Exhibit 10.33
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") dated as of the 8th day of
February 2005 (the "Effective Date"), by and between First Montauk Financial
Corp., a New Jersey corporation with its principal address at Parkway 109 Office
Center, Red Bank New Jersey 07701 (the "Company") and Xxxxx X. Xxxxxxxx, with
her residence at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000
("Executive").
WHEREAS, the Board of Directors of the Company (the "Board") wishes
Executive to continue to serve as Senior Vice President of the Company and Chief
Financial Officer of the Company's Broker Dealer Subsidiary, First Montauk
Securities Corp.; and
WHEREAS, Executive is willing to provide her services and experience to
the Company and its subsidiaries in such capacities upon the terms, conditions
and provisions hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and mutual
representations, covenants and agreements set forth herein, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. TERM:
Subject to the terms and conditions of Section 7 hereof and for the
compensation hereinafter set forth, the Company hereby agrees to employ
Executive for a one-year term commencing effective as of February 1, 2005 (such
period being herein referred to as the "Initial Term," and any year commencing
on the Effective Date or any anniversary of the Effective Date being hereinafter
referred to as an "Employment Year"). After the Initial Term, the Agreement
shall be renewable automatically for successive one year periods (each such
period being referred to as a "Renewal Term"), unless, more than 120 days prior
to the expiration of the Initial Term or any Renewal Term, either the Executive
or the Company give written notice that employment will not be renewed.
2. EMPLOYMENT:
(A) Executive shall serve as Senior Vice President of Finance and Chief
Financial Officer of the Company's Broker Dealer Subsidiary, First Montauk
Securities Corp. ("Broker Dealer Subsidiary"). Executive's powers and duties
shall be those of an executive nature, which are appropriate for a Senior Vice
President of Finance and Chief Financial Officer and Executive shall report to
the Chief Executive Officer of the Company.
(B) Executive does hereby accept such employment and agrees to devote
substantially all of her business time, attention, knowledge and skills
faithfully, diligently and to the best of her ability, in furtherance of the
business and activities of the Company. The Company shall not require Executive
to be employed in any location other than the Red Bank, New Jersey area unless
she consents in writing to such location provided, however, the Executive
understands and agrees that her position with the Company may include travel to
the Company's other offices and branch locations.
(C) During the term of her Agreement, Executive shall be furnished with
office space and facilities commensurate with her position and adequate for the
performance of her duties; Executive also shall be provided with the perquisites
customarily associated with the position as Senior Vice President of Finance and
Chief Financial Officer.
(D) Executive shall be allowed, to the extent such activities do not
substantially interfere with the performance of her duties and responsibilities
hereunder, (i) to manage her personal, financial and legal affairs, (ii) to be
engaged in civic, charitable, religious and educational activities, and (iii) to
serve on other corporate boards with the prior written approval of the Board.
3. COMPENSATION:
(A) SALARY:
During the term of her Agreement, the Company agrees to pay Executive,
and Executive agrees to accept, an annual salary of not less than One Hundred
Forty Thousand Dollars ($140,000) per year (the "Initial Base Salary"), payable
in accordance with the Company's policies, for services rendered by Executive
hereunder.
(B) INCREASES IN SALARY:
The annual salary is subject to periodic increase at the discretion of
the Chief Executive Officer and Compensation Committee of the Board of Directors
(the "Committee") (or the full Board in lieu thereof), with such increases to
take effect no later than on each anniversary date of her Agreement; provided,
however, that the Committee (or the Board in lieu thereof) shall review the
annual salary for possible increase not less than annually.
(C) BONUS ELIGIBILITY:
Subject to the establishment of a bonus pool for senior management of
the Company by the Committee (the "Bonus Pool"), the Executive, along with the
other executive officers of the Company, shall be entitled to participate in the
Bonus Pool on such terms and conditions determined in the discretion of the
Committee (or the Board in lieu thereof).
