EMPLOYMENT AGREEMENT
AGREEMENT dated as of February ___, 2000 between XXXXXX X.
XXXXXXX, residing at 0000 XX 000xx Xxxxxx, Xxxxx, Xxxxxxx 00000 ("Executive"),
and SHOCHET HOLDING CORP., a Delaware corporation having its principal office at
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000 ("Company").
WHEREAS, the Company is engaged through its subsidiary
corporation in the business of operating and managing an investment banking and
securities brokerage firm, as well as other related enterprises; and
WHEREAS, the Company employs and desires to continue the
employment of Executive for the purpose of securing for the Company and its
subsidiary corporation the experience, ability and services of Executive; and
WHEREAS, Executive desires to continue his present employment
with the Company, pursuant to the terms and conditions herein set forth,
superseding all prior agreements between the Company, its subsidiary and/or
predecessors and Executive;
IT IS AGREED:
1. Employment, Duties and Acceptance.
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1.1 The Company hereby employs Executive as its Executive Vice
President - Online Products ("EVP"). All of Executive's powers and authority in
any capacity shall at all times be subject to the direction and control of the
Company's Board of Directors and its Chief Executive Officer ("CEO") and its
Chief Operating Officer ("COO").
1.2 The Board, CEO or COO may assign to Executive such general
management and supervisory responsibilities and executive duties for the Company
or any subsidiary of the Company, including serving as an executive officer
and/or director of any subsidiary, as are consistent with Executive's status as
EVP. The Company and Executive acknowledge that Executive's primary functions
and duties as EVP shall be the management and oversight of the Company's online
operations.
1.3 Executive accepts such employment and agrees to devote all
of his business time, energies and attention to the performance of his duties
hereunder. Nothing herein shall be construed as preventing Executive from making
and supervising personal investments, provided they will not interfere with the
performance of Executive's duties hereunder or violate the provisions of
paragraph 5.4 hereof.
1.4 Executive shall be based in the southern Florida area, and
shall undertake such occasional travel, within or without the United States, as
is reasonably necessary in the interests of the Company.
2. Compensation and Benefits.
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2.1 The Company shall pay to Executive a salary at the minimum
annual rate of $120,000 for each twelve-month period during the term hereof
(i.e., $10,000 per month). Executive's compensation shall be paid in equal,
periodic installments in accordance with the Company's normal payroll
procedures.
2.2 The Company shall also pay to Executive such bonuses as
may be determined from time to time by the Board of Directors. In connection
therewith, the Executive shall be entitled to participate at the level of EVP in
the Company's 1999 Performance Equity Plan adopted by the Board of Directors and
approved by the Company's sole stockholder, and thereafter as in effect from
time to time during the term hereof.
2.3 The Company shall grant to Executive under its 1999
Performance Equity Plan options to purchase 36,000 shares of its common stock,
exercisable at a price equal to the per share price of the common stock offered
in the Company's initial public offering expected to be consummated in the first
quarter of calendar 2000. The options will vest in three equal annual
installments commencing on the one-year anniversary date of the effective date
of the initial public offering. Executive and the Company shall enter into a
separate stock option agreement in connection therewith. In the event that
Executive terminates this Agreement for Good Reason (as defined) any and all
options which have not vested shall immediately and automatically vest in full
without any action being required by any of the parties hereto.
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2.4 Executive shall be entitled to such medical, life,
disability and other benefits as are generally afforded to other senior
executives of the Company, subject to applicable waiting periods and other
conditions.
2.5 Executive shall be entitled to four weeks of vacation in
each calendar year and to a reasonable number of other days off for religious
and personal reasons.
2.6 The Company will pay or reimburse Executive for all
transportation, hotel and other expenses reasonably incurred by Executive on
business trips and for all other ordinary and reasonable out-of-pocket expenses
actually incurred by him in the conduct of the business of the Company against
itemized vouchers submitted with respect to any such expenses and approved in
accordance with customary procedures.
3. Term and Termination.
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3.1 The term of this Agreement commences as of the effective
date of the initial public offering and shall continue until the one-year
anniversary thereof, unless sooner terminated as herein provided. This Agreement
shall be subject to automatic renewals of one-year terms unless 30 days' prior
written notice of termination is given by either party.
