Exhibit 10.20
EMPLOYMENT AGREEMENT
AGREEMENT, made this 7th day of April 2000, by and between WALL STREET
STRATEGIES CORPORATION, a Nevada corporation with its offices at 000 Xxxxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), and XXXXXX XXXX, an
individual residing at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company desires to retain the services of Executive to
render services to the Company on the terms and conditions hereinafter set
forth; and
WHEREAS, Executive desires to render such services to the Company on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Employment. Subject to all of the terms and conditions hereof, the
Company does hereby employ the Executive as the Chief Operating Officer of the
Company for a period (the "Employment Period") of three (3) years commencing on
March 6, 2000 (the "Commencement Date"), and the Executive does hereby accept
such employment and agrees to devote her full business time and attention to the
performance of her duties hereunder and to perform such duties faithfully,
competently, diligently, and in such manner as to effect her best efforts.
2. Duties of Executive. In her capacity as Chief Operating Officer of
the Company, Executive shall perform the duties customarily performed by a chief
operating officer and such other duties, consistent with those customarily
performed by an executive officer, as may, from time to time, be assigned to her
by the Chief Executive Officer and/or the Board of Directors of the Company.
Executive's duties will be subject to the direction and control of the Company's
Board of Directors and Chief Executive Officer, to whom Executive will report.
Without limiting the generality of the foregoing, Executive shall be responsible
for the day-to-day operations of the Company, and for providing overall
management, direction and support of the Company's operations.
3. Compensation and Related Matters.
(a) Annual Base Salary. During the Employment Period, the Executive
shall receive a salary of $175,000 per annum (the "Annual Base Salary"). The
Annual Base Salary will be payable in equal bi-weekly installments or otherwise
in accordance with the Company's policies for executive officers in effect from
time to time. The Company's Board of Directors (or the Compensation Committee of
the Board of Directors) will review the Annual Base Salary on or about each
anniversary of the Commencement Date for possible increase (but not decrease)
based on performance and
such other factors as the Board of Directors (or Compensation Committee) may
deem appropriate; any such increase shall, however, be in the discretion of the
Board of Directors (or the Compensation Committee) and nothing contained herein
shall be deemed to obligate the Company to increase the Annual Base Salary at
such time, or at any other time.
(b) Expenses. The Company shall reimburse the Executive for
reasonable business expenses incurred by the Executive in the performance of her
duties under this Agreement upon evidence of payment by Executive of such
expenses and otherwise in accordance with Company policies then in effect, as
such policies may change from time to time.
(c) Benefits. (i) The Executive shall be entitled to participate in
any health insurance, profit sharing (if and when available), life insurance,
unmatched 401(k) plan or any other similar plan or benefit afforded by the
Company to its executives generally, if and to the extent that the Executive is
eligible to participate in accordance with the provisions of any such insurance,
plan or benefit generally. Nothing contained herein is intended, or shall be
construed, to require the Company to institute or retain any, or any particular,
insurance plan or benefit.
(ii) Notwithstanding the provisions of Section 3(c)(i), the
Company agrees to purchase for the Executive a $250,000 term life insurance
policy, as well as short-term and long-term disability insurance in amounts, the
proceeds of which, in the event of the Executive's disability, will approximate
the Executive's Annual Base Salary .
(d) Incentive Bonus. Commencing with her performance in the year
ended December 31, 2000, the Executive shall be entitled to earn an annual
incentive bonus ("Incentive Bonus") of up to 50% of the Annual Base Salary, pro
rated in the case of the year ended December 31, 2000 and any other short year,
if applicable, based on the achievement of performance goals to be mutually
determined within 60 days after the date of this Agreement (with respect to the
year ended December 31, 2000), and prior to or within 60 days after January 1 of
each year during the Employment Period). The Incentive Bonus, to the extent
payable, will be paid within 30 days after the end of each calendar year or
other applicable period, in cash.
