EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") dated as
of September 13, 1995 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 XXXX X. XXXXXX, an individual residing at 00
Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000.
W I T N E S S E T H :
WHEREAS, the Company desires to employ the Employee
and the Employee desires to be employed by the Company and to render services
to the Company, all upon the terms and subject to the conditions contained
herein.
N O W, THEREFORE, in consideration of the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
1. Employment. Subject to and upon the terms and
conditions contained in this Agreement, the Company hereby agrees to employ
Employee and Employee agrees to be employed by the Company, for the period set
forth in Paragraph 2 hereof, to render to the Company, its affiliates and/or
subsidiaries the services described in Paragraph 3 hereof.
2. Effectiveness and Term. This Agreement shall
become effective upon the approval of the Board of Directors of the Company
(the "Board Approval"). Employee's term of employment under this Agreement
shall commence on the date of Board Approval and end three (3) years
thereafter, unless extended in writing as hereinbelow provided or earlier
terminated pursuant to the terms and conditions set forth herein (the
"Employment Term"). Such 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.
3. Duties. (a) Employee shall serve as the Senior
Vice President, Controller and Chief Accounting Officer of the Company, subject
to the authority of the Board of Directors and the President of the Company.
Employee shall perform all duties and services incident to the positions held
by him as reasonably requested, from time to time, by the Board of Directors
and/or the President of the Company including, without limitation, duties and
services related to (i) supervision of the accounting department; (ii)
f i n ancial information systems and controls; (iii) financial statement
preparation; (iv) cash management, forecasting and control; and (v) merger and
acquisition matters.
(b) Employee agrees to abide by all By-laws
and policies of the Company promulgated from time to time by the Company.
4. Exclusive Services and Best Efforts. Employee
agrees to devote his best efforts, energies and skill to the discharge of the
duties and responsibilities attributable to his position, and to this end, he
will devote his full time and attention during regular business hours to the
business and affairs of the Company, subject to the provisions of the last
sentence of subparagraph 10(b) hereof.
5. Compensation. As compensation for his services
and covenants hereunder, Employee shall receive a salary ("Salary"), payable
pursuant to the Company's normal payroll procedures in place from time to time,
at the rate of $120,000 per annum less all necessary and required federal,
state and local payroll deductions, and such bonuses as may be determined from
time to time by the Board of Directors of the Company.
6. Business Expenses. 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.
7. Employee Benefits. (a) During the Employment
Term, Employee shall 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).
(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
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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. 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. D i s closure 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 term of this
Agreement 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 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
C o mpany, 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 term of this
Agreement, 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
o r l icensee, franchisor 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 term of this Agreement.
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 10(b) or constitute a breach of Paragraph 4
hereof.
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(c) Employee will not, during the term of this
Agreement 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 10
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 10 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 reme-
dies available at law or in equity, including, but not limited to, injunctive
relief.
(f) This Paragraph 10 and Paragraphs 11, 12
and 13 hereof shall survive the expiration or termination of this Agreement for
any reason.
11. Company Property. (a) Any patents, inventions,
discoveries, applications or processes designed, devised, planned, applied,
created, discovered or invented by Employee in the 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) A l l 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.
12. 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,
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i n c l u d ing, but not limited to, the breach of the non-disclosure,
non-solicitation and non-compete clauses under Paragraph 10 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.
13. 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 or the
provision of any employment, consulting or other services.
(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 13(a)
hereof.
14. Waiver of Jury Trial and Consent to New York
Jurisdiction and Venue. In any action, suit or proceeding in any jurisdiction
brought against the Employee by the Company, or vice versa, the Employee and
the Company each waive trial by jury. The 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 the Employee and the Company. In any dispute with the Company, the
Employee will not raise, and hereby expressly waives, any objection or defense
to any such jurisdiction as an inconvenient forum.
15. 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 the 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: Xx. Xxxxxxx Xxxxx, Chief Executive Officer, with a
copy to Xxxxxx Xxxxxx Flattau & Klimpl, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxx, Esq. (or to such other address as
shall be designated hereunder by notice to the other parties and persons
r e ceiving 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,
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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 non-business day).
16. I n terpretation, 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.
17. Successors and Assigns; Assignment; Intended
Beneficiaries. Neither 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 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.
18. 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 the 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 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 the 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.
19. C o u nterparts; 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 the 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
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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. This Agreement contains the entire agreement of
t h e parties and supersedes all prior representations, agreements and
understandings, oral or otherwise, between the parties with respect to the
matters contained herein.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
AUDITS & SURVEYS WORLDWIDE, INC.
By: /s/H. Xxxxxx Xxxxxxx, Xx.
-----------------------------
Name: H. Xxxxxx Xxxxxxx, Xx.
Title: President
/s/ Xxxx X. Xxxxxx
-----------------------------
Xxxx X. Xxxxxx
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