Exhibit 10.32
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") dated as of the 24th day of
January 2007 (the "Effective Date"), by and between First Montauk Securities
Corp., a New York corporation and registered securities broker/dealer, with its
principal address at Parkway 109 Office Center, Red Bank New Jersey 07701 (the
"Company") and Xxxxxxx X. Xxxx, with his residence at 00 Xxxxxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000 ("Employee").
WHEREAS, the Company wishes to employ Employee as Executive Vice
President and General Counsel of the Company; and
WHEREAS, Employee is willing to provide his services and experience to
the Company in such capacities upon the terms, conditions and provisions
hereinafter set forth.
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 as follows:
1. TERM:
Subject to the terms and conditions of Section 7 hereof and for the
compensation hereinafter set forth, the Company hereby agrees to employ Employee
for a term commencing effective on March 1, 2007 and terminating on December 31,
2008 (such period being herein referred to as the "Initial Term,"). After the
Initial Term, the Agreement shall be renewable automatically for successive one
year periods (each such period being referred to as a "Renewal Term"), unless,
more than 120 days prior to the expiration of the Initial Term or any Renewal
Term, either the Employee or the Company give written notice that employment
will not be renewed.
2. EMPLOYMENT:
(A) Employee shall serve as Executive Vice President and General
Counsel. Employee's powers and duties shall be those of an Employee nature,
which are appropriate for an Executive Vice President and General Counsel and
Employee shall report to the President and Chief Executive Officer of the
Company.
(B) Employee does hereby accept such employment and agrees to devote
substantially all of his business time, attention, knowledge and skills
faithfully, diligently and to the best of his ability, in furtherance of the
business and activities of the Company. The Company shall not require Employee
to be employed in any location other than the Red Bank, New Jersey area unless
he consents in writing to such location provided, however, the Employee
understands and agrees that his position with the Company may include travel to
the Company's other offices and branch locations, and other locations for
regular business purposes from time to time.
(C) Employee shall be an officer of the Company during the term of his
employment with the Company.
(D) During the term of his Agreement, Employee shall be furnished with
office space and facilities commensurate with his position and adequate for the
performance of his duties. Employee also shall be provided with the perquisites
customarily associated with the position as Executive Vice President and General
Counsel.
(E) Employee shall be allowed, to the extent such activities do not
substantially interfere with the performance of his duties and responsibilities
hereunder, (i) to manage his personal, financial and legal affairs, (ii) to be
engaged in civic, charitable, religious and educational activities, and (iii) to
serve on other corporate boards with the prior written approval of the Company.
3. COMPENSATION:
(A) SALARY:
During the Initial Term of this Agreement, the Company agrees to pay
Employee, and Employee agrees to accept, an annual salary of Two Hundred
Thousand Dollars ($200,000) per year (the "Initial Base Salary"), payable in
accordance with the Company's policies, for services rendered by Employee
hereunder. For any Renewal Term, Employee shall be entitled to the Initial Base
Salary, plus such increase as may be determined by the President and C.E.O. and
approved by the Compensation Committee of the Board of Directors.
(B) BONUS:
Employee shall be paid cash bonuses during the Initial Term of this
Agreement as follows:
1. 2007- $100,000 payable after December 31, 2007.
2. 2008- $100,000 payable after December 31, 2008.
For any Renewal Term, Employee may be entitled to a cash bonus as
determined by the President and C.E.O. and approved by the Compensation
Committee of the Board of Directors.
(C) STOCK OPTIONS:
Employee shall be eligible to receive incentive stock option grants at
the discretion of the President and Chief Executive Officer and subject to the
approval of the Board of Directors. Any grant of options will be subject to all
of the terms and conditions of the Company's Senior Management Stock Option
Plan, as amended.
4. EXPENSES:
The Company shall reimburse Employee for all reasonable and actual
business expenses incurred by him in connection with his service to the Company
upon submission by him of appropriate vouchers and expense account reports and
otherwise in compliance with the policies and procedures of the Company.