(e) Stock Option. On the date of this Agreement, the Company will
grant to Executive a five year, non-qualified option (the "Option") under the
Company's 1999 Incentive Program (the "Program") to acquire 500,000 shares (the
"Shares") of the Company's common stock (the "Common Stock") at an exercise
price of $7.50 per Share. The Option shall vest and become exercisable, subject
to and in accordance with the terms and provisions of the Program, as follows:
(i) the Option shall vest with respect to 125,000 Shares on December 6, 2000
(the "First Vesting Date"); (ii) the Option shall vest with respect to an
additional 125,000 Shares on March 6, 2001 (the "Second Vesting Date"); and
(iii) the Option shall vest with respect to an additional 62,500 Shares on the
sixth day of each of the fifteenth, eighteenth, twenty-first and twenty-fourth
month after the Commencement Date. Notwithstanding the foregoing, (x) in the
event of the
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termination of the Executive's employment prior to the First Vesting Date by
reason of her death or Disability (as hereinafter defined), the Option shall
vest with respect to 125,000 Shares as of the date of such termination and
become exercisable subject to and in accordance with the terms of the Program
and the stock option agreement referred to below, and (y) in the event of the
termination of the Executive's employment on or after the First Vesting Date and
prior to the Second Vesting Date by reason of her death or Disability, the
Option shall vest with respect to 62,500 Shares (aggregating, together with the
portion of the Option vesting on First Vesting Date, a total of 187,500 Shares)
as of the date of such termination and become exercisable subject to and in
accordance with the terms of the Program and the stock option agreement. In the
event of a Change of Control of the Company (as hereinafter defined), provided
the Executive is then in the employ of the Company, the Option shall vest in its
entirety and become exercisable subject to and in accordance with the terms of
the Program and the stock option agreement. The Executive and the Company will
enter into a stock option agreement more fully setting forth the terms of such
Options on or as soon as practicable after the date hereof.
(f) Vacation. The Executive shall be entitled to twenty (20)
business days of annual vacation to be used each year (and not carried over) at
times mutually convenient to the Company and Executive.
(g) Deductions and Withholdings. All amounts payable or which become
payable hereunder shall be subject to all deductions and withholding required by
law.
4. Executive Covenants.
(a) Notice of Creation. Executive will both during and after the
Employment Period promptly and fully disclose to the Company any and all
inventions, discoveries, improvements, ideas, devices, designs, models,
prototypes, processes, compositions, know-how, information, works (including
computer programs and written and graphics materials), mask works and data,
whether of a business, technical or other nature and whether or not protectable
under U.S. or foreign patent, copyright, trade secret or other law
(collectively, "Works"), that concern or relate directly to Competitive
Activities (as defined in Section 4(d) below) and that are first conceived,
reduced to practice, fixed in a tangible medium of expression or are otherwise
made by Executive solely or jointly with others during the Employment Period,
whether during regular business hours or otherwise (the "Intellectual
Property").
(b) Ownership of Intellectual Property. Upon its respective
conception, reduction to practice, fixation in a tangible of expression or other
making, an item of Intellectual Property and all worldwide right, title and
interest in and to that Intellectual Property, including all common law,
statutory, treaty and convention rights, including the right to xxx for all
past, present and future infringement, shall immediately become and forever
remain the property of the Company without any further act or deed being
required and without any additional consideration from the Company to Executive,
and Executive hereby irrevocably assigns to the Company, and the Company hereby
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accepts, all such Intellectual Property and all such worldwide right, title and
interest. The Executive hereby waives and agrees not to assert any moral rights
or similar rights under the laws of any jurisdiction with respect to any
Intellectual Property.
(c) Further Assurances. Executive will from time to time, both
during and after the Employment Period, upon the request and at the expense of
the Company, but without further consideration from the Company, (i) make
application through the attorneys for the Company for Letters Patent, utility
models, copyright registrations and other forms of intellectual property
protection for and on the Intellectual Property in the United States and in
countries foreign thereto, (ii) cooperate with the attorneys in the prosecution,
maintenance, reissue, renewal, extension and defense of, and suit upon, all such
applications and resulting Letters Patent, utility models, copyright
registrations and other forms of intellectual property protection, and (iii) do
and perform all acts, including executing documents, believed by the attorneys
to be necessary or desirable in furtherance of the foregoing and for assigning
and perfecting all right, title and interest in and to the Intellectual Property
in the Company or its successors or assigns, including executing applications
and assignment documents. All decisions concerning such applications and
resulting Letters Patent, utility models, copyright registrations and other
forms of intellectual property protection, including all decisions concerning
their filing, prosecution, maintenance, reissue, renewal, extension, defense and
suits upon them, shall be solely those of the Company, and Executive shall have
no claim or cause of action against the Company arising out of or concerning any
such decisions or the results of those decisions.
