Exhibit 10.11
EMPLOYMENT AGREEMENT
AGREEMENT made as of this 14th day of August, 1998, between EURO
BROKERS INVESTMENT CORPORATION, a Delaware corporation (the "Company"), or
affiliates as the Company may assign from time to time, with principal offices
at Two World Trade Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and XXXXXX X.
XXXXXX ("Xxxxxx"), residing at 00 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000.
In consideration of the covenants and agreements herein contained, the
parties agree as follows:
1. Employment, Acceptance and Term
Subject to the provisions hereof, the Company agrees to employ
Xxxxxx, and Xxxxxx agrees to serve the Company, as Executive Vice
President for a term commencing on the date hereof and ending on August
31, 2001, which date (the "Termination Date") shall also be the date
upon which this Agreement shall terminate (except for such provisions
hereof as shall expressly survive termination or expiration). This
Agreement and the term of employment of Xxxxxx will automatically
continue unless terminated by the Company or Xxxxxx on not less than
six months prior written notice expiring on or after the Termination
Date. The last date of the term of this Agreement pursuant to any such
automatic continuance is herein called the "Extended Termination Date."
2. Duties and Authority
2.1 During the term hereof, Xxxxxx shall faithfully and
diligently devote Xxxxxx'x full time, best efforts, skills and energies
to the business of the Company and its subsidiary and affiliated
entities (collectively, the "Business"). Xxxxxx shall not accept any
other employment or render advisory services during the initial or any
extended term of this Agreement, nor shall Xxxxxx permit such personal
business interests as Xxxxxx may have to interfere with the performance
of Xxxxxx'x duties hereunder. Xxxxxx acknowledges that neither the
Company nor any of its affiliates for which Xxxxxx may be working
hereunder or with respect to which Xxxxxx may have access to
confidential information ("Affiliates") shall have any obligation to
elect Xxxxxx a director or an officer, but Xxxxxx agrees to serve as
such if so elected. Xxxxxx agrees to faithfully and diligently perform,
to the best of Xxxxxx'x abilities, such duties as may from time to time
be assigned to Xxxxxx by the Company's Board of Directors (or its
designee). Xxxxxx will duly, punctually and faithfully perform and
observe all rules that the Company may from time to time establish
concerning the conduct of the Business. All such services shall be
rendered for and in consideration of the compensation payable to Xxxxxx
under Section 3 hereof.
2.2 Xxxxxx grants the Company the right to obtain insurance on
Xxxxxx'x life during the term hereof for the benefit of the Company in
such amount as the Company shall
Employment Agreement: Xxxxxx X. Xxxxxx
August 14, 1998
Page 2
deem appropriate and hereby agrees to execute all such documents and
perform all such acts as the Company shall deem necessary in connection
therewith.
3. Compensation
During the term hereof, the Company shall pay Xxxxxx
compensation at the rate of $270,000 per annum, payable periodically in
accordance with the Company's then prevailing practices (the "Base
Salary"). In addition, Xxxxxx may be paid a bonus, on a semi-annual
basis, at the sole discretion of the Board of Directors of the Company,
but the Company shall not be obligated to pay any such bonus. Any bonus
award, if paid, will be made after consideration of Company profits and
the satisfactory performance by Xxxxxx of his obligations under this
Agreement.
4. Expenses
4.1 In addition to the compensation payable to Xxxxxx pursuant
to Section 3 hereof, the Company shall pay or reimburse Xxxxxx, upon
submission of proper vouchers in respect thereof, all reasonable and
necessary transportation, hotel, living and related expenses incurred
by Xxxxxx on business trips and all other business and entertainment
expenses, provided that all such expenses shall have been incurred in
accordance with the Company's policies or approved in advance by the
President of the Company or his designee.
4.2 Xxxxxx is aware that Xxxxxx may incur business expenses
for which it will be impracticable to claim reimbursement hereunder and
acknowledges that the compensation hereunder has been fixed to enable
Xxxxxx to bear such expenses out of such compensation.
