Exhibit 10.6
[EXECUTION COPY]
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of
November 1, 1999 (the "Effective Date"), by and between WALNUT FINANCIAL
SERVICES, INC., a Utah corporation (the "Company"), and XXX XXXXX (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive, and the
Executive desires to accept such employment in the capacities and on the terms
and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter contained, the parties hereto hereby agree as follows:
1. Employment; Term.
(a) The Company hereby employs the Executive, and the
Executive hereby accepts employment by the Company, in accordance with and
subject to the terms and conditions set forth herein.
(b) The term of this Agreement shall commence on the
Effective Date and, unless earlier terminated in accordance with Paragraph 5
hereof, shall terminate on the fifth anniversary of the Effective Date (the
"Initial Term"). Thereafter, this Agreement shall automatically be extended for
one or more additional annual periods unless the Executive or the Company gives
written notice, no less than ninety (90) days prior to the end of the Initial
Term or any extension thereof (together, the "Term"), of his or its election not
to renew this Agreement.
2. Duties.
(a) During the Term, the Executive shall serve as the
Co-Chief Executive Officer of the Company and shall report to the Board of
Directors of the Company (the "Board of Directors").
(b) The Executive shall have such authority and
responsibility as is customary for such position or positions in businesses
comparable in size and function, and such other responsibilities as may
reasonably be assigned by the Board of Directors.
(c) During the period the Executive is employed by
the Company, the Executive shall devote his full business time and best efforts
to the business and affairs of the Company; provided, however, the Executive may
engage in outside business activities with the consent of the Board of
Directors. It shall not be considered a violation of the foregoing for the
Executive to serve on corporate, industry, civic or charitable boards or
committees, so long as
such activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement.
(d) The Executive's services shall be performed
primarily at the Company's principal place of business, located in New York, New
York. The Executive recognizes that his duties will require from time-to-time
and at the Company's expense, travel to domestic and international locations.
3. Compensation.
(a) The Company shall pay the Executive a base salary
(the "Base Salary") of not less than $200,000 per annum, or such greater sum as
may from time to time be fixed by the Compensation Committee of the Board of
Directors, provided that any such greater sum shall become the minimum rate of
compensation for so long as the Executive shall be employed by the Company.
Payments of Base Salary to the Executive shall be made in equal semi-monthly
installments and subject to all legally required and customary withholdings.
(b) The Executive shall be entitled to bonus
compensation (the "Bonus Compensation") as reasonably determined in good faith
by the Compensation Committee of the Board of Directors.
(c) The Executive shall receive two options to
purchase 250,000 and 200,000 shares, respectively, of the common stock of the
Company, in accordance with and subject to the provisions of The 1999 Walnut
Financial Services, Inc. Stock Incentive Plan and the grants thereunder.
4. Benefits.
(a) The Company agrees to reimburse the Executive for
all reasonable travel, business entertainment and other business expenses
incurred by the Executive in connection with the performance of his duties under
this Agreement. Such reimbursements shall be made by the Company on a timely
basis upon submission by the Executive of proper accounts therefor in accordance
with the Company's standard procedures.
(b) The Executive shall be entitled to participate in
any and all medical insurance, group health, disability insurance, life
insurance and other benefit plans and programs which are made generally
available by the Company to its most senior executives. If the Executive elects
to participate in any such benefit plan and/or program, the Company agrees to
pay the premiums for the coverage elected by the Executive.
(c) The Executive shall be entitled to participate
fully in the Company's group pension, profit-sharing and employee benefit
programs now or hereafter made available to employees of the Company generally.
(d) The Company shall pay the premiums on an ordinary
life insurance policy on the Executive's behalf in the principal amount of
$2,000,000.
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(e) The Executive shall not be limited to the general
vacation policy and program of the Company as a whole, but, in view of his
position and stature with the Company, shall be entitled to such vacation time
as may be reasonably appropriate to the Company and its clients, and the proper
performance of his duties and responsibilities.