5. BENEFITS:
(A) INSURANCE:
1. The Company shall maintain medical insurance for Employee in
accordance with the group health and dental plans offered by the
Company to its employees subject to the employee's contribution to
the cost of such coverage. In addition, Employee and his
dependents shall be entitled to participate in such other benefits
as may be extended to active employees of the Company and their
dependents including but not limited to 401(k), life insurance,
hospitalization, medical, disability or other benefits made
available by the Company to its employees generally.
2. The Company shall maintain Broker/Dealer Professional Liability
Insurance (E&O), and a Broker Dealer Fidelity Blanket Bond, each
of which shall cover the Employee as an insured or covered person.
(B) VACATION:
During the term of this Agreement, the Employee will be entitled to the
number of paid holidays, personal days off, and vacation days in each calendar
year as are determined by the Company from time to time (provided that in no
event shall vacation time be fewer than four (4) weeks per year). Such vacation
may be taken at the Employee's discretion at such time or times as are
consistent with the reasonable business needs of the Company.
(C) LICENSES AND REGISTRATIONS:
During the term of his Agreement, the Employee shall maintain in good
standing all required licenses and registrations required for the proper
performance of his duties and functions. During the term of this Agreement, the
Company shall pay the cost of maintaining such licenses and registrations on
Employee's behalf, including but not limited to Employee's securities and law
licenses and registrations and continuing educations costs.
(D) INDEMNIFICATION:
Employee shall be entitled to the benefits of all provisions of the
Certificate of Incorporation of the Company, as amended, and the Bylaws of the
Company, as amended, that provide for indemnification of officers and directors
of the Company. In addition, without limiting the indemnification provisions of
the Certificate of Incorporation or Bylaws, to the fullest extent permitted by
law, the Company shall indemnify and save and hold harmless Employee from and
against any and all claims, demands, liabilities, costs and expenses, including
judgments, fines or amounts paid on account thereof (whether in settlement or
otherwise), and reasonable expenses, including attorneys' fees actually and
reasonably incurred (except only if and to the extent that such amounts shall be
finally adjudged to have been caused by Employee's willful misconduct or gross
negligence, including the willful breach of the provisions of this Agreement) to
the extent that Employee is made a party to or witness in any action, suit or
proceeding, or if a claim or liability is asserted against Employee (whether or
not in the right of the Company), by reason of the fact that he was or is an
officer, or acted in such capacity on behalf of the Company, or the rendering of
services by Employee pursuant to this Agreement, whether or not the same shall
proceed to judgment or be settled or otherwise brought to a conclusion. The
Company shall, at no cost to Employee, include Employee during the term of this
Agreement and for a period of not less than two (2) years thereafter, as an
insured under the directors and officers liability insurance policy maintained
by the Company, unless (despite best efforts of the Company) due to some
unforeseeable reason it is not possible for Employee to be so included, in which
event the Company shall immediately notify Employee.
6. RESTRICTIVE COVENANTS:
(A) Employee recognizes and acknowledges that the Company, through the
expenditure of considerable time and money, has developed and will continue to
develop in the future information concerning customers, clients, marketing,
business and operational methods of the Company and its related entities and
their customers or clients, contracts, financial or other data, technical data
or any other confidential or proprietary information possessed, owned or used by
the Company and its related entities, and that the same are confidential and
proprietary, and are "confidential information" of the Company and its related
entities. In consideration of his continued employment by the Company hereunder,
Employee agrees that he will not, during or for a period of two years after
termination of employment, directly or indirectly, make any disclosure of
confidential information now or hereafter possessed by the Company and/or any of
its current or future, direct or indirect related entities (collectively,
the "Group"), to any person, partnership, corporation or entity either during or
after the term hereunder, except to employees of the Group and to others within
or without the Group, as Employee may deem necessary in order to conduct the
Group's business and except as may be required pursuant to any court order,
judgment or decision from any court of competent jurisdiction. The foregoing
shall not apply to information which is in the public domain on the date hereof;
which, after it is disclosed to Employee by the Group, is published or becomes
part of the public domain through no fault of Employee; which is known to
Employee prior to disclosure thereof to him by the Group as evidenced by his
written records; or, after Employee is no longer employed by the Group, which
is thereafter disclosed to Employee in good faith by a third party which is not
under any obligation of confidence or secrecy to the Group with respect to such
information at the time of disclosure to him. The provisions of this Section 6
shall continue in full force and effect notwithstanding termination of
Employee's employment under this Agreement or otherwise.