5. Additional Benefits
Xxxxxx shall be entitled to an annual vacation in accordance
with the Company's policies as established from time to time, and shall
be entitled to participate in all retirement, insurance,
hospitalization, disability and other plans which the Company may in
its sole discretion establish from time to time, provided that Xxxxxx
is eligible by the terms thereof to participate therein.
Employment Agreement: Xxxxxx X. Xxxxxx
August 14, 1998
Page 3
6. Discharge for Cause
The Company may terminate Xxxxxx'x employment hereunder for
Cause. For purposes of this Agreement, the Company shall have "Cause"
to terminate Xxxxxx'x employment hereunder upon the occurrence of any
of the following events:
(a) the conviction of Xxxxxx for the commission of a felony; or
(b) the willful and continuing failure by Xxxxxx to
substantially perform his duties hereunder (other than such
failure resulting from Xxxxxx'x incapacity due to physical
or mental illness) after demand for substantial performance
is delivered by the Company in writing that specifically
identifies the manner in which the Company believes Xxxxxx
has not substantially performed his duties; or
(c) the willful misconduct by Xxxxxx (including, but not limited
to, breach by Xxxxxx of the provisions of Sections 8 and 9
hereof) that is demonstrably and materially injurious to the
Company or its subsidiaries, whether monetarily or
otherwise.
For purposes of this Section 6, no act or failure to act on
Xxxxxx'x part shall be considered "willful" unless done or failed to be
done by Xxxxxx in bad faith and without reasonable belief that his
action or omission was in the best interest of the Company.
7. Termination of Employment
7.1 Notwithstanding anything to the contrary herein, Xxxxxx'x
employment hereunder may only be terminated without breach of this
Agreement as follows: (i) upon Xxxxxx'x death; (ii) based on Xxxxxx'x
failure to perform the duties of the position for a period of 60
consecutive days, or 120 days in the aggregate during any twelve-month
period (except as may be prohibited by federal, state or local
disability laws); (iii) upon termination by mutual consent of the
parties; (iv) upon notice to Xxxxxx of discharge for Cause. In any such
event, the Company shall have no obligations hereunder other than to
pay sums due to Xxxxxx as of the date of such termination. In addition,
Xxxxxx may terminate this Agreement as set forth in Section 7.5 below.
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August 14, 1998
Page 4
7.2 If Xxxxxx'x employment is terminated by the Company in
breach of the preceding Section 7.1, or if Xxxxxx terminates his
employment for Good Reason (as defined below), then:
(a) in addition to any amounts due Xxxxxx pursuant to Sections
3, 4 or 5 hereof, the Company shall continue to pay to
Xxxxxx (or his legal representatives or estate) his Base
Salary as in effect on the date of termination of employment
("Date of Termination") during the remainder of the period
that would have ended on the Termination Date (or any
applicable Extended Termination Date), but for the
termination of Xxxxxx'x employment hereunder (the
"Continuation Period"); and
(b) the Company or a subsidiary thereof shall maintain in full
force and effect, for the continued benefit of Xxxxxx and
his dependents for the Continuation Period, all medical,
dental and life insurance benefit plans and programs in
which Xxxxxx was entitled to participate immediately prior
to the Date of Termination, provided that Xxxxxx'x continued
participation is possible under the general terms and
provisions of such plans and programs. In the event that
Xxxxxx'x participation in any such plan or program is
barred, the Company shall arrange to provide Xxxxxx and his
dependents with benefits substantially similar to those
which Xxxxxx and his dependents would otherwise have been
entitled to receive under such plans and programs from which
their continued participation is barred; and
(c) Xxxxxx shall be deemed to continue as an employee of the
Company during the Continuation Period for purposes of the
exercise and/or vesting of outstanding stock and stock
option awards and cash incentive awards.