(d) Non-Competition. In order to induce the Company to enter into
this Agreement, the Executive hereby expressly covenants and agrees that, during
the Employment Period and, following termination of the Executive's employment
hereunder, for so long after such termination (if at all) as the Executive
continues to receive payment of Annual Base Salary in accordance with the terms
of this Agreement, she shall not, without the express written consent of the
Company, for her own account or jointly with any other person, for any reason
(i) participate in, engage in or be connected in any way with, directly or
indirectly, as a proprietor, contractor, employee, principal, partner, officer,
stockholder, member, advisor, consultant, agent or licensor (whether paid or
unpaid), Competitive Activities (as defined below) anywhere in the world in
which the Company conducts business, (ii) directly or indirectly, own, manage,
operate, join, control, loan money to, invest in, or otherwise participate in,
or be connected with, or become or act as an officer, employee, consultant,
representative or agent of any Competitor (defined below), or (iii) intervene in
or interfere with any relationships between the Company and its vendors or
customers or prospective customers or disrupt its customer markets, anywhere in
the world in which the Company conducts business. Notwithstanding the foregoing,
the Executive may at any time own, solely as an inactive investor, securities of
any entity, whether or not in competition with the Company, if (A) such
securities are publicly traded on a nationally-recognized stock exchange or on
NASDAQ, and (B) the aggregate holdings of such securities by the Executive and
her immediate family do not exceed five percent (5%) of the voting power or five
percent (5%) of the capital stock of such entity. As used herein, "Competitive
Activities" means the preparation, marketing, sale or provision of investment
research or financial
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information services or content through the internet or traditional media; and
"Competitor" means any person whose principal business consist of Competitive
Activities, or any combination thereof. For purposes of this Section 4 and
determining the scope of Competitive Activities hereunder, "Company" means Wall
Street Strategies Corporation and its direct or indirect wholly-owned
subsidiaries and shall not include any successor or parent company which may
hereafter acquire the Company or into which the Company may be combined (whether
by merger, stock or asset acquisition or otherwise) to the extent that the
business or activities of such successor are different than those of the Company
at the time of such acquisition or combination. Executive acknowledges that she
is agreeing to be bound by the restrictions contained in this Section 4(d) in
consideration of the various benefits to be provided to her under Section 3
hereof, including, specifically, but without limitation, the stock option grant
referenced in Section 3(e) hereof.
(e) Reasonableness of Restrictions. The Executive acknowledges and
agrees that the covenants contained herein with respect to non-competition are
reasonable in scope, geographic application and duration, in view of the
economic bargain contained herein. The Executive represents and warrants to the
Company that her experience, background and skills are such that she is able to
obtain employment on reasonable terms and conditions without violation of the
restrictive covenant contained herein with respect to non-competition; and that
such covenant does not and will not pose any undue hardship to the Executive.
(f) Tangible Things. Executive covenants and agrees that (i) all
tangible things, including confidential memoranda, notes, notebooks, drawings,
lists (including, without limitation, mailing and customer lists), record and
other confidential documents (and all copies thereof), made or compiled by
Executive or made available to Executive concerning the Company's business shall
be the property of the Company, and (ii) if such tangible things are in the
possession or control of Executive, Executive shall deliver them to the Company
promptly following the Employment Period or at any other time upon request of
the Company.
(g) No Improper Disclosure. Executive represents and warrants that
Executive has not disclosed, and will not disclose, to the Company any
information, whether confidential, proprietary or otherwise, that the Executive
possesses and that Executive is not legally free to disclose. Executive further
agrees to defend, indemnify and hold harmless the Company against all claims,
demands, losses, damages or expenses, including attorneys' fees, suffered or
incurred as a result of any violation of the representations contained in this
subsection 4(g).
(h) No Executive Solicitation. The Executive hereby agrees that
during the Employment Period and for a period of twelve (12) months thereafter,
she shall not, directly or indirectly, for her own account or jointly with
another, or for or on behalf of any entity, as principal, agent or otherwise,
solicit, induce or hire or in any manner attempt to solicit, induce or hire any
person employed by the Company or any of its affiliates to leave such
employment, whether or not such employment is pursuant to a written contract
with the Company or otherwise.
