EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of January, 2000, by and between Xxxxxxx
Xxxxxxxx, residing at 13 Waterview, Xxxx 00, Xxxx Xxxxxx, Xxx Xxxxxx 00000
(hereinafter referred to as the "Employee") and First Montauk Financial Corp., a
New Jersey corporation with principal offices Parkway 000, Xxx Xxxx, Xxx Xxxxxx
00000 (hereinafter referred to as the "Company").
W I T N E S S E T H :
WHEREAS, the Company, through its wholly owned subsidiary First Montauk
Securities Corp, is engaged in the investment banking and general securities
business as a registered broker-dealer; and
WHEREAS, the Company desires to employ and secure for the Company, the
experience, ability and services of Employee; and
WHEREAS, the Employee desires to continue his present employment with the
Company, pursuant to the terms and conditions herein set forth, superseding all
prior agreements between the Company, its subsidiaries and/or predecessors and
Employee;
NOW, THEREFORE, it is mutually agreed by and between the parties hereto as
follows:
ARTICLE I
EMPLOYMENT
Subject to and upon the terms and conditions of this Agreement, the Company
hereby employs and agrees to continue the employment of the Employee, and the
Employee hereby accepts such continued employment in his capacity as Chairman of
the Board and President. In this capacity, Employee will report to the Board of
Directors.
ARTICLE II
DUTIES
(A) The Employee shall, during the term of his employment with the Company,
perform such services and duties of an executive nature in connection with the
business, affairs and operations of the Company, and its subsidiaries, as may be
reasonably and in good faith assigned or delegated to him from time to time by
or under the authority of the Board of Directors of the Company and consistent
with the position of President.
(B) The Employee agrees to use his best efforts in the promotion and
advancement of the Company and its welfare and business. Employee agrees to
devote his primary professional time to the business of the Company as Employee
deems reasonably necessary; provided, however, that the Company acknowledges
that Employee shall be entitled to pursue unrelated personal business ventures
that do not materially conflict with the performance of Employee's duties to the
Company.
(C) Employee shall be based in the Red Bank New Jersey area, and shall
undertake such occasional travel, within or without the United States as is or
may be reasonably necessary in the interests of the Company.
ARTICLE III
COMPENSATION
(A) Commencing with the commencement date hereof, the Company shall pay to
Employee a salary at the rate of $256,218 per annum and increasing 10% per annum
on each anniversary hereof during the period this Agreement shall be in effect
(payable in equal weekly installments or pursuant to such regular pay periods
adopted by the Company) (the "Base Salary").
(B) Employee shall be entitled to receive a bonus (the "Bonus") during each
year of this Agreement, determined as follows: The amount to be paid as a Bonus
shall be determined as of each June 30 based upon the prior fiscal year end and
shall consist of a portion of a bonus pool which shall be equal to ten (10%)
percent of the net pre-tax profit of the Company as determined by the Company's
independent auditors, no later than 90 days following the end of the Company's
fiscal year, without giving effect to loss carryforwards or non-cash items, and
giving effect to and including revenues received by the Company during the
fiscal year and which revenues may have otherwise been excluded in computing net
pre-tax profit by reason of any revenue recognition rules otherwise utilized in
the application of generally accepted accounting principles, and excluding any
expense deduction attributed to such Bonus paid to Xxxxxxx X. Xxxxxxxx (the "Net
Pre-Tax Profit"); provided that, in the event the Net Pre-Tax Profit of the
Company for any fiscal year is less than $500,000, no bonus shall be paid by the
Company to the Employee pursuant to this subparagraph (B). Such determination,
for Bonus purposes only, shall be made in accordance with generally accepted
accounting principles, as modified by these resolutions.
(C) Employee may receive such other additional compensation as may be
determined from time to time by the Board of Directors. Nothing herein shall be
deemed or construed to require the Board to award any bonus or additional
compensation.
(D) Employee shall be eligible to purchase from the Company, at Employees
sole discretion, a portion of a bonus pool which shall consist of up to 20% of
all underwriters and/or placement agent warrants and/or options granted to First
Montauk Securities Corp., upon the same price, terms and conditions afforded to
First Montauk Securities Corp. in connection with its service as an underwriter
and/or placement agent for any and all public or private offerings of securities
on behalf of issuers.
(E) The Company shall deduct from Employee's compensation all federal,
state and local taxes which it may now or may hereafter be required to deduct.
