Exhibit 10.9
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into effective as of
March 8, 1999, between Wit Capital Group, Inc., a Delaware corporation (the
"Corporation"), and Xxxx X. Xxxxx (the "Executive").
W I T N E S S E T H:
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The Corporation and the Executive entered into a Letter Agreement dated
March 5, 1999 which set forth the terms and conditions of the Executive's
employment by the Corporation commencing on March 8, 1999. The parties desire
to amend and restate the employment arrangement so that the format is consistent
with Employment Agreements currently being used by the Corporation in connection
with the employment of other executives.
The Corporation desires to employ the Executive to have the benefits of his
expertise and knowledge. The Executive, in turn, desires employment with the
Corporation. The parties, therefore, enter into this Agreement to establish the
terms and conditions of the Executive's employment with the Corporation.
In consideration of the mutual covenants and representations contained in
this Agreement, the Corporation and the Executive agree as follows:
1. Employment of Executive; Duties.
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The Corporation agrees to employ the Executive, and the Executive
agrees to be employed by the Corporation, as Managing Director, Investment
Banking Capital Markets and Trading, for the period specified in Section 2 (the
"Employment Period"), subject to the terms and conditions of this Agreement.
During the Employment Period, the Executive shall have such duties and
responsibilities generally consistent with his position and such other duties
not inconsistent with his title and position as may be properly assigned to him
by the Corporation. In particular, the Executive will be responsible for all
capital market activities, including investment banking syndicate, institutional
sales and trading and the coordination of the investment banking and research.
2. Employment Period. The Employment Period shall begin on the date
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first written above and shall continue for three (3) years.
3. Base Salary. During the Employment Period, the Corporation shall pay
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the Executive a minimum annual base salary of Two Hundred Thousand Dollars
($200,000). The base salary shall be payable in equal periodic installments
which are not less frequent than the periodic installments in effect for
salaries of other senior executives of the Corporation. The base salary shall
be subject to annual review by the Board of Directors ("Board") (or a committee
appointed by the Board) for upward adjustments based on the policies of the
Corporation and the Executive's contributions to the business of the
Corporation.
4. Investment Banking Bonus Pool; Long-Term Incentive Plan. During the
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Employment Period, the Executive shall be entitled to participation at the
senior executive level in both the Investment Banking Bonus Pool and the Long-
Term Incentive Plan.
5. Benefits. In addition to and except for the matters governed by this
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Agreement, the Executive shall be entitled to: (i) employee benefits and
perquisites, including but not limited to pension, deferred compensation plans,
stock options, group life insurance, disability, sickness and accident insurance
and health benefits under such plans and programs as provided to other senior
executives of the Corporation from time to time; and (ii) paid vacation as well
as holidays, leave of absence and leave for illness and temporary disability in
accordance with the policies of the Corporation.
6. Stock Purchase.
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The Executive shall have the right to purchase One Million Two Hundred
Fifty Thousand (1,250,000) shares of the Common Stock of the Corporation in
accordance with the Stock Purchase Agreement attached hereto as Exhibit I.
7. Non-Disclosure; Non-Competition.
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As a condition to the employment arrangement, Executive agrees to
execute and comply with the terms and conditions of the "Wit Capital Group, Inc.
Employee Non-Disclosure, Non-Competition and Assignment of Inventions Agreement"
attached hereto as Exhibit II.
8. Termination by the Corporation.
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(a) The Corporation, by action of its Board, may terminate the
Executive's employment under this Agreement without Cause (as defined in Section
8.1(b)), at any time by giving notice thereof to the Executive at least ninety
(90) days before the effective date of such termination. The Employment Period
shall terminate as of the date of such termination of employment.
(b) The Corporation, by action of its Board, may terminate the
Executive's employment under this Agreement for Cause at any time by notifying
the Executive of such termination. For all purposes of this Agreement, the
Employment Period shall end as of the date of such termination of employment.
