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Exhibit 10
SPLIT SECOND TRADING, INC.
Employment Agreement
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Agreement made as of January 1, 2000, by and between Split Second
Trading, Inc., a Florida corporation (the "Company") having its principal place
of business at 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000 and
Xxxxxx Xxxxxxxxx (the "Employee") currently residing at 0000 Xxxxx Xxxx Xxxxx,
Xxxxxxx, Xxxxxxx 00000.
BACKGROUND INFORMATION
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The Company wishes to secure the employment services of the Employee
for a definite period of time and upon the particular terms and conditions
hereinafter set forth. The Employee is willing to be so employed. Accordingly,
the parties agree as follows:
OPERATIVE PROVISIONS
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1. Employment and Term.
The Company hereby employs Employee and the latter hereby accepts
employment by the Company for the three year period commencing on December 1,
1999 (the "Commencement Date") and expiring December 31, 2002 (the "Initial
Term"), which employment shall be automatically extended for unlimited
successive one year periods (each a "Successor Term") unless it is terminated
during the pendency of any such term, whether Initial or Successor, by the
occurrence of one of the events described in Section 8. hereof, or at the end
of any such term (subject to extension by operation of the disability
provisions contained in Section 8.) by one party furnishing the other with
written notice, at least 60 days prior to the expiration of such term, of an
intent to terminate this Agreement upon the expiration of such term.
2. Duties.
During the term of this Agreement, whether Initial or Successor, the
Employee shall render to the Company services as Chief Executive Officer, and
shall perform such duties as may be designated by and subject to the
supervision of the Company's board of directors, and shall serve in such
additional capacities appropriate to his responsibilities and skills as shall
be designated by the Company, through action of its board of directors. During
such period, the Employee shall devote his full attention, time and energies to
the business and affairs of the Company (subject to the terms of Section 4.
below), and will use his best efforts to promote the interests and reputation
of the Company. Hours of service to the Company during the term of this
agreement shall be a minimum of 40 per week and otherwise as reasonably
determined by the Company's board of directors.
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3. Compensation. For the services to be rendered by the Employee
under this agreement the Company shall pay him, while he is rendering such
services and performing his duties hereunder, and the Employee shall accept as
full payment for such service, a base compensation of $120,000 per year
(inclusive of any amounts subject to federal or state employment related
withholding requirements), payable in arrears in equal installments on the last
business day of each month occurring during the period of employment or
otherwise as the parties may agree, in addition, Employee will receive an
automobile allowance of $400.00 per month.
4. Vacation; Fringe Benefits; Moving Expense; Reimbursement of
Expenses.
a. Vacation. The employee shall be entitled to two
weeks of fully paid vacation during each year of the Initial Term and during
each Successor Term of this Agreement. He shall not be entitled to receive
monetary or other valuable consideration for vacation time to which he is
entitled but does not take. The timing of vacation periods shall be within the
discretion of the Company, reasonably exercised so as not to unnecessarily
inconvenience the Employee.
b. Fringe Benefits. During his period of employment
hereunder, the Employee shall further be entitled to (i) such leave by reason
of physical or mental disability or incapacity and to such participation in
medical and life insurance, pension benefits, disability and other fringe
benefit plans as the Company may make generally available to all of its
executive employees from time to time; subject, however, as to such plans, to
such budgetary constraints or other limitations as may be imposed by the Board
of Directors of the Company from time to time; and (ii) reimbursement for all
normal and reasonable expenses necessarily incurred by him in the performance
of his obligations hereunder, subject to such reasonable substantiation
requirements as may be imposed by the Company.
5. Proprietary Interests of the Company.
a. Proprietary Interests - Company. During or after the
expiration of his term of employment with the Company, the Employee shall not
communicate or divulge to, or use for the benefit of, any individual,
association, partnership, trust, corporation or other entity except the
Company, any proprietary information of the Company received by the Employee by
virtue of his employment by the Company, without first being in receipt of the
Company's written consent to do so. The term proprietary information shall
include, but not be limited to, the Company's customer list, prospect list, and
information or research concerning the broker/dealer industry. This paragraph
relates to all written documentation related to the Employee's employment,
whether furnished to him by the Company, or compiled by him in connection with
his duties. It is expressly understood and agreed that all such information is
the property of the Company and must be immediately returned to the Company
upon notice of termination either by the Company or by the Employee. It is
further understood and agreed that non-disclosure also applies to information
known to the Employee but not reduced to written or recorded form.