(F) Employee shall also be entitled to receive brokerage commissions on in
accordance with the commission schedule in effect for other non-affiliate
brokers employed by the Company.
ARTICLE IV
BENEFITS
(A) During the term hereof, (i) the Company shall provide Employee with
health insurance benefits and major medical insurance; (ii) Employee shall be
reimbursed by the Company upon presentation of appropriate vouchers for all
business expenses incurred by the Employee on behalf of the Company; (iii) the
Company shall provide the Employee with an automobile suitable for his position,
equipped with a mobile telephone, or at Employee's option, an appropriate
automobile allowance, and reimburse reasonable automobile expenses including
repairs, maintenance, gasoline charges, mobile phone, etc. via receipted expense
reports.
(B) In the event the Company wishes to obtain Key Man life insurance on the
life of Employee, Employee agrees to cooperate with the Company in completing
any applications necessary to obtain such insurance and promptly submit to such
physical examinations and furnish such information as any proposed insurance
carrier may request.
(C) For each year of the term hereof, Employee shall be entitled to four
weeks paid vacation.
ARTICLE V
NON-DISCLOSURE
The Employee shall not, at any time during or after the termination of
his employment hereunder except when acting on behalf of and with the
authorization of the Company, make use of or disclose to any person,
corporation, or other entity, for any purpose whatsoever, any trade secret or
other confidential information concerning the Company's business, finances,
research, services or products, and information relating to any client or
account of the Company (collectively referred to as the "Proprietary
Information"). For the purposes of this Agreement, trade secrets and
confidential information shall mean information disclosed to the Employee or
known by his as a consequence of his employment by the Company, whether or not
pursuant to this Agreement, and not generally known in the industry, concerning
the business, finances, methods, operations, clients, accounts, service or
product information of the Company. The Employee acknowledges that trade secrets
and other items of confidential information, as they may exist from time to
time, are valuable and unique assets of the Company, and that disclosure of any
such information would cause substantial injury to the Company. The foregoing is
intended to be confirmatory of the common law of the state of New York relating
to trade secrets and confidential information.
ARTICLE VI
RESTRICTIVE COVENANT
(A) In the event of the voluntary termination of employment with the
Company, except for Good Reason as defined in Article XIX, or Employee's
discharge for cause, as defined in Article VII hereof, Employee agrees that he
will not (i) for a period of one (1) year from the date of termination, directly
or indirectly solicit brokers or employees of the Company, or any sister or
subsidiary of the Company for employment with any other entity, or (ii) during
the term and for a period of one (1) year from the date of termination or
discharge, solicit or accept any corporate finance client relating to a
transaction involving a public offering, private placement, or merger and
acquisition advisory services, or research project which was already pending and
in existence at the time of Employee's termination or discharge, or which was
being negotiated at the time of Employee's termination or discharge.
(B) If any court shall hold that the duration of non-competition or any
other restriction contained in this paragraph is unenforceable, it is our
intention that same shall not thereby be terminated but shall be deemed amended
to delete therefrom such provision or portion adjudicated to be invalid or
unenforceable or in the alternative such judicially substituted term may be
substituted therefor.
ARTICLE VII
TERM
This Agreement shall be for a term commencing on the date first set
forth above and terminating December 31, 2002, unless sooner terminated pursuant
to the terms hereof, and renewable as provided for herein, for one additional
period of one year. The Company agrees to notify Employee in writing of its
intent to negotiate an extension of this Agreement six months prior to the
expiration of the original term hereof. If the Company fails to so notify
Employee, or after having timely notified Employee of its intention to extend,
fails to reach agreement with Employee on the terms of such extension, this
agreement shall be renewable, at the option of the Employee, for an additional
period of one year from the expiration of the original term, except that the
Employee's base salary shall be increased 10% above the prior year, and Employee
shall be entitled to stock options equivalent to one-third of the options
granted during the initial term of this agreement on comparable terms and
conditions. If the Company elects not to seek to negotiate an extension and has
so timely notified Employee, then the Company shall pay Employee, upon the
expiration of the original term of this Agreement, a severance benefit equal to
the aggregate amount of Employee's then prevailing annual Base Salary and Bonus
payable in 12 equal monthly installments commencing on the original expiration
date of this Agreement.
