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Exhibit 10.13
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is dated
as of March 4, 1998, and is entered into between Asset Alliance Corporation, a
Delaware corporation (the "Company"), and Xxxx X. Xxxxxxx (the "Employee").
WHEREAS, the Employee and the Company are parties to an Employment
Agreement, dated as of July 8, 1996 (the "Prior Agreement"); and
WHEREAS, the Employee and the Company have agreed to amend the Prior
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, receipt of which is hereby
acknowledged, the parties, intending to be legally bound, agree as follows:
1. EMPLOYMENT AND TERM.
(a) The Employee shall continue to serve as the Company's Chief Financial
Officer until such time as the Board of Directors of the Company (the "Board")
determines to appoint a full-time Chief Financial Officer and thereafter as
Senior Vice President and Treasurer, and in such other executive managerial
position or positions with the Company or its subsidiaries or affiliates as
shall hereafter be designated by the Board, to perform such managerial duties
consistent with the usual duties of an officer of his status. Such employment
shall be on the terms and conditions set forth herein. The Employee hereby
accepts such employment and agrees to devote an amount of his business time
consistent with his employment under the Prior Agreement and appropriate to the
faithful and diligent performance of the duties of his office as determined by
the Board. The Company acknowledges that the Employee is employed on a full-time
basis by Xxxxxx X. Xxxxxxxxx & Co. ("AJG") and his primary employment
responsibility and loyalty is to AJG and that he will fulfill his duties
hereunder at such location or locations as is consistent with the fulfillment of
his primary duties to AJG. Employee represents and warrants that AJG has been
apprised of this Agreement and has consented to Employee's employment hereunder
pursuant to the terms and conditions of this Agreement.
(b) The term of the Employee's employment by the Company shall commence as
of February 1, 1998 (the "Effective Date"), and continue for a period of one
year from such date unless sooner terminated pursuant to the terms hereof.
Within thirty (30) days of each anniversary of this Agreement, the Company may
elect, with the Employee's written consent, to extend the term for an additional
one year period on the same terms and conditions as are provided herein unless
otherwise specified in the election notice.
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2. COMPENSATION.
(a) Salary. The Company shall compensate the Employee with a base salary
of $95,000 per annum, commencing on the Effective Date and payable in accordance
with the normal payroll practices of the Company.
(b) Discretionary Bonus. Employee shall be eligible to receive a
discretionary annual bonus in the sole discretion of the Board.
(c) Stock Options. In consideration of the Employee's agreement to
substitute this Agreement for the Prior Agreement, and subject to the approval
of the Company's Board, the Company shall grant to the Employee options to
purchase 20,000 shares of the Common Stock as of the date hereof on the
following terms and such other terms as the Board or the Stock Option or
Compensation Committee thereof may determine: (1) the options shall be exercised
within ten (10) years of the date hereof; (2) the options shall vest and become
exercisable on the date of grant; and (3) the exercise price shall be $10 per
share, which the Board agrees is the estimated fair market value of the
Company's shares on the date hereof.
(d) Benefits. Unless otherwise specifically approved by the Board, the
Employee shall not be entitled to participate in any Company sponsored employee
benefit programs so long as Employee is a full-time employee of AJG or another
organization.
(e) Expenses. The Company shall pay or reimburse the Employee for all
expenses normally reimbursed by the Company and reasonably incurred by him in
furtherance of his duties hereunder including, without limitation, for
traveling, meals, hotel accommodations and the like upon submission by him of
vouchers or an itemized list thereof prepared in compliance with such rules
relating thereto as the Board may, from time to time, adopt and as may be
required in order to permit such payments as proper deductions to the Company
under the Internal Revenue Code of 1986, as amended (the "Code"), and the rules
and regulations adopted pursuant thereto now or hereafter in effect.
3. TERMINATION.
(a) This Agreement may be terminated by the Company for any reason at any
time. The Company agrees to provide Employee ten (10) days prior notice setting
forth the date the termination will be effective, except where the termination
is for Cause (as defined in Section 3(e)).
(b) In the event that the Employee's employment with the Company is
terminated by the Company without Cause (as defined in Section 3(e)), then
during the period from the effective date of termination through the date on
which the then-current term of this Agreement was to expire, the Employee shall
continue to receive his base salary. All stock options held by the Employee, to
the extent vested, must be exercised within thirty (30) days of the effective
date of Employee's termination.
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(c) In the event the Employee's employment with the Company is terminated
upon the Employee's death or Permanent Disability (as such term is defined in
Section 3(f) hereof), the Employee or his legal representative shall be entitled
to receive any accrued but unpaid base salary. All stock options held by
Employee shall, to the extent vested on the termination date, be exercisable
within one year of the termination date.