7.3 If following a Change in Control (as defined in the
amended and restated employment agreement by and between Maxcor
Financial Group Inc. and its Chief Executive Officer, dated as of
August 14, 1998, as the same may from time to time be amended), Xxxxxx
notifies the Company that a dispute exists concerning whether his
employment was properly terminated for Cause, or the Company notifies
Xxxxxx that a dispute exists concerning whether his employment was
properly terminated for Good Reason, the Company shall continue to pay
Xxxxxx the full compensation in effect when the notice giving rise to
the dispute was given (including, but not limited to, Base Salary)
(such amounts being in addition to all other amounts due under this
Agreement) and
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August 14, 1998
Page 5
continue Xxxxxx as a participant in all compensation, benefit and
insurance plans in which Xxxxxx was participating when the notice
giving rise to the dispute was given, until 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
that such notice is given in good faith and Xxxxxx pursues the
resolution of such dispute with reasonable diligence.
7.4 If Xxxxxx'x employment is terminated prior to a Change in
Control, then to the extent that Xxxxxx, during the Continuation
Period, shall receive salary payments from a subsequent employer, the
payments to be provided under the provisions of Section 7.2(a) shall be
correspondingly reduced. To the extent that Xxxxxx, during the
Continuation Period (whether or not a Change in Control has occurred),
shall receive from a subsequent employer benefits similar to those to
be provided under Section 7.2(b), the benefits to be provided under the
provisions of said Section shall be correspondingly reduced.
7.5 Xxxxxx may terminate his employment hereunder for "Good
Reason" within 90 days after the occurrence, without his written
consent, of an event following a Change in Control constituting a
material breach of this Agreement by the Company that has not been
fully cured within 10 days after written notice thereof has been given
by Xxxxxx to the Company. Xxxxxx'x right to terminate his employment
hereunder for Good Reason shall not be affected by his incapacity due
to physical or mental illness.
8. Non-Competition; Customers; Other Employees
8.1 Both parties recognize that the services to be rendered by
Xxxxxx under this Agreement, including Xxxxxx'x development over the
term of his employment at the Company's expense of trading and customer
relationships and knowledge of customer preferences, are special,
unique and of extraordinary character. Xxxxxx acknowledges that the
Company has a vital interest in retaining its employees and in
preserving its trading and customer relationships and that the level of
Xxxxxx'x compensation as set forth in Section 3 includes specific
additional amounts that, together with the further payments
contemplated by Section 8.5, are sufficient to constitute fair and
adequate consideration for the obligations and commitments of Xxxxxx
under this Section 8 and that the specific enforcement of the
provisions contained herein will not diminish Xxxxxx'x ability to earn
a livelihood or create or impose upon Xxxxxx any undue hardship.
Employment Agreement: Xxxxxx X. Xxxxxx
August 14, 1998
Page 6
8.2 Both during the term of Xxxxxx'x employment hereunder and,
if the Company so requests in writing, during the period (the
"Non-Compete Period") commencing immediately following any termination
of such employment (the "Term End") and ending (subject to Section 8.5
below) on the later of the Termination Date (or, if then applicable,
the Extended Termination Date) and the date that is six months
following the Term End, Xxxxxx agrees that Xxxxxx shall not in any
manner, directly or indirectly, be or become interested in or be
associated, by employment or otherwise, including as an officer,
director, stockholder, partner, associate, employee, consultant, owner,
agent, coventurer or otherwise, with any other business, entity
(corporate, partnership or otherwise) or person that is (i) engaged in
any business competitive (a "Competitive Business") with any aspect of
the Business in which Xxxxxx has had direct and substantive involvement
during any portion of the term of his employment hereunder (the
"Relevant Business"); and (ii) located anywhere in the tri-state area
of New York, Connecticut and New Jersey. Notwithstanding the foregoing,
it shall not be deemed a violation of the provisions of this Section
8.2 if (x) Xxxxxx acquires or owns, directly or indirectly, not more
than three percent (3%) of the issued and outstanding voting stock of
any corporation the shares of which are regularly traded on a national
securities exchange or on the over-the-counter markets or (y) Xxxxxx is
or becomes associated with a business or entity for which such
Competitive Business both constitutes less than 5% of its net worth and
contributes less than 5% of its total revenues and profits, provided
that Xxxxxx is "chinese-walled" from, and does not directly or
indirectly communicate or work with, or in any other fashion assist or
perform services, duties or other functions for, such Competitive
Business.
