Exhibit 10.9
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AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
by and between
MAXCOR FINANCIAL GROUP INC.
and
Xxxxx X. Xxxxx
TABLE OF CONTENTS
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SECTION PAGE
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1. Employment...........................................................1
2. Term.................................................................1
3. Position and Duties; Place of Performance............................1
4. Compensation and Related Matters.....................................2
(a) Base Salary....................................................2
(b) Bonuses........................................................2
(c) Expenses.......................................................2
(d) Other Benefits.................................................2
(e) Life Insurance.................................................3
(f) Vacation.......................................................3
(g) Services Furnished.............................................3
5. Offices..............................................................3
6. Termination..........................................................3
(a) Death..........................................................3
(b) Disability.....................................................3
(c) Cause..........................................................4
(d) Good Reason....................................................4
(e) Change in Control..............................................6
7. Termination Procedure................................................7
(a) Notice of Termination..........................................7
(b) Date of Termination............................................7
(c) Compensation During Dispute....................................8
8. Compensation upon Termination or During Disability...................8
(a) Disability; Death..............................................8
(b) By Company without Cause or by the Executive for Good Reason...8
(c) By Company for Cause or by the Executive Other than
for Good Reason................................................9
(d) Compensation Plans.............................................9
(e) Gross-Up Payment...............................................9
9. Mitigation..........................................................11
10. Confidential Information; Noncompetition Requirement................11
(a) Confidential Information......................................11
(b) Noncompetition Requirement....................................11
(c) Salary Continuation...........................................12
(d) Injunctive Relief.............................................12
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11. Indemnification; Legal Fees.........................................12
12. Successors; Binding Agreement.......................................13
(a) Company's Successors..........................................13
(b) Executive's Successors........................................13
13. Notice..............................................................13
14. Miscellaneous.......................................................14
15. Validity............................................................15
16. Counterparts........................................................15
17. Entire Agreement....................................................15
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AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of October 1, 2002
(this "AGREEMENT") by and between Xxxxx X. Xxxxx (the "EXECUTIVE"), and Maxcor
Financial Group Inc., a Delaware corporation (the "COMPANY"), amending and
restating the employment agreement between the parties hereto, dated as of
August 14, 1998 (the "1998 AGREEMENT").
WHEREAS, the Board of Directors of the Company (the "BOARD") currently
employs the Executive and the Executive currently furnishes services to the
Company on the terms and conditions set forth in the 1998 Agreement; and
WHEREAS, the Board and the Executive mutually desire to extend the term
of the Executive's employment with the Company beyond that provided for in the
1998 Agreement and to make certain other changes in the terms and conditions set
forth in the 1998 Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth below, the parties hereby agree to amend and restate the
1998 Agreement as follows:
1. Employment.
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The Company hereby agrees to continue to employ the Executive, which
period of continuous employment began on August 19, 1997, and the Executive
hereby accepts such continued employment, on the terms and conditions
hereinafter set forth.
2. Term.
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The period of employment of the Executive by the Company pursuant to
this Agreement (the "EMPLOYMENT PERIOD") shall commence on the date first
written above (the "COMMENCEMENT DATE"), and shall continue in effect through
August 14, 2006, unless further extended as provided in this Section 2 or sooner
terminated as provided in Section 6. Commencing on August 14, 2005 and on each
successive anniversary thereafter, the contract term of the Executive's
employment shall be automatically extended for one (1) additional year unless,
on or prior to such date or anniversary, the Company shall have delivered to the
Executive or the Executive shall have delivered to the Company written notice
that the term of the Executive's employment hereunder will not be extended (the
initial term, as it may be so extended, the "CONTRACT TERM"); PROVIDED, HOWEVER,
that, if a Change in Control shall have occurred during the original or extended
term of this Agreement, the Contract Term shall continue in effect for at least
twenty-four (24) months subsequent to the month in which such Change in Control
occurs.
3. Position and Duties; Place of Performance.
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During the Employment Period, the Executive shall serve as Chief
Operating Officer of the Company. The Executive shall have the full
responsibilities and authority attendant to such position and report directly to
the Chairman, President and Chief Executive Officer of the Company. The
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Executive's responsibilities and authority shall include such responsibilities
and authority as may from time to time be assigned to the Executive by the
Chairman, President and Chief Executive Officer of the Company, provided that
such responsibilities and authority are consistent with the Executive's position
with the Company. During the Employment Period, the Executive shall also serve
as Chief Operating Officer of various of the Company's subsidiaries, including,
but not limited to, Euro Brokers Investment Corporation, Euro Brokers Inc. and
Maxcor Financial Inc. (collectively, the "SUBSIDIARIES"). During the Employment
Period, the Executive agrees to devote substantially all of his working time and
efforts to the performance of his duties for the Company and the Subsidiaries.
