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EXHIBIT 10
Employment Agreement
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
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
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 January 1,
2000 (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.
h. 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 xx.xx. 5. and 6. hereof shall be
enforceable both at 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) the 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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d. Application of Florida Law: This agreement, and the application or
interpretation thereof, shall be governed exclusively by its terms and by the
laws of the State of Florida. Venue shall be deemed located in Palm Beach
County, Florida.
e. Counterparts: This agreement may be executed by any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
f. Binding Effect: Each of the provisions and agreements herein
contained shall be binding upon and enure to the benefit of the personal
representatives, devisees, heirs, successors, transferees and assigns of the
respective parties hereto.
g. Legal Fees and Costs: If a legal action is initiated by any party to
this Agreement against another, arising out of or relating to the alleged
performance or non-performance of any right or obligation established hereunder,
or any dispute concerning the same, any and all fees, costs and expenses
reasonably incurred by each successful party or his or its legal counsel in
investigating, preparing for, prosecuting, defending against, or providing
evidence, producing documents or taking any other action in respect of, such
action shall be the joint and several obligation of and shall be paid or
reimbursed by the unsuccessful party(ies).
h. Jurisdiction: The parties agree that, irrespective of any wording
that might be construed to be in conflict with this paragraph, this agreement is
one for performance in Florida. The parties to this agreement agree that they
waive any objection, constitutional, statutory or otherwise, to a Florida
court's taking jurisdiction of any dispute between them. By entering into this
agreement, the parties, and each of them understand that they might be called
upon to answer a claim asserted in a Florida court.
In witness whereof, the parties have executed this Agreement the date
first set forth above.
Attest: Split Second Trading, Inc.
By: /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx, President
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