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EXHIBIT 10.47
TERMINATION AGREEMENT
This TERMINATION AGREEMENT (this "Termination Agreement") is entered
into as of March 30, 1999 between East Shore Ventures, Inc., a Florida
corporation ("East Shore"), and Xxxxxxxxx Industries, Inc., a Delaware
corporation ("Xxxxxxxxx").
RECITALS
East Shore and Xxxxxxxxx are parties to that certain Management
Agreement dated as of January 1, 1997 (the "Management Agreement") pursuant to
which East Shore has provided the Company, through the services of its
President, Zivi X. Xxxxxx ("Nedivi"), with the management services necessary of
the chief executive officer responsible for the overall direction of the
operations and administration of the business of the Company. Xxxxxxxxx has
decided that it is in its best interests to employ Nedivi directly to provide
those services which have been provided by East Shore under the Management
Agreement, and the parties desire to set forth the terms on which they have
agreed to terminate the Management Agreement.
TERMS OF AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereby agree as follows:
1. DEFINITIONS. All defined terms used herein without definition shall
have the meanings ascribed to them in the Management Agreement.
2. TERMINATION OF MANAGEMENT AGREEMENT. Subject to the terms of this
Termination Agreement, the parties mutually agree that the Management Agreement
shall terminate effective as of the date first written above (the "Termination
Date"). Except as expressly set forth herein, each of the provisions of the
Management Agreement shall terminate and be of no further force and effect
following the Termination Date.
3. PAYMENT OF PREVIOUSLY EARNED FEES. Notwithstanding anything to the
contrary set forth herein, Xxxxxxxxx shall pay to East Shore the following fees
and provide East Shore and Nedivi with the following benefits which are required
to be provided to them under the terms of the Management Agreement:
(a) Xxxxxxxxx shall pay to East Shore the unpaid portion of
any Base Annual Fee required to be paid by it under Section 3(a) of the
Management Agreement through the Termination Date.
(b) Xxxxxxxxx shall reimburse East Shore in accordance with
the terms of the Management Agreement for any reasonable and actual
out-of-pocket expenses incurred by
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it prior to the Termination Date in connection with the provision of
services under the Management Agreement.
(c) Xxxxxxxxx shall pay to East Shore any Federal, state and
local payroll and related taxes required to be paid by it under Section
3(c) of the Management Agreement.
(d) Xxxxxxxxx shall continue to provide to East Shore and
Nedivi with any and all benefits required to be provided to them under
the terms of the Management Agreement through the Termination Date.
4. SURVIVAL. East Shore and Xxxxxxxxx agree that notwithstanding
anything to the contrary set forth herein, Sections 15, 16, 17 and 20 of the
Management Agreement shall survive termination thereof and remain in full force
and effect following the Termination Date.
5. RELEASE. Except as expressly provided for herein, Xxxxxxxxx and East
Shore hereby release and forever discharge each other, including their
respective officers, directors, shareholders, members, employees,
representatives, agents, contractors, subsidiaries, affiliates, heirs, personal
representatives, successors and assigns, from any and all manner of action and
actions, cause and causes of action, suits, debts, sums of money, accounts,
reckonings, covenants, warranties, obligations, agreements, contracts, promises,
damages, claims and demands whatsoever, in law or in equity, which either party
ever had, now has, or may have in the future, which any personal representative,
successor, heir or assign of either party hereafter can, shall or may have
against the other party (whether known or unknown as of the date hereof),
accruing or arising, directly or indirectly, in whole or in part, for, upon or
by reason of the obligations of either under the Engagement Agreement.
6. MISCELLANEOUS.
(a) This Termination Agreement shall be governed by and
construed in accordance with the laws of the State of Florida and the
federal laws of the United States of America applicable therein. Any
controversy or claim arising out of or relating to this Termination
Agreement shall be settled by arbitration in accordance with the rules
of the American Arbitration Association and judgment upon an award in
connection therewith may be entered in any court of competent
jurisdiction.
(b) The captions of this Termination Agreement are not part of
the provisions hereof and shall have no force or effect.
(c) All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been given if
sent by facsimile transmission, delivered by overnight or other carrier
service, or mailed, certified first class mail, postage prepaid, return
receipt requested, to the parties hereto at the following addresses:
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If to Xxxxxxxxx, to:
Xxxxxxxxx Industries, Inc.
0000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxx, Chairman
Telecopier: (000) 000-0000
If to East Shore, to:
East Shore Ventures, Inc.
0000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Zivi X. Xxxxxx, President
Telecopier: (000) 000-0000
or to such other address as either party shall have furnished to the
other in accordance herewith.
(d) The invalidity or unenforceability of any provision of
this Termination Agreement shall not affect the validity or
enforceability of any other provision of this Termination Agreement.
(e) No provision of this Termination Agreement may be
modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing by the party against whom the same is
sought to be enforced and no failure by either party to enforce its
rights hereunder shall, except as mentioned above, be deemed a waiver
of such right. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any provision
of this Termination Agreement to be performed by such other party shall
be deemed to be a waiver of a similar or dissimilar provision hereof of
the same or any prior or subsequent time.
(f) This Termination Agreement embodies the entire agreement
between Xxxxxxxxx and East Shore and supersedes all prior agreements
and understandings, oral or written, with respect to the subject matter
hereof, including, without limitation, the Engagement Agreement. No
agreements or representations, oral or otherwise, express or implied,
with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Termination Agreement.
(g) This Termination Agreement may be executed in
counterparts, each of which shall be deemed an original and all of
which, together, shall constitute one and the same instrument.
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(h) All covenants, promises, conditions, representations and
agreements herein contained shall be binding upon and apply and inure
to the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
[Signatures On Following Page]
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IN WITNESS WHEREOF, the parties have executed this Termination
Agreement as of the date first written above.
XXXXXXXXX INDUSTRIES, INC.
By:__________________________________________
Xxxxxxx X. Xxxxxxx
Chief Financial Officer
EAST SHORE VENTURES, INC.
By:__________________________________________
Zivi X. Xxxxxx
President
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