Exhibit 10.9
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
by and between
MAXCOR FINANCIAL GROUP INC.
and
Xxxxx X. Xxxxxx
TABLE OF CONTENTS
SECTION PAGE
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1. Employment............................................................................1
2. Term..................................................................................1
3. Position and Duties...................................................................2
4. Place of Performance..................................................................2
5. Compensation and Related Matters......................................................2
(a) Base Salary.......................................................................2
(b) Guaranteed Bonus..................................................................3
(c) Other Bonuses.....................................................................3
(d) Proration.........................................................................3
(e) Expenses..........................................................................3
(f) Other Benefits....................................................................3
(g) Vacation..........................................................................4
(h) Services Furnished................................................................4
6. Offices...............................................................................4
7. Termination...........................................................................4
(a) Death.............................................................................5
(b) Disability........................................................................5
(c) Cause.............................................................................5
(d) Good Reason.......................................................................6
(e) Change in Control.................................................................8
(f) Unilateral.......................................................................10
8. Termination Procedure................................................................10
(a) Notice of Termination............................................................10
(b) Date of Termination..............................................................10
(c) Compensation During Dispute......................................................11
9. Compensation upon Termination
or During Disability.................................................................11
(a) Disability; Death................................................................11
(b) By Company without Cause or by the
Executive for Good Reason........................................................12
(c) By Company for Cause or by the Executive
Other than for Good Reason.......................................................13
(d) Compensation Plans...............................................................13
10. Mitigation...........................................................................13
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11. Confidential Information; Noncompetition.............................................14
(a) Confidential Information.........................................................14
(b) Noncompetition Requirement.......................................................14
(c) Salary and Bonus Continuation....................................................15
(d) Injunctive Relief................................................................15
12. Indemnification; Legal Fees..........................................................16
13. Successors; Binding Agreement........................................................16
(a) Company's Successors.............................................................16
(b) Executive's Successors...........................................................17
14. Notice...............................................................................17
15. Miscellaneous........................................................................17
16. Validity.............................................................................18
17. Counterparts.........................................................................18
18. Entire Agreement.....................................................................18
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED AGREEMENT, dated as of August 14, 1998,
by and between Xxxxx X. Xxxxxx (the "Executive"), and Maxcor Financial Group
Inc. (formerly Financial Services Acquisition Corporation), a Delaware
corporation (the "Company"), restating the employment agreement between the
parties hereto, dated as of September 11, 1996 (the "1996 Agreement").
WHEREAS, the Company currently employs the Executive and the
Executive currently furnishes services to the Company and its subsidiaries on
the terms and conditions set forth in the 1996 Agreement; and
WHEREAS, the Board recognizes that, as is the case with many
publicly held corporations, the possibility of a Change in Control exists and
that such possibility, and the uncertainty and questions which it may raise
among management, may result in the departure or distraction of management
personnel to the detriment of the Company and its stockholders; and
WHEREAS, the Board has determined that appropriate steps
should be taken to reinforce and encourage the continued attention and
dedication of members of the Company's management, including the Executive, to
their assigned duties without distraction in the face of potentially disturbing
circumstances arising from the possibility of a Change in Control; and
WHEREAS, the parties desire to amend and restate the 1996
Agreement in order to add certain Change in Control and other provisions;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements set forth below, the parties hereby agree as follows:
11 Employment. The Company hereby agrees to continue to employ
the Executive, and the Executive hereby accepts such continued employment, on
the terms and conditions hereinafter set forth.
12 Term. The period of employment of the Executive by the
Company hereunder (the "Employment
Period") shall commence (the "Commencement Date") on October 1, 1996, and end on
the fifth anniversary of the Commencement Date, unless further extended as
provided in this Section 2 or sooner terminated as provided in Section 7. On the
fourth anniversary of the Commencement Date and on each successive anniversary
thereafter, the contract term of the Executive's employment shall be
automatically extended for one (1) additional year unless, on or prior to such
anniversary, the Company shall have delivered to the Executive or the Executive
shall have delivered to the Company written notice that the term of the
Executive's employment hereunder will not be extended (the initial five-year
contract term, as it may be so extended, the "Contract Term"); provided,
however, that, if a Change in Control shall have occurred during the original or
extended term of this Agreement, the Contract Term shall continue in effect for
at least twenty-four (24) months subsequent to the month in which such Change in
Control occurs.
