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Exhibit 10.80
RESTATED AND AMENDED SHAREHOLDERS' AGREEMENT
Shareholders' agreement made as of the 18th day of October, 1994, by and among
Xxxxxxxxxx Xxxxxxx Partners Inc. (originally known as FPC Consulting Corp.) a
New York corporation with offices at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx (hereinafter referred to as "MKP" or the "Corporation"), Financial
Performance Corporation, a New York corporation with an address at 000 Xxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx (hereinafter referred to as "FPC"), Xxxxx
Xxxxxxxxxx, an individual residing at 000 Xxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx
00000 (hereinafter referred to as "Xxxxx") and Xxxxxxx Xxxxxxx, an individual
residing at 000 Xxxx Xxxxxxx, Xxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to
as "Hillary").
W I T N E S S E T H :
Whereas, FPC has caused MKP to be formed under the laws of the State of New
York;
Whereas, MKP is authorized to issue 200 shares of common stock, no par value per
share;
Whereas, FPC, Xxxxx and Xxxxxxx collectively own all of the issued and
outstanding shares of common stock of MKP; and
Whereas, FPC, Xxxxx and Hillary desire to promote their mutual interests and the
interests of MKP by imposing certain restrictions and obligations with respect
to (i) the shares of common stock of MKP registered in their respective names
and (ii) the future operation and management of MKP.
Now, therefore, in consideration of the premises and the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Definitions.
As used herein, the following terms shall have the following meanings:
(a) "Agreement" shall mean this shareholders' agreement.
(b) "Stock" shall mean any and all shares of MKP's common stock
owned by the Shareholders (as hereinafter defined) as of the date hereof or
hereafter acquired, regardless of how or from whom acquired. The term shall also
include fractional shares of Stock, options and warrants to purchase Stock, and
shares received by way of dividend or upon an increase, reduction, substitution
or reclassification of Stock, or upon any merger, consolidation or
reorganization of MKP.
(c) "Shareholders" shall mean FPC, Xxxxx and Xxxxxxx and any other
person or entity who or which acquires any Stock and becomes a party to this
Agreement pursuant to the terms hereof.
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(d) "Individual Shareholders" shall mean Xxxxx and Hillary.
(e) "Corporate Shareholder" shall mean FPC.
(f) "Shareholder" shall mean any of the Shareholders.
(g) "Agreed Value" shall mean the value of the Stock as determined
pursuant to the provisions of Section 8 below.
2. Ownership of Shares. The Shareholders each own stock in MKP as
follows:
Name Number of Shares
---- ----------------
XXX 00
Xxxxx 00
Xxxxxxx 00
0. Restriction on Transfer of Stock of Individual Shareholders.
3.1. No Individual Shareholder shall sell, assign, transfer, pledge,
give, bequeath or otherwise in any manner encumber or dispose of, directly or
indirectly, any Stock (or any interest therein) or the stock certificate or
certificates issued with respect to any Stock now or hereafter at any time owned
by any such Individual Shareholder, except that Stock owned by an Individual
Shareholder may be: (i) to the extent permitted under applicable law, pledged as
collateral in connection with any loan or other financing obtained by MKP; and
(ii) transferred as may be permitted by this Agreement or as may be consented to
in writing by all of the parties to this Agreement.
3.2. With respect to any person or entity acquiring any Stock in
violation of the terms and conditions of this Agreement: (i) such person or
entity shall not be entitled to vote such Stock, (ii) no dividend shall be paid
or distribution made on such Stock; and (iii) MKP shall neither transfer on its
books the registered ownership of any such Stock, nor issue any certificate in
lieu of such Stock, nor issue any new Stock unless and until there has been
compliance with each of the conditions set forth herein affecting such Stock or
certificates.
4. Term of Agreement. This Agreement shall terminate upon the
occurrence of any of the following events:
(a) cessation of MKP's business operations;
(b) consolidation or merger with any corporation or other entity as
a result of which MKP is not the surviving entity; or
(c) bankruptcy, receivership or dissolution of MKP.
Unless earlier terminated as provided above, this Agreement shall continue in
effect until September 30, 2004. All of the agreements, understandings and
obligations herein contained which expressly or by implication subsist after
termination of this Agreement shall survive such termination.
