this Agreement to the
contrary (except as otherwise provided in Paragraph 11 hereof), Employee shall
be free to devote the balance of his time and attention to such other
non-competitive business activities and enterprises, as he may see fit.
4. Compensation. As compensation for his services and covenants
hereunder, Employee shall receive a salary ("Salary"), payable in equal
bi-monthly installments, at the rate of $350,000 per annum, and such bonuses as
may be determined from time to time by the Board of Directors of the Company.
5. Location of Services. Employee and the Company hereby agree that
Employee shall, at his own expense, move his office (including any necessary
furniture, equipment and files) from its present location at 650 Avenue of the
Americas, Xxx Xxxx, Xxx Xxxx 00000 and establish an office anywhere in Fairfield
County, Connecticut (the "Connecticut Office") for the performance of the duties
and services described herein. Such move shall be completed, at the discretion
of Employee, no earlier than February 15, 1999 and no later than March 31, 1999
(the date the move is complete is referred to herein as the "Move Date").
Commencing on the Move Date and continuing for the Employment Term, unless
otherwise mutually agreed to by Employee and the Company, the duties and
services to be performed herein shall be performed at the Connecticut Office.
Commencing on the Move Date and continuing for the Employment Term, the Company
shall provide Employee, in addition to the payments otherwise required under
this Agreement, Three
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Thousand Dollars ($3,000) per calendar month payable on the first day of each
calendar month (except that the first payment shall be made on the Move Date)
for the purpose of defraying the cost of maintaining the Connecticut Office
(including the cost of secretarial and administrative services).
6. Business Expenses. Prior to the Move Date, Employee shall be
reimbursed for, and entitled to advances (subject to repayment to the Company if
not actually incurred by Employee) with respect to, only those business expenses
incurred by him (a) which are reasonable and necessary for Employee to perform
his duties under this Agreement in accordance with policies established from
time to time by the Company, and (b) for which Employee has submitted vouchers
and/or receipts. Commencing on the Move Date and continuing for the Employment
Term, in addition to amounts reimbursed under Paragraph 5 hereof, Employee shall
be reimbursed for, and entitled to advances (subject to repayment to the Company
if not actually incurred by Employee) with respect to, only those business
expenses incurred at the request of the Board of Directors or officers of the
Company.
7. Participation in Benefit Plans.
(a) During the Employment Term, the Company shall continue to
provide Employee with the insurance, disability, health and medical benefits and
retirement plans or programs currently provided to Employee, including
medical/health insurance for Employee and his family, provided that Employee
shall be required to comply with the conditions attendant to coverage by such
plans and shall comply with and be entitled to benefits only in accordance with
the terms and conditions of such plans. During the Employment Term, Employee
shall also be entitled to such insurance, disability and health and medical
benefits and be entitled to participate in such retirement plans or programs as
are from time to time generally made available to executive employees of the
Company pursuant to the policies of the Company; provided that Employee shall be
required to comply with the conditions attendant to coverage by such plans and
shall comply with and be entitled to benefits only in accordance with the terms
and conditions of such plans. The Company may withhold from any benefits
payable to Employee all federal, state, local and other taxes and amounts as
shall be permitted or required to be withheld pursuant to any applicable law,
rule or regulation.
(b) Employee shall be entitled to vacation in accordance with
the Company's policy in effect for executive staff, which shall be taken at such
time or times as shall be mutually agreed upon with the Company.
8. Death and Disability.
(a) The Employment Term shall terminate on the date of
Employee's death, in which event Employee's Salary, reimbursable expenses and
benefits owing to Employee through the date of Employee's death shall be paid to
his estate. Employee's estate will not be entitled to any other compensation
upon termination of this Agreement pursuant to this subparagraph 8(a).
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(b) If, during the Employment Term, in the opinion of a duly
licensed physician selected by the Company, Employee, because of physical or
mental illness or incapacity, shall become substantially unable to perform the
duties and services required of him under this Agreement for a period, of 120
consecutive days or 180 days in the aggregate during any nine-month period, the
Company may, upon at least ten (10) days' prior written notice given at any time
after the expiration of such 120 or 180-day period, as the case may be, to
Employee of its intention to do so, terminate his employment as of such date as
may be set forth in the notice. In case of such termination, Employee shall be
entitled to receive his Salary, reimbursable expenses and benefits owing to
Employee through the date of termination. Employee will not be entitled to any
other compensation upon termination of his employment pursuant to this
subparagraph 8(b).
9. Termination for Cause. The Company may terminate the employment
of Employee for cause, as such term is interpreted by the courts of New York.
