Exhibit 10.3
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
on August 1, 1997 by and between BAIGlobal, Inc. a New York corporation
(hereinafter "BAIGlobal") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (hereinafter "Executive").
W I T N E S S E T H:
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WHEREAS, Executive is currently employed as the President-Worldwide
Services Unit of BAIGlobal and BAIGlobal desires to continue to employ Executive
on terms which will encourage Executive's attention and dedication to BAIGlobal
as one of its key employees; and
WHEREAS, Executive is willing to commit herself to continue to serve
BAIGlobal on the terms and conditions set forth below; and
WHEREAS, in order to effect the foregoing, BAIGlobal and Executive
wish to enter in an employment agreement on the terms and conditions set forth
below.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties do hereby agree as follows:
1. Employment. BAIGlobal employs Executive as its Executive Vice
President and President-Worldwide Services Unit, and Executive accepts such
employment and agrees to continue to serve BAIGlobal, in each case upon and
subject to the terms and conditions set forth herein, which terms and conditions
shall supersede any other oral or written employment agreement(s) entered into
by and between BAIGlobal and Executive prior to the date of this Agreement.
2. Term. BAIGlobal agrees to employ Executive as provided in
Section 1 hereof for an initial term of employment commencing on the date hereof
through December 31, 2000 (the "Initial Term") and continuing thereafter unless
and until terminated in accordance with the provisions of Section 7 hereof (the
"Term of Employment").
3. Duties. BAIGlobal hereby employs, engages, and hires Executive
in the capacity set forth in Section 1 hereof, and Executive hereby accepts and
agrees to such hiring, engagement and employment, subject to the general
supervision of, and pursuant to the orders, advice and direction of, BAIGlobal's
Board of Directors. Executive shall perform such duties as are customarily
performed by one holding such position in other, same, or similar businesses or
enterprises as that engaged in by BAIGlobal, and shall also additionally render
such other and unrelated services and duties consistent with her executive
officer status in Section 1 hereof as may be assigned to her from time to time
by the Board of Directors of BAIGlobal, subject to the provisions of Section
2(e)(v) of the Stock Purchase Agreement (as defined in Section 4(b) hereof).
Executive shall devote all of her working time and efforts to the business and
affairs of BAIGlobal, provided that nothing herein shall prohibit Executive from
(a) engaging in personal investment activities (subject to the restrictions set
forth in Section 10(a) hereof), (b) serving as an executor, trustee or in
another fiduciary capacity, or (c) engaging in religious, charitable or other
community or non-profit activities, in each case, so long as such permitted
activities do not interfere with the performance of Executive's duties and
responsibilities under this Agreement.
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During the Term of Employment, Executive shall also serve as a
director of BAIGlobal.
Executive shall perform such services wherever the Board of Directors
of BAIGlobal shall in good faith direct; however, Executive shall not be
required to remove her permanent residency from the Rye Brook, New York area or
be absent from such area for such extended periods as to make her continued
residence in such area not practicable.
4. Compensation. In consideration of the performance of her duties
under this Agreement, Executive shall be entitled to the following:
(a) Base Salary. BAIGlobal agrees to pay Executive a base salary
("Base Salary") of $165,000 per year, payable in bi-weekly installments in
accordance with BAIGlobal's customary payroll practices, subject to all
payroll deductions for FICA, federal, state and local taxes, as required by
law.
(b) Performance Bonus. For each of the bonus periods listed below,
BAIGlobal agrees to pay Executive the bonus amount indicated below for such
period in the event that BAIGlobal's EBIT (as defined below) for such bonus
period equals or exceeds the EBIT Target listed below such period.
Bonus Period EBIT Target Bonus Amount
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The date hereof to
December 31, 1997 $ 710,500 $ 5,000
1998 $1,641,000 $10,000
1999 $1,888,000 $10,000
For purposes of this Agreement, BAIGlobal's EBIT shall be calculated in the
manner set forth in Section 2(e)(ii) of the Stock Purchase Agreement dated
July 31, 1997 by and among Market Facts, Inc. ("MFI"); ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
("Knight"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇") and Executive; and BAIGlobal (the
"Stock Purchase Agreement").
