EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT
AGREEMENT (this “Agreement”),
dated as
of December 20, 2007, is made by and between Xxxxx Technologies Inc., a Delaware
corporation, having its principal place of business at 000 Xxxxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the “Company”), and Xx.
Xxxxxxx X. Xxxx residing at 0 Xxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000 (the
“Executive”).
RECITALS
WHEREAS,
the Company wishes to
employ the Executive as the Chief Executive Officer of the Company;
and
WHEREAS,
the Company desires
to enter into this Agreement and to accept such employment and service, subject
to the terms set forth herein;
WHEREAS,
the
Executive agrees
to accept such employment by the Company on the terms set forth
herein.
NOW,
THEREFORE, in
consideration of the mutual covenants and agreements herein contained, and
other
good and valuable consideration, the receipt and sufficiency of which is
mutually acknowledged, the Company and the Executive hereby agree as
follows:
SECTION
1: CERTAIN DEFINITIONS.
1.1
“Effective
Date” shall
mean the first day of Executive’s employment, which shall be February 1,
2008.
1.2 “Employment
Period” shall mean the period of time beginning on the Effective Date and
ending on the third anniversary of the Effective Date, unless terminated earlier
in accordance with Section 5.
1.3
“Board”
shall
mean the
Board of Directors of the Company.
1.4
“Code”
shall
mean the
Internal Revenue Code of 1986, as amended.
1.5
“Specified
Employee”
shall mean a “specified employee”
within the meaning of
Section 409A(a)(2)(B)(i) of the Code, as determined by the
Compensation Committee of the Board of Directors.
SECTION
2: EMPLOYMENT. Subject
to the terms and conditions provided herein, the Company hereby agrees, during
the Employment Period, to employ the Executive as its Chief Executive Officer.
The Executive hereby agrees to accept such employment during the Employment
Period.
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SECTION
3: EMPLOYMENT DUTIES.
During the Employment Period, the Executive shall have such duties and
responsibilities as are assigned to the Executive by the Board and consistent
with the normal and customary responsibilities and duties of a Chief Executive
Officer of comparable companies. Executive shall take direction from and report
to the Board. During the Employment Period, the Executive agrees to devote
substantially all of his business attention and time to the business and affairs
of the Company and its subsidiaries, and to use the Executive’s reasonable best
efforts to perform faithfully the duties and responsibilities assigned to the
Executive under this Agreement. Notwithstanding the foregoing, it is expressly
understood that (a) the Executive may devote a reasonable amount of time to
the
management of his investments and affairs and to such industry associations,
charitable and civic endeavors as shall not interfere with the obligations
set
forth in this Agreement; (b) with the prior approval of the Board (which shall
not be unreasonably withheld), the Executive may serve as a member of one or
more boards of directors of companies that are not affiliated with the Company;
and (c) the Executive shall have the right during the Employment Period to
continue to serve as President of MKL Associates Inc. and fulfill all of the
duties and responsibilities associated with that position provided that they
do
not interfere with the obligations set forth in this Agreement.
SECTION
4: COMPENSATION.
4.1
Base
Salary The Executive
shall receive a base salary of no less than $250,000 per annum (the “Base
Salary”), payable in accordance with the Company’s payroll practices in effect
from time to time. The Base Salary shall be reviewed at least once each year.
When the Base Salary is reviewed, it may be increased (but not decreased) in
accordance with the Company’s regular review of senior executive salaries, and
if increased, then such increased amount shall become the Base
Salary. The decision regarding whether to grant any such increase
shall be at the sole discretion of the Board.
4.2
Incentive,
Savings and Retirement
Plans. During the Employment Period the Executive shall be eligible to
participate in any bonus or incentive plans and programs established by the
Board from time to time for the benefit of senior executives of the Company.
During the Employment Period, the Executive shall be eligible to participate
in
all savings and retirement plans and programs (as the plan terms allow)
maintained by the Company from time to time on or after the Effective Date
for
the benefit of employees and/or senior executives of the
Company. Nothing contained herein shall require the establishment or
continuation of any particular plan or program.
4.3
Health
Care Plans. During the
Employment Period, the Executive and/or the Executive’s family (as the terms
allow) shall participate in all health care benefit plans, programs or
arrangements maintained by the Company from time to time on or after the
Effective Date for the benefit of employees and/or senior executives or
employees of the Company. The Company agrees to pay the Executive’s entire
premium amounts to participate in such health care plans.
