EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT entered into as of June 18, 1999 by and between
INTERNET FINANCIAL SERVICES INC., a Delaware corporation, with principal offices
at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Employer") and XXXXXX XXXXX,
residing at 00 Xxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("Executive").
W I T N E S S E T H :
A. Employer, directly and through its subsidiaries, X.X. Xxxxxx, Inc. and
Computer Strategies, Inc., is engaged in the business of developing software
for, and providing for use by its ultimate customers of, electronic
brokerage services and electronic trading programs for use by professional
and other retail customers including allowing such customers to trade
through their own home or office computers, and services incident thereto,
operating a block trading desk and disseminating financial and trading
information ("Employer's Business");
B. Employer desires to employ Executive, and Executive desires to accept such
employment, on the terms and conditions set forth in this Agreement.
W I T N E S S E T H:
In consideration of the facts mentioned above, and of the covenants and
conditions set forth below, the parties agree as follows:
1. Employment
(a) During the Term of Employment as defined in Section 2, Employer
agrees to employ Executive as an executive, subject to the
direction and control at all times of the Chairman of the Board of
Directors and Chief Executive and Chief Operating Officers of
Employer and the Board of Directors of Employer. Executive agrees
to act in the foregoing capacity, in accordance with the terms and
conditions contained in this Agreement. It is anticipated that
Executive will have the title of Senior Vice President and Chief
Financial Officer of Employer.
(b) Executive shall devote all of his working time to Employer's
Business as conducted from time to time. Executive shall render
services, without additional compensation, in connection with the
operation of Employer's Business, including activities of
affiliates and subsidiaries of the Employer as may exist from time
to time, including, without limitation, X.X. Xxxxxx, Inc. and
Computer Strategies, Inc.
2. Term
The term of Executive's employment under this Agreement shall commence on
the date hereof and end on May 10, 2001 (the "Initial Term"). Thereafter,
this Agreement shall be automatically renewed and extended for consecutive
one year renewal terms, unless either party sends to the other party a
notice of non-renewal at least ninety (90) days prior to the expiration of
the Initial Term or any renewal term (the "Renewal Term"). The Initial Term
and Renewal Term are subject to earlier termination as set forth in Section
5. The actual term of employment is defined as "Term of Employment."
3. Compensation
(a) Employer shall pay to Executive an annual base salary of $136,000 per
annum. Thereafter, the amount of Executive's annual base salary shall be subject
to annual review by the Board of Directors of Employer, provided, however, that
in no event shall such base salary be less than $150,000. All payments shall be
made in equal monthly installments, in arrears, or such other installments as
may be consistent with the payroll practices of Employer for its executives.
(b) Upon commencement of employment, Executive shall also be issued options
at the then-fair market value to purchase 10,000 shares of the common stock of
Employer. The issuance, vesting (25% on the first anniversary; 30% on the second
anniversary and the balance of 45% on the third anniversary), termination and
exercise of any such options are governed by the terms of a separate option
agreement that must be signed by Executive prior to the issuance of the
aforementioned options.
(c) Employer's practice is to conduct annual performance and financial
reviews of personnel and Employer shall conduct such reviews of Executive's
performance for the purpose of determining whether Executive's base salary shall
be increased. At such review, the Board of Directors shall determine whether
Executive's performance has been satisfactory for the past 12 months; if such is
the determination, Executive shall then receive another 10,000 options of the
Employer at the then market value with a similar vesting schedule (running from
and after the future grant date) as in subparagraph (b) above.
(d) In addition to the compensation set forth above, Executive shall receive
an annual bonus, calculated from the time of employment. The first calculation
period ("Calculation Period") shall commence as of the first day of the month in
which such employment occurs and end twelve months thereafter, and each
Calculation Period shall run for a consecutive twelve month period, following
expiration of the prior Calculation Period. Such bonus shall only be due (i) if
the Employer, whose determination shall be final, as contained on its internally
prepared financial statements, evidences at least a 30% increase in gross
revenues during a Calculation Period in excess of the gross revenues for the
corresponding twelve month period in the prior year, and (ii) senior management
of Employer determines that Executive has made a contribution to such revenue
increase. If both preconditions are met, then Executive shall receive a bonus
equal to 15% of the base compensation payable to him during such twelve month
Calculation Period. If, at the termination or expiration of this Employment
Agreement, there is a Calculation Period through the date of termination or
expiration of less than twelve months, then the precondition of entitlement to
bonus shall first be determined, and, if Executive shall be determined to be
entitled to a bonus, the bonus shall be calculated, on a pro rata
basis, by multiplying the gross revenues or bonus amount, as the case may be, by
a fraction whose numerator consists of the number of months from the start of
the Calculation Period to the termination or expiration of his employment
hereunder, and whose denominator shall be twelve months. It is anticipated that
any bonus determination shall be based upon the contributions of Employee to the
success of Employer. Any payments to be made under this Section 3(d) shall be
paid within 120 days of the end of the Calculation Period for which such
incentive bonus relates.
