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Exhibit 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made as of this 3rd day of
December, 1997 is entered into between Freedom Securities Corporation, a
Massachusetts corporation with its principal place of business at Xxx Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx (the "Company"), and Xxxxxxx X. Xxxxxx, ("the
Executive").
In consideration of the mutual covenants and promises contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by the parties hereto, the parties agree as
follows:
1. TERM OF EMPLOYMENT. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to serve the Company, upon the terms
set forth in this Agreement, for the period commencing on the date of this
Agreement and ending on December 3, 1999 (the "Expiration Date"), unless sooner
terminated in accordance with the provisions of this Agreement.
2. POSITION AND PERFORMANCE.
2.1 OFFICES. The Executive shall serve as an Executive Vice
President of the Company. The Executive shall be subject to the supervision of
the Chief Executive Officer (the "CEO") of the Company and shall also have such
other powers, duties and responsibilities commensurate with such office or
offices as may from time to time reasonably be prescribed by the CEO. In
addition, the Executive agrees to serve during the term of his employment
hereunder, if elected or appointed thereto, in one or more positions as an
officer or director of the Company or any one or more of its present or future
Subsidiaries. Service in such additional offices will be without additional
compensation except for reimbursement of reasonably related business expenses
on the same terms as provided elsewhere in this Agreement. The Company shall not
cause the Executive to relocate his residence in connection with the fulfillment
of his duties and responsibilities hereunder without the Executive's prior
consent.
2.2 PERFORMANCE. During the term hereof, the Executive shall
be employed by the Company on a full-time basis and shall perform and discharge
(faithfully, diligently and to the best of his ability) his duties and
responsibilities hereunder and shall be accountable to the CEO; PROVIDED,
HOWEVER, that Executive may pursue community and charitable activities and hold
positions in connection therewith and such other activities as may be approved
in advance by the CEO, such approval not to be unreasonably withheld.
3. COMPENSATION AND BENEFITS.
3.1 SALARY. The Company shall pay the Executive such annual
base salary as the employee and the CEO agree upon from time to time. In
addition, the Employee shall be entitled to receive bonus compensation, if any,
in such amount or
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pursuant to such formula as the Executive and the CEO agree upon from time to
time. Notwithstanding the foregoing, the Employee shall be entitled to receive
minimum cash compensation under this Agreement, whether as salary, bonus, or
otherwise (not including any gain on the purchase of Company stock) in any
calendar year of at least $700,000, less such amounts or deductions required to
be withheld by applicable law. Base salary shall be payable in accordance with
the payroll practices of the Company.
3.2 OTHER FRINGE BENEFITS. The Executive shall be entitled to
participate in all benefit programs (including, without limitation, all life and
disability insurance, health and accident plans, retirement plans, stock
incentive plans, and retention plans and other arrangements) that the Company
(or its subsidiaries) makes available to employees or key executives of the
Company (or any such subsidiary), with the Executive's participation to be at a
level consistent with the Executive's position with the Company. The Executive
shall be entitled to six weeks paid vacation per calender year, to be taken at
such times as he deems appropriate. The Executive shall be entitled to carry
forward unused vacation pay and to cash out any unused vacation pay upon the
termination of the Executive's employment. The benefits described in this
Section 3.2 are hereinafter referred to as the "Benefits".
3.3 REIMBURSEMENT OF EXPENSES. The Company shall promptly
reimburse the Executive for reasonable travel, entertainment and other expenses
incurred or paid by the Executive in connection with, or related to, the
performance of the Executive's duties, responsibilities or services under this
Agreement upon presentation by the Executive of documentation, expense
statements, vouchers and/or other supporting information as the Company may
request, PROVIDED, HOWEVER, that the amount available for such travel,
entertainment and other expenses may be fixed in advance by the CEO.