4.4
Vacation;
Fringe Benefits. During the
Employment Period, the Executive shall be entitled to four (4) weeks of vacation
annually, in accordance with Company policy. Vacation shall be taken at times
mutually convenient to the Company and the Executive. During the
Employment Period, the Executive shall receive such perquisites and fringe
benefits as are generally provided to senior executives of the
Company.
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4.5 Expenses.
The
Executive shall be reimbursed for reasonable and necessary business expenses
incurred in connection with the performance of his duties hereunder. Such
reimbursement shall be made no later than March 15 of the year following the
year in which such expense was incurred; provided, however, the Employee
shall,
as a condition of such reimbursement, submit verification of the nature and
amount of such expenses in accordance with the reimbursement policies from
time
to time adopted by the Company.
4.6 Stock Option
Grant. The Executive shall receive a stock option grant to
purchase a number of shares of the Company’s common stock equal to five percent
(5%) of the outstanding capital stock of the Company on a fully diluted basis
as
of the Effective Date, at an exercise price equal to the fair market value
thereof on the date of grant, pursuant to and subject to the terms of a stock
option agreement to be entered into between the Company and Executive pursuant
to the Company’s Stock Option Plan.
SECTION
5: TERMINATION.
5.1
Death.
The Employment
Period shall terminate automatically upon the Executive’s death.
5.2 Disability. If,
during the Employment Period, the Disability (as defined below) of the Executive
has occurred, the Company may give to the Executive written notice of its
intention to terminate the Executive’s employment due to such Disability. The
Executive’s employment with the Company shall be terminated by the Company on
the 15th day after receipt by the Executive of such notice (the “Disability Effective
Date”), if, within such fifteen (15) day period, the Executive shall not
have returned to full-time performance of the Executive’s duties. For purposes
of this Agreement, “Disability” means the
inability of the Executive to perform his normal duties and responsibilities
hereunder due to a physical, mental, or emotional impairment, as determined
by
an independent qualified physician (selected by the Company and reasonably
acceptable to the Executive) during any consecutive one hundred and twenty
day
(120) period or for an aggregate of one hundred and eighty (180) days during
any
three hundred sixty-five (365) day period. Nothing in this
Section 5.2 is intended to be inconsistent with or in any way alter the parties’
responsibilities under applicable federal or state law regarding disabilities,
if any.
5.3
Cause. The
Board may terminate the employment of the Executive for Cause by written notice
to the Executive. For purposes of this Agreement, “Cause” shall mean
(a)
an act or acts of material personal dishonesty taken by, or committed at the
request of, Executive, at the expense of the Company, or any of its affiliates,
or any other act of fraud, misappropriation or embezzlement (b) repeated willful
violations by Executive of the material terms of this Agreement, which have
not
been cured within ten (10) days after written notice has been given by the
Board
to the Executive, or (c) the conviction of, a plea of nolo contendre, a guilty
plea or a confession by Executive to, a felony or any other crime involving
dishonesty or (d) any act of material neglect or gross misconduct that the
Company (including unanimous approval of the Board) deems to be materially
injurious to the Company after written notice thereof and failure to cure within
30 days.
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5.4.
Without
Cause. During
the Employment Period, upon written notice given to the Executive, the Board
may
terminate the Executive’s employment hereunder other than for Cause, in the
Board’s sole discretion.
5.5
Termination
by Executive for
Good Reason. During the Employment Period, the Executive may terminate
his employment hereunder by written notice for Good Reason. For purposes of
this
Agreement, “Good
Reason” shall mean the occurrence of any of the following events which is
not cured by the Company within thirty (30) days of Executive’s written notice
to the Company of same: (a) the reduction of the Executive’s Base Salary; (b) a
material diminution, without his consent, of the Executive’s title, authority,
duties or responsibilities as specified hereunder, or the assignment of duties
and responsibilities that are inconsistent with his positions as Chief Executive
Officer (it being understood that the Company is a “start-up”, Executive will be
required to perform administrative type functions (routine copying, faxing,
etc.), and it being further understood that a change in title or duties to
President shall not constitute Good Reason; (c) the Company requiring the
Executive, without his consent, to be based in any office or location other
than
the Company’s headquarters office, and such headquarters shall not be located
during the Employment Period outside of a 50-mile radius of New York City;
(d)
the material breach by the Company of any provision of this Agreement which
has
not been cured within thirty (30) days after a notice of such breach has been
given by the Executive to the Company. The Executive must give the
Company notice of the event within thirty (30) days of the date of the event
and
the Executive must resign effective upon no less than fourteen (14) days and
no
more than thirty (30) days after the expiration of the Company’s thirty (30) day
cure period.
