Exhibit 10.4
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of April
10, 2007 (as so amended and restated, this "Agreement"), between OPTIONABLE,
INC., a Delaware corporation ("Employer"), and XXXXX X. XXXXXXX ("Employee").
W I T N E S S E T H:
WHEREAS, Employer is engaged in the business of providing
trading and brokerage services to brokerage firms, financial institutions,
energy traders, and hedge funds, and developing an automated electronic trading
system;
WHEREAS, Employer and Employee are the parties to an
Employment Agreement dated as of October 30, 2005 (the "Original Agreement");
WHEREAS, Employer and Employee wish to set forth certain
amendments to, and restate, the Original Employment Agreement effective as of
April 10, 2007; and
WHEREAS, Employee seeks to continue to be employed by Employer
and Employer seeks to continue to so engage Employee as its Chief Executive
Officer and Vice Chairman upon the terms and conditions of this Agreement as so
amended and restated;
NOW, THEREFORE, in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending legally to be bound, agree as follows.
1. Employment. Employer agrees to employ Employee and Employee accepts
employment with Employer, on the terms and conditions set forth in this
Agreement.
2. Term of Employment. Employer hereby employs Employee and Employee
hereby accepts employment for a term commencing on October 30, 2005 (the
"Commencement Date"), and expiring on that date five (5) years after the
Commencement Date, unless sooner terminated as hereinafter provided (the
"Employment Period"). This Agreement shall be renewable for succeeding terms, if
any (each of the Employment Period and each successive term of employment
hereunder, a "Term") only by written agreement by Employer and Employee entered
into within thirty (30) days prior to the expiration of the then current Term.
In the absence of such renewal, this Agreement shall terminate at the end of the
then current Term.
3. Duties During Employment. Employee shall be employed by Employer
during each Term as its Chief Executive Officer. As soon as practicable after
the execution and delivery of this agreement, the Board of Directors shall vote
on the election of Employee as a Director of Employer.
In carrying out his duties under this Agreement, Employee shall have
such powers and duties usually incident to the office of Chief Executive
Officer. Employee shall have authority do such acts and to make such contracts
as are necessary or proper to carry on the business of Employer, including but
not limited to:
(a) managing and overseeing the brokerage operations of the
Employer;
(b) managing and overseeing the marketing operations of the
Employer;
(c) management and oversight of employees of the Employer;
(d) leading senior level management and participating in Board
meetings at the request of the directors; and
(e) use of his best efforts to carry into effect the policies,
initiatives and directives of the Board.
Employee agrees that he shall devote no less than eighty (80%) percent of his
working time to carrying out his duties and obligations hereunder. It is
expressly acknowledged, however, that, subject to the preceding sentence,
Employee shall be permitted to continue to be active in and pursue other
business activities and opportunities (whether or not now existing) provided,
that while employed hereunder he shall abide by the Restrictive Covenants set
forth in Section 7 below. Moreover, and subject to the first sentence of this
paragraph and the Employee's duty of loyalty to Employer, it is understood that
Employee may engage in personal activities of a civic, charitable or educational
nature and may manage his personal investments.
4. Place of Performance. Employee's place of employment shall be
Briarcliff Manor, New York ("Place of Performance") and shall not be changed
without Employee's prior written consent.
5. Compensation. As compensation for all of the services to be rendered
hereunder, whether or not anticipated as being within the scope of this
Agreement, Employer shall compensate Employee as follows.
(a) Employee's gross salary during the Employment Period
("Fixed Compensation") shall be as follows:
(i) upon entering into this agreement, $20,833;
(ii) from October 30, 2005 to December 31, 2005, $46,875;
(iii)from January 1 to December 31, 2006, $275,000;
(iv) from January 1, 2007 to December 31, 2007, $300,000;
(v) from January 1 to December 31, 2008, $325,000; and
(vi) from January 1, 2009 to December 31, 2009: $350,000;
payable in accordance with the Employer's regular payroll policies and subject
to usual payroll deductions provided by law.
