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EXHIBIT 10.15
RESTATED AND AMENDED MANAGING DIRECTOR'S AGREEMENT
Agreement made as of November 16, 1999, by and between Xxxxxxxxxx Xxxxxxx
Partners Inc., a New York corporation with offices at 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 10017(the "Corporation") and Xxxxx Xxxxxxxxxx,
residing at _____________________________ ("Xxxxx").
W I T N E S S E T H:
Whereas, Xxxxx and the Corporation are parties to a Restated and Amended
Managing Director's Agreement dated as of June 18, 1999 (the "Old Agreement").
Whereas, the Corporation and Xxxxx desire to amend and restate the Old
Agreement in the manner and on the terms and conditions set forth below.
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 hereby
amend and restate the Old Agreement as follows:
1. Employment. The Corporation hereby continues its employment of Xxxxx for
the Term (as hereinafter defined) and Xxxxx 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 September
11, 1997 and ending on September 10, 2000 (the "Term"), unless earlier
terminated by the Corporation or by Xxxxx 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 her 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
Susan's employment shall terminate at the end of the Term or the applicable
Renewal Term, as the case may be. The Term and the Renewal Term are hereinafter
collectively referred to as the Term.
(b) If Xxxxx has not given notice to the Corporation on or before June 1,
2000 that she elects not to renew this agreement at the expiration of the Term
and the Corporation gives notice to Xxxxx that it elects not to renew this
agreement at the expiration of the Term, then and only in such event, provided
that Susan's employment is not properly terminated by the Corporation for cause
pursuant to and in accordance with the provisions of Section 7 below, in
addition to and without limitation of any other compensation, severance payments
or employment benefits which may be or become due from the Corporation to Xxxxx
pursuant to this agreement (but not in addition to any severance payment which
may be due pursuant to the provisions of subparagraph (c) of this Section 2, it
being understood that such severance payment and the severance payment payable
pursuant to this subparagraph (b) are mutually exclusive), the Corporation shall
pay to Xxxxx, within ten (10) days following the expiration of the Term, a
severance payment in the amount of Three Hundred Fifty Thousand ($350,000.00)
Dollars.
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(c) If Xxxxx elects not to renew this Agreement at the expiration of the
Term and Susan's employment is not properly terminated by the Corporation for
cause pursuant to and in accordance with the provisions of Section 7 below, then
and only in such event, in addition to and without limitation of any other
compensation, severance payments or employment benefits which may be or become
due from the Corporation to Xxxxx pursuant to this agreement (but not in
addition to any severance payment which may be due pursuant to the provisions of
subparagraph (b) of this Section 2, it being understood that such severance
payment and the severance payment payable pursuant to this subparagraph (c) are
mutually exclusive), the Corporation shall pay to Xxxxx, within ten (10) days
following the expiration of the Term, a severance payment in the amount of Two
Hundred Fifty Thousand ($250,000.00) Dollars.
(d) For purposes of this agreement, the term "employment benefits" shall
be deemed to include Susan's Annual Bonus (as such term is hereinafter defined).
3. Duties. Xxxxx is engaged for the term hereof as a Managing Director of the
Corporation and shall perform and discharge well and faithfully the duties
which may be undertaken by Xxxxx in such capacity from time to time, such
duties to be substantially similar to the duties heretofore undertaken by
Xxxxx as a Managing Director of the Corporation. The duties of Xxxxx shall
include jointly managing with Xxxxxxx Xxxxxxx or her successor ("Hillary"),
the Corporation's day-to-day operations, including, with-out 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, and 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
Xxxxx and Xxxxxxx shall together exercise full management control of the
day-to-day operations of the Corporation for so long as both Xxxxx and
Hillary are employed by the Corporation.
4. Extent of Services. During the period in which Xxxxx is employed by the
Corporation, Xxxxx shall devote Susan's 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 Xxxxx from investing Susan's 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 Xxxxx in the
operation of the affairs of the companies in which such investments are made
and in which Susan's participation is solely that of a passive investor.
5. Compensation.
(a) For all services rendered by Xxxxx pursuant to this agreement, the
Corporation shall pay Xxxxx an annual salary payable biweekly, in arrears, as
follows: (i) One Hundred Fifty Thousand ($150,000.00) Dollars per annum
during the period commencing on September 11, 1997 through September 30,
1998; and (ii) Two Hundred Fifty Thousand ($250,000.00) Dollars per annum
during the period commencing on October 1, 1998 through the balance of the
Term. Such salary shall be subject to periodic increases as shall be
determined by the Board of Directors of the Corporation.