(D) STOCK OPTIONS ELIGIBILITY:
(i) Executive shall have the right to participate in the grant of
options through the Company's various management and employee Stock option plans
as determined by the Committee.
(ii) Executive is hereby granted an award of 100,000 restricted shares
of Common Stock under the Company's Senior Management Stock Option Plan as a
bonus award for her performance during the year ended December 31, 2004 and as
an incentive for her continued employment with the Company. One-third of such
Shares shall vest immediately, one-third of such Shares shall vest one year
after the date of this Agreement, and one-third of such Shares shall vest two
years after the date of this Agreement. If Executive renders continuous service
to the Company from the date hereof to a vesting date, on each such vesting date
the Company shall deliver to Executive such number of shares of Common Stock as
shall vest on such date. Notwithstanding the foregoing, in the event's Executive
employment is terminated due to Death or Disability, all Restricted Share Awards
shall immediately vest and all such Shares shall delivered to the Executive, or
Executive's estate.
(E) AUTOMOBILE ALLOWANCE AND CELL PHONE:
The Company shall provide the Employee with an automobile allowance and
mobile telephone, and reimburse reasonable automobile expenses including auto
insurance, repairs, maintenance, gasoline charges, etc. via receipted expense
reports.
(F) CORPORATE CREDIT CARD:
Employee shall have continued use of a corporate credit card to be used
for all reasonable business expenses incurred by Employee on behalf of the
Company upon presentation of suitable documentation.
4. EXPENSES:
The Company shall reimburse Executive for all reasonable and actual
business expenses incurred by her in connection with her service to the Company,
Broker Dealer Subsidiary and/or any direct and/or indirect subsidiaries of such
entities upon submission by her of appropriate vouchers and expense account
reports and otherwise in compliance with the policies and procedures of the
Company.
5. BENEFITS:
(A) INSURANCE:
1. The Company shall maintain family medical insurance for Executive.
In addition, Executive and her dependents shall be entitled to
participate in such other benefits as may be extended to active
executive employees of the Company and/or Broker Dealer Subsidiary
and their dependents including but not limited to pension,
retirement, profit-sharing, 401(k), stock option, bonus and
incentive plans, life insurance, hospitalization, medical,
disability or other benefits made available by the Company to its
employees generally.
2. The Company shall maintain Broker/Dealer Professional Liability
Insurance (E&O), Directors and Officers Liability Insurance (D&O)
and a Broker Dealer Fidelity Blanket Bond, each of which shall
cover the Employee as an insured or covered person, at no charge
to the Employee.
(B) VACATION:
During the term of her Agreement, the Executive will be entitled to the
number of paid holidays, personal days off, and vacation days in each calendar
year as are determined by the Company from time to time (provided that in no
event shall vacation time be fewer than four (4) weeks per year). Such vacation
may be taken in the Executive's discretion at such time or times as are not
inconsistent with the reasonable business needs of the Company.
(C) LICENSES AND REGISTRATIONS:
During the term of her Agreement, the Executive shall maintain in good
standing all required licenses and registrations required for the proper
performance of her duties and functions. During the term of her Agreement, the
Company shall pay the cost of maintaining such licenses and registrations on
Executive's behalf, including but not limited to Executive's accounting licenses
and continuing educations costs, and securities licenses and registrations.
