Exhibit 10.12.b
Employment Agreement
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of the 1st
day of October, 2002 (the "Effective Date"), by and between INTERNATIONAL ASSETS
HOLDING CORPORATION, a Delaware corporation (the "Company"), and DIEGO X. XXXXXX
(the "Executive").
R E C I T A L S
A. The Company, directly or through its subsidiaries, operates a financial
services company, including a market making and proprietary trading firm
specializing in global securities.
B. The Executive is Chairman of the Board of the Company, and may hold such
offices in its subsidiaries as may be appropriate for the conduct of its
business.
C. The Company is a publicly held entity, having previously offered shares of
the Company's common stock pursuant to a registration statement, and continues
to file reports as to the Company's business.
D. The Board of Directors of the Company (the "Board") considers it essential to
the best interests of the Company that the Executive commence employment with
the Company.
E. In order to induce the Executive to accept employment with the Company, the
Company desires to enter into this Agreement with the Executive, and to be bound
by it.
F. The Executive, desiring to accept employment by the Company, agrees to be
bound by the covenants herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth
hereinafter, the Company and the Executive agree as follows:
1. Recitals. All of the above recitals are true and correct.
2. Term. The term of this Agreement shall be for a period of three years
commencing on the Effective Date, subject, however, to prior termination as
herein provided. Thereafter, this Agreement shall automatically renew for one
additional year unless either party shall have given written notice to the other
of its intent not to renew the Agreement no less than 90 days prior to the end
of the initial three year term of this Agreement and may be further extended by
the mutual written agreement of the Company and the Executive on a yearly basis.
3. Duties. During the period of employment (except as otherwise agreed by the
Executive), the Executive will be employed as the Chairman of the Board of the
Company and shall have powers and duties as may from time to time be delegated
to the Chairman by the Board. The Executive shall report to the Board. The
Company acknowledges that the Executive is not required to devote his full-time
business efforts t the affairs of the Company. The Company acknowledges that the
Executive is involved in the conduct of other business entities, and may
continue such involvement during the term of this agreement.
4. Indemnification. The Company agrees to defend, indemnify and hold harmless
the Executive for acts in his capacity as Executive to the fullest extent
permitted by Delaware corporate law at the present time (or as such right of
indemnity may be increased in the future). The Company agrees to reimburse the
Executive on a monthly basis for any cost of defending any action or
investigation (including reasonable attorneys' fees and expenses) subject to an
undertaking from the Executive
to repay the Company if the Executive is determined not to be entitled to such
indemnity by a Court of competent jurisdiction.
5. Compensation and Related Matters.
(a) Basic Salary. As a compensation for the duties to be performed by the
Executive hereunder, the Company will pay the Executive a base salary at an
annual rate of $12,000 per year through the three-year term hereof. The
Executive's base salary shall be payable in accordance with the customary
payroll practices of the company as in effect from time to time during the
period of employment.
(b) Bonus Plan.
(i) In addition to the base salary, the Executive shall be entitled to
additional compensation in an amount determined by the Board taking into account
the consolidated pre-tax earnings of the Company (including its subsidiaries)
for each fiscal year that ends during the initial three year term hereof.
(ii) For purposes of this Section 5(b), the "consolidated pre-tax
earnings of the Company" shall be determined by the independent public
accountants then regularly servicing the Company, in accordance with generally
accepted accounting principles, consistently applied, based on the audited
consolidated financial statements of the Company for such fiscal year, which
determination shall be binding on the parties hereto.
(iii) Additional compensation authorized by the Board shall be paid
within sixty days after the later of: (A) the date on which the Company's
independent accountants delivers its final report on the audited consolidated
financial statements of the Company for the relevant fiscal year, or (B) the
next December 31 following the end of such fiscal year.
(c) Stock Options. The Executive shall be eligible to participate in the
Stock Option Plan (the "Plan") to be established by the Company subject to
stockholder approval at the next convened annual general meeting of the
Company's stockholders. In the event the Plan is approved by the stockholders,
the Executive shall receive grants of options thereunder as provided in
subsection 5(c)(ii) hereof and at such other times as consideration shall be
given by the Board or such committee to the grants of stock options generally to
senior executive officers of the Company. If the Plan shall not be approved by
the stockholders or if the Plan is approved by the stockholders but shall
subsequently be terminated or if no options remain available for grant
thereunder, the Executive shall be entitled to participate in such other
incentive program as the Company may substitute for the Plan for its senior
executive officers.