3.2 If Executive dies during the term of this Agreement, this
Agreement shall thereupon terminate, except that the Company shall pay to the
legal representative of Executive's estate (i) the base salary due Executive
pursuant to paragraph 2.1 hereof through the date of Executive's death, (ii) a
pro rata allocation of bonus payments under paragraph 2.2 during the year of
death through the date of Executive's death, (iii) all earned and previously
approved but unpaid bonuses, (iv) all valid expense reimbursements through the
date of the termination of this Agreement and, (v) all accrued but unused
vacation pay.
3.3 The Company, by notice to Executive, may terminate this
Agreement if Executive shall fail because of illness or incapacity to render,
for six consecutive months, services of the character contemplated by this
Agreement. Notwithstanding such termination, the Company shall pay to Executive
(i) the base salary due Executive pursuant to paragraph 2.1 hereof through the
date of such notice, less any amount Executive receives for such period from any
Company-
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sponsored or Company-paid source of insurance, disability compensation or
government program, (ii) a pro rata allocation of bonus payments under paragraph
2.2 during the year in which the disability commenced through the date of such
notice, (iii) all earned and previously approved but unpaid bonuses, (iv) all
valid expense reimbursements through the date of the termination of this
Agreement and, (v) all accrued but unused vacation pay.
3.4 The Company, by notice to Executive, may terminate this
Agreement for cause. As used herein, "Cause" shall mean: (a) the refusal or
failure by Executive to carry out specific directions of the Board, the CEO or
COO which are of a material nature and consistent with his status as EVP, or the
refusal or failure by Executive to perform a material part of Executive's duties
hereunder; (b) the commission by Executive of a material breach of any of the
provisions of this Agreement; (c) fraud or dishonest action by Executive in his
relations with the Company or any of its subsidiaries or affiliates ("dishonest"
for these purposes shall mean Executive's knowingly or recklessly making of a
material misstatement or omission for his personal benefit); or (d) the
conviction of Executive of any crime involving an act of moral turpitude, or the
imposition against Executive of a permanent bar from association with a
securities firm by any federal, state or regulatory agency or self-regulatory
body after the exhaustion of all judicial and administrative appeals therefrom.
Notwithstanding the foregoing, no termination for Cause shall be deemed to exist
with respect to Executive's acts described in clauses (a) or (b) above, unless
the Company shall have given written notice to Executive specifying the Cause
with reasonable particularity and, within thirty calendar days after such
notice, Executive shall not have cured or eliminated the problem or thing giving
rise to such Cause; provided, however, that a repeated breach after notice, cure
and written acceptance of such cure by the Board being delivered to Executive of
any provision of clauses (a) or (b) above involving the same or substantially
similar actions or conduct, shall be grounds for termination for Cause without
any additional notice from the Company.
3.5 If Executive's employment hereunder is terminated for any
reason, then Executive shall, at the Company's request, resign as a director of
the Company and all of its subsidiaries, effective upon the occurrence of such
termination.
3.6 The Executive, by notice to the Company, may terminate
this Agreement if a "Good Reason" exists. For purposes of this Agreement, Good
Reason shall mean the occurrence of any of the following circumstances without
the Executive's prior express written consent: (a) a
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substantial and material adverse change in the nature of Executive's title,
duties or responsibilities with the Company that represents a demotion from his
title, duties or responsibilities as in effect immediately prior to such change;
(b) a substantial and material breach of this Agreement by the Company; (c) a
failure by the Company to make any payment to Executive when due, unless the
payment is not material and is being contested by the Company, in good faith;
(d) (i) any person or entity other than the Company or any officers, directors
or stockholders of the Company as of the date of this Agreement acquires
securities of the Company (in one or more transactions) having 25% or more of
the total voting power of all the Company's securities then outstanding and (ii)
the Board of Directors of the Company does not authorize or otherwise approve
such acquisition; or (e) a liquidation, bankruptcy or receivership of the
Company. Notwithstanding the foregoing, no Good Reason shall be deemed to exist
with respect to the Company's acts described in clauses (a), (b) or (c) above,
unless Executive shall have given written notice to the Company specifying the
Good Reason with reasonable particularity and, within thirty calendar days after
such notice, the Company shall not have cured or eliminated the problem or thing
giving rise to such Good Reason; provided, however, that a repeated breach after
notice and cure of any provision of clauses (a), (b) or (c) above involving the
same or substantially similar actions or conduct, shall be grounds for
termination for Good Reason without any additional notice from Executive.