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(i) Trade Secrets. Executive acknowledges that Executive's work for
the Company is expected to bring Executive into close contact with various
confidential technical and research data, confidential business data and other
information of the Company not readily available to the public. The Executive
expressly covenants and agrees that she will not at any time, whether during or
after the Employment Period, directly or indirectly, on any basis for any
reason, use or permit third parties within his control, the use of any trade
secrets, confidential information or proprietary information of, or relating to,
the Company, or any affiliate of the Company (including, without limitation,
data and other information relating to any of the Company's processes,
apparatus, products, software, packages, programs, trends in research, product
development techniques or plans, research and development programs and plans or
any works and all secrets, customer lists, lists of Executives, sales
representatives and their territories, mailing lists, details of consultant
contracts, pricing policies, operational methods, marketing plans or strategies,
business acquisition plans, new personnel acquisition plans, designs and design
projects and other confidential business affairs concerning the Company and the
Company's business), in connection with any activity or business, whether for
his own account or otherwise, and will not divulge such trade secrets,
confidential information or proprietary information to any person, firm,
corporation or other entity whatsoever. The Executive shall not be prohibited
from divulging information deemed to be trade secret or confidential or
proprietary information of the Company: (i) if and to the extent that disclosure
of any such information is pursuant to appropriate safeguards on confidentiality
and (x) necessary and appropriate in connection with the submission of bids by
the Company in the ordinary course of business or (y) required pursuant to the
Company's marketing efforts directed to specific clients or bona fide
prospective clients or the provision of services to existing clients in the
ordinary course of business or (z) is made to other Executives of the Company or
independent contractors thereof in the ordinary course of the Company's
business, (ii) if the specific item of information becomes generally available
to the public without violation of this Agreement or any other confidentiality
agreement among the Executive and the Company or any other confidentiality
agreement to which the Executive is a party, or (iii) if such disclosure is
compelled by law, in which event the Executive agrees to give the Company prior
written notice of any disclosure to be made pursuant to this clause (iii), and
the Executive, at the Company's expense, shall cooperate fully with the Company
to obtain protective orders, confidential treatment or other such protective
action as may be available to preserve the confidentiality of the information
required to be disclosed.
(j) Remedies. It is expressly understood and agreed that the
services to be rendered hereunder by the Executive are special, unique and of
extraordinary character, and in the event of the breach by the Executive of any
of the terms and conditions of this Agreement on her part to be performed
hereunder, or in the event of the breach or threatened breach by the Executive
of the terms and provision, of this Section 4 of this Agreement, then the
Company shall be entitled, if it so elects, to institute and prosecute any
proceedings in any court of competent jurisdiction, either in law or equity, for
such relief as it deems appropriate, including without limiting the generality
of the foregoing, any proceedings to obtain damages for any breach of this
Agreement or to enforce the specific performance thereof by the Executive or to
enjoin the Executive from performing services which are prohibited by this
Agreement for any other person, firm or corporation. If the Executive violates
any provision of this Section 4, the time period set
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forth herein with respect to such provision, if any, shall be extended, until
six (6) months after the date of entry of final judgment enforcing such
provision and the time for appeal has lapsed. If Executive is held by a court of
competent jurisdiction to have breached this Agreement, Executive shall be
liable for any attorneys' fees and costs incurred by the Company in enforcing
its rights hereunder.
(k) Enforcement. It is hereby expressly agreed by the Company and
the Executive that if any portion of the restrictive covenants and provisions
set forth in this Section 4 is held to be unreasonable, arbitrary, against
public policy or otherwise unenforceable for any reason, then each such covenant
or provision shall be considered divisible as to scope, time and geographical
area, with each month of a specified period being deemed a separate period of
time and each county within any geographical area being deemed a separate
geographic area. The parties hereto expressly agree that notwithstanding their
mutual expectation that the covenants and restrictions contained herein will be
enforceable and enforced, a lesser scope, period of time or geographic area
shall be enforced to the extent that the covenants contained herein may be
unenforceable as written. The Company and the Executive also agree that in the
event that any court of competent jurisdiction determines a portion of the
restrictive covenants contained herein to be non-enforceable, such determination
by such court shall be deemed to have applicability only within the jurisdiction
in which such court is located and shall not be deemed to be effective in any
other jurisdiction. The existence of any claim or cause of action by the
Executive against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
the restrictive covenants contained in this Section 4.
(l) Covenants Non-Exclusive. The Executive acknowledges and agrees
that the covenants contained in this Section 4 shall not be deemed exclusive of
any common law rights of the Company in connection with the relationships
contemplated hereby; and that the Company shall have any and all rights as may
be provided by law in connection with the relationships contemplated hereby.
5. Termination. The Executive's employment hereunder may be terminated
prior to the expiration of the Employment Period under the following
circumstances:
(a) Death. The Executive's employment hereunder shall terminate upon
her death. In the case of the Executive's death, the Company shall pay to the
Executive's beneficiaries or estate, as appropriate, promptly after her death,
any accrued but unpaid Annual Base Salary, any accrued but unpaid Incentive
Bonus and all expenses for which she is entitled to be reimbursed pursuant to
Section 3 through the date of her termination. In addition, the Option shall
vest in accordance with, and to the extent (if any) described in, Section 3(e)
hereof and, to the extent vested on the date of termination, shall be
exercisable for a period of one year from the date of termination. The Executive
and her beneficiaries and estate, as appropriate, shall be entitled to no other
compensation under this Agreement following, or as a result of, a termination on
account of the death of the Executive.
