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EXECUTIVE EMPLOYMENT AGREEMENT
Agreement made as of September __, 1997, by and between Financial Performance
Corporation, a New York corporation with offices at 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx ("FPC"), FPC Information Corp., a New York corporation
with offices at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx ("FPC
Information Corp.") and Xxxxxxx X. Xxxxxx, an individual residing at 000 Xxxx
Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 ("Xxxxxx"). FPC and FPC Information
Corp. are hereinafter jointly and severally referred to as the "Corporation".
W I T N E S S E T H:
Whereas, the Corporation desires to continue to engage the services of Xxxxxx as
Chairman, President, Chief Executive Officer and Principal Financial Officer of
the Corporation; and
Whereas, Xxxxxx is willing to continue such employment by the Corporation on the
terms and conditions set forth herein.
Now, therefore, in consideration of the premises, the mutual covenants
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Employment. The Corporation hereby employs Xxxxxx and Xxxxxx hereby accepts
such employment upon the terms and conditions hereinafter set forth.
2. Term. (a) The term of this agreement is three (3) years, commencing on
October 1, 1997 and ending on September 30, 2000 (the "Initial Term"), unless
earlier terminated by the Corporation or by Xxxxxx in accordance with the
provisions hereof. This agreement shall be automatically renewed for periods of
one (1) year each (the "Renewal Term") unless either party shall give the other
notice of his or its desire to terminate this agreement no later than on the
June 1st immediately preceding the expiration of the then current term, in which
event Xxxxxx'x employment shall terminate at the end of the Initial Term or the
applicable Renewal Term, as the case may be. The Initial Term and the Renewal
Term are hereinafter collectively referred to as the Term. If Xxxxxx has not
given notice to the Corporation on or before June 1, 2000 that he elects not to
renew this agreement at the expiration of the Term and the Corporation gives
notice to Xxxxxx that it elects not to renew this agreement at the expiration of
the Term, then and only in such event, in addition to and without limitation of
any other compensation, severance payments or benefits which may be or become
due from the Corporation to Xxxxxx pursuant to this agreement, the Corporation
shall pay to Xxxxxx within ten (10) days following the expiration of the Term, a
severance payment in the amount of One Hundred Thousand ($100,000.00) Dollars.
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(b) Notwithstanding the provisions of subsection 2(a) above
and without limitation of the provisions of Section 7 below, Xxxxxx shall have
the right to terminate this agreement for other than Good Reason (as defined in
Section 7 below) effective as of September 30, 1999 upon giving the Corporation
not less than ninety (90) days prior written notice of termination. If Xxxxxx
shall elect to terminate this agreement pursuant to the provisions of this
subsection 2(b), then Xxxxxx shall be entitled to receive all salary and other
employment benefits through the effective date of termination.
3. Duties. Xxxxxx is engaged for the term hereof as President, Chief Executive
Officer and Principal Financial Officer of the Corporation and shall perform and
discharge well and faithfully the duties which may be undertaken by Xxxxxx in
such capacity from time to time, such duties to be substantially similar to the
duties hereto undertaken by Xxxxxx as President, Chief Executive Officer and
Principal Financial Officer of the Corporation. The duties of Xxxxxx shall
include managing the Corporation's day-to-day operations, including, without
limitation, hiring, training, supervising and terminating employees, determining
employee compensation (including incentives) and employment policy, including
assignment of employees' duties and how same are to be performed, all aspects of
client relationships, maintaining the Corporation's books and records, serving
as a member of the Board of Directors and any other duties as may be determined
by the Board of Directors; it being the intent of the parties that Xxxxxx shall
exercise full management control of the day-to-day operations of the Corporation
for so long as Xxxxxx is employed by the Corporation.
4. Extent of Services. During the period in which Xxxxxx is employed by the
Corporation, Xxxxxx shall devote Xxxxxx'x entire active business time, best
efforts, attention, skill and energies to the business of the Corporation and
shall not during such period be engaged in any other business activity pursued
for gain, profit or other pecuniary advantage; but this shall not be construed
as preventing Xxxxxx from investing Xxxxxx'x personal assets in businesses which
do not compete with the Corporation in such form or manner as will not require
any active business services on the part of Xxxxxx in the operation of the
affairs of the companies in which such investments are made and in which
Xxxxxx'x participation is solely that of a passive investor.
