EMPLOYMENT AGREEMENT
EXHIBIT 10.4
This EMPLOYMENT AGREEMENT effective as of the 2nd day of May, 2005 is by and
between XXXXXX INVESTMENT PARTNERS, INC. (“Company”), and Xxxxx Xxxxx (the “Employee”)
(collectively, the “Parties”).
RECITALS
WHEREAS, the Company has employed the Employee, a principal of the firm, since 1997 in various
roles of increasing responsibility, and most recently as Director of Institutional Distribution;
WHEREAS, the Company desires to promote Employee to the position of Chief Marketing Officer,
responsible for all aspects of distribution, marketing, sales and client service across the
Company, on the terms and conditions contained in this Agreement, including restrictive covenants
including but not limited to a covenant that the Employee will not solicit its clients or Company
employees for a one year period following his separation from the Company; and
WHEREAS, the Parties desire to set forth their understandings with respect to the foregoing in
this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and
valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows:
ARTICLE I
Capacity and Duties
1.1 Employment; Acceptance of Employment. The Company hereby continues to employ
Employee and Employee hereby accepts continued employment by the Company for the period and upon
the terms and conditions hereinafter set forth.
1.2 Capacity and Duties; Regulatory Licensing.
(a) Employee shall serve the Company generally as Chief Marketing Officer. Employee shall
report directly to the Company’s Chairman and, subject to supervision, shall perform duties and
shall have such authority, as may from time to time be reasonably specified by the Company’s
Chairman.
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(b) Throughout the term of this Agreement, Employee shall devote full working time, energy,
skill and best efforts to the performance of his duties hereunder, in a manner which will
faithfully and diligently further the business and interests of the Company, and shall not be
employed by, participate or engage in, or be a part of, in any manner, the management or operation
of any business enterprise other than the Company without the written consent of the President of
the Company or his designee, which consent may be granted or withheld in his sole discretion.
(c) As a condition of his employment as Chief Marketing Officer, Employee shall obtain, and
maintain throughout the term of this Agreement, all appropriate National Association of Securities
Dealers, Inc. or other regulatory licenses consistent with his employment duties as reasonably
determined by the Company and Constellation Investment Distribution Company Inc. (or its
successor). Without limiting the foregoing, Employee agrees to obtain NASD Series 7 and 63 licenses
by no later than the end of the 2005 calendar year.
ARTICLE II
Term of Employment: Termination
2.1 Term.
(a) Term. The term of Employee’s employment hereunder shall be commence on May 2,
2005, and end at midnight on December 31, 2005. Thereafter this Agreement shall automatically be
continued for successive one-year terms, beginning at 12:01 a.m. on January 1st of each
such year unless and until either party shall give notice of his or its election to terminate
Employee’s employment at least sixty (60) days prior to the end of the original or then-current
term, or termination occurs pursuant to Section 2.2.
2.2 Termination.
(a) Death. Employee’s employment hereunder shall immediately terminate upon the death
of Employee, in which event the Company shall not thereafter be obligated to make any further
payments hereunder other than amounts specified in Article III, below, to the extent such amounts
are properly accrued in accordance with generally accepted accounting principles consistently
applied (“GAAP”), as of the date of Employee’s death.
(b) Disability. In the event that Employee, in the reasonable opinion of the Company,
is or will be for any reason unable to perform the duties to be performed hereunder for a period of
one hundred twenty (120) consecutive days, or for a total of one hundred twenty (120) out of any
continuous period of one hundred eighty (180) days, the Company shall have the option to terminate
Employee’s employment by giving written notice to Employee at any time during such inability, in
which event the Company shall not be obligated to make any further payments hereunder other than
amounts specified in Article III, below, to the
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extent such amounts are properly accrued in accordance with GAAP, as of the date of such
termination.
