Exhibit 10.11
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EMPLOYMENT AGREEMENT
by and between
MAXCOR FINANCIAL GROUP INC.
and
Xxxxxx X. Xxxxxxxxx
TABLE OF CONTENTS
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SECTION PAGE
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1. Employment...........................................................1
2. Term.................................................................1
3. Position and Duties; Place of Performance............................1
4. Compensation and Related Matters.....................................2
(a) Base Salary....................................................2
(b) Bonuses........................................................2
(c) Expenses.......................................................2
(d) Other Benefits.................................................2
(e) Life Insurance.................................................3
(f) Vacation.......................................................3
(g) Services Furnished.............................................3
5. Offices..............................................................3
6. Termination..........................................................3
(a) Death..........................................................3
(b) Disability.....................................................3
(c) Cause..........................................................4
(d) Good Reason....................................................4
(e) Change in Control..............................................5
7. Termination Procedure................................................7
(a) Notice of Termination..........................................7
(b) Date of Termination............................................7
(c) Compensation During Dispute....................................7
8. Compensation upon Termination or During Disability...................8
(a) Disability; Death..............................................8
(b) By Company without Cause or by the Executive for Good Reason...8
(c) By Company for Cause or by the Executive Other than
for Good Reason................................................9
(d) Compensation Plans.............................................9
(e) Payment Limitation.............................................9
9. Mitigation..........................................................10
10. Confidential Information; Noncompetition Requirement................11
(a) Confidential Information......................................11
(b) Noncompetition Requirement....................................11
(c) Salary Continuation...........................................11
(d) Injunctive Relief.............................................12
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11. Indemnification; Legal Fees.........................................12
12. Successors; Binding Agreement.......................................12
(a) Company's Successors..........................................12
(b) Executive's Successors........................................13
13. Notice..............................................................13
14. Miscellaneous.......................................................14
15. Validity............................................................14
16. Counterparts........................................................14
17. Entire Agreement....................................................14
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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of October 1, 2002 (this "AGREEMENT") by
and between Xxxxxx X. Xxxxxxxxx (the "EXECUTIVE"), and Maxcor Financial Group
Inc., a Delaware corporation (the "COMPANY"), superseding and replacing the
employment agreement between the Executive and Euro Brokers Inc., a Delaware
corporation and a direct, wholly owned subsidiary of the Company ("EBI"), dated
as of May 4, 1998, as amended (the "1998 AGREEMENT").
WHEREAS, EBI currently employs the Executive and the Executive
currently furnishes services to EBI (as well as the Company) on the terms and
conditions set forth in the 1998 Agreement; and
WHEREAS, the Company desires to employ the Executive directly at the
Company level and the Executive desires to be so employed; and
WHEREAS, the Company and the Executive mutually desire to extend the
term of the Executive's employment with the Company beyond that provided for in
the 1998 Agreement and to make certain other changes in the terms and conditions
set forth in the 1998 Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth below, the parties hereby agree to supersede and replace
the 1998 Agreement as follows:
1. EMPLOYMENT. The Company hereby agrees to continue to employ the
Executive, which period of continuous employment began on December 1, 1998, and
the Executive hereby accepts such continued employment, on the terms and
conditions hereinafter set forth.
2. TERM. The period of employment of the Executive by the Company
pursuant to this Agreement (the "EMPLOYMENT PERIOD") shall commence on the date
first written above (the "COMMENCEMENT DATE"), and shall continue in effect
through March 31, 2006, unless further extended as provided in this Section 2 or
sooner terminated as provided in Section 6. Commencing on March 31, 2005, and on
each successive anniversary thereafter, the contract term of the Executive's
employment shall be automatically extended for one (1) additional year unless,
on or prior to such date or anniversary, the Company shall have delivered to the
Executive or the Executive shall have delivered to the Company written notice
that the term of the Executive's employment hereunder will not be extended (the
initial term, as it may be so extended, the "Contract Term"); PROVIDED, HOWEVER,
that, if a Change in Control shall have occurred during the original or extended
term of this Agreement, the Contract Term shall continue in effect for at least
twenty-four (24) months subsequent to the month in which such Change in Control
occurs.