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(b) Disability.
(i) If a Disability (as defined below) of the Executive occurs
during the Employment Period, the Company may give the Executive written notice
of its intention to terminate her employment. In such event, the Executive's
employment with the Company shall terminate on the effective date specified in
such notice. In the case of a termination as a result of a Disability, the
Company shall pay to the Executive promptly after her termination any accrued
but unpaid Annual Base Salary, any accrued but unpaid Incentive Bonus and all
expenses for which she is entitled to be reimbursed pursuant to Section 3
through the date of her termination. In addition, the Option shall vest in
accordance with, and to the extent (if any) described in, Section 3(e) hereof
and, to the extent vested on the date of termination, shall be exercisable for a
period of one year from the date of termination. The Executive and her
beneficiaries and estate, as appropriate, shall be entitled to no other
compensation under this Agreement following, or as a result of, a termination on
account of the Disability of the Executive.
(ii) For the purpose of this subsection 5(b), "Disability" shall
mean the Executive's inability to perform her normal duties as Chief Operating
Officer of the Company, with or without reasonable accommodation, due to a
mental or physical impairment, for a period of at least two (2) consecutive
months or three (3) months in the aggregate in any twelve (12) month period. The
Executive agrees to submit to a reasonable number of examinations by a medical
doctor selected by the Company and reasonably acceptable to the Executive (or
her legal representative) making the determination of disability under this
Section 5(b)(ii), and the Executive hereby authorizes the disclosure and release
to the Company of such determination and all supporting medical records.
(c) Termination by the Company for Cause.
(i) The Company may terminate the Executive's employment
hereunder for Cause (as defined below) at any time upon written notice to the
Executive. In such event, the Executive's employment shall terminate on the
effective date specified in such notice. In the case of the Executive's
termination for Cause, the Company shall promptly pay to the Executive any
accrued but unpaid Annual Base Salary, any accrued but unpaid Incentive Bonus
and all expenses for which she is entitled to be reimbursed pursuant to Section
3 through the date of her termination. In addition, at any time during the 30
day period following the date of termination for Cause, the Executive shall have
the right to exercise the Option to the extent vested on the date of termination
for Cause in accordance with the terms of Program and the stock option
agreement. The Executive and her beneficiaries shall be entitled to no other
compensation under this Agreement following, or as a result of, a termination
for Cause.
(ii) For purposes of this Agreement, "Cause" shall mean (A) any
act of gross negligence, malfeasance or gross misconduct by the Executive
materially detrimental to the Company or its affiliates; (B) any willful
misappropriation or embezzlement by the Executive of the property of the Company
(whether or not a felony or misdemeanor); (C) any indictment for a felony; (D)
the commission by the
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Executive of any misdemeanor involving theft, fraud, dishonesty or
misrepresentation; (E) repeated unexcused absences of the Executive; (F) the
material breach by the Executive of any of her covenants and obligations
hereunder, including, without limitation, the covenants contained in Section 4
hereof); or (G) the refusal of the Executive to accept the lawful directions of
the Company consistent with the terms of this Agreement or other willful
disobedience or material breach by the Executive of any of the Company's written
rules, instructions or orders; provided, however that in the event of (A), (E),
(F)(except with respect to a breach of the covenants contained in Section 4
hereof) and (G), Executive shall first have been given written notice setting
forth the details of such Cause and shall have failed to cure the breach set
forth in such notice within fifteen (15) days after the delivery of such notice
by the Company.
(d) Termination by the Company Upon Failure to Achieve Performance
Goals.
(i) If, as of the date which is 18 months after the Commencement
Date, the Executive has not achieved the performance goals to be agreed upon by
the Company and the Executive and set forth in an addendum to this Agreement
within sixty (60) days after the date hereof, the Company may, at any time
within thirty (30) days thereafter, terminate the Executive's employment
hereunder upon written notice to the Executive. In such event, the Executive's
employment shall terminate on the effective date specified in such notice. If
Executive's employment hereunder is terminated by the Company pursuant to this
Section 5(d), the Company shall pay to the Executive any accrued but unpaid
Annual Base Salary, any accrued but unpaid Incentive Bonus and expenses for
which she is entitled to be reimbursed pursuant to Section 3 through the
effective date of termination. In addition, if the Executive's employment
hereunder is terminated by the Company pursuant to this Section 5(d), in lieu of
any other payments or other compensation or benefits pursuant hereto, or
available at law or equity, the Executive shall receive continuation of her
Annual Base Salary and the benefits described in Section 3(c)(i) for a period of
six (6) months from the effective date of termination, and shall be entitled to
exercise the Option, to the extent vested as of the effective date of
termination, for a period of ninety (90) days after the effective date of
termination. The Executive and her beneficiaries shall be entitled to no other
compensation under this Agreement following, or as a result of, a termination on
account of failure to achieve performance goals.