4. EMPLOYMENT TERMINATION.
4.1 DATE OF TERMINATION: TERM OF EMPLOYMENT. The term "Date
of Termination" shall mean the earlier of (i) the Expiration Date or (ii) if the
Executive's employment is sooner terminated hereunder, the date on which such
termination is to be effective pursuant to the terms hereof. For all purposes of
this Agreement, references to the "term" of the Executive's employment hereunder
shall mean the period commencing on the date hereof and ending on the Date of
Termination.
4.2 UPON DEATH OR DISABILITY. This Agreement shall terminate
on the date of the death or disability of the Executive. As used in this
Agreement, the term "disability" shall mean the inability of the Executive, due
to a physical or mental disability, for a period of 180 consecutive days to
perform the essential functions of the Executive's position which are
contemplated under this Agreement. A determination of disability shall be made
by a physician satisfactory to both the Executive and the Company, PROVIDED THAT
if the Executive and the Company do not agree on a physician, the Executive and
the Company shall each select a physician and these two together shall select a
third physician, whose determination as to disability shall be binding on all
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parties. The reasonable fees and expenses of any and all such physicians shall
be borne by the Company.
4.3 BY THE COMPANY FOR CAUSE. This Agreement may be terminated
by the Company for cause immediately upon written notice by the Company to the
Executive setting forth the basis for such termination with particularity. For
the purposes of this Section 4.3, "cause" for termination shall mean (i) a
material failure of the Executive to perform the Executive's assigned duties for
the Company or gross negligence or willful misconduct of the Executive in the
performance of the Executive's assigned duties for the Company or any breach of
any covenant contained in Section 6 or 7 hereof, in each case after notice and a
reasonable opportunity to cure (if such act or failure shall be susceptible to
cure) of not less than 30 days, and (ii) the conviction of the Executive of, or
the entry of a pleading of guilty or nolo contendere by the Executive to, any
crime involving moral turpitude or any felony.
4.4 BY THE EXECUTIVE FOR GOOD REASON. This Agreement may be
terminated by the Executive upon 30 days' prior written notice to the Company
for good reason. For purposes of this Section 4.4, "good reason" shall mean (i)
any removal by the Company of the Executive from the position indicated in
Section 2 hereof, except in connection with termination of the Executive's
employment for cause or termination or suspension of employment due to the
Executive's incapacity, (ii) a reduction in the Executive's compensation below
the minimum amount provided for in Section 3.1 hereof or Benefits (except to the
extent that any such reduction is the result of a change to or termination of a
benefit program in which the Executive participates which applies equally to all
other participants therein), or (iii) any breach by the Company of its
obligations under this Agreement or any other willful action by the Company that
is materially inconsistent with the terms of this Agreement after written notice
and a reasonable opportunity to cure of not less that 30 days.
4.5 AT THE ELECTION OF EITHER PARTY. This Agreement may be
terminated by either the Company or the Executive at any time upon at least 30
days' prior written notice.
5. EFFECT OF TERMINATION.
5.1 TERMINATION BY THE COMPANY FOR CAUSE OR TERMINATION BY
EXECUTIVE PURSUANT TO SECTION 4.5. In the event that the Executive's employment
is terminated for cause pursuant to section 4.3 or the Executive shall terminate
this Agreement pursuant to Section 4.5, the Company shall pay to the Executive
salary, bonus and other cash compensation at his then current rate of pay (which
shall be not less than the amount of salary, bonus and other cash compensation
earned per day for the fiscal year ended immediately prior to such Date of
Termination and in no event less than the $700,000 per annum rate of pay) and
Benefits through the Date of Termination, PROVIDED, HOWEVER, that in the event
of any termination of the Executive's employment
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for cause, the foregoing compensation amount shall be the minimum compensation
set forth in Section 3.1 hereof.
