EMPLOYMENT AGREEMENT
Exhibit
10.27
This
EMPLOYMENT AGREEMENT (the “Agreement”)
is
dated as of July 10, 2000, and is entered into between Asset Alliance
Corporation, a Delaware corporation (the “Company”),
and
Xxxxxxx X. Xxxxx (the “Employee”).
WHEREAS,
upon the terms and subject to the conditions of this Agreement, the Company
desires to employ the Employee and the Employee desires to accept employment
by
the Company;
NOW,
THEREFORE, in consideration of the mutual covenants herein contained and for
other good and valuable consideration, receipt of which is hereby acknowledged,
the parties, intending to be legally bound, agree as follows:
1. Employment
and Term.
(a) The
Employee shall serve as Senior Vice President and Chief Financial Officer of
the
Company and in such other executive managerial position or positions with the
Company or its subsidiaries or affiliates as shall hereafter be designated
by
the Board of Directors of the Company (the “Board”)
and
shall perform such managerial duties consistent with the usual duties of an
officer of his status. The Employee shall report to and carry out the lawful
directions of the Company’s President and Executive Vice President. The
Employee’s employment shall be on the terms and conditions set forth herein, and
the Employee hereby accepts such employment and agrees to devote substantially
all of his business time to the faithful and diligent performance of the duties
provided herein.
(b) The
term
of the Employee’s employment by the Company shall commence as of July 10, 2000
(the “Effective
Date”)
and
shall continue for a period of one year from such date (the “Initial
Employment Period”),
which
Initial Employment Period shall be automatically extended for an additional
one
year period on each anniversary of this Agreement (such that the remaining
term
as of each anniversary shall be one year) (each a “Renewal
Period”)
unless
and until the Employee’s employment is terminated pursuant to Section 3
hereof.
2. Compensation.
(a) Salary.
The
Company shall compensate the Employee with a base salary of $250,000 for the
Initial Employment Period, prior to any deductions for participation in the
Company’s SEP, commencing on the Effective Date and payable in accordance with
the normal payroll practices of the Company. The base salary shall be reviewed
annually but shall not be less than $250,000 per annum.
(b) Incentive
Bonus.
The
Company shall pay Employee additional compensation determined pursuant to the
terms of a compensation plan to be developed by the Board; provided, however,
the Employee shall be eligible to receive not less than $50,000 during the
Initial Employment Period pursuant to such plan, it being understood that such
compensation shall be variable and may not result in any payment to
Employee.
(c) Discretionary
Bonus.
Employee shall receive a discretionary annual bonus that shall not be less
than
$100,000 during the Initial Employment Period or during any Renewal Period.
Such
bonus shall be paid prior to March 15 of each year during the Initial Employment
Period or during any Renewal Period.
(d) Stock
Options.
Subject
to the approval of the Company’s Board, the Company shall grant to the Employee
on the Effective Date options to purchase 150,000 shares of the Company’s Common
Stock on the following terms and the other terms set forth in the form of option
certificate delivered to the Employee herewith: (1) the options shall be
exercised within ten (10) years from the date of grant; (2) 30,000 options
shall
vest and become exercisable at the end of the Initial Employment Period and
every Renewal Period thereafter until all options have vested and become
exercisable; (3) the exercise price shall be $12 per share; and (4) the options
shall become immediately exercisable upon Employee’s termination by the Company
following a Change of Control (as defined in Section 3(h) hereof).
(e) Benefits.
The
Employee shall be entitled to participate in any Company sponsored health
insurance plan and the Company’s SEP, all on such terms as the Board shall
determine, and such other employee benefits as the Board may hereafter make
available to the executives of the Company.
(f) Expenses.
The
Company shall pay or reimburse the Employee for all expenses normally reimbursed
by the Company and reasonably incurred by him in furtherance of his duties
hereunder including, without limitation, travel expenses, meals, hotel
accommodations and the like upon submission by him of vouchers or an itemized
list thereof prepared in compliance with such rules relating thereto as the
Board may, from time to time, adopt and as may be required in order to permit
such payments as proper deductions to the Company under the Internal Revenue
Code of 1986, as amended (the “Code”),
and
the rules and regulations adopted pursuant thereto now or hereafter in
effect.
(g) Vacations.
During
each year of employment, the Employee shall be entitled to paid vacations for
three weeks.
