EXHIBIT 10.23
FIRST AMENDMENT TO THE
EMPLOYMENT AND CONSULTING
AGREEMENT AND GENERAL RELEASE
The Employment and Consulting Agreement and General Release, made as of the
29th day of April, 1997, by and between May & ▇▇▇▇, Inc., a Delaware
corporation, and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (the "Agreement"), is hereby amended as of
this 21st day of November, 1997, as follows:
1. In addition to all other payments to which ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ("▇▇▇▇") is
entitled under the Agreement, May & ▇▇▇▇, Inc. (the "Employer") shall pay
▇▇▇▇, during the term of the Agreement, the sum of $25,000 per calendar
year, such amount to be used by ▇▇▇▇ to provide himself with adequate
support and facilities, as required under Paragraph 4B of the Agreement.
The amount shall be payable hereunder in relatively equal quarterly
installments during the term of the Agreement, with the first such
installment to be paid on or about January 15, 1998. Subsequent
installments shall thereafter be payable every ninety (90) days.
2. ▇▇▇▇ shall receive a single sum bonus payment of $300,000, to be paid, at
the Employer's discretion, on or before December 31, 1997 or in the
regular payroll dated January 9, 1998.
3. The Board of Directors of the Employer (the "Board") agrees that, for the
term of the Agreement, ▇▇▇▇ shall be nominated to serve on the Board,
provided ▇▇▇▇ owns at least 500,000 shares of the Employer's common stock
(the "Common Stock") at the time of such nomination.
4. For so long as ▇▇▇▇ is a member of the Board or has been nominated to serve
on the Board (provided, however, that this Paragraph 4 also shall continue
to apply if ▇▇▇▇ voluntarily resigns from the Board), ▇▇▇▇ agrees that he
will not, without the prior written consent of the Board, directly or
indirectly, sell, transfer any beneficial interest in, assign, pledge,
hypothecate or otherwise dispose of or encumber any shares of Common Stock
owned by him (except for any shares held by him in a fiduciary capacity):
(a) in a privately negotiated "block sale", which shall be defined as a
a sale of 100,000 or more shares of Common Stock; or
(b) to any person who has filed Schedule 13D under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
5. For so long as ▇▇▇▇ is a member of the Board of has been nominated to
serve on the Board (provided however, that this Paragraph 5 also shall
continue to apply if ▇▇▇▇ voluntarily resigns from the Board), ▇▇▇▇
agrees and covenants that he shall vote, or cause to be voted, all shares
of Common Stock of which he is the owner for those nominees slated by the
Board for election to the Board. ▇▇▇▇ further agrees and covenants to vote,
or cause to be voted, all shares of Common Stock for which he votes in
a fiduciary capacity for those nominees slated by the Board for election
to the Board at the next annual stockholders' meeting of the Employer to be
held in 1998.
6. For so long as ▇▇▇▇ is a member of the Board or has been nominated to serve
on the Board (provided, however, that this Paragraph 6 also shall continue
to apply if ▇▇▇▇ voluntarily resigns from the Board):
(a) Neither ▇▇▇▇ nor any person, corporation or other entity controlled by
or under common control with ▇▇▇▇ (the "Investor Group") shall solicit
proxies or become a "participant" in a "solicitation" (as such terms
are defined in Regulation 14A under the Exchange Act) or seek to
advise or influence any person or entity with respect to the voting of
(or giving of consents with respect to) any Common Stock or other
voting securities of the Employer in opposition to the recommendation
of the majority of the directors of the Employer with respect to any
matter.
(b) No member of the Investor Group shall join a partnership, limited
partnership, syndicate or other group (within the meaning of Section
13(d)(3) of the Exchange Act), or otherwise act in concert with any
other person, for the purpose of acquiring, holding, voting, giving of
consents, or disposing of shares of Common Stock or other voting
securities of the Employer.