(e) Other Termination by the Company. The Company may terminate the
Executive's employment hereunder for any reason other than death, Disability,
Cause, failure to achieve performance goals (in accordance with Section 5(d)) or
Change in Control (pursuant to Section 5(g)) upon written notice to the
Executive. In such event, the Executive's employment shall terminate on the
effective date specified in such notice. If the Executive's employment hereunder
is terminated by the Company pursuant to this Section 5(e), the Company shall
pay to the Executive any accrued but unpaid Annual Base Salary, any accrued but
unpaid Incentive Bonus and all expenses for which she is entitled to be
reimbursed pursuant to Section 3 through the effective date of her termination.
In addition, in lieu of any other payments or other compensation or benefits
pursuant hereto, or available at law or in equity, the Executive shall receive
continuation
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of her Annual Base Salary and the benefits described in Section 3(c)(i) for a
period equal to the lesser of (i) one year from the date of termination and (ii)
the balance of the Employment Period (had employment not been so terminated),
and the Option, to the extent not then vested, shall vest in its entirety and
become exercisable for a period of one year after the effective date of
termination in accordance with the terms of the Program and the stock option
agreement. The Executive and her beneficiaries shall be entitled to no other
compensation under this Agreement following, or as a result of, a termination
pursuant to this Section 5(e).
(f) Termination by the Executive for Good Reason. The Executive may
terminate her employment hereunder upon written notice to the Company in the
event of a material and continuing breach of the terms of this Agreement by the
Company, or a material diminution by the Company of the Executive's duties and
responsibilities from those contemplated under Section 2, which breach or
diminution is not cured within fifteen (15) days after delivery by the Executive
to the Company of written notice of such breach specifying the details of such
breach. In such event, the Executive's employment shall terminate on the
effective date specified in the notice of termination. If the Executive
terminates her employment hereunder pursuant to this Section 5(f), the Company
shall pay to the Executive any accrued but unpaid Annual Base Salary, any
accrued but unpaid Incentive Bonus and all expenses for which she is entitled to
be reimbursed pursuant to Section 3 through the effective date of termination.
In addition, in lieu of any other payments or other compensation or benefits
pursuant hereto, or available at law or in equity, the Executive shall receive
continuation of her Annual Base Salary and the benefits described in Section
3(c)(i) for a period equal to the lesser of (i) one year from the effective date
of termination and (ii) the balance of the Employment Period (had employment not
been so terminated), and the Option, to the extent not then vested, shall vest
in its entirety and become exercisable for a period of one year after the
effective date of termination in accordance with the terms of the Program and
the stock option agreement. The Executive and her beneficiaries shall be
entitled to no other compensation under this Agreement following, or as a result
of, a termination by the Executive for good reason pursuant to this Section
5(f).
(g) Change of Control. (i) If the Company terminates the Executive's
employment hereunder within three (3) months after a "Change of Control" of the
Company (as hereinafter defined) for any reason other than death, Disability,
Cause or failure to achieve performance goals in accordance with Section 5(d),
then the Executive's employment shall terminate on the effective date specified
in a written notice of such termination delivered to the Executive.
(ii) The Executive may terminate her employment hereunder in the
event of a material diminution by the Company of the Executive's duties and
responsibilities from those contemplated in Section 2 within ninety (90) days
after a Change of Control of the Company. In such event, the Executive's
employment shall terminate on the effective date specified in the notice of
termination (which notice of termination must be delivered within one hundred
five (105) days after the Change of Control).
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(iii) If the Executive's employment is terminated pursuant to
this Section 5(g), the Company shall pay to the Executive any accrued but unpaid
Annual Base Salary, any accrued but unpaid Incentive Bonus and all expenses for
which she is entitled to be reimbursed pursuant to Section 3 through the
effective date of termination. In addition, in lieu of any other payments or
other compensation or benefits pursuant hereto, or available at law or equity,
the Executive shall receive continuation of her Annual Base Salary and the
benefits described in Section 3(c)(i) for a period of one year from the date of
termination. The Executive and her beneficiaries shall be entitled to no other
compensation under this Agreement following, or as a result of, a termination
following a Change of Control pursuant to this Section 5(g) except as provided
in Section 3(e) regarding the Option.