13 Position and Duties. During the Employment Period, the
Executive shall serve as Vice President, General Counsel, and Secretary of the
Company and Executive Vice President, General Counsel and Secretary of the
Company's subsidiary, Euro Brokers Investment Corporation ("EBIC"). The
Executive's responsibilities and authority shall include such responsibilities
and authority as may from time to time be assigned to the Executive by the
Chairman of the Company, provided that such responsibilities and authority are
consistent with the Executive's position with the Company and EBIC. The
Executive shall report directly to the Chairman. During the Employment Period,
the Executive agrees to devote substantially all of his working time and efforts
to the performance of his duties for the Company and EBIC.
14 Place of Performance. In connection with the Executive's
employment by the Company, the Executive shall be based at the principal
executive offices of EBIC in New York, New York, except for reasonably required
travel on the Company's business.
15 Compensation and Related Matters.
(0) Base Salary. As compensation for the performance by the
Executive of his obligations hereunder, during the Employment Period, the
Company shall pay
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the Executive a base salary at the rate of $250,000 per annum ("Base Salary").
Base Salary shall be paid in approximately equal installments in accordance with
the Company's customary payroll practices. Base Salary may be increased from
time to time in accordance with the normal business practices of the Company
and, if so increased, shall not thereafter during the Employment Period be
decreased.
(1) Guaranteed Bonus. During the Employment Period, the
Company shall pay the Executive a guaranteed minimum bonus at the rate of
$50,000 per annum ("Minimum Bonus"). Minimum Bonus shall be paid in
approximately equal semi-annual installments. Minimum Bonus may be increased
from time to time in accordance with the normal business practices of the
Company.
(2) Other Bonuses. During the Employment Period, the
Executive shall be eligible to receive, in addition to the Minimum Bonus, such
semi-annual bonuses as may be awarded to him as the Chairman of the Company
shall determine, or if an annual incentive plan is adopted by the Company or a
subsidiary thereof, in accordance with the terms of such plan.
(3) Proration. The Executive shall be entitled to pro rata
payments under Section 5(b) above, and to be considered for pro rata payments
under Section 5(c) above, in each case to the extent that the period of his
service to the Company at the regular time for the determination for such
payments is less than the full period over which the determination of such
payments is normally measured.
(4) Expenses. The Company shall promptly reimburse the
Executive for all reasonable business expenses incurred during the Employment
Period by the Executive in performing services hereunder, including all expenses
of travel and living expenses while traveling on business or at the request of
and in the service of the Company, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by the
Company.
(5) Other Benefits. The Executive shall be entitled to
participate in all of the employee benefit plans currently maintained by the
Company or a subsidiary thereof, in accordance with the terms of such plans, and
shall be entitled to participate in or receive benefits under any employee
benefit plan made available by the Company or a subsidiary
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thereof in the future to its executives and key management employees (including
without limitation each incentive plan, pension and retirement plan,
supplemental pension and retirement plan, stock option plan, life insurance and
health-and-accident plan, medical insurance plan, disability plan, survivor
income plan, relocation plan and vacation plan), subject to and on a basis
consistent with the terms, conditions and overall administration of such plans.
Nothing paid to the Executive under any plan currently in effect or made
available in the future shall be deemed to be in lieu of the salary or bonus
payable to the Executive pursuant to subsections (a) and (b) of this Section 5.
(6) Vaction. The Executive shall be entitled to 20 vacation
days in each calendar year(and a pro rata number of vacation days for any
initial portion of the Employment Period that is not a full calendar year). The
Executive shall also be entitled to all paid holidays given by the Company to
its executives.
(7) Services Furnished. During the Employment Period, the
Company shall furnish the Executive with office space, stenographic assistance
and such other facilities and services as shall be suitable to the Executive's
position and adequate for the performance of his duties as set forth in Section
3 hereof.
16 Offices. Subject to Section 3 hereof, the Executive agrees
to serve without additional compensation, if elected or appointed thereto, as a
director of the Company or any subsidiaries of the Company and as a member of
any committees of the board of directors of any such corporations, and in one or
more executive positions of any of the Company's subsidiaries, provided that the
Executive is indemnified for serving in any and all such capacities on a basis
no less favorable than is currently provided to any other director of the
Company or any of its subsidiaries, or any such executive position, as the case
may be.