In connection with the Executive's employment by the Company, the Executive
shall be based at the Company's principal executive offices in Manhattan, New
York, except for reasonably required travel on the Company's business.
4. Compensation and Related Matters.
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(a) BASE SALARY. As compensation for the performance by the
Executive of his obligations hereunder, during the Employment Period the Company
shall pay the Executive a base salary at the rate of $300,000 per annum ("BASE
SALARY"). Base Salary shall be paid in approximately equal installments in
accordance with the Company's customary payroll practices. Base Salary may be
increased from time to time in accordance with the normal business practices of
the Company and, if so increased, shall not thereafter during the Employment
Period be decreased.
(b) BONUSES. During the Employment Period, the Executive shall
be eligible to receive such semi-annual bonuses (the "BONUS") as may be awarded
to him as the Board or the Compensation Committee of the Board shall determine,
or if an incentive plan is adopted by the Company or a subsidiary thereof, in
accordance with the terms of such plan.
(c) EXPENSES. The Company shall promptly reimburse the
Executive for all reasonable business expenses incurred during the Employment
Period by the Executive in performing services hereunder, including all expenses
of travel and living expenses while traveling on business or at the request of
and in the service of the Company, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by the
Company.
(d) OTHER BENEFITS. The Executive shall be entitled to
participate in all of the employee benefit plans and arrangements currently
maintained by the Company or a subsidiary thereof, in accordance with the terms
of such plans and arrangements, and shall be entitled to participate in or
receive benefits under any employee benefit plan or arrangement made available
by the Company or a subsidiary thereof in the future to its executives and key
management employees (including without limitation each incentive plan, pension
and retirement plan and arrangement, supplemental pension and retirement plan
and arrangement, stock option plan, life insurance and health-and-accident plan
and arrangement, medical insurance plan, disability plan, survivor income plan,
relocation plan and vacation plan), subject to and on a basis consistent with
the terms, conditions and overall administration of such plans and arrangements.
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Nothing paid to the Executive under any plan or arrangement presently in effect
or made available in the future (including subsection (e) of this Section 4)
shall be deemed to be in lieu of the salary payable to the Executive pursuant to
subsection (a) of this Section 4.
(e) LIFE INSURANCE. During the Employment Period, the Company
shall obtain and maintain a term life insurance policy on and for the benefit of
the Executive, including paying all premiums for the policy that come due within
the Employment Period. The policy shall have a death benefit amount of not less
than $2 million payable to the beneficiary or beneficiaries designated by the
Executive. The policy shall be in addition to any coverage the Executive has
under any group life insurance plan maintained by the Company or a subsidiary
thereof.
(f) VACATION. The Executive shall be entitled to 25 vacation
days in each calendar year; PROVIDED, HOWEVER, that vacation not taken shall not
accrue from year-to-year or be compensated for at the end of the Employment
Period. The Executive shall also be entitled to all paid holidays given by the
Company to its executives.
(g) SERVICES FURNISHED. During the Employment Period, the
Company shall furnish the Executive with office space, stenographic assistance
and such other facilities and services as shall be suitable to the Executive's
position and adequate for the performance of his duties as set forth in Section
3 hereof.
5. Offices.
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Subject to Section 3 hereof, the Executive agrees to serve without
additional compensation, if elected or appointed thereto, as a director of the
Company or any subsidiaries of the Company and as a member of any committees of
the board of directors of any such corporations, and in one or more executive
positions of any of the Company's subsidiaries, provided that the Executive is
indemnified for serving in any and all such capacities on a basis no less
favorable than is currently provided to any other director of the Company or any
of its subsidiaries, or any such executive position, as the case may be.
6. Termination.
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The Executive's employment hereunder (and the Employment Period) may be
terminated without any breach of this Agreement only under the circumstances set
forth in the following subsections (a), (b), (c) and (d).
(a) DEATH. The Executive's employment hereunder (and the
Employment Period) shall terminate upon his death.