ARTICLE VIII
DISABILITY DURING TERM
In the event that the Employee becomes totally disabled so that he is
unable or prevented from performing any one or all of his usual duties hereunder
for a period of four (4) consecutive months then, and in that event, the Company
shall continue to compensate him and he shall receive his Base Salary as
provided under Article III of this Agreement for a period of twelve (12) months
commencing from the date of such total disability. The aforesaid obligations of
the Company shall not extend beyond the term of this Agreement. The obligation
of the Company to make the aforesaid payments shall be modified and reduced and
the Company shall receive a credit for all disability insurance payments which
Employee may receive or to which he may become entitled; and provided further
that the payments herein provided shall not extend beyond the term of this
Agreement.
ARTICLE IX
TERMINATION
The Company may terminate this Agreement:
(A) Upon the death of Employee during the term hereof, except
that the Employee's legal representatives, successors, assigns and heirs shall
have those rights and interests as otherwise provided in this Agreement,
including the right to receive accrued but unpaid bonus compensation, if any.
(B) Subject to the terms of Article VIII herein, upon written
notice from the Company to the Employee, if Employee becomes totally disabled
and as a result of such total disability, has been prevented from and unable to
perform all of his duties hereunder for a consecutive period of four (4) months.
(C) Upon written notice from the Company to the Employee, if
the Employee is convicted of a felony, or the final adjudication by any federal
or state judicial or regulatory authority or any action or proceeding arising
out of the violation of any material securities law, rule or regulation where
such action by proceeding resulted in Employee being a statutorily disqualified
person as that term is defined in Section 3(a)(39) of the Security and Exchange
Act of 1934.
ARTICLE X
TERMINATION OF PRIOR AGREEMENTS
This Agreement sets forth the entire agreement between the parties and
supersedes all prior agreements between the parties, whether oral or written,
without prejudice to Employee's right to all accrued compensation prior to the
effective date of this Agreement.
ARTICLE XI
ARBITRATION
Any dispute arising out of the interpretation, application
and/or performance of this Agreement with the sole exception of any claim,
breach or violation arising under Articles V or VI hereof shall be settled
through final and binding arbitration before a panel arbitrators in accordance
with the rules of the National Association of Securities Dealers (the "NASD").
Any judgment upon any arbitration award may be entered in any court, federal or
state, having competent jurisdiction of the parties.
ARTICLE XII
SEVERABILITY
If any provision of this Agreement shall be held invalid and
unenforceable, the remainder of this Agreement shall remain in full force and
effect. If any provision is held invalid or unenforceable with respect to
particular circumstances, it shall remain in full force and effect in all other
circumstances.
ARTICLE XIII
NOTICE
All notices required to be given under the terms of this Agreement
shall be in writing and shall be deemed to have been duly given only if
delivered to the addressee in person or mailed by certified mail, return receipt
requested, as follows:
IF TO THE COMPANY:
First Montauk Financial Corp.
Parkway 109 Office Center
000 Xxxxxx Xxxxxxx Xxxx
Xxx Xxxx, Xxx Xxxxxx 00000
IF TO THE EMPLOYEE:
Xxxxxxx Xxxxxxxx
13 Waterview, Xxxx 00
Xxxx Xxxxxx, Xxx Xxxxxx 00000
or to any such other address as the party to receive the notice shall advise by
due notice given in accordance with this paragraph.
ARTICLE XIV
BENEFIT
This Agreement shall inure to, and shall be binding upon, the parties
hereto, the successors and assigns of the Company, and the heirs and personal
representatives of the Employee.
ARTICLE XV
WAIVER
The waiver by either party of any breach or violation of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach of construction and validity.
ARTICLE XVI
GOVERNING LAW
This Agreement has been negotiated and executed in the State
of New Jersey, and New Jersey law shall govern its construction and validity.
ARTICLE XVII
JURISDICTION
Any or all actions or proceedings which may be brought by the Company
or Employee under this Agreement shall be brought before an arbitration panel,
or if otherwise permissible under the terms of this agreement, a court, having a
situs within the State of New Jersey, and Employee hereby consents to the
jurisdiction of any tribunal or local, state or federal court located within the
State of New Jersey.
ARTICLE XVIII
ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties
hereto. No change, addition or amendment shall be made hereto, except by written
agreement signed by the parties hereto.
ARTICLE XIX
SEVERANCE COMPENSATION
The Company's Board of Directors has determined that it is appropriate
to reinforce and encourage the continued attention and dedication of members of
the Company's management, including the Employee, to their assigned duties
without distraction in potentially disturbing circumstances arising from the
possibility of a change in control of the Company.