(c) Neither ▇▇▇▇ nor any member of the Investor Group shall (i) either
alone, or in concert with others, seek to control or influence
the management, Board or policies of the Employer, (ii) tender shares
of Common Stock or other securities of the Employer in a hostile
tender offer or exchange in opposition to a Board recommendation, or
(iii) solicit, induce or encourage any offer to acquire the Employer,
its securities or assets or a merger or consolidation involving the
Employer.
7. ▇▇▇▇, on the one hand, and the Employer, on the other, acknowledge and
agree that irreparable damage would occur in the event any of the
provisions of Paragraphs 4, 5 and 6 were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of Paragraphs 4, 5 and 6 of this
Agreement and to enforce specifically the terms and provisions hereof in
any court of the United States or any state thereof having jurisdiction,
without the necessity of posting bond, in addition to any other remedy to
which they may be entitled at law or equity.
8. At any time after the effective date of this First Amendment, ▇▇▇▇ may, on
one occasion only, request registration under the Securities Act of 1933
("Securities Act") of all or part of the Common Stock owned directly or in
a fiduciary capacity by him. A registration requested pursuant to this
Paragraph 8 is referred to as "Demand Registration".
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(a) If a Demand Registration is in an underwritten public offering and the
managing underwriters advise the Employer in writing that in their
opinion the number of securities requested to be included in such
registration exceeds the number which can successfully be sold in such
offering, the Employer will exclude from such registration the number
of shares of Common Stock requested to be included by ▇▇▇▇ which in
the opinion of such underwriters can not be successfully sold.
(b) Notwithstanding the provisions of Paragraph (a) to the contrary, the
Employer may postpone, for up to 120 days, the filing or the
effectiveness of a registration statement for a Demand Registration if
the Employer reasonably believes such Demand Registration would have
an adverse effect on any proposal or plan by the Employer or any of
its subsidiaries to engage in any acquisition of stock or assets or
any merger, consolidation, tender offer or other significant
transaction or to permit the Employer to avoid a special audit.
(c) If the Employer has previously filed a registration statement, and if
such previous registration has not been withdrawn or abandoned, ▇▇▇▇
agrees not to exercise a Demand Registration until a period of 180
days has elapsed from the effective date of such previous
registration.
9. Whenever, from the date of this First Amendment and through the term of the
Agreement the Employer proposes to register any of its securities under the
Securities Act (except on Form S-4 or S-S or any successor forms), the
Employer will give prompt written notice to ▇▇▇▇ of the Employer's
intention to effect such a registration and the Employer will use
commercially reasonable efforts to include in such registration all Common
Stock owned directly or in a fiduciary capacity by ▇▇▇▇ with respect to
which ▇▇▇▇ has given the Employer written request for inclusion therein
within fifteen days after the giving of the Employer's notice to ▇▇▇▇ (a
"Piggyback Registration").
(a) If a Piggyback Registration is a part of an underwritten primary
registration on behalf of the Employer, and the managing underwriters
advise the Employer in writing that in their opinion the number of
securities requested to be included in such registration exceeds the
number which can successfully be sold in such offering, the Employer
will include in such registration (i) first, the number of securities
the Employer proposes to sell and (ii) second, the registrable
securities requested to be included in such registration which in the
opinion of such underwriters can be successfully sold, such securities
to be taken from the holders of such registrable securities pro rata
on the basis of the number of shares of such securities for which the
Employer has been given written requests for inclusion therein by each
such holder thereof. In the event of a non-underwritten public
offering, the Employer's Board may in its reasonable and good faith
judgment impose such limitations.
(b) If at Piggyback Registration is a part of an underwritten secondary
registration on behalf of holders of the Employer's securities, and
the managing underwriters
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advise the Employer in writing that in their opinion the number of
securities requested to be included in such registration exceeds the
number which can successfully be sold in such offering, the Employer
will include in such registration (i) first, the securities requested
to be included therein by the holders requesting such registration and
(ii) second, the registrable securities requested to be included in
such registration which in the opinion of such underwriters can
successfully be sold, such securities to be taken from the holders of
such registrable securities pro rata on the basis of the number of
shares of such securities for which the Employer has been given
requests for inclusion therein by each such holder thereof. In the
event of a non-underwritten public offering, the Employer's Board may
in its reasonable and good faith judgment impose such limitations.
