AGREEMENT
Agreement by and between FIRST COLONIAL SECURITIES GROUP. INC. ("FCSG").
0000 X. Xxxxxxxx Xxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx, 00000 and XXXXX XXXX
("Employee"), this 27 day of October. 1999.
WHEREAS,
A. Employee represents that he is a duly licensed registered
representative and a licensed principal in the securities industry.
B. Employee represents that he desires to terminate his current
employment in favor of employment at FCSG.
C. FCSG therefore agrees to employ Employee and Employee accepts
employment pursuant to the following terms:
FCSG and Employee agree to the following terms and conditions:
1. Duties. Employee shall be employed as President and be nominated and
elected as a member of the Board of Directors of FCSG, with the primary
responsibility of managing and overseeing the entire sales force and such other
responsibilities as are reasonably assigned from time to time to Employee by the
Board of Directors of FCSG.
2. Compensation. In consideration of the above services to be rendered
by Employee and upon the representations of Employee concerning his past gross
retail production; and upon the parties' recognition and acknowledgment of the
value of continued employment, FCSG will compensate Employee as follows, and all
payments hereunder will be subject to required withholding, for federal, state
and local taxes:
a) i) During the term of his employment, effective as of the
date hereof, Employee shall be paid a base salary of
$150,000 per annum;
ii) In addition to such base salary, for brokers recruited by
Employee
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effective as of the date Employee's registration is
effective at the NASD and the State of New York, Employee
shall be entitled to an override equal to three (3%)
percent of the gross commissions generated in connection
with the retail stock brokerage production, after all
clearing costs ("Gross Commission Production"), for such
broker's first year of production, payable quarterly in
arrears no later than 45 days after the end of such
quarter.
iii) During the second year of such recruited brokers'
employment, Employee shall be entitled to an override
equal to two (2%) percent of the Gross Commission
Production generated by all such recruited brokers,
payable quarterly in arrears no later than 45 days after
the end of such quarter.
iv) Employee shall also receive an override equal to one-half
(.005) percent of all Gross Commission Production, over a
base level, generated by FCSG's sales offices during the
term hereof. The base level shall be determined in March,
2000 upon completion of FCSG's annual audit and equate to
the Gross Commission Production generated by FCSG's sales
offices during fiscal year 1999. This override shall be
payable annually within thirty days of the completion of
FCSG's FY 2000 and FY 2001 audits. Notwithstanding
anything herein to the contrary, in the event Employee is
terminated from FCSG for reasons other than cause as
defined in Section 9 (ii), (iii) or (iv), he shall be
entitled to a prorated override through the date of such
termination, as
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calculated pursuant to this subsection, which override
will continue to be payable as provided hereinabove.
v) For his individual Gross Commission Production, Employee
shall receive a payout in year one of his employment,
effective as of the date his registration is effective at
the NASD and the State of New York, at a rate of 60%; in
years two, three and four, at a rate of 55%, and
thereafter, in accordance with FCSG's standard grid as in
effect at the time. It is agreed and understood that FCSG
maintains a minimum ticket charge of $60 per ticket.
vi) If Employee generates gross commission production of
greater than or equal to $1,000,000 for the combined two
year period from the date his registration is effective at
the NASD and the State of New York, Employee will be
entitled to receive a forgivable loan in an amount equal
to five (5%) of such gross commission production. In
connection therewith, to receive such loan, Employee shall
be required to execute a two year Promissory Note equal to
the amount loaned.
b) Employee shall receive, upon execution hereof, a grant of stock
options in the common stock of the parent of FCSG, equal to
20,000 (the "Initial Grant"), and for each year of the term
hereof, an additional grant of stock options equal to 20,000
shares per year, subject to the terms and conditions of the Stock
Option Plan, as amended (the "Plan"). The stock options granted
pursuant to the Initial Grant shall vest at a rate of twenty
(20%) percent per year for five years and have an exercise price
equal to
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$6 per share for the Initial Grant. All subsequent grants shall
be at the then prevailing terms and exercise prices as
established by the Board of Directors of the parent of FCSG.
c) In addition to the foregoing, Employee shall be offered 30,000
shares of Common Stock at a price equal to $3 per share in the
parent of FCSG. Employee must accept and fund this purchase
within ninety (90) days of the date hereof. In connection
herewith, it is expressly agreed and understood that the delivery
of shares of common stock, as contemplated hereunder will be in
the form of unregistered shares, which shares will contain
restrictions on transfer and will not otherwise be transferable
in the absence of a registration statement as filed and granted
effectiveness with and by the Securities and Exchange Commission,
or exemption from such registration requirements which may be
available to Employee.
d) Employee shall be entitled to an expense account for use in
connection with the execution of his duties and job
responsibilities and contemplated hereunder, provided reasonable
documentation of such expenses are timely submitted to FCSG in
the form, and pursuant to the policies as required thereby.