8.3 Both during the term of his employment hereunder and any
Non-Compete Period, Xxxxxx agrees that Xxxxxx shall not in any manner,
directly or indirectly, whether for Xxxxxx'x own account or the account
of any other business, entity or person, interfere with, disrupt or
damage, or attempt to interfere with, disrupt or damage, the
relationship of the Company or any of its Affiliates with any business,
entity or person that is, or at any time within the six-month period
preceding the Term End was, a client or customer of the Relevant
Business, including by soliciting, encouraging, accepting or otherwise
attempting to procure or service by telephone or otherwise for or on
behalf of a Competitive Business (wherever located) accounts or
business of any such client or customer that was serviced by, or became
known to, Xxxxxx during the term of his employment hereunder.
8.4 Both during the term of his employment hereunder and
during the twelve-month period immediately following the Term End,
Xxxxxx agrees that Xxxxxx shall not in any manner, directly or
indirectly, without the Company's prior written consent, enter into any
arrangement with or otherwise solicit, entice or encourage any person
who is, or within six months prior to the Term End was, an employee of
the Company or any of its Affiliates to terminate such employee's
employment with the Company or such Affiliate to apply for or
Employment Agreement: Xxxxxx X. Xxxxxx
August 14, 1998
Page 7
accept employment with any Competitive Business. Notwithstanding the
foregoing, the provisions of this Section 8.4 shall not apply to any
employees in any aspect of the Business in which the Company or such
Affiliate has ceased to conduct operations as of the Term End.
8.5 As additional consideration, during any Non-Compete Period
following the Term End, for Xxxxxx'x performance at the request of the
Company of the covenants contained in Sections 8.2 and 8.3 above, the
Company shall pay Xxxxxx for each month during such Non-Compete Period
(the "Non-Compete Payments") an amount equal to one-twelfth (1/12th) of
Xxxxxx'x Base Salary hereunder. Notwithstanding the foregoing (or
anything to the contrary in Sections 8.2 and 8.3), the Company, by
written notice at any time to Xxxxxx, may terminate the Non-Compete
Period early and, in connection therewith, stop any further Non-Compete
Payments. In addition, if the Company determines that Xxxxxx has
breached any of Xxxxxx'x covenants contained in this Agreement,
including said Sections 8.2 or 8.3, the Company may suspend any further
Non-Compete Payments (or, if during the Term, any further payments
under Section 3 above), or offset from such payments the Company's
reasonable estimate of the damages it has suffered as the result of
such breach, in each case without prejudice to any of its rights or
remedies under this Agreement.
9. Confidential Information
Xxxxxx acknowledges that due to Xxxxxx'x position and duties
with the Company, Xxxxxx will have access to the trade secrets, client
lists, customer preferences, computer software programs, financial
models, technology practices and other proprietary and/or confidential
information (collectively, "Confidential Information") of or relating
to the Business and/or the Affiliates. Accordingly, Xxxxxx agrees that
Xxxxxx shall not at any time (whether during or after the term of his
employment hereunder) use outside the scope of Xxxxxx'x employment
hereunder or disclose to anyone any Confidential Information. At or
prior to the Term End, Xxxxxx shall return to the Company all copies of
any written (or otherwise stored, including electronically)
Confidential Information (including any notes, extracts or other
documents reflecting such information) in Xxxxxx'x possession.
10. Certain Remedies
10.1 Xxxxxx acknowledges that given Xxxxxx'x special skills
and unique responsibilities with the Company, Xxxxxx'x access to
Confidential Information and the opportunity afforded Xxxxxx by
Xxxxxx'x position with the Company to develop unique trading and
customer relationships, and given the vital importance to the Company
of its human resources and of preserving trading and customer
relationships developed at its expense, that any breach or violation,
or threatened breach or violation, by Xxxxxx of the provisions of the
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August 14, 1998
Page 8
preceding Sections 8 and/or 9 shall cause irreparable harm to the
Company, which harm cannot be fully redressed by the payment of damages
to the Company. Accordingly, Xxxxxx agrees that the Company shall be
entitled, in addition to any other right and remedy it may have, at law
or in equity, to an injunction, without the posting of any bond or
other security, enjoining or restraining Xxxxxx from any such breach or
violation or threatened breach or violation of said Sections 8 and/or
9, and Xxxxxx hereby consents to the issuance of such injunction.