(d) Additional Compensation. The Company may award additional bonuses to the
Executive from time to time in amounts as determined by the Board or a committee
of the Board, and such compensation shall be payable in the manner and at the
time or times directed by the Board or its committee.
(e) Reimbursement of Expenses. During the term of this Agreement, the
Company shall promptly pay or reimburse the Executive for all reasonable
business expenses actually incurred or paid by the Executive in the performance
of his services hereunder (including annual membership dues), all in accordance
with the policies and procedures of the Company for the reimbursement of
business expenses of its senior executive officers, provided that the Executive
properly accounts therefor in accordance with Company policy.
(f) Benefits. The Company shall, at its sole cost, and expense, provide life
insurance, medical insurance, disability insurance, retirement and other
benefits comparable to those provided by comparable companies to their senior
executive officers.
(g) Automobile. The Company shall continue to furnish the Executive a leased
car until the lease term of the currently provided automobile is concluded,
subject to monthly total cost of $600.
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6. Vacation, Days Off. The Executive may take a maximum of 4 weeks vacation per
year, at times to be determined in the manner most convenient for the business
of the Company. In addition, the Executive may take time off at such times as
may be determined by the Board to attend such meetings and postgraduate courses
as may comply with regulatory and licensing requirements of the businesses
conducted by the Company, or which otherwise directly advance the interests of
the Company. The Company may, in its discretion, reimburse the Executive for
some or all of the expenses incurred to register for or attend such training
courses.
7. Termination Provisions
(a) Termination
(i) The Executive's employment hereunder shall automatically terminate
(A) upon and by the failure of Executive to purchase Securities pursuant to the
terms and conditions of the Share Subscription Agreement between the Company and
Executive of even date herewith (the "Subscription Agreement"); (B) upon any
termination of the Subscription Agreement (C) upon the Executive's death or
Disability (as hereinafter defined); (D) upon written notice by the Company for
"Cause" (as hereinafter defined); or (E) upon 30 days written notice by either
party.
(ii) For purposes of this Agreement, "Disability" shall have the same
meaning as that term has under a disability policy maintained for the Executive
by the Company. If no such policy exists, or if payment of benefits under the
policy is not conditioned on meeting such a definition, then "Disability" shall
mean that the Executive is unable to perform his duties hereunder on a full-time
basis for three consecutive months after reasonable accommodation by the
Company.
(iii) For purposes of this Agreement, the Company shall have "Cause" to
terminate the Executive's employment hereunder upon (A) the willful failure by
the Executive to substantially perform the Executive's duties (other than any
such failure resulting by the Executive's Disability) and continuance of such
failure for more than 30 days after the Company notifies the Executive in
writing of the Executive's failure to perform; (B) the engaging by the Executive
in willful misconduct which is injurious to the Company; (C) the conviction of
the Executive in a court of proper jurisdiction of a crime which constitutes a
felony in respect of the conduct of the business of the Company; or (D) a
finding by the National Association of Securities Dealers, Inc. (the "NASD"),
another self-regulatory body of competent jurisdiction (the "SRO"), or U.S.
Securities and Exchange Commission (the "SEC') that the Executive personally
violated its rules or regulations, and such finding or penalty therefor
restricts the Executive's ability to perform his obligations under this
Agreement. Notwithstanding the foregoing, the Executive shall not be deemed to
have personally violated roles or regulations of the NASD, an SRO, or the SEC,
if a finding or penalty imposed is based upon a finding that the Executive did
not adequately supervise such employee, but was not otherwise a party to the
acts constituting the misconduct by such other person. Further, the Executive
shall not be deemed to have been terminated for Cause unless and until there has
been delivered to the Executive notice that a resolution has been duly adopted
by the Board which finds that the Company has "Cause" to terminate the Executive
as contemplated in this Section 7(a), provided, that the Executive is terminated
for Cause upon conviction of a felony as identified in clause (C) above, and
upon the revocation of any license required under applicable law for the conduct
of the business of the Company by the Executive.