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3. POSITION AND DUTIES; PLACE OF PERFORMANCE. During the Employment
Period, the Executive shall serve as Chief Financial Officer and Treasurer of
the Company. The Executive shall have the full responsibilities and authority
attendant to such position and report directly to the Chairman, President and
Chief Executive Officer of the Company. The Executive's responsibilities and
authority shall include such responsibilities and authority as may from time to
time be assigned to the Executive by the Chairman, President and Chief Executive
Officer of the Company, provided that such responsibilities and authority are
consistent with the Executive's position with the Company. During the Employment
Period, the Executive shall also serve as Chief Financial Officer and Treasurer
of various of the Company's subsidiaries, including, but not limited to, Euro
Brokers Investment Corporation, EBI and Maxcor Financial Inc. (collectively, the
"SUBSIDIARIES"). During the Employment Period, the Executive agrees to devote
substantially all of his working time and efforts to the performance of his
duties for the Company and the Subsidiaries. In connection with the Executive's
employment by the Company, the Executive shall be based at the Company's
principal executive offices in Manhattan, New York, except for reasonably
required travel on the Company's business.
4. Compensation and Related Matters.
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(a) BASE SALARY. As compensation for the performance by the
Executive of his obligations hereunder, during the Employment Period, the
Company shall pay the Executive a base salary at the rate of $200,000 per annum
("BASE SALARY"). Base Salary shall be paid in approximately equal installments
in accordance with the Company's customary payroll practices. Base Salary may be
increased from time to time in accordance with the normal business practices of
the Company and, if so increased, shall not thereafter during the Employment
Period be decreased.
(b) BONUSES. During the Employment Period, the Executive shall
be eligible to receive such semi-annual bonuses as may be awarded to him as the
Board of Directors (the "BOARD") of the Company or the Compensation Committee of
the Board shall determine, or if an incentive plan is adopted by the Company or
a subsidiary thereof, in accordance with the terms of such plan.
(c) EXPENSES. The Company shall promptly reimburse the
Executive for all reasonable business expenses incurred during the Employment
Period by the Executive in performing services hereunder, including all expenses
of travel and living expenses while traveling on business or at the request of
and in the service of the Company, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by the
Company.
(d) OTHER BENEFITS. The Executive shall be entitled to
participate in all of the employee benefit plans and arrangements currently
maintained by the Company or a subsidiary thereof, in accordance with the terms
of such plans and arrangements, and shall be entitled to participate in or
receive benefits under any employee benefit plan or arrangement made available
by the Company or a subsidiary thereof in the future to its executives and key
management employees (including without limitation each incentive plan, pension
and retirement plan and arrangement, supplemental pension and retirement plan
and arrangement, stock option plan, life insurance and health-and-accident plan
and arrangement, medical insurance plan, disability plan, survivor income plan,
relocation plan and vacation plan), subject to and on a basis consistent with
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the terms, conditions and overall administration of such plans and arrangements.
Nothing paid to the Executive under any plan or arrangement presently in effect
or made available in the future (including subsection (e) of this Section 4)
shall be deemed to be in lieu of the salary payable to the Executive pursuant to
subsection (a) of this Section 4.
(e) LIFE INSURANCE. During the Employment Period, the Company
shall obtain and maintain a term life insurance policy on and for the benefit of
the Executive, including paying all premiums for the policy that come due within
the Employment Period. The policy shall have a death benefit amount of not less
than $2 million payable to the beneficiary or beneficiaries designated by the
Executive. The policy shall be in addition to any coverage the Executive has
under any group life insurance plan maintained by the Company or a subsidiary
thereof.
(f) VACATION. The Executive shall be entitled to 25 vacation
days in each calendar year; PROVIDED, HOWEVER, that vacation not taken shall not
accrue from year-to-year or be compensated for at the end of the Employment
Period. The Executive shall also be entitled to all paid holidays given by the
Company to its executives.
(g) SERVICES FURNISHED. During the Employment Period, the
Company shall furnish the Executive with office space, stenographic assistance
and such other facilities and services as shall be suitable to the Executive's
position and adequate for the performance of his duties as set forth in Section
3 hereof.
5. OFFICES. Subject to Section 3 hereof, the Executive agrees to
serve without additional compensation, if elected or appointed thereto, as a
director of the Company or any subsidiaries of the Company and as a member of
any committees of the board of directors of any such corporations, and in one or
more executive positions of any of the Company's subsidiaries, provided that the
Executive is indemnified for serving in any and all such capacities on a basis
no less favorable than is currently provided to any other director of the
Company or any of its subsidiaries, or any such executive position, as the case
may be.
