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EXHIBIT 10.16
RESTATED AND AMENDED MANAGING DIRECTOR'S AGREEMENT
Agreement made as of November 16, 1999, by and between ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Partners Inc., a New York corporation with offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10017(the "Corporation") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
residing at _____________________________ ("Hillary").
W I T N E S S E T H:
Whereas, Hillary 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 Hillary 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 Hillary for
the Term (as hereinafter defined) and Hillary 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 Hillary 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
Hillary'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 Hillary 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 Hillary that it elects not to renew
this agreement at the expiration of the Term, then and only in such event,
provided that Hillary'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 Hillary 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 Hillary, 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 Hillary elects not to renew this Agreement at the expiration of the
Term and Hillary'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 Hillary 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 Hillary, 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 Hillary's Annual Bonus (as such term is hereinafter
defined).
3. Duties. Hillary 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 Hillary in such capacity from time to time, such
duties to be substantially similar to the duties heretofore undertaken by
Hillary as a Managing Director of the Corporation. The duties of Hillary shall
include jointly managing with ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ or her successor ("▇▇▇▇▇"), 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 Hillary and
▇▇▇▇▇ shall together exercise full management control of the day-to-day
operations of the Corporation for so long as both ▇▇▇▇▇ and Hillary are employed
by the Corporation.
4. Extent of Services. During the period in which Hillary is employed by the
Corporation, Hillary shall devote Hillary'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 Hillary from investing Hillary'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 Hillary in
the operation of the affairs of the companies in which such investments are
made and in which Hillary's participation is solely that of a passive
investor.
5. Compensation.
(a) For all services rendered by Hillary pursuant to this agreement, the
Corporation shall pay Hillary 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) Hillary 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 Hillary and ▇▇▇▇▇. The portion of the Bonus Pool to which
Hillary shall become entitled for any fiscal year of the Corporation is
hereinafter referred to as "Hillary'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. Hillary's Annual Bonus shall be payable in cash or, if agreed
to by Hillary, 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 Hillary. 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 Hillary 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 Hillary in full or partial payment of Hillary'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) Hillary shall exercise and sell all of the Bonus Securities
during the Sales Period and (ii) the aggregate gross sales price received by
Hillary 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 Hillary to FPC during the Sales Period (hereinafter, the "Gross Sales
Proceeds") shall be less than the agreed-upon equivalent cash value of Hillary'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 Hillary 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 Hillary, 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 Hillary unless all of the Bonus Securities are exercised and
sold by Hillary prior to the expiration of the Sales Period.
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6. Employment Benefits. Hillary shall be entitled to four (4) weeks vacation
for each one (1) year of Hillary's employment pursuant to this agreement,
during which Hillary's salary shall be paid in full. Hillary 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. Hillary 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 Hillary
with and shall pay all premiums for family coverage under a group health
insurance plan reasonably comparable to the coverage currently provided to
Hillary by the Corporation, to the extent same is reasonably obtainable by
the Corporation. The Corporation shall also provide Hillary 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 Hillary'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 Hillary 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 Hillary of notice of such breach; (ii) a
continued failure of Hillary after thirty (30) days' notice of a prior failure
to devote Hillary's full active business time (as more particularly described in
Section 4 above) to the performance of Hillary's duties hereunder; (iii) an act
of willful misconduct in the performance of Hillary'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 Hillary's material
duties hereunder. For purposes of this subsection (a), no act, or failure to
act, on Hillary'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, Hillary shall not be deemed to have been terminated for cause without
(i) thirty (30) days' notice to Hillary setting forth the reasons for the
Corporation's intention to terminate for cause, (ii) an opportunity for Hillary,
together with her counsel, to be heard before the Corporation's board of
directors, and (iii) delivery to Hillary 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, Hillary was guilty of
conduct set forth or described above in justifying the Corporation's termination
of Hillary's employment for cause and specifying the particulars thereof in
detail.
(b) Hillary 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
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period of at least ninety (90) consecutive days; provided, however, that at any
time within six months of the date of this Agreement Hillary shall be unable to
work harmoniously and 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 Hillary
and which shall not have been cured within thirty (30) days after notice of such
noncompliance has been given by Hillary to the Corporation pursuant to this
agreement, (iii) if Hillary's management functions, duties or responsibilities
or any other material aspect of Hillary's employment shall have been materially
and adversely changed by the Corporation for a period in excess of thirty (30)
consecutive days notwithstanding Hillary's written objection thereto or (iv) any
purported termination of Hillary'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. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ of a portion of ▇▇▇▇▇▇ ▇▇▇▇▇'▇
interest in FPC shall be deemed a "Change of Control" subject to the provisions
of subsection 7(b).
(d) Any termination of Hillary's employment by the Corporation or by
Hillary (other than termination by reason of Hillary'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 Hillary's employment under the provision so indicated.