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5. Conditions for Transfer of Stock to a Non-Party.
5.1. If either of the Individual Shareholders desires to make during
her lifetime a bona fide disposition of all or part of her Stock to a person,
partnership, corporation or other entity who or which is not a party to this
Agreement (hereinafter referred to as a "Non-Party") and who or which is
permitted to hold such Stock under applicable law, such Individual Shareholder
(hereinafter sometimes referred to as the "Offeror"), shall first grant
successive rights of first refusal (hereinafter referred to as the "Options") to
MKP and to the Corporate Shareholder as follows:
(a) to MKP, which shall have thirty (30) days to exercise such
option in full but not in part; and
(b) to the Corporate Shareholder, which shall have thirty (30) days
to exercise such option in full but not in part.
Each Option will be considered granted successively and will only be effective
as to the Corporate Shareholder if MKP does not exercise its option in full.
5.2. Each Option shall be granted by a written notice of offer to
MKP and to the Corporate Shareholder, stating the number of shares of Stock
offered, the price and terms of the proposed disposition, and the name and
address of the Non-Party to whom the Offeror desires to transfer the Stock being
offered. As used herein, the term "disposition" shall include, but shall not be
limited to, any disposition by sale, delivery, assignment, gift, exchange or
transfer.
5.3. Each Option shall be exercised (to the extent herein permitted)
by giving to the Offeror a written notice of exercise prior to the expiration of
the applicable Option exercise period.
5.4. With respect to the exercise of any Option, the purchase price
for the Stock subject to such Option shall be the Agreed Value of such Stock;
provided, however, that any Stock offered by an Offeror who proposes to dispose
of her Stock at a price less than Agreed Value, or upon terms more favorable to
the Non-Party than those set forth in Section 5.5 below, or both, shall be sold
at such proposed lower price or upon such more favorable proposed terms, or
both.
5.5. The purchase price shall be payable as follows: (i) ten (10%)
percent of the purchase price in cash or by certified check of the purchaser
delivered at the closing; and (ii) the balance of the purchase price in four
equal, consecutive, annual installments commencing on the first anniversary of
the closing date, evidenced by a non-negotiable promissory note made by the
purchasing corporation, payable to the Offeror with interest at the applicable
federal rate for a note such as said promissory note, as promulgated by the
Internal Revenue Service (but in no case shall the interest rate be higher than
the highest rate permitted to be paid in the State of New York under its
applicable usury laws). Said promissory note shall provide for, (i) the right of
acceleration of the unpaid principal sum, together with accrued interest
thereon, in the event of any default in the payment of any installment of
principal or interest thereon; (ii) the right of prepayment, in whole or in
part, at any time, without penalty, but with interest accrued to the date of
prepayment; and (iii) the waiver of presentment, demand, protest and notice of
dishonor. The indebtedness evidenced by the promissory note shall be secured in
accordance with the provisions of Section 9 below.
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5.6. If the surplus of the purchasing corporation shall prove to be
insufficient (under then existing laws) to authorize the purchasing corporation
to purchase the Stock of the Offeror in accordance with the provisions of this
Section, then the purchasing corporation shall perform such acts as may be
necessary and lawful to increase such surplus to an amount sufficient to
authorize the purchase of the Stock of the Offeror, including, but not limited
to, the following: (i) a recapitalization of the purchasing corporation so as to
reduce the stated capital and increase its surplus; (ii) a reappraisal of the
assets of the purchasing corporation (including good will, if any) to reflect
the market value of such assets on the books of the purchasing corporation, if
such value exceeds the book value thereof, so as to increase such surplus; and
(iii) a contribution by the other shareholder(s) of the purchasing corporation
of cash or property, or both, to the purchasing corporation so as to increase
its surplus to an amount sufficient to enable it to lawfully effectuate such
purchase.
5.7. Any such sale shall be closed at the offices of MKP at a date
and time (during ordinary business hours) fixed by MKP, being not less than
twenty (20) nor more than thirty (30) days after the date on which the
purchasing corporation gave notice of its intention to exercise the Option. At
such time, such purchasing corporation shall make payment of the purchase price
against receipt of such Stock by the escrow agent described in Section 9 below
in proper form for transfer to the purchasing corporation and such other
documents as counsel for the purchasing corporation shall reasonably request.