6. TERMINATION. The Executive's employment hereunder (and the
Employment Period) may be terminated without any breach of this Agreement only
under the circumstances set forth in the following subsections (a), (b), (c) and
(d).
(a) DEATH. The Executive's employment hereunder (and the
Employment Period) shall terminate upon his death.
(b) DISABILITY. If, as a result of the Executive's incapacity
due to physical or mental illness, the Executive shall have been absent from the
full-time performance of his duties hereunder for the entire period of six
consecutive months, and within thirty (30) days after written Notice of
Termination (as defined in Section 7 hereof) is given shall not have returned to
the performance of his duties hereunder on a full-time basis, the Company may
terminate the Executive's employment hereunder (and the Employment Period) for
"DISABILITY."
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(c) CAUSE. The Company may terminate the Executive's
employment hereunder (and the Employment Period) for Cause. For purposes of this
Agreement, the Company shall have "CAUSE" to terminate the Executive's
employment hereunder upon the occurrence of any of the following events:
(i) the conviction of the Executive for the commission
of a felony; or
(ii) the willful and continuing failure by the Executive
to substantially perform his duties hereunder (other than such failure
resulting from the Executive's incapacity due to physical or mental
illness or subsequent to the issuance of a Notice of Termination by the
Executive for Good Reason) after demand for substantial performance is
delivered by the Company in writing that specifically identifies the
manner in which the Company believes the Executive has not
substantially performed his duties; or
(iii) the willful misconduct by the Executive (including,
but not limited to, breach by the Executive of the provisions of
Section 10 hereof) that is demonstrably and materially injurious to the
Company or its subsidiaries, whether monetarily or otherwise.
For purposes of this Section 6(c), no act or failure to act on the Executive's
part shall be considered "WILLFUL" unless done or failed to be done by the
Executive in bad faith and without reasonable belief that the Executive's action
or omission was in the best interest of the Company.
(d) GOOD REASON. The Executive may terminate his employment
hereunder (and the Employment Period) during the Contract Term hereunder for
"GOOD REASON" after the occurrence, without the written consent of the
Executive, of an event constituting a material breach of this Agreement by the
Company that has not been fully cured within ten (10) days after written notice
thereof has been given by the Executive to the Company, provided that, without
limiting the generality of the foregoing, on and after a Change in Control, any
one of the following events shall be deemed a material breach of this Agreement:
(i) the assignment to the Executive of any duties
inconsistent with the Executive's status as a senior executive officer
of the Company or a substantial adverse alteration in the nature of the
Executive's responsibilities from those in effect immediately prior to
the Change in Control, including, without limitation, if the Executive
was, immediately prior to the Change in Control, an executive officer
of a public company, the Executive ceasing to be an executive officer
of a public company, or being required to report to anyone other than
the Chairman, President and Chief Executive Officer;
(ii) a reduction by the Company in the Executive's Base
Salary as in effect immediately prior to the Change in Control;
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(iii) the relocation of the Executive's principal place
of employment to a location outside of Manhattan, New York;
(iv) the failure by the Company to pay to the Executive
any portion of the Executive's current compensation or to pay to the
Executive any portion of an installment of deferred compensation under
any deferred compensation program of the Company within fifteen (15)
days of the date such compensation is due;
(v) the failure by the Company to provide the Executive
with compensation plans which, in the aggregate, provide the Executive
with substantially comparable compensation opportunities to those
compensation opportunities for which the Executive was eligible
immediately prior to the Change in Control;
(vi) the failure by the Company to continue to provide
the Executive with benefits substantially similar to those enjoyed by
the Executive under any of the Company's pension, life insurance,
medical, health and accident, or disability plans in which the
Executive was participating at the time of the Change in Control, the
taking of any action by the Company which would directly or indirectly
materially reduce any of such benefits or deprive the Executive of any
material perquisite or other fringe benefit, or secretarial service and
office space at the level, enjoyed by the Executive at the time of the
Change in Control, or the failure by the Company to provide the
Executive with the number of paid vacation days to which the Executive
is entitled under this Agreement;
(vii) any purported termination of the Executive's
employment which is not effected pursuant to a Notice of Termination
satisfying the requirements of Section 7(a) or that does not comply
with Section 6(c), if applicable (and for purposes of this Agreement,
no such purported termination shall be effective); or
(viii) the failure of a successor to the Company to
expressly assume and agree to perform this Agreement pursuant to
Section 12(a) hereof.