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(b) Xxxxx shall be eligible to participate in the Corporation's annual
incentive compensation pool (the "Bonus Pool") in an amount to be determined
annually by the Corporation's Board of Directors based upon the joint
recommendation of Xxxxx and Hillary. The portion of the Bonus Pool to which
Xxxxx shall become entitled for any fiscal year of the Corporation is
hereinafter referred to as "Susan's Annual Bonus". For any fiscal year of the
Corporation, the Bonus Pool shall not exceed in the aggregate an amount equal to
thirty (30%) percent of the Corporation's annual net profits before taxes
determined by the Corporation's outside accounting firm, subject to review and
approval by the accounting firm which prepares the consolidated financial
statements for all of the companies affiliated with FPC, in accordance with
generally accepted accounting principles, consistently applied, as if the
Corporation were not a member of an affiliated group of corporations. Susan's
Annual Bonus shall be payable in cash or, if agreed to by Xxxxx, the Board of
Directors of the Corporation and the Board of Directors of Financial Performance
Corporation ("FPC"), such amount may be payable, in whole or in part, in options
or warrants to acquire common stock or other securities of FPC (hereinafter, the
"Bonus Securities") which shall have typical "piggy-back" registration rights
and which shall contain such other terms and conditions, including, without
limitation, term, exercise price and number of securities issued, as the Board
of Directors of the Corporation and FPC shall jointly reasonably determine
represents equivalent value to the cash bonus or portion thereof which would
otherwise be payable to Xxxxx. Further, during the six (6) month period
commencing on the date of issuance of the Bonus Securities (hereinafter, the
"Sales Period") FPC shall use its reasonable efforts together with the
investment banking firms then providing financial services to FPC, to the extent
reasonably practicable and appropriate, to assist Xxxxx in arranging for the
exercise and sale of the Bonus Securities. The term "Bonus Securities", as used
herein, shall mean and include all options, warrants, common stock or other
securities of FPC issued to Xxxxx in full or partial payment of Susan's Annual
Bonus and, in the case of derivative securities such as options and warrants,
all of the common stock underlying such derivative securities. The "piggy-back"
registration rights referred to above shall apply to all common stock underlying
any derivative securities and shall obligate FPC to register such stock at such
time as FPC registers other common stock in connection with a public offering of
securities, at FPC's sole cost and expense.
(c) If (i) Xxxxx shall exercise and sell all of the Bonus Securities
during the Sales Period and (ii) the aggregate gross sales price received by
Xxxxx for the sale of the Bonus Securities less the aggregate amount of all
warrant or option exercise consideration in respect of the Bonus Securities paid
by Xxxxx to FPC during the Sales Period (hereinafter, the "Gross Sales
Proceeds") shall be less than the agreed-upon equivalent cash value of Susan's
Bonus which shall have been paid by issuance of the Bonus Securities as set
forth in subsection (b) above (hereinafter, the "Equivalent Cash Value"), then
within thirty (30) days after the Corporation's receipt from Xxxxx of notice
thereof setting forth, in reasonable detail, the calculation of such difference
together with copies of all pertinent supporting documentation relating thereto,
the Corporation shall pay to Xxxxx, in cash, an amount (hereinafter, the
"Shortfall") equal to the difference between the Equivalent Cash Value and the
Gross Sales Proceeds. The Corporation shall not be obligated to make payment of
the Shortfall to Xxxxx unless all of the Bonus Securities are exercised and sold
by Xxxxx xxxxx to the expiration of the Sales Period.
6. Employment Benefits. Xxxxx shall be entitled to four (4) weeks vacation
for each one (1) year of Susan's employment pursuant to this agreement, during
which Susan's salary shall be
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paid in full. Xxxxx 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. Xxxxx
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 agrees to provide
Xxxxx with and shall pay all premiums for family coverage under a group health
insurance plan reasonably comparable to the coverage currently provided to Xxxxx
by the Corporation, to the extent same is reasonably obtainable by the
Corporation. The Corporation shall also provide Xxxxx with (i) a clothing
expense allowance in the amount of ten thousand and 00/100 ($10,000.00) dollars
for the first year of the Term and fifteen thousand and 00/100 ($15,000.00)
dollars for each remaining year of the Term and (ii) a leased automobile of
Susan's choice throughout the Term.