5.8. If MKP and the Corporate Shareholder shall fail to exercise
their respective Options to purchase all of the Offeror's Stock as aforesaid,
then in such event the Offeror shall be permitted to dispose of her Stock,
provided: (i) such disposition shall occur within thirty (30) days after the
expiration of all of the Option exercise periods; (ii) such disposition shall be
to the Non-Party described in, and at a price and upon terms not less favorable
to the Offeror than those set forth in, the notice of offer to MKP and the
Corporate Shareholder; and (iii) the Non-Party acquiring such Stock shall
execute and deliver to each party hereto, as a condition precedent to any
disposition permitted hereunder, an agreement acknowledging that all Stock
transferred or to be transferred is and shall continue to be subject to the
terms, conditions and restrictions of this Agreement and agreeing to be bound by
this Agreement. If a disposition of the Stock of the Offeror in accordance with
the notice of offer to the Corporate Shareholder shall not have been consummated
upon the expiration of the thirty (30) day period referred to in (i) above, then
all of the Stock shall again be subject to all of the restrictions set forth in
this Agreement.
5.9. Any attempt by an Individual Shareholder to make a disposition
of her Stock in violation of the provisions of this Agreement shall be deemed an
offer of the Stock of such Individual Shareholder pursuant to the provisions of
this Section 5, provided, however, that the purchase price for the Stock so
offered shall be fifty (50%) percent of the Agreed Value.
6. Conditions for Transfer of Stock Upon the Occurrence of the Death of
an Individual Shareholder.
6.1. Upon the death of either of the Individual Shareholders
(hereinafter referred to as the "Deceased Shareholder"), at the option of MKP
exercisable within one hundred twenty (120) days after the death of the Deceased
Shareholder by notice from MKP to the Estate (hereinafter defined), the
executor(s) or administrator(s) of the estate of the Deceased Shareholder
(hereinafter
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sometimes referred to as the "Estate") shall sell, and MKP shall redeem with its
surplus, all of the Stock owned by the Deceased Shareholder at the time of her
death.
6.2. If the Corporation shall exercise its option pursuant to
Section 6.1 above, the purchase price for the Stock shall be the Agreed Value of
such Stock. The purchase price shall be payable as follows: (i) an amount equal
to ten (10%) percent of the purchase price shall be paid in cash or by certified
check at the closing; and (ii) the balance of the purchase price shall be paid
in four (4) equal, consecutive annual installments commencing on the first
anniversary of the closing date, evidenced by a non-negotiable promissory note
made by MKP payable to the Estate with interest at the rate established pursuant
to Section 5.5 above. Any promissory note required under this Section 6.2 shall
provide for, (i) the right of acceleration of the unpaid principal sum, together
with accrued interest thereon, in the event of any default in the payment of any
installment of principal or interest thereon; (ii) the right of prepayment, in
whole or in part, at any time, without penalty, but with interest accrued to the
date of prepayment; and (iii) the waiver of presentment, demand, protest and
notice of dishonor. The indebtedness evidenced by the promissory note shall be
secured in accordance with the provisions of Section 9 below. The sale shall be
closed in accordance with the provisions of Section 5.7 above, except that any
such sale shall be closed at the offices of MKP at a date and time (during
ordinary business hours) fixed by MKP but in no event more than one hundred
fifty (150) days following the date of death of such Individual Shareholder.
7. Purchase of Stock by MKP in Event of Termination of Employment of
Individual Shareholder.