(c) Discharge for Cause. Employee’s employment hereunder shall terminate immediately
if the Company discharges Employee for cause, in which event the Company shall not be obligated to
make any further payments hereunder other than amounts specified in Article III, below, as of the
date of termination. “Cause” shall include, without limitation: (i) Employee’s dishonesty; (ii)
Employee’s material failure to perform duties under this Agreement; (iii) Employee conduct in
violation of the policies and procedures set forth in the Company’s Employee Handbook and/or in its
Compliance Manual; (iv) conviction of a felony; (v) theft, misappropriation or embezzlement of the
Company’s funds; (vi) fraud committed by Employee in connection with employment; (vii) habitual
intoxication or abuse of controlled substances; (viii) willful violation of any express direction
or any rule or regulation established by the Company; or (ix) repeated and consistent failure of
Employee to be present at work during normal business hours without a valid reason therefor.
Employee’s failure to report for work and/or perform Employee’s duties owing to Employee’s
unilateral resignation during the term of the Agreement established by Section 2.1 hereof without
the Company’s express written agreement shall be deemed a Discharge for Cause without further
action by the Company.
(d) Discharge Without Cause. Employee’s employment hereunder may be terminated by the
Company in its sole discretion upon sixty (60) days’ written notice to Employee, in which event the
Company shall not be obligated to make any further payments hereunder after Employee’s final day of
employment other than amounts specified in Article III, below, to the extent such amounts are
properly accrued in accordance with GAAP as of the date of Employee’s final day of employment.
ARTICLE III
Base Compensation
3.1 Base Compensation. As compensation for the services rendered by Employee to the
Company pursuant to this Agreement, the Company shall pay to Employee a base salary at the annual
rate of $220,000 and such other compensation, including sales and/or service commissions and bonus
opportunity, as the Parties may agree. Upon each successive renewal of this Agreement, the Company
shall pay to Employee a base salary and such other compensation as the Company shall determine,
which determination shall be made no less than fifteen (15) days before the start of each renewal
term. Nothing in this paragraph is intended to, and it shall not be construed to, alter in any way
the term of employment set forth in section 2.1 hereof.
3.2 Employee Benefits. In addition to the compensation provided for in Section 3.1,
Employee shall be entitled to participate in the Company’s benefit plan(s) and such other of the
Company’s plans and benefit programs as now exist or may hereafter be instituted
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by the Company in the same manner and to the same extent as may from time to time be provided
for other employees of the Company whose duties, responsibilities, and compensation are reasonably
comparable to those of Employee.
3.3 Expense Reimbursement. During the term of this Agreement, the Company shall
reimburse Employee for all reasonable expenses incurred by Employee in connection with the
performance of Employee’s duties hereunder upon receipt of itemized vouchers therefor or other
supporting information as the Company may require in accordance with its regular reimbursement
procedures and practices in effect from time to time.
ARTICLE IV
Restrictive Covenants
4.1 Confidentiality. Employee acknowledges a duty of confidentiality owed to the
Company and shall not, at any time during or after employment by the Company, retain in writing or
in any other form (including without limitation on computer disc), use, divulge, furnish, or make
accessible to anyone, without the express authorization of the Company, any Confidential
Information of the Company or any of its affiliates obtained or acquired by him while so employed.
For purposes of this Agreement, “Confidential Information” means all private or confidential
information of the Company, its affiliates and customers, including without limitation trade
secrets, investment technology, investment programs, products, or knowledge, works of authorship,
customer or client lists, customer or client files, customer or client information, prospect lists,
prospect files, prospect information, sales and marketing strategies and plans, proposals,
presentations, business plans, pricing information, transaction listings, shareholder information,
financial information, employee information, contracts and contract forms, marketing information,
books, records, files, and all other information which the Company has not made public. Employee
acknowledges that all such Confidential Information is the exclusive property of the Company and
agrees that he shall not duplicate or make use of such Confidential Information other than in
pursuit of the Company’s business, and, upon termination of employment for any reason, Employee
shall deliver to the Company, without further demand, all copies thereof which are then in his
possession, custody or control, or which subsequently come into his possession, custody or control.
