Exhibit 10.15
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into effective as of
January 31, 2000, between Wit Capital Group, Inc., a Delaware corporation
(together with each of its subsidiaries and divisions, the "Corporation"), and
Xxxx Xxxxxx (the "Executive").
W I T N E S S E T H:
The Corporation desires to employ the Executive to have the benefits of
his expertise and knowledge. The Executive, in turn, desires employment with the
Corporation. The parties, therefore, enter into this Agreement to establish the
terms and conditions of the Executive's employment with the Corporation.
In consideration of the mutual covenants and representations contained
in this Agreement, the corporation and the Executive agree as follows:
1. EMPLOYMENT OF EXECUTIVE; DUTIES.
The Corporation agrees to employ the Executive, and the Executive
agrees to be employed by the Corporation, as a Managing Director and Chief
Financial Officer for the period specified in Section 2 (the "Employment
Period"), subject to the terms and conditions of this Agreement. During the
Employment Period, the Executive shall have such duties and responsibilities
with the Corporation and its Subsidiaries as may be properly assigned to him by
the Corporation.
2. EMPLOYMENT PERIOD. The Employment Period shall begin at the Effective
Time of the Merger (as such terms are defined therein) contemplated by the
Agreement and Plan of Merger dated as of October 31, 1999 by and among the
Corporation, S. Technology Group, Inc. ("Stamford") and W/S Merger Corp. (the
"Merger Agreement") and shall continue for 36 months.
3. BASE SALARY. During the Employment Period, the Corporation shall pay
the Executive a minimum annual base salary of $200,000. The base salary shall be
payable in equal periodic installments which are not less frequent than the
periodic installments in effect for salaries of other senior executives of the
Corporation. The base salary shall be subject to annual review by the Board of
Directors ("Board") (or a committee appointed by the Board) for upward
adjustments based on the policies of the Corporation and the Executive's
contributions to the business of the Corporation.
4. BONUS. During the Employment Period, the Executive shall be entitled
to participate in such bonus plans as are in effect from time to time for other
employees of the
Company with equal status. For the periods ending December 31, 2000, 2001 and
2002, the Executive shall be entitled to a guaranteed bonus of at least $550,000
in each period.
5. BENEFITS.
(1) In addition to and except for the matters governed by this
Agreement, the Executive shall be entitled to employee benefits and perquisites,
including but not limited to pension, deferred compensation plans, stock
options, group life insurance, disability, sickness and accident insurance and
health benefits under such plans and programs as provided to other senior
executives of the Corporation from time to time.
(2) The Executive shall be entitled to four (4) weeks paid
vacation as well as holidays, leave of absence and leave for illness and
temporary disability in accordance with the policies of the Corporation.
6. RETENTION POOL. The Executive shall be entitled to participate in a
pool of shares of the Corporation's Common Stock being allocated to certain
executives of the Corporation to encourage them to remain as highly productive
numbers of senior management (the "Retention Pool"). The Executive's interest in
the Retention Pool shall be initially 113,879 shares (based on $17.5625 share
price to be adjusted for final conversion ratio) and shall be subject to the
vesting, forfeiture and early vesting provisions set forth in the Merger
Agreement provided, however, that in the event of termination for death or
disability, as defined in Section 8.4 of this Agreement, the Executive's initial
shares in the Retention Pool shall be fully vested.
7. NON-DISCLOSURE; NON-COMPETITION.
As a condition to the employment arrangement, Executive agrees to
execute and comply with the terms and conditions of the "Wit Capital Group, Inc.
Employee Non-Disclosure, Non-Competition and Assignment of Inventions Agreement"
attached hereto as Exhibit I.
8. TERMINATION.
8.1 TERMINATION BY THE CORPORATION.
(1) The Corporation, by action of its Board, may terminate the
Executive's employment under this Agreement without Cause (as defined in Section
8.1), at any time by giving notice thereof to the Executive at least thirty (30)
days before the effective date of such termination. The Employment Period shall
terminate as of the date of such termination of employment.
