EXHIBIT 10.21
EMPLOYMENT AGREEMENT
AGREEMENT dated August 29, 2001 between Xxxxxx Holding Corp., a
Delaware corporation having its principal office at 0000 Xxxxxxx Xxxxxxxx,
Xxxxxxx, Xxx Xxxx 00000 ("Corporation"), and Xxxxx X. Xxxxxxx, residing at the
address indicated on the signature page hereof ("Executive").
RECITALS
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The Corporation wishes to employ Executive, and Executive
wishes to accept such employment, all upon the terms and conditions herein
contained.
IT IS AGREED:
1. Employment, Duties and Acceptance.
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1.1 General. Corporation hereby employs Executive in an executive
capacity to serve as Chairman of the Board and Chief Executive Officer of the
Corporation and as Co-Chief Executive Officer of the Corporation's wholly-owned
subsidiary, Xxxxxx Securities, Inc. ("Xxxxxx"), with such executive duties for
the Corporation and Xxxxxx as appertain to such offices and such additional
duties and authority as may be reasonably assigned to Executive by the Boards of
Directors of the Corporation or Xxxxxx from time to time, provided that the
nature of such duties and authority shall be consistent with the executive
status of Executive. Executive also agrees to serve in an executive capacity for
such other subsidiaries of the Corporation as may be designated by the Board of
Directors of the Corporation from time to time. Executive hereby accepts such
employment.
1.2 Full-Time Position. Subject to Executive's right under Section 3
to convert his full-time employment with the Corporation into a part-time
consultancy, Executive agrees to devote his full and exclusive time, energies
and attention to the business and affairs of the Corporation and its
subsidiaries in the performance of his duties hereunder. Subject to Executive's
rights under Section 3, Executive will not, without the prior written consent of
the Corporation, during the term of this Agreement, be engaged in any other
activity whether or not pursued for gain, profit or other pecuniary advantage;
but this shall not be construed as preventing Executive from making and
supervising personal investments, provided that (i) he will not be required to
render any services to the companies in which such investments are made; (ii)
such investment will not cause a breach of Section 5 hereof; and (iii) such
investment will not interfere with the performance of Executive's duties
hereunder.
1.3 Travel. Executive will be based in the Corporation's principal
executive offices on Long Island and will undertake such occasional travel as is
reasonably necessary in the interests of the Corporation.
1.4 Position with the Board. During the term of this Agreement,
Executive shall be entitled to, and the Corporation shall cause Executive to, be
nominated as a member of the Board of Directors of the Corporation and Xxxxxx.
2. Compensation and Benefits.
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2.1 Salary. As full compensation during the term of this Agreement
for all Executive's services to be rendered to the Corporation and its
subsidiaries, the Corporation agrees to pay, or cause to be paid by one or more
of its subsidiaries, to Executive, in the manner hereinafter provided, (i) base
salary (hereinafter "Base Salary") at the rate of $375,000 per annum, payable in
periodic installments in accordance with the Corporation's normal payroll
procedures, plus .0075% of the Corporation's consolidated quarterly revenue,
payable within 50 days of the end of each fiscal quarter, and (ii) the
additional compensation hereinafter set forth in this Section 2. The Base Salary
paid in any fiscal year shall be subject to adjustment in the event the year-end
audit conducted by the Corporation's independent auditors for such fiscal year
results in an adjustment to the consolidated quarterly revenue numbers used to
calculate the variable portion of such Base Salary. In no event shall the Base
Salary for any fiscal year exceed $1,000,000. The rate of the fixed portion of
Executive's Base Salary (initially $375,000 per annum) will be increased
effective on September 1 of each year (commencing on September 1, 2002) to
reflect the percentage increase, if any, in the Consumer Price Index for the New
York Metropolitan Region during the twelve-month period ending on June 30
immediately preceding such adjustment date.
2.2 Discretionary Bonus. In addition to Base Salary, Executive shall
be entitled to receive bonus payments in the discretion of the Board of
Directors.