4.2 Technology.
(a) Employee hereby acknowledges that all ideas, discoveries, and investment technologies,
products and programs, and improvements which are made, conceived, or reduced to practice by him,
and every item of knowledge relating to the Company’s business interests (including potential
business interests) gained by him, during his employment hereunder, are the property of the
Company, and Employee hereby irrevocably assigns all such ideas, discoveries, investment
technologies, products and programs, improvements, and knowledge to the Company for its sole use
and benefit, without additional compensation. The
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provisions of this Section shall apply whether such ideas, discoveries, investment
technologies, products and programs, improvements or knowledge are conceived, made or gained by him
alone or with others, whether during or after usual working hours, whether on or off the job,
whether applicable to matters directly or indirectly related to the Company’s business interests
(including potential business interests), and whether or not within the realm of his duties.
(b) Employee shall, upon request of the Company, but at no expense to Employee, at any time
during or after Employee’s employment with the Company, sign all instruments and documents
requested by Company and otherwise cooperate with the Company to protect its rights to such ideas,
discoveries, investment technologies, products and programs, improvements, and knowledge, including
applying for, obtaining, and enforcing patents and copyrights thereon in any and all countries.
4.3 No Solicitation. During the term of this Agreement and for one (1) year after any
termination of employment, including pursuant to Section 2.2(d) hereof, Employee shall not directly
or indirectly, on his own behalf or on behalf of any other person or entity: (i) engage, anywhere,
in the provision of any service by using the investment technology products or programs of the
Company; (ii) seek to procure orders from, solicit new or additional orders from, serve in a client
service role with respect to, or do business with any person or entity that was a customer of the
Company at the time of such termination of employment (except that this sub-section 4.3(ii) shall
not apply where termination of employment occurred pursuant to Section 2.2(d) hereof); (iii)
solicit or contact, with a view to the engagement or employment of, any employee of the Company, or
take any action to induce or encourage any employee of the Company to leave his/her employment with
the Company; (iv) seek to contract with or engage (in such a way as to adversely affect or
interfere with the business of the Company) any person or entity who has been contracted with or
engaged to supply or deliver goods or services to the Company; or (v) engage in or participate in
any effort or act to induce any of the customers, associates, consultants, partners, or employees
of the Company or any of its affiliates to take any action which might be disadvantageous to the
Company or any of its affiliates. The duration of the Employee’s covenants set forth in this
Section shall be extended by a period of time equal to the number of days, if any, during which the
employee is in violation of any of the provisions hereof.
4.4 No Disparagement. Employee, both during and following employment by Company
hereunder, shall not in any way or manner disparage the Company, its products, results or its
officers, directors or employees. The Company, both during and following employment of Employee by
Company hereunder, shall not in any way or manner disparage Employee.
4.5 Separation Discussion. Employee agrees that, in the event that the Employee’s
employment with the Company is terminated hereunder, he will attend a meeting with the Company’s
President or his designee to review the terms of this Agreement, including the provisions of this
Article IV, and to discuss the execution of an appropriate separation agreement.
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4.6 Equitable Relief. Employee expressly acknowledges that monetary damages alone
will be an inadequate remedy for any breach or violation of any of the provisions
of this Article IV, and that the Company, in addition to all other remedies, shall be entitled
as a matter of right to equitable relief, including without limitation injunctions and specific
performance, in any court of competent jurisdiction. If any of the provisions of this Article IV
are held to be in any respect unenforceable, then they shall be deemed to extend only over the
maximum period of time, geographic area, or range of activities as to which they may be
enforceable, and enforced as so modified.
ARTICLE V
Miscellaneous
5.1 Modification. If any court shall find the duration, geographical limit or other
aspect of any restriction contained in this Agreement to be unenforceable in accordance with its
terms, it is the intention of the parties that the restrictive covenant set forth therein shall not
thereby be terminated but shall be deemed to be amended to the extent required to render it valid
and enforceable, such amendment to apply only within the jurisdiction of the court that has made
the adjudication, and shall be enforced as so modified.