5.6
Termination
by Executive
Without Good Reason. During the Employment Period the Executive may
terminate employment hereunder upon ninety (90) day’s prior written notice
without Good Reason, and such termination shall not be deemed to be a breach
of
this Agreement.
5.6
Date
of Termination.
“Date of
Termination” shall mean:
(a)
if the Executive’s employment is terminated by the Company, other than for Cause
or Disability, the Date of Termination shall be the date set forth in the
Company’s written notice of such termination under Section 5.4;
(b)
if the Executive’s employment is terminated by the Company for Cause, the Date
of Termination shall be the date upon which the applicable cure period provided
under Section 5.3 expires;
(c)
if the Executive’s employment is terminated by the Executive, the date of
termination shall be fifteen 15 days after the date on which the Executive
notifies the Company of such termination, or earlier if the Company
elects;
(d)
if the Executive’s employment is terminated by reason of death or Disability,
the Date of Termination shall be the date of death of the Executive or the
Disability Effective Date, as the case may be.
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SECTION
6: OBLIGATIONS OF THE COMPANY UPON TERMINATION.
6.1 Cause, Death,
Disability or Voluntarily by the Executive. If the Executive’s employment
is terminated by reason of the Executive’s death, the Executive’s Disability,
for Cause by the Company or by the Executive voluntarily (other than for Good
Reason), the Executive, or the Executive’s legal representative, as the case may
be, shall be entitled to receive (a) the Executive’s Base Salary through the
Date of Termination; (b) any bonus earned in the previous year and not yet
paid
by the Company; (c) any accrued vacation pay through the Date of Termination
not
yet paid by the Company; and (d) a pro rata bonus for the year of termination
calculated and payable after year-end, if any, provided, however that no such
pro rata bonus shall be paid to the Executive if his employment is terminated
for Cause or voluntarily by the Executive without Good Reason (such amounts
specified in clauses (a), (b), (c) and (d) are hereinafter referred to as the
“Accrued
Obligations”). All such Accrued Obligations shall be paid to the
Executive or to the Executive’s estate or beneficiary, as applicable, in a lump
sum in cash within thirty (30) days after the Date of Termination.
6.2 Other Than for
Cause, Death or Disability, or by the Executive for Good Reason. If,
during the Employment Period, the Company terminates the Executive’s employment
(other than for Cause, death or Disability) or the Executive terminates his
employment for Good Reason, the Executive shall be entitled to receive, within
thirty (30) days after the Date of Termination, the following:
(a)
The Company shall pay to the Executive all Accrued Obligations.
(b)
The Company shall pay to the Executive in cash a lump sum amount equal to 9
months’ Base Salary (the “Severance
Obligations”).
6.3 Release. Notwithstanding
any other provision hereof, the Company’s obligation to pay the Severance
Obligations, if applicable, will be contingent upon the Executive executing
and
providing to the Company (and not revoking within the revocation period, if
any,
provided pursuant to the applicable release agreement) a form of release
agreement provided by the Company. The Executive shall execute the
release within such period as is provided for in the applicable release
agreement, following the Company’s provision of such release agreement to the
Executive in connection with the Executive’s termination of
employment.
6.4 Full
Satisfaction. The payments actually received, accepted and retained by
the Executive (or his legal representatives) under this Agreement that are
attributable to the termination of the Executive’s employment shall be in full
and complete satisfaction of any and all claims the Executive (or his legal
representatives) may have against the Company which are in any way related
to
the employment relationship (including the Executive’s hiring) between the
Executive and the Company or the termination of that relationship.
6.5 Other
Payments. Notwithstanding anything to the contrary contained herein
(including without limitation Section 6.4), any compensation or benefits, if
any, which are vested in the Executive or which the Executive is otherwise
entitled to receive under any plan, program or arrangement of the Company
before, at or subsequent to the Date of Termination shall be payable in
accordance with the terms and provisions of such plan, program or
arrangement.