The performance bonus, if any, will be deemed to be earned by Executive as
of the end of each bonus period, provided Executive is employed by
BAIGlobal on each such date and will be paid by BAIGlobal to Executive no
later than six (6) months after the end of each such bonus period.
(c) Special Bonus. Subject to the limitations set forth below,
BAIGlobal agrees to pay Knight, ▇▇▇▇▇▇▇▇ and Executive a special bonus
("Special Bonus") in the aggregate equal to (i) fifty percent (50%)
multiplied by (ii) the aggregate amount of BAIGlobal's EBIT (as defined
above) during the period beginning on the date hereof and ending on
December 31, 1999 in excess of $4,239,500.
Executive's share of the Special Bonus will be deemed earned by Executive
as of December 31, 1999. Executive will also be entitled to receive her
share of the Special Bonus in the event that her employment by BAIGlobal is
terminated prior to such date (i) by BAIGlobal without cause pursuant to
Section 7(a)(i) hereof, or (ii) by reason of Executive's death or
Disability as provided in Sections 7(a)(iii) and 7(a)(iv) hereof.
Notwithstanding the above, Executive shall not be eligible to receive her
share of the Special Bonus in the event that her employment with BAIGlobal
is
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terminated by BAIGlobal for Cause (as defined in Section 7(a)(v) hereof) or
Executive voluntarily terminates her employment with BAIGlobal on or prior
to December 31, 1999 pursuant to Section 7(a)(ii) hereof.
The Special Bonus shall be paid to Knight, ▇▇▇▇▇▇▇▇ and Executive in the
following percentages: Knight forty-five percent (45%), ▇▇▇▇▇▇▇▇ thirty
percent (30%) and Executive twenty-five percent (25%), provided that in the
event one or more of these individuals is not eligible to receive the
Special Bonus as provided above, the full amount of the Special Bonus will
be paid to those individuals entitled to receive their full share of the
Special Bonus in proportion to their initial share of the Special Bonus, as
indicated above. If none of Knight, Skolnick, nor Executive is eligible to
receive the Special Bonus, no amount will be paid. The portion of the
Special Bonus, if any, payable to Executive shall be paid by BAIGlobal to
Executive no later than June 30, 2000.
In the event that BAIGlobal proposes to sell or otherwise transfer all or
substantially all of its assets to an unaffiliated third party prior to the
time when the Special Bonus, if any, has been paid or the amount of the
Special Bonus, if any, is finally determined, then such transaction shall
be conditioned upon such third party's express assumption of BAIGlobal's
obligations under this Section 4(c).
(d) Other Bonus. Based upon MFI's performance and Executive's
individual performance and at the sole discretion of MFI's Board of
Directors, Executive shall be eligible for a bonus for the year ended
December 31, 2000, consistent with the provisions and goals set by MFI's
Board of Directors for such bonus year, and shall be entitled to
participate in other stock and bonus compensation programs and arrangements
of MFI for such year, in each case, on a basis comparable to that available
to other officers of MFI with similar responsibilities and duties.
5. Expenses. BAIGlobal shall reimburse Executive for all reasonable
and necessary business expenses (including customary expenditures for travel,
meals, hotel accommodations, and the like) incurred in the course of her
employment hereunder, provided that such expenses are incurred and accounted for
in accordance with the policies and procedures established from time to time by
MFI for the reimbursement of business expenses.
6. Executive Benefits. Executive shall be entitled to participate
in all employee benefit plans maintained by BAIGlobal in accordance with the
terms of those programs, and this Agreement is not intended to be in lieu of any
rights, benefits and privileges to which Executive may be entitled under any
such programs as may now be in effect or may hereafter be adopted, provided that
at all times during the Term of Employment, Executive shall be entitled to
receive the benefits set forth on Schedule A hereto.