3.7 In the event that Executive terminates this Agreement for
Good Reason, pursuant to the provisions of paragraph 3.6, or the Company
terminates this Agreement without Cause, as defined in paragraph 3.4, the
Company shall continue to pay to Executive (or in the case of his death, the
legal representative of Executive's estate or such other person or persons as
Executive shall have designated by written notice to the Company), all payments,
compensation and benefits required under paragraph 2 hereof through the
expiration of the then current term of this Agreement; provided, however, that
(i) Executive's insurance coverage shall terminate upon the Executive becoming
covered under a similar program by reason of employment elsewhere, and (ii)
Executive shall use reasonable efforts to obtain employment elsewhere as an
employee or consultant and all compensation for services paid or earned and
deferred in connection therewith shall be a reduction against the Company's then
future salary obligations pursuant to Section 2.1.
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4. Executive Indemnity
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4.1 The Company agrees to indemnify Executive and hold
Executive harmless against all costs, expenses (including, without limitation,
reasonable attorneys' fees) and liabilities (other than settlements to which the
Company does not consent, which consent shall not be unreasonably withheld)
(collectively, "Losses") reasonably incurred by Executive in connection with any
claim, action, proceeding or investigation brought against or involving
Executive with respect to, arising out of or in any way relating to Executive's
employment with the Company or Executive's service as a director of the Company;
provided, however, that the Company shall not be required to indemnify Executive
for Losses incurred as a result of Executive's intentional misconduct or gross
negligence (other than matters where Executive acted in good faith and in a
manner he reasonably believed to be in and not opposed to the Company's best
interests). Executive shall promptly notify the Company of any claim, action,
proceeding or investigation under this paragraph and the Company shall be
entitled to participate in the defense of any such claim, action, proceeding or
investigation and, if it so chooses, to assume the defense with counsel selected
by the Company; provided that Executive shall have the right to employ counsel
to represent him (at the Company's expense) if Company counsel would have a
"conflict of interest" in representing both the Company and Executive. The
Company shall not settle or compromise any claim, action, proceeding or
investigation without Executive's consent, which consent shall not be
unreasonably withheld; provided, however, that such consent shall not be
required if the settlement entails only the payment of money and the Company
fully indemnifies Executive in connection therewith. The Company further agrees
to advance any and all expenses (including, without limitation, the fees and
expenses of counsel) reasonably incurred by the Executive in connection with any
such claim, action, proceeding or investigation, provided Executive first enters
into an appropriate agreement for repayment of such advances if indemnification
is found not to have been available.
5. Protection of Confidential Information; Non-Competition.
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5.1 Executive acknowledges that:
(a) As a result of his current and prior employment
with the Company, Executive has obtained and will obtain secret and confidential
information concerning the business of the Company and its subsidiaries and
affiliates (referred to collectively in this paragraph 5 as the
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"Company"), including, without limitation, financial information, proprietary
rights, trade secrets and "know-how," customers and sources ("Confidential
Information").
(b) The Company will suffer substantial damage which
will be difficult
to compute if, during the period of his employment with the Company or
thereafter, Executive should enter a business competitive with the Company or
divulge Confidential Information.
(c) The provisions of this Agreement are reasonable
and necessary for the protection of the business of the Company.
5.2 Executive agrees that he will not at any time, divulge to
any person or entity any Confidential Information obtained or learned by him as
a result of his employment with the Company, except (i) in the course of
performing his duties hereunder, (ii) with the Company's express written
consent; (iii) to the extent that any such information is in the public domain
other than as a result of Executive's breach of any of his obligations
hereunder; or (iv) where required to be disclosed by court order, subpoena or
other government process. If Executive shall be required to make disclosure
pursuant to the provisions of clause (iv) of the preceding sentence, Executive
promptly, but in no event more than 72 hours after learning of such subpoena,
court order, or other government process, shall notify, by personal delivery or
by electronic means, confirmed by mail, the Company and, at the Company's
expense, Executive shall: (a) take all reasonably necessary and lawful steps
required by the Company to defend against the enforcement of such subpoena,
court order or other government process, and (b) permit the Company to intervene
and participate with counsel of its choice in any proceeding relating to the
enforcement thereof.
5.3 Upon termination of his employment with the Company,
Executive will promptly deliver to the Company all memoranda, notes, records,
reports, manuals, drawings, blue prints and other documents (and all copies
thereof) relating to the business of the Company and all property associated
therewith, which he may then possess or have under his control; provided,
however, that Executive shall be entitled to retain copies of such documents
reasonably necessary to document his financial relationship with the Company.