(iv) As used herein, "Change in Control" of the Company shall
mean the happening of any of the following events:
(A) A change in control of the direction and administration
of the Company's business of a nature such that if any securities of the Company
were registered under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), such change would be required to be reported in response to (I)
Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange Act,
or (II) Item 1(a) of Form 8-K under the Exchange Act as each is in effect on the
date hereof and any successor provision of such regulations under the Exchange
Act (irrespective of whether the Company is then subject to such reporting
requirements); or
(B) Any "person" or "group" (as such term is used in
connection with Section 13(d) and 14(d)(2) of the Exchange Act) but excluding
any employee benefit plan of the Company or any "affiliate" or "associate" of
the Company (as defined in Regulation 12b-2 under the Exchange Act) (I) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing fifty
percent (50%) or more of the combined voting power of the Company's outstanding
securities then entitled ordinarily (and apart from rights accruing under
special circumstances) to vote for the election of directors or (II) acquires by
proxy or otherwise 50% or more of the combined voting securities of the Company
having the right to vote for the election of directors of the Company, for any
merger or consolidation of the Company, for the election of directors, or for
any other matter; or
(C) During any period of twenty-four (24) consecutive
months, the individuals who at the beginning of such period constitute the Board
of Directors of the Company or any individuals who would be "Continuing
Directors" (as hereinafter defined) cease for any reason to constitute at least
a majority thereof; or
(D) There shall be consummated (I) any consolidation,
merger or recapitalization of the Company or any similar transaction involving
the Company, irrespective of whether the Company is the continuing or surviving
corporation, pursuant to which shares of the Company's Common Stock, would be
converted into cash, securities or other property, other than a merger of the
Company in
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which the holders of Common Stock immediately prior to the merger have the same
proportion and ownership of common stock of the surviving corporation
immediately after the merger, (II) any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company or (III) the adoption of a plan
of complete liquidation of the Company (whether or not in connection with the
sale of all or substantially all of the Company's assets) or a series of partial
liquidations of the Company that is de jure or de facto part of a plan of
complete liquidation of the Company; provided, that the divestiture of less than
substantially all of the assets of the Company in one transaction or a series of
related transactions, whether effected by sale, lease, exchange, spin-off, sale
of the stock or merger of a Subsidiary or otherwise, or a transaction solely for
the purpose of reincorporating the Company in another jurisdiction, shall not
constitute a "Change in Control"; or
(E) The Board of Directors of the Company shall approve any
merger, consolidation or like business combination or reorganization of the
Company, the consummation of which would result in the occurrence of any event
described in Section 5(g)(ii) (A), (B) or (D) above.
(F) For purposes of this Agreement, "Continuing Directors"
shall mean the directors of the Company in office on the date hereof and any
successor to any such director and any additional director who after the date
hereof (I) was nominated or selected by a majority of the Continuing Directors
in office at the time of his nomination or selection and (II) who is not an
"affiliate" or "associate" (as defined in Regulation 12b-2 under the Exchange
Act) of any person who is the beneficial owner, directly or indirectly, of
securities representing ten percent (10%) or more of the combined voting power
of the Company's outstanding securities then entitled ordinarily to vote for the
election of directors.
(h) Mutual Agreement. The Executive's employment may be terminated
by written mutual agreement of the Executive and the Company at any time.
6. Assignment; Successors and Assigns. The Executive agrees that she
will not assign, sell, transfer, delegate or otherwise dispose of, whether
voluntarily or involuntarily, any rights or obligations under this Agreement,
nor shall the Executive's rights be subject to encumbrance of the claims of
creditors. Any purported assignment, transfer, delegation, disposition or
encumbrance in violation of this Section 6 shall be null and void and of no
force or effect. Nothing in this Agreement shall prevent the consolidation or
merger of the Company with or into any other entity, or the sale by the Company
of all or any portion of its respective properties or assets, or the assignment
by the Company of this Agreement and the performance of its obligations
hereunder to any subsidiary of the Company, or any successor in interest or any
other affiliated entity, and the Executive hereby consents to any and all such
assignments. Subject to the foregoing, this Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective heirs, legal
representatives, successors, and permitted assigns, and shall not benefit any
person or entity other than those enumerated above.