If either of the Individual Shareholders terminates her employment with MKP or
if MKP terminates the employment of either of the Individual Shareholders for
any reason pursuant to the terms of the Managing Director's Agreement with such
Individual Shareholder dated as of September 11, 1997, as amended by agreement
dated as of October 1, 1998, or any successor or substitute agreement
(hereinafter, the "Employment Agreement"), or upon the expiration of the
Employment Agreement without extension or renewal thereof, then the following
provisions shall apply:
7.1. Each of the Individual Shareholders shall have the right to
require MKP to purchase from such Individual Shareholder all (but not less than
all) of the Stock then owned by such Individual Shareholder. Each Individual
Shareholder shall exercise her right hereunder by giving MKP written notice of
exercise at any time during the sixty (60) day period commencing on the date of
termination of employment of such Individual Shareholder. The aggregate purchase
price to be paid by MKP shall be the Cash Value (hereinafter defined) of the
Stock then owned by the Individual Shareholder; provided, however, that if MKP
terminates the Employment Agreement of such Individual Shareholder for "cause"
as such term is defined in the Employment Agreement, then the aggregate purchase
price to be paid by MKP shall be an amount equal to fifty (50%) percent of the
Cash Value of such Stock. The purchase price shall be payable in accordance with
Section 5.5 above and the closing shall take place in accordance with the
provisions of Section 5.6 above, except that any such sale shall be closed at
the offices of MKP at a date and time (during ordinary business hours) fixed by
the Corporation being not later than sixty (60) days after the date on which the
Individual Shareholder shall have given its notice of exercise to MKP.
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7.2. If either of the Individual Shareholders does not exercise her
right to require MKP to purchase such Individual Shareholder's Stock pursuant to
the provisions of Section 7.1 above, then in such event MKP shall have the
right, but not the obligation, to purchase from such Individual Shareholder all
(but not less than all) of the Stock then owned by such Individual Shareholder.
MKP shall exercise its right hereunder by giving such Individual Shareholder
written notice of exercise at any time during the sixty (60) day period
commencing on the expiration of the sixty (60) day period such Individual
Shareholder shall have to notify MKP to purchase such Individual Shareholder's
Stock pursuant to the provisions of Section 7.1 above. The aggregate purchase
price to be paid by MKP for such Individual Shareholder's Stock shall be the
Agreed Value (hereinafter defined) of such Stock; provided, however, that if MKP
terminates the Employment Agreement of such Individual Shareholder for "cause"
as such term is defined in the Employment Agreement, then the aggregate purchase
price to be paid by MKP for such Individual Shareholder's Stock shall be an
amount equal to fifty (50%) percent of the Agreed Value of such Stock. The
purchase price shall be payable in accordance with Section 5.5 above and the
closing shall take place in accordance with the provisions of Section 5.6 above,
except that any such sale shall be closed at the offices of MKP at a date and
time (during ordinary business hours) fixed by the Corporation being not later
than sixty (60) days after the date on which MKP shall have given its notice of
exercise to the Individual Shareholder.
8. Cash Value and Agreed Value.
8.1 The Cash Value of a Shareholder's Stock for purposes of this
agreement shall be determined by the following formula:
Cash Value = A x (C-D)
-
B
Where:
A = the total number of outstanding shares of
Stock of MKP owned of record by the
Shareholder as of the date of termination of
employment of such Shareholder;
B = the total number of shares of Stock of MKP
which are issued and outstanding as of the
date of termination of employment of such
Shareholder;
C = the aggregate amount of cash and cash
equivalents reflected on MKP's financial
statements as of the last day of the fiscal
quarter immediately preceding the fiscal
quarter in which the date of termination of
employment of such Shareholder shall occur;
and
D = the aggregate amount of accounts payable
and other current liabilities reflected on
MKP's financial statements as of the last
day of the fiscal quarter immediately
preceding the fiscal quarter in which the
date of termination of employment of such
Shareholder shall occur.
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The Cash Value, as determined pursuant to this Section 8.1, shall be final,
conclusive and binding upon all parties hereto, including the legal
representative(s) of any deceased party.
8.2. The Agreed Value of a Shareholder's Stock for purposes of this
agreement shall be the fair market value of such Stock, as shall be mutually
determined by two investment banking firms with experience relating to the
business of MKP. One such firm shall be designated by MKP and the other firm
shall be designated by the Corporate Shareholder. The Agreed Value, as
determined pursuant to this Section 8.2, shall be final, conclusive and binding
upon all parties hereto, including the legal representative(s) of any deceased
party.