2.3 Brokerage Commissions; Investment Banking Compensation.
(i) Executive will be entitled to receive an equal share
of the brokerage commissions from customer accounts
for which the Executive or Xxxxxxx X. Xxxxxxxx, who
is also being employed as Co-Chief Executive Officer
of Xxxxxx, is the designated account representative
(which commissions shall be computed at a 60% cash
payout rate), less customary charges in accordance
with the Corporation's general policies in effect
from time to time, and payable in accordance with
Xxxxxx'x normal payroll procedures. Executive hereby
acknowledges that Xx. Xxxxxxxx and the Corporation
are concurrently entering into an employment
agreement containing this sharing arrangement and
Executive agrees that also long as Xx. Xxxxxxxx is
employed by the Corporation he shall be entitled to
an equal share of such commissions which, but for
this sharing arrangement, would be payable solely to
Executive for accounts for which he is the designated
representative, and his agreement to share in such
commissions shall be for Xx. Xxxxxxxx'x benefits.
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(ii) Executive will be entitled to receive additional
compensation in connection with Executive's
investment banking activities in accordance with the
Corporation's standard investment banking
compensation formula ("Investment Banking
Compensation").
2.4 Stock Options. On the first business day immediately following
the end of each fiscal quarter, commencing as of the quarter ended September 30,
2001, Executive shall receive ten-year options to purchase that number of shares
of the Corporation's common stock equal to 0.25% of the shares of common stock
of the Corporation outstanding as of the end of such fiscal quarter ("Quarterly
Options"). The Quarterly Options shall be issued under one or more of the
Corporation's stock option plans and shall have an exercise price equal to the
last sale price of a share of common stock of the Corporation as reported on
each of the last 20 consecutive trading days during most recently completed
fiscal quarter. If Executive's employment (other than a termination for "cause"
by the Corporation) terminates as of the last day of a fiscal quarter, Executive
shall receive, on the last day of his employment, the options he would otherwise
have received on the next following business day if he had remained employed by
the Corporation. All Quarterly Options so granted shall vest and become
exercisable immediately upon grant and shall be evidenced by a Stock Option
Agreement in the form annexed hereto as Exhibit A.
2.5 Benefits. Executive will be entitled to participate in all
welfare and fringe benefit plans as are customarily afforded to all executives
or other employees in accordance with the terms of such plans and arrangements.
2.6 Vacation. Executive will be entitled to five weeks of paid
vacation in each calendar year to be taken at times mutually convenient to the
Corporation and Executive.
2.7 Expenses. The Corporation will reimburse Executive in accordance
with its regular policies and practices for business expenses reasonably
incurred by Executive in connection with the performance of Executive's duties
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under this Agreement, subject to Executive's presentation of appropriate
documentation of such expenses.
2.8 Automobile. Executive shall maintain a suitable automobile for
business use. The Corporation shall reimburse Executive for the costs of leasing
such automobile and for all other reasonable costs associated with the use of
the automobile, including insurance, maintenance and repair and fuel costs.
2.9 Directors and Officers Insurance Coverage. The Corporation shall
cause the Executive to be covered under all directors and officers liability
insurance policies maintained by Parent, which policy or policies shall provide
a minimum coverage of $3,000,000.
2.10 Accounting Services. The Corporation shall provide Executive
with a $2,500 annual expense allowance to pay for accounting and tax planning
services for Executive and his immediate family, which allowance shall
accumulate each year if unused and may be drawn upon by Executive for up to six
months following the termination of employment (other than a terminations for
"cause" by the Corporation).
2.11 Life Insurance. The Corporation shall provide Executive with an
annual expense allowance of up to $10,000 to pay for premiums for insuring the
life of Executive for the benefit of Executive or his designees with a death
benefit of up to $3,000,000.
2.12 Housing. If Executive's duties are such as to require him to
work in the City of New York for more than two days per week, The Corporation
shall arrange for appropriate housing at a cost of up to $4,000 per month.
2.13 Proration. The items provided for in Sections 2.6, 2.10 and 2.11
shall be prorated for partial years.
