EXHIBIT 10.10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of the
____ day of May, 1998, between KNIGHT/TRIMARK GROUP, INC. (the "Company"), a
corporation of the State of Delaware, and XXXXXXX XXXXXXXXX ("the Employee").
WITNESSETH
WHEREAS, the Employee is one of the founders and initial members of
the Company, which, through its subsidiaries, is engaged in the business of
operating a wholesale over-the-counter market maker business and a third-market
broker-dealer business;
WHEREAS, the Company recognizes that the Employee has special skills,
knowledge and expertise essential to the Company's operations; and
WHEREAS, the Company desires to employ the Employee and the Employee
desires to be employed by the Company on the terms provided herein.
NOW, THEREFORE, the Company and the Employee, in consideration of the
agreements contained herein, agree as follows:
1. EMPLOYMENT.
The Company shall employ the Employee to perform the duties described in
this Agreement, upon the terms and conditions set forth herein, and the Employee
accepts such employment.
2. DUTIES.
The Employee shall serve as President and Chief Executive Officer of the
Company and President and Chief Executive Officer of Knight Securities, Inc., or
such other position or positions as may be agreed in writing between the
Employee and the Company, and shall perform such duties, services and
responsibilities incident to such position or positions as determined from time
to time by the Board of Directors of the Company (the "Board of Directors"). The
Employee shall devote his full business time, attention and skill to the
performance of such duties, services and responsibilities, and will use his best
efforts to promote the interests of the Company. The Employee will not, without
the prior written approval of the Board of Directors, engage in any other
business activity which would interfere with the performance of his duties,
services and responsibilities hereunder or which is in violation of policies
established from time to time by the Company.
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3. EMPLOYMENT TERM.
The term of employment under this Agreement (the "Employment Term") shall
be for a period beginning on the date of the closing of the Initial Public
Offering (the "Closing") and ending on the fourth anniversary thereof (the
"Initial Termination Date"), unless earlier terminated as provided herein;
provided, however, that the Employment Term shall be automatically extended for
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one-year periods unless either the Company or the Employee provides the other
party with written notice at least 60 days prior to any extension date that it
or he desires to terminate the Employee's employment under this Agreement. The
term of this Agreement shall be coincident with the Employment Term and the
Employment Term shall include any extensions provided in this Section 3.
4. COMPENSATION.
As full compensation for his services to the Company, and on the condition
that the Employee faithfully keeps and performs every condition and covenant
hereunder:
(A) SALARY. The Company shall during the Employment Term pay the Employee
a salary (the "Salary") at an annual rate of $250,000, payable in equal monthly
installments on the first day of each month ("Salary"). From time to time, the
Board of Directors may increase the Salary as it deems appropriate.
(B) BONUS. The Company agrees to adopt, effective on the first day of the
Employment Term, the Knight/Trimark Group, Inc. 1998 Management Incentive
Performance Plan (the "Plan"). The Plan is incorporated herein by
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reference. The Employee shall be eligible to be paid a bonus (the "Bonus") from
the Plan pursuant to the terms and conditions provided therein.
(C) COMMISSION. In accordance with accepted industry practices for head
traders, the Company shall pay the Employee a commission (the "Commission")
equal to thirty-five (35%) of the excess (the "Net Profit"), if any, of the
gross trading profits of his personal trading account (the "Account"), over the
sum (the "Reduction Amount") of gross trading losses, rebates, clearance fees,
traders' assistance, and other direct transaction costs (e.g., Instinet),
associated with the Account. Commissions required by this Section 4(c) shall be
determined and paid on a monthly basis; provided, that in determining the Net
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Profit for any month, the Net Profit, if any, for such month shall be reduced by
the excess, if any, of the Reduction Amount over gross trading profits of the
Business with respect to any preceding month occurring after the most recent
month in which a Net Profit existed (determined after the application of this
proviso); provided further, that no such Commission shall be due with respect to
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any year until such time as the aggregate amount of such Commissions payable
with respect to such year but for this provision would exceed $250,000, and then
only such excess shall be due.