(f) The Company shall lease or purchase an automobile
of make and model as the Executive shall specify for the sole use of the
Executive; provided, however, that the Executive may, at his own option, lease
an automobile in his own name and at Company expense. The Executive shall cause
the vehicle to be properly insured and maintained. The Company shall pay or
reimburse the Executive for all purchase or lease costs, parking costs, toll
fees, costs of insurance, routine maintenance, service and repair of the
vehicle, provided that the Company's obligation pursuant to this Paragraph 4(f)
shall not exceed $1,000 per month. At the expiration of this Agreement, the
Company shall, if requested by the Executive, exercise its purchase option under
any lease agreement and grant the Executive an option to purchase the vehicle
upon the same terms and conditions offered to the Company by the leasing
company.
(g) The Company shall pay for the Executive's use of
computers, e-mail, facsimile, access to Internet and cellular phones for both
the Executive's office use and for use in his home for business purposes.
(h) The Company agrees to reimburse the Executive for
personal tax preparation and financial planning assistance in a total amount not
to exceed $5,000 per year.
(i) The Executive shall be indemnified by the Company
to the greatest extent permitted under Utah law.
(j) The Executive shall be entitled to any other
benefits or perquisites on terms no less favorable than those pursuant to which
such benefits or perquisites are made available to any other executive or
employee of the Company.
5. Termination.
(a) Death. The Executive's employment hereunder shall
terminate upon the Executive's death.
(b) Total Disability. The Company may terminate the
Executive's employment hereunder at any time after the Executive becomes
"Totally Disabled." For purposes of this Agreement, "Totally Disabled" means
that the Executive has been unable, for a period of one hundred eighty (180)
consecutive business days, to perform the Executive's duties under this
Agreement, as a result of physical or mental illness or injury. A termination of
the Executive's employment by the Company for Total Disability shall be
communicated to the Executive by written notice, and shall be effective on the
30th day after receipt of such notice by the Executive (the "Total Disability
Effective Date"), unless the Executive returns to full-time performance of the
Executive's duties before the Total Disability Effective Date.
(c) Termination by the Company for Cause. The Company
may terminate the Executive's employment hereunder for Cause. For purposes of
this Agreement, the term "Cause" shall mean any of the following: (i) conviction
of a felony; (ii) perpetration of an
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intentional and knowing fraud against or adversely affecting the Company or any
customer, client, agent, or employee thereof; (iii) willful breach of a covenant
set forth in Paragraph 7; or (iv) willful and substantial failure of the
Executive to perform his duties hereunder (other than as a result of total or
partial incapacity due to physical or mental illness or injury); provided,
however, that a termination pursuant to clause (iv) shall not become effective
unless the Executive fails to cure such failure to perform within thirty (30)
days after written notice from the Company, such notice to describe such failure
to perform and identify what reasonable actions shall be required to cure such
failure to perform.
No act or failure to act on the part of the Executive
shall be considered "willful" under this Paragraph 5(c) unless it is done, or
omitted to be done, by the Executive in bad faith or without reasonable belief
that the Executive's action or omission was in the best interests of the
Company. Any act or failure to act that is based upon authority given pursuant
to a resolution duly adopted by the Board of Directors or upon the advice of
counsel for the Company, shall be conclusively presumed to be done, or omitted
to be done, by the Executive in good faith and in the best interests of the
Company.
(d) Termination by the Company Without Cause. The
Company may terminate the Executive's employment hereunder at any time for any
reason or no reason by giving the Executive thirty (30) days prior written
notice of the termination.
(e) Termination by the Executive For Good Reason.