The Executive's right to terminate his employment hereunder for Good Reason
shall not be affected by his incapacity due to physical or mental illness. The
Executive's continued employment shall not constitute consent to, or a waiver of
rights with respect to, any act or failure to act constituting Good Reason
hereunder.
(e) CHANGE IN CONTROL. A "CHANGE IN CONTROL" shall be deemed
to have occurred if the event set forth in any one of the following paragraphs
shall have occurred:
(i) any Person is or becomes the "Beneficial Owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Company (not including in the securities
Beneficially Owned by such Person any securities acquired directly from
the Company) representing 50% or more of the Company's then outstanding
securities, excluding any Person who becomes such a Beneficial Owner in
connection with a transaction described in clause (A) or (C) of
paragraph (iii) below; or
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(ii) the following individuals cease for any reason to
constitute a majority of the number of directors then serving:
individuals who, on the Commencement Date, constitute the Board and any
new director (other than a director whose initial assumption of office
is in connection with an actual or threatened election contest,
including but not limited to a consent solicitation, relating to the
election of directors of the Company) whose appointment or election by
the Board or nomination for election by the Company's stockholders was
approved or recommended by a vote of at least two-thirds of the
directors then still in office who either were directors on the
Commencement Date or whose appointment, election or nomination for
election was previously so approved or recommended; or
(iii) there is consummated a merger or consolidation of
the Company or any direct or indirect subsidiary of the Company with
any other corporation other than (A) a merger or consolidation which
would result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity or any parent thereof) at
least 50% of the combined voting power of the voting securities of the
Company or such surviving entity or any parent thereof outstanding
immediately after such merger or consolidation, or (B) a merger or
consolidation effected to implement a re-capitalization of the Company
(or similar transaction) in which no Person is or becomes the
Beneficial Owner, directly or indirectly, of securities of the Company
(not including in the securities Beneficially Owned by such Person any
securities acquired directly from the Company) representing 50% or more
of the combined voting power of the Company's then outstanding
securities, or (C) a merger or consolidation which would result in any
individual, entity or group which includes, is affiliated with or is
wholly or partly controlled by the individual who, as of the
Commencement Date, is the Chief Executive Officer of the Company (the
"Chief Executive Officer") being the Beneficial Owner of at least 50%
of the combined voting power of the voting securities of the Company,
the entity surviving such merger of consolidation or any parent thereof
outstanding immediately after such merger or consolidation; or
(iv) the stockholders of the Company approve a plan of
complete liquidation or dissolution of the Company or there is
consummated an agreement for the sale or disposition by the Company of
all or substantially all of the Company's assets, other than a sale or
disposition by the Company of all or substantially all of the Company's
assets to an entity at least 50% of the combined voting power of the
voting securities of which are owned by Persons in substantially the
same proportions as their ownership of the Company immediately prior to
such sale.
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For purposes of this Section 6(e) and Section 8(e) hereof, "Person"
shall have the meaning given in Section 3(a)(9) of the Securities Exchange Act
of 1934, as modified and used in Sections 13(d) and 14(d) thereof, except that
such term shall not include (i) the Company or any of its subsidiaries, (ii) a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company or any of its subsidiaries or affiliates, (iii) an underwriter
temporarily holding securities pursuant to an offering of such securities, (iv)
a corporation owned, directly or indirectly, by the stockholders of the Company
in substantially the same proportions as their ownership of stock of the Company
or (v) any individual, entity or group which includes, is affiliated with or is
wholly or party controlled by the Chief Executive Officer.
7. Termination Procedure.
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(a) NOTICE OF TERMINATION. Any termination of the Executive's
employment by the Company or by the Executive (other than termination pursuant
to Section 6(a) hereof) shall be communicated by written Notice of Termination
to the other party hereto in accordance with Section 13. For purposes of this
Agreement, a "NOTICE OF TERMINATION" shall mean a notice which shall indicate
the specific termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated.
