Non-Compete and Non-Solicit Agreement
Exhibit 10.2
Non-Compete
and Non-Solicit Agreement
FOR GOOD
AND VALUABLE CONSIDERATION, including an award of Restricted Stock Units under
the Broadpoint Securities Group, Inc. 2007 Incentive Compensation Plan, hereby
acknowledged, Broadpoint Securities Group, Inc. and its subsidiaries
(“Broadpoint”) and its employee who is a signatory hereto (the “Key Employee”)
(Broadpoint and the Key Employee being referred to, collectively, as the
“Parties”) agree as follows:
1. Non-Compete
Covenant. Until twelve months following the commencement
of Key Employee’s employment and at all times during the Key Employee’s
employment by Broadpoint, the Key Employee agrees not to hold the
position of Chief Financial Officer for any other broker dealer, financial
advisory or financial services firm. The Key Employee may own, solely
as a passive investment, securities of any entity traded on any national
securities exchange if the Key Employee is not a controlling person of (nor owns
individually or as a member of a group, 5% or more of) such entity.
2. Non-Solicit
Covenants. At all times during the Key Employee’s employment
by Broadpoint, and until twelve months after the termination of the Key
Employee’s employment for any reason, Key Employee shall not, directly or
indirectly, (A) solicit for employment or hire anyone who was an employee of
Broadpoint within the period of 180 days prior to any termination of the Key
Employee’s termination or (B) solicit any customer or client of Broadpoint to
transfer its business away from Broadpoint or to cease doing business with
Broadpoint.
3. Inapplicability of
Non-Compete Covenant in Certain Circumstances. The foregoing
Non-Compete Covenant shall not apply to the Key Employee following (A) any
termination of his employment by Broadpoint without “Cause” (as defined herein)
or (B) any termination of his employment in the event of a “Change of Control”
(as herein defined) if, as a result of such Change of Control, Key Employee does
not continue thereafter as the Chief Financial Officer of the Company and Key
Employee’s employment terminates for any reason within 120 days of such Change
of Control. For purposes of this agreement, “Cause” is defined as (i)
the Key Employee’s conviction of, or plea of guilty or “no contest” to, any
felony; (ii) Key Employee’s conviction of, or plea of guilty or “no contest” to,
a violation of criminal law involving Broadpoint and its business; (iii) the Key
Employee’s commission of an act of fraud or theft, or material dishonesty in
connection with his performance of duties to Broadpoint and its affiliates; (iv)
the Key Employee’s willful refusal or gross neglect by the Key Employee to
perform the duties reasonably assigned to him and consistent with his position
with Broadpoint and its affiliates or otherwise to comply with the material
terms of any employment agreement between Broadpoint or any of its affiliates
and the Key Employee, which refusal or gross neglect continues for more than
fifteen (15) days after the Key Employee receives written notice thereof from
Broadpoint providing reasonable detail of the asserted refusal or gross neglect
(and which is not due to a physical or mental impairment) or (v) a material
breach by Key Employee of this agreement, the letter agreement or any other
agreement between the Key Employee and Broadpoint, including any violation of
any restrictive covenant between the Key Employee and
Broadpoint. For purposes of this agreement, “Change of Control”
is defined as a transaction or event,
or
a series of transactions or events, as a result of which MatlinPatterson Global
Opportunities Partners II, L.P. (and/or one or more of its affiliates) shall no
longer have the right to elect all the members of the Board.
4. Survival. Except as
explicitly set forth above, the covenants contained in this agreement shall
survive the termination of this agreement or the letter agreement between the
Key Employee and Broadpoint for any reason.
5. Forfeiture of RSUs Upon
Breach. Upon any breach of the Non-Compete Covenant or the
Non-Solicit Covenants by the Key Employee, the Key Employee shall forfeit any
outstanding Restricted Stock Units.
6. Remedies. With
respect to the Non-Compete Covenant and the Non-Solicit Covenants, the Parties
acknowledge and agree that
(i) if,
in any proceeding hereunder, a court or arbitrator shall deem part of the
Non-Compete Covenant or the Non-Solicit Covenants invalid, illegal or
unenforceable because its scope is considered excessive, it shall be modified so
that the scope of the Non-Compete Covenant or the Non-Solicit Covenant, as
applicable, is reduced only to the minimum extent necessary to render the
modified covenant valid, legal and enforceable.
(ii) it may
be impossible to measure in money the damages that will accrue to Broadpoint in
the event that the Key Employee breaches the Non-Compete Covenant or the
Non-Solicit Covenants. In the event that the Key Employee breaches
the Non-Compete Covenant or the Non-Solicit Covenants, Broadpoint may be
entitled to an injunction, a restraining order or such other equitable relief,
including, but not limited to, specific performance (without the requirement to
post bond) restraining the Key Employee from violating such
covenant. If Broadpoint shall institute any action or proceeding to
enforce the Non-Compete Covenant or the Non-Solicit Covenants, the Key Employee
hereby waives the claim or defense that Broadpoint has an adequate remedy at law
and agrees not to assert in any such action or proceeding the claim or defense
that Broadpoint has an adequate remedy at law. In addition,
Broadpoint shall retain all remedies available to it at law. The
Non-Compete and the Non-Solicit Covenants shall be in addition to any
restrictions imposed on the Key Employee by statute, at common law or under any
other agreement to which the Key Employee is a party. Any controversy or dispute
regarding the interpretation, construction or enforcement of this agreement
shall be subject to and resolved by arbitration in New York, New York through
the facilities and in accordance with the rules of the Financial Industry
Regulatory Authority (“FINRA”) and the parties agree to submit to the
jurisdiction of FINRA with respect to any such controversy or
dispute. Notwithstanding the foregoing, the Key Employee agrees that
in the event of Key Employee’s breach of any restrictive covenants between Key
Employee and Broadpoint, Broadpoint may obtain injunctive relief in any court of
competent jurisdiction pending arbitration.
7. Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
CONFLICTS OF LAWS.
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Agreed
and Accepted:
This
14th day of march, 2008
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Xxxxxx
Xxxxxx
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Name
of Employee (please
print)
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/s/ Xxxxxx
Xxxxxx
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By: /s/ Xxx
Xxxxxxxxxxxx
Xxx
Xxxxxxxxxxxx
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Signature
of Employee (please
sign)
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