17 Termination. The Executive's employment hereunder (and the
Employment Period) may be terminated without any breach of this Agreement only
under the
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circumstances set forth in the following subsections (a), (b), (c),
(d) and (f).
(0) Death. The Executive's employment hereunder (and the
Employment Period) shall terminate upon his death.
(1) Disability. If, as a result of the Executive's incapacity
due to physical or mental illness, the Executive shall have been absent from the
full-time performance of his duties hereunder for the entire period of six
consecutive months, and within thirty (30) days after written Notice of
Termination (as defined in Section 8 hereof) is given shall not have returned to
the performance of his duties hereunder on a full-time basis, the Company may
terminate the Executive's employment hereunder (and the Employment Period) for
"Disability."
(2) Cause. The Company may terminate the Executive's
employment hereunder (and the Employment Period) for Cause. For purposes of this
Agreement, the Company shall have "Cause" to terminate the Executive's
employment hereunder upon the occurrence of any of the following events:
(1) the conviction of the Executive for the commission of
a felony; or
(2) the willful and continuing failure by the Executive to
substantially perform his duties hereunder (other than such failure
resulting from the Executive's incapacity due to physical or mental
illness or subsequent to the issuance of a Notice of Termination by the
Executive for Good Reason) after demand for substantial performance is
delivered by the Company in writing that specifically identifies the
manner in which the Company believes the Executive has not
substantially performed his duties; or
(3) the willful misconduct by the Executive (including,
but not limited to, breach by the Executive of the provisions of
Section 11 hereof) that is demonstrably and materially injurious to the
Company or its subsidiaries, whether monetarily or otherwise.
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For purposes of this Section 7(c), no act or failure to act on the Executive's
part shall be considered "willful" unless done or failed to be done by the
Executive in bad faith and without reasonable belief that the Executive's action
or omission was in the best interest of the Company.
(3) Good Reason. The Executive may terminate his employment
hereunder (and the Employment Period) during the Contract Term for "Good Reason"
after the occurrence, without the written consent of the Executive, of an event
constituting a material breach of this Agreement by the Company that has not
been fully cured within ten (10) days after written notice thereof has been
given by the Executive to the Company, provided that, without limiting the
generality of the foregoing, on and after a Change in Control, any one of the
following events shall be deemed a material breach of this Agreement:
(1) the assignment to the Executive of any duties
inconsistent with the Executive's status as a senior executive officer
of the Company or a substantial adverse alteration in the nature of the
Executive's responsibilities from those in effect immediately prior to
the Change in Control, or being required to report to anyone other than
the Chairman;
(2) a reduction by the Company in the Executive's Base
Salary as in effect immediately prior to the Change in Control;
(3) the relocation of the Executive's principal place of
employment to a location outside of Manhattan, New York;
(4) the failure by the Company to pay to the Executive any
portion of the Executive's current compensation or to pay to the
Executive any portion of an installment of deferred compensation under
any deferred compensation program of the Company within fifteen (15)
days of the date such compensation is due;
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(5) the failure by the Company to provide the Executive
with compensation plans which, in the aggregate, provide the Executive
with substantially comparable compensation opportunities to those
compensation opportunities for which the Executive was eligible
immediately prior to the Change in Control;
(6) the failure by the Company to continue to provide the
Executive with benefits substantially similar to those enjoyed by the
Executive under any of the Company's pension, life insurance, medical,
health and accident, or disability plans in which the Executive was
participating at the time of the Change in Control, the taking of any
action by the Company which would directly or indirectly materially
reduce any of such benefits or deprive the Executive of any material
perquisite or other fringe benefit, or secretarial service and office
space at the level, enjoyed by the Executive at the time of the Change
in Control, or the failure by the Company to provide the Executive with
the number of paid vacation days to which the Executive is entitled
under this Agreement;
(7) any purported termination of the Executive's
employment which is not effected pursuant to a Notice of Termination
satisfying the requirements of Section 8(a) or that does not comply
with Section 7(c), if applicable (and for purposes of this Agreement,
no such purported termination shall be effective); or
(8) the failure of a successor to the Company to expressly
assume and agree to perform this Agreement pursuant to Section 13(a)
hereof.