5. Compensation. For all services rendered by Xxxxxx pursuant to this agreement,
the Corporation shall pay Xxxxxx an annual salary of One Hundred Fifty Thousand
($150,000.00) Dollars, payable twice monthly on the 15th and 30th of each month,
in arrears. Such salary shall be subject to periodic increases as shall be
determined by the Board of Directors of the Corporation.
6. Benefits. (a) Xxxxxx shall be entitled to four (4) weeks vacation during each
one (1) year of Xxxxxx'x employment pursuant to this agreement, during which
Xxxxxx'x salary shall be paid in full. Xxxxxx shall be entitled to reimbursement
of reasonable out-of-pocket business expenses incurred on behalf of the
Corporation, provided that such expenses are reasonably necessary and are
properly documented. Xxxxxx shall be entitled to privileges under any
retirement, pension, long-term or short-term disability insurance plan which may
hereafter be adopted by the Corporation for the benefit of its employees. The
Corporation
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shall provide Xxxxxx with and shall pay all premiums for family coverage under a
group health insurance plan. The Corporation shall also provide Xxxxxx with a
leased automobile of Xxxxxx'x choice throughout the term of this agreement,
including payment or reimbursement for all insurance, maintenance and repair
costs. The Corporation shall register, at the Corporation's sole cost and
expense, all of the shares of stock of the Corporation now or hereafter owned by
Xxxxxx at such time as the Corporation may elect to file a registration
statement covering shares of stock of the Corporation.
(b) The Corporation shall obtain and pay all premiums for a
term life insurance policy covering Xxxxxx'x life. Such policy shall be in an
amount of not less than $250,000.00 and not more than $500,000.00, as shall be
determined by the Corporation's Board of Directors. The Corporation shall be the
owner of the policy and Xxxxxx (or Xxxxxx'x designee(s)) shall be the
beneficiary of such policy.
7. (a) The Corporation may, at its election in accordance with the procedures
more particularly set forth below, terminate this agreement for cause. For
purposes of this agreement, "cause" shall include, without limitation, the
following: (i) a material breach by Xxxxxx of any term of this agreement that
has not been cured within thirty (30) days of receipt by Xxxxxx of written
notice; (ii) a continued failure of Xxxxxx after thirty (30) days notice of a
prior failure to devote Xxxxxx'x full active business time (as more particularly
described in Section 4 above) to the performance of Xxxxxx'x duties hereunder;
(iii) an act of willful misconduct causing injury to another person or
substantial damage to the reputation or property of the Corporation, any of the
Corporation's affiliates or any of the Corporation's customers including,
without limitation, any oral or written material misrepresentation relating to
the Corporation or any of its customers which causes substantial damage to the
reputation of the Corporation; (iv) an act of dishonesty, moral turpitude or
conviction of a felony; and (v) substantial, continuing and willful improper
performance or non-performance of any of Xxxxxx'x material duties hereunder
after thirty (30) days written notice to cure as aforesaid. For purposes of this
subsection (a), no act, or failure to act, on Xxxxxx'x part shall be considered
"willful" unless done, or omitted to be done, by him not in good faith or
without reasonable belief that his action or omission was in the best interests
of the Corporation. Notwithstanding the foregoing, Xxxxxx shall not be deemed to
have been terminated for cause without (i) thirty (30) days' notice to Xxxxxx
setting forth the reasons for the Corporation's intention to terminate for cause
as set forth above in this subsection (a), (ii) an opportunity for Xxxxxx,
together with his counsel, to be heard before the Corporation's board of
directors, and (iii) delivery to Xxxxxx of a Notice of Termination as defined in
subsection (d) below from an executive officer of the Corporation finding that,
in the good faith opinion of the Board of Directors of FPC, Xxxxxx was guilty of
conduct set forth or described above in justifying the Corporation's termination
of Xxxxxx'x employment for cause and specifying the particulars thereof in
detail.
