EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered
into as of the 12th day of June, 1998, by and between XXXXX X. XXXXXX,
a resident of the State of Florida ("Executive" ), and JWGENESIS
FINANCIAL CORP., a Florida corporation (the "Company") and its
subsidiaries.
1. DUTIES AND EXTENT OF SERVICES
1.1 POSITION AND DUTIES. The Company hereby enters into this
Agreement to evidence and provide for the employment of Executive as
Executive Vice President and Treasurer of the Company. Consistent
with the policies, guidelines, and directives established or
promulgated by the Board of Directors of the Company (the "Board"),
Executive shall report directly to the Chief Executive Officer of the
Company.
1.2 EXTENT OF SERVICES. Executive agrees to devote his full
working time, energy, and skill to the business of the Company and to
the promotion of the Company's interests and to discharge his duties
in good faith and in a professional manner.
2. TERM
The term of this Agreement (the "Term") shall commence on June
16, 1998 and shall continue to December 31, 2000, and shall be
automatically renewed for successive one-year terms unless either
party notifies the other in writing of its election not to renew at
least six months prior to the scheduled termination of the Term or any
renewal term. This Agreement may be earlier terminated only in
accordance with Section 7 hereof.
3. COMPENSATION
3.1 The Company shall pay Executive a base annual salary (the
"Base Salary") of $250,000.00 for each fiscal year during the Term
(prorated for any partial fiscal year), subject, however, to increase
for each fiscal year beginning January 1, 1999 by (a) an amount equal
to the increase for the previous year in the Consumer Price Index for
Urban Wage Earners and Clerical Workers, U.S. City Average All Items,
1967=100 (the "Cost of Living Adjustment") or (b) by such higher
amount as may be approved by the Board or the Compensation Committee
thereof upon consideration of such factors that it believes to be
relevant and appropriate. Each year's executive compensation analysis
shall be considered by the Board within 45 days following the end of
the immediately preceding fiscal year, adjustments to Executive's Base
Salary for the ensuing fiscal year shall be made within 75 days of the
commencement of that year, and shall be applied retroactive to such
commencement date. All Base Salary shall be paid in equal periodic
installments in accordance with the Company's normal payroll schedule.
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3.2 STOCK OPTIONS. Executive shall be issued stock options to
purchase 60,000 shares of the Company's common stock at $10.50 per
share. Such options shall be exercisable for ten (10) from June 12,
1998. 20,000 of such options shall vest and become exercisable on
June 16, 1998; 20,000 of such options shall vest and become
exercisable on June 16, 1999; and 20,000 of such options shall vest
and become exercisable on June 16, 2000, provided Executive is still
employed by the Company on those dates, except as provided for
pursuant to sections 7.4 and 7.5 of this Agreement. Additionally, the
Company shall pay to Executive the tax benefit realized by the Company
from Executive's exercise.
3.3 INCENTIVE COMPENSATION PROGRAMS. During the term of this
Agreement and any extensions thereof, the Company shall pay to
Executive 0.616% of pre tax income ("Incentive Compensation"). Pre
tax income shall mean net income plus the provision for income taxes.
If this amount is significantly different than 1% of net income, it
shall be adjusted to 1% of net income. Such Incentive Compensation
shall be paid no later than March 15, of the following year.
Additionally, the Company hereby agrees that Executive shall be
entitled to participate, to an extent consistent with his title and
Base Salary, in such incentive compensation programs, including
discretionary bonuses and stock option or other stock-based
compensation plans or programs, as may be established by the Board for
the Company's officers, other key employees, or employees as a group.
3.4 AUTOMOBILE ALLOWANCE. During the term of this Agreement and
any extensions thereof, Employee shall be entitled to an automobile
allowance of $400 per month. Executive agrees that this allowance
shall cease if Executive's automobile is greater than four (4) years
old.