2
(b) During the Employment Period and beginning with the first
month of the quarter in which the amount payable to Employee, pursuant to the
Addendum to Master Services Agreement dated April 12, 2005, is fully paid,
Employer shall pay Employee (i) cash compensation amounting to five percent (5%)
of Gross Revenues of Employer, and (ii) stock compensation ("Stock
Compensation") amounting to two percent (2%) of the Gross Revenues of Employer
(together the "Variable Compensation"). Gross Revenue is defined as the total
gross revenue related to any all aspects of the brokerage business, including
incentive received from exchanges, based on generally accepted accounting
principles. Stock will be granted at fair value at the date of grant. The
Variable Compensation will be paid (in the case of cash) and issued (in the case
of stock) on a quarterly basis. It is understood that shares of Employer's
common stock constituting the Stock Compensation will be "restricted stock," as
such term is defined in Rule 144 of the Securities and Exchange Commission.
(c) Employer shall issue common stock purchase options to
Employee to purchase that number of shares of common stock equal to twenty
percent (20%) of the number of shares of common stock issuable under warrants
which become exercisable pursuant to any Order Flow Agreements. Order Flow
Agreements being those agreements in which the Employer has agreed to issue
warrants to an entity based on the volume of orders that such entity has placed
with the Employer. Such options will be Non-Statutory Stock Options granted
under Employer's 2004 Stock Option Plan (the "Plan") at fair value at the date
of grant and will be fully-vested upon grant.
(d) Employer shall issue to Employee 5,000 common stock
purchase options each time a firm registers with and executes its first 10,000
lots on Employer's OPEX platform. The total number of options issuable under
this Section 5(d) will be limited to 2,500,000. Such options will be
Non-Statutory Options granted under the Plan at fair value at the date of grant
and will be fully-vested upon grant.
(e) Employee shall be entitled to paid annual vacation,
personal leave and holidays in accordance with the policies of Employer.
Employee will be entitled to participate in health, welfare, and pension plans
and any other employee benefit plan of Employer on the same basis as such
benefits are generally available to similarly situated employees of Employer.
(f) Employer will advance to or reimburse Employee for all
reasonable travel and entertainment and other reasonable expenses incurred by
the Employee in connection with his performance under this Agreement upon
submission of written or printed receipts in accordance with Employer's usual
and customary policy. Employer agrees that Employee's travel by first class air
travel and by executive limousine ground transportation are reasonable expenses.
(g) Employer shall advance to or reimburse Employee for the
annual or monthly premium of Employee's life insurance policy of one million
dollars ($1,000,000) where the beneficiary is the Employee's estate (immediate
family), provided that Employee submits to Employer a copy of the invoice for
such premium upon request.
3
(h) Upon notice to be given to Employee not less than thirty
(30) days prior to the expiration of the Term, Employer shall have the right to
require that Employee continue to abide by the Restrictive Covenants set forth
in Sections 7(b) and (c) below following the expiration of the Term, in which
case Employer shall continue to pay Employee his Fixed Compensation, at the rate
in effect on the last day of the Term, in accordance with Employee's regular
payroll policies and subject to usual payroll deduction provided by law, through
the last day of the Restrictive Period (as defined in Section 7(b) below). For
the avoidance of doubt, an early termination of this Agreement pursuant to
Section 6 below does not constitute the expiration of the Term.
6. Early Termination. This Agreement may be terminated by either party
at any time before the expiration of the Term in accordance with the terms and
conditions set forth in this Section 6.
(a) If Employee resigns from his employment under this
Agreement without Good Reason, as defined below, or if Employer terminates
Employee's employment for Cause, as defined below, Employer shall have no
financial obligation to Employee except to pay his Fixed Compensation through
the date of termination and continue his employee benefits through such date.
Employer shall give Employee written notice of a termination for Cause, and
Employee shall give written notice to Employer of resignation for Good Reason.