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3. Term; Conversion to Consultancy. The term of this Agreement shall
commence as of September 1, 2001 ("Commencement Date") and shall continue for a
period of seven years (i.e., August 31, 2008), unless sooner terminated as
herein provided. Notwithstanding anything to the contrary, Executive shall be
entitled to terminate his employment or convert his employment to a consultancy
at any time in his sole discretion upon at least six months' prior written
notice to the Corporation. Upon a conversion to a consultancy, (i) Executive
shall be required to devote only 50% of his business time to the affairs of the
Corporation, (ii) Executive, as a consultant to the Corporation, shall have such
duties and responsibilities to the Corporation as is reasonably determined by
the Board of Directors of the Corporation, (iii) Executive shall receive only
50% of the compensation provided by Sections 2.1 and 2.4, (iv) Executive shall
be entitled to continued participation in the Investment Banking Pool at the
discretion of the Board of Directors, (v) Executive shall be entitled to
continue to receive all other benefits and shall continue to have all other
obligations provided under this Agreement.
4. Termination and Payment.
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4.1 Death. If Executive shall die during the term of this Agreement,
this Agreement shall thereupon terminate, except that the Corporation will pay
to Executive's estate Executive's Base Salary through the last day of the month
during which Executive shall have died and all brokerage commissions earned by
Executive under Section 2.3 through the date of death.
4.2 Disability. The Corporation, by notice to Executive, may
immediately terminate this Agreement if Executive shall become disabled, or
shall fail because of illness or incapacity, to render services of the character
contemplated by this Agreement for 120 consecutive days (or an aggregate of 180
days) during any one-year period. Notwithstanding such termination, the
Corporation will pay to Executive his Base Salary through the last day of the
month during which such notice shall have been given and brokerage commissions
earned by Executive under Section 2.3 through the date of termination.
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4.3 For Cause. The Corporation, by notice to Executive, may
immediately terminate this Agreement "for cause" for any of the reasons
enumerated below in this Section 4.3 (provided, however, in the event of
termination for a reason specified in clause (i)(B) below, such termination
shall be effective only after Executive has been given written notice setting
forth in reasonable detail the acts, omissions or failures of the Executive and
a specified reasonable period of time in which to cure all of such acts,
omissions or failures (if capable of being cured), and such shall not have been
cured within such reasonable period) and upon such termination (i) Executive
shall be released from any duties hereunder except as set forth in Section 5
hereof; and (ii) the Corporation will pay to Executive his Base Salary through
the date of termination:
(i) If Executive (A) willfully refuses or fails to carry
out specific legal directions of the Board of
Directors, or (B) willfully refuses or fails to
perform a material part of his duties hereunder;
(ii) If Executive commits a breach of any of the
provisions of Section 5 hereof or breaches the
representations and warranties set forth in Section 6
hereof;
(iii) If Executive commits an act involving any
misappropriation or embezzlement involving the
properties, assets or funds of the Corporation or its
subsidiaries or affiliates; or
(iv) If Executive committed an act (or the failure
thereof) which involves intentional wrongdoing or
gross negligence relating to the Corporation or its
subsidiaries or affiliates.
The inability of Executive to continue to be associated with a member
of the NASD, such as Xxxxxx or another broker-dealer subsidiary of the
Corporation, as a result of a regulatory bar or suspension shall not in and of
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itself by grounds for a termination for "cause" by the Corporation under Section
4.3(i) or otherwise unless the basis for such bar or suspension involves an act
or omission specified in Sections 4.3(iii) or (iv).
4.4 For "Good Reason." The Executive, by notice to the Corporation,
may terminate this Agreement if a "Good Reason" exists. For purposes of this
Agreement, "Good Reason" shall mean the occurrence of any of the following
circumstances without the Executive's prior express written consent: (a) a
material adverse change in the nature of Executive's title, duties or
responsibilities with the Corporation that represents a demotion from his title,
duties or responsibilities as in effect immediately prior to such change; (b) a
material breach of this Agreement by the Corporation; (c) a failure by the
Corporation to make any payment to Executive when due, unless the payment is not
material and is being contested by the Corporation, in good faith; (d) a
liquidation, bankruptcy or receivership of the Corporation; or (e) if Executive
is at any time not a member of the Board of Directors, unless he voluntarily
resigns therefrom. Notwithstanding the foregoing, Good Reason shall not be
deemed to exist with respect to the Corporation's acts described in clauses (a),
(b) or (c) above, unless Executive shall have given written notice to the
Corporation specifying the Good Reason with reasonable detail and, within twenty
business days after such notice, the Corporation shall not have cured or
eliminated the problem or thing giving rise to such Good Reason; provided,
however, that a repeated breach after notice and cure of any provision of
clauses (a), (b) or (c) above involving the same or substantially similar
actions or conduct, shall be grounds for termination for Good Reason without any
additional notice from Executive.