The Executive's right to terminate his employment hereunder for Good Reason
shall not be affected by his incapacity due to physical or mental illness. The
Executive's continued employment shall not constitute consent to, or
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a waiver of rights with respect to, any act or failure to act constituting Good
Reason hereunder.
(4) Change in Control. A "Change in Control" shall be deemed
to have occurred if the event set forth in any one of the following paragraphs
shall have occurred:
(1) any Person (as defined hereinbelow) becomes the
Beneficial Owner, directly or indirectly, of securities of the Company
(as defined hereinbelow) representing 25% or more of the combined
voting power of the Company's then outstanding securities, excluding
(x) any Person who becomes such a Beneficial Owner in connection with a
transaction described in clause (A) of paragraph (iii) below and (y)
any Person who currently is such a Beneficial Owner unless such Person
becomes the Beneficial Owner of additional securities of the Company
representing 5% or more of the combined voting power of the Company's
then outstanding securities; or
(2) the following individuals cease for any reason to
constitute a majority of the number of directors then serving:
individuals who, on the date of this amended and restated Agreement,
constitute the Board and any new director (other than a director whose
initial assumption of office is in connection with an actual or
threatened election contest, including but not limited to a consent
solicitation, relating to the election of directors of the Company)
whose appointment or election by the Board or nomination for election
by the Company's stockholders was approved or recommended by a vote of
at least two-thirds (2/3) of the directors then still in office who
either were directors on the date hereof or whose appointment, election
or nomination for election was previously so approved or recommended;
or
(3) there is consummated a merger or consolidation of the
Company or any direct or indirect subsidiary of the Company
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with any other corporation, other than (A) a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity or any parent thereof) at
least 60% of the combined voting power of the securities of the Company
or such surviving entity or any parent thereof outstanding immediately
after such merger or consolidation, or (B) a merger or consolidation
effected to implement a recapitalization of the Company (or similar
transaction) in which no Person becomes the Beneficial Owner, directly
or indirectly, of securities of the Company representing 25% or more of
the combined voting power of the Company's then outstanding securities,
excluding any Person who currently is such a Beneficial Owner unless
such Person becomes the Beneficial Owner of additional securities of
the Company representing 5% or more of the combined voting power of the
Company's then outstanding securities; or
(4) the stockholders of the Company approve a plan of
complete liquidation or dissolution of the Company or there is
consummated an agreement for the sale or disposition by the Company of
all or substantially all of the Company's assets, other than a sale or
disposition by the Company of all or substantially all of the Company's
assets to an entity, at least 60% of the combined voting power of the
voting securities of which are owned by stockholders of the Company in
substantially the same proportions as their ownership of the Company
immediately prior to such sale.
For purposes of this Section 7(e), "Person" shall have the
meaning given in Section 3(a)(9) of the Securities Exchange Act of 1934, as
modified and used in Sections 13(d) and 14(d) thereof, except that such term
shall not include (i) the Company or any of its subsidiaries, (ii) a trustee or
other fiduciary holding securities under an employee benefit plan of the Company
or any of its Affiliates, (iii) an underwriter temporarily
9
holding securities pursuant to an offering of such securities, or (iv) a
corporation owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company.
For purposes of this Section 7(e), "Beneficial Owner" shall
have the meaning set forth in Rule 13d-3 under the Exchange Act.
(5) Unilateral. The Executive may unilaterally terminate his
employment hereunder (and the Employment Period) during the Contract Term other
than for Good Reason, and without the Company's consent, upon not less than 60
days' written notice to the Company.
18 Termination Procedure.
(0) Notice of Termination. Any termination of the
Executive's employment by the Company or by the Executive (other than
termination pursuant to Section 7(a) hereof) shall be communicated by written
Notice of Termination to the other party hereto in accordance with Section 14.
For purposes of this Agreement, a "Notice of Termination" shall mean a notice
which shall indicate the specific termination provision in this Agreement relied
upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated.