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SECTION
7: TAXES. The Company
may withhold from any amounts payable under this Agreement such federal, state
or local taxes or other withholdings as shall be required or permitted to be
withheld pursuant to any applicable law or regulation, the operation of any
incentive, savings, retirement, or welfare or fringe benefit plan, or by written
agreement with the Executive.
SECTION
8: CONFIDENTIAL INFORMATION
AND NON-COMPETITION.
8.1 Confidential
Information. The Executive shall execute and deliver to the
Company on or prior to the Effective Date an Employee’s Proprietary Information
and Inventions Agreement and Arbitration Agreement (“Protection of Company
Property Agreement”) in the form attached hereto, the terms of which are
incorporated herein by reference; provided, however, that to the extent that
a
term or provision of this Agreement conflicts with any term or provision of
the
Protection of Company Property Agreement, such term or provision of this
Agreement shall prevail over such term or provision of the Protection of Company
Property Agreement.
8.2 Non-Competition. The
Executive agrees that he will not, for a period of one year from the termination
of his employment hereunder, directly or indirectly, own, manage, operate,
work
for, join, control, become employed by, consult to or participate in the
ownership, management or control of, any business which is primarily focused
on
consumer or retail investment products or any other business that directly
competes with the business that the Company or any of its subsidiaries is
engaged in at the time of termination of employment (the “Business”).
Notwithstanding
the foregoing, working for, becoming employed by, or consulting
to a division of a company that is not engaged in competition with the Company's
Business shall not be considered a breach of this covenant. If, and to the
extent that, any court determines that the geographical reach and/or time period
of this covenant is too broad to permit the full enforcement of such covenants
as written, the Executive and the Company hereby agree that this provision
shall
be then deemed amended so as to permit enforcement for the longest time
period, and over the largest geographical region, as the court
permits.
SECTION
9: INDEMNIFICATION.
The Company agrees to obtain a directors and officers’ liability insurance
policy covering the Executive. The Company will provide the Executive
with indemnification in accordance with the Company’s by-laws and applicable
law, for liabilities arising out of his employment with the
Company.
SECTION
10: SURVIVAL. The
Executive agrees that Sections 8 and 9 of this Agreement shall survive the
termination of (a) this Agreement, (b) the Employment Period and/or (c) the
Executive’s employment with the Company.
SECTION
11: SUCCESSORS. This
Agreement is personal to the Executive and may not be assigned by the Executive.
This Agreement shall inure to the benefit of, and be enforceable by, the
Executive and the Executive’s legal representatives, as applicable. This
Agreement shall inure to the benefit of and be binding upon the Company and
its
successors and assigns. The Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly 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
had taken place.
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SECTION
12: NOTICES. All
notices and other communications hereunder shall be in writing and shall be
given by facsimile transmission, hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid, to
the
addresses set forth below:
If
to the
Company:
Xxxxx Technologies Inc.
000 Xxxxxxxx, 0xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx
With
a
copy
to:
Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP
0000
Xxxxxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxxx Xxxxxxx
If
to the
Executive, to Executive’s then current address on file with the Company. In the
event of an address change, to either party at such other address as either
party shall have furnished to the other in writing in accordance herewith.
Any
such notice and communications shall be effective when actually received by
the
addressee.
SECTION
13:
MISCELLANEOUS.
13.1 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of New York, without reference to
principles of conflict of laws thereunder.
13.2 ARBITRATION. DISPUTES
REGARDING THE EXECUTIVE’S EMPLOYMENT WITH THE COMPANY, INCLUDING, WITHOUT
LIMITATION, ANY DISPUTE UNDER THIS AGREEMENT, WHICH CANNOT BE RESOLVED BY
NEGOTIATIONS, SHALL BE SUBMITTED TO, AND SOLELY DETERMINED BY, FINAL AND BINDING
ARBITRATIONS CONDUCTED PURSUANT TO THE NEW YORK STOCK EXCHANGE, INC.’S
ARBITRATION RULE AND THE PARTIES AGREE TO BE BOUND BY THE FINAL AWARD OF THE
ARBITRATORS IN ANY SUCH PROCEEDING. THE ARBITRATORS SHALL APPLY THE
LAWS OF THE STATE OF NEW YORK WITH RESPECT TO THE INTERPRETATION OR ENFORCEMENT
OF ANY MATTER RELATING TO THIS AGREEMENT. ANY ARBITRATION HEREUNDER
SHALL BE HELD IN NEW YORK CITY, NY, OR SUCH OTHER PLACE AS THE PARTIES HERETO
MAY MUTUALLY AGREE. THE PREVAILING PARTY IN ANY SUCH ARBITRATION
SHALL BE ENTITLED TO RECOVER ITS OR HIS FULL REASONABLE COSTS AND REASONABLE
ATTORNEYS’ FEES INCURRED DURING OR IN CONNECTION WITH THE
ARBITRATION. JUDGMENT UPON THE AWARD BY THE ARBITRATORS MAY BE
ENTERED IN ANY COURT IN THE STATE OF NEW YORK HAVING JURISDICTION
THEREOF.
