EXHIBIT 10.7
AGREEMENT
AGREEMENT, dated as of April 27, 1998, between Xxxxxx Securities, Inc.
("Xxxxxx"), Xxxxxx Holding Corp. ("Holding;" and together with Xxxxxx,
"Company"), each a Delaware corporation with principal offices at 0000 Xxxxxxx
Xxxxxxxx, Xxxxxxx, Xxx Xxxx 00000, and Xxxxxx X. Xxxxxxx, residing at 000-00
Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000.
WHEREAS, Xxxxxxx has been employed by Xxxxxx and serves as a Director and
Executive Vice President of Xxxxxx, and as a Director and Executive Vice
President and Secretary of Holding, and the parties hereto now mutually desire
to provide for the termination of Xxxxxxx'x employment by Xxxxxx and otherwise
make provision with respect to certain other matters;
NOW, THEREFORE, In consideration of the mutual promises herein contained,
the parties hereto agree as follows:
1. Xxxxxxx hereby resigns as a Director and as an officer of both Holding
and Xxxxxx, effective April 30, 1998.
2. Xxxxxxx'x employment by Xxxxxx shall terminate effective May 15, 1998
("Termination Date"), which date shall be reflected on Form U-5. Xxxxxxx'x
employment subsequent to April 30, 1998, shall be solely as a registered
representative servicing the accounts of Xxxxxx'x customers for which he is the
designated account representative ("Xxxxxxx Accounts") and he shall have no
further managerial, supervisory or recruiting responsibilities or duties. By
April 30, 1998, Xxxxxxx shall vacate his office in Syosset, New York and his
reserved parking space at that location shall be rescinded. Xxxxxxx'x continued
employment through the Termination Date shall be performed exclusively in
Xxxxxx'x New Jersey branch office.
3. Xxxxxxx'x compensation from May 1, 1998 through the Termination Date
shall consist solely of a 55% payout on commissions earned with respect to the
Xxxxxxx Accounts. Subsequent to April 30, 1998, Xxxxxxx shall not receive any
further salary, car allowance, expense reimbursement or allocation of
underwriter warrants.
4. As consideration for Xxxxxxx'x agreement to the provisions of paragraphs
5 through 8 below, Xxxxxx agrees to pay severance to Xxxxxxx equal to $300,000,
payable in fifteen equal monthly installments of $20,000 each commencing on the
Termination Date.
5. Xxxxxxx agrees that during the time of his continued employment by
Xxxxxx and thereafter he shall take no action or make any statement or comment
that directly or indirectly disparages the reputation of Xxxxxx or Holding or
any of their directors, officers, employees or businesses. The Company agrees
that it shall take no action or make any statement or comment that directly or
indirectly disparages the reputation of Xxxxxxx.
6. Xxxxxxx acknowledges that he has had access to trade secrets of Xxxxxx
including, but not limited to, secret proprietary information used to identify
clients, actual customer leads, customer lists, information concerning customers
and other Kirlin employees, and other information pertaining to Xxxxxx'x and
Holding's operations which is valuable proprietary information that Xxxxxx or
Holding, as the case may be, has acquired at great expense and has been imparted
to Xxxxxxx on a confidential basis. Xxxxxxx agrees that all such information and
related records shall remain the sole and exclusive property of Xxxxxx or
Holding, as the case may be, at all times and shall be treated as confidential
information by Xxxxxxx. No such records, including, but not limited to,
Xxxxxxx'x copies of employee directories, new account documents, account
statements, confirmations and holding sheets of any Kirlin customer, shall be
removed by Xxxxxxx from the premises of the Company except with the express
permission of the Chairman or President of Xxxxxx. On the Termination Date or
earlier if requested by the Chairman or President of Xxxxxx, Xxxxxxx shall
surrender all original records and purge or destroy all computerized, duplicated
or otherwise copied records, regardless of whether made by Xxxxxxx or others.
Notwithstanding the foregoing, it is agreed by Xxxxxx that Xxxxxxx may retain
duplicate copies of information pertaining to the Xxxxxxx Accounts that transfer
to another firm with whom Xxxxxxx is registered and Xxxxxxx may use information
pertaining to such transfer accounts at such firm.
7. Xxxxxxx agrees that all ideas, marketing concepts, slogans, advertising
campaigns, characters, proposals and plans invented or developed by him which
relate directly or indirectly to the business of Xxxxxx or arose out of his
employment by Xxxxxx or the use of Xxxxxx'x property or resources, including,
without limitation, any ideas, proposals, or plans which may be copyrighted,
trademarked, patented or otherwise protected (collectively "Intellectual
Property") are and shall be the sole and exclusive property of Xxxxxx. Xxxxxxx
understands and agrees that all such Intellectual Property constitutes a "work
for hire." In the event any such Intellectual Property is not regarded as a
"work for hire," Paduano hereby assigns to Xxxxxx the sole and exclusive right
to such Intellectual Property. Xxxxxxx agrees that upon the request of Xxxxxx he
shall deliver any and all documents and instruments and take any other action
which Xxxxxx shall deem necessary to assign to Xxxxxx all right, title and
interest in such Intellectual Property, to perfect, trademark, copyright and
patent protection with respect thereto, or to otherwise protect Xxxxxx'x trade
secrets and proprietary interest in such Intellectual Property.
