Exhibit 10.12
EMPLOYMENT AGREEMENT
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AGREEMENT made as of this 1st day of September, 1996, between EURO
BROKERS INC., a New York corporation (the "Company"), or affiliates as the
Company may assign from time to time, with principal offices at Two World Trade
Center, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 and XXXXXX X. XXXXXX ("Employee"),
residing at 00 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000.
In consideration of the covenants and agreements herein contained, the
parties agree as follows:
1. Employment, Acceptance and Term
Subject to the provisions hereof, the Company agrees to employ
Employee, and Employee agrees to serve the Company as Senior Vice President
for a term commencing on the date hereof and ending on August 31, 1999,
which date (the "Termination Date") shall also be the date upon which this
Agreement shall terminate (except for such provisions hereof as shall
expressly survive termination or expiration). This Agreement and the term
of employment of Employee will automatically continue unless terminated by
the Company or the Employee on not less than six months prior written
notice expiring on or after the Termination Date (the "Termination
Notice"). The last date of the term of this Agreement pursuant to any such
automatic continuance is herein called the "Extended Termination Date."
2. Duties and Authority
2.1 During the term hereof, Employee shall faithfully and diligently
devote Employee's full time, best efforts, skills and energies to the
business of the Company consisting of the activities set forth in Exhibit A
hereto (collectively, the "Business"). Employee acknowledges that
Employee's abilities and position in the financial services and securities
industry are of a special, unique, unusual, extraordinary and intellectual
character and, accordingly, shall not accept any other employment or render
advisory services during the initial or any extended term of this
Agreement, nor shall Employee permit such personal business interests as
Employee may have to interfere with the performance of Employee's duties
hereunder. Employee acknowledges that neither the Company nor any of its
affiliates for which Employee may be working hereunder or with respect to
which Employee may have access to confidential information ("Affiliates")
shall have any obligation to elect Employee a director or an officer, but
Employee agrees to serve as such if so elected. Employee agrees to
faithfully and diligently perform, to the best of Employee's abilities,
such duties as may from time to time be assigned to Employee by the
Company's Board of Directors (or its designee). Employee will duly,
punctually and faithfully perform and observe all rules that the Company
may from time to time establish concerning the conduct of the Business. All
such services shall be rendered for and in consideration of the
compensation payable to the Employee under Section 3 hereof.
2.2 Employee grants the Company the right to obtain insurance on
Employee's life during the term hereof for the benefit of the Company in
such amount as the Company shall deem appropriate and hereby agrees to
execute all such documents and perform all such acts as the Company shall
deem necessary in connection therewith.
Employment Agreement: XXXXXX X. XXXXXX
September 1, 1996
3. Compensation
During the term hereof, the Company shall pay Employee compensation at
the rate of $270,000 per annum, payable periodically in accordance with the
Company's then prevailing practices (the "Base Salary"). In addition, the
Employee may be paid a bonus, on a semi-annual basis, at the sole
discretion of the Board of Directors of the Company, but the Company shall
not be obligated to pay any such bonus. Any bonus award, if paid, will be
made after consideration of Company profits and the satisfactory
performance by Employee of his obligations under this Agreement.
4. Expenses
4.1 In addition to the compensation payable to Employee pursuant to
Section 3 hereof, the Company shall pay or reimburse Employee, upon
submission of proper vouchers in respect thereof, all reasonable and
necessary transportation, hotel, living and related expenses incurred by
Employee on business trips and all other business and entertainment
expenses, provided that all such expenses shall have been approved in
advance by the President of the Company or his designee.
4.2 Employee is aware that Employee may incur business expenses for
which it will be impracticable to claim reimbursement hereunder and
acknowledges that the compensation hereunder has been fixed to enable
Employee to bear such expenses out of such compensation.
5. Additional Benefits
Employee shall be entitled to an annual vacation in accordance with
the Company's policies as established from time to time, and shall be
entitled to participate in all retirement, insurance, hospitalization,
disability and other plans which the Company may in its sole discretion
establish from time to time, provided that Employee is eligible by the
terms thereof to participate therein.