3. Termination.
(a) This
Agreement shall be terminated upon the happening of any of the following events:
(i) in the case of a termination by the Company for Cause (as defined in Section
3(e) hereof), immediately upon written notice of termination; (ii) in the case
of other terminations, whenever the Company or the Employee shall give advance
written notice of termination 60 days prior to the end of the Initial Employment
Period and every Renewal Period thereafter, in which event the Agreement shall
be terminated on the day before the anniversary of this Agreement; (iii) upon
the death of the Employee; or (iv) upon the Permanent Disability (as such term
is defined in Section 3(f) hereof) of the Employee.
2
(b) In
the
event that the Employee’s employment with the Company is terminated by the
Company without Cause (as defined in Section 3(e) hereof) or is terminated
by
the Employee for Good Reason (as defined in Section 3(g) hereof), then during
the period from the effective date of termination through the date which is
six
months from the date of such effective date of termination, the Employee shall
continue to receive the full amount of his then current base salary plus all
other benefits to which the Employee is entitled pursuant to Section 2(e) hereof
and otherwise (including, without limitation, the continued vesting and
exercisability during such period of all stock options held by the Employee);
provided, however, that if such termination follows a Change of Control (as
defined in Section 3(h) hereof), then (i) all unvested options shall vest
immediately and become exercisable upon the date the Employee’s employment is
terminated and (ii) the Employee shall be entitled to receive the unpaid portion
of his base salary through the 365th day following the end of the then-current
term of this Agreement.
(c) In
the
event the Employee’s employment with the Company is terminated upon the
Employee’s death or Permanent Disability (as such term is defined in Section
3(f) hereof), the Employee or his legal representative shall continue to receive
his then current base salary for a 6-month period and all stock options held
by
Employee shall, to the extent vested, continue to be exercisable during such
period.
(d) In
the
event of a termination of Employee by the Company for Cause (as defined in
Section 3(e)), the Company shall not be obligated to pay Employee any
compensation or benefits after the date of termination and Employee must
exercise any vested stock options held by Employee within 30 days of such
date.
(e) For
purposes hereof, “Cause”
shall
mean any of the following: (i) dishonesty of the Employee detrimental to the
best interests of either the Company or its affiliates; (ii) a breach of any
fiduciary duty or other act of dishonesty by the Employee with respect to the
Company or any affiliate thereof; (iii) the conviction of the Employee of a
crime which constitutes a felony or any other crime involving moral turpitude,
fraud or misrepresentation; (iv) breach by the Employee of his obligations
under
this Agreement which breach, if susceptible to cure, has continued for a period
of thirty (30) days following written notice to the Employee specifying the
nature of such breach; or (v) failure, neglect or refusal of the Employee to
follow the reasonable instructions of the Board or its designee, the President
of the Company or the Executive Vice President of the Company, which are
consistent with his position.
(f) For
purposes hereof, “Permanent
Disability”
shall
mean the total incapacitation of the Employee so as to preclude performance
of
the duties of his employment hereunder for an aggregate period of three months
in any twelve-month period.
(g) For
purposes hereof, “Good
Reason”
shall
exist if the Company shall: (i) be in breach of or default under any material
provision of this Agreement and not cure such breach within 30 days of receiving
notice of such breach from the Employee or (ii) undergo a Change of Control
(as
defined in Section 3(f) hereof).
(h) For
purposes hereof, a “Change
of Control”
of
the
Company shall have occurred if (a) any “person” (as such term is used in
Sections 13(d) and 14(d)(2) of the U.S. Securities Exchange Act of 1934), other
than the Company or any subsidiary of the Company or any employee benefit plan
sponsored by the Company or any subsidiary of the Company, shall become the
beneficial owner (within the meaning of Rule 13d-3 under the U.S. Securities
Exchange Act of 1934), directly or indirectly, of securities of the Company
representing in excess of 50% of the combined voting power of the Company’s then
outstanding securities, or if (b) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board cease
for
any reason to constitute a majority of the directors thereof, unless each new
director was elected by, or on the recommendation of, a majority of the
directors then still in office who were directors at the beginning of such
period).
3
4. Noncompetition;
Nonintervention.
(a) While
in
the employ of the Company, the Employee agrees to devote substantially all
of
his time, attention and energies to the performance of the business of the
Company and the Employee shall not, directly or indirectly, alone or as a member
of any partnership or other business organization, or as a partner, officer,
director, employee, stockholder, consultant or agent of any other corporation,
partnership or other business organization, be actively engaged in or concerned
with any other duties or pursuits which interfere with the performance of his
duties as an employee of the Company, or which, even if noninterfering, may
be
contrary to the best interests of the Company.