7. Termination.
(a) Basis. Executive's employment may be terminated hereunder by
BAIGlobal or Executive without any breach of this Agreement under the following
circumstances and subject to the provisions set forth elsewhere herein:
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(i) BAIGlobal, Without Cause. After December 31, 1999,
BAIGlobal may terminate Executive's employment hereunder at any time by not
less than ninety (90) days prior written notice to Executive.
(ii) Executive, Without Cause. Executive may terminate her
employment hereunder at any time by giving BAIGlobal not less than ninety
(90) days prior written notice.
(iii) Death. Executive's employment hereunder shall terminate
upon her death.
(iv) Disability. BAIGlobal may terminate Executive's
employment hereunder at any time in the event Executive becomes disabled.
For purposes herein, Executive shall be deemed to be "Disabled" at such
time as (A) Executive is deemed to be permanently disabled under the terms
of BAIGlobal's long-term disability coverage, or (B) in absence of such
coverage, Executive's inability to substantially perform her normal duties
for sixteen (16) weeks (not necessarily continuous or calendar weeks)
during any twelve (12) successive months. In the event of a dispute as to
Executive's inability to perform her duties, BAIGlobal may refer the same
to a licensed practicing physician of BAIGlobal's choice and reasonably
acceptable to Executive, and Executive agrees to submit to such tests and
examination as such physician shall deem appropriate.
(v) BAIGlobal, For Cause. BAIGlobal may terminate Executive's
employment hereunder at any time for Cause. "Cause" shall mean (a) an act
of proven fraud or dishonesty of the part of Executive, or (b) a willful
and material breach of this Agreement by the Executive, which breach has
not been cured and remedied by Executive within sixty (60) days after
written notice from BAIGlobal's Board of Directors to Executive describing
such breach in reasonable detail.
(vi) By Mutual Agreement. This Agreement may be terminated at
any time by the mutual agreement of the parties. Any such termination shall
be approved by BAIGlobal's Board of Directors and memorialized by an
agreement which is reduced to writing and signed by Executive and a duly
authorized officer of BAIGlobal.
(b) Notice of Termination. Any termination of Executive's employment
by BAIGlobal or by Executive (other than pursuant to Section 7(a)(iii) above)
shall be communicated by written Notice of Termination to the other party
hereto. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment if such
termination is pursuant to clauses (iv) or (v) of Section 7(a).
(c) Date of Termination. For purposes of this Agreement, "Date of
Termination" shall mean (i) if such termination is pursuant to Section 7(a)(ii)
hereof, the date specified in the Notice of Termination as the last day of
Executive's employment or, if no such date is specified, on the 90th day
following Notice of Termination, (ii) if such termination is pursuant to Section
7(a)(iii) hereof, the date of Executive's death, and (iii) in all other cases,
the date specified in the Notice of Termination as the last day of Executive's
employment or, if no date is specified, at the end of the month in which the
Notice of Termination is given.
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8. Rights Upon Termination. Upon the termination of Executive's
employment pursuant to Section 7 hereof:
(a) If Executive's employment is terminated other than pursuant to
Section 7(a)(v) herein, BAIGlobal shall pay to Executive the unpaid portion of
any Base Salary due and payable to Executive to the Date of Termination. In
addition, if Executive's employment is terminated other than pursuant to
Sections 7(a)(iii) or (v) herein, Executive shall receive the Base Salary
payable to Executive under Section 4(a) above at the intervals provided therein,
from the Date of Termination to the respective date set forth below:
(i) if Executive's employment is terminated pursuant to the
provisions of Section 7(a)(i) hereof, until later of the one (1) year
anniversary date of the date of the Notice of Termination and the
expiration of the Initial Term;
(ii) if Executive's employment is terminated pursuant to the
provisions of Section 7(a)(ii) hereof, until the date specified in the
Notice of Termination or if no such termination date is specified, until
the 90th day after the date of the Notice of Termination (or such earlier
applicable date as may be provided herein);
(iii) if Executive's employment is terminated pursuant to the
provisions of Section 7(a)(iv) by reason of Executive's Disability, then
until the first anniversary of the Date of Termination, Executive shall be
entitled to receive such portion of Base Salary as would have been paid to
Executive pursuant to BAIGlobal's disability programs then in effect, if
such Notice of Termination had not been given by BAIGlobal; and
(iv) if Executive's employment is terminated pursuant to the
provisions of Section 7(a)(vi), the termination date mutually agreed by
BAIGlobal and Executive.