4. Additional Executive Benefits
(a) Employer shall reimburse Executive for all expenses reasonably incurred
by Executive in connection with the performance of Executive's duties under this
Agreement against Executive's pre-submitted documented vouchers for such
expenses, which must be approved in writing prior to the incurrence of such
expense. It is anticipated that Employer shall establish a reimbursement policy
and a budget for expenditures so that the approval procedure will be expedited.
(b) Executive shall be entitled to reasonable vacation periods each year
(which shall be in accordance with Employer's policy for executives) and other
general medical and Executive benefit plans (including profit sharing or pension
plans) as shall have been established and are continuing for executives of
Employer.
5. Termination
(a) Employer may terminate this Agreement for cause."
(b) "Cause" within the meaning of this Agreement shall mean any one of:
(i) Executive's breach of the provisions of Section 6.
(ii) Executive's failure or refusal to follow any specific reasonable
written directions of the Board of Directors of Employer (which
directions include a statement to the effect that failure or
refusal to follow such directions shall constitute cause for
termination of the employment of Executive hereunder).
(iii) Executive's failure or refusal to perform Executive's duties in
accordance with Section 1 hereof; provided, however, that no
discharge "for cause" under this paragraph 5(b)(iii) shall be
deemed effective unless Executive shall have first received
written notice from the Board of Directors or Chief Executive of
Chief Operating Officer of Employer advising Executive of the
specific acts or omissions alleged to constitute a failure or
refusal to perform Executive's duties, and such failure or
refusal continues after Executive shall have had a reasonable
opportunity (which shall be defined as a period of time
consisting of at least ten (10) days from the date Executive
receives said notice) to correct the acts or omissions so
complained of.
(iv) Failure by Executive to comply in any material respect with the
terms of this Agreement, if any, or any written policies or
directives of the Board as determined by the Board in good faith
in its sole discretion, which has not been
corrected by Executive within 10 days after written notice from
the Employer of such failure.
(v) Physical incapacity or disability of Executive to perform the
services required to be performed under this Agreement. For
purposes of this Section 5(b)(v), Executive's incapacity or
disability to perform such services for any cumulative period of
one hundred twenty (120) days during any twelve-month period, or
for any consecutive period of ninety (90) days, shall be deemed
"cause" hereunder.
(vi) Executive is convicted of, pleads guilty to, confesses to any
felony or any act of fraud, misappropriation or embezzlement.
(vii) Executive engages in a fraudulent act or dishonest act to the
damage or prejudice of Employer and its affiliates or in conduct
or activities damaging to the property, business or reputation
of Employer and/or its affiliates, all as determined by the
Board in good faith in its sole discretion.
(viii) If Employer notifies Executive of its election to terminate this
Agreement for cause, this termination shall become effective at
the time notice is deemed to have been given in accordance with
Section 9.
(ix) This Agreement shall automatically terminate upon the death of
Executive.
6. Non-Competition, Non-Solicitation, Non-Disclosure,
Shop Rights, Xxxxxxx Xxxxxxx and Jurisdictional Matters.
A. Non-Competition
As a material inducement to Employer to enter into the Agreement and to
perform its obligations hereunder, Executive covenants and agrees that during
Executive's period of employment with Employer, and for a period of two (2)
years from the date of expiration or termination of such employment (the
"Restricted Period"), neither Executive, any of Executive's agents or anyone
acting on Executive's behalf, shall directly or indirectly, either as an
Executive, employer, agent, investor, principal, partner, shareholder (except as
a holder of less than 1% of the issued and outstanding voting stock of a
publicly held corporation), corporate officer, director, independent contractor,
or in any other individual or representative capacity, engage or participate in
engage or participate in any brokerage firm, whose substantial or primary
business is online or electronic retail brokerage and trading or a institutional
block trading desk, or any division, subsidiary or line of business of any other
securities brokerage firm wherein Executive shall be involved with online or
electronic brokerage or trading activities or facilities or an institutional
block trading desk, in the United States or any foreign country in which
Employer has offices at the date of expiration or termination of Executive's
employment.