(1) The Executive may terminate his employment
hereunder for "Good Reason" for (i) a Change in Control of the Company; (ii) the
assignment to the Executive of any duties inconsistent in any respect with
Paragraph 2, or any other action by the Company that results in a diminution in
the Executive's position, authority, duties or responsibilities; (iii) any
failure by the Company to comply with Paragraph 3 or 4, other than an isolated,
insubstantial and inadvertent failure that is not taken in bad faith and is
remedied by the Company promptly after receipt of notice thereof from the
Executive; (iv) a change in the Executive's location of employment to a place of
employment outside the New York Metropolitan Area; (v) any purported termination
of the Executive's employment by the Company for a reason or in a manner not
expressly permitted by this Agreement; (vi) any failure by the Company to comply
with Paragraph 10(c) of this Agreement; or (vii) any other substantial breach of
this Agreement by the Company.
(2) "Change in Control of the Company" shall be
conclusively deemed to have occurred if any of the following shall have taken
place:
i. a change in control of a nature that would be
required to be reported in response to Item 5(f) of
Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934 ("Exchange Act")
shall have occurred, unless such change in control
results in control by the Executive, his designee(s)
or "affiliate(s)" (as defined in Rule 12b-2 under the
Exchange Act) or any combination thereof;
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ii. any "person" (as such term is used in Sections 13(d)
and 14(d)(2) of the Exchange Act), other than the
Executive, his designee(s) or "affiliate(s)" (as
defined in Rule 12b-2 under the Exchange Act), or any
"person" who was a shareholder as of the Effective
Date or any combination thereof, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of
securities of the Company representing forty percent
(40%) or more of the combined voting power of the
Company's then outstanding securities;
iii. during any period of two (2) consecutive years during
this Agreement, individuals who at the beginning of
such period constitute the Board cease for any reason
to constitute at least a majority thereof, unless the
election of each director who was not a director at
the beginning of such period has been approved in
advance by directors representing at least a majority
of the directors then in office who were directors at
the beginning of the period;
iv. the stockholders of the Company approve a merger or
consolidation of the Company with any other
corporation, other than a merger or consolidation
which would result in the voting securities of the
Company outstanding immediately prior thereto
continuing to represent (either by remaining
outstanding or by being converted into voting
securities of the surviving entity) more than 80% of
the combined voting power of the voting securities of
the Company or such surviving entity outstanding
immediately after such merger or consolidation;
provided, however, that a merger or consolidation
effected to implement a recapitalization of the
Company (or similar transaction) in which no "person"
(as hereinabove defined) acquires more than 25% of
the combined voting power of the Company's then
outstanding securities shall not constitute a Change
in Control of the Company; or
v. the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement
for the sale or disposition by the Company of, or the
Company sells or disposes of, all or substantially
all of the Company's assets.
(3) If an event should occur that would allow the
Executive to terminate his employment hereunder for Good Reason, the Executive
shall have a period of one year from the date on which the Executive first
becomes aware of such event in which to elect to terminate his employment for
Good Reason. If the Executive elects to terminate his employment for Good
Reason, he shall provide the Company with a written notice.
(f) Termination by the Executive Without Good Reason.
The Executive may terminate his employment hereunder for any reason or no reason
by giving the Company sixty (60) days prior written notice of the termination.
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6. Compensation Following Termination Prior to the End
of the Term. In the event that the Employee's employment hereunder is terminated
prior to the end of the Term, the Executive shall be entitled to the following
compensation and benefits upon such termination:
(a) Termination by Reason of Death or Total
Disability. In the event that the Executive's employment is terminated prior to
the expiration of the Term by reason of the Executive's death or Total
Disability pursuant to Paragraph 5(a) or 5(b), the Company shall pay the
following amounts to the Executive (or the Executive's estate, as the case may
be):
i. Any accrued but unpaid Base Salary (as determined
pursuant to Paragraph 3) for services rendered to the
date of termination;
ii. A prorated amount of Bonus Compensation, to be paid
at the time the Executive's Bonus Compensation would
have been paid had he remained employed by the
Company, computed by multiplying the amount of Bonus
Compensation the Executive would have earned for the
year in which the termination occurred and the
fraction of the year the Executive was employed by
the Company;
iii. Any accrued but unpaid expenses required to be
reimbursed pursuant to Paragraph 4; and
iv. Any vacation accrued to the date of termination.