(b) Executive shall be entitled to payment of the performance bonus
set for in Section 4(b) hereof and her share of the Special Bonus set forth in
Section 4(c) to the extent provided therein.
(c) If Executive's employment is terminated by her death, or if
Executive's death shall occur prior to her receipt of the payments provided for
in Section 8(a) or (b) above, such payment(s) shall be paid to Executive's
designated beneficiary, or if he or she predeceases Executive, to Executive's
estate.
9. Executive's Ability to Contract for Company. To the extent
Executive is so authorized by BAIGlobal's Board of Directors, and until such
time as a Notice of Termination is given pursuant to Section 7(b) hereof,
Executive shall have the right to make any contracts or commitments for or on
behalf of BAIGlobal, to sign or endorse any commercial paper, contracts,
advertisements, or instrument of any nature, and to enter into any obligation
binding BAIGlobal to the payment of money or otherwise.
10. Non-Competition. Except as provided in the last paragraph of
this Section 10, Executive agrees that during her employment with BAIGlobal and
for a period of one (1) year following the Date of Termination, Executive shall
not, directly or indirectly:
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(a) own, manage, operate, control, be employed by, or participate in,
the ownership, management, operation or control of any business similar to or
competitive with the type of business conducted by MFI or BAIGlobal at any time
during Executive's employment with BAIGlobal, or by aid to others do anything
which would tend to divert from MFI or BAIGlobal any trade or business, provided
that this restriction shall not prevent Executive from owning up to five percent
(5%) of the securities of any entity whose securities are traded on a recognized
securities exchange or listed on a daily basis by the NASDAQ system;
(b) solicit or otherwise attempt to induce any clients of MFI or
BAIGlobal on whose account Executive has worked during the two (2) years prior
to the termination of Executive's employment to terminate their relationship
with MFI or BAIGlobal or otherwise divert from MFI or BAIGlobal and/or its
affiliates any trade or business being conducted by such customers with MFI or
BAIGlobal or otherwise provide any services similar to the services provided by
MFI or BAIGlobal to such customers; or
(c) recruit, solicit or otherwise induce or influence any employee or
agent of MFI or BAIGlobal to terminate their employment or agency relationship
with MFI or BAIGlobal, or employ, seek to employ, or cause any other business
competitive to MFI or BAIGlobal to employ or seek to employ, any person who is
then (or was at any time within the six months prior thereto) employed by MFI or
BAIGlobal.
Notwithstanding the above, the provisions of this Section 10 shall
terminate as of December 31, 2000 if Executive's employment is terminated by
BAIGlobal without cause pursuant to Section 7(a)(i) hereof prior to such date.
11. Confidential Information. Executive recognizes that as a key
member of the management of BAIGlobal, Executive has and will continue to occupy
a position of trust with respect to business information of a secret or
confidential nature of MFI and/or BAIGlobal or any of its subsidiaries or
affiliates and which has been or will be used by or imparted to Executive from
time to time in the course of Executive's duties. Executive therefore agrees
that:
(a) Executive shall not at any time during the term of this Agreement
or thereafter, except in the performance of her duties hereunder, use or
disclose directly or indirectly to any third person any such information, except
to the extent disclosure of such information is required by applicable law.