"Cause" means the Executive's: (i) persistent and repeated refusal, failure or
neglect to perform the material duties of his employment under this Agreement
(other than by reason of the Executive's physical or mental illness or
impairment), provided that such Cause shall be deemed to occur only after the
Corporation gave notice thereof to the Executive specifying in reasonable detail
the conduct constituting Cause, and the Executive failed to cure and correct his
conduct within thirty (30) days after such notice; (ii) committing any act of
fraud or embezzlement, provided that such Cause shall be deemed to occur only
after the Corporation gave notice thereof to the Executive specifying in
reasonable detail the instances of such conduct, and the Executive had the
opportunity to be heard at a meeting of the Board; (iii) breach of the Employee
Non-Disclosure, Non-Competition and Assignment of Inventions Agreement or of
such other subsequent agreements entered into during the Employment Period that
results in a material detriment to the Corporation; (iv) conviction of a felony
(including pleading guilty to a felony); or (v) habitual abuse of alcohol or
drugs.
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8.1 Termination by the Executive. The Executive may terminate this
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Agreement at any time, for any reason or for no reason at all, by giving notice
thereof to the Corporation at least ninety (90) days before the effective date
of such termination. The Employment Period shall terminate as of the date of
such termination of employment.
8.2 Severance Benefits.
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(a) If the Executive's employment under this Agreement is terminated
before the end of the Employment Period by the Corporation without Cause or by
the Executive for Good Reason (as defined in Section 8.3(c)), the Corporation
shall continue to pay to the Executive his unpaid Base Salary through the end of
the three (3) year Employment Period. Additionally, the Executive shall be
entitled to his share of the unpaid Investment Banking Bonus Pool accrued
through the date of termination which shall be paid to him at such time as the
next payment is made to the other participants of the Investment Banking Bonus
Pool.
(b) If the Executive's employment under this Agreement is terminated
by the Corporation for Cause, by the Executive without Good Reason or if the
Executive dies or becomes totally disabled (as defined in Section 8.4), the
Corporation shall only pay the Executive a lump sum cash payment within thirty
(30) days of the date of such termination, equal to the sum of: (i) Executive's
unpaid Base Salary earned to the termination date; (ii) an amount representing
the Executive's unpaid Annual Bonus amounts accrued through the date of
termination; and (iii) an amount representing the Executive's unpaid Guaranteed
Bonus prorated to date of termination.
(c) "Good Reason" means: (i) any material reduction in the Executive's
authority, duties or responsibilities; (ii) any material change in the
Executive's reporting lines or removal of the Executive from his principal
positions as of the beginning of the Employment Period (other than a promotion);
or (iii) any material failure by the Corporation to pay or provide the
compensation and benefits under this Agreement; provided that, in each such
event, the Executive shall give the Corporation notice thereof which shall
specify in reasonable detail the circumstances constituting Good Reason, and
there shall be no Good Reason with respect to any such circumstances cured by
the Corporation within thirty (30) days after such notice.
(d) If the Executive is entitled to receive payments or other benefits
under this Agreement upon the termination of his employment with the
Corporation, the Executive hereby irrevocably waives the right to receive any
payments or other benefits under any other severance or similar plan maintained
by the Corporation ("Other Severance Plan"), provided, however, that if the
payments and other benefits provided under such Other Severance Plan exceed the
payments and other benefits under this Agreement, the Executive, in his sole
discretion, may elect to receive the payments and benefits under such Other
Severance Plan in lieu of the payments and benefits under this Agreement upon
his termination of employment.
8.3 Termination by Death or Disability. This Agreement shall terminate
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automatically upon the Executive's death. If the Corporation determines in good
faith that the Executive has a "total disability" (within the meaning of such
term or of a similar term as defined in the Corporation's long-term disability
plan as in effect from time to time), the Corporation
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may terminate his employment under this Agreement by notifying the Executive
thereof at least thirty (30) days before the effective date of such termination.
9. Representation by Executive. The Executive represents and warrants to
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the Company that his employment hereunder will not conflict with or result in a
violation or breach of, or constitute a default under any contract, agreement or
understanding to which he is or was a party.
10. Notices. Any notices, requests, demands and other communications
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provided for by this Agreement shall be sufficient if in writing and if sent by
registered or certified mail to the Executive at the last address he has filed
in writing with the Corporation or, in the case of the Corporation, to the
Corporation's principal executive offices.