9. Delivery of Stock.
9.1. On the closing date of the sales provided for in Sections 5, 6,
and 7 hereof, the selling Shareholder, or the Estate of the selling Shareholder,
as the case may be, (hereinafter, such selling Shareholder and/or Estate, as the
case may be, are referred to as "Selling Shareholder or the Estate") shall
deliver to the purchaser of such Stock, certificates for the Stock being sold
endorsed in favor of such purchaser. In order to secure the performance of such
purchaser's obligations under any promissory note, such purchaser shall pledge
and give a security interest in and deliver certificates representing all of the
Stock purchased to an escrow agent (being any person, corporation, partnership
or other entity agreed to by such Selling Shareholder or the Estate, and such
purchaser, or if the parties cannot so agree as to the escrow agent, then the
attorneys regularly representing MKP shall be designated escrow agent, or such
attorneys shall designate any third party to serve as escrow agent), together
with a stock power duly endorsed in blank and in proper form to effectuate
transfer of such Stock. Concurrently with the delivery in escrow of the shares
of Stock being sold, if the selling Shareholder is then an officer, director or
employee of the Corporation, she shall deliver to the Corporation her
resignation as such. Upon payment in full of such promissory note, the Stock and
stock power held by the escrow agent shall be released to the purchaser of the
Stock. At the closing, a formal escrow agreement will be entered into among such
Selling Shareholder or the Estate, the purchaser of the Stock and the escrow
agent.
9.2. If the Selling Shareholder or the Estate shall fail to deliver
the Stock in accordance with the terms of this Agreement, then the purchaser of
such Stock may, at its option, in addition to all other available remedies, send
to the Selling Shareholder or the Estate, the first installment of the purchase
price for such Stock. Thereupon, the Corporation, upon notice to the Selling
Shareholder or the Estate shall: (i) cancel on its books the certificate or
certificates representing the Stock to be sold; (ii) issue, in lieu thereof, a
new certificate representing such Stock registered in the name of such
purchaser; and (iii) deliver such new certificate to such purchaser and,
thereupon, the Selling Shareholder or the Estate, shall not be entitled to
receive any subsequent installment of the purchase price and such purchaser
shall not be required to make any further installment payment, until the Selling
Shareholder or the Estate shall have delivered to such purchaser the original
certificate or certificates in accordance with the terms of this Agreement to be
held in escrow as herein set forth. If such Selling Shareholder or the Estate
shall be unable to furnish any original certificate because it has been lost or
destroyed, then the Selling Shareholder or the Estate shall pursue appropriate
procedures to be agreed upon with the Corporation in order to satisfy the
delivery requirements hereunder.
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9.3. Upon receipt of evidence of default of more than thirty (30)
days in the payment of any said promissory note after the giving of written
notice thereof, the escrow agent shall be authorized to sell the Stock held by
it by public sale, at which public sale the Selling Shareholder or the Estate
shall have the right to bid for and purchase the Stock being sold. However,
before offering the Stock for public sale, the escrow agent shall give the
purchaser of such Stock an opportunity to purchase the Stock at any time prior
to the public sale for an amount equal to the unpaid principal and interest on
such promissory note, plus the costs and expenses, including, without
limitation, reasonable legal fees incurred as a result of the purchaser's
default, in preparation for such sale. The escrow agent shall apply all
dividends and other distributions held by it and the proceeds from such sale:
(a) first, to the payment of any and all expenses of such
sale, including reasonable attorneys' fees;
(b) then, to the payment of the indebtedness to the Selling
Shareholder or the Estate; and
(c) any excess thereof to be paid over to the purchaser.
The Selling Shareholder or the Estate, shall also retain any and all available
rights and remedies at law and in equity. Upon the performance of its duties in
accordance with the provisions hereof, the escrow agent shall be relieved and
discharged of any and all obligations and liabilities hereunder and held
harmless for any act or omission to act except those constituting willful
misconduct.
9.4 During the period in which the Stock shall be held in escrow,
the Selling Shareholder or the Estate shall not be entitled to exercise any
voting rights with respect thereto. Upon receipt of satisfactory evidence of
payment in full by the purchaser of the Stock, the escrow agent shall forthwith
turn over to the purchaser the shares of Stock and any and all dividends or
property received by the escrow agent with respect thereto and not applied
against payment of such purchaser's promissory note.
10. Transfer Expenses. All expenses, taxes, charges, fees, levies or
other assessments, including, without limitation, income, inheritance, real and
personal property, sales or transfer taxes imposed by any governmental authority
in connection with the sales provided for in Sections 5, 6, and 7 hereof,
incurred by or imposed upon the Selling Shareholder or the Estate, MKP or the
Corporate Shareholder (if it is not the Selling Shareholder) shall be paid on
the closing date by the Selling Shareholder or the Estate.