5.2 Arbitration.
(a) Except as otherwise specifically provided in this Section 5.2 (a), all disputes arising
out of or relating to this Agreement or any alleged breach thereof and all other disputes arising
out of Employee’s employment relationship with the Company (including without limitation all claims
alleging employment discrimination by the Company) which cannot be settled by the parties shall
promptly be submitted to and determined by the American Arbitration Association (“AAA”) pursuant to
its National Rules for the Resolution of Employment Disputes then obtaining. Any such arbitration
shall be conducted in the Philadelphia, PA metropolitan area. The decision of the arbitrator shall
be final and binding upon the parties, and judgment upon such decision may be entered in any court
of competent jurisdiction. Nothing herein shall preclude the Company from seeking, in any court of
competent jurisdiction, damages, specific performance or other equitable remedies in the case of
any breach or threatened breach by Employee of Article IV.
(b) Notwithstanding any provision of the AAA’s rules, discovery in any such arbitration shall
be allowed pursuant to the intent of the United States Federal Rules of Civil Procedure and as the
arbitrators determine appropriate under the circumstances.
(c) In any arbitration proceeding hereunder in which a breach of this Agreement is alleged,
such arbitrator shall be required to apply the contractual provisions hereof
in deciding any matter submitted to him/her and shall not have any authority, by reason of
this Agreement or otherwise, to render a decision that is contrary to the mutual intent of the
parties as set forth in this Agreement.
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5.3 Notices. All notices, requests and other communications to any party hereunder
shall be in writing (including telex, telecopier or similar writing) and shall be given to
such party at its address, telex or telecopier number set forth in the records of the Company,
or such other address, telex or telecopier number as such party may hereafter specify for such
purpose. Each such notice, request or other communication shall be effective (i) if given by telex
or telecopy, when such telex or telecopy is transmitted to the telex or telecopy number specified
in this Section and the appropriate answerback is received, (ii) if given by mail, 72 hours after
such communication is deposited in the mail with first class postage prepaid, addressed as
aforesaid, or (iii) if given by any other means, when delivered at the address specified in this
Section:
To the Company at:
Xxxxxx Investment Partners, Inc.
0000 Xxxxxxxxx Xx., Xxxxx 000
Xxxxxx, XX 00000
Attention: President
0000 Xxxxxxxxx Xx., Xxxxx 000
Xxxxxx, XX 00000
Attention: President
To Employee at:
Xxxxx Xxxxx
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5.4 Indulgences; Waivers. Neither the failure nor any delay on the part of either
party to exercise any right, remedy, power, or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege
preclude any other or further exercise of the same or of any other right, remedy, power, or
privilege, nor shall any waiver of any right, remedy, power, or privilege with respect to any
occurrence be construed as a waiver of any right, remedy, power, or privilege with respect to any
other occurrence.
5.5 Assignment. This Agreement shall not be assignable by Employee, and shall be
assignable by the Company only to any person, firm, or corporation which may become a successor in
interest by purchase, merger, or otherwise to the Company in the business or a portion of the
business presently operated by it.
5.6 Entire Agreement. This writing represents the entire agreement and understanding
of the parties with respect to the subject matter hereof and supersedes all prior agreements and
understandings of the parties in connection therewith; it may not be altered or amended except by
an agreement in writing.
5.7 Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors, assigns, heirs, executors, and
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administrators. If any provision of this Agreement shall be or become illegal or
unenforceable in whole or in part for any reason whatsoever, the remaining provisions shall nevertheless be
deemed valid, binding, and subsisting.
5.8 Governing Law. This Agreement and all questions relating to its validity,
interpretation, performance, and enforcement shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania, without regard to the principles of conflicts of law
otherwise applicable therein.
5.9 Headings. The headings of paragraphs in this Agreement are for convenience only;
they form no part of this Agreement and shall not affect its interpretation.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
| XXXXXX INVESTMENT PARTNERS, INC. | ||||||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||||
| Its: Chief Operating Officer and Chief Financial Officer | ||||||
| /s/ Xxxxx X. Xxxxx | ||||||
| Xxxxx Xxxxx | ||||||
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