(D) INDEMNIFICATION:
Executive shall be entitled to the benefits of all provisions of the
Certificate of Incorporation of the Company, as amended, and the Bylaws of the
Company, as amended, that provide for indemnification of officers and directors
of the Company. In addition, without limiting the indemnification provisions of
the Certificate of Incorporation or Bylaws, to the fullest extent permitted by
law, the Company shall indemnify and save and hold harmless Executive from and
against any and all claims, demands, liabilities, costs and expenses, including
judgments, fines or amounts paid on account thereof (whether in settlement or
otherwise), and reasonable expenses, including attorneys' fees actually and
reasonably incurred (except only if and to the extent that such amounts shall be
finally adjudged to have been caused by Executive's willful misconduct or gross
negligence, including the willful breach of the provisions of her Agreement) to
the extent that Executive is made a party to or witness in any action, suit or
proceeding, or if a claim or liability is asserted against Executive (whether or
not in the right of the Company), by reason of the fact that she was or is a
director or officer, or acted in such capacity on behalf of the Company, or the
rendering of services by Executive pursuant to her Agreement, whether or not the
same shall proceed to judgment or be settled or otherwise brought to a
conclusion. The Company shall, at no cost to Executive, include Executive during
the term of her Agreement and for a period of not less than two (2) years
thereafter, as an insured under the directors and officers liability insurance
policy maintained by the Company, unless (despite best efforts of the Company)
due to some unforeseeable reason it is not possible for Executive to be so
included, in which event the Company shall immediately notify Executive.
6. RESTRICTIVE COVENANTS:
(A) Executive recognizes and acknowledges that the Company, Broker
Dealer Subsidiary and their subsidiaries, through the expenditure of
considerable time and money, have developed and will continue to develop in the
future information concerning customers, clients, marketing, business and
operational methods of the Company, Broker Dealer Subsidiary and their
subsidiaries and their customers or clients, contracts, financial or other data,
technical data or any other confidential or proprietary information possessed,
owned or used by the Company, Broker Dealer Subsidiary and their subsidiaries,
and that the same are confidential and proprietary, and are "confidential
information" of the Company, Broker Dealer Subsidiary and their subsidiaries. In
consideration of her continued employment by the Company hereunder, Executive
agrees that she will not, during or for a period of one year after termination
of employment, directly or indirectly, make any disclosure of confidential
information now or hereafter possessed by the Company, Broker Dealer Subsidiary,
and/or any of their current or future, direct or indirect subsidiaries
(collectively, the "Group"), to any person, partnership, corporation or entity
either during or after the term hereunder, except to employees of the Group and
to others within or without the Group, as Executive may deem necessary in order
to conduct the Group's business and except as may be required pursuant to any
court order, judgment or decision from any court of competent jurisdiction. The
foregoing shall not apply to information which is in the public domain on the
date hereof; which, after it is disclosed to Executive by the Group, is
published or becomes part of the public domain through no fault of Executive;
which is known to Executive prior to disclosure thereof to her by the Group as
evidenced by her written records; or, after Executive is no longer employed by
the Group, which is thereafter disclosed to Executive in good faith by a third
party which is not under any obligation of confidence or secrecy to the Group
with respect to such information at the time of disclosure to her. The
provisions of this Section 6 shall continue in full force and effect
notwithstanding termination of Executive's employment under her Agreement or
otherwise.
(B) Executive agrees that if the Company has made and is continuing to
make all required payments to her upon and after termination of her employment,
then for a period commencing on the date of termination of Executive's
employment pursuant to this Agreement and ending twelve (12) months thereafter,
Executive shall neither directly and/or indirectly solicit or hire any prior
(within twelve (12) months) or then current employee of the Company and/or
Broker Dealer Subsidiary nor any of their respective direct and/or indirect
subsidiaries (collectively, the "Applicable Entities"), nor (b) solicit any
business with any prior (within twelve (12) months of termination) or then
current customer and/or client of the Applicable Entities, unless Executive had
a pre-existing relationship with the customer.
(C) Executive acknowledges that the restrictive covenants (the
"Restrictive Covenants") contained in her Section 6 are a condition of her
continued employment and are reasonable and valid in geographical and temporal
scope and in all other respects. If any court determines that any of the
Restrictive Covenants, or any part of any of the Restrictive Covenants, is
invalid or unenforceable, the remainder of the Restrictive Covenants and parts
thereof shall not thereby be affected and shall be given full effect, without
regard to the invalid portion. If any court determines that any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable because
of the geographic or temporal scope of such provision, such court shall have the
power to reduce the geographic or temporal scope of such provision, as the case
may be, and, in its reduced form, such provision shall then be enforceable.