(d) In the event of Employee's voluntary termination or a termination of
Employee by the Company for Cause (as defined in Section 3(e)), the Company
shall not be obligated to pay Employee any unpaid compensation and Employee
shall forfeit any stock options held by Employee.
(e) For purposes hereof, "Cause" shall mean any of the following: (i) the
inability or refusal of the Employee to perform his duties as an employee in a
manner consistent with the provisions of Section 1(a) to the satisfaction of the
Board; (ii) a material breach of any fiduciary duty or other material dishonesty
by the Employee with respect to the Company or any affiliate thereof resulting
in actual material harm to the Company or such affiliate; or (iii) the
conviction of the Employee for a felony.
(f) For purposes hereof, "Permanent Disability" shall mean the total
incapacitation of the Employee so as to preclude performance of the duties of
his employment hereunder for an aggregate period of six months in any twelve
month period.
(g) Employee shall have no obligation to seek to mitigate any amounts
payable under this Section 3 and any amounts he receives from other employment
shall not be offset against or otherwise reduce the amount due Employee
hereunder.
4. NONCOMPETITION; NONINTERVENTION
(a) Subject to the provisions of Section 1 above, while in the employ of
the Company the Employee agrees to devote a sufficient amount of his time,
attention and energies to the performance of the business of the Company to
fulfill the duties contemplated by Section 1 hereof, and the Employee shall not,
directly or indirectly, along or as a member of any partnership or other
business organization, or as a partner, officer, director, employee,
stockholder, consultant or agent of any other corporation, partnership or other
business organization, be actively engaged in or concerned with any other duties
or pursuits (other than his employment by AJG and its affiliates) which
interfere with the performance of his duties as an Employee of the Company, or
which, even if noninterfering, may be contrary to the best interests of the
Company.
(b) Until six (6) months after the termination or cessation of the
Employee's employment with the Company for any reason (including termination of
employment by the Company without Cause), the Employee shall not, directly or
indirectly, alone or as a member of any partnership or other business
organization, or as a partner, officer, director, employee, stockholder,
consultant or agent of any corporation, partnership or business organization,
engage
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in the business of acquiring equity interests of, or otherwise investing in,
investment management firms (other than activities undertaken in the ordinary
course of performing his duties as an employee of AJG to the extent that such
activities do not constitute a breach of any noncompetition covenant of AJG to
the Company). For a period of six (6) months after the termination or cessation
of the Employee's employment with the Company for any reason (including
termination of employment by the Company without Cause) the Employee shall not,
directly or indirectly, alone or as a member of any partnership or other
business organization, or as a partner, officer, director, employee,
stockholder, consultant or agent of any corporation, partnership or business
organization (i) request or cause any customer of the Company or its affiliates
to cancel or terminate any business relationship with the Company or such
affiliate, or (ii) solicit or otherwise cause any employee of the Company or its
affiliates to terminate such employee's relationship with the Company or such
affiliate.
5. CONFIDENTIAL INFORMATION.
(a) The Employee will not at any time, whether during or after the
termination or cessation of his employment, reveal to any person, association or
company any of the trade secrets or confidential information concerning the
organization, business or finances of the Company so far as they have come or
may come to his knowledge, except as may be required in the ordinary course of
performing his duties as an employee of the Company or in the ordinary course of
performing his duties as an employee of AJG or except as may be in the public
domain through no fault of the Employee, and the Employee shall keep secret all
matters entrusted to him and shall not use or attempt to use any such
information in any manner which may injure or cause loss or may be calculated to
injure or cause loss whether directly or indirectly to the Company.
(b) The Employee agrees that during his employment he shall not make, use
or permit to be used any notes, memoranda, drawings, specifications, programs,
data or other materials of any nature relating to any matter within the scope of
the business of the Company or concerning any of its dealings or affairs
otherwise than for the benefit of the Company. The Employee shall not, after the
termination or cessation of his employment, use or permit to be used any such
notes, memoranda, drawings, specifications, programs, data or other materials,
it being agreed that any of the foregoing shall be and remain the sole and
exclusive property of the Company and that immediately upon the termination or
cessation of his employment the Employee shall deliver all of the foregoing, and
all copies thereof, to the Company, at its main office.
6. BINDING EFFECT.
This Agreement shall inure to the benefit of and shall be binding upon the
parties hereto and the Company's successors or assigns (whether resulting from
any reorganization, consolidation or merger of the Company or any business to
which all or substantially all of the assets of the Company are sold) and the
Employee's heirs, executors and legal representatives.