(1) Date of Termination. "Date of Termination" shall mean
(i) if the Executive's employment is terminated by his death, the date of his
death, (ii) if the Executive's employment is terminated for Disability pursuant
to Section 7(b), thirty (30) days after Notice of Termination (provided that the
Executive shall not have returned to the performance of his duties on a
full-time basis during such thirty (30) day period), (iii) if the Executive's
employment is terminated for Cause pursuant to Section 7(c), the date specified
in the Notice of Termination, which shall not be earlier than the date of the
Notice of Termination and (iv) if the Executive's employment is terminated for
any other reason, the date on which a Notice of Termination is given or any
later date (within 60 days) set forth in such Notice of Termination;
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provided, however, that if either party notifies the other party that a dispute
exists concerning the termination, the Date of Termination shall be the date on
which the dispute is finally determined, either by mutual written agreement of
the parties, by a binding and final arbitration award or by a final judgment,
order or decree of a court of competent jurisdiction (the time for appeal
therefrom having expired and no appeal having been perfected); provided further,
however, that the Date of Termination shall be extended by a notice of dispute
given by the Executive only if such notice is given in good faith and the
Executive pursues the resolution of such dispute with reasonable diligence.
(2) Compensation During Dispute. If a purported termination
occurs on or after a Change in Control and during the Contract Term, and such
termination is disputed in accordance with subsection (b) of this Section 8, the
Company shall continue to pay the Executive the full compensation in effect when
the notice giving rise to the dispute was given (including, but not limited to,
salary) and continue the Executive as a participant in all compensation, benefit
and insurance plans in which the Executive was participating when the notice
giving rise to the dispute was given, until the Date of Termination, determined
in accordance with subsection (b) of this Section 8. Amounts paid under this
Section 8(c) are in addition to all other amounts due under this Agreement and
shall not be offset against or reduce any other amounts due under this
Agreement.
19 Compensation upon Termination or During Disability.
(0) Disability; Death. During any period that the Executive
fails to perform his duties hereunder as a result of incapacity due to physical
or mental illness ("Disability Period"), the Executive shall continue to receive
his full Base Salary and Minimum Bonus at the rate in effect at the beginning of
such period and continue as a participant in all compensation and employee
benefit plans in which the Executive was participating pursuant to Section 5(f)
until his employment is terminated pursuant to Section 7(b) and shall continue
to receive such Base Salary and Minimum Bonus for a period of six months
thereafter. Subsequent to the six-month period following termination of the
Executive's employ-
11
ment pursuant to Section 7(b), or in the event the Executive's employment is
terminated by reason of his death, the Company shall have no further obligations
to the Executive under this Agreement and the Executive's benefits shall be
determined under the Company's retirement, insurance and other compensation
programs then in effect in accordance with the terms of such programs.
(1) By Company without Cause or by the Executive for Good
Reason. If during the Contract Term the Executive's employment is terminated by
the Company other than for Cause or Disability or by the Executive for Good
Reason, then --
(1) in addition to any amounts due the Executive
pursuant to Sections 5(a), 5(b) or 5(c) hereof, the Company shall
continue to pay to the Executive (or his legal representatives or
estate) his Base Salary and Minimum Bonus (at the rate in effect
immediately prior to the occurrence of the circumstance giving rise to
the Notice of Termination) for the remainder of the Contract Term or,
if greater, for one year (the "Severance Payments"); provided, however,
that if such termination of employment occurs following a Change in
Control, then the aggregate Severance Payments shall be made in an
undiscounted cash lump sum within five (5) days following the Date of
Termination; and
(2) the Company or a subsidiary thereof shall maintain
in full force and effect, for the continued benefit of the Executive
and his dependents for the remainder of the Contract Term or, if
greater, for one year, all medical, dental and life insurance benefit
plans and programs in which the Executive was entitled to participate
immediately prior to the Date of Termination, provided that the
Executive's continued participation is possible under the general terms
and provisions of such plans and programs. In the event that the
Executive's participation in any such plan or program is barred, the
Company shall arrange to provide the Executive and his dependents with
benefits substantially similar to those which
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the Executive and his dependents would otherwise have been entitled to
receive under such plans and programs from which their continued
participation is barred; and
(3) the Executive shall be deemed to continue as an
employee of the Company during the remainder of the Contract Term for
purposes of the exercise and/or vesting of outstanding stock and stock
option awards and cash incentive awards.