(b) DATE OF TERMINATION. "DATE OF TERMINATION" shall mean (i)
if the Executive's employment is terminated by his death, the date of his death,
(ii) if the Executive's employment is terminated for Disability pursuant to
Section 6(b), thirty (30) days after Notice of Termination (provided that the
Executive shall not have returned to the performance of his duties on a
full-time basis during such thirty (30) day period), (iii) if the Executive's
employment is terminated for Cause pursuant to Section 6(c), the date specified
in the Notice of Termination, which shall not be earlier than the date of the
Notice of Termination, and (iv) if the Executive's employment is terminated for
any other reason, the date on which a Notice of Termination is given or any
later date (within 60 days) set forth in such Notice of Termination; PROVIDED,
HOWEVER, that if a purported termination occurs on or after a Change in Control
and during the Contract Term and either party notifies the other party that a
dispute exists concerning the termination, the Date of Termination shall be the
date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding and final arbitration award or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been perfected); PROVIDED
FURTHER, HOWEVER, that the Date of Termination shall be extended by a notice of
dispute given by the Executive only if such notice is given in good faith and
the Executive pursues the resolution of such dispute with reasonable diligence.
(c) COMPENSATION DURING DISPUTE. If a purported termination
occurs on or after a Change in Control and during the Contract Term, and such
termination is disputed in accordance with subsection (b) of this Section 7, the
Company shall continue to pay the Executive the full compensation in effect when
the notice giving rise to the dispute was given (including, but not limited to,
salary) and continue the Executive as a participant in all compensation, benefit
and insurance plans in which the Executive was participating when the notice
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giving rise to the dispute was given, until the Date of Termination, determined
in accordance with subsection (b) of this Section 7. Amounts paid under this
Section 7(c) are in addition to all other amounts due under this Agreement and
shall not be offset against or reduce any other amounts due under this
Agreement.
8. Compensation upon Termination or During Disability.
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(a) DISABILITY; DEATH. During any period that the Executive
fails to perform his duties hereunder as a result of incapacity due to physical
or mental illness ("DISABILITY PERIOD"), the Executive shall continue to receive
his full Base Salary at the rate in effect at the beginning of such period and
continue as a participant in all compensation and employee benefit plans in
which the Executive was participating pursuant to Sections 4(f) and 4(g) until
his employment is terminated pursuant to Section 6(b) and shall continue to
receive such Base Salary for a period of six months thereafter. Subsequent to
the six-month period following termination of the Executive's employment
pursuant to Section 6(b), or in the event the Executive's employment is
terminated by reason of his death, the Company shall have no further obligations
to the Executive under this Agreement and the Executive's benefits shall be
determined under the Company's retirement, insurance and other compensation
programs then in effect in accordance with the terms of such programs.
(b) BY COMPANY WITHOUT CAUSE OR BY THE EXECUTIVE FOR GOOD
REASON. If during the Contract Term the Executive's employment is terminated by
the Company other than for Cause or Disability or by the Executive for Good
Reason, then --
(i) in addition to any amounts due the Executive
pursuant to Sections 4(a), 4(b) or 4(c) hereof, the Company shall
continue to pay to the Executive (or his legal representatives or
estate) his Base Salary (at the rate in effect immediately prior to the
occurrence of the circumstance giving rise to the Notice of
Termination) for the remainder of the Contract Term or, if greater, for
one year; PROVIDED, HOWEVER that if such termination occurs on or
after a Change in Control, then the Company shall, within five (5) days
following the Date of Termination, pay to the Executive, in an
undiscounted cash lump sum, an amount equal to two (2) times the sum of
Base Salary (at the rate in effect immediately prior to the occurrence
of the circumstance giving rise to the Notice of Termination) and the
highest bonus (annualized if paid for less than a full year) awarded in
respect of any bonus period falling entirely within the twenty-four
month period preceding the Change in Control or the Date of
Termination, whichever resulting bonus is greater, provided that,
solely for purposes of this Section 8(b)(i), such annualized bonus
shall not be less than $300,000; and
(ii) the Company or a subsidiary thereof shall maintain
in full force and effect, for the continued benefit of the Executive
and his dependents for the remainder of the Contract Term or, if
greater, for one year or, if such termination occurs on or after a
Change in Control, for the greater of two years or the Contract Term,
all medical, dental and life insurance benefit plans and programs in
which the Executive was entitled to participate immediately prior to
the Date of Termination, provided that the Executive's continued
participation is possible under the general terms and provisions of
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such plans and programs. In the event that the Executive's
participation in any such plan or program is barred, the Company shall
arrange to provide the Executive and his dependents with benefits
substantially similar to those which the Executive and his dependents
would otherwise have been entitled to receive under such plans and
programs from which their continued participation is barred; and
(iii) the Executive shall be deemed to continue as an
employee of the Company during the remainder of the Contract Term for
purposes of the exercise and/or vesting of outstanding stock and stock
option awards and cash incentive awards.