For purposes of this Agreement, "Cause" shall mean (i) the Employee's willful
misconduct in the performance of his duties hereunder, provided that Employer
shall have given written notice of such willful misconduct to Employee and
Employee shall not have substantially cured such willful misconduct within
fifteen (15) days after his receipt of such notice; (ii) a non-appealable
conviction of a felony; (iii) issuance of a final consent decree,
cease-and-desist or similar order against Employee prohibiting Employee from
engaging in the securities and/or commodities business or (iv) Employee's breach
of any of the Restrictive Covenants set forth in Section 7 below. For purposes
of this Agreement, "Good Reason" shall mean the occurrence of any of the
following: (A) Employer shall have materially defaulted in its obligations
hereunder; (B) a material diminution in Employee's authority, or
responsibilities, or (C) a change in Employee's Place of Performance without
Employee's prior written consent.
(b) Upon the sale or merger or other business combination of
Employer and another company or companies (excluding NYMEX Holdings, Inc. or its
affiliates), Employee will be entitled to a lump sum payment of 50% of the
unpaid Fixed Compensation should he desire not to be employed with the new or
successor entity.
(c) If Employee becomes incapable, by reason of death or
Disability, as defined below, of performing his duties under this Agreement,
Employer may terminate Employee on the following terms. Employer will pay to
him, or to a person duly authorized to act on his or his estate's behalf, a lump
sum equal to the sum of any unpaid Fixed Compensation accrued to the date of
termination (the "Section 6(d) Sum"). In such circumstances, payment of the
Section 6(d) Sum shall satisfy all financial obligations of Employer to Employee
under this Agreement, but Employee's employment hereunder shall continue for the
duration of the condition that occasioned the Disability, after which his
employment for all purposes shall cease. For purposes of this Agreement,
"Disability" shall mean the inability of Employee, by reason of physical or
mental illness or injury, substantially to perform his duties hereunder for a
period of time exceeding 180 days in the aggregate during any period of twelve
consecutive months. Employer shall give Employee or a person duly authorized to
act on his behalf written notice of a termination based on Disability.
4
(d) Employee shall have no duty to mitigate Employer's damages
or losses, if any, with respect to any payments due him pursuant to this Section
6, by seeking or accepting other employment. Moreover, should Employee seek and
accept other employment no amounts payable to Employee by a subsequent employer
shall be deemed to offset to any amounts owed by Employer to Employee under this
Agreement.
(e) For the avoidance of doubt, if either Employer terminates
Employee's employment without Cause or Employee resigns for Good Reason,
Employee shall be entitled to all amounts hereunder as though Employee continued
to work until five (5) years after the Commencement Date.
7. Restrictive Covenants. Employee acknowledges that the business in
which Employer is engaged is intensely competitive and: (i) by reason of
Employee's appointment and duties, he will be privy to substantial and vital
confidential information of Employer, not generally published or available to
the public, concerning the organization, business and affairs, products and
technology, and customers of Employer, including but not limited to, business
plans, operational methods, financial information and projections, technical
processes and data, product development plans, research and development, lists
of customers, interests and needs of customers, business plans and policies,
overhead and cost information, profit margins, pricing methods or prices
considered or actually charged, lists and records of sales and contracts,
computer software applications and other programs, source codes, object codes,
marketing techniques and materials, marketing and development plans, price
lists, pricing policies, personnel information and other trade secrets (the
"Confidential Information"); (ii) the disclosure of any of the foregoing to
existing or potential competitors of Employer would place Employer at a serious
competitive disadvantage and could do serious damage to the business of
Employer; and (iii) by Employee's training, experience and expertise, Employee's
services to Employer will be extraordinary, special and unique. Accordingly,
Employee willingly agrees to be bound by the following restrictions:
(a) During the Term and at all times after the termination of
Employee's employment with Employer for any reason (including the expiration of
the Term), Employee shall not, directly or indirectly, whether individually, as
an officer, director, employee, consultant, owner, investor, partner or
stockholder of any business, or in any other capacity, make known, disclose,
furnish, make available or utilize any of the Confidential Information, other
than in the proper performance of the duties contemplated herein. Employee
agrees to return all Confidential Information, including all photocopies,
extracts and summaries thereof, and any such information stored electronically
or in any other manner to Employer at any time upon request by Employer and upon
the termination of Employee's employment for any reason (including the
expiration of the Term). Nothing contained in this Section 7(a) shall be deemed
to preclude Employee from: (i) using his own general skills, knowledge and
experience; (ii) using or disclosing any Confidential Information which becomes
public through no fault of Employee; or (iii) disclosing Confidential
Information pursuant to subpoena, court order or legal process, provided that
Employee gives Employer advance written notice of the required disclosure so
that Employer may, if it wishes, seek an appropriate protective order.