11. Management of the Corporation and Voting.
11.1 During the term of this Agreement, the Shareholders shall vote
their Stock to provide for the following:
(a) The election and maintenance in office of Susan, Hillary,
Xxxxxxx X. Xxxxxx, and two other individuals mutually acceptable to the parties
as the directors of the Corporation; and
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(b) The election and maintenance in office as officers of the
Corporation of the following individuals in the following respective offices:
Name Office
---- ------
Xxxxx President/Treasurer/Managing Director
Hillary Vice President/Secretary/
Managing Director
Xxxxxxx X. Xxxxxx Assistant Treasurer/
Assistant Secretary
11.2 At the first meeting of Shareholders to be held on or after the
date hereof, this Agreement shall be submitted to the meeting and a resolution
shall be adopted whereby MKP shall accept, ratify, and confirm the Agreement and
agree to be bound thereby. Any and all by-laws of the Corporation shall conform
to the provisions of this Agreement and shall not be in conflict therewith; if
any conflict exists or arises hereafter, the provisions of this Agreement shall
control and be binding.
12. Bank Accounts. MKP shall maintain one or more bank accounts. Checks
drawn on said accounts shall require the joint signatures of Xxxxx and Hillary.
In addition, all checks in excess of ten thousand ($10,000.00) dollars in
respect of the first two hundred fifty thousand ($250,000.00) dollars of funds
expended by MKP shall require the additional signature of Xxxxxxx X. Xxxxxx.
13. Authority. Any contract, agreement, note or other evidence of
indebtedness, assignment, deed, lease, loan agreement, mortgage or other
security instrument or arrangement and all other documents of which MKP is a
party shall require the joint signatures of any two officers of MKP.
14. Legend on Stock Certificates. The following statements shall be
inscribed on the face of all certificates representing shares of Stock with
respect to the shares represented by such certificates:
"The shares represented by this certificate are subject
to restrictions on transfer contained in that certain
Shareholders' Agreement, dated as of the 18th day of
October, 1994, a copy of which is on file at the
principal office of the Corporation, and any transfer of
shares represented by this certificate, or any interest
therein, in violation of said Agreement, shall be
invalid."
"The shares represented by this certificate have not
been registered under the Securities Act of 1933, as
amended, or any applicable state securities laws, and
cannot be sold, transferred or otherwise disposed of to
any person or entity unless subsequently registered
thereunder or unless an applicable exemption therefrom
is available."
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15. Specific Performance. Since the Stock cannot be readily purchased or
sold in the open market, the Shareholders and MKP may be irreparably harmed and
damaged if this Agreement is not specifically enforced. If any dispute shall
arise concerning the sale or disposition of any Stock in violation of any of the
terms of this Agreement, an injunction, temporary or permanent, without bond,
may be issued restraining any such threatened actions pending the determination
of such controversy. Such injunction shall be enforceable in a court of
competent jurisdiction by a decree of specific performance. Such remedy shall,
however, be cumulative and not exclusive and shall be in addition to any of the
other remedies which the parties may have.
16. Anti-Dilution.
16.1 Except as provided in Section 16.2 below, if the Corporation
shall at any time or from time to time change the outstanding common stock as
specified in Section 2 above into a greater number of shares of common stock,
then, upon each such change, the total number of outstanding shares of common
stock issued as specified in Section 2 hereof shall be multiplied by a fraction,
the numerator of which shall be the total number of shares of common stock
outstanding immediately subsequent to such change, and the denominator of which
shall be the total number of shares of common stock as specified in Section 2
hereof. Such additional shares of common stock shall be delivered to the
Shareholders, pro rata to their then stock ownership in the Corporation, without
charge.
16.2 The provisions of Section 16.1 above shall not apply in the
case of a public offering of shares of stock of MKP.
17. Notices. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be sent by United States registered or
certified mail, postage prepaid, return receipt requested or by personal
delivery, receipt requested, addressed to a party at the address for such party
first set forth above or at such address or addresses as may be designated by
written notice hereunder. Notices shall be deemed given three (3) business days
after mailing or on the date personal delivery is effected, as the case may be.