(D) If Executive breaches, or threatens to breach, any of the
Restrictive Covenants, the Company, in addition to and not in lieu of any other
rights and remedies it may have at law or in equity, shall have the right to
injunctive relief; it being acknowledged and agreed to by Executive that any
such breach or threatened breach would cause irreparable and continuing injury
to the Company and that money damages would not provide an adequate remedy to
the Company.
7. TERMINATION:
(A) DEATH:
In the event of Executive's death ("Death") during the term of her
employment, Executive's designated beneficiary, or in the absence of such
beneficiary designation, her estate, shall be entitled to the Accrued
Obligations and to the payment of Executive's salary through the date of Death.
For purposes of her Agreement, "Accrued Obligations" shall mean (i) all accrued
but unpaid salary through the date of termination of Executive's employment,
(ii) any unpaid or unreimbursed expenses incurred in accordance with her
Agreement, and (iii) all compensation or benefits due to the Executive under the
terms and rules of any Company or Broker Dealer Subsidiary compensation or
benefit plan in which the Executive participates, including without limitation,
any Company option plans, or otherwise required by applicable law.
(B) DISABILITY:
(i) In the event Executive, by reason of physical or mental incapacity,
shall be disabled for a period of at least a period of 90 consecutive days
("Disability"), the Company shall have the option at any time thereafter to
terminate Executive's employment hereunder for Disability. Such termination will
be effective ten (10) days after the Board gives written notice of such
termination to Executive, unless Executive shall have returned to the
performance of her duties prior to the effective date of the notice. Upon such
termination, Executive shall be entitled to the Accrued Obligations and such
benefits to which he and her dependents are entitled by law, and except as
otherwise expressly provided herein, all obligations of the Company hereunder
shall cease upon the effectiveness of such termination other than payment of
salary earned through the date of Disability, provided that such termination
shall not affect or impair any rights Executive may have under any policy of
long term disability insurance or benefits then maintained on her behalf by the
Company.
(ii) "Incapacity" as used herein shall mean the inability of the
Executive due to physical or mental illness, injury or disease substantially to
perform her normal duties as Senior Vice President and Chief Financial Officer.
Executive's salary as provided for hereunder shall continue to be paid during
any period of incapacity prior to and including the date on which Executive's
employment is terminated for Disability.
(C) BY THE COMPANY FOR CAUSE:
(i) The Company shall have the right, before the expiration of the term
of her Agreement, to terminate the Executive's employment hereunder and to
discharge Executive for cause (hereinafter "Cause"), and all compensation to
Executive shall cease to accrue upon discharge of Executive for Cause. For the
purposes of her Agreement, the term "Cause" shall mean (a) Executive's
conviction of a felony; (b) the alcoholism or drug addiction of Executive which
impairs her ability to perform her duties in the determination of the Chief
Executive Officer; (c) the continued and willful failure by Executive to
substantially and materially perform her material duties hereunder or the
refusal or failure by Employee to adhere to the Company's employment policies,
including, without limitation, policies regarding sexual harassment,
discrimination or the federal and state securities laws, after a reasonable
notice and an opportunity to cure same if such refusal or failure may be cured;
(d) an act or acts of personal dishonesty by Executive intended to result in
personal enrichment of Executive at the expense of the Company, the Company or
any of their subsidiaries or affiliates or any other material breach or
violation of Executive's fiduciary duty owed to the Company, Broker Dealer
Subsidiary or any of their subsidiaries or affiliates; (e) any grossly negligent
act or omission or any willful and deliberate misconduct by Executive that
results, or is likely to result, in material economic, or other harm, to the
Company, Broker Dealer Subsidiary or any of their subsidiaries or affiliates;
(f) an action taken by a governmental, regulatory body or self regulatory
organization that substantially impairs the Executive from performing her
duties; or (g) refusal by Executive to assist the Company, at the request of the
Board of Directors, in any investigation or other proceeding (whether formal or
informal) which is commenced by the Board of Directors, or any governmental,
regulatory body or self regulatory organization.
