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RESTATED AND AMENDED EXECUTIVE EMPLOYMENT AGREEMENT
Agreement made as of April 21, 1999, 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.
(b) 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, provided
that Xxxxxx'x 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 Xxxxxx
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
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severance payment payable pursuant to this subparagraph (b) are mutually
exclusive), (i) the Corporation shall pay to Xxxxxx 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 and (ii) the Corporation shall
issue to Xxxxxx within ten (10) days following the expiration of the Term, the
Termination Stock (hereinafter defined) as set forth in Section 8(d) below.
(c) If Xxxxxx elects not to renew this Agreement at the expiration of
the Term and Xxxxxx'x 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 Xxxxxx 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 Xxxxxx, 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 Xxxxxx'x Annual Bonus (as such term is hereinafter
defined).
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 twice monthly on
the 15th and 30th of each month, in arrears, as follows: (i) One Hundred Fifty
Thousand ($150,000.00) Dollars per annum during the period commencing on October
1, 1997 through September 30, 1998; and (ii) Two Hundred Fifty Thousand
($250,000.00) Dollars during the period commencing on October 1, 1998
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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.
6. Employment 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 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. 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 Xxxxxx of any material term of this
agreement that has not been cured within thirty (30) days of receipt by Xxxxxx
of written notice of such breach and 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; (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 in the performance of Xxxxxx'x 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 material
misrepresentation relating to the Corporation (or any affiliate) or any of its
(or any affiliate's) customers which causes substantial damage to the reputation
of the Corporation (or any affiliate); (iv) 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
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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) the occurrence of a Change in Control (as defined below) of FPC
or of FPC's subsidiary, Xxxxxxxxxx Xxxxxxx Partners Inc. ("MKP"), (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 notwithstanding Xxxxxx'x written objection
thereto, (iv) if Xxxxxx shall cease to be chairman of the board of directors and
the chief executive officer of FPC (other than by reason of death, incapacity or
resignation), (v) any purported termination of Xxxxxx'x 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), or (vi) the failure of FPC, on or
prior to the date of any merger, consolidation or any similar transaction, to
obtain the written assumption by any successor to the business of FPC of FPC's
obligations hereunder.
(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 stock of FPC or of MKP having more than thirty percent (30%) of the
total number of votes that may be cast for the election of directors of FPC or
of MKP and such beneficial ownership continues for thirty (30) consecutive days,
(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 or to MKP (hereinafter referred to as a "Transaction") the persons who were
directors of FPC or of MKP before the Transaction shall cease for any reason to
constitute at least a majority of the Board of Directors of FPC or of MKP, as
the case may be, or any successor(s) of either of such entities, (iii) the sale
of all or substantially all of the assets of FPC or of MKP, (iv) a change in the
composition of the board of directors of FPC (the "FPC Board") such that the
individuals who, as of the date hereof, constitute the FPC Board (the FPC Board
as of the date hereof shall be hereinafter referred to as the "Incumbent FPC
Board") cease for any reason to constitute at least a majority of the FPC Board;
provided, however, that any individual who becomes a member of the FPC Board
subsequent to the date hereof whose election, or nomination for election, was
approved by a vote of at least a majority of those individuals who are members
of the FPC Board and who were also members of the Incumbent FPC Board (or deemed
to be such pursuant to this proviso) shall be considered as though such
individual were a member of the Incumbent FPC Board, or (v) a change in the
composition of the board of directors of MKP (the "MKP Board") such that the
individuals who, as of the date hereof, constitute the MKP Board (the MKP Board
as of the date hereof shall be hereinafter referred to as the "Incumbent MKP
Board") cease for any reason to constitute at least a majority of the MKP Board;
provided, however, that any individual who becomes a member of the MKP
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Board subsequent to the date hereof whose election, or nomination for election,
was approved by a vote of at least a majority of those individuals who are
members of the MKP Board and who were also members of the Incumbent MKP Board
(or deemed to be such pursuant to this proviso) shall be considered as though
such individual were a member of the Incumbent MKP Board.
(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 15 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 (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).
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 and all employment benefits due to Xxxxxx until his
employment is terminated pursuant to Section 7 above and Section 15 below,
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. Within thirty (30)
days of the termination of Xxxxxx'x employment due to disability, the
Corporation shall pay to Xxxxxx all salary and employment benefits due to him
accrued through the date of such termination, plus an amount equal to one year's
salary at the rate in effect immediately prior to such termination (determined
without regard to any payments under disability benefit plans of the
Corporation).