(b) Xxxxxx may terminate his employment under this agreement for Good
Reason (as hereinafter defined). For purposes of this agreement, "Good Reason"
shall mean (i) a change in control of FPC (as defined below) which shall have
been in effect for a period of at least ninety (90) consecutive days; provided,
however, that Xxxxxx shall be unable to work
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harmoniously and effectively with the personnel constituting the new management
of FPC, (ii) a failure by the Corporation to comply with any material provision
of this agreement, which noncompliance shall have a material adverse effect upon
Xxxxxx and which shall not have been cured within thirty (30) days after notice
of such noncompliance has been given by Xxxxxx to the Corporation pursuant to
this agreement, (iii) if Xxxxxx'x management functions, duties or
responsibilities or any other material aspect of Xxxxxx'x employment shall have
been materially and adversely changed by the Corporation for a period in excess
of thirty (30) consecutive days notwithstanding Xxxxxx'x written objection
thereto, (iv) if Xxxxxx shall cease to be chairman of the board of the directors
and the chief executive officer of FPC (other than by reason of death,
incapacity or resignation) or (v) any purported termination of Xxxxxx'x
employment which is not effected pursuant to a Notice of Termination satisfying
the requirements of subsection (d) below (and for purposes of this agreement no
such purported termination shall be effective).
(c) For the purpose of this agreement, a "Change of Control" shall be
deemed to have taken place if: (i) a third person, including a "group" as such
term is defined in Section 13(d)(3) of the Securities Exchange Act of 1934,
becomes (other than as a result of a purchase from FPC) the beneficial owner of
shares of FPC having more than thirty (30%) percent of the total number of votes
that may be cast for the election of directors of FPC and such beneficial
ownership continues for thirty (30) consecutive days, or (ii) as a result of, or
in connection with, any cash tender or exchange offer, merger or other business
combination of the foregoing transactions relating to FPC (hereinafter referred
to as a "Transaction") the persons who were directors of FPC before the
Transaction shall cease for any reason to constitute at least a majority of the
Board of Directors of FPC, or any successor(s) of FPC.
(d) Any termination of Xxxxxx'x employment by the Corporation or by
Xxxxxx (other than termination by reason of Xxxxxx'x death or disability as set
forth in Section 14 below) 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 Xxxxxx'x employment under the provision so indicated.
(e) "Date of Termination" shall mean (i) if Xxxxxx'x employment is
terminated by his death, the date of his death, (ii) if Xxxxxx'x employment is
terminated pursuant to subsection 2(b) or subsection 7(c) above, the date
specified in the Notice of Termination, and (iii) if Xxxxxx'x employment is
terminated for any other reason, the date on which a Notice of Termination is
given; provided that if within thirty (30) days after any Notice of Termination
is given the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, the Date of Termination shall
be the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding and final arbitration award or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been perfected).
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8. Compensation Upon Termination or During Disability.
(a) During any period that Xxxxxx fails to perform his duties hereunder
as a result of incapacity due to physical or mental illness ("disability
period"), Xxxxxx shall continue to receive his full salary at the rate then in
effect for such period until his employment is terminated pursuant to Section 7
above, provided that payments so made to Xxxxxx during the disability period
shall be reduced by the sum of the amounts, if any, payable to Xxxxxx at or
prior to the time of any such payment under disability benefit plans of the
Corporation and which were not previously applied to reduce any such payment.
(b) If Xxxxxx'x employment is terminated by his death, the Corporation
shall pay to Xxxxxx'x spouse, or if he leaves no spouse, to his estate, within
thirty (30) days of Xxxxxx'x death, all salary and employment benefits due to
Xxxxxx accrued through the date of his death.
(c) If Xxxxxx'x employment shall be terminated for cause, the
Corporation shall pay Xxxxxx his full salary through the Date of Termination at
the rate in effect at the time Notice of Termination is given and the
Corporation shall have no further obligations to Xxxxxx under or pursuant to
this Agreement.
(d) If (i) in breach of this agreement, the Corporation shall terminate
Xxxxxx'x employment other than pursuant to subsection 7 (a) above (termination
for cause) or Section 14 below (termination by reason of death or disability)(it
being understood that a purported termination by the Corporation pursuant to
subsection 7 (a) above or Section 14 below which is disputed and finally
determined not to have been proper shall be deemed a termination by the
Corporation in breach of this agreement) or (ii) Xxxxxx shall terminate his
employment for Good Reason, then
(I) the Corporation shall pay Xxxxxx his full salary through
the Date of Termination at the rate in effect at the time the Notice of
Termination is given;
(II) in lieu of any further salary payments to Xxxxxx for
periods subsequent to the Date of Termination, the Corporation shall pay to
Xxxxxx, as severance pay (and not as a penalty to the Corporation), an amount
equal to the product of (A) Xxxxxx'x annual base salary rate in effect as of the
Date of Termination, multiplied by (B) the number two (2), such payment to be
made (X) if resulting from a termination based on a change of control of the
Corporation, in a lump sum on or before the thirtieth (30th) day following the
Date of Termination, or (Y) if resulting from any other cause, in substantially
equal semimonthly installments on the fifteenth and last days of each month
commencing with the month in which the Date of Termination occurs and continuing
for forty-eight (48) consecutive semimonthly payment dates (including the first
such date as aforesaid), without interest; and
(III) if termination of Xxxxxx'x employment arises out of a
breach by the Corporation of this agreement, the Corporation shall pay all other
damages to which Xxxxxx may be entitled as a result of such breach, including
damages for any and all loss of benefits
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to Xxxxxx under the Corporation's employee benefit plans which Xxxxxx would have
received if the Company had not breached this agreement and had Xxxxxx'x
employment continued for the full term provided in Section 2 hereof.
