Exhibit 10.2
SECOND AMENDMENT
TO
EMPLOYMENT AGREEMENT
WHEREAS, GBI CAPITAL PARTNERS INC. (formerly known as XXXXXX, XXXXXXX
INC.) (the "Company"), a New York corporation, has entered into an employment
agreement (the "Agreement") with XXXXX XXXXXXXX (the "Administrator"), dated
August 24, 1999;
WHEREAS, the Company is a wholly-owned subsidiary of GBI Capital
Management Corp. (the "Parent"), a Florida corporation;
WHEREAS, NEW VALLEY CORPORATION ("New Valley"), a Delaware corporation,
Parent and others have entered into a Stock Purchase Agreement (the "Stock
Purchase Agreement") dated as of February 8, 2001, pursuant to which New Valley
will acquire beneficial ownership of in excess of 50% of the stock of the Parent
(such corporate transaction, the "Acquisition");
WHEREAS, the Administrator desires to resign from his position
effective upon the closing of the Acquisition;
WHEREAS, Section 13 of the Agreement provides that no modification of
or addition to the Agreement or waiver or cancellation of any provision therein
shall be valid except by a signed writing;
NOW THEREFORE, in consideration of the promises and mutual
representations, covenants and agreements set forth herein, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree to the termination of the Administrator's
employment on the following terms:
1. The Administrator's employment shall terminate on the closing
of the Acquisition ("Closing").
2. The parties hereto acknowledge that the Administrator has
already performed the role and duties required of him in order
to facilitate the Acquisition and that no further services
need be rendered by the Administrator. Nonetheless, the
Administrator shall be entitled to full compensation and
benefits under the Agreement until the Closing.
3. For the period commencing October 1, 2000 through the last day
of the commission month in which the Closing occurs, the
Administrator shall participate in the Annual Incentive Bonus
Plan and the Special Performance Incentive Plan on the same
basis as he currently participates in such plans on the date
hereof. Thereafter, the Administrator shall not participate in
the Annual Incentive Bonus Plan and the Special Performance
Incentive Plan.
4. At the Closing, the Administrator shall be issued 10-year
fully vested options under the Company's 1999 Performance
Equity Plan to purchase 100,000 shares of common stock at a
price equal to the price of the options to be granted to Xx.
Xxxxxx Xxxxx on such date. The agreement evidencing such
options shall be substantially in the form of Administrator's
Stock Option Agreement dated August 24, 1999.
5. All options granted to the Administrator under 3(G) of the
Agreement shall become exercisable in full at the Closing and
remain exercisable until August 23, 2009.
6. Section 6 of the Agreement shall survive termination of
Administrator's employment, but section 6(B) shall be amended
to read as follows: "The Administrator agrees that if the
Company has made and is continuing to make all required
payments to him and/or on his behalf upon and after
termination of his employment, then for a one year period
commencing on the Closing, the Administrator shall neither
directly and/or indirectly, for or on behalf of any business
which competes with any of the Applicable Entities (as defined
below) (a) solicit or hire any prior (within six (6) months of
termination) or then current employee of the Company,
Ladenburg Xxxxxxxx & Co. Inc. and/or the Parent nor any of
their respective direct and/or indirect subsidiaries
(collectively, the "Applicable Entities"), nor (b) solicit or
transact any business with any prior (within six (6) months of
termination) or then current customer and/or client of the
Applicable Entities. In addition, the Administrator shall not
attempt (directly and/or indirectly), to do anything either by
himself or through others that he is prohibited from doing
pursuant to this Section 6."
7. The Administrator's and his dependents' participation in any
and all life, disability, medical and dental insurance plans
shall be continued, or equivalent benefits provided to him or
them by the Company, through August 24, 2004, with medical
insurance and complete out-of-pocket reimbursement benefits,
consistent with past practices, through August 24, 2006, all
at no cost to Administrator or his dependants.
8. Parent shall pay the Administrator or the Administrator's
designee the sum of $1,000 on each of the first 24 monthly
anniversaries of the Closing.
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9. Until the two year anniversary of the Closing, the Company and
the Parent shall provide the Administrator with (i) RAS, VPN
and ILX access in the same manner as is currently being
provided to him, and (ii) access to Webshell or similar broker
tools to review his family's accounts, all at no cost to
Administrator.
10. Counsel for Parent shall prepare, at Parent's cost, all forms
required to be filed by the Administrator with any regulatory
agency or governmental body as a result of the Acquisition,
this Agreement and the transactions contemplated thereby and
hereby.
11. Section 8 of the Agreement shall survive termination of the
Administrator's employment; provided, however, that to the
extent Section 8 of the Agreement is inconsistent with the
Indemnification Agreement dated February 7, 2001 between
Administrator and the Parent, the Indemnification Agreement
shall prevail.
12. Sections 5(C) and 9-15 of the Agreement shall survive
termination of Administrator's employment.
13. Except as set forth herein, the Agreement and the First
Amendment to the Agreement, dated as of February 8, 2001,
shall terminate at, and be of no further force and effect from
and after, the Closing.
14. This Second Amendment to the Agreement shall become effective
only upon the Closing. This Second Amendment to the Agreement
shall become null and void on the termination of the Stock
Purchase Agreement prior to the consummation of the
transactions contemplated thereby.
IN WITNESS WHEREOF, the parties have duly executed this Second
Amendment to the Agreement as of April 24, 2001.
GBI CAPITAL PARTNERS INC.
/s/ Xxxxxx Xxxxxxx /s/ Xxxxx Xxxxxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx Xxxxxxx XXXXX XXXXXXXX,
Title: ADMINISTRATOR
GBI CAPITAL MANAGEMENT CORP.
/s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: