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MANAGING DIRECTOR'S AGREEMENT
Agreement made as of September 11, 1997, 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 000 Xxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 ("Xxxxx").
W I T N E S S E T H:
Whereas, the Corporation desires to continue to engage the services of Xxxxx as
a Managing Director of the Corporation for a three (3) year period commencing on
September 11, 1997 (the "Term"); and
Whereas, Xxxxx is willing to continue such employment by the Corporation for the
Term 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 continues its employment of Xxxxx for the
Term and Xxxxx hereby accepts such employment upon the terms and conditions
hereinafter set forth.
2. Term. The Term of this agreement is three (3) years, commencing on September
11, 1997 and ending on September 10, 2000, 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. 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, in
addition to and without limitation of any other compensation, severance payments
or benefits which may be or become due from the Corporation to Xxxxx pursuant to
this agreement, 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.
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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, 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, 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 of One Hundred Fifty Thousand
($150,000.00) Dollars, payable bi-weekly, in arrears. Such salary shall be
subject to periodic increases as shall be determined by the Board of Directors
of the Corporation.
(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
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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. 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 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
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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 each year of the term of this agreement and (ii)
a leased automobile of Susan's choice throughout the term of this agreement.
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 include, without
limitation, the following: (i) a material breach by Xxxxx of any term of this
agreement; (ii) a continued failure of Xxxxx after 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 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 misrepresentation relating to the Corporation or any of its customers;
(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 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) reasonable 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 in control of the Corporation (as defined below) which
shall have been in effect for a period of at least ninety (90) consecutive days;
provided, however, that Xxxxx shall be unable to work harmoniously and
effectively with the personnel constituting the new management 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)
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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 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.
(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).
8. Compensation Upon Termination or During Disability.
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(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 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 terminated for cause, the
Corporation shall pay Xxxxx her 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 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 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 xxxxxxxxx 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, 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 Susan's employment arises out of a
breach by the Corporation of this agreement, the Corporation shall pay all other
damages to which Xxxxx may be entitled as a result of such breach, including
damages for any and all loss of
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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 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) 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) customer lists, (iv) marketing information and (v) training
materials. Since the services of Xxxxx are unique, extraordinary and of a
specialized 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.
10. Covenants 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,
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contractual or otherwise, between the Corporation and any customer, client,
employee or independent contractor of the Corporation or solicit or provide
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.
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.
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 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.
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, or
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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.
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.
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 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 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 Agreement. Notwithstanding anything herein
contained to the contrary, the prior Managing Director's Agreement between the
Corporation and Xxxxx dated as of October 17, 1994 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.
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Corporation:
Xxxxxxxxxx Xxxxxxx Partners Inc.
By:/s/____________________________________
Xxxxxxx Xxxxxxx
Managing Director
Managing Director:
/s/_______________________________________
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:/s/_____________________________
Xxxxxxx X. Xxxxxx, President
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