This Article XIX sets forth the severance compensation which the
Company agrees it will pay to the Employee if the Employee's employment with the
Company terminates under one of the circumstances described herein following a
Change in Control of the Company (as defined herein). The terms of this Article
XIX shall supersede any other provision of this Agreement after a Change in
Control as defined below. (References to Sections refers to Sections in this
Article XIX.)
1. Term. This Article XIX shall terminate, except to the
extent that any obligation of the Company hereunder remains unpaid as of such
time, upon the earliest of (i) the termination of this Agreement including any
renewal period, if a Change in Control of the Company has not occurred within
such two-year period; (ii) the termination of the Employee's employment with the
Company based on death, Disability (as defined in Section 3(b)), Retirement (as
defined in Section 3(c)) or Cause (as defined in Section 3(d)) or by the
Employee other than for Good Reason (as defined in Section 3(e)); and (iii) one
year from the date of a Change in Control of the Company if the Employee has not
terminated his employment for Good Reason as of such time.
2. Change in Control. No compensation shall be payable under
this Article XIX unless and until (a) there shall have been a Change in Control
of the Company, while the Employee is still an employee of the Company and (b)
the Employee's employment by the Company thereafter shall have been terminated
in accordance with Section 3. For purposes of this Agreement, a Change in
Control of the Company shall be deemed to have occurred if (I) there shall be
consummated (x) any consolidation or merger of the Company in which the Company
is not the continuing or surviving corporation or 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 which the holders of the
Company's Common Stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving corporation immediately
after the merger, or (y) 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 (ii) the stockholders of the Company approved
any plan or proposal for the liquidation or dissolution of the Company, or (iii)
any person (as such term is used in Sections 13(d) and 13(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), shall become
the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act)
of 20% or more of the Company's outstanding Common Stock, or (iv) during any
period of two consecutive years, individuals who at the beginning of such period
constitute the entire Board of Directors shall cease for any reason to
constitute a majority thereof unless the election, or the nomination for
election by the Company's stockholders, of each new director was approved by a
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period.
3. Termination Following Change in Control.
(a) If a Change in Control of the Company shall have occurred while the
Employee is still an employee of the Company, the Employee shall be entitled to
the compensation provided in Section 4 upon the subsequent termination of the
Employee's employment with the Company by the Employee or by the Company unless
such termination is as a result of (i) the Employee's death; (ii) the Employee's
Disability (as defined in Section 3(b) below); (iii) the Employee's Retirement
(as defined in Section 3(c) below); (iv) the Employee's termination by the
Company for Cause (as defined in Section 3(d) below); or (v) the Employee's
decision to terminate employment other than for Good Reason (as defined in
Section 3(e) below).
(b) Disability. If, as a result of the Employee's incapacity due to
physical or mental illness, the Employee shall have been absent from his duties
with the Company on a full-time basis for four months and within 30 days after
written notice of termination is thereafter given by the Company the Employee
shall not have returned to the full-time performance of the Employee's duties,
the Company may terminate this Agreement for "Disability."
(c) Retirement. The term "Retirement" as used in this Article XIX shall
mean termination by the Company or the Employee of the Employee's employment
based on the Employee's having reached age 65 or such other age as shall have
been fixed in any arrangement established with the Employee's consent with
respect to the Executive.
(d) Cause. The Company may terminate the Employee's employment for Cause.
For purposes of this Agreement only, the Company shall have "Cause" to terminate
the Employee's employment hereunder only on the basis of fraud, misappropriation
or embezzlement on the part of the Employee. Notwithstanding the foregoing, the
Employee shall not be deemed to have been terminated for Cause unless and until
there shall have been delivered to the Employee a copy of a resolution duly
adopted by the affirmative vote of not less than three-quarters of the entire
membership of the Company's Board of Directors at a meeting of the Board called
and held for the purpose (after reasonable notice to the Employee and an
opportunity for the Employee, together with the Employee's counsel, to be heard
before the Board), finding that in the good faith opinion of the Board the
Employee was guilty of conduct set forth in the second sentence of this Section
3(d) and specifying the particulars thereof in detail.