5
(b) During the Term and for a period of nine (9) months
following the termination of Employee's employment with Employer for any reason
(including the expiration of the Term if Employer makes the election
contemplated by Section 5(h) above) (the "Restrictive Period"), Employee shall
not, directly or indirectly, whether as officer, director, employee, consultant,
owner, investor, partner or stockholder, be engaged in or have any financial
interest in (other than an interest of less than five percent (5%) of the stock
of a publicly traded company) or affiliation with or render any services to or
for any person, firm, company or organization which provides "Competitive
Services" (as defined below) to brokerage firms, other financial institutions
providing energy brokerage services or clearinghouses, anywhere in the United
States, it being understood and acknowledged by Employee that Employer conducts
business and offers Competitive Services on a nationwide basis. The term
Competitive Services shall mean natural gas and other energy brokerage services.
Notwithstanding the foregoing, it shall not be a violation of this Section 7(b)
for Employee to become an officer, director, employee, consultant, owner,
investor, partner or stockholder of any person, firm, company or organization
which provides "Competitive Services" if, and only if, Employee's primary
responsibilities to or for such person, firm, company or organization do not
involve, and do not in any significant manner relate to, providing Competitive
Services to brokerage firms, other financial institutions providing energy
brokerage services or clearinghouses, anywhere in the United States.
(c) During the Restrictive Period, Employee shall not,
directly or indirectly, for his benefit or for the benefit of any person, firm
or entity (other than Employer):
(i) cause or attempt to cause any Customer or
Prospective Customer of Employer on whom Employee called or with whom Employee
became acquainted during employment with Employer to obtain Competitive Services
from any person, firm, company or organization other than Employer or to cease
doing business with, or reduce the amount of Competitive Services obtained from,
Employer. For purposes of this Agreement, "Customer" shall mean any brokerage
firm, financial institution, energy trader, hedge fund or other entity which was
a customer of or had an account with Employer during the one (1) year period
preceding Employee's termination of employment for any reason (including the
expiration of the Term). For purposes of this Agreement, "Prospective Customer"
shall mean any brokerage firm, financial institution, energy trader, hedge fund
or other entity for which Employer had submitted a written proposal to provide
services within the one (1) year period preceding Employee's termination of
employment for any reason (including the expiration of the Term); or
(ii) enter into any partnership, limited liability
company, corporation, new or joint venture or similar arrangement with, or hire
or retain or attempt to hire or retain, any person who is, or at any time during
the one (1) year period preceding the termination of Employee's employment with
Employer for any reason (including the expiration of the Term), was an employee
of or consultant to Employer, without the prior written consent of the Employer,
such consent to be within Employer's sole and absolute discretion.
6
(d) Employee acknowledges that the restrictions specified in
this Section 7 are reasonable in view of the nature of the business in which
Employer is engaged, Employee's position with Employer, and Employee's knowledge
of Employer's business, and that any breach of this Section 7 may cause Employer
irreparable harm for which there is no adequate remedy at law, and as a result
of this, Employer will be entitled to seek the issuance by a court of competent
jurisdiction of an injunction, restraining order or other equitable relief in
favor of Employer, without the necessity of posting a bond, restraining Employee
from committing or continuing to commit any such violation. Any right to obtain
an injunction, restraining order or other equitable relief hereunder will not be
deemed to be a waiver of any right to assert any other remedy Employer may have
at law or in equity.
(e) Employee acknowledges and agrees that the duration and
geographic scope of the covenants contained in this Sections 7 are fair and
reasonable. Accordingly, Employee agrees that, in the event that any of the
covenants contained in this Section 7 is nevertheless judicially determined to
be unenforceable because of the duration or geographic scope thereof, the court
making such determination is hereby directed to reduce such duration and/or
scope to the extent necessary to enable such court to determine that such
covenant is reasonable and enforceable, and to enforce such covenant as so
amended.