7. Termination.
(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 be defined as and limited to the
following: (i) a material breach by Xxxxx of any material term of this agreement
which causes substantial damage to the reputation, business or property of the
Corporation, any of the Corporation's affiliates or any of the Corporation's (or
any affiliate's) customers and which shall not have been cured within thirty
(30) days of receipt by Xxxxx of notice of such breach; (ii) a continued failure
of Xxxxx after thirty (30) days' notice of a prior failure to devote Susan's
full active business time (as more particularly described in Section 4 above) to
the performance of Susan's duties hereunder; (iii) an act of willful misconduct
in the performance of Susan's duties hereunder which causes substantial damage
to the reputation, business 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 misrepresentation relating to the
Corporation or any of the Corporation's (or any affiliate's) customers; (iv)
conviction of a felony; or (v) substantial, continuing and willful improper
performance or non-performance of any of Susan's material duties hereunder. For
purposes of this subsection (a), no act, or failure to act, on Susan's part
shall be considered "willful" unless done, or omitted to be done, by her not in
good faith or without reasonable belief that her action or omission was in the
best interests of the Corporation. Notwithstanding the foregoing, Xxxxx shall
not be deemed to have been terminated for cause without (i) thirty (30) days'
notice to Xxxxx setting forth the reasons for the Corporation's intention to
terminate for cause, (ii) an opportunity for Xxxxx, together with her counsel,
to be heard before the Corporation's board of directors, and (iii) delivery to
Xxxxx 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 Corporation's Board of Directors or in the good faith opinion of the Board
of Directors of FPC, Xxxxx was guilty of conduct set forth or described above in
justifying the Corporation's termination of Susan's employment for cause and
specifying the particulars thereof in detail.
(b) Xxxxx may terminate her employment under this agreement for Good
Reason (as hereinafter defined). For purposes of this agreement, "Good Reason"
shall mean (i) a Change of Control (as defined below) of the Corporation or of
FPC which shall have been in effect for a period of at least ninety (90)
consecutive days; provided, however, that at any time within six months of the
date of this Agreement Xxxxx shall be unable to work harmoniously and
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effectively with the personnel constituting the new management of the
Corporation or FPC resulting from such Change of Control (if any), in the case
of FPC, only to the extent that such inability relates to matters solely
relating to the management and operations of the Corporation, (ii) a failure by
the Corporation to comply with any material provision of this agreement which
noncompliance shall have a material adverse effect upon Xxxxx and which shall
not have been cured within thirty (30) days after notice of such noncompliance
has been given by Xxxxx to the Corporation pursuant to this agreement, (iii) if
Susan's management functions, duties or responsibilities or any other material
aspect of Susan's employment shall have been materially and adversely changed by
the Corporation for a period in excess of thirty (30) consecutive days
notwithstanding Susan's written objection thereto or (iv) any purported
termination of Susan's employment which is not properly 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 the Corporation) the
beneficial owner of shares of the Corporation or of FPC having more than thirty
(30%) percent of the total number of votes that may be cast for the election of
directors of the Corporation or 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 the Corporation or to FPC (hereinafter
referred to as a "Transaction") the persons who were directors of the
Corporation or of FPC before the Transaction shall cease for any reason to
constitute at least a majority of the Board of Directors of the Corporation or
of FPC, as the case may be, or any successor(s) of either of such entities. For
purposes of this Section 7, the acquisition on the date hereof by each of
Messrs. Xxxxxxx Xxxxxxxxx and Xxxxxx Xxxx of a portion of Xxxxxx Xxxxx'x
interest in FPC shall be deemed a "Change of Control" subject to the provisions
of subsection 7(b).
(d) Any termination of Susan's employment by the Corporation or by Xxxxx
(other than termination by reason of Susan's 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 Susan's
employment under the provision so indicated.
(e) "Date of Termination" shall mean (i) if Susan's employment is
terminated by her death, the date of her death, (ii) if Susan's employment is
terminated pursuant to subsection (c) above, the date specified in the Notice of
Termination, and (iii) if Susan's 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 Xxxxx fails to perform her duties hereunder as
a result of incapacity due to physical or mental illness ("disability period"),
Xxxxx shall continue to receive her full salary at the rate then in effect for
such period and all employment benefits due to Xxxxx until her employment is
terminated pursuant to Section 7 above, provided that payments so made to Xxxxx
during the disability period shall be reduced by the sum of the amounts, if any,
payable to Xxxxx 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 Susan's employment is terminated by her death, the Corporation
shall pay to Susan's spouse, or if she leaves no spouse, to her estate, within
thirty (30) days of Susan's death, all salary and employment benefits due to
Xxxxx accrued through the date of her death.