(B) Employee agrees that if the Company has made all required payments
to him during the course of his employment with the Company, then for a period
commencing on the date of termination of Employee's employment pursuant to this
Agreement and ending twenty four (24) months thereafter, Employee shall neither
directly and/or indirectly solicit or hire any prior (within twelve (12) months)
or then current employee of the Company nor any of its related entities and/or
direct and/or indirect subsidiaries (collectively, the "Applicable Entities"),
nor (b) solicit any business with any prior (within twelve (12) months of
termination) or then current customer and/or client of the Applicable Entities,
unless Employee had a pre-existing relationship with the customer.
(C) Employee acknowledges that the restrictive covenants (the
"Restrictive Covenants") contained in her Section 6 are a condition of his
continued employment and are reasonable and valid in geographical and temporal
scope and in all other respects. If any court determines that any of the
Restrictive Covenants, or any part of any of the Restrictive Covenants, is
invalid or unenforceable, the remainder of the Restrictive Covenants and parts
thereof shall not thereby be affected and shall be given full effect, without
regard to the invalid portion. If any court determines that any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable because
of the geographic or temporal scope of such provision, such court shall have
the power to reduce the geographic or temporal scope of such provision, as the
case may be, and, in its reduced form, such provision shall then be enforceable.
(D) If Employee breaches, or threatens to breach, any of the
Restrictive Covenants, the Company, in addition to and not in lieu of any other
rights and remedies it may have at law or in equity, shall have the right to
injunctive relief; it being acknowledged and agreed to by Employee that any such
breach or threatened breach would cause irreparable and continuing injury to the
Company and that money damages would not provide an adequate remedy to the
Company.
7. TERMINATION:
(A) DEATH:
In the event of Employee's death ("Death") during the term of his
employment, Employee's designated beneficiary, or in the absence of such
beneficiary designation, his estate shall be entitled to the Accrued Obligations
and to the payment of Employee's salary through the date of Death. For purposes
of this Agreement, "Accrued Obligations" shall mean (i) all accrued but unpaid
salary, specifically excluding any unpaid Bonus, through the date of termination
of Employee's employment, (ii) any unpaid or unreimbursed expenses incurred in
accordance with this Agreement, and (iii) all compensation or benefits due to
the Employee under the terms and rules of any Company compensation or benefit
plan in which the Employee participates or otherwise required by applicable law.
(B) DISABILITY:
(i) In the event Employee, by reason of physical or mental incapacity,
shall be disabled for a period of at least 90 consecutive days ("Disability"),
the Company shall have the option at any time thereafter to terminate Employee's
employment hereunder for Disability. Such termination will be effective ten (10)
days after the President and C.E.O. gives written notice of such termination to
Employee, unless Employee shall have returned to the performance of his duties
prior to the effective date of the notice. Upon such termination, Employee shall
be entitled to the Accrued Salary, specifically excluding any unpaid Bonus, and
such benefits to which he and his dependents are entitled by law, and except as
otherwise expressly provided herein, all obligations of the Company hereunder
shall cease upon the effectiveness of such termination other than payment of
salary earned through the date of Disability, provided that such termination
shall not affect or impair any rights Employee may have under any policy of long
term disability insurance or benefits then maintained on his behalf by the
Company.
(ii) "Incapacity" as used herein shall mean the inability of the
Employee due to physical or mental illness, injury or disease substantially to
perform his normal duties as Executive Vice President and General Counsel.
Employee's salary as provided for hereunder shall continue to be paid during any
period of incapacity prior to and including the date on which Employee's
employment is terminated for Disability.