(b) DISABILITY. If, as a result of the Executive's incapacity
due to physical or mental illness, the Executive shall have been absent from the
full-time performance of his duties hereunder for the entire period of six
consecutive months, and within thirty (30) days after written Notice of
Termination (as defined in Section 7 hereof) is given shall not have returned to
the performance of his duties hereunder on a full-time basis, the Company may
terminate the Executive's employment hereunder (and the Employment Period) for
"Disability."
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(c) CAUSE. The Company may terminate the Executive's
employment hereunder (and the Employment Period) for Cause. For purposes of this
Agreement, the Company shall have "CAUSE" to terminate the Executive's
employment hereunder upon the occurrence of any of the following events:
(i) the conviction of the Executive for the commission
of a felony; or
(ii) the willful and continuing failure by the Executive
to substantially perform his duties hereunder (other than such failure
resulting from the Executive's incapacity due to physical or mental
illness or subsequent to the issuance of a Notice of Termination by the
Executive for Good Reason) after demand for substantial performance is
delivered by the Company in writing that specifically identifies the
manner in which the Company believes the Executive has not
substantially performed his duties; or
(iii) the willful misconduct by the Executive (including,
but not limited to, breach by the Executive of the provisions of
Section 10 hereof) that is demonstrably and materially injurious to the
Company or its subsidiaries, whether monetarily or otherwise.
Cause shall not exist unless and until the Company has delivered to the
Executive a copy of a resolution duly adopted by the affirmative vote of not
less than two-thirds (2/3) of the entire membership of the Board of Directors of
the Company (not counting the Executive) at a meeting of such board called and
held for such purpose (after reasonable notice to the Executive and an
opportunity for the Executive, together with his counsel, to be heard before
such board), finding that in the good faith opinion of such board, the Executive
was guilty of the conduct set forth in this Section 6(c) and specifying the
particulars thereof in detail. For purposes of this Section 6(c), no act or
failure to act on the Executive's part shall be considered "willful" unless done
or failed to be done by the Executive in bad faith and without reasonable belief
that the Executive's action or omission was in the best interest of the Company.
(d) GOOD REASON. The Executive may terminate his employment
hereunder (and the Employment Period) during the Contract Term hereunder for
"GOOD REASON" after the occurrence, without the written consent of the
Executive, of an event constituting a material breach of this Agreement by the
Company that has not been fully cured within ten (10) days after written notice
thereof has been given by the Executive to the Company, provided that, without
limiting the generality of the foregoing, on and after a Change in Control, any
one of the following events shall be deemed a material breach of this Agreement:
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(i) the assignment to the Executive of any duties
inconsistent with the Executive's status as a senior executive officer
of the Company or a substantial adverse alteration in the nature of the
Executive's responsibilities from those in effect immediately prior to
the Change in Control, including, without limitation, if the Executive
was, immediately prior to the Change in Control, an executive officer
of a public company, the Executive ceasing to be an executive officer
of a public company, or being required to report to anyone other than
the Chairman, President and Chief Executive Officer;
(ii) a reduction by the Company in the Executive's Base
Salary as in effect immediately prior to the Change in Control;
(iii) the relocation of the Executive's principal place
of employment to a location outside of Manhattan, New York;
(iv) the failure by the Company to pay to the Executive
any portion of the Executive's current compensation or to pay to the
Executive any portion of an installment of deferred compensation under
any deferred compensation program of the Company within fifteen (15)
days of the date such compensation is due;
(v) the failure by the Company to provide the Executive
with compensation plans which, in the aggregate, provide the Executive
with substantially comparable compensation opportunities to those
compensation opportunities for which the Executive was eligible
immediately prior to the Change in Control;
(vi) the failure by the Company to continue to provide
the Executive with benefits substantially similar to those enjoyed by
the Executive under any of the Company's pension, life insurance,
medical, health and accident, or disability plans in which the
Executive was participating at the time of the Change in Control, the
taking of any action by the Company which would directly or indirectly
materially reduce any of such benefits or deprive the Executive of any
material perquisite or other fringe benefit, or secretarial service and
office space at the level, enjoyed by the Executive at the time of the
Change in Control, or the failure by the Company to provide the
Executive with the number of paid vacation days to which the Executive
is entitled under this Agreement;
(vii) any purported termination of the Executive's
employment which is not effected pursuant to a Notice of Termination
satisfying the requirements of Section 7(a) or that does not comply
with Section 6(c), if applicable (and for purposes of this Agreement,
no such purported termination shall be effective); or
(viii) the failure of a successor to the Company to
expressly assume and agree to perform this Agreement pursuant to
Section 12(a) hereof.