(2) The Corporation, by action of its Board, may terminate the
Executive's employment under this Agreement for Cause at any time by notifying
the Executive of such
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termination. For all purposes of this Agreement, the Employment Period shall end
as of the date of such termination of employment. "Cause" shall mean the
Executive's (i) neglect, failure or refusal to timely perform the duties of his
employment (other than by reason of a physical or mental illness or impairment),
or his gross negligence in the performance of his duties, (ii) material breach
of any agreements, covenants and representations made in any employment
agreement or other agreement with the Corporation or any of its Subsidiaries,
(iii) violation of any law, rule, regulation or by-law of any governmental
authority (state, federal or foreign), any securities exchange or association or
other regulatory or self-regulatory body or agency applicable to the Corporation
or any of its Subsidiaries or any material general policy or directive of the
Corporation or any of its Subsidiaries applicable to the Executive, (iv)
conviction of, or plea of guilty or nolo contendere to, a crime involving moral
turpitude, dishonesty, fraud or unethical business conduct, or a felony, (v)
giving or accepting undisclosed material commissions or other payments in cash
or in kind in connection with the affairs of the Corporation or any of its
Subsidiaries or their clients, (vi) failure to obtain or maintain any
registration, license or other authorization or approval that the Corporation
reasonably believes is required in order for the Executive to perform his
duties, or (vii) habitual abuse of alcohol or drugs. The Corporation may require
the Executive to take a drug test prior to commencing employment with the
Corporation.
8.2 TERMINATION BY THE EXECUTIVE. The Executive may terminate this
Agreement at any time, for any reason or for no reason at all, by giving notice
thereof to the Corporation at least thirty (30) days before the effective date
of such termination. The Employment Period shall terminate as of the date of
such termination of employment.
8.3 SEVERANCE BENEFITS.
(1) If the Executive's employment under this Agreement is
terminated before the end of the Employment Period by the Corporation without
Cause or by the Executive for Good Reason (as defined in Section 8.3), the
Corporation shall pay the Executive a lump sum cash payment, within thirty (30)
days of the date of such termination, equal to the sum of: (i) the aggregate
amount of the Executive's unpaid Base Salary, payable at the annual rate in
effect on the termination date, through the end of the Employment Period; and
(ii) an amount representing the Executive's unpaid Guaranteed Bonus through the
end of the Employment Period. In addition, the Corporation shall amend to the
Executive's stock option grant that represents Executives options to purchase
the Corporation's Common Stock on the Effective Date of the Merger to provide
for immediate vesting if Executive's employment is terminated by the Corporation
without Cause. The Corporation shall also include in the restricted stock grant
to Executive of shares from the Retention Pool referred to in Section 6, a
provision that provides for immediate vesting if the Executive's employment is
terminated without Cause.
(2) If the Executive's employment under this Agreement is
terminated by the Corporation for Cause or by the Executive without Good Reason
, the Corporation shall only pay the Executive a lump sum cash payment within
thirty (30) days of the date of such termination, equal to the s Executive's
unpaid Base Salary earned to the termination date.
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(3) If the Executive dies or becomes totally disabled (as defined
in Section 8.4), the Corporation shall only pay the Executive a lump sum cash
payment within thirty (30) days of the date of such termination, equal to the
sum of: (i) Executive's unpaid Base Salary earned to the termination date; and
(ii) an amount representing the Executive's unpaid Guaranteed Bonus prorated to
the date of termination.
(4) "Good Reason" means (i) any failure by the Corporation to pay
or provide the compensation and benefits under this Agreement;
(1) a change, without Cause, in the Executive's
responsibilities which represents a materially adverse change from the
employee's responsibilities as in effect at any time within the preceding six
(6) months or a material reduction, without Cause, in the Executive's corporate
title (such as from Managing Director to Vice President) in effect at any time
within the preceding six (6) months;
(2) requiring the Executive to be based at any place
outside a 50-mile radius from the Executive's previous job location or
residence, except for reasonably required travel on business;
(3) the Corporation acquires or creates an additional
business as a result of which Soundview's institutional brokerage business, its
investment banking technology group or its technology research group, as
developed and expanded within the Corporation, is no longer the Corporation's
primary institutional brokerage business or its primary investment banking
technology group, as the case may be; or
(4) the Corporation changes its compensation methodology
from the basic methodology utilized by Soundview before the Merger such that it
no longer uses a combination of cash, stock and options in a merit based
compensation system rewarding individual performance within prevalent industry
standards, as determined by senior management and the Board of Directors.
(5) If the Executive is entitled to receive a payment or
other benefits under this Agreement upon termination of his employment with the
Corporation, the Executive hereby irrevocably waives the right to receive any
similar payments or other benefits under any broad based severance or similar
plan maintained by the Corporation ("Other Severance Plan"), provided, however,
that if the payments and other benefits provided under such Other Severance Plan
exceed the payments and other benefits under this Agreement, the Executive, in
his sole discretion, may elect to receive the payments and benefits under such
Other Severance Plan in lieu of the payments and benefits under this Agreement
upon his termination of employment.