6. Discharge for Cause
The Company may at any time terminate this Agreement and discharge
Employee for Cause. "Cause" herein shall mean Employee's (i) breach of any
material term hereof, (ii) failure to act in accordance with any reasonable
direction of the Company's President or his designee, (iii) commission of
any material act of disloyalty against the Company or any Affiliate, or
(iv) violation of any statute, rule or regulation governing the Company,
any Affiliate or the Business.
7. Termination of Employment
Notwithstanding anything to the contrary herein, Employee's employment
hereunder shall automatically terminate as follows, and the Company shall
have no obligations hereunder other than to pay sums due to Employee as of
the date of such termination: (i) upon Employee's death; (ii) based on
Employee's failure to perform the duties of the position
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Employment Agreement: XXXXXX X. XXXXXX
September 1, 1996
for a period of 60 days (except as may be prohibited by federal, state or
local disability laws); (iii) upon Employee's unilateral termination as
hereinafter defined; (iv) upon termination by mutual consent of the
parties; (v) upon notice to Employee of discharge for Cause; (vi) by the
Company on not less than thirty (30) days' prior written notice if the
Company decides, in its sole discretion, to no longer offer the services or
products in connection with which the Employee was employed. For purposes
hereof "unilateral termination" shall mean Employee's termination of
Employee's employment hereunder for any reason or no reason with or without
notice.
8. Non-Competition
8.1 Employee acknowledges that Employee's abilities and position in
the financial services and securities industry are of a special, unique,
unusual, extraordinary and intellectual character involving skill of the
highest order and giving them peculiar value, and that Employee's knowledge
of the Company's (and that of its Affiliates) trade secrets, client lists
and other confidential information is so complete that the breach, or
threatened breach, by Employee of the provisions of this Section 8 shall
cause irreparable harm to the Company and its Affiliates, which harm cannot
be fully redressed by the payment of damages to the Company or the
Affiliates. Employee also acknowledges that the Business may be carried on
anywhere within the United States and that, as a result, upon termination
of the Employee's employment hereunder, it is a reasonable requirement that
Employee refrain from engaging in a business competitive with the Business
during the time period, within the geographical limits and under the
circumstances set forth in this Section 8. Accordingly, Employee shall not,
(1) during the initial or any extended term hereof or (2) upon the written
request of the Company, for a period of six months following the
termination of the Employee's employment hereunder for any reason including
without limitation termination upon the expiration of the initial or any
extended term hereof, in any manner, directly or indirectly, as an officer,
director, stockholder, partner, associate, employee, consultant, owner,
agent, coventurer or otherwise (i) solicit, entice, encourage or otherwise
attempt to procure or service by telephone or otherwise accounts for a
business competitive with the Business from any customers (determined as at
the date of termination) of the Company's (or of any Affiliate's) located
within a 75 mile radius of the Company's main office at the address set
forth above (the "Territory"), or (ii) be or become interested in or be
associated, by employment or otherwise, with any other corporation, firm,
business or person located or engaged within the Territory in a business
competitive with the Business. The Employee's ownership, directly or
indirectly, of not more than three percent (3%) of the issued and
outstanding voting stock of any corporation the shares of which are
regularly traded on a national securities exchange or on the
over-the-counter markets shall not be deemed to be a violation of the
provisions of this Section 8. As additional consideration for the
Employee's performance of the covenants provided in this Section 8.1
relating to any six-month period following the termination of the
Employee's employment hereunder, but only for so long as the Employee shall
continue to perform such covenants, the Company shall pay the
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Employment Agreement: XXXXXX X. XXXXXX
September 1, 1996
Employee for each month during such six-month period an amount equal to
one-twelfth (1/12th) of the Base Salary. It is agreed and understood that
such payment constitutes full and fair consideration to Employee for
Employee's observance of such covenants and his possible abstinence from
the Business for such period.