4. BENEFITS
During Executive's employment hereunder, Executive shall: (a) be
eligible to participate in employee fringe benefits and any pension or
profit sharing plans that may be provided by the Company for executive
employees in accordance with the provisions of any such plans, as the
same may be in effect from time to time; (b) be eligible to
participate in any medical and health plans or other employee welfare
benefit plans that may be provided by the Company for its executive
employees in accordance with the provisions of any such plans, as the
same may be in effect from time to time; (c) be entitled to annual
paid vacation in accordance with Company policy that may be applicable
to executive employees from time to time; and (d) be entitled to sick
leave, sick pay, and disability benefits in accordance with any
Company policy that may be applicable to executive employees from time
to time.
5. CONFIDENTIAL INFORMATION
Executive agrees that he will hold in a fiduciary capacity, for
the benefit of the Company, all secret or confidential information,
knowledge, or data of the Company ("Confidential Information")
obtained by him during his employment by the Company, and will not
disclose such information to any person other than in the course of
performing his duties hereunder or as may be required by law or by
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order of a court or other regulatory authority of competent
jurisdiction, unless the Company shall consent in writing thereto.
Additionally, Executive agrees that, after termination of his
employment under this Agreement, he will not disclose, at any time, to
any person, any Confidential Information constituting a trade secret
under applicable law and, for a period of one (1) year after
termination of employment under this Agreement for cause, Executive
will not disclose Confidential Information to any person whether or
not such information constitutes a trade secret under applicable law.
For the purposes of this Section 5, information that is or becomes a
part of the public domain (other than as a result of Executive's
breach) shall not be deemed Confidential Information.
6. NO RECRUITMENT; NON-COMPETITION
6.1. NO RECRUITMENT. During Executive's employment hereunder and
for one (1) year after the termination of Executive's employment
hereunder for cause (or for such time as Executive is receiving by
agreement severance pay from the Company for termination other than
for cause), Executive will not, directly or indirectly, (a) induce or
conspire with, or attempt to induce or conspire with, any of the
officers or employees or registered representatives of the Company or
any of its subsidiaries or affiliates to terminate their employment or
relationship with or compete against the Company or any of its
subsidiaries or affiliates, or any of the clients or customers of any
such entity to terminate their relationship with any such entity, or
(b) divert or attempt to divert any or all of such clients' or
customers' business with the Company or any of its subsidiaries or
affiliates from any such entity, unless the Company shall consent in
writing thereto.
6.2 NON-COMPETITION. During Executive's employment hereunder
and for one (1) year after the termination of Executive's employment
hereunder for cause, Executive will not, directly or indirectly, for
any reason, for his own account, or on behalf of or together with any
other person, be engaged as an officer, director, employee,
independent contractor, consultant or advisor, or sales representative
of any kind, or as an owner, co-owner, or other investor of or in, a
business that provides securities brokerage, corporate finance, asset
management, capital formation, investment banking, financial advisory,
or other services in competition with the business engaged in by the
Company within the continental United States on the date hereof or, to
the extent permitted by and enforceable under applicable law, in which
the Company is so engaged on the date of Executive's termination.
Notwithstanding the foregoing, Executive may own and hold as a
passive investment up to one percent (1%) of the outstanding capital
stock of a competing entity if that class of capital stock is listed
for trading or quotation on a national or regional stock exchange
registered with the SEC or on The Nasdaq Stock Market.
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6.3 DAMAGES. Because of the difficulty in measuring the
economic losses that may be incurred by the Company as a result of any
breach by Executive of the covenants in Sections 6.1 and 6.2, and
because of the immediate and irreparable damage that could be caused
to the Company for which it would have no other adequate remedy,
Executive agrees that the Company may enforce the provisions of
Section 6.1 and 6.2 by any equitable or legal means, including seeking
an appropriate injunction or restraining order against Executive if a
breach of any of those provisions occurs.
6.4 REASONABLE RESTRAINT. The parties hereto each agree that
Sections 6.1, 6.2 and 6.3 impose a reasonable restraint on Executive
in light of the position of Executive with the Company, the activities
and business of the Company on the date hereof, and the current
business plans of the Company (of which Executive acknowledges that he
is aware).