(e) Good Reason. The Employee may terminate the Employee's employment for
Good Reason at any time during the term of this Agreement. For purposes of this
Agreement "Good Reason" shall mean any of the following (without the Employee's
express written consent):
(i) the assignment to the Employee by the Company of duties inconsistent
with the Employee's position, duties, responsibilities and status with the
Company immediately prior to a Change in Control of the Company, or a change in
the Employee's titles or offices as in effect immediately prior to a Change in
Control of the Company, or any removal of the Employee from or any failure to
reelect the Employee to any of such position, except in connection with the
termination of his employment for Disability, Retirement or Cause or as a result
of the Employee's death or by the Employee other than for Good Reason;
(ii) a reduction by the Company in the Employee's base salary as in effect
on the date hereof or as the same may be increased from time to time during the
term of this Agreement or the Company's failure to increase (within 12 months of
the Employee's last increase in base salary) the Employee's base salary after a
Change in Control of the Company in an amount which at least equals, on a
percentage basis, the average percentage increase in base salary for all
officers of the Company effected in the preceding 12 months;
(iii) any failure by the Company to continue in effect any benefit plan or
arrangement (including, without limitation, the Company's life insurance and
medical, dental, accident and disability plans) in which the Employee is
participating at the time of a Change in Control of the Company (or any other
plans providing the Employee with substantially similar benefits) (hereinafter
referred to as "Benefit Plans"), or the taking of any action by the Company
which would adversely affect the Employee's participation in or materially
reduce the Employee's benefits under any such Benefit Plan or deprive the
Employee of any material fringe benefit enjoyed by the Employee at the time of a
Change in Control of the Company;
(iv) any failure by the Company to continue in effect any incentive plan or
arrangement (including, without limitation, bonus and contingent bonus
arrangements and credits and the right to receive performance awards and similar
incentive compensation benefits) in which the Employee is participating at the
time of a Change in Control of the Company (or any other plans or arrangements
providing him with substantially similar benefits) (hereinafter referred to as
"Incentive Plans") or the taking of any action by the Company which would
adversely affect the Employee's participation in any such Incentive Plan or
reduce the Employee's benefits under any such Incentive Plan, expressed as a
percentage of his base salary, by more than 10 percentage points in any fiscal
year as compared to the immediately preceding fiscal year;
(v) any failure by the Company to continue in effect any plan or
arrangement to receive securities of the Company (including, without limitation,
the Company's Incentive Stock Option Plan and any other plan or arrangement to
receive and exercise stock options, stock appreciation rights, restricted stock
or grants thereof) in which the Employee is participating at the time of a
Change in Control of the Company (or plans or arrangements providing him with
substantially similar benefits) (hereinafter referred to as "Securities Plans")
or the taking of any action by the Company which would adversely affect the
Employee's participation in or materially reduce the Employee's benefits under
any such Securities Plan;
(vi) a relocation of the Company's principal executive offices to a
location outside of Monmouth County, New Jersey, or the Employee's relocation to
any place other than the location at which the Employee performed the Employee's
duties prior to a Change in Control of the Company, except for required travel
by the Employee on the Company's business to an extent substantially consistent
with the Employee's business travel obligations at the time of a Change in
Control of the Company;
(vii) any failure by the Company to provide the Employee with the number of
paid vacation days to which the Employee is entitled at the time of a Change in
Control of the Company;
(viii) any material breach by the Company of any provision of this
Agreement;
(ix) any failure by the Company to obtain the assumption of this Agreement
by any successor or assign of the Company; or
(x) any purported termination of the Employee's employment which is not
effected pursuant to a Notice of Termination satisfying the requirements of
Section 3(f), and for purposes of this Agreement, no such purported termination
shall be effective.
(f) Notice of Termination. Any termination by the Company pursuant to
Section 3(b), 3(c) or 3(d) shall be communicated by a Notice of Termination. For
purposes of this Agreement, a "Notice of Termination" shall mean a written
notice which shall indicate those specific termination provisions in this
Agreement relied upon and which sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated. For purposes of this Agreement, no
such purported termination by the Company shall be effective without such Notice
of Termination.
(g) Date of Termination. "Date of Termination" shall mean (a) if this
Agreement is terminated by the Company for Disability, 30 days after Notice of
Termination is given to the Employee (provided that the Employee shall not have
returned to the performance of the Employee's duties on a full-time basis during
such 30-day period) or (b) if the Employee's employment is terminated by the
Company for any other reason, the date on which a Notice of Termination is
given; provided that if within 30 days after any Notice of Termination is given
to the Employee by the Company the Employee notifies the Company that a dispute
exists concerning the termination, the Date of Termination shall be the date the
dispute is finally determined, whether by mutual agreement by the parties or
upon final judgment, order or decree of a court of competent jurisdiction (the
time for appeal therefrom having expired and no appeal having been perfected).