8.2 The Company or any Affiliate shall be entitled, in addition to any
other right or remedy it may have, at law or in equity, to an injunction,
without the posting of any bond or other security, enjoining or restraining
Employee from any violation or threatened violation of this Section 8, and
Employee hereby consents to the issuance of such injunction. If any of the
rights or restrictions contained herein shall be deemed to be unenforceable
by reason of the extent, duration or geographical scope, or other provision
hereof, or any other provision of this Agreement, the parties hereto
contemplate that the court shall reduce such extent, duration, geographical
scope or other provision and enforce this Section 8 in its reduced form for
all purposes in the manner contemplated hereby. This Section 8 shall
survive the Termination Date and any Extended Termination Date and the
cessation of Employee's employment hereunder.
8.3 In addition to the above, should Employee unilaterally terminate
Employee's employment hereunder prior to the Termination Date or should
this Agreement be terminated for Cause as defined in Paragraph 6 and such
Employee become engaged in a business competitive with the Business within
a period of twelve months following termination, the Company will be
entitled, in addition to any other remedies it may be entitled to, to a
return of the bonus compensation received by Employee for the six-month
period ended immediately prior to such termination. It is understood and
agreed that such repayment is fair considering the terms of this Agreement.
9. Confidential Information; Other Employees
9.1 Employee acknowledges that due to Employee's position with the
Company (as set forth in section 1 hereof) and Employee's special, unique,
unusual, extraordinary and intellectual abilities and skills, Employee will
have access to the Company's (and that of its Affiliates) trade secrets,
client lists and other confidential information. Accordingly, Employee
agrees that Employee shall not at any time (whether during the term hereof,
the period of non-competition hereunder, or at any time thereafter) use
outside the scope of Employee's employment hereunder or disclose to anyone
any confidential information, client lists or trade secrets of or relating
to the Company, its Affiliates, or the Business.
9.2 Employee agrees that Employee shall not at any time (whether
during the term hereof, and during the one (1) year period immediately
subsequent to the Termination Date or Renewal Termination Date, as the case
may be, enter into any arrangement with or otherwise solicit, entice or
encourage any employee (determined as the date of termination or within
three months prior to the date of termination) of the Company or any
Affiliate to terminate such employee's employment in order to work
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Employment Agreement: XXXXXX X. XXXXXX
September 1, 1996
for a competitor of the Company or any Affiliate; provided, however, that
the foregoing provisions of this Section 9.2 shall not apply to any
employees in any business in which the Company has ceased to conduct
operations as of the date of the termination of Employee's employment
hereunder.
9.3 Tolling. Employee acknowledges and agrees that any violation of
the restrictive covenants, agreements and promises contained in Sections 8
and 9 above shall suspend the expiration of the time limits of each of
those covenants for so long as the violation continues.
9.4 Employee acknowledges that given Employee's unique position with
the Company and given Employee's access to the Company's trade secrets,
client lists and other confidential information and given the vital
importance to the Company and its Affiliates of their human resources, that
any breach, or threatened breach, by Employee of the provisions of this
Section 9 shall cause irreparable harm to the Company and its Affiliates,
which harm cannot be fully redressed by the payment of damages to the
Company or the Affiliates. Accordingly, Employee agrees that the Company or
any Affiliate shall be entitled, in addition to any other right and remedy
it may have, at law or in equity, to an injunction, without the posting of
any bond or other security, enjoining or restraining Employee from any
violation or threatened violation of this Section 9, and Employee hereby
consents to the issuance of such injunction. If any of the rights or
restrictions contained herein shall be deemed to be unenforceable, the
parties contemplate that the court shall reduce such rights or restrictions
and enforce this Section 9 in its reduced form for all purposes in the
manner contemplated hereby. This Section 9 shall survive the Termination
Date and any Extended Termination Date and the cessation of Employee's
employment hereunder.
10. Enforcement Costs
Should the Company or Employee be required to engage legal counsel to
enforce or prevent the breach of any of the provisions of this Agreement,
to institute any action or proceeding to enforce any such provision of this
Agreement, to seek an injunction, to seek damages by reason of any alleged
obligations, or to seek any other judicial or equitable remedy, then the
prevailing party in such action shall be entitled to recover from the other
party all costs and expenses incurred thereby, including, but not limited
to, reasonable attorneys' fees, expenses and all other costs.
