Exhibit 10.2
FIRST AMENDMENT TO TERMINATION
AGREEMENT AND RELEASE
This FIRST AMENDMENT TO TERMINATION AGREEMENT AND RELEASE (this
"AMENDMENT") is made and entered into as of September 30, 2004, by and between
FRANKLIN CAPITAL CORPORATION, a Delaware Corporation (the "COMPANY") and XXXXXXX
X. XXXXX, an individual ("XXXXX").
WHEREAS, the Company and Xxxxx have previously entered into that
certain Termination Agreement and Release dated as of June 23, 2004 (the
"TERMINATION AGREEMENT"); and
WHEREAS, the Company and Xxxxx agree to amend the Termination
Agreement, as permitted by Section 9.4 thereof.
NOW, THEREFORE, the Termination Agreement is hereby amended as
follows:
1. Wherever the term "Severance Payments" appears in the Termination
Agreement, it is amended to read "Severance Payment."
2. Section 3.1 of the Termination Agreement is amended to read in its
entirety as follows:
3.1 SEVERANCE PAYMENT. On the Separation Date, the Company shall pay
to Xxxxx cash in the amount of $250,000 (the "SEVERANCE PAYMENT").
3. Sections 3.2, 5.2 and 5.3 of the Termination Agreement are each
deleted in their entirety.
4. Section 8 of the Termination Agreement is amended to read in its
entirety as follows:
8. TRANSITION CONSULTING SERVICES. Xxxxx will provide consulting
services to the Company pursuant to a Consulting Services Agreement in
the form annexed hereto as Exhibit B, which the parties shall execute
and deliver on the Separation Date.
5. The Termination Agreement is amended by adding the annexed Exhibit B.
MISCELLANEOUS
Section 9.1 of the Termination Agreement, governing notices; Section
9.2, the choice of law and forum selection clauses; Section 9.5, concerning
severability; Section 9.6, the integration clause; and Section 9.7, providing
for counterparts and facsimile signature pages, shall apply mutatis mutandis to
this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date first set forth above.
COMPANY:
FRANKLIN CAPITAL CORPORATION
/s/ Xxxxx Xxxxx
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XXXXX XXXXX
Chief Financial Officer
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
/s/ Xxxxxxx X. Xxxxx
-----------------------------------------
XXXXXXX X. XXXXX
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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EXHIBIT B
CONSULTING SERVICES AGREEMENT
CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES AGREEMENT (this "Agreement") is made as of
______________________, 2004, by and between Franklin Capital Corporation, a
Delaware corporation ("Company") and Xxxxxxx X. Xxxxx, an individual
("Consultant") (collectively, the "Parties").
1. CONSULTING SERVICES
Commencing on the Separation Date, as that term is defined in the Parties'
Termination Agreement and Release dated as of June 23, 2004 (the
"Termination Agreement"), and continuing for a period of eight (8) months
thereafter unless this Agreement is earlier terminated in accordance with
Section 4 below (the "Term"), Consultant agrees to provide such consulting
and advisory services to Company regarding historical matters concerning
Company's operations and stock portfolio as may be reasonably requested
from time to time during the Term by a designee of the Company's Board of
Directors (the "Board"); provided, however, that Consultant shall not be
required to perform any services outside of New York, New York. The manner
and means of accomplishing the projects or assignments assigned by Company
to Consultant shall be determined by Consultant using his best professional
and independent judgment, with consideration given to the best interests of
Company. The Parties acknowledge and agree that this Agreement does not
create an employee/employer relationship between them. Consultant is an
independent contractor, and any services performed by him under this
Agreement are under his sole direction and control except to the extent of
Company's interest in the final results of his efforts. Consultant shall
not have the right, power or authority to enter into contracts or
commitments on behalf of Company, to prepare any type of written
correspondence on Company stationery, or to obligate or purport to obligate
Company in any manner.