8. During the time of his continued employment by Xxxxxx and for two years
thereafter, Xxxxxxx shall not directly or indirectly solicit the business of any
customers of Xxxxxx other than customers for the Paduano Accounts. In addition,
during the time of his continued employment by Xxxxxx and for two years
thereafter, Xxxxxxx shall not solicit or influence any employee now or hereafter
employed by Xxxxxx to work in any way for Xxxxxxx or for any business enterprise
in which Xxxxxxx is participating, whether as an employee, consultant, advisor,
agent, owner, partner, co-venture, principal, stockholder, director or
otherwise, directly or indirectly.
9. Xxxxxxx acknowledges that the provisions of paragraphs 5 through 8 are
reasonable and necessary for the protection of the business of Holding and
Xxxxxx. Xxxxxxx agrees that if he commits a breach, or threatens to commit a
breach, of the provisions of paragraphs 5 through 8, Holding and/or Xxxxxx, as
the case may be, shall have the right and remedy: (i) to have the provisions of
paragraphs 5 through 8 specifically enforced by any court having equity
jurisdiction, it being acknowledged and agreed by Xxxxxxx that any breach or
threatened breach will cause irreparable injury to Holding and/or Xxxxxx and
that money damages will not provide an adequate remedy to same; (ii) require
Xxxxxxx to account for and pay to Holding and/or Xxxxxx, as the case may be, all
compensation, profits, monies, accruals, increments, or other benefits
(collectively "Benefits") derived or received by Xxxxxxx as a result of any
breach or threatened breach of any of paragraphs 5 through 8 and Xxxxxxx hereby
agrees to account for any such Benefits to Holding and/or Xxxxxx, as the case
may be; and (iii) Xxxxxx may discontinue all severance payments that remain
unpaid.
Each of the rights and remedies enumerated in this paragraph 9 shall be
independent of the other and shall be separately enforceable, and such rights
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and remedies shall be an addition to, and not in lieu of, any other rights or
remedies available to Holding and/or Company at law or in equity.
10. Xxxxxxx does hereby release and forever discharge Holding and Xxxxxx
and each of their respective successors and assigns, officers, directors,
employees and agents, and each of their respective heirs, executors,
administrators, successors and assigns (hereinafter referenced to as RELEASEES),
from, all actions, causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgements,
extents, executions, claims, and demands of any kind whatsoever, in law,
admiralty or equity, which against the RELEASEES, Xxxxxxx and Xxxxxxx'x heirs,
executors, administrators, successors and assigns ever had, now have or
hereafter can, shall or may have for, upon, or by reason of any matter, cause or
thing whatsoever from the beginning of the world to the day of the date of this
Agreement, except for matters arising out of a breach of the obligations under
this Agreement.
11. If any provision of this Agreement shall be held invalid and
unenforceable, the remainder of this Agreement shall remain in full force and
effect. If any provision is held invalid or unenforceable with respect to
particular circumstances, it shall remain in full force and effect and all other
circumstances.
12. This Agreement supersedes and replaces any and all other agreements,
written or oral, with respect to subject matter hereof including all other
compensation arrangements that may have existed between Holding and/or Xxxxxx
and Xxxxxxx. This Agreement contains the entire agreement for the parties hereto
and may not be amended except by an agreement in writing signed by the each of
the parties hereto.
13. Any dispute arising out of the interpretation, application or
performance of the Agreement, with the sole exception of a claim by Holding
and/or the Company arising under paragraphs 5 through 9 shall be settled through
final and binding arbitration before a single arbitrator in accordance with the
rules of the National Association of Securities Dealers, Inc. Any judgment upon
any such arbitration award may be entered in any court having competent
jurisdiction over the parties. Any party prevailing in an arbitration or court
proceeding to enforce its rights hereunder shall be entitled to its reasonable
attorney's fees and expenses as deemed appropriate by the arbitrator or court.
14. This Agreement shall be governed by and construed in accordance with
the internal law of the State of New York without regard to principles or
conflicts of laws.
15. This Agreement shall be binding upon and inure to the benefit of
Holding and Xxxxxx and their respective successors and assigns, and Xxxxxxx and
his heirs, executors and administrators.
16. Xxxxxxx acknowledges and understands that Xxxxxxxx Xxxxxx & Xxxxxx has
acted solely as counsel for the Company in connection with this Agreement.
17. This Agreement may be signed in counterparts, each of which shall be
deemed an original but which taken together shall constitute one and the same
Agreement.
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IN WITNESS THEREOF, the parties hereto have duly executed this Agreement as
the date and year first above written.
XXXXXX SECURITIES, INC.
By:_______________________
Xxxxx Xxxxxxx, Chairman
XXXXXX HOLDING CORP.
By:________________________
Xxxxx Xxxxxxx, Chairman
___________________________
Xxxxxx Xxxxxxx
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