B. Non-Solicitation.
During the Restricted Period, Executive covenants and agrees that Executive
will not, directly or indirectly, either for itself or for any other person or
business entity, (i) solicit any Executive of Employer to terminate his
employment with Employer or employ such individual during his employment with
Employer and for a period of one (1) year after such individual terminates his
employment with Employer, or (ii) make any disparaging statements concerning
Employer, Employer's business or its officers, directors, or Executives, that
could injure, impair or damage the relationships between Employer or Employer's
business on the one hand and any of the Executives, customers or suppliers of
Employer's business, or any lessor, lessee, vendor, supplier, customer,
distributor, Executive or other business associate of Employer's business.
C. Non-Disclosure and Non-Use.
(i) Description of Confidential Information. For purposes of this
Section, Confidential Information means any information disclosed during the
Restricted Period, which is clearly either marked or reasonably understood as
being confidential or proprietary including, but not limited to, information
disclosed in discussions between the parties in connection with technical
information, data, proposals and other documents of Employer pertaining to its
business, products, services, finances, product designs, plans, customer lists,
public relations and other marketing information and other unpublished
information. Confidential Information shall include all tangible materials
containing Confidential Information including, but not limited to, written or
printed documents and computer disks and tapes, whether machine or user
readable.
(ii) Standard of Care. Executive shall protect the Confidential
Information from disclosure to any person other than other Executives of
Employer who have a need to know, by using the same degree of care, but no less
than a reasonable degree of care, to prevent the unauthorized use,
dissemination, or publication of the Confidential Information as Executive is
required to use to protect such Confidential Information.
(iii) Exclusion. This Section imposes no obligation upon Executive with
respect to information that: (a) was in Executive's possession before receipt
from Employer; (b) is or becomes a matter of public knowledge through no fault
of Executive; (c) is rightfully received by Executive from a third party who
does not have a duty of confidentiality; (d) is disclosed under operation of
law, except that Executive will disclose only such information as is legally
required and give Employer prompt prior notice; or (e) is disclosed by Executive
with Employer's prior written consent.
(iv) Stock Trading. If the information disclosed hereunder is material
non-public information about the Employer, then the Executive agrees not to
trade in the securities of Employer, including securities of Employer's parent,
Internet Financial Services Inc., or in the securities of or any appropriate and
relevant third party until such time as no violation of the applicable federal
and state securities laws would result from such securities trading.
(v) Return of Confidential Information. The Executive will immediately
destroy or return all tangible material embodying Confidential Information (in
any form and including, without limitation, all summaries, copies and excerpts
of Confidential Information) upon the earlier of (i) the
completion or termination of the dealings between the Employer and Executive
under the Agreement or (ii) at such time that Employer may so request.
(vi) Notice of Breach. Executive shall notify Employer immediately upon
discovery of any unauthorized use or disclosure of Confidential Information, or
any other breach of the Agreement by Executive, and will cooperate with Employer
in every reasonable way to help Employer regain possession of Confidential
Information and prevents its further unauthorized use.
(vii) Injunctive Relief. The Executive acknowledges that disclosure or
use of Confidential Information in violation of the Agreement could cause
irreparable harm to the Employer for which monetary damages may be difficult to
ascertain or an inadequate remedy. The Executive therefore agrees that the
Employer will have the rights in addition to its other rights and remedies, to
seek and obtain injunctive relief from any violation of the Agreement.
D. Shop Rights and Inventions, Patents, and Technology.
Executive shall promptly disclose to Employer any developments, designs,
patents, inventions, improvements, trade secrets, discoveries, copyrightable
subject matter or other intellectual property conceived, either solely or
jointly with others, developed, or reduced to practice by Executive during
Executive's Term of Employment in connection with the services performed for
Employer (the "Company Developments") and shall treat such information as
proprietary to Employer. Executive agrees to assign to Employer any and all of
Executive's right, title and interest in the Company Developments and Executive
hereby agrees that Executive shall have no rights in the Company Developments.
Any and all Company Developments in connection with the services performed for
Employer pursuant to the Agreement are "works for hire" created for and owed
exclusively by Employer.
7. Representation and Indemnification by Executive.
Executive hereby represents and warrants that he is not a party to any
agreement, whether oral or written, which would prohibit him from being employed
by Employer, and Executive further agrees to, and does hereby, indemnify and
hold Employer, its directors, officers, shareholders and agents, harmless from
and against any and all losses, cost or expense of every kind, nature and
description (including, without limitation, whether or not suit be brought, all
reasonable costs, expenses and fees of legal counsel), based upon, arising out
of or otherwise in respect of any breach of such representation and warranty.