(b) Executive shall return promptly on the termination of Executive's
employment for whatever reason (or in the event of Executive's death,
Executive's personal representative shall return) to MFI and/or BAIGlobal at its
direction and expense any and all copies of records, drawings, writings,
blueprints, materials, memoranda and other data pertaining to such secret or
confidential information.
(c) The term "information of a secret or confidential nature" means
information of any nature and in any form which at the time or times concerned
is not generally known to those persons engaged in businesses similar to those
conducted or contemplated by MFI and/or BAIGlobal which relates to any one or
more of the aspects of MFI and/or BAIGlobal's business, including, but not
limited to, tests, test procedures, test programs and systems, patents and
patent applications; copyrights or copyright applications, inventions and
improvements, whether patentable or not; writings whether copyrightable or not;
development projects; machines; machine designs and the materials for machines;
policies, processes, formulas, techniques, know-how, data, data bases, computer
designs,
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computer programs whether embodied in source or object code, computer languages
or formats and other facts relating to design, construction, development
utilization, manufacturing or servicing of machines or programs or relating to
materials for machines or programs; to plant layout or to plant operations;
policies, processes, formulas, techniques, know-how and other facts relating to
sales, marketing advertising, promotions, financial matters, customers, customer
lists, customers' purchases, or requirements, and other trade secrets, both
tangible and intangible, in writing and orally imparted. Notwithstanding the
above, the term "information of a secret or confidential nature" does not
include information which (i) was or becomes generally available to the public
through no fault of Executive, (ii) was rightfully in Executive's possession
prior to the disclosure of such information to Executive, or (iii) was or
becomes available to Executive on a non-confidential basis by a third party who
is not under any obligation of confidentiality with respect to such information.
12. Intellectual Property Rights.
(a) MFI and/or BAIGlobal shall have all rights including
international priority rights in: all tests, procedures, inventions,
developments and discoveries, whether or not patentable, and all suggestions,
proposals, computer programs and writings, including any copyright interests
therein, which Executive authors, conceives or makes, either solely or jointly
with others during her employment with MFI and/or BAIGlobal which: (i) relate to
any subject matter with which Executive's work for MFI and/or BAIGlobal may be
concerned; (ii) relate to the business products or services or actual or
demonstrably anticipated research or development projects of MFI and/or
BAIGlobal; (iii) involve the use of the time, equipment, materials or facilities
of MFI and/or BAIGlobal; or (iv) relate or are applicable to any phase of MFI
and/or BAIGlobal's business. Further, Executive agrees to execute all documents
and to take all actions as may be necessary in order to assign all rights to or
otherwise vest good title to MFI or BAIGlobal in the property and proprietary
rights described in this subparagraph (a).
(b) MFI and BAIGlobal shall have no rights in inventions and writings
made or conceived by Executive prior to her employment with BAIGlobal which are:
(i) embodied in a United States Letters Patent, Copyright Registration or an
application for United States Letters Patent or Copyright Registration filed
prior to the commencement of her employment; or (ii) owned by a former employer
prior to Executive's employment by BAIGlobal; or (iii) disclosed in detail in a
writing attached hereto or provided to BAIGlobal within one (1) week after the
execution hereof. The acceptance of such disclosure by BAIGlobal shall not
create a confidential relationship.
In addition to the foregoing, MFI and BAIGlobal shall have no rights
in any inventions made or conceived by Executive which do not involve any
equipment, supplies, facilities or materials of MFI or BAIGlobal and which are
developed entirely on Executive's own time unless: (i) the invention relates to
the business, products or services of MFI and/or BAIGlobal; (ii) the invention
relates to actual or demonstrably anticipated research or development projects
of MFI and/or BAIGlobal, or (iii) the invention results from any services
performed by Executive for MFI and/or BAIGlobal.