In the event that Employee's employment terminates for any reason, amounts that
are not yet vested, earned or granted WILL BE FORFEITED, without proration.
3. Benefits. Employee shall be entitled to participate in such benefits
and plans as are made available by FCSG to its similarly situated employees on a
usual and customary basis.
4. Confidential Information. Employee acknowledges and agrees that he
will have access to certain confidential information of FCSG and that such
information constitutes
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valuable, special and unique property of FCSG. Employee further acknowledges and
agrees that he will not, at any time during or after the term hereof, in any
fashion, form, or manner, either directly or indirectly, divulge, disclose or
communicate to any person, firm, or corporation, in any manner whatsoever, the
terms and conditions of this Agreement (however as to such Agreement, Employee
may disclose the terms and conditions hereof for the sole purpose of seeking
subsequent employment, or to his attorney, accountant or tax advisor) or any
information of any kind, nature or description concerning any matters affecting
or relating to the business of the FCSG ("Confidential Information").
5. Client Information. Employee agrees that (i) all client names,
addresses, telephone numbers, files, and records (collectively, "Client
Records") that are derived from data bases or contacts provided by FCSG, are and
shall remain in the custody and control of FCSG, and, except as necessary and
permitted for purposes directly related to the operation of FCSG or proper
client service, or as authorized and required by law or client consent, Employee
shall not remove, copy, transfer, or transmit to any person, natural or
corporate, any Client Records at any time; and (ii) an actual or attempted
violation of any provision of this Section by Employee, either directly or
indirectly, shall be grounds for immediate termination of this Agreement.
Employee recognizes and agrees that a violation of any of the provisions
contained in this Section may cause irreparable damage to FCSG, the exact
amount of which may be impossible to ascertain, and that, for such reason, among
others, FCSG shall be entitled to an injunction without the necessity of posting
bond therefor in order to restrain any further violation of such provisions.
Such right to an injunction shall be in addition to, and not in limitation of,
any other rights and remedies FCSG may have against Employee, including, but not
limited to, the recovery of damages. The terms and conditions of this Section
shall survive termination of this Agreement.
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6. Covenant Not To Solicit. Employee agrees that, during the term of
this Agreement and for a period of one (1) year thereafter, he shall not (i)
solicit, encourage or advise clients serviced during the term of this Agreement
to obtain or seek services from any entity other than FCSG, provided, however,
the foregoing restriction shall only apply to the clients whose names or
identities were provided to Employee by FCSG, or (ii) solicit, encourage or
advise any employees of FCSG to terminate employment with FCSG for any reason
whatsoever. Employee recognizes and agrees that the limitations set forth in
this Section are reasonable and necessary for the protection of the goodwill of
the business of FCSG. Employee further recognizes and agrees that a violation of
any of the provisions contained in either section will cause irreparable damage
to FCSG, the exact amount of which may be impossible to ascertain, and that, for
such reason, among others, FCSG shall be entitled to an injunction without the
necessity of posting bond therefor in order to restrain any further violation of
such provisions. Such right to any injunction shall be in addition to, and not
in limitation of, any other rights and remedies FCSG may have against Employee,
including, but not limited to, the recovery of damages. As used herein, the term
"client" shall include any and all clients serviced at any office location at
which FCSG operates during the term of this Agreement. The terms and conditions
of this Section shall survive termination of this Agreement.
7. Representations and Warranties. Employee represents and warrants that
he (i) is not subject to any restriction that would prohibit entering into this
Agreement, is fully able to perform each of the terms, conditions and covenants
hereof, and is not restricted or prohibited from entering into or performing any
of the terms or conditions hereof, and (ii) is able to execute and perform under
this Agreement without violating or breaching any agreement between Employee and
any other person or entity.
Employee acknowledges and agrees that the truth and accuracy of the
representations and
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warranties contained in this section constitute a condition precedent to FCSG's
obligation to provide compensation pursuant to the terms and conditions of this
Agreement.