The benefits to which the Executive may be entitled upon
termination pursuant to the plans and programs referred to in
Paragraph 4 and the plan and grant thereunder referred to in
Paragraph 3(c) hereof shall be determined and paid in
accordance with the terms of such plans, programs and grant,
except that the Company shall, with respect to any major
medical and all other health, accident, or disability plans
for which the Executive, or his spouse or legal
representative, elects continuation in accordance with COBRA,
be responsible for payment of premiums related to the
maintenance of such plans for a period of six (6) months
following the date of termination.
(b) Termination by the Company for Cause; Termination
by the Executive Without Good Reason. In the event that the Executive's
employment is terminated by the Company for Cause pursuant to Paragraph 5(c) or
by the Executive without Good Reason pursuant to Paragraph 5(f), the Company
shall pay the following amounts to the Executive:
i. Any accrued but unpaid Base Salary (as determined
pursuant to Paragraph 3) for services rendered to the
date of termination;
ii. Any accrued but unpaid expenses required to be
reimbursed pursuant to Paragraph 4; and
iii. Any vacation accrued to the date of termination.
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The benefits to which the Executive may be entitled upon
termination pursuant to the plans and programs referred to in
Paragraph 4 and the plan and grant thereunder referred to in
Paragraph 3(c) hereof shall be determined in accordance with
the terms of such plans, programs and grant.
(c) Termination by the Company Without Cause;
Termination by the Executive For Good Reason. In the Event that the Executive's
employment is terminated by the Company without Cause pursuant to Paragraph 5(d)
or by the Executive for Good Reason pursuant to Paragraph 5(e), the Company
shall pay the following amounts to the Executive:
i. Any accrued but unpaid Base Salary (as determined
pursuant to Paragraph 3) for services rendered to the
date of termination;
ii. Such bonus as may reasonably be determined by the
Company based upon the Executive's performance
through the date of termination;
iii. Any accrued but unpaid expenses required to be
reimbursed pursuant to Paragraph 4;
iv. Any vacation accrued to the date of termination; and
v. Continued payment of the Base Salary (as determined
under Paragraph 3) until the earlier of (a)
thirty-six (36) months after the date of termination,
or (b) the expiration of the Term. Such payments
shall be made in accordance with the Company's
standard payroll practices then in effect.
The Company shall continue to provide the Executive with the
benefits set forth in Paragraph 4 as if he had remained
employed by the Company pursuant to this Agreement through the
earlier of (a) thirty-six (36) months after the date of
termination, or (b) the end of the Term; provided that to the
extent any benefits described in Paragraph 4 cannot be
provided pursuant to the plan or program maintained by the
Company for its employees and/or executives, the Company shall
provide such benefits outside such plan or program at no
additional cost (including without limitation tax cost) to the
Executive. The benefits referred to in Paragraph 3(c) shall be
determined in accordance with the terms of such plan and grant
thereunder.
(d) No Duty to Mitigate. In the event that the
Executive's employment is terminated by reason of the Executive's Total
Disability Pursuant to Paragraph 5(b), the Executive's employment is terminated
by the Company without Cause pursuant to Paragraph 5(d), or the Executive's
employment is terminated by the Executive for Good Reason pursuant to Paragraph
5(e), the Executive shall not be required to seek other employment to mitigate
damages, and any income earned by the Executive from other employment or
self-employment shall not be offset against any obligations of the Company to
the Executive under this Agreement.
(e) No Other Benefits or Compensation. Except as may
be provided under this Agreement, under the terms of any incentive compensation,
employee benefit or
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fringe benefit plan applicable to the Executive at the time of the termination
of the Executive's employment prior to the end of the Term, the Executive shall
have no right to receive any other compensation, or to participate in any other
plan, arrangement or benefit, with respect to any future period after such
termination.