6.4 SEVERABILITY; REFORMATION. The covenants in this Section 6
are severable and separate, and the unenforceability of any specific
covenant in this Section 6 is not intended by any party hereto to, and
shall not, affect the provisions of any other covenant in this Section
6. If any court of competent jurisdiction shall determine that the
scope, time, or territorial restrictions set forth in Section 6.2 are
unreasonable as applied to Executive, the parties hereto acknowledge
their mutual intention and agreement that those restrictions be
enforced to the fullest extent the court deems reasonable, and thereby
shall be reformed to that extent as applied to Executive.
6.5 INDEPENDENT COVENANT. All of the covenants in this Section
6 are intended by each party hereto to be, and shall be construed as,
an agreement independent of any other provision in this Agreement, and
the existence of any claim or cause of action of Executive against the
Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of any covenant
in this Section 6. It is specifically agreed that the period specified
in Section 6.2 shall be computed by excluding from that computation
any time during which Executive is in violation of any provision of
Section 6.2.
6.6 MATERIALITY. The Company and Executive hereby agree that
this Section 6 is a material and substantial part of this Agreement.
7. TERMINATION OF EMPLOYMENT
7.1 BY COMPANY. Executive's employment under this Agreement may
be terminated by the Company at any time for cause. For the purposes
of this Section 7.1, "cause" shall mean: (a) the conviction of
Executive for an act or acts of dishonesty by Executive that
constitutes a felony under applicable law and that subjects the
Company to substantial loss or detriment, as determined by a majority
of the members of the Board; (b) the imposition of disciplinary action
against Executive, pursuant to a final non-appealable action, by a
regulatory body having disciplinary authority over members of
Executive's profession, which disciplinary action prevents Executive
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from performing his duties hereunder for a period of not less than
thirty-one (31) consecutive days and is determined by a majority of
the members of the Board to have caused substantial loss or detriment
to the Company; or (c) Executive's habitual neglect of, or refusal to
perform, his duties under this Agreement, or deliberate and
intentional disregard of lawful instructions from the Board; provided,
however, that Executive shall have received written notice of such
alleged neglect, refusal, or disregard from the Board and shall have
failed within thirty (30) days after the receipt of such notice to
cure and correct such alleged neglect, refusal, or disregard (or to
begin in good faith to effect such cure and correction if such cannot
practically be completed within such 30-day period).
If Executive's employment is terminated under this Section 7.1,
the Company shall have no further obligation to Executive hereunder
except to pay to him, in cash on the effective date of such
termination, any amount accrued but unpaid hereunder as of the
termination date, and except that the rights of Executive (and the
obligations of the Company) under Section 8 shall continue without
regard to such termination. If Executive's employment is terminated
by the Company for cause, as provided above, this Agreement shall
terminate and neither party shall have any further obligation to the
other, except as provided above, and except for Executive's agreements
contained in Sections 5 and 6.
7.2 BY DEATH. If Executive dies, this Agreement shall terminate
on the date of Executive's death. In such event, the Company shall
pay promptly to Executive's designated beneficiary or, if no
designated beneficiary, to Executive's estate, any compensation or
other amount earned or accrued as of the date of Executive's death but
not yet paid and any other payments to which Executive is entitled
pursuant to Section 3.1.
7.3 BY DISABILITY. If Executive becomes unable to perform his
normal duties hereunder as a result of his incapacity due to physical
or mental illness for a period of at least one hundred twenty (120)
consecutive days, the Company shall have the option to terminate this
Agreement upon the expiration of such period (the "Disability Date").
In such an event, the Company shall pay to Executive (within thirty
(30) days thereof) all amounts accrued but unpaid as of the Disability
Date and, in the manner and at the times set forth in Section 3.1
above, an amount equal to the difference between (a) the Base Salary
payable for the remainder of the Term and (b) 1.4285714 times the sum
of all payments made to Executive under any disability insurance
coverage provided to him pursuant to Section 4 hereof.