(b) Compensation Upon Termination. In the event the Executive's employment
hereunder terminates pursuant to Section 7(a)(i)(A) or 7(a)(i)(B) hereof, no
additional compensation shall be payable to the Executive following the date of
termination of employment. If either (i) the Company shall terminate the
employment of the Executive for Cause pursuant to the provisions of Section
7(a)(i)(C) hereof, or (ii) the Executive shall resign (other than as a result of
the violation of this Agreement by the Company), then the Company shall pay the
Executive 100% of the compensation set forth in Section 5 hereof for 30 days
following the date of the termination
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of employment. If the Company shall terminate the employment of the Executive
without Cause or the Executive resigns as a result of a breach by the Company of
its obligations to the Executive, whether set forth herein or otherwise, then
the Company shall pay the Executive 100% of the compensation set forth in
Section 5 hereof for the remaining term of this Agreement, or six full months,
whichever period shall be greater.
8. Nondisclosure and Noncompetition.
During the period of employment hereunder and for a period of one year after
termination of this Agreement (for whatever reason), the Executive shall not,
without the written consent of the Board or a person authorized thereby,
disclose to any person or appropriate for his own use, information, knowledge or
data which is not theretofore publicly known and in the public domain that is
obtained by the Executive while in the employ of the Company (which for purposes
of this Section 8 shall include the Company or any of its subsidiaries),
respecting information about the Company, or of any products, systems, programs,
procedures, manuals, guides, confidential reports and communications,
improvements, designs or styles, customers, methods of distribution, sales,
prices, profits, costs, contracts, suppliers, business prospects, business
methods, techniques, research, trade secrets, or know-how of the Company, except
as the Executive may, in good faith, reasonably believe to be for the Company's
benefit. The Executive acknowledges that all information about the Company's
trading department customers, clients, prospects and pricing models constitutes
trade secrets under Section 688.002(4) of the Florida Statutes. Notwithstanding
the foregoing, following the termination of employment hereunder, the Executive
may disclose any information, knowledge or data of the type described to the
extent required by law in connection with any judicial or administrative
proceeding or inquiry.
In addition to the foregoing and in the interest of protecting the Company's
trade secrets, during the term of this Agreement and for a period of one year
after termination of this Agreement for any reason, the Executive shall not,
without the written consent of the Board or a person authorized thereby,
directly or indirectly, do any business with respect to, or solicit any business
similar to the business of the Company from, any of the Company's customers,
clients, or accounts without the consent of the Company; provided, that this
prohibition shall not limit the authority of the Executive (or the Executive's
new employer) to solicit business from any client or customer of the Company
that is already a customer or client of that new employer thirty days prior to
the last day the Executive is employed by the Company. In addition, Executive
shall not directly, or through any company of which Executive is an officer,
employee, or more than 5% owner, hire any employee of the Company, or attempt to
solicit any employee of, or independent contractor used by, the Company to leave
the service of the Company.
Executive agrees that the restrictions of this Section 8 are reasonable as to
time, area, subject matter and otherwise due to the confidential nature of the
information and trade secrets of the Company, and the unique role and
substantial compensation of the Executive. The covenants contained in this
Section 8 shall survive the termination of the Executive's employment pursuant
to this Agreement provided, however, that in the event this Agreement terminates
prior to the Conversion, as such term is defined in the Share Purchase Agreement
of even date herewith between the Executive and the Company, the noncompetition
provisions in this Section 8 shall not extend to the fixed income business
engaged in by the Executive prior to the date of this Agreement. The foregoing
provisions of this Section 8 shall be binding upon the Executive's heirs,
successors and legal representative. The Executive acknowledges and confirms
that the Company shall be entitled to specific performance or injunctive relief
without proof of monetary damages and without further proof of irreparable
injury in an action instituted in any court of competent jurisdiction, or a
proceeding before the NASD.
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9. Tax Returns. During the term of the Agreement, the Company shall promptly pay
or reimburse the Executive for costs and expenses associated with the
preparation of the Executive's personal tax returns. The Executive represents
and warrants that he will file all tax returns he is required to file by law, as
and when due on the original due date or lawfully extended filing date.