11. Withholding Taxes. The Corporation shall have the right, to the
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extent permitted by law, to withhold from any payment of any kind due to the
Executive under this Agreement to satisfy the tax withholding obligations of the
Corporation under applicable law.
12. Binding Agreement. This Agreement shall be binding upon the Executive
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and the Corporation on and after the date of this Agreement. The rights and
obligations of the Corporation under this agreement shall inure to the benefit
of and shall be binding upon the Corporation and any successor of the
Corporation, and the benefits of this Agreement shall inure to the benefit of
the Executive's estate and beneficiaries in the event of the Executive's death.
The Corporation may assign this Agreement to any subsidiary, parent or
affiliate, without the consent of the Executive, and such assignment shall not,
in and of itself, constitute a termination of employment under this Agreement.
13. Entire Agreement. This Agreement constitutes the entire understanding
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of the Executive and the Corporation with respect to the subject matter hereof
and supersedes and voids any and all prior agreements or understandings, written
or oral, regarding the subject matter hereof. This Agreement may not be
changed, modified, or discharged orally, but only by an instrument in writing
signed by the parties.
14. Governing Law and Severability. This Agreement shall be governed by
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the laws of the State of New York (without giving effect to choice of law
principles or rules thereof that would cause the application of the laws of any
jurisdiction other than the State of New York) and the invalidity or
unenforceability of any provisions hereof shall in no way affect the validity or
enforceability of any other provision. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective only to the extent of such prohibition or unenforceability
without invalidating or affecting the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
15. Arbitration. DISPUTES REGARDING THE EXECUTIVE'S EMPLOYMENT WITH THE
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CORPORATION, INCLUDING, WITHOUT LIMITATION, ANY DISPUTE UNDER THIS AGREEMENT
WHICH CANNOT BE RESOLVED BY NEGOTIATIONS BETWEEN THE CORPORATION AND THE
EXECUTIVE, BUT EXCLUDING ANY DISPUTES REGARDING THE EXECUTIVE'S COMPLIANCE WITH
THE RESTRICTIONS
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OF THE EMPLOYEE NON-DISCLOSURE, NON-COMPETITION AND ASSIGNMENT OF INVENTIONS
AGREEMENT REFERRED TO IN SECTION 7 OF THIS AGREEMENT, SHALL BE SUBMITTED TO, AND
SOLELY DETERMINED BY, FINAL AND BINDING ARBITRATION CONDUCTED BY JAMS/ENDISPUTE,
INC.'S ARBITRATION RULES APPLICABLE TO EMPLOYMENT DISPUTES, AND THE PARTIES
AGREE TO BE BOUND BY THE FINAL AWARD OF THE ARBITRATOR IN ANY SUCH PROCEEDING.
THE ARBITRATOR SHALL APPLY THE LAWS OF THE STATE OF NEW YORK WITH RESPECT TO THE
INTERPRETATION OR ENFORCEMENT OF ANY MATTER RELATING TO THIS AGREEMENT; IN ALL
OTHER CASES THE ARBITRATOR SHALL APPLY THE LAWS OF THE STATE SPECIFIED IN THE
CORPORATION'S ALTERNATIVE DISPUTE RESOLUTION POLICY AS IN EFFECT FROM TIME TO
TIME (IF ANY). ARBITRATION MAY BE HELD IN NEW YORK, NEW YORK, OR SUCH OTHER
PLACE AS THE PARTIES HERETO MAY MUTUALLY AGREE, AND SHALL BE CONDUCTED SOLELY BY
A FORMER JUDGE. JUDGMENT UPON THE AWARD BY THE ARBITRATOR MAY BE ENTERED IN ANY
COURT HAVING JURISDICTION THEREOF.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
WITNESS/ATTEST WIT CAPITAL GROUP, INC.
By:
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Xxxxxx X. Xxxxxxxx,
Co-Chief Executive Officer
EXECUTIVE
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Xxxx X. Xxxxx
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Exhibit I
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STOCK PURCHASE AGREEMENT
with Schedule A (Partial Recourse Note)
and Schedule B (Pledge Agreement)
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Exhibit II
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WIT CAPITAL GROUP, INC.
EMPLOYEE NON-DISCLOSURE, NON-COMPETITION
AND ASSIGNMENT OF INVENTIONS AGREEMENT
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