(e) Unless Xxxxxx'x employment is terminated by the Corporation for
cause, the Corporation shall maintain in full force and effect, for the
continued benefit of Xxxxxx for the greater of the number of years (including
partial years) remaining in the term of employment hereunder or the number two
(2), all employee benefit plans and programs in which Xxxxxx was entitled to
participate immediately prior to the Date of Termination, provided that Finleys
continued participation is possible under the general terms and provisions of
such plans and programs. In the event that Xxxxxx'x participation in any such
plan or program is barred, the Corporation shall arrange to provide Xxxxxx with
benefits substantially similar to those which Xxxxxx would otherwise have been
entitled to receive under such plans and programs from which his continued
participation is barred.
(f) The Corporation may withhold from any payments or other benefits
payable to Xxxxxx pursuant to this Section 8 or any other provision of this
agreement all federal, state, city or other taxes as shall be required pursuant
to any law, government regulation or ruling.
9. Disclosure of Information. Xxxxxx recognizes and acknowledges that the trade
secrets and know how of FPC and its subsidiaries as they may exist from time to
time are a valuable, special and unique asset of the businesses of such
companies, access to and knowledge of which are essential to the performance of
Xxxxxx'x duties hereunder. For the purposes of this agreement, Confidential
Information includes any and all information disclosed or made available to
Xxxxxx in consequence of or through his employment by the Corporation and not
generally known in the industries in which FPC and its subsidiaries or any of
the customers of FPC and its subsidiaries is or may be engaged, or which is
beneficial to FPC or its subsidiaries, or any of the customers of FPC or its
subsidiaries, in the promotion or operation of their respective businesses, (ii)
relating to the business, business practices, operation, affairs, practices,
procedures, policies or methods of FPC or its subsidiaries, (iii) customer
lists, (iv) marketing information and (v) training materials. Since the services
of Xxxxxx are unique, extraordinary and of a specialized character which will
require Xxxxxx to handle Confidential Information of FPC and FPC's subsidiaries
and of such companies' suppliers and customers, Xxxxxx shall not, at any time
during the term of this agreement or thereafter, make use of any Confidential
Information for the benefit of any person or entity (other than FPC or its
subsidiaries) nor shall Xxxxxx disclose any Confidential Information to any
person or entity for any reason or purpose whatsoever.
10. Covenants Not to Interfere. Xxxxxx, either as a proprietor, partner,
employee, agent, consultant, director, officer, controlling stockholder or in
any other capacity or manner whatsoever, for a period of one (1) year after the
date of expiration or other termination of this agreement, shall not interfere
with, disrupt or attempt to disrupt the relationship, contractual or otherwise,
between FPC and/or any of its subsidiaries and any customer, client, employee or
independent contractor of FPC and/or any of its subsidiaries. However, subject
to the foregoing provisions of this Section 10, it is understood that Xxxxxx
may, in
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good faith, contact all customers and clients of FPC and/or any of its
subsidiaries originated by or otherwise brought to FPC and/or any of its
subsidiaries by Xxxxxx during the term of Xxxxxx'x employment by the Corporation
in connection with establishing any other business enterprises subsequent to the
expiration or termination of this agreement.
11. Return of Documents. Upon termination of employment with the Corporation,
Xxxxxx shall promptly return to the Corporation all documents, notes, records
and other materials of FPC and/or any of its subsidiaries in Xxxxxx'x
possession, whether prepared by Xxxxxx or others. However, Xxxxxx shall be
entitled to retain copies of all such documents, notes, records and other
materials and may use same subject only to Xxxxxx'x covenants set forth in
Section 9 ("Disclosure of Information") and Section 10 ("Covenants Not to
Interfere").