7
13.3
Compliance with Section 409A of
the Code. To the fullest extent applicable, amounts and benefits
payable under this Agreement are intended to be exempt from the definition
of
“nonqualified deferred compensation” under Section 409A of the Code
in
accordance with one or more of the exemptions available under the final Treasury
regulations promulgated under Code Section 409A and, to the extent that any
such
amount or benefit is or becomes subject to Code Section 409A due to a failure
to
qualify for an exemption from the definition of nonqualified deferred
compensation in accordance with such final Treasury regulations, this Agreement
is intended to comply with the applicable requirements of Section 409A of the
Code with respect to such amounts or benefits and will be interpreted and
administered to the extent possible in a manner consistent with the foregoing
statement of intent. Notwithstanding anything herein to the contrary,
(i) if on the date the Employee “separates from service” within the meaning of
Treasury Regulation section 1.409A-1(h), (A) the Company is publicly traded,
(B)
the Employee is a Specified Employee, and (C) the Company reasonably determines
that (x)
a payment or benefit payable hereunder
as a result of the Employee’s
termination of employment constitutes
nonqualified deferred compensation that is subject to the requirements of
Section 409A of the Code and (y)
the deferral of the commencement of
such payments or benefits is necessary in order to prevent any accelerated
or
additional tax under Section 409A of the Code, then the Company will withhold
and accumulate such payments or benefits hereunder (without any reduction in
such payments or benefits ultimately paid or provided to Employee) until the
date that is six months following Employee’s
separation from service date (or the
earliest date as is permitted under Section 409A of the Code), at which time
the
withheld and accumulated payments shall be paid to the Employee in a single
lump
sum payment and (ii) if any other payments of money or other benefits due to
Employee hereunder could cause the application of an accelerated or additional
tax under Section 409A of the Code, such payments or other benefits shall be
deferred if deferral will make such payment or other benefits compliant under
Section 409A of the Code, or otherwise such payment or other benefits shall
be
restructured, to the extent possible, in a manner, determined by the Company,
that does not cause such an accelerated or additional tax.
13. Captions. The
captions of this Agreement are not part of the provisions hereof and shall
not
have any force or effect.
13.4 Amendment. This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors, assigns and
legal
representatives.
13.5
Entire
Agreement. This Agreement contains the entire understanding of
the Company and the Executive with respect to the subject matter hereof and
supersedes any prior oral or written agreement between the Company and the
Executive.
13.6
Counterparts. This
Agreement may be executed in or counterparts, each of which will be deemed
to be
an original thereof, but all of which together will constitute one and the
same
instrument.
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13.7 Waiver
of
Breach. No waiver by the Company of any breach of this
Agreement will be a waiver of any preceding or subsequent breach. No
waiver by the Company of any right under this Agreement will be construed as
a
waiver of any other right.
13.8 Enforceability. If
any provision of this Agreement is held invalid or unenforceable, either in
its
entirety or by virtue of its scope of application to given circumstances, such
provision will thereupon be deemed modified only to the extent necessary to
render same valid, or not applicable to given circumstances, or excised from
this Agreement, as the situation may require, and this Agreement will be
construed and enforced as if such provision had been included herein as so
modified in scope or application, or had not been included herein, as the case
may be.
.
IN
WITNESS WHEREOF, the Executive has signed this Agreement and, the Company has
caused this Agreement to be signed in its name and on its behalf, all as of
the
day and year first above written.
Xxxxx
Technologies Inc.
By: /s/Xxxxxx
Xxxxx
Title:
Acting Chief Executive Officer
Name:
Xxxxxx Xxxxx
By:
/s/ Xxxxxxx
X.
Xxxx
Name: Xxxxxxx X. Xxxx