18. Waiver. No waiver of any of the provisions of this Agreement shall
be effective unless in writing and signed by the party to be charged with such
waiver. No waiver shall be deemed a continuing waiver or waiver in respect of
any subsequent breach or default, whether of similar or different nature, unless
expressly so stated in writing.
19. Modification. This Agreement may not be orally cancelled, changed,
modified or amended, and no cancellation, change, modification or amendment
shall be effective or binding, unless in writing and signed by the party(ies) to
be charged.
20. Severability. If any provision of this Agreement is found to be void
or unenforceable by a court of competent jurisdiction, the remaining provisions
of this Agreement shall nevertheless be binding upon the parties with the same
effect as though the void or unenforceable part had been severed and deleted.
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21. Stricken Words or Phrases. If any words or phrases in this Agreement
shall have been stricken out or otherwise eliminated, whether or not any other
words or phrases have been added, this Agreement shall be construed as if the
words or phrases so stricken out or otherwise eliminated had never appeared in
this Agreement.
22. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
23. Entire Agreement. This Agreement, including all other documents
referred to herein which form a part hereof, if any, contains the entire
understanding of the parties hereto with respect to the subject matter contained
herein and therein. This Agreement supersedes all prior agreements and
understanding between or among the parties with respect to such subject matter.
24. Future Cooperation. Each party hereto shall cooperate and shall take
such further action and shall execute and deliver such further documents as may
be reasonably requested by any other party in order to carry out the provisions
and purposes of this Agreement.
25. Headings. The section headings contained in this Agreement are for
reference purposes only, and shall not affect the meaning or interpretation of
this Agreement.
26. Number and Gender. All terms and words used in this Agreement,
regardless of the number or gender in which they are used, shall be deemed to
include any other number and any other gender as the context may require.
27. Binding Effect. The provisions of this Agreement shall extend to,
bind and inure to the benefit of each of the parties hereto and her or its
respective heirs, personal representatives, successors and permitted assigns, if
any.
28. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which together shall constitute but one and the same
instrument.
29. Distribution and Allocation of Corporation's Annual Earnings Before
Income Taxes.
29.1 For each fiscal year of the Corporation commencing with the
partial fiscal year ending September 30, 1995, and for any transitional fiscal
period arising as a result of a change in the fiscal year of the Corporation,
the Corporation shall distribute and/or allocate the Corporation's earnings
before income taxes ("EBIT") for such period as follows:
(a) an amount equal to thirty (30%) percent of EBIT for such
fiscal year shall be paid by the Corporation to FPC as a consulting fee as soon
as possible after the end of each fiscal quarter or transitional period of the
Corporation but in no event later than sixty (60) days after the end of each
fiscal quarter or transitional period of the Corporation;
(b) an amount equal to thirty (30%) percent of EBIT for such
fiscal year shall be allocated to the Corporation's annual incentive bonus pool
(the "Bonus Pool") for such period if and to the extent such allocation is
feasible given the Corporation's then available cash position
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and projected cash flow requirements, which determination shall be made by the
Corporation's Board of Directors based upon the joint recommendation of Xxxxx
and Xxxxxxx in the exercise of their reasonable business judgment;
(c) the balance of EBIT for such fiscal year shall be allocated
for use as general working capital of the Corporation.
30. Restated and Amended Agreement. This Agreement has been restated and
amended as of October 1, 1998 to incorporate the provisions of the Revised and
Restated First Amendment to Shareholders Agreement dated as of September 11,
1997 and the Second Amendment to Shareholders Agreement dated as of October 1,
1998.
In witness whereof, the parties have executed this Agreement as of the day and
year first above written.
Xxxxxxxxxx Kelbick Partners Inc.
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------
Xxxxx Xxxxxxxxxx,
President/Treasurer
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Xxxxxxx Xxxxxxx,
Vice President/Secretary
Financial Performance Corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Xxxxxxx X. Xxxxxx, President
/s/ Xxxxx Xxxxxxxxxx
--------------------------------
Xxxxx Xxxxxxxxxx
/s/ Xxxxxxx Xxxxxxx
--------------------------------
Xxxxxxx Xxxxxxx
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