Xxxxxx acknowledges and agrees that any violation of the restrictive
covenants and agreements contained in Sections 8 and/or 9 above shall
suspend the expiration of the time limits of each of those covenants
and agreements for so long as the violation continues.
10.2 Whenever possible, each provision of this Agreement shall
be interpreted in such a manner as to be effective and valid under all
applicable laws. However, in the event that any such provision or
portion thereof shall be held by an arbitrator or court of competent
jurisdiction to be invalid, illegal or unenforceable by reason of its
duration, geographical scope, extent or otherwise (the "Invalid
Provision"), then it is the specific intent of the parties hereto that
(i) for purposes of the application of the Invalid Provision in such
instance, the Invalid Provision shall be deemed modified to the extent,
but only to the extent, of such invalidity, illegality or
unenforceability, (ii) the Invalid Provision be enforced in its
remaining form (e.g., with reduced duration, geographical scope,
extent, etc., as the case may be), (iii) a suitable and equitable
provision be substituted for the modified portion of the Invalid
Provision in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such modified portion, (iv) the
interpretation or application of the Invalid Provision in any other
instances, under any other laws or jurisdictions or to any other
circumstances shall not be affected thereby and (v) all other
provisions of this Agreement shall remain in full force and effect, and
not be affected by such invalidity, illegality or unenforceability of
the Invalid Provision or any modification thereof or substitution
therefor.
10.3 Should the Company or Xxxxxx be required to engage legal
counsel and/or to institute any action, arbitration or proceeding
(including seeking an injunction) to enforce or prevent the breach or
threatened breach of any of the provisions of this Agreement and/or to
seek any other remedy at law or in equity, then the prevailing party in
such action, arbitration or proceeding (or, if there is no single
prevailing party, the party that prevails with respect to the
preponderance of the issues in dispute) shall be entitled to recover
from the other party all costs and expenses incurred thereby,
including, but not limited to, reasonable attorneys' fees, expenses and
all other costs.
10.4 This Section 10, Sections 7, 8 and 9 above and Sections
11, 12 and 17 below shall survive the Termination Date (or, if
applicable, the Extended Termination Date), the cessation of Xxxxxx'x
employment with the Company and any termination of this Agreement.
Employment Agreement: Xxxxxx X. Xxxxxx
August 14, 1998
Page 9
11. Representations and Warranties of Xxxxxx
11.1 Xxxxxx represents and warrants that Xxxxxx is free to
enter into this Agreement and to perform the duties required hereunder,
and that there are no employment contracts, restrictive covenants or
other restrictions that would be breached by or prevent the performance
of Xxxxxx'x duties hereunder.
11.2 XXXXXX REPRESENTS AND ACKNOWLEDGES THAT XXXXXX HAS
CAREFULLY READ THIS AGREEMENT, INCLUDING SECTIONS 8, 9 AND 10 ABOVE,
THAT XXXXXX HAS BEEN ADVISED BY THE COMPANY AND AFFORDED THE TIME TO
CONSULT WITH INDEPENDENT COUNSEL OF HIS CHOOSING AND THAT XXXXXX
UNDERSTANDS AND IS FREELY AGREEING TO THE PROVISIONS CONTAINED HEREIN,
INCLUDING THE RESTRICTIONS ON POST-EMPLOYMENT COMPETITION AND
SOLICITATION, FOR WHICH XXXXXX ACKNOWLEDGES RECEIPT OF ADDITIONAL AND
ADEQUATE CONSIDERATION. IN RECOGNITION OF THE FOREGOING, XXXXXX
EXPRESSLY WAIVES AND AGREES TO BE ESTOPPED FROM RAISING ANY OBJECTIONS
TO THE ENFORCEMENT OF THE POST-EMPLOYMENT RESTRICTIONS OF THIS
AGREEMENT.