(e) "Date of Termination" shall mean (i) if Hillary's employment is
terminated by her death, the date of her death, (ii) if Hillary's employment is
terminated pursuant to subsection (c) above, the date specified in the Notice of
Termination, and (iii) if Hillary'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 ▇▇▇▇▇
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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 Hillary fails to perform her duties hereunder
as a result of incapacity due to physical or mental illness ("disability
period"), Hillary shall continue to receive her full salary at the rate then in
effect for such period and all employment benefits due to Hillary until her
employment is terminated pursuant to Section 7 above, provided that payments so
made to Hillary during the disability period shall be reduced by the sum of the
amounts, if any, payable to Hillary 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 Hillary's employment is terminated by her death, the Corporation
shall pay to Hillary's spouse, or if she leaves no spouse, to her estate, within
thirty (30) days of Hillary's death, all salary and employment benefits due to
Hillary accrued through the date of her death.
(c) If Hillary's employment shall be properly terminated for cause
pursuant to all of the applicable provisions of this agreement, the Corporation
shall pay Hillary 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 Hillary under or pursuant to this
Agreement.
(d) If (i) in breach of this agreement, the Corporation shall terminate
Hillary'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) Hillary shall terminate her
employment for Good Reason, then
(I) the Corporation shall pay Hillary her full salary and all
employment benefits due to Hillary 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 Hillary for periods
subsequent to the Date of Termination, the Corporation shall pay to Hillary, as
severance pay (and not as a penalty to the Corporation), an amount equal to the
product of (A) Hillary'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
semi-monthly 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;
(III) in addition to the payments referred to in clause (I) and (II)
above, if termination of Hillary's employment arises out of a breach by the
Corporation of this agreement,
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the Corporation shall also pay to Hillary (i) the severance payment of Three
Hundred Fifty Thousand ($350,000.00) Dollars payable pursuant to subsection 2(b)
of this agreement plus (ii) all other damages to which Hillary may be entitled
as a result of such breach, including damages for any and all loss of benefits
to Hillary under the Corporation's employee benefit plans (other than the
Corporation's Bonus Compensation Plan) which Hillary would have received if the
Company had not breached this agreement and had Hillary's employment continued
for the full term provided in Section 2 hereof.
(e) Unless Hillary's employment is properly terminated by the Corporation
for cause, the Corporation shall maintain in full force and effect, for the
continued benefit of Hillary 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 Hillary was entitled to
participate immediately prior to the Date of Termination, provided that
Hillary's continued participation is possible under the general terms and
provisions of such plans and programs. In the event that Hillary's participation
in any such plan or program is barred, the Corporation shall arrange to provide
Hillary with benefits substantially similar to those which Hillary would
otherwise have been entitled to receive under such plans and programs from which
her continued participation is barred.
(f) Unless Hillary's employment is properly terminated by the Corporation
for cause, Hillary'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 Hillary'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 Hillary 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. Hillary 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
Hillary's duties hereunder. For the purposes of this agreement, Confidential
Information includes any and all information (i) disclosed or made available
to Hillary or known by Hillary in consequence of or through the employment of
Hillary 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
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person or entity which has a confidentiality obligation to the Corporation or
FPC with respect to such information. Since the services of Hillary are unique,
extra-ordinary and of a specialized character which will require Hillary to
handle Confidential Information of the Corporation and of the Corporation's
suppliers and customers, Hillary 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 Hillary
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) Hillary 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.
10. Covenant Not to Solicit. Hillary, 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 Hillary had any direct or indirect contact
during her employment hereunder. Notwithstanding the foregoing, this paragraph
10 shall not be applicable in the event (i) Hillary 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,
Hillary shall promptly return to the Corporation all documents, notes,
records and other materials of the Corporation in Hillary's possession,
whether prepared by Hillary 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)
Hillary 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 Hillary to operate any business engaged in by Hillary upon
termination of this Agreement (the "Retained Materials"); provided however,
that Hillary shall deliver a copy of all such Retained Materials to the
Corporation within ten (10) days of the date of termination of Hillary'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
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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 Hillary 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. Hillary's employment under this agreement shall
terminate upon the death or, at the election of the Corporation, the physical or
mental disability of Hillary. For purposes of this agreement, Hillary 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 Hillary of the
Corporation's decision to terminate Hillary'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 Hillary pursuant to this
Section 14, Hillary's compensation and rights thereto and all of Hillary'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 Hillary's mailing address set forth above, or by
personal delivery to Hillary, in the case of Hillary, 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 Hillary. 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
Hillary 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 Hillary
are parties, the provision of such other agreement shall control.
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21. Arbitration. If any dispute shall arise between the Corporation and
Hillary 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 Agreements. Notwithstanding anything to the
contrary, any prior Managing Director's Agreement between the Corporation and
Hillary (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:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Partners Inc.
By:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Managing Director
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Managing Director
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
10