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6. Restrictive Covenant.
a. Scope of Covenant. Subject to the provisions of
Section 8(d) below, the Employee shall not, within any state within which the
Company is actively engaged in the conduct of its business, during the term of
this Agreement and the two year period following termination of such
employment, engage or become interested in, directly or indirectly, as owner,
shareholder, partner, co-venturer, director, officer, employee, agent,
consultant or otherwise, any activity which is then engaged in by the Company
and which activity is under the control of the Employee, nor, during the term
of this Agreement and the two year post-termination period, employ or attempt
to employ any employee or independent contractor of the Company or otherwise
encourage or attempt to encourage any employee or independent contractor of the
Company to leave the Company's employ.
b. Confidentiality; Disclosure; Proprietary
Information. The Employee acknowledges that all records with respect to
customers serviced by the Company or with respect to employees of the Company
("Associated Employees") and lists of customers or proposed customers of the
Company, or of Associated Employees, and all personal, financial or business
information concerning the customers or proposed customers of the Company, or
of Associated Employees, obtained by the Employee during the course of the
Employee's employment by the Company, are valuable and unique and are
proprietary assets of the Company. During the Employee's employment by the
Company and following the termination thereof, the Employee will not at any time
disclose any of the records, lists or information previously described in this
subsection, nor utilize the same for any reason not previously authorized in
writing by the Company.
c. Divisibility of Covenant Period. If any portion of
the restrictive covenant contained herein is held to be unreasonable, arbitrary
or against public policy, each covenant shall be considered divisible both as
to time and geographic area, such that each month within the specified period
shall be deemed a separate period of time and each state shall be deemed a
separate geographical area, resulting in an intended requirement that the
longest lesser time and largest lesser geographic area determined not to be
unreasonable, arbitrary or against public policy shall remain effective and be
specifically enforceable against the Employee.
d. Covenant Independent. Each restrictive covenant on
the part of the Employee set forth in this Agreement shall be construed as a
covenant independent of any other covenant or provision of this Agreement or
any other agreement which the Employee may have, whether fully performed or
executory, and the existence of any claim or cause of action by the Employee
against the Company, whether predicated upon another covenant or provision of
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company of any other covenant.
e. Survival of Covenants. All restrictive covenants
contained in this Agreement shall survive the termination of this Agreement.
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7. Remedies for Breach of Employee's Obligations.
The parties agree that the services of the Employee are of a personal,
specific, unique and extraordinary character and cannot be readily replaced by
the Company. They further agree that in the course of performing his services,
the Employee will have access to various types of proprietary information of
the Company, which, if released to others or used by the Employee other than
for the benefit of the Company, in either case without the Company's consent,
could cause the Company to suffer irreparable injury. Therefore, the
obligations of the Employee established under SS 5. and 6. hereof shall be
enforceable both a law and in equity, by injunction, specific performance,
damages or other remedy; and the right of the Company to obtain any such remedy
shall be cumulative and not alternative and shall not be exhausted by any one
or more uses thereof.
8. Termination of Employment.
a. Death. The Employee's employment hereunder shall
terminate in the event of the Employee's death. Except for any salary and
benefits accrued, vested and unpaid as of the date of any such termination and
except for any benefits to which the Employee or his heirs or personal
representatives may be entitled under and in accordance with the terms of any
employee benefit plan, policy or program maintained by the Company, the
Company shall be under no further obligation hereunder to the Employee or to
his heirs or personal representatives, and the Employee or his heirs or
personal representatives no longer shall be entitled to receive any payments or
any other rights or benefits under this Agreement.
b. Disability. The Company may terminate the Employee's
employment hereunder for disability if an independent physician mutually
selected by the Employee (or his legal representative) and the Board of
Directors or its designee (or, upon an inability of such parties to effect the
selection within a period of ten days, by the independent certified public
accounting firm then serving the Company) shall have determined that the
Employee has been substantially unable to render to the Company services of the
character contemplated by Section 2. of this Agreement, by reason of a physical
or mental illness or other condition, for more than 90 consecutive days or for
shorter periods aggregating more than 120 days in any period of 12 consecutive
months (excluding in each case days on which the Employee shall be on
vacation). In the event of such disability, the Employee shall be entitled to
receive any salary and benefits accrued, vested and unpaid as of the date of
any such termination and any benefits to which the Employee may be entitled
under and in accordance with the terms of any employee benefit plan, policy or
program maintained by the Company; and upon the Employee's receipt of such
salary and benefits the Company shall be under no further obligation hereunder
to the Employee and the Employee no longer shall be entitled to receive any
payments or any other rights or benefits under this Agreement.
c. Termination by the Company. The Company may, at any
time after the expiration of the first six months of this Agreement, terminate
the Employee's employment hereunder at any
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time, and such termination shall be effective immediately (the "Termination
Notice"). If the Employee is terminated pursuant to this Section 8(c), the
Company shall continue to pay the Employee the base compensation specified in
Section 3(a) above that he otherwise would have received, in monthly
installments, until the expiration of the six month period following the date
of the Termination Notice.