(f) The provisions of this Section 7 shall survive the
termination of Employee's employment for any reason (including the expiration of
the Term) and this Agreement.
8. Termination of Consulting Agreement. Upon execution of this
Agreement, the Consulting Agreement, dated April 1, 2004 between the Employer
and the Employee, which is pursuant to the Master Services Agreement, dated
April 1, 2004, between the Employer and Capital Energy Services LLC, is
terminated retroactively on October 15, 2005. However, all other terms of the
Master Services Agreement, other than those relating to the Consultant, will
remain unchanged.
9. Governing Law; Jurisdiction; Venue. This Agreement shall be governed
by and is to be construed and enforced in accordance with the internal laws of
the State of New York without regard to principles of conflicts of laws. Any
action to enforce any term hereof shall be brought in the state or federal
courts located in the City of New York, State of New York, to which jurisdiction
and venue all parties hereby submit themselves.
10. Notices. All notices required to be given under this Agreement
shall be in writing and shall be deemed effective when delivered in person, by
facsimile transmission, overnight mail service or by certified U.S. mail,
addressed, in the case of Employee, to him at his residential address as
reflected in the Employer's personnel records or, in the case of Employer, to
000 Xxxxxxxxxxxxx Xxxx, Xxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, XX 00000,
or to such other address as Employee or Employer may designate in writing to the
other party.
11. Miscellaneous.
(a) This Agreement contains the entire agreement and
understanding between the parties and supersedes all other prior agreements,
discussions, negotiations, commitments, and understandings between them with
respect to the subject matter hereof. There are no representations, agreements,
arrangements or understandings, oral or written, between the parties concerning
the subject matter hereof which are not fully expressed herein.
7
(b) No waiver by either party of or failure to assert any
provision or condition of this Agreement by him or it to be performed or right
to be exercised shall be deemed a waiver of such or similar or dissimilar
provisions and conditions or rights at the same time or any prior or subsequent
time.
(c) This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their heirs, successors, assigns and personal
representations. In no event may Employee assign any rights or duties under this
Agreement and in no event may Employer assign any rights or duties under this
Agreement without the prior written authorization of Employee, provided,
however, that Employer may assign its rights under this Agreement in connection
with any merger, consolidation or sale of substantially all of its assets
subject to Section 6(b).
(d) Each in consultation with its respective legal counsel,
Employer and Employee have participated jointly in the negotiation and drafting
of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties hereto and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement.
(e) Employer shall indemnify and hold Employee harmless with
respect to any liability, loss or expense, including reasonable attorneys' fees
("Loss") (Employee shall have the right to choose such attorneys, subject to the
consent of Employer, which consent shall not be unreasonably withheld) incurred
by him, as a result of any claim relating to or arising out of the performance
of duties pursuant to this Agreement, provided, however, that if it is
determined that the Loss arose as a result of Employee's willful misconduct or
gross negligence, then Employee shall not be entitled to indemnification for
such Loss and Employee shall be required promptly to return to Employer any
amounts paid by Employer pursuant to this Section 11(e).
(f) In the event that any one or more of the provisions of
this Agreement shall be held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remainder hereof shall not in any
way be affected or impaired thereby and any such provision or provisions shall
be enforced to the fullest extent permitted by law. Moreover, if any one or more
of the provisions contained in this Agreement are held to be excessively broad
as to duration, scope, activity or subject, such provisions will be construed by
limiting and reducing them so as to be enforceable to the maximum extent
compatible with applicable law.
[Signatures appear on the following page]
8
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the year and day first above written.
EMPLOYER
Optionable, Inc.
By: /s/ Xxxxxx X'Xxxxxx
----------------------------
Xxxxxx X'Xxxxxx, President
EMPLOYEE
Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
----------------------------
Xxxxx X. Xxxxxxx
As to Section 8 only:
CAPITAL ENERGY SERVICES LLC
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx, Managing Director