(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, plus an amount equal to one year's
salary at the rate in effect immediately prior to Xxxxxx'x death.
(c) If Xxxxxx'x employment shall be properly terminated for cause
pursuant to all of the applicable provisions of this agreement, the Corporation
shall pay Xxxxxx his 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 Xxxxxx under or pursuant to this Agreement.
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(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 15 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 15 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 and all
employment benefits due to Xxxxxx 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 in a lump sum on or before the thirtieth (30th) day following the Date of
Termination;
(III) in addition to all other salary, employment benefits and
other payments due to Xxxxxx pursuant to the provisions of this subsection 8(d),
the Corporation shall issue to Xxxxxx, within ten (10) days after the Date of
Termination, such number of shares of the Corporation's common stock (such
shares of common stock are hereinafter referred to as the "Termination Stock")
as shall have an aggregate fair market value as of the Date of Termination equal
to one million ($1,000,000.00) dollars less the aggregate fair market value of
all of the shares of the Corporation's common stock and all of the warrants,
options and other derivative securities to purchase shares of the Corporation's
common stock which are owned of record by Xxxxxx on the Date of Termination. For
purposes of this clause (III), (x) the fair market value of each share of the
Corporation's common stock as of the Date of Termination shall be the average of
the bid and ask prices for the Corporation's common stock for the ten (10)
trading days immediately preceding the Date of Termination and (y) the fair
market value of each warrant, option or other derivative security to purchase
one (1) share of the Corporation's common stock as of the Date of Termination
shall be equal to the fair market value of one (1) share of the Corporation's
common stock as of the Date of Termination less the per share exercise price of
such warrant, option or other derivative security (but in no event shall such
fair market value of any warrant, option or other derivative security be less
than zero). If the Corporation's common stock shall not be publicly traded on
the Date of Termination, then the fair market value of the Corporation's common
stock shall be mutually determined by two investment banking firms with
experience related to the business of the Corporation and its subsidiaries. In
such event, one such firm shall be designated by Xxxxxx and the other firm shall
be designated by the Corporation. The fair market value of the Corporation's
common stock and the fair market value of the warrants, options and other
derivative securities to purchase shares of the Corporation's common stock as
determined pursuant to this clause (III) of this subsection 8(d) shall be final,
conclusive and binding upon the parties hereto. The Corporation shall be
obligated to register the Termination Stock, at the Corporation's sole cost and
expense, pursuant to a registration statement filed within sixty (60) days after
the Date of Termination and declared effective as soon thereafter as is
reasonably practicable. Further, if from and after the Date of Termination, the
shares of the Corporation's common stock underlying the warrants, options and
other
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derivative securities owned of record by Xxxxxx on the Date of Termination (such
underlying shares of common stock hereinafter referred to as "Underlying
Shares") shall not be freely tradeable by Xxxxxx pursuant to an effective
registration statement, then the Corporation shall also be obligated to register
all of the Underlying Shares together with the Termination Stock, at the
Corporation's sole cost and expense, pursuant to the aforementioned registration
statement. The Corporation shall be obligated to use its best efforts to cause
such registration statement to be declared effective as soon as possible after
filing and to maintain such effectiveness until all of the Termination Stock and
all of the Underlying Shares shall have been sold by Xxxxxx; and
(IV) in addition to the payments referred to in clauses (I),
(II) and (III) above, 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 to Xxxxxx under the Corporation's
employee benefit plans which Xxxxxx would have received if the Corporation had
not breached this agreement and had Xxxxxx'x employment continued for the full
term provided in Section 2 hereof.
In addition to the occurrences specified in clauses (i) and (ii) of the preamble
to this subsection 8(d), the Termination Stock shall also be issued to Xxxxxx as
provided in subsection 2(b) above.