7.4 BY DISCHARGE. If Executive's employment under the terms of
this Agreement is terminated by the Company for any reason other than
cause, death, or disability (in any such case a "Discharge"), then (a)
the Company shall pay to Executive, on the date of Discharge, a lump
sum cash amount equal to the greater of (i) 12 months of Executive's
Base Salary and Incentive Compensation at the time of the Discharge
and (ii) Executive's Base Salary, without regard to Cost of Living
Adjustments, payable for the remainder of the Term plus actual
Incentive Compensation; and (b) Executive shall immediately become
fully vested in, and be entitled to exercise for a period of 90 days
after the date of Discharge, all outstanding stock options not
previously vested or exercised, if any. Such payment shall be in
addition to other payments, if any, to which Executive is entitled
pursuant to Section 4 hereof, and the rights of Executive (and the
obligations of the Company) under Section 8 shall continue without
regard to such Discharge.
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7.5 BY EXECUTIVE. If (a) the Company significantly reduces
Executive's authority or duties as described in Section 1.1 (or
Executive's standing within the Company as a function of Executive's
relationships with the Board or with other members of management of
the Company) other than at the direction of the New York Stock
Exchange or similar regulatory authority with jurisdiction over the
Company or any of its subsidiaries or (b) a change of control of the
Company occurs that is not approved by Executive, then, in any such
event, Executive may either terminate this Agreement and such
termination shall be treated as if it were a Discharge under Section
7.4; provided that the Board shall have received written notice from
Executive of any reduction described in clause (a) above upon which
Executive proposes to base a termination and the Company shall have
failed within thirty (30) days thereafter to reverse the situation or
extend the term of this Agreement for two (2) years from the date of
the change of control. Additionally, in the event of a change of
control as defined herein, Executive shall become fully vested in, and
entitled to exercise for a period of 90 days (or greater if Executive
remains employed with the Company) after the change of control, all
outstanding options not previously vested or exercised, if any. For
purposes hereof, "change of control" shall mean (c) the acquisition by
a person or entity other than Executive or a now existing shareholder
of the Company (or any affiliate of Executive or such a shareholder of
the Company), whether in one or several transactions, by exchange,
merger, consolidation, assignment, stock spin-off, stock split-up, or
other transaction, of more than thirty-five percent (35%) of the
voting stock of the Company, or of the right to vote or to direct the
voting of such percentage of voting stock; or (d) a change in the
membership of the Board of Directors of the Company such that a
majority of the members are persons who are not Continuing Directors.
For purposes of this Agreement, a "Continuing Director" is a person
who is a member of the Board of Directors of the Company on the date
hereof or a person who is elected as a director of the Company upon
the nomination by or approval of a majority of the Continuing
Directors in office.
8. LEGAL EXPENSE REIMBURSEMENTS
8.1 INDEMNIFICATION LEGAL EXPENSES. Without limiting the scope
of any indemnification to which Executive is or may be entitled under
applicable law or pursuant to the Company's Articles of Incorporation,
Bylaws, or contract for indemnification of officers or directors of
the Company, the Company shall indemnify and hold Executive harmless
from and against the costs and expenses (including attorneys' fees and
costs) of Executive's defense with respect to any suit, investigation,
or other action or proceeding instituted or threatened against
Executive by any person, agency, body, or other entity that is based
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on, arises out of, or is related to any position that Executive has or
had with the Company or any of its subsidiaries or other affiliates or
otherwise to the performance by Executive of any duty or
responsibility under this Agreement. To the maximum extent permitted
by applicable law, the Company agrees to advance to Executive the
amount of such costs and expenses as they are incurred by Executive
(upon written request by Executive therefor, accompanied by reasonably
detailed explanation of the basis for such advance(s)), and Executive
agrees, to the extent that such agreement may be required by
applicable law to permit such advances, to account to the Company for
such advance(s), including to refund to the Company any such amount
that it may ultimately be determined (according to applicable law)
that Executive is not entitled to receive as indemnification or
reimbursement for such costs and expenses as a result of the final
disposition of the underlying suit, investigation, or other action or
proceeding in respect of which such costs or expenses were incurred.