(D) BENEFITS. In addition to the payment of Salary and any Bonus which may
become payable as described above, the Employee shall be entitled to health,
disability and life insurance benefits generally available to management
employees of the Company having comparable responsibilities and for the
reimbursement of
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all reasonable and documented business expenses.
(E) SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN. In addition to the Salary
Bonus and Benefits described above, the Company agrees to adopt, effective on
the first day of the Employment Term, a Supplemental Executive Retirement Plan
("SERP"). The SERP is incorporated herein by reference. The employee shall be
eligible to participate in the SERP pursuant to the terms and conditions
provided therein.
The Salary, Bonus and Commission shall be payable in accordance with the
normal payroll practices of the Company then in effect and subject to all
applicable taxes required to be withheld by the Company pursuant to federal,
state or local law. The Employee shall be solely responsible for income and
earnings taxes imposed on the Employee by reason of any cash or non-cash
compensation and benefits provided hereunder.
5. TERMINATION.
The Employee's employment with the Company will terminate at the end of the
Employment Term or upon the earlier occurrence of any of the following events:
(A) The death of the Employee.
(B) The mutual agreement between the Company and the Employee on an early
termination date.
(C) The termination of employment by the Company's unilateral action
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without "Cause" (as defined below).
(D) The termination of employment by the Company's unilateral action with
Cause.
(E) The termination of employment by the Employee's unilateral action.
In the event of termination of this Agreement, for whatever reason, the
Employee agrees to cooperate with the Company and to be reasonably available to
the Company with respect to continuing and/or future matters arising out of the
Employee's employment or any other relationship with the Company, whether such
matters are business-related, legal or otherwise. For purposes of this
Agreement, the term "Cause" shall mean (i) misappropriation of any material
amount of money or other assets or properties of the Company or any affiliate of
the Company, (ii) a material breach by the Employee of the terms of this
Agreement, which breach shall remain unremedied for 30 days after notice of the
same shall have been given to the Employee by the Company and (iii) the
conviction of the Employee for a felony. The provisions of this paragraph shall
survive termination of this Agreement.
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6. SEVERANCE.
If the Employee's employment with the Company terminates pursuant to
Sections 5(a), (b) or (c), the Company will pay the Employee in one lump sum
within 30 days following such termination a severance payment equal to $500,000.
The severance payment upon termination shall constitute the exclusive payments
due the Employee upon termination under this Agreement, including any payment
which may otherwise be payable pursuant to any other separation or severance
policy established or maintained by the Company.
7. EMPLOYEE COVENANTS.
(A) NON-COMPETE. (i) Subject to section 7(a)(iii), the Employee
agrees that the Employee will not, during the Employment Term and for a period
of two years thereafter, directly or indirectly own, manage, operate, join,
control, be employed by, or participate in the ownership, management, operation
or control of or be connected in any manner, including but not limited to
holding the positions of shareholder, director, officer, consultant, independent
contractor, employee, partner, or investor, with any Competing Enterprise
(defined below); provided, however, that the Employee may invest in stocks,
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bonds, or other securities of any person, firm, corporation or their business
organization (but without otherwise participating in the business thereof) if
(i) such stocks, bonds, or other securities are listed on any national
securities exchange or are registered under Section 12(g) of the Securities
Exchange Act of 1934, and (ii) his investment does not exceed, in the case of
any class of the capital stock of any one issuer, one
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percent of the issued and outstanding shares, or in the case of bonds or other
securities, one percent of the aggregate principal amount thereof issued and
outstanding.
(ii) The term "Competing Enterprise" shall mean any person,
corporation, partnership or other entity that is engaged in the business of
operating a wholesale over-the-counter market maker business or a third market
broker-dealer business.
(iii) Notwithstanding anything to the contrary contained herein, the
provisions of Section 7(a)(i) shall not apply from and after the Employee's
termination of employment pursuant to Section 5(b) or Section 5(c) above.