10. Other Directorships. The Company acknowledges and understands that the
Executive may be offered the opportunity to sit on the board of directors of
other public and private companies. The Executive agrees that he will not serve
on the board of directors of any company in competition with the Company and its
affiliates, and the Executive agrees that he will not accept any appointment to
another Board without the prior written consent of the Company, which consent
shall not be unreasonably withheld. The Company may determine that the Executive
shall not serve as a director, officer, or in any other position with an entity
that does not maintain liability insurance in an amount deemed to be adequate by
the Company. The Company agrees that the Executive shall be entitled to any fees
or salary received for his participation on the Boards of Directors of such
companies.
11. Attorneys' Fees. In the event a proceeding is brought to enforce or
interpret any part of this Agreement or the rights or obligations or any party
to this Agreement, the prevailing party shall be entitled to recover as an
element of such party's costs of suit, through all appeals, and not as damages,
reasonable attorneys' fees and paralegal's fees to be fixed by the arbitrator(s)
or court. The prevailing party shall be the party who is entitled to recover his
costs of suit or proceeding whether or not the action proceeds to final
judgment. A party not entitled to recover his costs shall not recover attorneys'
fees.
12. Successors and Assigns. This Agreement and the benefits hereunder are
personal to the Company and are not assignable or transferable by the Executive
without the written consent of the Company. The services to be performed by the
Executive hereunder may not be assigned by the Company, without the written
consent of the Executive, to any person, firm, corporation or other entity, with
the exception of a parent or subsidiary of the Company. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
Company and the Executive and the Executive's heirs and legal representatives,
and the Company's successors and permitted assigns.
13. Governing Law. This Agreement shall be construed in accordance with and
governed by the law of the State of Florida, without regard to the application
of principles of conflict of laws.
14. Notices. All notices and other communications required or permitted to be
given under this Agreement shall be in writing and shall be deemed to have been
given if delivered personally or sent by certified mail, return receipt
requested, postage prepaid, to the parties to this Agreement shall specify by
notice to the other:
If to the Company: International Assets Holding Corporation
000 Xxxx Xxxxxxx Xxxxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
With a copy to: Louis X. X. Xxxxx, Esq.
Holland & Knight LLP
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
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Xx. Xxxxx Xxxxxx
000 Xxxx Xxxxxxx Xxxxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
All notices and communications shall be deemed to have been received on the date
of delivery or on the third business day after the mailing thereof.
15. Modification; Waiver. No provisions of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is approved
by the Board or a person authorized thereby, and is agreed to in a writing
signed by the Executive and such officer as may be specifically designated by
the Board. No waiver by either party hereto at the time of any breach by the
other party hereto of any condition or provision of this Agreement, or
compliance therewith, by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same time, or at any prior or
subsequent time.
16. Complete Understanding. 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
supercedes all prior agreements and understandings between the Company and the
Executive concerning his employment by the Company as well as his compensation,
including stock options, in connection therewith, except that the Executive
acknowledges that certain confidentiality provisions contained have been
subsumed and incorporated herein, and shall be deemed to continue from the
inception of his employment by the Company.
17. Headings. The headings in this Agreement are for convenience of reference
only and shall not control or affect the meaning or construction of this
Agreement.
18. Severability. The invalidity of any one or more of the words, phrases,
sentences, clauses or sections contained in this Agreement shall not affect the
enforceability of the remaining portions of this Agreement or any part thereof,
all of which are inserted conditionally on their being valid in law, and if any
one or more of the words, phrases, sentences, clauses or sections contained in
this Agreement shall be declared invalid, this Agreement shall be construed as
if such invalid word or words, phrase or phrases, sentence or sentences, clause
or clauses, or section or sections had not been inserted.
19. 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.
20. Arbitration. Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by binding arbitration in Orlando,
Florida, in accordance with the rules of the American Arbitration Association
then in effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
COMPANY:
INTERNATIONAL ASSETS HOLDING
CORPORATION, a Delaware corporation
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By: /s/ Xxxxxx X. Xxxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Executive Vice President
EXECUTIVE:
/s/ Xxxxx Xxxxxx
Xxxxx X Xxxxxx
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