4. Severance Compensation upon Termination of Employment.
If the Company shall terminate the Employee's employment other
than pursuant to Section 3(b), 3(c) or 3(d) or if the Employee shall terminate
his employment for Good Reason, then the Company shall:
(i) pay to the Employee as severance pay in a lump sum, in cash, on the
fifth day following the Date of Termination, an amount equal to three times the
aggregate annual compensation paid to the Employee during the calendar year
preceding the change in control of the Company by the Company and any of its
subsidiaries subject to United States income taxes; provided, however, that if
the lump sum severance payment under this Section 4, either alone or together
with other payments which the Employee has the right to receive from the
Company, would constitute a "parachute payment" (as defined in Section 280G of
the Internal Revenue Code of 1954, as amended (the "Code")), such lump sum
severance payment shall be reduced to the largest amount as will result in no
portion of the lump sum severance payment under this Section 4 being subject to
the excise tax imposed by Section 4999 of the Code. The determination of any
reduction in the lump sum severance payment under this Section 4 pursuant to the
foregoing proviso shall be made by the Employee in good faith, and such
determination shall be conclusive and binding on the Company; and
(ii) within ten days following the Date of Termination, shall cause the
Employee to be relieved of any and all personal guarantees of Company
obligations, and fully pay all outstanding loans and other obligations of the
Company to the Executive. If, for any reason, the Company fails to comply with
its obligations under this subparagraph, the Employee shall have the option, at
his sole discretion, to convert up to the principal amount of such Notes to
shares of the Company's Common Stock at the rate of $.50 per share; provided,
that the conversion of all or a portion of any outstanding loans by the Employee
shall not relieve the Company of any of its obligations arising under this
subparagraph including the obligations to repay any unconverted loans and
relieve the Employee of any personal guarantees.
5. No Obligation to Mitigate Damages; No Effect on Other
Contractual Rights.
(a) The Employee shall not be required to mitigate damages or the amount of
any payment provided for under this Article XIX by seeking other employment or
otherwise, nor shall the amount of any payment provided for under this Article
XIX be reduced by any compensation earned by the Employee as the result of
employment by another employer after the Date of Termination, or otherwise.
(b) The provisions of this Article XIX, and any payment provided for
hereunder, shall not reduce any amounts otherwise payable, or in any way
diminish the Employee's existing rights, or rights which would accrue solely as
a result of the passage of time, under any Benefit Plan, Incentive Plan or
Securities Plan, employment agreement or other contract, plan or arrangement.
6. Successor to the Company.
(a) The Company will require any successor or assign (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to the Executive, expressly, absolutely and
unconditionally to assume and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform it if no
such succession or assignment had taken place. Any failure of the Company to
obtain such agreement prior to the effectiveness of any such succession or
assignment shall be a material breach of this Agreement and shall entitle the
Employee to terminate the Employee's employment for Good Reason. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor or assign to its business and/or assets as aforesaid which executes
and delivers the agreement provided for in this Section 6 or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation of
law. If at any time during the term of this Agreement the Employee is employed
by any corporation a majority of the voting securities of which is then owned by
the Company, "Company" as used in Sections 3 and 4 hereof shall in addition
include such employer. In such event, the Company agrees that it shall pay or
shall cause such employer to pay any amounts owed to the Employee pursuant to
Section 4 hereof.
(b) This Agreement shall inure to the benefit of and be enforceable by the
Employee's personal and legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Employee should
die while any amounts are still payable to him hereunder, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to the Employee's devisee, legatee, or other designee or, if
there be no such designee, to the Employee's estate.
7. Legal Fees and Expenses.
The Company shall pay all legal fees and expenses which the Employee may
incur as a result of the Company's contesting the validity, enforceability or
the Employee's interpretation of, or determinations under, this Article XIX.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
affixed their hands and seals the day and year first above written.
(Corporate Seal) FIRST MONTAUK FINANCIAL CORP.
By:------------------------------------
Xxxxxxx Xxxxxxxx
-------------------------------
Xxxxxxx Xxxxxxxx (Employee)