5.2 TERMINATION BY THE COMPANY WITHOUT CAUSE OR TERMINATION BY
THE EXECUTIVE PURSUANT TO SECTION 4.4. In the event that the Executive's
employment is terminated by the Company pursuant to Section 4.5 or the Executive
terminates his employment pursuant to Section 4.4, the Company shall pay to the
Executive an amount equal to his salary, bonus and other cash compensation at
his then current rate of pay (which shall be not less than the amount of salary,
bonus and other cash compensation earned per day for the fiscal year ended
immediately prior to such Date of Termination and in no event less than the
$700,000 per annum rate of pay) and benefits (or the cash value thereof) through
the end of the twenty-fourth (24th) month following such Date of Termination
(the "Severance Period"). The compensation payable during the Severance Period
shall be paid in a lump sum amount equal to $500,000 within five business days
after the Date of Termination and the remaining compensation shall be paid to
the Executive in equal monthly installments on the first day of each month
during the Severance Period, plus accrued interest on such installment amounts
at a rate equal to LIBOR. In addition, any unvested stock options, restricted
stock or other equity interests of the Company or any of its Subsidiaries held
by the Executive on the Date of Termination shall become fully vested, and in
the case of stock options immediately exercisable, to the extent not prohibited
by applicable law.
5.3 TERMINATION FOR DEATH OR DISABILITY. If the Executive's
employment is terminated by death or because of disability pursuant to Section
4.2, the Company shall pay to the estate of the Executive or to the Executive,
as the case may be, salary, bonus and other cash compensation at his then
current rate of pay (which shall be not less than the amount of salary, bonus
and other cash compensation earned per day for the fiscal year ended immediately
prior to such Date of Termination and in no event less than the $700,000 per
annum rate of pay) and Benefits up to the end of the month in which the
termination of the Executive's employment because of death or disability occurs.
5.4 LIQUIDATED DAMAGES. Any payments paid to the Executive by
the Company under this Section 5 shall be deemed liquidated damages and shall be
in lieu of any other rights to which the Executive may be entitled.
5.5 SURVIVAL. The provisions of Sections 5, 6 and 7 shall
survive the termination of this Agreement.
6. NON-SOLICIT.
(a) During the Non-solicit Period, the Executive will not:
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(i) solicit, divert or take away, or attempt to
divert or to take away, the business or patronage of any of
the brokerage or investment banking clients, customers or
accounts of the Company or its subsidiaries.
(ii) solicit any officer, senior manager or senior
broker who was an employee of the Company at any time during
the term of this Agreement to leave such employment.
(b) For purposes of this Section 6, the term "Non-solicit
Period" shall mean the period commencing on the date hereof and (i) ending two
years after the date the Executive's employment is terminated by the Company
pursuant to Section 4.5 or by the Executive pursuant to Section 4.4, or (ii)
ending six months after the date the Executive terminates his employment
pursuant to Section 4.5.
(c) If any restriction set forth in this Section 6 is
found by any court of competent jurisdiction to be unenforceable because it
extends for too long a period of time or over too great a range of activities or
in too broad a geographic area, it shall be interpreted to extend only over the
maximum period of time, range of activities or geographic area as to which it
may be enforceable.
(d) The restrictions contained in this Section 6 are
necessary for the protection of the business and goodwill of the Company and its
affiliates and are considered by the Executive to be reasonable for such
purpose. The Executive agrees that any breach of this Section 6 could cause the
Company and its affiliates substantial and irrevocable damage and therefore, in
the event of any such breach, in addition to such other remedies which may be
available, the Company and its affiliates shall have the right to seek specific
performance and injunctive relief.
7. UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION.
(a) CONFIDENTIALITY. The Executive acknowledges that the
Company, its subsidiaries and its affiliates continually develop Confidential
Information, that the Executive may develop Confidential Information for the
Company or its affiliates and that the Executive may learn of Confidential
Information during the course of his employment. The Executive will comply with
the written policies and procedures of the Company for protecting Confidential
Information which will be provided to him and, for the term hereof and
thereafter, will not disclose to any person (except as required by any
statutory or regulatory requirement or mandatory court order, subpoena or other
legal process, and except to any person required for the proper performance of
his duties and responsibilities to the Company and its affiliates), or use for
his own benefit or gain or otherwise use in a manner adverse to the interests of
the Company and its affiliates, any Confidential Information obtained by the
Executive incident to his employment or other association with the Company or
any of its affiliates.