7. Noncompetition and Nonsolicitation; Nondisclosure of
Proprietary Information; Surrender of Records.
7.1 Noncompetition and Nonsolicitation. In view of the
unique and valuable services it is expected the Executive will render to the
Company, the Executive's knowledge of the customers, trade secrets, and other
proprietary information relating to the business of the Company and its
customers and suppliers, and in consideration of compensation to be received
hereunder, the Executive agrees that during his employment hereunder the
Executive will not compete with or be engaged in any business which, during his
employment hereunder, is engaged in the investment banking, asset management, or
internet (including media buying, web design, technology engineering, or other
internet-related services) business in the United States or Canada, provided
that the provisions of this Paragraph will not be deemed breached merely because
the Executive owns less than 10% of the outstanding common stock of a
publicly-traded company or is a passive investor who owns less than 10% of the
outstanding common stock of a privately-held company.
In further consideration of the compensation to be received
hereunder, the Executive agrees that during the Term and for a period of one
year subsequent to any termination hereunder, the Executive shall not (i)
directly or indirectly solicit or attempt to solicit any of the employees,
agents, consultants or representatives of the Company to terminate his, her or
its relationship with the Company; (ii) directly or indirectly solicit or
attempt to solicit any of the employees, agents, consultants or representatives
of the Company to become employees, agents, representatives or consultants of
any other person or entity; (iii) directly or indirectly solicit or attempt to
solicit any customer, vendor or distributor of the Company with respect to any
product or service being furnished, made, sold or leased by the Company; or (iv)
persuade or seek to persuade any customer of the Company to cease to do business
or to reduce the amount of business which any customer has customarily done or
contemplates doing with the Company, whether or not the relationship between the
Company and such customer was originally established in whole or in part through
the Executive's efforts.
7.2 Proprietary Information. The Executive acknowledges
that during the course of his employment with the Company he will necessarily
have access to and make use of proprietary information and confidential records
of the Company and the Company's subsidiaries. The Executive covenants that he
shall not during the Term or at any time thereafter, directly or indirectly, use
for his own purpose or for the benefit of any person or entity other than the
Company, nor otherwise disclose, any such proprietary information to any
individual or entity, unless such disclosure has been authorized in writing by
the Company or is otherwise required by law.
For purposes of this Section 7, "proprietary information"
shall not include information which is or becomes generally available to the
public other than as a result of a breach of this Agreement by the Executive.
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7.3 Confidentiality and Surrender of Records. The
Executive shall not during the Term or at any time thereafter (irrespective of
the circumstances under which the Executive's employment by the Company
terminates), except as required by law, directly or indirectly publish, make
known or in any fashion disclose any confidential records to, or permit any
inspection or copying of confidential records by, any individual or entity other
than in the course of such individual's or entity's employment or retention by
the Company, nor shall he retain, and will deliver promptly to the Company, any
of the same following termination of his employment hereunder for any reason or
upon request by the Company. For purposes hereof, "confidential records" means
all correspondence, memoranda, files, manuals, books, lists, financial,
operating or marketing records, magnetic tape or electronic or other media or
equipment of any kind which may be in the Executive's possession or under his
control or accessible to him which contain any proprietary information of the
Company or the Company's subsidiaries. All confidential records shall be and
remain the sole property of the Company, or, as applicable, the Company's
subsidiaries during the Term and thereafter.
7.4 Inventions and Patents. Any interest in patents,
patent applications, inventions, copyrights, developments and processes
("Inventions") which the Executive develops during his employment with the
Company and which relates to the fields in which the Company or the Company's
subsidiaries is then engaged shall belong to the Company, or, as applicable, the
Company's subsidiaries. Upon request, the Executive shall execute all such
assignments and other documents and take all such other action as the Company
may reasonably request in order to vest in the Company, or, as applicable, a
subsidiary of the Company all his right, title, and interest in and to such
Inventions.