Upon such termination, the Company shall be released from any and all further
obligations under this Agreement, except that the Company shall be obligated to
pay Employee his Salary, reimbursable expenses and benefits owing to Employee
through the day on which Employee is terminated. Employee will not be entitled
to any other compensation upon termination of this Agreement pursuant to this
Paragraph 9.
10. Termination Other than for Cause.
(a) The Company may terminate the employment of Employee with or
without cause and Employee may terminate his employment by the Company with or
without "Good Reason" (as defined in subparagraph 10(c) hereof).
(b) In the event the Company terminates the employment of
Employee with or without cause and in the event Employee terminates his
employment with or without Good Reason, the Company shall pay to Employee, in a
single, lump-sum payment, within thirty (30) days after the Company or Employee
has given the other notice of termination, an amount equal to Employee's Salary,
reimbursable expenses and benefits owing to Employee through the date on which
Employee's employment is terminated. In addition, in the event of termination
by the Company without cause or by Employee with Good Reason, Employee shall
receive the following: (i) an amount equal to the product of Employee's annual
Salary then in effect (without regard to any purported or attempted reduction
thereof by the Company) multiplied by the number of years (including any parts
thereof) remaining in the Payment Period (as defined below) payable at the same
times as the Salary would have been paid to Employee during the Payment Period
if Employee's employment was not so terminated and (ii) any benefits which
Employee would have been entitled to receive had his employment continued during
the balance of the Employment Term provided that the provisions of the plans
under which such benefits are offered then permit the same to be offered to
Employee.
(c) For purposes of this Agreement, the term "Payment Period"
shall be the period commencing on the date that Employee's employment is
terminated pursuant to this
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Xxxxxxxxx 10 and continuing until the first anniversary of such termination or
the remaining term of this Agreement, whichever is greater. For purposes of
this Agreement, the term "Good Reason" shall mean the assignment to Employee of
duties which are inconsistent with Paragraph 3 of this Agreement or a material
breach by the Company of this Agreement which has not been cured within 10 days
after written notice thereof has been given to the Company by Employee or, if
such breach is not curable within such 10 day period, the Company has failed to
take action to commence the cure thereof within such 10 day period or has failed
thereafter to continue to take such action in an expeditious manner.
(d) Notwithstanding anything in this Agreement to the contrary,
if any of the payments provided for in this Agreement, together with any other
payments which Employee has the right to receive from the Company or any
corporation which is a member of an "affiliated group" (as defined in Section
1504(a) of the Internal Revenue Code of 1986, as amended (the "Code"), without
regard to Section 1504(b) of the Code) of which the Company is a member, would
constitute a "parachute payment" (as defined in Section 280G(b)(2) of the Code),
the payments pursuant to this Agreement shall be reduced to the largest amount
as will result in no portion of such payments being subject to the excise tax
imposed by Section 4999 of the Code. The determination as to whether any
reduction in the payments under this Agreement pursuant to this subparagraph
10(d) is necessary shall be made by the independent public accountants of the
Company at the time and such determination shall be conclusive and binding on
the Company and Employee with respect to their respective treatment of such
payments for tax reporting purposes.
(e) Any amounts payable to Employee under this Paragraph 10
shall be reduced by any compensation received by Employee for services rendered
during the period commencing one year after the effective date of the
termination of his employment and ending on the last day of the Payment Period
by virtue of his being hired on a full-time basis by another employer, without
regard to the actual date on which such compensation is received by Employee.
11. Disclosure of Information and Restrictive Covenant. Employee
acknowledges that, by his employment, he has been and will be in a confidential
relationship with the Company and will have access to confidential information
and trade secrets of the Company, its subsidiaries and affiliates. Confidential
information and trade secrets include, but are not limited to, customer,
supplier and client lists, panels and interviewers, price lists, marketing,
strategies and procedures, operational techniques, business plans and systems,
quality control procedures and systems, special projects and survey and market
research, including projects, research and reports for any entity or client, and
any other records, files, drawings, discoveries, applications, data and
information concerning the business of the Company and its customers and clients
which are not in the public domain. Employee agrees that in consideration of
the execution of this Agreement by the Company:
(a) Employee will not, during the Employment Term or at any time
thereafter, use, or disclose to any third party, trade secrets or confidential
information of the Company, including, but not limited to, confidential
information or trade secrets belonging or relating to the Company, its
subsidiaries, affiliates, customers and clients or proprietary procedures
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of the Company, its subsidiaries, affiliates, customers and clients.