12. Inventions, Discoveries, Etc.
Xxxxxx agrees promptly and fully to disclose to the Company,
and hereby assigns and transfers (and agrees to assign and transfer) to
the Company all of his right, title and interest in and to, any and all
developments, knowhow, discoveries, inventions, improvements, concepts,
ideas, writings, formulae, processes and methods (whether
copyrightable, patentable or otherwise) made, received, conceived,
acquired or written during working hours or otherwise by Xxxxxx
(whether or not at the request or upon the suggestion of the Company)
during the period of Xxxxxx'x employment with the Company, solely or
jointly with others, in or relating to any activities of the Company or
any of the Affiliates or any of their respective customers known to him
as a consequence of Xxxxxx'x employment.
13. Notices
All notices hereunder shall be in writing and delivered by
hand or sent by registered mail or overnight courier, addressed to such
party at its address referred to above, or at such other address as
such party may from time to time designate by notice to the other
party. Any such notice shall be deemed to have been given on the date
delivered by hand, the business day after deposit with an overnight
courier, or on the fifth day following the mailing thereof.
Employment Agreement: Xxxxxx X. Xxxxxx
August 14, 1998
Page 10
14. Waivers
The failure of either party to insist in any one or more
instances upon strict performance of any of the terms or conditions of
this Agreement shall not be construed as a waiver of any right granted
hereunder or of the future performance of any such term or condition.
No waiver of any term or condition of, or consent, authorization or
notice under, this Agreement shall be made except by a written
instrument, specifically referring to this Agreement, executed by the
party (in the case of the Company, by either its Chief Executive
Officer or Chief Operating Officer) charged with the waiver or
providing the consent, authorization or notice. No waiver of any breach
of any provision of this Agreement shall be deemed to constitute a
waiver of any other breach of such provision or a waiver of any breach
of any other provision of this Agreement.
15. Agreement Complete; Amendments; Counterparts
This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof, and supersedes and replaces
in its entirety the existing employment agreement, made as of September
1, 1996, between Xxxxxx and Euro Brokers Inc., which is hereby
terminated. There are no oral agreements or understandings with respect
to or affecting this Agreement. Subject to the provisions of Section
10.2, this Agreement may not be amended, supplemented, canceled or
discharged except by a written instrument specifically referring to
this Agreement and executed by each of the parties hereto. This
Agreement may be executed in two or more counterparts, all of which,
taken together, shall constitute one and the same instrument.
16. Assignment
Xxxxxx acknowledges that the services to be rendered by Xxxxxx
are personal in nature and, accordingly, agrees not to assign any of
Xxxxxx'x rights or delegate any of Xxxxxx'x duties or obligations under
this Agreement (and any such assignment or delegation shall be null and
void). The rights and obligations of the Company under this Agreement
shall inure to the benefit of, may be assigned to and shall be binding
upon, any successor or assign of the Company.
17. Governing Law and Exclusive Jurisdiction
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without reference to
its principles of conflicts of law. With respect to any claims,
disputes or controversies arising from or relating to this Agreement,
including, but not limited to, the negotiation, interpretation,
performance, termination or breach hereof, the parties hereto hereby
submit to the exclusive jurisdiction of the courts of New York State in
and
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August 14, 1998
Page 11
for New York County and/or any Federal court held therein. Each party
hereby irrevocably consents to the exercise of personal jurisdiction
over such party by such courts, agrees that venue shall be proper in
such courts and irrevocably waives and releases any and all defenses in
such courts based on lack of personal jurisdiction, improper venue
and/or forum non conveniens.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
EURO BROKERS INVESTMENT CORPORATION
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Xxxxx X. Xxxxx
Chief Operating Officer
Agreed and Accepted:
/s/ Xxxxxx Xxxxxx
-----------------------
Xxxxxx X. Xxxxxx
Solely for purposes of Section 15 hereof:
EURO BROKERS INC.
By: /s/ Xxxxx X. Xxxxx
-------------------
Xxxxx X. Xxxxx
Chief Operating Officer