(b) Until
two
years after the termination or cessation of the Employee’s employment with the
Company for any reason (including termination of employment by the Company
without Cause) other than termination by the Company following a Change of
Control, and, in the event of termination by the Company following a Change
of
Control, until the end of the period through which payment of the Employee’s
base salary continues under Section 3(b) hereof, the Employee shall not,
directly or indirectly, alone or as a member of any partnership or other
business organization, or as a partner, officer, director, employee,
stockholder, consultant or agent of any corporation, partnership or business
organization, engage, other than as incidental and immaterial component of
a
business in which the Employee otherwise is engaged, in (i) the business of
acquiring equity interests of, or otherwise investing in, investment management
firms or (ii) the business of marketing or developing alternative investment
strategies (such as those employed by the Company’s affiliates during the term
of this Agreement) or structured products involving alternative investment
strategies where either the investment strategies or structured products involve
terms or methodologies which are proprietary to the Company or its affiliates.
For a period of two years after the termination or cessation of the Employee’s
employment with the Company for any reason (including termination of employment
by the Company without Cause) the Employee shall not, directly or indirectly,
alone or as a member of any partnership or other business organization, or
as a
partner, officer, director, employee, stockholder, consultant or agent of any
corporation, partnership or business organization (A) request or cause any
customer of the Company or its affiliates to cancel or terminate any business
relationship with the Company or such affiliate, or (B) solicit or otherwise
cause any employee of the Company or its affiliates to terminate such employee’s
relationship with the Company or such affiliate.
5. Confidential
Information.
(a) The
Employee will not at any time, whether during or after the termination or
cessation of his employment, reveal to any person, association or company any
of
the trade secrets or confidential information concerning the organization,
business or finances of the Company so far as they have come or may come to
his
knowledge, except as may be required in the ordinary course of performing his
duties as an employee of the Company or except as may be in the public domain
through no fault of the Employee, and the Employee shall keep secret all matters
entrusted to him and shall not use or attempt to use any such information in
any
manner which may injure or cause loss or may be calculated to injure or cause
loss whether directly or indirectly to the Company.
4
(b) The
Employee agrees that during his employment he shall not make, use or permit
to
be used any notes, memoranda, drawings, specifications, programs, data or other
materials of any nature relating to any matter within the scope of the business
of the Company or concerning any of its dealings or affairs otherwise than
for
the benefit of the Company. The Employee shall not, after the termination or
cessation of his employment, use or permit to be used any such notes, memoranda,
drawings, specifications, programs, data or other materials, it being agreed
that any of the foregoing shall be and remain the sole and exclusive property
of
the Company and that immediately upon the termination or cessation of his
employment the Employee shall deliver all of the foregoing, and all copies
thereof, to the Company, at its main office.
(c) The
Employee agrees that during his employment and after the termination or
cessation of the Employee’s employment with the Company for any reason
(including termination of employment by the Company without Cause), the Employee
agrees not to make any statement to any customer or client of the Company,
including their employees, agents or independent contractors, or to the media
or
in any public forum, which statement is disparaging of the Company, its
affiliates or their officers or employees.
6. Other
Obligations.
Except
for the agreement between the Employee and Gabelli & Company, Inc. and
affiliates dated December 14, 1994, a copy of which has been provided by the
Employee to the Company, the Employee certifies that there is no other contract
or duty on the Employee’s part that would interfere with or limit the Employee’s
ability to provide services to Company or to perform all of the terms of this
Agreement. The Employee also certifies that he has no continuing contractual
obligations to any previous employer or any other party (i) that requires him
not to use or disclose information to the Company (other than the confidential
information of a prior employer) or (ii) that requires him to refrain from
competing directly or indirectly with the business of such previous employer
or
other party. The Employee agrees that, in performing work for the Company,
the
Employee will not knowingly use any patented inventions, trade secrets,
confidential information or proprietary information obtained from third parties,
including any prior employer or any other organization or individual. The
Employee agrees not to use copyrighted materials, or any portion thereof, of
any
other company or person while writing computer programs, manuals or any other
materials for the Company, and that the Employee will not bring onto the
premises of the Company any unpublished document or other property containing
proprietary information or trade secrets belonging to the Employee’s former
employers, unless consented to in writing by said employers.
5
7. Binding
Effect.
This
Agreement shall inure to the benefit of and shall be binding upon the parties
hereto and the Company’s successors or assigns (whether resulting from any
reorganization, consolidation or merger of the Company or any business to which
all or substantially all of the assets of the Company are sold) and the
Employee’s heirs, executors and legal representatives.
8. Entire
Agreement.