11. Representations and Warranties of Employee
Employee represents and warrants that Employee is free to enter
into this Agreement and to perform the duties required hereunder, and
that there are no employment contracts, restrictive covenants or other
restrictions preventing the performance of Employee's duties hereunder.
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Employment Agreement: XXXXXX X. XXXXXX
September 1, 1996
12. Inventions, Discoveries, Etc.
(a) Employee shall promptly and fully disclose to the Company and with
all necessary detail for a complete understanding of the same, all
developments, knowhow, discoveries, inventions, improvements, concepts,
ideas, writings, formulae, processes and methods (whether copyrightable,
patentable or otherwise) made, received, conceived, acquired or written
during working hours or otherwise by Employee (whether or not at the
request or upon the suggestion of the Company) during the period of
Employee's employment with the Company or any of its Affiliates, solely or
jointly with others, in or relating to any activities of the Company or its
Affiliates or any other respective customers known to him as a consequence
of Employee's employment (collectively referred to as the "Subject
Matter").
(b) Employee hereby assigns and transfers, and agrees to assign and
transfer, to the Company, all Employee's right, title and interest in and
to the Subject Matter, and Employee further agrees to deliver to the
Company any and all drawings, notes, specifications and data relating to
the Subject Matter and to execute, acknowledge and deliver all such further
papers, including applications for copyrights and patents for any thereof
in any and all countries, and to vest title thereto in the Company.
Employee shall assist the Company in obtaining such copyrights or patents
during the term of this Agreement and any time thereafter and to testify in
any prosecution or litigation involving any of the Subject Matter.
13. Notices
All notices hereunder shall be in writing and delivered by hand or
sent by registered mail or by telegram or telex, addressed to such party at
its address referred to above, or at such other address as such party may
from time to time designate by notice to the other party. Any such notice
shall be deemed to have been given on the date delivered by hand, telegram
or telex, or on the fifth day after the mailing thereof.
14. Waivers
No waiver of any breach of any provision of this Agreement shall be
deemed to constitute a waiver of any other breach of such provision or a
waiver of any breach of any other provision of this Agreement.
15. Agreement Complete; Amendments
There are no oral agreements or understandings with respect to or
affecting this Agreement, and this Agreement may not be amended,
supplemented, canceled or discharged except by a written instrument
executed by the parties hereto and, without limiting the generality of the
foregoing, the parties may, in writing, without notice to or consent of any
third person, at any time waive any rights hereunder or amend this
Agreement in any respect or terminate this Agreement.
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Employment Agreement: XXXXXX X. XXXXXX
September 1, 1996
16. Governing Law and Exclusive Jurisdiction
This Agreement will be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed entirely within such State. Any claims, disputes or controversies
arising from or relating to this Agreement, including, but not limited to,
the negotiation, performance, termination, or to the breach hereof, which
claims, disputes, or controversies seek only money damages as a remedy,
shall be decided by arbitration in accordance with the commercial
arbitration rules of the American Arbitration Association then in force and
said arbitration shall be filed and held in New York, New York.
Notwithstanding the above, the parties hereby submit to the exclusive
jurisdiction of the courts of New York in and for New York County or any
Federal court held therein for other non-monetary relief such as an
injunction or a declaratory judgment.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
EURO BROKERS INC.
By:/s/ Xxxxxx X. X. Xxxxxxxx
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XXXXXX X. X. XXXXXXXX
President
Employee:
/s/ Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX
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Employment Agreement: XXXXXX X. XXXXXX
September 1, 1996
EXHIBIT A
Brokering of securities, swaps, repurchase agreements, commodities
(including currencies), futures, assets, other financial instruments,
non-financial instruments and related services, assets or products, and
derivatives of any of the foregoing (including, without limitation, options and
hybrids), to any member of the wholesale dealer or institutional community (for
this purpose the term "brokering" shall include, without limitation, acting as
agent, agent for undisclosed principal, riskless principal or principal with the
intent of effectuating a matching transaction).
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