(c) BY COMPANY FOR CAUSE OR BY THE EXECUTIVE OTHER THAN FOR
GOOD REASON. If the Executive's employment shall be terminated by the Company
for Cause or by the Executive other than for Good Reason, then the Company shall
pay the Executive his Base Salary (at the rate in effect at the time Notice of
Termination is given) through the Date of Termination, and the Company shall
have no additional obligations to the Executive under this Agreement except as
set forth in subsection (d) of this Section 8.
(d) COMPENSATION PLANS. Following any termination of the
Executive's employment, the Company shall pay the Executive all unpaid amounts,
if any, to which the Executive is entitled as of the Date of Termination under
any compensation plan or program of the Company, at the time such payments are
due.
(e) Payment Limitation.
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(i) Notwithstanding any other provisions of this
Agreement, in the event that any payment or benefit received or to be
received by the Executive in connection with a Change in Control or the
termination of the Executive's employment (whether pursuant to the
terms of this Agreement (the "SEVERANCE PAYMENTS") or any other plan,
arrangement or agreement with the Company, any Person whose actions
result in a Change in Control or any Person affiliated with the Company
or such Person) (all such payments and benefits, including the
Severance Payments, being hereinafter called "TOTAL PAYMENTS") would be
subject (in whole or part), to the excise tax (the "EXCISE TAX")
imposed under section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code"), then, after taking into account any reduction in
the Total Payments provided by reason of section 280G of the Code in
such other plan, arrangement or agreement, the cash Severance Payments
shall first be reduced, and the noncash Severance Payments shall
thereafter be reduced, to the extent necessary so that no portion of
the Total Payments is subject to the Excise Tax but only if (A) the net
amount of such Total Payments, as so reduced (and after subtracting the
net amount of federal, state and local income and employment taxes on
such reduced Total Payments) is greater than or equal to (B) the net
amount of such Total Payments without such reduction (but after
subtracting the net amount of federal, state and local income and
employment taxes on such Total Payments and the amount of Excise Tax to
which the Executive would be subject in respect of such unreduced Total
Payments); PROVIDED, HOWEVER, that the Executive may elect to have the
noncash Severance Payments reduced (or eliminated) prior to any
reduction of the cash Severance Payments.
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(ii) For purposes of determining whether and the extent
to which the Total Payments will be subject to the Excise Tax, (a) no
portion of the Total Payments the receipt or enjoyment of which the
Executive shall have waived at such time and in such manner as not to
constitute a "payment" within the meaning of section 280G(b) of the
Code shall be taken into account, (b) no portion of the Total Payments
shall be taken into account which, in the opinion of tax counsel ("TAX
COUNSEL") reasonably acceptable to the Executive and selected by the
accounting firm (the "AUDITOR") which was, immediately prior to the
Change in Control, the Company's independent auditor, does not
constitute a "parachute payment" within the meaning of section
280G(b)(2) of the Code (including by reason of section 280G(b)(4)(A) of
the Code) and, in calculating the Excise Tax, no portion of such Total
Payments shall be taken into account which, in the opinion of Tax
Counsel, constitutes reasonable compensation for services actually
rendered, within the meaning of section 280G(b)(4)(B) of the Code, in
excess of the Base Amount (as defined in section 280G(b)(3) of the Code
and the regulations promulgated thereunder) allocable to such
reasonable compensation, and (c) the value of any non-cash benefit or
any deferred payment or benefit included in the Total Payments shall be
determined by the Auditor in accordance with the principles of sections
280G(d)(3) and (4) of the Code.
(iii) At the time that payments are made under this
Agreement, the Company shall provide the Executive with a written
statement setting forth the manner in which such payments were
calculated and the basis for such calculations including, without
limitation, any opinions or other advice the Company has received from
Tax Counsel, the Auditor or other advisors or consultants (and any such
opinions or advice which are in writing shall be attached to the
statement). If the Executive objects to the Company's calculations, the
Company shall pay to the Executive such portion of the Severance
Payments (up to 100% thereof) as the Executive determines is necessary
to result in the proper application of subsection (i) of this Section
8(e).