8.4 TERMINATION BY DEATH OR DISABILITY. This Agreement shall terminate
automatically upon the Executive's death. If the Corporation determines in good
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faith that the Executive has a "total disability" (within the meaning of such
term or of a similar term as defined in the Corporation's long-term disability
plan as in effect from time to time), the Corporation may terminate his
employment under this Agreement by notifying the Executive thereof at least
thirty (30) days before the effective date of such termination. Notwithstanding
anything to the contrary contained in any other agreement, if this Agreement is
terminated by death or disability, the unvested options held by Employee on the
Effective Time of the Merger shall be fully vested on such termination.
9. NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and if sent by
registered or certified mail to the Executive at the last address he has filed
in writing with the Corporation or, in the case of the Corporation, to the
Corporation's principal executive offices.
10. WITHHOLDING TAXES. The Corporation shall have the right, to the
extent permitted by law, to withhold from any payment of any kind due to the
Executive under this Agreement to satisfy the tax withholding obligations of the
Corporation under applicable law.
11. BINDING AGREEMENT. This Agreement shall be binding upon the
Executive and the Corporation on and after the date of this Agreement. The
rights and obligations of the Corporation under this Agreement shall inure to
the benefit of and shall be binding upon the Corporation and any successor of
the Corporation, and the benefits of this Agreement shall inure to the benefit
of the Executive's estate and beneficiaries in the event of the Executive's
death. Wit Capital Group, Inc. may assign this Agreement to any subsidiary,
parent or affiliate, without the consent of the Executive, and such assignment
shall not, in and of itself, constitute, a termination of employment under this
Agreement.
12. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding of the Executive and the Corporation with respect to the subject
matter hereof and supersedes and voids any and all prior agreements or
understandings, written or oral, regarding the subject matter hereof. This
Agreement may not be changed, modified, or discharged orally, but only by an
instrument in writing signed by the parties.
13. GOVERNING LAW AND SEVERABILITY. This Agreement shall be governed by
the laws of the State of New York (without giving effect to choice of law
principles or rules thereof that would cause the application of the laws of any
jurisdiction other than the State of New York) and the invalidity or
unenforceability of any provisions hereof shall in no way affect the validity or
enforceability of any other provision. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective only to the extent of such prohibition or unenforceability
without invalidating or affecting the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
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14. ARBITRATION. DISPUTES REGARDING THE EXECUTIVE'S EMPLOYMENT WITH THE
CORPORATION, INCLUDING, WITHOUT LIMITATION, ANY DISPUTE UNDER THIS AGREEMENT
WHICH CANNOT BE RESOLVED BY NEGOTIATIONS BETWEEN THE CORPORATION AND THE
EXECUTIVE, BUT EXCLUDING ANY DISPUTES REGARDING THE EXECUTIVE'S COMPLIANCE WITH
THE RESTRICTIONS OF THE EMPLOYEE-NON-DISCLOSURE, NON-COMPETITION AND ASSIGNMENT
OF INVENTIONS AGREEMENT REFERRED TO IN SECTION 7 OF THIS AGREEMENT, SHALL BE
SUBMITTED TO, AND SOLELY DETERMINED BY, FINAL AND BINDING ARBITRATION CONDUCTED
BY JAMS/ENDISPUTE, INC.'S ARBITRATION RULES APPLICABLE TO EMPLOYMENT DISPUTES,
AND THE PARTIES AGREE TO BE BOUND BY THE FINAL AWARD OF THE ARBITRATOR IN ANY
SUCH PROCEEDING. THE ARBITRATOR SHALL APPLY THE LAWS OF THE STATE OF NEW YORK
WITH RESPECT TO THE INTERPRETATION OR ENFORCEMENT OF ANY MATTER RELATING TO THIS
AGREEMENT; IN ALL OTHER CASES THE ARBITRATOR SHALL APPLY THE LAWS OF THE STATE
SPECIFIED IN THE CORPORATION'S ALTERNATIVE DISPUTE RESOLUTION POLICY AS IN
EFFECT FROM TIME TO TIME (IF ANY). ARBITRATION MAY BE HELD IN CONNECTICUT [IN]
AGREEMENTS WITH EXECUTIVES BASED IN CONNECTICUT], SAN FRANCISCO [IN AGREEMENTS]
WITH EXECUTIVE BASED IN CALIFORNIA], OR SUCH OTHER PLACE AS THE PARTIES HERETO
MAY MUTUALLY AGREE, AND SHALL BE CONDUCTED SOLELY BY A FORMER JUDGE. JUDGMENT
UPON THE AWARD BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION
THEREOF.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
WITNESS/ATTEST WIT CAPITAL GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx,
Co-Chief Executive Officer
EXECUTIVE
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
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