This
Agreement contains the entire agreement and understanding of the parties with
respect to the subject matter hereof, supersedes all prior agreements and
understandings with respect thereto and cannot be modified, amended, waived
or
terminated, in whole or in part, except in writing signed by the party to be
charged.
9. Governing
Law; Jurisdiction.
The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of New York applicable to contracts
executed and to be performed entirely within said State. Any judicial proceeding
brought against any of the parties to this Agreement or any dispute arising
out
of this Agreement or any matter related hereto may be brought in the courts
of
the State of New York or in the United States District Court for the Southern
District of New York, and, by execution and delivery of this Agreement, each
of
the parties to this Agreement accepts the jurisdiction of said courts, and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with this Agreement. The foregoing consent to jurisdiction shall not be deemed
to confer rights on any person other than the respective parties to this
Agreement.
10. Right
to Injunction.
The
Employee acknowledges and agrees that irreparable and immediate damage will
result to the Company if the Employee breaches his obligations under Section
4
or Section 5 hereof. In the event of a breach by the Employee of Section 4
or
Section 5 hereof, the Company shall be entitled to such equitable and injunctive
relief as may be available to restrain the Employee from the violation of such
provisions. The remedies provided in this Agreement shall be deemed cumulative
and the exercise of one shall not preclude the exercise of any other remedy
at
law or in equity for the same event or any other event.
11. Indemnification.
The
Company shall indemnify the Employee to the fullest extent permitted by law
(including, without limitation, advancement of legal fees on a current basis)
for all matters related to or arising from the Employee’s service as an officer,
director and/or fiduciary of any benefit plan of the Company. The Company shall
cover the Employee during and after the Employee’s employment under the
Company’s director and officer liability insurance to the greatest extent
afforded any senior officer and director of the Company.
6
12. Miscellaneous.
(a) Amendments.
No
amendment, modification or waiver of any of the terms of this Agreement shall
be
valid unless made in writing and signed by the Employee and the
Company.
(b) Successors
in Interest.
All
provisions of this Agreement shall survive the termination or cessation of
the
Employee’s employment with the Company and shall be binding upon and inure to
the benefit of and be enforceable by and against the respective heirs,
executors, administrators, personal representatives, successors and assigns
of
either of the parties to this Agreement.
(c) Waiver.
The
waiver by the Company or the Employee, as the case may be, of a breach of this
Agreement by the Employee or the Company, as the case may be, shall not operate
or be construed as a waiver of any subsequent breach by the other
party.
(d) Notices.
All
notices to be given hereunder shall be in writing and shall be (i) personally
delivered, (ii) sent by certified mail, return receipt requested, (iii) sent
by
facsimile or (iv) transmitted by e-mail. Notices to be given to the Employee
shall be sent to the address indicated below the Employee’s signature below.
Notices to be given to the Company shall be sent to Asset Alliance Corporation,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile 000-000-0000, to the
attention of Xxxxxx X. Xxxxx, Executive Vice President and Chief Operating
Officer. Notices of any changes in the above addresses shall be given to the
other party in writing.
(e) Severability.
If any
provision of this Agreement shall contravene any law of any particular state
where the Employee shall perform services for the Company, then this Agreement
shall be first construed to be limited in scope and duration so as to be
enforceable in that state, and if still unenforceable, shall then be construed
as if such provision is not contained herein.
(f) Counterparts.
This
Agreement may be executed in two or more counterparts, and by each party on
separate counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
7
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the
date first above written.
|
ASSET
ALLIANCE CORPORATION
|
|
|
By
|
/s/
Xxxxxx X. Xxxxx
|
|
Xxxxxx
X. Xxxxx, Executive Vice President
|
|
|
/s/
Xxxxxxx X. Xxxxx
|
|
|
XXXXXXX
X. XXXXX
|
|
|
Address:
|
|
|
00
Xxxxxxxxx Xxxxx
|
|
|
Xxxx
Xxxxxxxxx, XX 00000
|
|
8
AMENDMENT
TO EMPLOYMENT AGREEMENT
This
Amendment (the “Amendment”) is made as of September 15, 2005 to the Employment
Agreement between Asset Alliance Corporation and Xxxxxxx X. Xxxxx dated as
of
July 10, 2000 (the “Agreement”). Terms used in this Amendment and not defined
herein have the meaning, ascribed to them in the Agreement.
|
1.
|
Clause
(b) of Section 2 of the Agreement is hereby amended to read in its
entirety as follows:
|
(b)
Incentive
Bonus.