7. ENTIRE AGREEMENT.
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This Agreement contains the entire agreement and understanding of the
parties with respect to the subject matter hereof, supersedes all prior
agreements and understandings with respect thereto (including the agreement
dated as of March 4, 1998) and cannot be modified, amended, waived or
terminated, in whole or in part, except in writing signed by the party to be
charged.
8. ARBITRATION.
(a) All disputes between Employee and the Company of any kind whatsoever,
including, without limitation, all disputes relating in any manner to the
employment or termination of Employee and all disputes arising under this
Agreement, but excluding (at the Company's option) any proceedings pursuant to
Section 9, shall be resolved by arbitration ("Arbitrable Claims"). Arbitration
shall be final and binding upon the parties and shall be the exclusive remedy
for all Arbitrable Claims. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO
TRIAL BY JURY IN REGARD TO ARBITRABLE CLAIMS.
(b) Arbitration of Arbitrable Claims shall be in accordance with the
Employment Dispute Resolution Rules of the American Arbitration Association
("AAA Employment Rules"), except as provided otherwise in this Agreement. There
shall be one arbitrator selected in accordance with the AAA Employment Rules. In
any arbitration, the burden of proof shall be allocated as provided by
applicable law. Either party may bring an action in court to compel arbitration
under this Agreement and to enforce an arbitration award. Otherwise, neither
party shall initiate or prosecute any lawsuit or administrative action in any
way related to any Arbitrable Claim. All arbitration hearings under this
Agreement shall be conducted in New York, New York. The Federal Arbitration Act
shall govern the interpretation and enforcement of this Section 8. The fees of
the arbitrator shall be split between both parties equally.
(c) All proceedings and all documents prepared in connection with any
Arbitrable Claim shall be confidential and, unless otherwise required by law,
the subject matter thereof shall not be disclosed to any person other than the
parties to the proceedings, their counsel, witnesses and experts, the arbitrator
and, if involved, the court and court staff.
(d) The rights and obligations of Employee and the Company as set forth in
this Section 8 with respect to arbitration shall survive the termination of
Employee's employment and the expiration of this Agreement.
9. RIGHT TO INJUNCTION.
The Employee acknowledges and agrees that irreparable and immediate damage
will result to the Company if the Employee breaches his obligations under
Section 4 or Section 5 hereof. In the event of a breach by the Employee of
Section 4 or Section 5 hereof, the Company shall be entitled to such equitable
and injunctive relief as may be available to restrain the Employee from the
violation of such provisions. The remedies provided in this Agreement shall be
deemed
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cumulative and the exercise of one shall not preclude the exercise of any other
remedy at law or in equity for the same event or any other event.
10. INDEMNIFICATION.
The Company shall indemnify Employee to the fullest extent permitted by
law (including, without limitation, advancement of legal fees on a current
basis) for all matters related to or arising from Employee's service as an
officer, director and/or fiduciary of any benefit plan of the Company. The
Company shall cover Employee during and after Employee's employment under the
Company's director and officer liability insurance to the greatest extent
afforded any senior officer and director of the Company.
11. MISCELLANEOUS.
(a) Amendments. No amendment, modification or waiver of any of the terms
of this Agreement shall be valid unless made in writing and signed by the
Employee and the Company.
(b) Successors in Interest. All provisions of this Agreement shall survive
the termination or cessation of the Employee's employment with the Company and
shall be binding upon and inure to the benefit of and be enforceable by and
against the respective heirs, executors, administrators, personal
representatives, successors and assigns of either of the parties to this
Agreement.
(c) Waiver. The waiver by the Company of a breach of this Agreement by the
Employee shall not operate or be construed as a waiver of any subsequent breach
by the Employee.
(d) Notices. All notices to be given hereunder shall be in writing and
personally delivered or sent certified mail, return receipt requested. Notices
to be given to the Employee shall be sent to the address indicated below the
Employee's signature below. Notices to be given to the Company shall be sent to
Asset Alliance Corporation, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, to the
attention of Xxxxxx X. Xxxxx, Executive Vice President. Notices of any changes
in the above addresses shall be given to the other party in writing.
(e) Severability. If any provision of this Agreement shall contravene any
law of any particular state where the Employee shall perform services for the
Company, then this Agreement shall be first construed to be limited in scope and
duration so as to be enforceable in that state, and if still unenforceable,
shall then be construed as if such provision is not contained herein.
(f) Governing Law. This Agreement shall be governed by the laws of the
State of New York without regard to the conflict of laws principles thereof.
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(g) Counterparts. This Agreement may be executed in two or more
counterparts, and by each party on separate counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
ASSET ALLIANCE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Employee's Address:
0000 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
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