The Executive's right to terminate his employment hereunder for Good Reason
shall not be affected by his incapacity due to physical or mental illness. The
Executive's continued employment shall not constitute consent to, or a waiver of
rights with respect to, any act or failure to act constituting Good Reason
hereunder.
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(e) Change in Control.
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A "CHANGE IN CONTROL" shall be deemed to have occurred if the
event set forth in any one of the following paragraphs shall have occurred:
(i) any Person is or becomes the "Beneficial Owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Company (not including in the securities
Beneficially Owned by such Person any securities acquired directly from
the Company) representing 50% or more of the Company's then outstanding
securities, excluding any Person who becomes such a Beneficial Owner in
connection with a transaction described in clause (A) or (C) of
paragraph (iii) below; or
(ii) the following individuals cease for any reason to
constitute a majority of the number of directors then serving:
individuals who, on the Commencement Date, constitute the Board and any
new director (other than a director whose initial assumption of office
is in connection with an actual or threatened election contest,
including but not limited to a consent solicitation, relating to the
election of directors of the Company) whose appointment or election by
the Board or nomination for election by the Company's stockholders was
approved or recommended by a vote of at least two-thirds of the
directors then still in office who either were directors on the
Commencement Date or whose appointment, election or nomination for
election was previously so approved or recommended; or
(iii) there is consummated a merger or consolidation of
the Company or any direct or indirect subsidiary of the Company with
any other corporation other than (A) a merger or consolidation which
would result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity or any parent thereof) at
least 50% of the combined voting power of the voting securities of the
Company or such surviving entity or any parent thereof outstanding
immediately after such merger or consolidation, or (B) a merger or
consolidation effected to implement a re-capitalization of the Company
(or similar transaction) in which no Person is or becomes the
Beneficial Owner, directly or indirectly, of securities of the Company
(not including in the securities Beneficially Owned by such Person any
securities acquired directly from the Company) representing 50% or more
of the combined voting power of the Company's then outstanding
securities, or (C) a merger or consolidation which would result in any
individual, entity or group which includes, is affiliated with or is
wholly or partly controlled by the individual who, as of the
Commencement Date, is the Chief Executive Officer of the Company (the
"Chief Executive Officer") being the Beneficial Owner of at least 50%
of the combined voting power of the voting securities of the Company,
the entity surviving such merger of consolidation or any parent thereof
outstanding immediately after such merger or consolidation; or
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(iv) the stockholders of the Company approve a plan of
complete liquidation or dissolution of the Company or there is
consummated an agreement for the sale or disposition by the Company of
all or substantially all of the Company's assets, other than a sale or
disposition by the Company of all or substantially all of the Company's
assets to an entity at least 50% of the combined voting power of the
voting securities of which are owned by Persons in substantially the
same proportions as their ownership of the Company immediately prior to
such sale.
For purposes of this Section 6(e) and Section 8(e) hereof,
"PERSON" shall have the meaning given in Section 3(a)(9) of the Securities
Exchange Act of 1934, as modified and used in Sections 13(d) and 14(d) thereof,
except that such term shall not include (i) the Company or any of its
subsidiaries, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its subsidiaries or affiliates,
(iii) an underwriter temporarily holding securities pursuant to an offering of
such securities, (iv) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company or (v) any individual, entity or group which
includes, is affiliated with or is wholly or party controlled by the Chief
Executive Officer.
7. Termination Procedure.
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(a) NOTICE OF TERMINATION. Any termination of the Executive's
employment by the Company or by the Executive (other than termination pursuant
to Section 6(a) hereof) shall be communicated by written Notice of Termination
to the other party hereto in accordance with Section 13. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall indicate
the specific termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated.
(b) Date of Termination.