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7. Choice of Law; Venue. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without
giving effect to any choice or conflict of law provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York. The Executive
irrevocably consents to the service of any and all process in any action or
proceeding arising out of or relating to this Agreement by the mailing of copies
of such process to such Executive at the address specified in Section 10. The
parties hereto irrevocably submit to the jurisdiction of the United States
District Court for the Southern District of New York or any state court located
in New York County, State of New York over any dispute arising out of or
relating to this Agreement or any of the transactions contemplated hereby. Each
party hereby irrevocably agrees that all claims in respect of such dispute or
proceeding may be heard and determined in such courts. The parties hereby
irrevocably waive, to the fullest extent permitted by applicable law, any
objection which they may now or hereafter have to the laying of venue of any
such dispute brought in such court or any defense of inconvenient forum in
connection therewith.
8. Severability of Provisions. In the event that any provision or any
portion thereof should ever be adjudicated by a court of competent jurisdiction
to exceed the limitations permitted by applicable law, as determined by such
court in such action, then such provisions will be deemed reformed to the
maximum limitations permitted by applicable law, the parties hereby
acknowledging their desire that in such event such action be taken. In addition
to the above, the provisions of this Agreement are severable, and the invalidity
or unenforceability of any provision or provisions of this Agreement or portions
thereof will not affect the validity or enforceability of any other provision,
or portion of this Agreement, which will remain in full force and effect as if
executed with the unenforceable or invalid provision or portion thereof
eliminated. Notwithstanding the foregoing, the parties hereto affirmatively
represent and acknowledge that this Agreement and each of its provisions is
enforceable in accordance with its terms, and expressly agree not to challenge
the enforceability of the Agreement or any of its provisions in the future. The
parties hereto are expressly relying upon this representation and acknowledgment
in determining to enter into this Agreement.
9. Warranty. As an inducement to the Company to enter into this
Agreement, the Executive represents and warrants to the Company that she is not
a party to any other agreement or obligation for personal services, and that
there exists no impediment or restraint, contractual or otherwise, on her power,
right or ability to enter into this Agreement and to perform her duties and
obligations hereunder.
10. Notices. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when received if personally delivered;
when transmitted if transmitted by telecopy, electronic or digital transmission
method upon receipt of telephonic or electronic confirmation; the day after it
is sent, if sent for next day delivery to a domestic address by recognized
overnight delivery service (e.g., Federal Express); and upon receipt, if sent by
certified or registered mail, return receipt requested. In each case notice
shall be sent to:
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If to the Executive, addressed to:
Xxxxxx Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to the Company addressed to:
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Xxxxx Xxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
or to such other place and with such other copies as either party may designate
as to itself or herself by written notice to the others.
11. Cumulative Remedies. All rights and remedies of either party hereto
are cumulative of each other and of every other right or remedy such party may
otherwise have at law or in equity, and the exercise of one or more rights or
remedies shall not prejudice or impair the concurrent or subsequent exercise of
other right or remedies.
12. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same Agreement.
13. Entire Agreement; Amendments and Waivers. This Agreement and the
agreements and documents referred to herein are intended by the parties to be,
and are, the complete, exclusive and final expression of their agreement with
respect to the subject matter hereof. Moreover, this Agreement supersedes, and
may not be contradicted by, or modified or supplemented by, evidence of any
prior or contemporaneous agreement as to the subject matter hereof, and no
extrinsic evidence whatsoever may be introduced in any judicial, administrative
or other legal proceeding to vary the terms of this Agreement. No amendment,
supplement, modification or waiver of this Agreement shall be binding unless
executed in writing by each party to be bound thereto. No waiver of any of the
provisions of this Agreement, whether by conduct or otherwise, in any one or
more instances, shall be deemed or be construed as a further, continuing or
subsequent waiver of any such provision or as a waiver of any other provision of
this Agreement. No failure to exercise and no delay in exercising any right,
remedy or power hereunder shall preclude any other or further exercise of any
other right, remedy or power provided herein or by law or in equity.
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14. Representation of Counsel; Mutual Negotiation. Each party has had
the opportunity to be represented by counsel of its choice in negotiating this
Agreement. This Agreement shall therefore be deemed to have been negotiated and
prepared at the joint request, direction and construction of the parties, at
arm's-length, with the advice and participation of counsel, and shall be
interpreted in accordance with its terms without favor to any party.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
EXECUTIVE
/s/ Xxxxxx Xxxx
-----------------------------------------
Xxxxxx Xxxx
WALL STREET STRATEGIES
CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
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