(c) Executive will disclose promptly in writing to BAIGlobal all
ideas, inventions, improvements, discoveries and writings, whether or not
patentable or copyrightable, made or conceived by her either solely or in
collaboration with others during her employment with BAIGlobal, whether or not
during regular working hours, and, if based on confidential information as
defined in Section 11(c) hereof, within one (1) year thereafter, if such
inventions or writings relate to either: (i) the subject of Executive's work for
BAIGlobal; (ii) products, projects, programs or business of BAIGlobal of which
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Executive had knowledge in the course of Executive's work or otherwise; or (iii)
any business of BAIGlobal during Executive's employment.
(d) Executive shall maintain for disclosure to MFI and/or BAIGlobal
complete written records of all such inventions and writings. Such records shall
bear dates and signatures and show (i) the full nature thereof, and (ii) the
critical dates pertaining to conception, development, reduction to practice, and
embodiment in a tangible form. Such records shall be the sole property of and be
readily available to MFI and BAIGlobal.
(e) Executive will, during the term of her employment and thereafter,
at the request of MFI or BAIGlobal and without expense to Executive: (i)
cooperate in the procurement in the name of Executive of patent, utility model,
design and copyright protection to cover such inventions and writings, including
the execution of domestic, foreign, divisional, continuing and re-issue
applications for Letters Patent, Utility Models, Designs and Copyright
Registrations and assignments thereof; and (ii) execute all documents, make all
rightful oaths, testify in all proceedings in Government Offices or in the
Courts concerning such inventions and writings, and generally do everything
lawfully possible in any controversy or otherwise to aid MFI and/or BAIGlobal to
obtain, enjoy and enforce proper protection of such property.
13. Remedy. Executive understands that BAIGlobal would not have any
adequate remedy at law for the material breach or threatened breach by Executive
of any one or more of the covenants set forth in Sections 10, 11 and 12 of this
Agreement and agrees that in the event of any such material breach or threatened
breach, BAIGlobal shall be entitled to preliminary and permanent injunctive
relief without bond in any court of competent jurisdiction, which rights shall
be cumulative and in addition to any other rights or remedies to which BAIGlobal
may be entitled.
14. Headings. The headings of the sections and subsections of this
Agreement are inserted for convenience of reference only and shall not
constitute a part hereof.
15. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original.
16. Assignment. This Agreement shall not be assignable by either
party without the express written consent of the other party hereto.
17. Amendment and Modification. No amendment or modification of the
terms of this Agreement shall be binding upon either party unless approved by
BAIGlobal's Board of Directors and reduced to writing and signed by Executive
and a duly authorized officer of BAIGlobal.
18. Notices. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be by hand-delivery, certified
mail, return receipt requested; telecopier; or overnight courier to the parties
set forth below. Such notices shall be deemed given: at the time personally
delivered, if delivered by hand or by courier; at the time received, if sent
certified mail; and when sent, if telecopied.
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If to BAIGlobal: c/o Market Facts, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Executive ▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: _______________
Either addressee may change its (her) address upon prior written notice.
19. Entire Agreement. This Agreement contains the entire agreement
between Executive and BAIGlobal with respect to the subject matter hereof and
supersedes any and all previous agreements, written or oral, between the parties
relating to the subject matter hereof.
20. Severability. The provisions of this Agreement shall be
severable. The unenforceability or invalidity of any one or more provisions,
clauses, or sentences hereof shall not render any other provision, clause or
sentence herein contained unenforceable or invalid. The portion of the Agreement
which is not invalid or unenforceable shall be considered enforceable and
binding on the parties and the invalid or unenforceable provision(s), clauses(s)
or sentence(s) shall be deemed excised, modified or restricted to the extent
necessary to render the same valid and enforceable, and this Agreement shall be
construed as if such invalid or unenforceable provision(s), clause(s), or
sentence(s) were omitted.
21. Governing Law. This Agreement shall be governed, construed and
enforced in accordance with the internal laws of the State of New York,
excluding any choice of law rules which may direct the application of the laws
of another jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate on the date first above written.
BAIGlobal, Inc.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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