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"DATE OF TERMINATION" shall mean (i) if the Executive's
employment is terminated by his death, the date of his death, (ii) if the
Executive's employment is terminated for Disability pursuant to Section 6(b),
thirty (30) days after Notice of Termination (provided that the Executive shall
not have returned to the performance of his duties on a full-time basis during
such thirty (30) day period), (iii) if the Executive's employment is terminated
for Cause pursuant to Section 6(c), the date specified in the Notice of
Termination, which shall not be earlier than the date of the Notice of
Termination, and (iv) if the Executive's employment is terminated for any other
reason, the date on which a Notice of Termination is given or any later date
(within 30 days) set forth in such Notice of Termination; PROVIDED, HOWEVER,
that if a purported termination occurs on or after a Change in Control and
during the Contract Term and either party notifies the other party that a
dispute exists concerning the termination, the Date of Termination shall be the
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date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding and final arbitration award or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been perfected); PROVIDED
FURTHER, HOWEVER, that the Date of Termination shall be extended by a notice of
dispute given by the Executive only if such notice is given in good faith and
the Executive pursues the resolution of such dispute with reasonable diligence.
(c) COMPENSATION DURING DISPUTE. If a purported termination
occurs on or after a Change in Control and during the Contract Term, and such
termination is disputed in accordance with subsection (b) of this Section 7, the
Company shall continue to pay the Executive the full compensation in effect when
the notice giving rise to the dispute was given (including, but not limited to,
salary) and continue the Executive as a participant in all compensation, benefit
and insurance plans in which the Executive was participating when the notice
giving rise to the dispute was given, until the Date of Termination, determined
in accordance with subsection (b) of this Section 7. Amounts paid under this
Section 7(c) are in addition to all other amounts due under this Agreement and
shall not be offset against or reduce any other amounts due under this
Agreement.
8. Compensation upon Termination or During Disability.
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(a) DISABILITY; DEATH. During any period that the Executive
fails to perform his duties hereunder as a result of incapacity due to physical
or mental illness ("Disability Period"), the Executive shall continue to receive
his full Base Salary at the rate in effect at the beginning of such period and
continue as a participant in all compensation and employee benefit plans in
which the Executive was participating pursuant to Sections 4(d) and 4(e) until
his employment is terminated pursuant to Section 6(b) and shall continue to
receive such Base Salary for a period of six months thereafter. Subsequent to
the six-month period following termination of the Executive's employment
pursuant to Section 6(b), or in the event the Executive's employment is
terminated by reason of his death, the Company shall have no further obligations
to the Executive under this Agreement and the Executive's benefits shall be
determined under the Company's retirement, insurance and other compensation
programs then in effect in accordance with the terms of such programs.
(b) BY COMPANY WITHOUT CAUSE OR BY THE EXECUTIVE FOR GOOD
REASON. If during the Contract Term the Executive's employment is terminated by
the Company other than for Cause or Disability or by the Executive for Good
Reason, then --
(i) in addition to any amounts due the Executive
pursuant to Sections 4(a) or 4(b) hereof, the Company shall continue to
pay to the Executive (or his legal representatives or estate) his Base
Salary (at the rate in effect immediately prior to the occurrence of
the circumstance giving rise to the Notice of Termination) for the
remainder of the Contract Term or, if greater, for one year; PROVIDED,
HOWEVER, that if such termination occurs on or after a Change in
Control, then the Company shall, within five (5) days following the
Date of Termination, pay to the Executive, in an undiscounted cash lump
sum, an amount equal to three (3) times the sum of Base Salary (at the
rate in effect immediately prior to the occurrence of the circumstance
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giving rise to the Notice of Termination) and the highest Bonus
(annualized if paid for less than a full year) awarded in respect of
any bonus period falling entirely within the twenty-four month period
preceding the Change in Control or the Date of Termination, whichever
resulting Bonus is greater, provided that, solely for purposes of this
Section 8(b)(i), such annualized Bonus shall not be less than $400,000;
and
(ii) the Company or a subsidiary thereof shall maintain
in full force and effect, for the continued benefit of the Executive
and his dependents for the remainder of the Contract Term or, if
greater, for one year or, if such termination occurs on or after a
Change in Control, for the duration of the Executive's life, all
medical, dental and life insurance benefit plans and programs in which
the Executive was entitled to participate immediately prior to the Date
of Termination, provided that the Executive's continued participation
is possible under the general terms and provisions of such plans and
programs. In the event that the Executive's participation in any such
plan or program is barred, the Company shall arrange to provide the
Executive and his dependents with benefits substantially similar to
those which the Executive and his dependents would otherwise have been
entitled to receive under such plans and programs from which their
continued participation is barred; and
(iii) the Executive shall be deemed to continue as an
employee of the Company during the remainder of the Contract Term for
purposes of the exercise and/or vesting of outstanding stock and stock
option awards and cash incentive awards.