(C) BY THE COMPANY FOR CAUSE:
(i) The Company shall have the right, before the expiration of the term
of this Agreement, to terminate the Employee's employment hereunder and to
discharge Employee for cause (hereinafter "Cause"), and all compensation to
Employee shall cease to accrue upon discharge of Employee for Cause. For the
purposes of this Agreement, the term "Cause" shall mean (a) Employee's
conviction of a felony; (b) the alcoholism or drug addiction of Employee which
impairs his ability to perform his duties in the determination of the Chief
Executive Officer; (c) the continued and willful failure by Employee to
substantially and materially perform his material duties hereunder or the
refusal or failure by Employee to adhere to the Company's employment policies,
including, without limitation, policies regarding sexual harassment,
discrimination or the federal and state securities laws, after a reasonable
notice and an opportunity to cure same if such refusal or failure may be cured;
(d) an act or acts of personal dishonesty by Employee intended to result in
personal enrichment of Employee at the expense of the Company or any of its
affiliated entities or any other material breach or violation of Employee's
fiduciary duty owed to the Company or any of its related entities or affiliates;
(e) any grossly negligent act or omission or any willful and deliberate
misconduct by Employee that results, or is likely to result, in material
economic, or other harm, to the Company or any of its related entities or
affiliates; (f) an action taken by a governmental, regulatory body or self
regulatory organization that substantially impairs the Employee from performing
his duties; or (g) refusal by Employee to assist the Company, at the request of
the Chief Executive Officer, in any investigation or other proceeding (whether
formal or informal) which is commenced by the Board of Directors, or any
governmental, regulatory body or self regulatory organization.
(ii) If the Company elects to terminate Employee's employment for Cause
under 7(C)(i) above, such termination shall be effective five (5) days after the
Company gives written notice of such termination to Employee. In the event of a
termination of Employee's employment for Cause in accordance with the provisions
of 7(C)(i), the Company shall have no further obligation to the Employee, except
for the payment of the Accrued Salary, but not any Bonus, and such benefits to
which he and his dependents are entitled by law.
(D) RESIGNATION FOR REASON. Employee shall have the right to terminate
his employment at any time for "good reason" (herein designated and referred to
as "Reason"). The term Reason shall mean (i) the Company's failure or refusal to
perform any obligations required to be performed in accordance with this
Agreement after a reasonable notice and an opportunity to cure same, (ii) a
material diminution in Employee's title, duties, responsibilities, reporting
relationship or positions, (iii) the relocation of Employee's principal office
location more than fifty (50) miles from its current location, and (iv) the
failure of the Company to obtain the assumption in writing of its obligation to
perform his Agreement by any successor to all or substantially all of the assets
of the Company. Notwithstanding the occurrence of any such event or circumstance
above, such occurrence shall not be deemed to constitute Reason hereunder if,
within the thirty-day notice period, the event or circumstance giving rise to
Reason has been fully corrected by the Company.
(E) RESIGNATION WITHOUT REASON: Employee may voluntarily resign his
employment with the Company upon thirty (30) days' written notice to the Company
without any liability to Employee. In the event Employee resigns without reason
prior to the expiration of this Agreement, he shall receive only the Accrued
Obligations and such benefits to which he and his dependents are entitled by
law.
8. WAIVER:
No delay or omission to exercise any right, power or remedy accruing to
either party hereto shall impair any such right, power or remedy or shall be
construed to be a waiver of or an acquiescence to any breach hereof. No waiver
of any breach hereof shall be deemed to be a waiver of any other breach hereof
theretofore or thereafter occurring. Any waiver of any provision hereof shall be
effective only to the extent specifically set forth in the applicable writing.
All remedies afforded to either party under this Agreement, by law or otherwise,
shall be cumulative and not alternative and shall not preclude assertion by
either party of any other rights or the seeking of any other rights or remedies
against the other party.