8. Indemnity. In his capacity as an officer and director of FCSG.
Employee shall be entitled to be indemnified in accordance with FCSG's Bylaws
and in any event, be entitled to the same indemnities as afforded similarly
situated executives at the Company; provided that, notwithstanding the
foregoing, in his capacity as broker-of-record on any accounts maintained at
FCSG. Employee will be required to indemnify, defend and hold FCSG harmless from
and against any and all costs, losses, claims, demands and liabilities,
including reasonable attorneys' fees and costs, which arise out of or relate to
his conduct in furtherance of so acting, in accordance with FCSG's policies as
then in effect and consistent with similarly situated employees acting in the
capacity of broker. The terms and conditions of this section shall survive
termination of this Agreement.
9. Term/Termination. This Agreement shall be for a period of two (2)
years from the date hereof. FCSG shall have the right to terminate Employee's
employment only for cause, and except as provided below without notice, as
follows: Cause shall be defined as (i) the death of Employee, (ii) a material
failure of Employee to discharge his employment obligations as reasonably
directed by FCSG (which direction shall be in writing and for which Employee
shall have fourteen (14) days to cure such material failure), (iii) conviction
of Employee of a non-traffic related felony or conduct which involves moral
turpitude, or (iv) fraud, embezzlement or theft by Employee of funds belonging
to FCSG or any of its subsidiaries or their respective clients. In addition,
FCSG may terminate Employee's employment hereunder forthwith upon, or at any
time after, an event of material nonperformance of his duties as an employee
because of a disability for which FCSG can make no reasonable accommodation. The
term "disability" shall mean, for purposes of this Agreement, the inability of
Employee to perform full-time regular
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duties as contemplated hereunder on account of a physical or mental condition
for a period of 90 consecutive days, but shall exclude infrequent and temporary
incapacity due to ordinary illness.
10. Waiver. No waiver or modification of this Agreement or any covenant,
condition, or limitation herein shall be valid unless in writing and duly
executed by the parties hereto, and no evidence of any waiver or modification
shall affect this Agreement, or the rights or obligations of any party
hereunder, unless such waiver or modification is in writing and duly executed by
the parties hereto. The parties hereto further agree that the provisions of this
Section may not be waived except as herein set forth.
11. Notices. All notices or other communications required or permitted
hereunder shall be sent in writing to the address as set forth herein.
12. Jurisdiction/Governing Law. Any and all questions or controversies
arising hereunder shall be resolved by arbitration under the rules and auspices
of NASD Regulation, Inc. Employee further acknowledges that FCSG may be
irreparably damaged if he shall breach any of the terms of this Agreement. In
view of the foregoing, both parties consent to the jurisdiction of any court of
competent jurisdiction in the State of Florida to obtain preliminary equitable
relief, such as a restraining order, injunction, or any other immediate or
interim relief sought, pending the determination of the arbitration proceeding.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Florida.
13. Assignment. Employee may not assign or delegate any rights, duties
or obligations established herein without the prior written consent of FCSG,
which consent may be withheld in Employer's sole and absolute discretion. FCSG
may assign this Agreement, in whole or in part, in its sole and absolute
discretion without the consent of Employee.
14. Miscellaneous.
a) During the term of this Agreement, FCSG shall pay for the state and
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NASD registrations for Employee in such states in which Employee is
licensed in as of the date hereof.
b) Notwithstanding anything herein to the contrary, Employee may obtain
a FCSG franchise, subject to the terms and conditions of the
franchise agreements and documents as then in effect.
c) FCSG shall provide Employee with one sales assistant for a period of
four years.
15. Entire Agreemen; Amendment. Except as otherwise stated herein, this
Agreement sets forth the entire agreement of the parties hereto with respect to
the subject matter hereof, and supersedes all prior and contemporaneous
agreements, arrangements and understandings. This Agreement may only be amended
by the mutual written consent of FCSG and Employee.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date provided above.
FIRST COLONIAL SECURITIES
GROUP, INC.
By: /s/ Xxxxxxx Xxxxxx Xxxxx Xxxx
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Xxxxxxx Xxxxxx XXXXX XXXX
Chairman - CEO Address: 000 X. 00xx Xx.
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Xxx Xxxx, XX 00000
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SS#: ###-##-####
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Date: 10/27/99 Date: 10-27-99
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