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5.4 During the period commencing on the date hereof and ending
on the one-year anniversary of the date Executive's employment hereunder is
terminated (and, if Executive is terminated with "Cause" or Executive terminates
this Agreement without "Good Reason," until April 30, 2001), Executive, without
the prior written permission of the Company, shall not (i) employ or retain, or
have or cause any other person or entity to employ or retain, any person who was
employed or retained by the Company while Executive was employed by the Company,
or (ii) solicit, interfere with, or endeavor to entice away from the Company,
for the benefit of any person, firm or corporation principally engaged in the
business of providing online brokerage services (a "Competitive Business"), any
of its customers or other persons with whom the Company has a contractual
relationship. Notwithstanding the foregoing, nothing in this Agreement shall
preclude Executive from investing his personal assets in any manner he chooses,
provided, however, that Executive may not, during the period referred to in this
Section 5.4, own more than 4.9% of the equity securities of any Competitive
Business.
5.5 If Executive commits a breach, or threatens to commit a
breach, of any of the provisions of Sections 5.2, 5.3 or 5.4, the Company shall
have the right and remedy:
(a) to have the provisions of this Agreement
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed by Executive that the ser vices being rendered hereunder
to the Company are of a special, unique and extraordinary character and that any
such breach or threatened breach will cause irreparable injury to the Company
and that money damages will not provide an adequate remedy to the Company; and
(b) to require Executive to account for and pay over
to the Company all monetary damages suffered by the Company as the result of any
transactions constituting a breach of any of the provisions of Sections 5.2 or
5.4, and Executive hereby agrees to account for and pay over such damages to the
Company.
Each of the rights and remedies enumerated in this Section 5.5
shall be independent of the other, and shall be severally enforceable, and such
rights and remedies shall be in addition to, and not in lieu of, any other
rights and remedies available to the Company under law or equity.
In connection with any legal action or proceeding arising out
of or relating to this Agreement, the prevailing party in such action or
proceeding shall be entitled to be reimbursed by the other party for the
reasonable attorneys' fees and costs incurred by the prevailing party.
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5.6 If any provision of Sections 5.2 or 5.4 is held to be
unenforceable because of the scope, duration or area of its applicability, the
tribunal making such determination shall have the power to modify such scope,
duration, or area, or all of them, and such provision or provisions shall then
be applicable in such modified form.
5.7 The provisions of this paragraph 5 shall survive the
termination of this Agreement for any reason, except in the event Executive is
terminated by the Company without "Cause" in breach of this Agreement, or if
Executive terminates this Agreement with "Good Reason," in either of which
events, this paragraph 5 shall be null and void and of no further force or
effect.
6. Miscellaneous Provisions.
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6.1 All notices provided for in this Agreement shall be
in writing, and shall be deemed to have been duly given when (i) delivered
personally to the party to receive the same, or (ii) when mailed first class
postage prepaid, by certified mail, return receipt requested, addressed to the
party to receive the same at his or its address set forth below, or such other
address as the party to receive the same shall have specified by written notice
given in the manner provided for in this Section 6.1. All notices shall be
deemed to have been given as of the date of personal delivery or mailing
thereof.
If to Executive:
Xxxxxx X. Xxxxxxx
0000 XX 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
If to the Company:
Shochet Holding Corp.
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
With a copy in either case to:
Xxxxxx Xxxxxxxx, Esq.
Atlas Xxxxxxxx, P.A.
000 Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
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6.2 This Agreement sets forth the entire agreement of the
parties relating to the employment of Executive and is intended to supersede all
prior negotiations, understandings and agreements. No provisions of this
Agreement, may be waived or changed except by a writing by the party against
whom such waiver or change is sought to be enforced. The failure of any party to
require performance of any provision hereof or thereof shall in no manner affect
the right at a later time to enforce such provision.
6.3 All questions with respect to the construction of
this Agreement, and the rights and obligations of the parties hereunder, shall
be determined in accordance with the law of the State of Florida applicable to
agreements made and to be performed entirely in Florida.
6.4 This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the Company. This Agreement shall not
be assignable by Executive, but shall inure to the benefit of and be binding
upon Executive's heirs and legal representatives.
6.5 Should any provision of this Agreement become legally
unenforceable, no other provision of this Agreement shall be affected, and this
Agreement shall continue as if the Agreement had been executed absent the
unenforceable provision.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
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XXXXXX X. XXXXXXX
SHOCHET HOLDING CORP.
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By: Xxxxx Xxxxxxxxx, Chief Executive Officer
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