d. Applicability of Restrictive Covenant. If the
Company terminates the Employee's employment under the provisions of Section
8(c), and such termination shall not be "for cause", then the Company shall not
be entitled to enforce the provisions of the restrictive covenant set forth in
Section 6(a) above. For purposes of this Agreement, "for cause" shall mean any
of the following: (i) the Employee's repeated willful misconduct or gross
negligence; (ii) Employee's repeated conscious disregard of his obligations
hereunder or of any other written duties reasonably assigned to him by the
Board of Directors; (iii) the Employee's repeated conscious violation of any
provision of the Company's by-laws or of its other stated policies, standards
or regulations; (iv) the Employee's commission of any act involving fraud or
moral turpitude; or (v) a determination that the Employee has demonstrated a
dependence upon any addictive substance, including alcohol, controlled
substances, narcotics or barbiturates.
e. Procedural Safeguards - Termination For Cause. If
the Board of Directors of the Company determines that the basis for
terminating the Employee is: (i) one of the reasons set forth in clause (i),
(ii), or (iii) of Section 8(d), the Company must be able to demonstrate that,
within the 60 day period immediately following the alleged occurrence of each
proscribed act or omission preceding the act or omission upon which it is basing
its right to effect a termination "for cause", it furnished to the Employee a
written description of the allegedly proscribed act or omission and a
statement advising him that the Company views such conduct as being of the type
which could lead to a termination of the Employee "for cause"; (ii) one of the
reasons set forth in clause (ii) or (iii) of Section 8(d), the Board must be
able to demonstrate that the Employee has been furnished with a copy of the
written duty, by-law provision, policy, standard or regulation, the violation of
which the Employee is being accused, at a time prior to the alleged commission
of the violation; or (iii) one of the reasons in clause (iv) or (v) of Section
8(d), the Board shall first be required to obtain an opinion from the Company's
legal counsel to the effect that there is an adequate basis upon which either
such determination may be made.
f. Litigation Regarding the Employee's Former
Restrictive Covenant. In the event that any former employer brings an action
against the Employee, and/or the Company, maintaining that the Employee
breached the terms of any confidentiality agreement, employment agreement or
other agreement restricting the Employee's subsequent employment, and is
successful in that litigation (either by obtaining an injunction against the
Company's continued employment of the Employee or a monetary judgment against
the Company, then the Company shall have the option, at the election of its
Board of Directors, to terminate this Agreement immediately, in which case,
notwithstanding the provisions of Section 8(c) above, the Company shall have no
further obligation to pay the Employee any additional compensation under this
Agreement.
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g. Costs of Litigation. In the event that the Company
elects to terminate this Agreement in accordance with the terms of Section 8(f)
above, the Company shall be responsible for all legal fees and costs associated
with defending the action brought against the Company, and/or the Employee.
Conversely, in the event that the Company is successful in defending a claim
brought against it, or, if unsuccessful in such litigation, but nevertheless
does not choose to terminate this Agreement, then the legal fees and costs
associated with defending the action shall be borne in the following
percentages: (i) 50 % - the Company; and (ii) 50% - the Employee. The Company
agrees to advance the costs of defending such action, however, the Employee
shall be required to reimburse the Company in two installments, payable out of
the Employee's bonus described in Section 3 above. In no event shall the
Employee's portion of the legal fees and costs that he is to reimburse the
Company exceed $25,000.
9. Indebtedness of Employee. If, during the course of his
employment, Employee becomes indebted to the Company for any reason, the
Company shall, if it so elects, have the right to set-off and to collect any
sums due it from the Employee out of any amounts which it may owe to the
Employee for unpaid compensation. In the event that this Agreement terminates
for any reason, all sums owed by the Employee to the Company shall become
immediately due and payable.
10. Miscellaneous Provisions.
a. Nonassignability: Neither this agreement nor any
right or interest hereunder shall be assignable by the Employee.
b. Enforceability: If any term or condition or this
agreement shall be invalid or unenforceable to any extent or in any application,
then the remainder of this agreement, and such term or condition except to such
extent or in such application, shall not be affected thereby and each and every
term and condition of this agreement shall be valid and enforced to the fullest
extent and in the broadest application permitted by law.
c. Notice: All notices or other communications required
or permitted to be given pursuant to this Agreement shall be in writing and
shall be made by: (i) certified mail, return receipt requested; (ii) Federal
Express, Express Mail, or similar overnight delivery or courier service; or
(iii) delivery (in person or by facsimile or similar telecommunication
transmission) to the party to whom it is to be given, to the address appearing
elsewhere in this Agreement or to such other address as any party hereto may
have designated by written notice forwarded to the other party in accordance
with the provisions of this Section 10(c). Any notice or other communication
given by certified mail shall be deemed given at the time of certification
thereof, except for a notice changing a party's address which shall be deemed
given at the time of receipt thereof. Any notice given by other means permitted
by this Section 10(c) shall be deemed given at the time of receipt thereof.
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