4.5 In the event that Executive terminates this Agreement for Good
Reason, pursuant to the provisions of Section 4.4, or the Corporation terminates
this Agreement without "Cause," as defined in Section 4.3, the Corporation shall
continue to pay to Executive (or in the case of his death, the legal
representative of Executive's estate or such other person or persons as
Executive shall have designated by written notice to the Corporation), all
payments, compensation and benefits required under Section 2 hereof through the
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then remaining term of this Agreement. If Executive's employment is terminated
for Good Reason or without "Cause," Executive shall have no duty to mitigate
awards paid or payable to him pursuant to this Section, and any compensation
paid or payable to Executive from sources other than the Corporation will not
offset or terminate the Corporation's obligation to pay to Executive the full
amounts pursuant to this Section 4.5.
5. Protection of Confidential Information.
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5.1 Nondisclosure of Confidential Information. Executive agrees that
he will not at any time, either during the term of this Agreement or thereafter,
divulge to any person, firm or corporation any information obtained or learned
by him during the course of his employment with the Corporation or any of its
affiliates with regard to the operational, financial, business or other affairs
of the Corporation or its subsidiaries or affiliates, or its or their officers
and directors, including, without limitation, trade "know how," secrets,
customer lists, sources of supply, pricing policies, operational methods or
technical processes, except (i) in the course of performing his duties
hereunder, (ii) with the Corporation's express written consent; (iii) to the
extent that any such information is in the public domain other than as a result
of Executive's breach of any of his obligations hereunder; or (iv) where
required to be disclosed by court order, subpoena or other government process.
In the event that Executive is required to make disclosure pursuant to the
provisions of clause (iv) of the preceding sentence, Executive promptly, but in
no event more than two business days after learning of such subpoena, court
order, or other government process, will notify, by personal delivery or by
facsimile, confirmed by express mail, the Corporation and, at the Corporation's
expense, Executive will: (a) take all necessary steps reasonably requested by
the Corporation to defend against the enforcement of such subpoena, court order
or other government process, and (b) permit the Corporation to intervene and
participate with counsel of its choice in any proceeding relating to the
enforcement thereof.
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5.2 Termination of Employment. Upon termination of this Agreement, or
at any time the Corporation may so request, Executive will promptly deliver to
Corporation all memoranda, notes, records, reports, customer lists, manuals,
drawings and other documents (and all copies thereof) relating to the business
of the Corporation and its subsidiaries and affiliates and all property
associated therewith, which he may then possess or have under his control;
provided, however, that Executive may retain copies of documents containing
information that relates solely to those customers that Executive is permitted
to solicit within the first year following the termination of his employment as
provided in Section 5.3.
5.3 Nonsolicitation. During the term of this Agreement and for a
period of one year thereafter, Executive shall not, without the prior written
permission of the Corporation, in the United States, its territories and
possessions, directly or indirectly, (i) employ or retain, or have or cause any
other person or entity to employ or retain, any person who was employed or
retained by Corporation or any of its subsidiaries and affiliates at any time
within 90 days prior to the later of the termination of Executive's employment
or consultancy hereunder; or (ii) solicit, interfere with, or endeavor to entice
away from the Corporation or any of its subsidiaries or affiliates any of its or
their customers or sources of supply, other than those customers of any of the
broker-dealer subsidiaries of the Corporation for which the Executive was the
designated account representative; provided, however, that Executive shall not
solicit, interfere with, or endeavor to entice away from such broker-dealer
subsidiary any customers for which Executive was the designated account
representative if such was obtained through such broker-dealer's customer lead
program.