(ii) If the Company elects to terminate Executive's employment for
Cause under 7(C)(i) above, such termination shall be effective five (5) days
after the Company gives written notice of such termination to Executive. In the
event of a termination of Executive's employment for Cause in accordance with
the provisions of 7(C)(i), the Company shall have no further obligation to the
Executive, except for the payment of the Accrued Obligations and such benefits
to which he and her dependents are entitled by law.
(D) RESIGNATION FOR REASON. Executive shall have the right to terminate
her employment at any time for "good reason" (herein designated and referred to
as "Reason"). The term Reason shall mean (i) the Company's failure or refusal to
perform any obligations required to be performed in accordance with her
Agreement after a reasonable notice and an opportunity to cure same, (ii) a
material diminution in Executive's title, duties, responsibilities, reporting
relationship or positions, (iii) the relocation of Executive's principal office
location more than fifty (50) miles from its current location, and (iv) the
failure of the Company or Broker Dealer Subsidiary to obtain the assumption in
writing of its obligation to perform her Agreement by any successor to all or
substantially all of the assets of the Company. Notwithstanding the occurrence
of any such event or circumstance above, such occurrence shall not be deemed to
constitute Reason hereunder if, within the thirty-day notice period, the event
or circumstance giving rise to Reason has been fully corrected by the Company.
(E) NON-RENEWAL: In the event that this Agreement is not renewed
("Non-Renewal), the Company shall pay an amount equal to the Initial Base Salary
(but no other increases to Salary and Bonus) and benefits under Section 5 to the
Executive for a period of twelve months.
(F) SEVERANCE: In the event Executive's employment hereunder shall be
terminated by the Company for other than Cause, Death or Disability, or
Non-Renewal, or if terminated by Executive for Reason: (i) the Executive shall
receive as severance pay in a lump sum no later than sixty (60) days following
such termination, (a) an amount equal to Executive's one (1) year's salary based
on Executive's salary on the date of termination, (b) Executive's portion of the
Bonus Pool described in Section 3 C hereof, (ii) Executive's (and her
dependents') participation in any and all life, disability, medical and dental
insurance plans shall be continued, or equivalent benefits provided to her or
them by the Company, at no cost to her or them, for a period of 12 months from
the termination and (iii) Executive shall be entitled to the Accrued Obligations
and such benefits to which he and her dependents are entitled by law.
(G) RESIGNATION WITHOUT REASON: Executive may voluntarily resign her
employment with the Company upon ten (10) days' written notice to the Company
without any liability to Executive. In the event Executive resigns without
reason prior to the expiration of her Agreement, she shall receive only the
Accrued Obligations and such benefits to which she and her dependents are
entitled by law.
8. WAIVER:
No delay or omission to exercise any right, power or remedy accruing to
either party hereto shall impair any such right, power or remedy or shall be
construed to be a waiver of or an acquiescence to any breach hereof. No waiver
of any breach hereof shall be deemed to be a waiver of any other breach hereof
theretofore or thereafter occurring. Any waiver of any provision hereof shall be
effective only to the extent specifically set forth in the applicable writing.
All remedies afforded to either party under this Agreement, by law or otherwise,
shall be cumulative and not alternative and shall not preclude assertion by
either party of any other rights or the seeking of any other rights or remedies
against the other party.
9. GOVERNING LAW:
The validity of this Agreement or of any of the provisions hereof shall
be determined under and according to the laws of the State of New Jersey, and
this Agreement and its provisions shall be construed according to the laws of
the State of New Jersey, without regard to the principles of conflicts of law
and the actual domiciles of the parties hereto.