(2) By Company for Cause or by the Executive Other than for
Good Reason. If the Executive's employment shall be terminated by the Company
for Cause or by the Executive other than for Good Reason, then the Company shall
pay the Executive his Base Salary and Minimum Bonus (at the rate in effect at
the time Notice of Termination is given) through the Date of Termination, and
the Company shall have no additional obligations to the Executive under this
Agreement except as set forth in subsection (d) of this Section 9.
(3) Compensation Plans. Following any termination of the
Executive's employment, the Company shall pay the Executive all unpaid amounts,
if any, to which the Executive is entitled as of the Date of Termination under
any compensation plan or program of the Company, at the time such payments are
due.
110 Mitigation. The Executive shall not be required to mitigate
the amount of any payment provided for the Executive by seeking other employment
or otherwise, nor, except as is hereinafter specifically provided in this
Section 10, shall the amount of any payment or benefit provided for the
Executive hereunder be reduced by any compensation earned by the Executive as
the result of employment by another employer, by retirement benefits, by offset
against any amount claimed to be owed by the Executive to the Company or
otherwise. If the Executive's employment is terminated prior to a Change in
Control, then to the extent that the Executive, during the relevant period
described in Section 9(b)(i) hereof, shall receive from a subsequent employer
base salary and/or any bonus similar to the Minimum Bonus, the payments to be
provided under the provisions of said Section shall be correspondingly reduced.
To the extent that the
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Executive, during the relevant period described in Section 9(b)(ii) hereof,
shall receive from a subsequent employer benefits similar to those to be
provided under Section 9(b)(ii), the benefits to be provided under the
provisions of said Section shall be correspondingly reduced.
111 Confidential Information; Noncompetition Requirement.
(0) Confidential Information. The Executive shall hold in a
fiduciary capacity for the benefit of the Company all trade secrets and
confidential information relating to the Company and its businesses, which shall
have been obtained by the Executive during the Executive's employment by the
Company and which shall not have been or now or hereafter have become public
knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement). The Executive shall not, without the
prior written consent of the Company or as may otherwise be required by law or
legal process, communicate or divulge any such trade secrets or information to
anyone other than the Company and those designated by the Company. Any
termination of the Executive's employment or of this Agreement shall have no
effect on the continuing operation of this Section 11(a).
(1) Noncompetition Requirement. During (1) any period that
the Executive is performing services hereunder, (2) a period of six (6) months
following a termination of the Executive's employment by the Company for Cause
or by the Executive other than for Good Reason (if the Company so requests,
notifies and pays the Executive as provided in Section 11(c) below), (3) on or
after a Change in Control, a period of six (6) months following a termination of
the Executive's employment by the Executive for Good Reason, and (4) with
respect to clauses (i) and (ii) of this Section 11(b), any period with respect
to which the Executive is entitled to payment pursuant to Section 9(b)(i) or, if
shorter, a period of one year, the Executive agrees that, without the prior
written consent of the Company, he shall not, directly or indirectly, with or
without pay, either as an employee, employer, consultant, agent, principal,
partner, stockholder, corporate officer, director, manager, investor, lender,
advisor, owner, associate or in any other individual or
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representative capacity, (i) solicit, entice, encourage or otherwise attempt to
procure or service by telephone or otherwise accounts from any customers
(determined as of the Date of Termination) of the Company or a subsidiary
thereof for a business that is directly competitive (a "Competitive Business")
with the business in which the Company is then engaged (the "Business"), (ii)
solicit, entice or encourage any employee (determined as of the Date of
Termination) of the Company or a subsidiary thereof to terminate such employee's
employment in order to work in a Competitive Business, or (iii) upon the written
request of the Company, directly engage or participate in any Competitive
Business unless such Competitive Business is located more than seventy-five (75)
miles from the site, as of the Date of Termination, of the Company's executive
offices in New York; provided, however, that (x) trading by the Executive for
his own benefit or in proprietary accounts shall not constitute a Competitive
Business and (y) the Executive may engage or participate in a business which has
a Competitive Business as a component or portion thereof if engaging or
participating in such Competitive Business does not constitute a substantial
part of the Executive's duties.