9. MITIGATION. The Executive shall not be required to mitigate the
amount of any payment provided for the Executive by seeking other employment or
otherwise, nor, except as is hereinafter specifically provided in this Section
9, shall the amount of any payment or benefit provided for the Executive
hereunder be reduced by any compensation earned by the Executive as the result
of employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Executive to the Company or otherwise. If the
Executive's employment is terminated prior to a Change in Control, then to the
extent that the Executive, during the relevant period described in Section
8(b)(i) hereof, shall receive base salary from a subsequent employer, the
payments to be provided under the provisions of said Section shall be
correspondingly reduced. To the extent that the Executive, during the relevant
period described in Section 8(b)(ii) hereof, shall receive from a subsequent
employer benefits similar to those to be provided under Section 8(b)(ii), the
benefits to be provided under the provisions of said Section shall be
correspondingly reduced.
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10. Confidential Information; Noncompetition Requirement.
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(a) CONFIDENTIAL INFORMATION. The Executive shall hold in a
fiduciary capacity for the benefit of the Company all trade secrets and
confidential information relating to the Company and its businesses, which shall
have been obtained by the Executive during the Executive's employment by the
Company and which shall not have been or now or hereafter have become public
knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement). The Executive shall not, without the
prior written consent of the Company or as may otherwise be required by law or
legal process, communicate or divulge any such trade secrets or information to
anyone other than the Company and those designated by the Company. Any
termination of the Executive's employment or of this Agreement shall have no
effect on the continuing operation of this Section 10(a).
(b) NONCOMPETITION REQUIREMENT. During (1) any period that the
Executive is performing services hereunder, (2) a period of six (6) months
following a termination of the Executive's employment by the Company for Cause
or by the Executive other than for Good Reason (if the Company so requests,
notifies and pays the Executive as provided in Section 10(c) below), (3) on or
after a Change in Control, a period of six (6) months following a termination of
the Executive's employment by the Executive for Good Reason, and (4) with
respect to clauses (i) and (ii) of this Section 10(b), any period with respect
to which the Executive is entitled to payment pursuant to Section 8(b)(i) or, if
shorter, a period of one year, the Executive agrees that, without the prior
written consent of the Company, he shall not, directly or indirectly, with or
without pay, either as an employee, employer, consultant, agent, principal,
partner, stockholder, corporate officer, director, manager, investor, lender,
advisor, owner, associate or in any other individual or representative capacity,
(i) solicit, entice, encourage or otherwise attempt to procure or service by
telephone or otherwise accounts from any customers (determined as of the Date of
Termination) of the Company or a subsidiary thereof for a business that is
directly competitive (a "COMPETITIVE BUSINESS") with the business in which the
Company is then engaged, (ii) solicit, entice or encourage any employee
(determined as of the Date of Termination) of the Company or a subsidiary
thereof to terminate such employee's employment in order to work in a
Competitive Business, or (iii) upon the written request of the Company, directly
engage or participate in any Competitive Business unless such Competitive
Business is located more than seventy-five (75) miles from the site, as of the
Date of Termination, of the Company's executive offices in New York; PROVIDED,
HOWEVER, that (x) trading by the Executive for his own benefit or in proprietary
accounts shall not constitute a Competitive Business and (y) the Executive may
engage or participate in a business which has a Competitive Business as a
component or portion thereof if engaging or participating in such Competitive
Business does not constitute a substantial part of the Executive's duties.
11
(c) SALARY CONTINUATION. Following a termination of the
Executive's employment by the Company for Cause or by the Executive other than
for Good Reason, the Company may elect, by written notice given to the Executive
within 7 days of such notice of termination, to require the Executive to perform
the covenant provided in subsection (b)(iii) of this Section 10 during the
six-month period following the effectiveness of such termination. As additional
consideration for the Executive's performance of such covenant during such
period, but only for so long as the Executive shall continue to perform such
covenant, the Company shall pay the Executive for each month during such
six-month period an amount equal to one-twelfth (1/12th) of the Executive's Base
Salary. It is agreed and understood that such payment constitutes full and fair
consideration to the Executive for observance of such covenant.