(e) Unless Xxxxxx'x employment is properly 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 Xxxxxx 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. Excise Taxes. In the event that any payments made to Xxxxxx under this
Agreement or otherwise (the "Payments") are subject to any excise taxes,
including, without limitation, excises taxes imposed by section 4999 of the
Internal Revenue Code of 1986, as amended (the "Excise Taxes"), the Corporation
shall pay Xxxxxx an additional amount such that the net amount retained by him
after deduction and/or payment of any Excise Taxes on the Payments, and any
interest and/or penalties assessed by the Internal Revenue Service with respect
to the Excise Taxes, shall be equal to the Payments. The determination of
whether such Excise Taxes are payable and the amount thereof shall be based upon
the opinion of counsel selected by the Corporation and acceptable to Xxxxxx. If
such opinion is not accepted by the Internal Revenue Service, then appropriate
adjustments shall be computed and paid hereunder based upon the final amount of
the Excise Taxes, interest and/or penalties (if any) so determined. Any such
adjustments shall be paid by the Corporation to Xxxxxx in one lump sum cash
payment within thirty (30) days following such computation.
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10. 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.
11. Covenants Not to Solicit. For the six (6) month-period immediately
following the earlier of the termination of Xxxxxx'x employment hereunder or the
date of expiration of this agreement, Xxxxxx, whether as a proprietor, partner,
employee, agent, consultant, director, officer, controlling stockholder or in
any other capacity whatsoever, shall not, without the consent of FPC or of any
of its subsidiaries, (a) solicit any Business Associate (as hereinafter defined)
for the purpose of interfering with, disrupting or attempting to disrupt the
relationship, contractual or otherwise between FPC and/or any of its
subsidiaries and such Business Associate, or (b) request any Business Associate
to cancel, curtail or divert his, her or its business with FPC and/or any of its
subsidiaries. For purposes hereof, the term "Business Associate" means any
person or entity that, to Xxxxxx'x knowledge, is, at the time of any such
solicitation or request, a customer, client, or employee of FPC and/or any of
its subsidiaries with whom Xxxxxx had any direct or indirect contact during his
employment hereunder. However, notwithstanding the foregoing provisions of this
Section 11, it is understood that Xxxxxx may, in 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.
12. 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 10 ("Disclosure of Information") and Section 11 ("Covenants Not to
Interfere").
13. Enforcement of Non-Disclosure and Non-Solicitation Provisions. It is
the desire and intent of the parties that the provisions of Sections 10, 11 and
12 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 10, 11 or 12 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
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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 10, 11, 12 and 14 shall survive the expiration or earlier termination
of this agreement.
14. Injunctive Relief. If there is a breach or threatened breach of any of
the provisions of Sections 10, 11 or 12 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.
15. 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 15, 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 15, Xxxxxx'x compensation and rights thereto and all of Xxxxxx'x other
rights under this agreement shall terminate except as otherwise specifically set
forth in Sections 8 and 9 above.
16. 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.
17. 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.
18. 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.
20. Severability. If any provision of this agreement is found to be void or
unenforceable by a court of competent jurisdiction, the remaining provisions of
this agreement shall nevertheless be binding upon the Corporation and Xxxxxx
with the same effect as though the void or unenforceable provision had been
severed and deleted.
21. 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.
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22. 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.
23. Non-Assignment. This Agreement and all rights hereunder are personal to
Xxxxxx and shall not be assignable; provided, however, all of Xxxxxx'x rights to
compensation following his death shall inure to the benefit of his surviving
spouse, his estate or other legal representatives as the case may be. Any
person, firm, corporation or entity succeeding to the business of FPC and/or FPC
Information Corp. by merger, purchase, consolidation or otherwise shall assume
by contract or operation of law all obligations of the Corporation hereunder;
provided, however, the Corporation shall, notwithstanding such assumption or
assignment, remain liable and responsible for the fulfillment of its obligations
under this Agreement.
24. Prior Executive Employment Agreement. Notwithstanding anything herein
contained to the contrary, the prior Executive Employment Agreement between the
Corporation and Xxxxxx dated as of September 1, 1995 and the prior Restated
Executive Employment Agreement between the Corporation and Xxxxxx dated as of
September 11, 1997, as amended, are hereby deemed terminated and are 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/ XXXXXX XXXXX
---------------------------------
Xxxxxx Xxxxx, Vice President
FPC Information Corp.
By: /s/ XXXXXX XXXXX
---------------------------------
Xxxxxx Xxxxx, Vice President
/s/ XXXXXXX X. XXXXXX
---------------------------------
Xxxxxxx X. Xxxxxx, individually
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