Proprietary procedures shall include, but shall not be limited to, all
information which is known or intended to be known only by employees of the
Company, its subsidiaries and affiliates or others in a confidential
relationship with the Company or its subsidiaries and affiliates which relates
to business matters.
(b) Employee will not, during the Employment Term and for a
period of one year thereafter, directly or indirectly, under any circumstance
other than at the direction and for the benefit of the Company, engage in or
participate in any business activity, including, but not limited to, acting as a
director, officer, employee, agent, independent contractor, partner, consultant,
licensor or licensee, franchiser or franchisee, proprietor, syndicate member,
shareholder or creditor or with a person having any other relationship with any
other business, company, firm, occupation or business activity, that is,
directly or indirectly, competitive with any business carried on by the Company
or any of its subsidiaries or affiliates during the Employment Term. The
ownership by Employee of 3% or less of the issued and outstanding shares of a
class of securities which is traded on a national securities exchange or in the
over-the-counter market, shall not cause Employee to be deemed a shareholder
under this subparagraph 11(b).
(c) Employee will not, during the Employment Term and for a
period of three (3) years thereafter, on his behalf or on behalf of any other
business enterprise, directly or indirectly, under any circumstance other than
at the direction and for the benefit of the Company, solicit or induce any
creditor, customer, client, supplier, officer, employee or agent of the Company
or any of its subsidiaries or affiliates to sever his or its relationship with
or leave the employ of any of such entities.
(d) Nothing contained in this Paragraph 11 shall be construed as
prohibiting Employee from being engaged by a client or customer of the Company
upon his termination of employment by the Company.
(e) It is expressly agreed by Employee that the nature and scope
of each of the provisions set forth above in this Paragraph 11 are reasonable
and necessary. If, for any reason, any aspect of the above provisions as it
applies to Employee is determined by a court of competent jurisdiction to be
unreasonable or unenforceable, the provisions shall only be modified to the
minimum extent required to make the provisions reasonable and/or enforceable, as
the case may be. Employee acknowledges and agrees that his services are of
unique character and expressly grants to the Company or any subsidiary or
affiliate of the Company or any successor of any of them, the right to enforce
the above provisions through the use of all remedies available at law or in
equity, including, but not limited to, injunctive relief.
(f) This Paragraph 11 and Paragraphs 12, 13 and 14 hereof shall
survive the expiration or termination of this Agreement for any reason.
12. Company Property. (a) Any patents, inventions, discoveries,
applications or processes designed, devised, planned, applied, created,
discovered or invented by Employee in the
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course of Employee's employment under this Agreement and which pertain to any
aspect of the Company's or its subsidiaries, or affiliates' business shall be
the sole and absolute property of the Company, and Employee shall promptly
report the same to the Company and promptly execute any and all documents
reasonably requested to assure the Company the full and complete ownership
thereof.
(b) All records, files, lists, including computer generated
lists, drawings, documents, equipment and similar items relating to the
Company's business which Employee shall prepare or receive from the Company
shall remain the Company's sole and exclusive property. Upon termination of
this Agreement, Employee shall promptly return to the Company all property of
the Company in his possession. Employee further represents that he will not
copy or cause to be copied, print out or cause to be printed out any software,
documents or other materials originating with or belonging to the Company.
Employee additionally represents that, upon termination of his employment with
the Company, he will not retain in his possession any such software, documents
or other materials.
13. Remedy. It is mutually understood and agreed that Employee's
services are special, unique, unusual, extraordinary and of an intellectual
character giving them a peculiar value, the loss of which cannot be reasonably
or adequately compensated in damages in an action at law. Accordingly, in the
event of any breach of this Agreement by Employee, including, but not limited
to, the breach of the nondisclosure, non-solicitation and non-compete clauses
under Paragraph 11 hereof, the Company shall be entitled to equitable relief by
way of injunction or otherwise in addition to any damages which the Company may
be entitled to recover. In addition, the Company shall be entitled to
reimbursement from Employee, upon request, of any and all reasonable attorneys'
fees and expenses incurred by it in enforcing any term or provision of this
Agreement.
14. Representations and Warranties of Employee. (a) In order to
induce the Company to enter into this Agreement, Employee hereby represents and
warrants to the Company as follows: (i) Employee has the legal capacity and
unrestricted right to execute and deliver this Agreement and to perform all of
his obligations hereunder; (ii) the execution and delivery of this Agreement by
Employee and the performance of his obligations hereunder will not violate or be
in conflict with any fiduciary or other duty, instrument, agreement, document,
arrangement or other understanding to which Employee is a party or by which he
is or may be bound or subject; and (iii) Employee is not a party to any
instrument, agreement, document, arrangement or other understanding with any
person (other than the Company) requiring or restricting the use or disclosure
of any confidential information.