(c) If Susan's employment shall be properly terminated for cause pursuant
to all of the applicable provisions of this agreement, the Corporation shall pay
Xxxxx her full salary only 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 Xxxxx under or pursuant to this Agreement.
(d) If (i) in breach of this agreement, the Corporation shall terminate
Susan's 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) Xxxxx shall terminate her
employment for Good Reason, then
(I) the Corporation shall pay Xxxxx her full salary and all
employment benefits due to Xxxxx 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 Xxxxx for periods
subsequent to the Date of Termination, the Corporation shall pay to Xxxxx, as
severance pay (and not as a penalty to the Corporation), an amount equal to the
product of (A) Susan's 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
or of FPC, 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 of 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;
(III) in addition to the payments referred to in clause (I) and (II)
above, if termination of Susan's employment arises out of a breach by the
Corporation of this agreement, the Corporation shall also pay to Xxxxx (i) the
severance payment of Three Hundred Fifty Thousand ($350,000.00) Dollars payable
pursuant to subsection 2(b) of this agreement plus (ii)
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all other damages to which Xxxxx may be entitled as a result of such breach,
including damages for any and all loss of benefits to Xxxxx under the
Corporation's employee benefit plans (other than the Corporation's Bonus
Compensation Plan) which Xxxxx would have received if the Company had not
breached this agreement and had Susan's employment continued for the full term
provided in Section 2 hereof.
(e) Unless Susan's employment is properly terminated by the Corporation
for cause, the Corporation shall maintain in full force and effect, for the
continued benefit of Xxxxx 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 Xxxxx was entitled to
participate immediately prior to the Date of Termination, provided that Susan's
continued participation is possible under the general terms and provisions of
such plans and programs. In the event that Susan's participation in any such
plan or program is barred, the Corporation shall arrange to provide Xxxxx with
benefits substantially similar to those which Xxxxx would otherwise have been
entitled to receive under such plans and programs from which her continued
participation is barred.
(f) Unless Susan's employment is properly terminated by the Corporation
for cause, Susan's Annual Bonus shall continue to be paid after the Date of
Termination for a period not to exceed six (6) months with respect to all
unfinished projects for which the Corporation shall have been engaged as of the
Date of Termination. The amount of Susan's Annual Bonus payable subsequent to
the Date of Termination as aforesaid shall be based upon the Corporation's net
profits before taxes which are allocable to such projects, as determined by the
Corporation's outside accounting firm, subject to review and approval by the
accounting firm which prepares the consolidated financial statements for all of
the companies affiliated with FPC, in accordance with generally accepted
accounting principles, consistently applied, as if the Corporation were not a
member of an affiliated group of corporations.
(g) The Corporation may withhold from any payments or other benefits
payable to Xxxxx 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. Xxxxx recognizes and acknowledges that the
Corporation's trade secrets and know-how as they may exist from time to time
are a valuable, special and unique asset of the Corporation's business,
access to and knowledge of which are essential to the performance of Susan's
duties hereunder. For the purposes of this agreement, Confidential
Information includes any and all information (i) disclosed or made available
to Xxxxx or known by Xxxxx in consequence of or through the employment of
Xxxxx by the Corporation and not generally known in the industry in which the
Corporation or any of the Corporation's customers is or may be engaged, or
which is beneficial to the Corporation, or any of the Corporation's customers
in the promotion or operation of their respective businesses, (ii) relating
to the business, business practices, operation, affairs, practices,
procedures, policies or methods of the Corporation, (iii) constituting
customer lists, (iv) constituting marketing information and (v) constituting
training materials. The term "Confidential Information" does not include
information that is known to the public other than as a result of a
disclosure by you or any other person or entity which has a confidentiality
obligation to the Corporation or FPC with respect to such information. Since
the services of Xxxxx are unique, extra-ordinary and of a specialized
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character which will require Xxxxx to handle Confidential Information of the
Corporation and of the Corporation's suppliers and customers, Xxxxx 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 the Corporation) nor shall Xxxxx disclose any Confidential Information
to any person or entity for any reason or purpose whatsoever.