(c) BY COMPANY FOR CAUSE OR BY THE EXECUTIVE OTHER THAN FOR
GOOD REASON. If the Executive's employment shall be terminated by the Company
for Cause or by the Executive other than for Good Reason, then the Company shall
pay the Executive his Base Salary (at the rate in effect at the time Notice of
Termination is given) through the Date of Termination, and the Company shall
have no additional obligations to the Executive under this Agreement except as
set forth in subsection (d) of this Section 8.
(d) COMPENSATION PLANS. Following any termination of the
Executive's employment, the Company shall pay the Executive all unpaid amounts,
if any, to which the Executive is entitled as of the Date of Termination under
any compensation plan or program of the Company, at the time such payments are
due.
(e) Gross-Up Payment.
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(i) Notwithstanding any other provisions of this
Agreement, in the event that any payment or benefit received or to be
received by the Executive in connection with a Change in Control or the
termination of the Executive's employment (whether pursuant to the
terms of this Agreement (the "SEVERANCE PAYMENTS") or any other plan,
arrangement or agreement with the Company, any Person whose actions
result in a Change in Control or any Person affiliated with the Company
or such Person) (all such payments and benefits, including the
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Severance Payments, being hereinafter called "TOTAL PAYMENTS") would be
subject (in whole or part) to the excise tax ("EXCISE TAX") imposed
under section 4999 of the Internal Revenue Code of 1986, as amended
(the "CODE"), then the Company shall pay to the Executive an additional
amount (the "GROSS-UP PAYMENT") such that the net amount retained by
the Executive, after deduction of any Excise Tax on the Total Payments
and any federal, state and local income and employment taxes and Excise
Tax upon the payment provided for by this Section 8(e), shall be equal
to the Total Payments.
(ii) For purposes of determining whether any of the
Total Payments will be subject to the Excise Tax and the amount of such
Excise Tax, (A) all of the Total Payments shall be treated as
"parachute payments" within the meaning of section 280G(b)(2) of the
Code, unless in the opinion of tax counsel selected by the Company's
independent auditors and reasonably acceptable to the Executive ("TAX
COUNSEL"), such other payments or benefits (in whole or in part) do not
constitute parachute payments, including by reason of section
280G(b)(4)(A) of the Code, (B) all "excess parachute payments" within
the meaning of section 280G(b)(l) of the Code shall be treated as
subject to the Excise Tax, unless in the opinion of Tax Counsel such
excess parachute payments (in whole or in part) represent reasonable
compensation for services actually rendered, within the meaning of
section 280G(b)(4)(B) of the Code, in excess of the Base Amount
allocable to such reasonable compensation, or are otherwise not subject
to the Excise Tax, and (C) the value of any noncash benefits or any
deferred payment or benefit shall be determined by the Company's
independent auditors in accordance with the principles of sections
280G(d)(3) and (4) of the Code. For purposes of determining the amount
of the Gross-Up Payment, the Executive shall be deemed to pay federal
income taxes at the highest marginal rate of federal income taxation in
the calendar year in which occurs the Date of Termination (or such
earlier date on which any payment or benefit becomes subject to the
Excise Tax) and state and local income taxes at the highest marginal
rate of taxation in the state and locality of the Executive's residence
on the Date of Termination (or such earlier date on which any payment
or benefit becomes subject to the Excise Tax), net of the maximum
reduction in federal income taxes which could be obtained from
deduction of such state and local taxes.
(iii) In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at
the time of termination of the Executive's employment, the Executive
shall repay to the Company, at the time that the amount of such
reduction in Excise Tax is finally determined, the portion of the
Gross-Up Payment attributable to such reduction (plus that portion of
the Gross-Up Payment attributable to the Excise Tax and federal, state
and local income tax imposed on the Gross-Up Payment being repaid by
the Executive to the extent that such repayment results in a reduction
in the Excise Tax and/or a federal, state or local income tax
deduction) plus interest on the amount of such repayment at the rate
provided in section 1274(b)(2)(B) of the Code. In the event that the
Excise Tax is determined to exceed the amount taken into account
hereunder at the time of the termination of the Executive's employment
(including by reason of any payment the existence or amount of which
cannot be determined at the time of the Gross-Up Payment) the Company
shall make an additional Gross-Up Payment in respect of such excess
(plus any interest, penalties or additions payable by the Executive
with respect to such excess) at the time that the amount of such excess
is finally determined.