8. Injunctive Relief.
The parties acknowledge that the services to be rendered hereunder by
Executive are special, unique and of extraordinary character, and that in the
event of a breach or a threatened breach of Executive of any of Executive's
obligations under this Agreement, Employer will not have an adequate remedy at
law. Accordingly, in the event of any breach or threatened breach of Executive,
Employer shall be entitled to such equitable and injunctive relief as may be
available to restrain Executive and any business, firm, partnership, individual,
corporation or entity participating in the breach of this agreement. Nothing in
this agreement shall be construed as prohibiting Employer from pursing any other
remedies available at law or in equity for such breach or threatened breach,
including the recovery of damages and the immediate termination of the
employment of Executive under this agreement.
9. Notices.
All notices shall be in writing and shall be delivered personally (including
by courier), sent by facsimile transmission (with appropriate documented receipt
thereof), by overnight receipted courier service (such as UPS or Federal
Express) or sent by certified, registered or express mail, postage prepaid, to
the parties at their address set forth at the beginning of this Agreement with
Employer's copy being sent to Employer at its then principal office. Any such
notice shall be deemed given when so delivered personally, or if sent by
facsimile transmission, when transmitted, or, if mailed, forty-eight (48) hours
after the date of deposit in the mail. Any party may, by notice given in
accordance with this Section to the other party, designate another address or
person for receipt of notices hereunder. Copies of any notices to be given to
Employer shall be given simultaneously to: Xxxxxxx & Xxxxxx LLP, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxxxx, Esq..
10. Miscellaneous.
(a) This Agreement shall be governed in all respects, including
validity, construction, interpretation and effect, by New York law.
(b) This Agreement may be amended, superseded, canceled, renewed or
extended, and the terms hereof may be waived, only by a written
instrument signed by authorized representatives of the parties or, in
the case of a waiver, by an authorized representative of the party
waiving compliance. No such written instrument shall be effective
unless it expressly recites that it is intended to amend, supersede,
cancel, renew or extend this Agreement or to waive compliance with one
or more of the terms hereof, as the case may be. No delay on the part
of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of
any party of any such right, power or privilege, or any single or
partial exercise of any such right, power or privilege, preclude any
further exercise thereof or the exercise of any other such right, power
or privilege. The rights and remedies herein provided are cumulative
and are not exclusive of any rights or remedies that any party may
otherwise have at law or in equity.
(c) If any provision or any portion of any provision of this Agreement
or the application of any such provision or any portion thereof to any
person or circumstance,
shall be held invalid or unenforceable, the remaining portion of such
provision and the remaining provisions of this Agreement, or the
application of such provision or portion of such provision as is held
invalid or unenforceable to persons or circumstances other than those
as to which it is held invalid or unenforceable, shall not be affected
thereby and such provision or portion of any provision as shall have
been held invalid or unenforceable shall be deemed limited or modified
to the extent necessary to make it valid and enforceable; in no event
shall this Agreement be rendered void or unenforceable.
(d) In view of Employer's need and desire to maintain a proper working
environment with suitable demeanor of its Executives and in light of
Employer's sensitivity to the views of its customers and potential
customers and to regulatory bodies having jurisdiction over Employer's
business activities, Employer has instituted a policy of requiring
Executives to be subject to, at Employer's sole reasonable discretion,
alcohol and drug testing procedures and requirements. Executive
specifically consents to the same, agrees to be subject to whatever
procedures may now or hereinafter be put in place covering such testing
and understands and agrees that Executive's consent to this is a
material inducement to Employer to enter into this agreement and to
provide for the employment of Executive hereunder.
(e) The headings to the Sections of this Agreement are for convenience
of reference only and shall not be given any effect in the construction
or enforcement of this Agreement.
(f) This Agreement shall inure to the benefit of and be binding upon
the successor and assigns of Employer, but no interest in this
Agreement shall be transferable in any manner by Executive.
(g) This Agreement constitutes the entire agreement and understanding
between the parties and supersedes all prior discussions, agreements
and undertakings, written or oral, of any and every nature with respect
thereto.
(h) This Agreement may be executed by the parties hereto in separate
counterparts which together shall constitute one and the same
instrument.
(i) In the event of the termination or expiration of this Agreement,
the provisions of Sections 6, 7 and 8 hereof shall remain in full force
and effect, in accordance with their respective terms.
IN WITNESS WHEREOF, this Agreement has been executed as of the date stated
at the beginning of this Agreement.
INTERNET FINANCIAL SERVICES INC.
By: /s/ Xxxxx Xxxxxxx
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Title: President & Chief Operating Officer
/s/ Xxxxxx Xxxxx
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Executive - Xxxxxx Xxxxx