(d) INJUNCTIVE RELIEF. In the event of a breach or threatened
breach of subsections (a), (b) or (c) of this Section 10, the Executive agrees
that the Company shall be entitled to injunctive relief in a court of
appropriate jurisdiction to remedy any such breach or threatened breach, the
Executive acknowledging that damages would be inadequate and insufficient.
11. INDEMNIFICATION; LEGAL FEES. The Company shall indemnify the
Executive to the full extent permitted by law for all expenses, costs,
liabilities and legal fees which the Executive may incur in the discharge of his
duties hereunder. The Company shall also (a) if the Date of Termination occurs
prior to a Change in Control, reimburse the Executive for any reasonable legal
fees and expenses incurred by the Executive in contesting or disputing any
termination of the Executive's employment hereunder or in seeking to obtain or
enforce any right or benefit provided by this Agreement, but only if the
Executive shall substantially prevail with respect to the preponderance of the
matters at issue and (b) if the Date of Termination occurs following a Change in
Control, pay as incurred all legal fees and expenses incurred by the Executive
in disputing in good faith any issue hereunder relating to the termination of
his employment, in seeking in good faith to obtain or enforce any right or
benefit provided by this Agreement or in connection with any tax audit or
proceeding to the extent attributable to the application of section 4999 of the
Code to any payment or benefit provided hereunder. The payments under clause (a)
above shall be made within five (5) days after the Executive's request for
payment accompanied with such evidence of his having prevailed (as described in
the preceding sentence) and such evidence of the fees and expenses incurred as
the Company may reasonably require; the payments under clause (b) shall be made
within five (5) business days after delivery of the Executive's written request
for payments accompanied with such evidence of fees and expenses incurred as the
Company reasonably may require. Any termination of the Executive's employment or
of this Agreement shall have no effect on the continuing operation of this
Section 11.
12. Successors; Binding Agreement.
-----------------------------
(a) COMPANY'S SUCCESSORS. 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 expressly 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 had taken place. Failure of the Company to obtain such
assumption and agreement prior to the effectiveness of any such succession shall
be a breach of this Agreement and shall entitle the Executive to compensation
12
from the Company in the same amount and on the same terms as he would be
entitled to hereunder if the Company had terminated his employment other than
for Cause, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "COMPANY" shall mean the Company as
herein before defined and any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in this Section
12 or which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
(b) EXECUTIVE'S SUCCESSORS. This Agreement and all rights of
the Executive hereunder shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive should
die while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts unless otherwise provided herein shall be
paid in accordance with the terms of this Agreement to the Executive's devisee,
legatee, or other designee or, if there be no such designee, to the Executive's
estate.
13. NOTICE. For the purposes of this Agreement, notices, demands and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by United States certified or registered mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive:
Xxxxxx X. Xxxxxxxxx
00 Xxxx Xx.
Xxxxxxxxx, XX 00000
With a copy to the Executive at the offices of the Company; and
If to the Company:
(until February 28, 2003):
Maxcor Financial Group Inc.
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chairman
(from and after March 1, 2003):
Maxcor Financial Group Inc.
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chairman
13
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
14. MISCELLANEOUS. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and an authorized officer of the Company
(other than the Executive). No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. This Agreement
shall be binding on all successors to the Company. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of New York without regard to its conflicts of law principles. All
references to sections of the Exchange Act or the Code shall be deemed also to
refer to any successor provisions to such sections. Any payments provided for
hereunder shall be paid net of any applicable withholding required under
federal, state or local law. The obligations of the Company and the Executive
under this Section 14 and Sections 7, 8, 9, 10, 11 and 12 hereof shall survive
the expiration of the term of or the termination of this Agreement. The
compensation and benefits payable to the Executive under this Agreement shall be
in lieu of any other severance benefits to which the Executive may otherwise be
entitled upon his termination of employment under any severance plan, program,
policy or arrangement of the Company.
15. VALIDITY. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
17. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
of the parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto; and any prior agreement
of the parties hereto in respect of the subject matter contained herein,
including, but not limited to, the 1998 Agreement, is hereby terminated and
cancelled.
14
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
MAXCOR FINANCIAL GROUP INC.
By: /s/ XXXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
/s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxxx ("Executive")
(for purposes of agreeing to the termination
of the 1998 Agreement):
EURO BROKERS INC.
By: /s/ XXXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
15