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9. Mitigation.
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The Executive shall not be required to mitigate the amount of any
payment provided for the Executive by seeking other employment or otherwise, nor
shall the amount of any payment or benefit provided for the Executive hereunder
be reduced by any compensation earned by the Executive as the result of
employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Executive to the Company or otherwise except as
is hereinafter specifically provided in this Section 9. To the extent that the
Executive, during the relevant period described in Section 8(b)(ii) hereof,
shall receive from a subsequent employer or from Medicare/Medicaid (or similar
successor programs) benefits similar to those to be provided under Section
8(b)(ii), the benefits to be provided under the provisions of said Section shall
be correspondingly reduced.
10. Confidential Information; Noncompetition Requirement.
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(a) CONFIDENTIAL INFORMATION. The Executive shall hold in a
fiduciary capacity for the benefit of the Company all trade secrets and
confidential information relating to the Company and its businesses, which shall
have been obtained by the Executive during the Executive's employment by the
Company and which shall not have been or now or hereafter have become public
knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement). The Executive shall not, without the
prior written consent of the Company or as may otherwise be required by law or
legal process, communicate or divulge any such trade secrets or information to
anyone other than the Company and those designated by the Company. Any
termination of the Executive's employment or of this Agreement shall have no
effect on the continuing operation of this Section 10(a).
(b) NONCOMPETITION REQUIREMENT. During (1) any period that the
Executive is performing services hereunder, (2) a period of one (1) year
following a termination of the Executive's employment by the Company for Cause
or by the Executive other than for Good Reason (if the Company so requests,
notifies and pays the Executive as provided in paragraph (c) of this Section
10), (3) on or after a Change in Control, a period of six (6) months following a
termination of the Executive's employment by the Executive for Good Reason, and
(4) with respect to clauses (i) and (ii) of this Section 10(b), any period with
respect to which the Executive is entitled to payment pursuant to Section
8(b)(i) or, if shorter, a period of one year, the Executive agrees that, without
the prior written consent of the Company, he shall not, directly or indirectly,
with or without pay, either as an employee, employer, consultant, agent,
principal, partner, stockholder, corporate officer, director, manager, investor,
lender, advisor, owner, associate or in any other individual or representative
capacity, (i) solicit, entice, encourage or otherwise attempt to procure or
service by telephone or otherwise accounts from any customers (determined as of
the Date of Termination) of the Company or a subsidiary thereof for a business
that is directly competitive (a "COMPETITIVE BUSINESS") with the business in
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which the Company is then engaged, (ii) solicit, entice or encourage any
employee (determined as of the Date of Termination) of the Company or a
subsidiary thereof to terminate such employee's employment in order to work in a
Competitive Business, or (iii) upon the written request of the Company, engage
or participate in any Competitive Business unless such Competitive Business is
located more than seventy-five (75) miles from the site, as of the Date of
Termination, of the Company's executive offices in New York; PROVIDED, HOWEVER,
that (x) trading by the Executive for his own benefit or in proprietary accounts
shall not constitute a Competitive Business and (y) the Executive may engage or
participate in a business which has a Competitive Business as a component or
portion thereof if the Executive himself does not engage or participate in the
component or portion comprising the Competitive Business.
(c) SALARY CONTINUATION. Following a termination of the
Executive's employment by the Company for Cause or by the Executive other than
for Good Reason, the Company may elect, by written notice given to the Executive
within 14 days of such notice of termination, to require the Executive to
perform the covenant provided in subsection (b)(iii) of this Section 10 during
the twelve-month period following the effectiveness of such termination. As
additional consideration for the Executive's performance of such covenant during
such period, but only for so long as the Executive shall continue to perform
such covenant, the Company shall pay the Executive for each month during such
twelve-month period an amount equal to one-twelfth (1/12th) of the Executive's
Base Salary. It is agreed and understood that such payment constitutes full and
fair consideration to the Executive for observance of such covenant.
(d) INJUNCTIVE RELIEF. In the event of a breach or threatened
breach of subsections (a), (b) or (c) of this Section 10, the Executive agrees
that the Company shall be entitled to injunctive relief in a court of
appropriate jurisdiction to remedy any such breach or threatened breach, the
Executive acknowledging that damages would be inadequate and insufficient.