(b) RETURN OF DOCUMENTS. All documents, records, tapes
and other media of every kind and description relating to the business, present
or otherwise, of the
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Company, its subsidiaries or its affiliates and any copies, in whole or in part,
thereof (the "Documents"), whether or not prepared by the Executive, shall be
the sole and exclusive property of the Company and its affiliates. The Executive
shall safeguard all Documents and shall surrender to the Company at the time his
employment terminates, or at such earlier time or times as the CEO or his
designee may specify, all Documents then in the Executive's possession or
control.
(c) ASSIGNMENT OF RIGHTS TO INTELLECTUAL PROPERTY. The
Executive shall promptly and fully disclose all Intellectual Property to the
Company. The Executive hereby assigns to the Company (or as otherwise directed
by the Company) the Executive's full right, title and interest in and to all
Intellectual Property as defined herein. The Executive agrees to execute any and
all applications for domestic and foreign patents, copyrights or other
proprietary rights and to do such other acts (including without limitation the
execution and delivery of instruments of further assurance or confirmation)
requested by the Company to assign the Intellectual Property to the Company and
to permit the Company to enforce any patents, copyrights or other proprietary
rights to the Intellectual Property. The Executive will not charge the Company
for time spent in complying with these obligations. All copyrightable works that
the Executive creates shall be considered "work made for hire".
(d) DEFINED TERMS. "Confidential Information" as used herein
means any and all information of the Company and its subsidiaries that is not
generally known by others with whom they compete or do business, or with whom
they plan to compete or do business and any and all information, not publicly
known which, if disclosed, would assist in competition against the Company and
its subsidiaries, or the disclosure of which would otherwise be adverse to the
interest of the Company or any of its subsidiaries. Confidential Information
also includes comparable information that the Company or any of its subsidiaries
have received belonging to others or which was received by the Company or any of
its subsidiaries with any understanding that it would not be disclosed;
PROVIDED, HOWEVER, that Confidential Information shall not include anything (i)
that has been disclosed to the public (other than in connection with a breach by
the Executive of his obligations hereunder), (ii) that has been obtained by the
Executive from a third party otherwise than in violation of a confidentiality
agreement to which such third party is bound, or (iii) that has otherwise
lawfully entered the public domain. "Intellectual Property" as used herein means
inventions, discoveries, developments, methods, processes, compositions, works,
concepts and ideas (whether or not patentable or copyrightable or constituting
trade secrets) relating to the business of the Company, its Subsidiaries and
its affiliates conceived, made, created, developed or reduced to practice by
the Executive (whether alone or with others, whether or not during normal
business hours or on or off Company premises) during the Executive's employment.
8. NOTICES. All notices required or permitted under this
Agreement shall be in writing and shall be deemed effective upon personal
delivery or upon deposit in the United States mail, by registered or certified
mail, postage prepaid, or via a reputable
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New York Stock Exchange, Inc. Judgment may be entered on an arbitrator's award
relating to this Agreement in any court having jurisdiction.
16. MISCELLANEOUS.
16.1 No delay or omission by the Company in exercising any
right under this Agreement shall operate as a waiver of that or any other right.
A waiver or consent given by the Company on any one occasion shall be effective
only in that instance and shall not be construed as a bar or waiver of any right
on any other occasion.
16.2 The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
16.3 In case any provision of this Agreement shall be invalid,
illegal or otherwise unenforceable, the validity, legality and enforceability of
the remaining provisions shall in no way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
FREEDOM SECURITIES CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
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Title: President
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EXECUTIVE: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