9. GOVERNING LAW:
The validity of this Agreement or of any of the provisions hereof shall
be determined under and according to the laws of the State of New Jersey, and
this Agreement and its provisions shall be construed according to the laws of
the State of New Jersey, without regard to the principles of conflicts of law
and the actual domiciles of the parties hereto.
10. NOTICES:
All notices, demands or other communications required or permitted to
be given in connection with this Agreement shall be given in writing, shall be
transmitted to the appropriate party by hand delivery, by certified mail, return
receipt requested, postage prepaid or by overnight carrier and shall be
addressed to a party at such party's address shown on the signature page hereof.
A party may designate by written notice given to the other parties a new address
to which any notice, demand or other communication hereunder shall thereafter be
given. Each notice, demand or other communication transmitted in the manner
described in this Section 10 shall be deemed to have been given and received for
all purposes at the time it shall have been (i) delivered to the addressee as
indicated by the return receipt (if transmitted by mail) or the affidavit of the
messenger (if transmitted by hand delivery or overnight carrier) or (ii)
presented for delivery during normal business hours, if such delivery shall not
have been accepted for any reason.
11. ASSIGNMENT:
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and each of their respective successors, assigns, heirs and legal
representatives; PROVIDED, HOWEVER, that Employee may not assign or delegate his
obligations, responsibilities and duties hereunder except as may otherwise be
expressly agreed to in writing by the parties hereto. If Employee shall die, all
amounts then payable to Employee hereunder shall be paid in accordance with the
terms of this Agreement to Employee's devisee, legatee or other designee or, if
there be no such designee, the Employee's estate.
12. MISCELLANEOUS:
This Agreement contains the entire understanding between the parties
hereto and supersedes all other oral and written agreements or understandings
between them with respect to the subject matter hereof. No modification or
addition hereto or waiver or cancellation of any provision shall be valid except
by a writing signed by the party to be charged therewith.
13. SEVERABILITY:
The parties agree that if any of the covenants, agreements or
restrictions contained herein are held to be invalid by any court of competent
jurisdiction, the remainder of the other covenants, agreements, restrictions and
parts thereof herein contained shall be severable so not to invalidate any
others and such other covenants, agreements, restrictions and parts thereof
shall be given full effect without regard to the invalid portion.
14. ARBITRATION:
Any and all disputes, controversies, or differences, whether arising or
commenced during or subsequent to the term hereof, which may arise between the
parties directly and/or indirectly out of or in relation to or in connection
with this Agreement, or for the breach of this Agreement, shall be settled by
arbitration in Newark, New Jersey or, alternatively if there shall be no NASD
arbitration facilities in Newark, New Jersey than in New York City, New York
before three arbitrators under the arbitration rules of the National Association
of Securities Dealers, Inc. ("NASD") then in effect. Each of the arbitrators
shall be appointed in accordance with the rules of the NASD. Such arbitration
shall be final and binding and shall be limited to an interpretation and
application of the provisions of this Agreement and any related agreements or
documents. Any arbitral award shall be enforceable in any court, wherever
located, having jurisdiction over the party against whom the award was rendered
and may include an award of attorneys' fees and expenses, proceeding costs, and
all other costs and expenses reasonably associated with such arbitration or
enforcement proceedings (i.e., travel, lodging, telecommunications charges).
15. SURVIVAL OF OPERATIVE SECTIONS:
The respective rights and obligations of the parties hereto, including,
without limitation, the rights and obligations set forth in Sections 5(D), 6
through 14 of this Agreement, shall survive any termination of this Agreement to
the extent necessary to preserve all such rights and obligations until
discharged in full.
16. COUNTERPARTS:
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument. The execution of this Agreement may be
by actual or facsimile signature.
17. COUNSEL. Employee hereby expressly acknowledge that he has had the
opportunity to review this Agreement with counsel of his own choice prior to his
signing the agreement or its becoming effective.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day
and year first above written.
FIRST MONTAUK FINANCIAL CORP. XXXXXXX X. XXXX
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxx
--------------------------------- ---------------------------
Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxx
Title: President and C.E.O. Employee
00 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
(000) 000-0000
Address and Telephone Number