7.5 Enforcement.
(a) The Executive agrees that the remedy at law for
any breach or threatened breach of any covenant contained in this Paragraph 7
would be inadequate and that the Company, in addition to such other remedies as
may be available to it at law or in equity, shall be entitled to institute
proceedings in any court or courts of competent jurisdiction to obtain damages
for breach of this Paragraph 7 and injunctive relief.
(b) In no event shall any asserted violation of any
provision of this Paragraph 7 constitute a basis for deferring or withholding
any amounts otherwise payable to the Executive under this Agreement.
8. Key Man Insurance. The Executive recognizes and
acknowledges that the Company or its affiliates may seek and purchase one or
more policies providing key man life insurance with respect to the Executive,
the proceeds of which would be payable to the Company or such affiliate. The
Executive hereby consents to the Company or its affiliates seeking and
purchasing such insurance and will provide such information, undergo such
medical examinations (at the Company's expense), execute such documents and
otherwise take any and all actions necessary or desirable in order for the
Company or its affiliates to seek, purchase and maintain in full force and
effect such policy or policies.
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9. Notices. Any notice, consent, request or other
communication made or given in accordance with this Agreement shall be in
writing either (i) by personal delivery to the party entitled thereto, (ii) by
facsimile with confirmation of receipt, or (iii) by registered or certified
mail, return receipt requested. The notice, consent request or other
communication shall be deemed to have been received upon personal delivery, upon
confirmation of receipt of facsimile transmission, or, if mailed, three days
after mailing. Any notice, consent, request or other communication made or given
in accordance with the Agreement shall be made to those listed below at their
following respective addresses or at such other address as each may specify by
notice to the others:
To the Company:
Walnut Financial Services, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx
Facsimile No.: (000) 000-0000
To the Executive:
Xxx Xxxxx
Walnut Financial Services, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
10. Successors.
(a) This Agreement is personal to the Executive and,
without the prior written consent of the Company, shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
heirs and legal representatives.
(b) This Agreement shall inure to the benefit of and
be binding upon the Company and its successors and assigns.
(c) The Company shall 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 expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would have been required to perform if no such
succession had taken place. As used in this Agreement, "Company" shall mean both
the Company as defined above and any such successor that assumes and agrees to
perform this Agreement, by operation of law or otherwise.
11. Complete Understanding; Amendment; Waiver. This
Agreement constitutes the complete understanding between the parties with
respect to the employment of the Executive and supersedes all other prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof, and no statement, representation,
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warranty or covenant has been made by either party with respect thereto except
as expressly set forth herein. This Agreement shall not be altered, modified,
amended or terminated except by a written instrument signed by each of the
parties hereto. Any waiver of any term or provision hereof, or of the
application of any such term or provision to any circumstances, shall be in
writing signed by the party charged with giving such waiver. Waiver by either
party hereto of any breach hereunder by the other party shall not operate as a
waiver of any other breach, whether similar to or different from the breach
waived. No delay on the part of the Company or the Executive in the exercise of
any of their respective rights or remedies shall operate as a waiver thereof,
and no single or partial exercise by the Company or the Executive of any such
right or remedy shall preclude other or further exercise thereof.
12. Severability. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement. If any provision of this Agreement
shall be held invalid or unenforceable in part, the remaining portion of such
provision, together with all other provisions of this Agreement, shall remain
valid and enforceable and continue in full force and effect to the fullest
extent consistent with law.
13. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be wholly performed within that State, without regard to
the principles of conflicts of law.
14. Titles and Captions. All paragraph titles or captions
in this Agreement are for convenience only and in no way define, limit, extend
or describe the scope or intent of any provision hereof.
15. Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the Executive has executed this Agreement
and, pursuant to the authorization of the Board of Directors, the Company has
caused this Agreement to be executed in its name and on its behalf, all as of
the date above written.
WALNUT FINANCIAL SERVICES, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: President and Chief
Executive Officer
/s/ Xxx Xxxxx
--------------------------------
Xxx Xxxxx
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