The Company agrees to take such corporate action as may be necessary
or advisable, if requested by Executive, to authorize, approve, or
effectuate and implement the rights conferred upon Executive in this
Section 8.1.
8.2 DISPUTES RELATING TO AGREEMENT. If (a) a Dispute (as
hereinafter defined) arises, and (b) either a court, governmental
agency, or similar body of competent jurisdiction issues a final,
nonappealable order, judgment or decree (a "Final Order"), or
Executive and the Company reach a definitive settlement of the Dispute
(a "Settlement"), that sustains the position in the Dispute taken by
Executive prior to the Dispute Date (as hereinafter defined), then the
Company shall reimburse Executive for his reasonable legal expenses
actually incurred from and after the Dispute Date in connection with
obtaining the Final Order or Settlement, to the extent such expenses
exceeded any award for legal expenses contained in any such Final
Order. For purposes hereof, the "Dispute Date" shall be ten (10)
business days after the date upon which Executive delivers to the
Company, in accordance with Section 9.7, written notice setting forth
the particulars of a matter covered by this Agreement about which
Executive and the Company disagree (the "Dispute") and stating his
intention to seek legal counsel for assistance regarding such matter.
Except as expressly set forth above, the Company undertakes no
obligation to advance, reimburse, or otherwise pay or assume any
expense of Executive incurred in interpreting or enforcing this
Agreement.
8.3 SURVIVAL. The provisions of this Section 8 shall survive
any termination of Executive's employment or of this Agreement.
9. MISCELLANEOUS
9.1 ASSIGNMENT. This Agreement is personal in nature and may
not be assigned by either party without the express written consent of
the other party; provided, however, that the provisions of this
Agreement shall inure to the benefit of and be binding upon each
successor of the Company, whether by merger, consolidation, transfer
of all or substantially all assets, or otherwise.
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9.2 WAIVER. The waiver by any party to this Agreement of a
breach by the other party of any of the provisions of this Agreement
shall not operate as or be construed as a waiver of any different or
subsequent breach.
9.3 ENTIRE AGREEMENT. This Agreement constitutes and expresses
the entire agreement of the parties with respect to the subject matter
hereof.
9.4 GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of
Florida (without regard to its rules of conflicts of laws).
9.5 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement,
whether express or implied, is intended to or shall be construed to
confer upon or give any person not a party hereto any rights or
remedies hereunder, whether as a third-party beneficiary or otherwise.
9.6 SEVERABILITY. Should any clause or any other portion of
this Agreement be determined to be void or unenforceable for any
reason, such determination shall not affect the validity or
enforceability of any other clause or portion of this Agreement, all
of which shall remain in full force and effect, unless the result of
any such invalidity or unenforceability shall be to cause a material
failure of consideration to the party seeking to sustain the validity
or enforceability of the subject provision.
9.7 NOTICES. All notices and other communications hereunder
shall be deemed to have been duly given on the date of receipt if
delivered personally or three (3) business days after deposit in the
United States Mail, if in writing and sent to the Company at its
address provided following its signature to this Agreement (Attention:
XXXX X. XXXXX), or to Executive at the address provided following his
signature to this Agreement, as the case may be, or to such other
address as one party shall have given to the other in accordance with
this provision.
9.8 EFFECT OF CAPTIONS AND HEADINGS. The captions and headings
contained herein are for convenience only, do not constitute a part of
this Agreement, and shall not be used in construing it.
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IN WITNESS WHEREOF, the parties have executed this Agreement, as
an instrument under seal, as of the day and year first written above.
[SEAL] "Company"
Attest: JWGENESIS FINANCIAL CORP.
________________________________ By: /s/ Xxxx X. Xxxxx
Secretary or Assistant Secretary Xxxx X. Xxxxx
Executive Vice President and
Chief Financial Officer
Address: 000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
"Executive"
/s/ Xxxxx X. Xxxxxx (SEAL)
Xxxxx X. Xxxxxx
Address:
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