Notwithstanding the foregoing, this paragraph 9 shall not be applicable in
the event (i) Xxxxx terminates her employment for Good Reason as defined in
subparagraph 7(b) hereof; (ii) the Corporation terminates this Agreement
other than "cause"; or (iii) the Corporation elects not to renew this
agreement for any reason at the expiration of the Term or a Renewal Term.
10. Covenant Not to Solicit. Xxxxx, 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 the Corporation and any customer, client, employee or independent
contractor of the Corporation or provide any services to, as the case may be,
any accounts, clients or customers of the Corporation (or any accounts,
clients or customers which were contacted or solicited by the Corporation
during the term of this Agreement) with whom Xxxxx had any direct or indirect
contact during her employment hereunder. Notwithstanding the foregoing, this
paragraph 10 shall not be applicable in the event (i) Xxxxx terminates her
employment for Good Reason as defined in subparagraph 7(b) hereof; (ii) the
Corporation terminates this Agreement for a reason other than "cause"; or
(iii) the Corporation elects not to renew this Agreement at the expiration of
the Term or a Renewal Term.
11. Return of Documents. Upon termination of employment with the Corporation,
Xxxxx shall promptly return to the Corporation all documents, notes, records
and other materials of the Corporation in Susan's possession, whether
prepared by Xxxxx or others, including, without limitation all materials and
information stored on computer disk or other electronic media; provided that
the foregoing restriction shall not apply in the event (i) Xxxxx terminates
her employment for Good Reason as defined in subparagraph 7(b) hereof; (ii)
the Corporation terminates this Agreement for a reason other than "cause"; or
(iii) the Corporation elects not to renew this Agreement at the expiration of
the Term or a Renewal Term, with respect to any documents, notes, records and
other materials of the Corporation which are needed by Xxxxx to operate any
business engaged in by Xxxxx upon termination of this Agreement (the
"Retained Materials"); provided, however, that Xxxxx shall deliver a copy of
all such Retained Materials to the Corporation within ten (10) days of the
date of termination of Susan's employment.
12. Enforcement of Non-Disclosure and Non-Solicitation Provisions. It is the
desire and intent of the par-ties 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.
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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 Xxxxx 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. Susan's employment under this agreement shall terminate
upon the death or, at the election of the Corporation, the physical or mental
disability of Xxxxx. For purposes of this agreement, Xxxxx shall be deemed
to be disabled if she is unable to perform her services for twelve (12)
consecutive months. If the Corporation elects to terminate this agreement
pursuant to this Section 14, the Corporation shall notify Xxxxx of the
Corporation's decision to terminate Susan's 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 Xxxxx
pursuant to this Section 14, Susan's compensation and rights thereto and all
of Susan's other rights under this agreement shall terminate except as
otherwise specifically set forth in Section 8 above.
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 Susan's mailing address set forth above, or by personal
delivery to Xxxxx, in the case of Xxxxx, to its office address set forth
above, in the case of the Corporation, with a copy sent in like manner to
such counsel as the Corporation shall designate by written notice to Xxxxx.
Notices shall be deemed given two (2) business days after mailing, or on the
date personal delivery is effected, as the case may be.
16. Waiver of Breach. The waiver by any party of a breach of any provision of
this agreement by the other party shall not operate or be construed as a
waiver of any subsequent or other breach by the 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.
19. 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
Xxxxx 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 Xxxxx are
parties, the provision of such other agreement shall control.
21. Arbitration. If any dispute shall arise between the Corporation and Xxxxx
with regard to this agreement, such dispute shall be promptly submitted to
and decided by arbitration by the
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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 Managing Director's Agreements. Notwithstanding anything to the
contrary, any prior Managing Director's Agreement between the Corporation and
Xxxxx (including, without limitation, the Old Agreement) 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.
Corporation:
Xxxxxxxxxx Xxxxxxx Partners Inc.
By:
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Xxxxxxx Xxxxxxx
Managing Director
By:
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Xxxxx Xxxxxxxxxx
Managing Director
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Xxxxx Xxxxxxxxxx
The provisions of Sections 5(b) and 5(c)
relating to the possible issuance of
Bonus Securities are hereby consented to:
Financial Performance Corporation
By:
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Xxxxxxx X. Xxxxxx, President
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