(2) Salary and Bonus Continuation. Following a termination
of the Executive's employment by the Company for Cause or by the Executive other
than for Good Reason, the Company may elect, by written notice given to the
Executive within 7 days of such notice of termination, to require the Executive
to perform the covenant provided in subsection (b)(iii) of this Section 11
during the six-month period following the effectiveness of such termination. As
additional consideration for the Executive's performance of such covenant during
such period, but only for so long as the Executive shall continue to perform
such covenant, the Company shall pay the Executive for each month during such
six-month period an amount equal to one-twelfth (1/12th) of the Executive's Base
Salary and Minimum Bonus. It is agreed and understood that such payment
constitutes full and fair consideration to the Executive for observance of such
covenant.
(3) Injunctive Relief. In the event of a breach or
threatened breach of subsections (a), (b) or (c) of this Section 11, the
Executive agrees that the Company shall be entitled to injunctive relief in a
court of appropriate jurisdiction to remedy any such breach or
15
threatened breach, the Executive acknowledging that damages would be inadequate
and insufficient.
112 Indemnification; Legal Fees. The Company shall indemnify
the Executive to the full extent permitted by law and the by-laws of the Company
for all expenses, costs, liabilities and legal fees which the Executive may
incur in the discharge of his duties hereunder. The Company shall also reimburse
the Executive for any reasonable legal fees and expenses incurred by the
Executive in contesting or disputing any termination of the Executive's
employment hereunder or in seeking to obtain or enforce any right or benefit
provided by this Agreement, but only if the Executive shall substantially
prevail with respect to the preponderance of the matters at issue. Such payments
shall be made within five (5) days after the Executive's request for payment
accompanied with such evidence of his having prevailed (as described in the
preceding sentence) and such evidence of the fees and expenses incurred, as the
Company may reasonably require. Any termination of the Executive's employment or
of this Agreement shall have no effect on the continuing operation of this
Section 12.
113 Successors; Binding Agreement.
(0) The Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. Failure of the Company to obtain such assumption and agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the Company in
the same amount and on the same terms as he would be entitled to hereunder if
the Company had terminated his employment other than for Cause, except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Date of Termination. As used in this
Agreement, "Company" shall mean the Company as herein before defined and any
successor to its business and/or assets as aforesaid which executes and delivers
the agreement provided for in this Section 13 or which otherwise be-
16
comes bound by all the terms and provisions of this Agreement by operation of
law.
(1) Executive's Successors. This Agreement and all rights
of the Executive hereunder shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive should
die while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts unless otherwise provided herein shall be
paid in accordance with the terms of this Agreement to the Executive's devisee,
legatee, or other designee or, if there be no such designee, to the Executive's
estate.
114 Notice. For the purposes of this Agreement, notices,
demands and all other communications provided for in this Agreement shall be in
writing and shall be deemed to have been duly given when delivered or (unless
otherwise specified) mailed by United States certified or registered mail,
return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
Xxxxx X. Xxxxxx
000 Xxxx 000xx Xxxxxx, Xxx. 00X
Xxx Xxxx, Xxx Xxxx 00000
With a copy to the offices of the Company
If to the Company:
Maxcor Financial Group Inc.
Two World Trade Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chairman
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
115 Miscellaneous. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and an authorized officer of the
Company (other than the Executive). No waiver by
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either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. This Agreement shall be binding on all successors
to the Company. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of New York without
regard to its conflicts of law principles. Any payments provided for hereunder
shall be paid net of any applicable withholding required under federal, state or
local law. The obligations of the Company and the Executive under this Section
15 and Sections 8, 9, 10, 11, 12 and 13 hereof shall survive the expiration of
the term of or the termination of this Agreement. The compensation and benefits
payable to the Executive under this Agreement shall be in lieu of any other
severance benefits to which the Executive may otherwise be entitled upon his
termination of employment under any severance plan, program, policy or
arrangement of the Company.
116 Validity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
117 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
118 Entire Agreement. This Agreement sets forth the entire
agreement of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto; and any prior agreement
of the parties hereto in respect of the subject matter contained herein is
hereby terminated and cancelled.
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IN WITNESS WHEREOF, the parties have executed this Agreement
on the date first above written.
MAXCOR FINANCIAL GROUP INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
/s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
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