11. Indemnification; Legal Fees.
---------------------------
The Company shall indemnify the Executive to the full extent permitted
by law for all expenses, costs, liabilities and legal fees which the Executive
may incur in the discharge of his duties hereunder. The Company shall also (a)
if the Date of Termination occurs prior to a Change in Control, reimburse the
Executive for any reasonable legal fees and expenses incurred by the Executive
in contesting or disputing any termination of the Executive's employment
hereunder or in seeking to obtain or enforce any right or benefit provided by
this Agreement, but only if the Executive shall substantially prevail with
respect to the preponderance of the matters at issue and (b) if the Date of
Termination occurs following a Change in Control, pay as incurred all legal fees
and expenses incurred by the Executive in disputing in good faith any issue
hereunder relating to the termination of his employment, in seeking in good
faith to obtain or enforce any right or benefit provided by this Agreement or in
connection with any tax audit or proceeding to the extent attributable to the
application of section 4999 of the Code to any payment or benefit provided
hereunder. The payments under clause (a) above shall be made within five (5)
days after the Executive's request for payment accompanied with such evidence of
his having prevailed (as described in the preceding sentence) and such evidence
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of the fees and expenses incurred as the Company may reasonably require; the
payments under clause (b) shall be made within five (5) business days after
delivery of the Executive's written request for payments accompanied with such
evidence of fees and expenses incurred as the Company reasonably may require.
Any termination of the Executive's employment or of this Agreement shall have no
effect on the continuing operation of this Section 11.
12. Successors; Binding Agreement.
-----------------------------
(a) Company's Successors.
--------------------
The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. Failure of the Company to obtain such assumption and agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the Company in
the same amount and on the same terms as he would be entitled to hereunder if
the Company had terminated his employment other than for Cause, except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Date of Termination. As used in this
Agreement, "COMPANY" shall mean the Company as herein before defined and any
successor to its business and/or assets as aforesaid which executes and delivers
the agreement provided for in this Section 12 or which otherwise becomes bound
by all the terms and provisions of this Agreement by operation of law.
(b) Executive's Successors.
----------------------
This Agreement and all rights of the Executive hereunder shall
inure to the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any amounts would still
be payable to him hereunder if he had continued to live, all such amounts unless
otherwise provided herein shall be paid in accordance with the terms of this
Agreement to the Executive's devisee, legatee, or other designee or, if there be
no such designee, to the Executive's estate.
13. Notice.
------
For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or (unless otherwise specified)
mailed by United States certified or registered mail, return receipt requested,
postage prepaid, addressed as follows:
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If to the Executive:
Xxxxx X. Xxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
With a copy to the Executive at the offices of the Company; and
If to the Company:
(until February 28, 2003):
Maxcor Financial Group Inc.
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chairman
(from and after March 1, 2003):
Maxcor Financial Group Inc.
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chairman
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
14. Miscellaneous.
-------------
No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing signed by
the Executive and such officer of the Company as may be specifically designated
by its Board of Directors or its compensation committee. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. 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 shall be binding on all successors
to the Company. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of New York without
regard to its conflicts of law principles. All references to sections of the
Exchange Act or the Code shall be deemed also to refer to any successor
provisions to such sections. Any payments provided for hereunder shall be paid
net of any applicable withholding required under federal, state or local law.
The obligations of the Company and the Executive under this Section 14 and
Sections 7, 8, 9, 10, 11 and 12 hereof shall survive the expiration of the term
of or the termination of this Agreement. The compensation and benefits payable
to the Executive under this Agreement shall be in lieu of any other severance
benefits to which the Executive may otherwise be entitled upon his termination
of employment under any severance plan, program, policy or arrangement of the
Company.
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15. Validity.
--------
The invalidity or unenforceability of any provision or provisions of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
16. 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.
17. Entire Agreement.
----------------
This Agreement sets forth the entire agreement of the parties hereto in
respect of the subject matter contained herein and supersedes all prior
agreements, promises, covenants, arrangements, communications, representations
or warranties, whether oral or written, by any officer, employee or
representative of any party hereto; and any prior agreement of the parties
hereto in respect of the subject matter contained herein, including, but not
limited to, the 1998 Agreement, is hereby terminated and cancelled.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
MAXCOR FINANCIAL GROUP INC.
By: /s/ XXXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
/s/ XXXXX X. XXXXX
-------------------------------------
Xxxxx X. Xxxxx ("Executive")
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