10. NOTICES:
All notices, demands or other communications required or permitted to
be given in connection with this Agreement shall be given in writing, shall be
transmitted to the appropriate party by hand delivery, by certified mail, return
receipt requested, postage prepaid or by overnight carrier and shall be
addressed to a party at such party's address shown on the signature page hereof.
A party may designate by written notice given to the other parties a new address
to which any notice, demand or other communication hereunder shall thereafter be
given. Each notice, demand or other communication transmitted in the manner
described in this Section 10 shall be deemed to have been given and received for
all purposes at the time it shall have been (i) delivered to the addressee as
indicated by the return receipt (if transmitted by mail) or the affidavit of the
messenger (if transmitted by hand delivery or overnight carrier) or (ii)
presented for delivery during normal business hours, if such delivery shall not
have been accepted for any reason.
11. ASSIGNMENT:
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and each of their respective successors, assigns, heirs and legal
representatives; PROVIDED, HOWEVER, that Executive may not assign or delegate
her obligations, responsibilities and duties hereunder except as may otherwise
be expressly agreed to in writing by the parties hereto. The Company and Broker
Dealer Subsidiary will require any such purchaser, successor or assignee to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company and Broker Dealer Subsidiary would be required
to perform it if no such purchase, succession or assignment had taken place. If
Executive shall die, all amounts then payable to Executive hereunder shall be
paid in accordance with the terms of this Agreement to Executive's devisee,
legatee or other designee or, if there be no such designee, the Executive's
estate.
12. MISCELLANEOUS:
This Agreement contains the entire understanding between the parties
hereto and supersedes all other oral and written agreements or understandings
between them with respect to the subject matter hereof. No modification or
addition hereto or waiver or cancellation of any provision shall be valid except
by a writing signed by the party to be charged therewith.
13. SEVERABILITY:
The parties agree that if any of the covenants, agreements or
restrictions contained herein are held to be invalid by any court of competent
jurisdiction, the remainder of the other covenants, agreements, restrictions and
parts thereof herein contained shall be severable so not to invalidate any
others and such other covenants, agreements, restrictions and parts thereof
shall be given full effect without regard to the invalid portion.
14. ARBITRATION:
Any and all disputes, controversies, or differences, whether arising or
commenced during or subsequent to the term hereof, which may arise between the
parties directly and/or indirectly out of or in relation to or in connection
with this Agreement, or for the breach of this Agreement, shall be settled by
arbitration in New York City, New York before three arbitrators under the
arbitration rules of the National Association of Securities Dealers, Inc.
("NASD") then in effect. Each of the arbitrators shall be appointed in
accordance with the rules of the NASD. Such arbitration shall be final and
binding and shall be limited to an interpretation and application of the
provisions of this Agreement and any related agreements or documents. Any
arbitral award shall be enforceable in any court, wherever located, having
jurisdiction over the party against whom the award was rendered and may include
an award of attorneys' fees and expenses, proceeding costs, and all other costs
and expenses reasonably associated with such arbitration or enforcement
proceedings (i.e., travel, lodging, telecommunications charges).
15. SURVIVAL OF OPERATIVE SECTIONS:
The respective rights and obligations of the parties hereto, including,
without limitation, the rights and obligations set forth in Sections 5(D), 6
through 14 of this Agreement, shall survive any termination of this Agreement to
the extent necessary to preserve all such rights and obligations until
discharged in full.
16. COUNTERPARTS:
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument. The execution of this Agreement may be
by actual or facsimile signature.
17. SEPARATE COUNSEL. Executive hereby expressly acknowledge that she
has been advised that she has not been represented by Xxxxxxxxx & XxXxxxx LLP,
the Company's attorney in connection with this Agreement and has been advised
and urged to seek separate legal counsel for advice in this matter.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day
and year first above written.
FIRST MONTAUK FINANCIAL CORP. XXXXX X. XXXXXXXX
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxxx
--------------------------------- ---------------------------
Xxxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxx
Title: President and C.E.O. Executive