10. ▇▇▇▇ agrees and covenants that he shall not effect any sale, transfer or
other distribution of equity securities of the Employer, or any securities
convertible into or exchangeable or exercisable for such securities, during
the fourteen days prior to and the 90-day period beginning on the effective
date of any underwritten primary registration or secondary registration of
the Common Stock (except as part of such registration). The Employer shall
have the right to select the underwriters in any underwritten registration.
11. If ▇▇▇▇ requests that any Common Stock be registered in a Demand
Registration or a Piggyback Registration pursuant to this Agreement, the
Employer will use commercially reasonable efforts to effect the
registration and the sale of such Common Stock, in accordance herewith and
with the intended method of disposition thereof, and pursuant thereto the
Employer will as expeditiously as reasonably practicable:
(a) prepare and file with the Securities and Exchange Commission (the
"Commission") a registration statement with respect to such Common
Stock and use commercially reasonable efforts to cause such
registration statement to become and remain effective for such period,
not to exceed six months, as may be reasonably necessary to effect the
sale of such securities;
(b) prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective for a period, which need not exceed six months, and comply
with the provisions of the Securities Act, with respect to the
disposition of all securities covered by such registration statement
during such period in accordance herewith and with the intended
methods of disposition by the sellers thereof set forth in such
registration statement;
(c) furnish to ▇▇▇▇ such number of copies of such registration statement,
each amendment and supplement thereto the prospectus included in such
registration statement (including each preliminary prospectus) and
such other documents as ▇▇▇▇ may reasonably request in order to
facilitate the disposition of such Common Stock owned by ▇▇▇▇; and
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(d) list such Common Stock on the principal exchange or market for the
Common Stock and register or qualify such Common Stock under such
other securities or blue sky laws of such jurisdictions as ▇▇▇▇
reasonably requests and do any and all other acts and things which may
be reasonably necessary or advisable to enable ▇▇▇▇ to consummate the
disposition in such jurisdictions of the Common Stock owned by ▇▇▇▇
(provided, however, that the Employer will not be required to (i) in
the case of a Piggyback Registration, register or qualify such Common
Stock in any jurisdiction where shares to be sold by the Employer are
not to be registered or qualified, (ii) qualify generally to do
business in any jurisdiction where it would not otherwise be required
to qualify but for this subparagraph, (iii) subject itself to taxation
in any such jurisdiction, or (iv) consent to general service of
process in any such jurisdiction).
12. All expenses incident to the Employer's performance of a Demand or
Piggyback Registration, including, without limitation, all registration and
filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of the Employer's independent certified public accountants
and legal counsel, and other persons retained by the Employer, shall be
borne by the Employer, provided, however, underwriting discounts and
commissions, any selling commissions and taxes attributable to the Common
Stock sold by or on behalf of ▇▇▇▇ and fees and expenses of any counsel
engaged by ▇▇▇▇ shall be borne by ▇▇▇▇.
13. In connection with any registration statement in which ▇▇▇▇ is
participating, ▇▇▇▇ will furnish to the Employer in writing such
information and affidavits as the Employer reasonably requests for use in
connection with any such registration statement or prospectus or any
amendment thereof or supplement thereto and, in any underwritten
registration, ▇▇▇▇ will enter into and execute an underwriting agreement
in the form reasonably requested by the underwriters.
14. The Employer will pay ▇▇▇▇'▇ legal costs (up to $5,000.00) incurred in the
negotiation and preparation of this First Amendment.
IN WITNESS WHEREOF, the parties have signed this First Amendment on the
date first written above.
MAY & ▇▇▇▇, INC. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Its: Executive Vice President, CFO
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