2. COMPENSATION
For services provided under this Agreement, Company shall pay Consultant a
consulting fee in eight monthly installments of $25,000 each, the first
installment of which shall be paid on the Separation Date, with the
remaining installments paid on each 30th day thereafter. Company shall not
withhold from the compensation payable hereunder, and Consultant shall be
responsible for withholding, reporting and paying, any local, state and
federal taxes, fees, and assessments of every kind and nature arising from
Consultant's performance of services under this Agreement.
3. EXPENSES.
Company shall reimburse Consultant for reasonable, documented business
expenses incurred by Consultant in the performance of Consultant's duties
hereunder including, but not limited to, reasonable travel or similar
expenses incurred in connection with Consultant's performance of the
services required pursuant to this Agreement. Such expenses shall not be
incurred without the prior consent of Company.
4. TERMINATION.
4.1 AUTOMATIC TERMINATION. This Agreement shall automatically terminate at
any time during the Term upon the event of Consultant's death.
4.2 TERMINATION BY CONSULTANT. Consultant may voluntarily terminate this
Agreement at any time during the Term by delivering thirty (30) days
prior written notice to the Company. In addition, Consultant may
terminate this Agreement immediately upon notice to the Company in the
event that Consultant is not paid the fees specified in Section 2 of
this Agreement when due.
4.3 TERMINATION BY THE COMPANY. The Company may terminate this Agreement
at any time during the Term upon delivery to Consultant of written
notice of the good-faith determination (and accompanying justification
therefor) of a majority of the Board that such Agreement should be
terminated for Cause (as defined below) or Consultant's Disability (as
defined below). For purposes of this Agreement:
(A) The term "CAUSE" shall mean: (i) Consultant's willful and
continual failure to substantially perform the services required
to be performed pursuant to this Agreement for reasons other than
Consultant's incapacity due to a physical or mental illness not
meeting the definition of a Disability; or (ii) Consultant's
willful engagement in gross misconduct materially injurious to
the Company; provided, however, that in each case Consultant
shall be given written notice of any actions or omissions, and a
30-day period during which Consultant may attempt to "cure" such
actions or omissions, that would otherwise give rise to a finding
of Cause hereunder.
(B) The term "DISABILITY" shall mean Consultant's physical or mental
illness continuing during the Term for any period aggregating
more than one hundred twenty (120) days that renders Consultant
substantially unable to perform the services required to be
performed pursuant to this Agreement, as determined by a
qualified physician mutually acceptable to the Company and
Consultant.
4.4 EFFECT OF TERMINATION. Upon any termination or expiration of this
Agreement, the Company shall pay to Consultant (or, in the event of a
termination of this Agreement pursuant to Section 4.1 above, to
Consultant's estate) all accrued but unpaid portions of the
compensation and expenses payable to Consultant pursuant to this
Agreement to which Consultant is entitled. Sections 4.4, 5 and 6 shall
survive the termination or expiration of this Agreement for any
reason.
5. INCORPORATION OF PROVISIONS BY REFERENCE
The following provisions of the Termination Agreement are incorporated by
reference and made a part hereof as though fully set forth herein: Section
9.1 (Notices); Section 9.2 (Governing Law); Section 9.4 (Amendments);
Section 9.5 (Severability); Section 9.6 (Entire Agreement); and Section 9.7
(Counterparts).
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Section 3.3(c) of the Termination Agreement is incorporated, mutatis
mutandis, by reference and made a part hereof as though fully set forth
herein, with Company's performance hereunder constituting a "benefit
under this Agreement."
6. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit of the
Parties and their respective heirs, successors, representatives and
permitted assigns. This Agreement may not be assigned by either party
without the prior written consent of the other party; provided, however,
that Consultant may assign this Agreement at any time during the Term to
Brimco, LLC, a Delaware limited liability company that is wholly owned by
Consultant, without the prior consent of the Company.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the date first set forth above.
FRANKLIN CAPITAL CORPORATION
---------------------------------------
[Name]
[Title]
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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XXXXXXX X. XXXXX
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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