5.4 Injunctive Relief. The parties hereto hereby acknowledge and
agree that (i) the Corporation would be irreparably injured in the event of a
breach by Executive of any of his obligations under Section 5 hereof, (ii)
monetary damages would not be an adequate remedy for any such breach, and (iii)
the Corporation shall be entitled to injunctive relief, in addition to any other
remedy which it may have, in the event of any such breach or threatened breach.
It is hereby also agreed that the existence of any claims which Executive may
have against the Corporation or any of it subsidiaries, whether under this
Agreement or otherwise, shall not be a defense to the enforcement by the
Corporation of any of its rights under this Section 5 hereof. In the event of a
breach, the Corporation may also require Executive to account for and pay over
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to Corporation all compensation, profits, monies, accruals, increments or other
benefits derived or received by Executive as the result of any transactions
constituting such breach.
5.5 Scope of Restriction. It is the intent of the parties hereto that
the covenants contained in Section 5 hereof shall be enforced to the fullest
extent permissible under the laws and public policies of each jurisdiction in
which enforcement is sought (Executive hereby acknowledging that said
restrictions are reasonably necessary for the protection of Executive).
Accordingly, it is hereby agreed that if any of the provisions of Section 5
hereof shall be adjudicated to be invalid or unenforceable for any reason
whatsoever, said provision shall be (only with respect to the operation thereof
in the particular jurisdiction in which such adjudication is made) construed by
limiting and reducing it so as to be enforceable to the extent permissible,
without invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of said provision in any other jurisdiction.
5.6 Nonexclusivity. The undertakings of Executive contained in
Section 5 hereof shall be in addition to, and not in lieu of, any obligations
which he may have with respect to the subject matter hereof, whether by
contract, as a matter of law or otherwise.
6. Executive's Representations. Executive represents and warrants that
Executive has the right to enter into this Agreement and is not subject to any
contract, commitment, agreement, arrangement or restriction of any kind which
would prevent Executive from performing Executive's duties and obligations
hereunder, nor is Executive subject to any post-employment restriction pursuant
to a contractual arrangement or otherwise. Executive acknowledges that the
Corporation's willingness to employ Executive is based upon the accuracy of the
foregoing representation and warranties. Executive agrees that he will indemnify
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the Corporation against all costs and expenses, including reasonable attorney's
fees, incurred in the defense of any claims that would constitute a breach of
Section 6 brought against the Corporation.
7. Miscellaneous Provisions.
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7.1 Notices. All notices provided for in this Agreement shall be in
writing and shall be deemed to have been duly given when delivered if delivered
personally or by nationally recognized overnight courier, or four days after
deposit with the United States Post Office if mailed by postage prepaid
registered or certified mail, return receipt requested, addressed to the
Corporation at its principal executive office and to the Executive at his then
current residence address as indicated in the records of the Corporation.
7.2 Entire Agreement. This Agreement, together with the Stock Option
Agreements referred to in Section 2.4, set forth the entire agreement of the
parties with respect to the subject matter hereof and is intended to supersede
all prior negotiations, understandings and agreements. No provisions of this
Agreement may be waived or changed except by a writing by the party against whom
such waiver of change is sought to be enforced. The failure of any party to
require performance of any provision hereof shall in no manner affect the right
at a later time to enforce such provision.
7.3 Governing Law. All questions with respect to the construction or
interpretation of this Agreement, and the rights and obligations of the parties
hereunder, shall be determined in accordance with the internal law of the State
of New York without regard to principles of conflicts of law.
7.4 Headings. The article headings are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
or intent of any provision of this Agreement.
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7.5 Successors. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the Corporation. This Agreement shall
not be assignable by Executive and shall inure to the benefit of and be binding
upon Executive and his legal representatives.
7.6 Severability. If any provision or if any part of any provisions
of this Agreement is found to be unenforceable, illegal or contrary to public
policy by a court of competent jurisdiction, the parties agree that this
Agreement shall remain in full force and effect except for such provision or
part of any such provision held to be unenforceable.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
XXXXXX HOLDING CORP.
/s/ Xxxxx Xxxxxxx /s/ Xxxxx X. Xxxxxxx
By_______________________________ ____________________________________
Xxxxx Xxxxxxx XXXXX X. XXXXXXX
Chief Financial Officer
Residence Address of Executive
0000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
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