12. Enforcement of Non-Disclosure and Non-Solicitation Provisions. It is the
desire and intent of the parties that the provisions of Sections 9, 10 and 11
shall be enforced to the fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if any portion or portions of such Sections 9, 10 or 11 shall be
adjudicated to be invalid or unenforceable, such Sections shall be deemed
amended to delete therefrom the portion or portions thus adjudicated to be
invalid or unenforceable, such deletion to apply only with respect to the
operation of such Sections in the particular jurisdiction in which such
adjudication is made. The provisions of Sections 9, 10, 11 and 13 shall survive
the expiration or earlier termination of this agreement.
13. Injunctive Relief. If there is a breach or threatened breach of any of the
provisions of Sections 9, 10 or 11 of this agreement, the Corporation shall be
entitled to an injunction restraining Xxxxxx from such breach. Nothing herein
shall be construed as prohibiting the Corporation from pursuing any other
remedies for such breach or threatened breach.
14. Disability/Death. Xxxxxx'x employment under this agreement shall terminate
upon the death or, at the election of the Corporation, the physical or mental
disability of Xxxxxx. For purposes of this agreement, Xxxxxx shall be deemed to
be disabled if he is unable to perform his services for twelve (12) consecutive
months. If the Corporation elects to terminate this agreement pursuant to this
Section 14, the Corporation shall notify Xxxxxx of the Corporation's decision to
terminate Xxxxxx'x employment hereunder by means of a Notice of Termination
pursuant to the provisions of subsection (d) of Section 7 above. From and after
such termination of employment of Xxxxxx pursuant to this Section 14, Xxxxxx'x
compensation and rights thereto and all of Xxxxxx'x other rights under this
agreement shall terminate.
15. Notices. Any notice required or permitted to be given under this agreement
shall be sufficient if in writing and if sent by certified mail, return receipt
requested, to Xxxxxx'x mailing address set forth above, or by personal delivery
to Xxxxxx, in the case of Xxxxxx, or to its office address set forth above, in
the case of the Corporation, with a copy sent in like manner to Xxxxxxx Xxxxxxxx
Xxxxxxxxx & Grun, LLP, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx X. Xxxxxxxx, Esq. Notices shall be deemed given two (2) business
days after mailing, or on the date personal delivery is effected, as the case
may be.
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16. Waiver of Breach. The waiver by a party of a breach of any provision of this
agreement by another party shall not operate or be construed as a waiver of any
subsequent or other breach by such other party. Any waiver must be in writing.
17. Entire Agreement. This instrument contains the entire agreement of the
parties. It may not be waived, changed, modified or extended orally but only by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification or extension is sought.
18. Applicable Law. This agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of New York without
regard to the application of conflict of laws.
19. 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 Corporation and Xxxxxx
with the same effect as though the void or unenforceable provision had been
severed and deleted.
20. Conflict. If any provision of this agreement is found to be in conflict with
any provision of any other agreement to which the Corporation and Xxxxxx are
parties, the provision of such other agreement shall control.
21. Arbitration. If any dispute shall arise between the Corporation and Xxxxxx
with regard to this agreement, such dispute shall be promptly submitted to and
decided by arbitration by the American Arbitration Association in the City and
County of New York in accordance with the Expedited Procedures of the Commercial
Arbitration Rules of the American Arbitration Association. The award rendered by
the arbitrators shall be final, shall include an award of reasonable legal fees
and costs to the prevailing party as determined by the arbitrator(s) and
judgment may be entered upon the award in accordance with applicable law in any
court having jurisdiction.
22. Prior Executive Employment Agreement. Notwithstanding anything herein
contained to the contrary, the prior Executive Employment Agreement between the
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Corporation and Xxxxxx dated as of September 1, 1995 is hereby deemed terminated
and is superseded in all respects by this agreement.
In witness whereof, the parties hereto have caused this agreement to be duly
executed as of the day and year first above written.
Financial Performance Corporation
By:/s/_____________________________________
Xxxxxxx Xxxx, Secretary
FPC Information Corp.
By:/s/_____________________________________
Xxxxxxx Xxxx, Secretary
/s/_____________________________________
Xxxxxxx X. Xxxxxx, individually
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