(b) Employee hereby agrees to indemnify and hold harmless the
Company from and against any and all losses, costs, damages and expenses
(including, without limitation, its reasonable attorneys, fees) incurred or
suffered by the Company resulting from any breach by Employee of any of his
representations or warranties set forth in subparagraph 14(a) hereof.
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15. Waiver of Jury Trial and Consent to New York Jurisdiction and
Venue. In any action, suit or proceeding in any jurisdiction brought against
Employee by the Company, or vice versa, Employee and the Company each waive
trial by jury. Employee hereby consents and agrees that the Supreme Court of
the State of New York for the County of New York and the United States District
Court for the Southern District of New York each shall have personal
jurisdiction and proper venue with respect to any dispute between Employee and
the Company. In any dispute with the Company, Employee will not raise, and
hereby expressly waives, any objection or defense to any such jurisdiction as an
inconvenient forum.
16. Notice. Except as otherwise expressly provided, any notice,
request, demand or other communication permitted or required to be given under
this Agreement shall be in writing, shall be sent by one of the following means
to Employee at his address set forth on the first page of this Agreement and to
the Company at its address set forth on the first page of this Agreement,
Attention: Chief Executive Officer, (or to such other address as shall be
designated hereunder by notice to the other parties and persons receiving
copies, effective upon actual receipt) and shall be deemed conclusively to have
been given: (i) on the first business day following the day timely deposited
with Federal Express (or other equivalent national overnight courier) or United
States Express Mail, with the cost of delivery prepaid or for the account of the
sender; (ii) on the fifth business day following the day duly sent by certified
or registered United States mail, postage prepaid and return receipt requested;
or (iii) when otherwise actually received by the addressee on a business day (or
on the next business day if received after the close of normal business hours or
on any nonbusiness day).
17. Interpretation, Headings. The parties acknowledge and agree that
the terms and provisions of this Agreement have been negotiated, shall be
construed fairly as to all parties hereto, and shall not be construed in favor
of or against any party. The section headings contained in this Agreement are
for reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
18. Successors and Assign; Assignment; Intended Beneficiaries. Nei
ther this Agreement, nor any of Employee's rights, powers, duties or obligations
hereunder, may be assigned by Employee. This Agreement shall be binding upon
and inure to the benefit of Employee and his heirs and legal representatives and
the Company and its successors. Successors of the Company shall include,
without limitation, any corporation or corporations acquiring, directly or
indirectly, all or substantially all of the capital stock or assets of the
Company, whether by merger, consolidation, purchase, lease or otherwise, and
such successor shall thereafter be deemed "the Company" for the purpose hereof.
19. No Waiver by Action, Cumulative Rights, Etc. Any waiver or
consent from the Company respecting any term or provision of this Agreement or
any other aspect of Employee's conduct or employment shall be effective only in
the specific instance and for the specific purpose for which given and shall not
be deemed, regardless of frequency given, to be a further or continuing waiver
or consent. The failure or delay of the Company at any time or times to require
performance
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of, or to exercise any of its powers, rights or remedies with respect to any
term or provision of this Agreement or any other aspect of Employee's conduct or
employment in no manner (except as otherwise expressly provided herein) shall
affect the Company's right at a later time to enforce any such term or
provision.
20. Counterparts: New York Governing Law; Amendments, Entire
Agreement. This Agreement may be executed in two counterpart copies, each of
which may be executed by one of the parties hereto, but all of which, when taken
together, shall constitute a single agreement binding upon all of the parties
hereto. This Agreement and all other aspects of Employee's employment shall be
governed by and construed in accordance with the applicable laws pertaining in
the State of New York (other than those that would defer to the substantive laws
of another jurisdiction). Each and every modification and amendment of this
Agreement shall be in writing and signed by the parties hereto, and any waiver
of, or consent to any departure from, any term or provision of this Agreement
shall be in writing and signed by each affected party hereto. Subject to
Paragraph 2 hereof, this Agreement contains the entire agreement of the parties
and supersedes all prior representations, agreements and understandings, oral or
otherwise, between the parties with respect to the matters contained herein,
including but not limited to any and all rights which the Company or Employee
may have under that certain Employment Agreement dated March 24, 1995 between
Employee and the Company, as amended by Agreements dated March 25, 1997 and June
30, 1997 between Employee and the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
AUDITS & SURVEYS WORLDWIDE, INC.
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: CEO
/s/ H. Xxxxxx Xxxxxxx, Xx.
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H. Xxxxxx Xxxxxxx, Xx.
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