The
Company shall pay Employee each year during the Term as additional compensation
amounts determined by reference to the Company’s Earnings Before Interest,
Taxes, Depreciation and Amortization (EBITDA) for Common Shareholders per Fully
Diluted Shares as determined as follows:
|
EBITDA
Per Share Range
|
Bonus
Range
|
||||||||||
| $ | - |
$
|
0.75
|
$
|
-
|
$
|
120,000
|
||||
|
$
|
0.75
|
$
|
1.00
|
$
|
120,000
|
$
|
160,000
|
||||
|
$
|
1.00
|
$
|
1.25
|
$
|
160,000
|
$
|
200,000
|
||||
|
$
|
1.25
|
$
|
1.50
|
$
|
200,000
|
$
|
240,000
|
||||
|
$
|
1.50
|
$
|
1.75
|
$
|
240,000
|
$
|
300,000
|
||||
|
$
|
1.75
|
$
|
2.25
|
$
|
300,000
|
$
|
420,000
|
||||
|
$
|
2.25
|
$
|
3.00
|
$
|
420,000
|
$
|
600,000
|
||||
|
$
|
3.00
|
$
|
4.00
|
$
|
600,000
|
$
|
860,000
|
||||
|
$
|
4.00
|
$
|
5.00
|
$
|
860,000
|
$
|
1,160,000
|
||||
|
$
|
5.00
|
$
|
6.00
|
$
|
1,160,000
|
$
|
1,500,000
|
||||
|
$
|
6.00
|
$
|
7.00
|
$
|
1,500,000
|
$
|
1,860,000
|
||||
|
$
|
7.00
|
$
|
8.00
|
$
|
1,860,000
|
$
|
2,220,000
|
||||
|
$
|
8.00
|
$
|
9.00
|
$
|
2,220,000
|
$
|
2,620,000
|
||||
|
$
|
9.00
|
$
|
>
9.00
|
$2,620,000 + $0.4MM for each $1.00 per share
|
|||||||
The
Company’s Earnings Before Interest, Taxes, Depreciation and Amortization
(EBITDA) for Common Shareholders per Fully Diluted Shares, before taking into
account the Incentive Bonus Payments and Discretionary Bonus Payments to the
CEO, COO and the CFO of the Company, shall be determined by the Company’s
independent auditors each year, taking into account changes in the Company’s
capital structure, securities convertible into common stock, stock dividends,
stock splits, recapitalizations, reorganizations, merger and other relevant
changes in the Company’s capitalization. The Incentive Bonus Payment for
Earnings Before Interest, Taxes, Depreciation and Amortization (EBITDA) for
Common Shareholders per Fully Diluted Share levels falling between the low
and
the high range shall be computed on a straight-line basis. For example, if
Earnings Before Interest, Taxes, Depreciation and Amortization (EBITDA) for
Common Shareholders per Fully Diluted Share should be $2.00 (the mid-point
between $1.75 and $2.25), the Incentive Bonus Payment shall be $360,000 (the
mid-point between $300,000 and $420,000).
1
|
2.
|
Clause
(c) of Section 2 of the Agreement is hereby amended to read in its
entirety as follows:
|
(c)
Discretionary
Bonus.
Employee shall be eligible to receive a discretionary annual bonus in the sole
discretion of the Board (it being understood that Employee will receive a
minimum of $120,000 bonus per annum pursuant to Section 1 of this
Amendment).
|
3.
|
(g)
of Section 2 of the Agreement is hereby amended to read in its entirety
as
follows:
|
(g)
Vacations.
During
each year of employment, the Employee is entitled to paid vacation for the
greater of (i) three weeks and (ii) the amount of time permitted under the
Company’s then existing vacation policy.
|
4.
|
Notwithstanding
any thing in the Agreement to the contrary (including Section 3(b)
of the
Agreement), if the Employee’s employment with the Company is terminated
without Cause or as a result of a Change of Control, then the Employee
will receive his base salary plus all benefits plus minimum bonus
(i.e.,
$120,000 per annum) for a 24 month period following such
termination.
|
|
5.
|
Except
as amended by the foregoing provisions, the Agreement shall remain
in full
force and effect.
|
|
6.
|
This
Amendment may be executed in one or more counterparts, each of which
will
be deemed an original, but all of which together will constitute
one and
the same instrument. Execution and delivery by the parties to this
Amendment constitutes their agreement and consent to and approval
of the
amendments made hereby.
|
|
By:
|
/s/
Xxxxxx X. Xxxxx
|
|
Name:
Xxxxxx X. Xxxxx
|
|
|
Title:
Chief Operating Officer
|
|
|
Xxxxxxx
X. Xxxxx
|
|
2