(B) TRADE SECRETS. The Employee agrees and understands that in the
Employee's position with the Company, the Employee will be exposed to and
receive information relating to the confidential affairs of the Company,
including but not limited to business and marketing plans, membership lists,
strategies, customer information, other information concerning the Company's
services, development, financing, expansion plans, business policies and
practices, and other forms of information considered by the Company to be
confidential and in the nature of trade secrets. The Employee agrees that during
the Employment Term and at all times thereafter the Employee will keep such
information confidential and not disclose such information, either directly or
indirectly, to any third person or entity without the prior written consent of
the Company. This confidentiality covenant has no temporal, geographical or
territorial restriction. Upon termination
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of this Agreement, the Employee will promptly supply to the Company all
property, keys, notes, memoranda, writings, lists, files, reports, customer
lists, correspondence, tapes, disks, cards, surveys, maps, logs, machines,
technical data or any other tangible product or document which has been produced
by, received by or otherwise submitted to the Employee during or prior to the
Employment Term.
(C) NON-SOLICITATION. The Employee agrees that (i) if his employment is
terminated for any reason he will not for one year following the termination of
employment directly or indirectly solicit for employment, including without
limitation recommending to any subsequent employer the solicitation for
employment of, any key employee employed by the Company, and (ii) he will not at
any time during his employment or at any time after termination of employment,
publish any statement or make any statement (under circumstances reasonably
likely to become public or that he might reasonably expect to become public)
critical of the Company, or in any way adversely affecting or otherwise
maligning the business or reputation of the Company or any of its affiliates.
(D) REMEDY. The Employee further agrees that any breach of the terms of
this Section 7 would result in irreparable injury and damage to the Company for
which the Company would have no adequate remedy at law; the Employee therefore
also agrees that in the event of said breach or any threat of breach, the
Company shall be entitled to an immediate injunction and restraining order to
prevent such breach and/or threatened breach and/or continued breach by the
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Employee and/or any and all persons and/or entities acting for and/or with the
Employee, without having to prove damages, and to all costs and expenses,
including reasonable attorneys' fees and costs, in addition to any other
remedies to which the Company may be entitled at law or in equity. The terms of
this paragraph shall not prevent the Company from pursuing any other available
remedies for any breach or threatened breach hereof, including but not limited
to the recovery of damages from the Employee.
(E) SURVIVAL. The provisions of this Section 7 shall survive any
termination of this Agreement and the Employment Term, and the existence of any
claim or cause of action by the Employee against the Company, whether predicated
on this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of the covenants and agreements of this Section 7.
8. INDEMNIFICATION.
The Company shall indemnify and hold harmless the Employee to the fullest
extent permitted by law from and against any and all losses, claims, demands,
costs, damages, liabilities (joint or several), expenses of any nature
(including reasonable attorneys' fees and disbursements), judgments, fines,
settlements, and other amounts arising from any and all claims, demands,
actions, suits, or proceedings, whether civil, criminal, administrative or
investigative, in which the Employee may be involved, or threatened to be
involved as a party or otherwise, arising out of or incidental to the formation,
business, or activities of or relating to the Company in the Employee's capacity
as an employee, officer,
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member or representative of the Company, regardless of whether the Employee
continues to be an employee, officer, member or representative at the time any
such liability or expense is paid or incurred; provided, however, that this
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provision shall not eliminate or limit the liability of the Employee (i) for any
breach of the Employee's duty of loyalty to the Company or its members, (ii) for
acts or omissions which involve intentional misconduct or a knowing violation of
law, (iii) for any transaction from which the Employee received any improper
personal benefit and (iv) for any breach of any provision of this Agreement.
9. NOTICES.
All notices, demands, requests or other communications which may be or are
required to be given, served, or sent by a party pursuant to this Agreement
shall be in writing and shall be hand delivered (including delivery by courier),
mailed by first-class, registered or certified mail, return-receipt requested,
postage prepaid, or transmitted by telegram, telex or facsimile transmission,
addressed as follows:
(a) If to the Company:
Knight/Trimark Group, Inc.
000 Xxxxxxxxxx Xxxx.
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attn: Xx. Xxxxxxx Xxxxxxxxx
(a) If to the Employee:
Xxxxxxx Xxxxxxxxx
00 Xxxx Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
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Each Party may designate by notice in writing a new address to which any
notice, demand, request or communication may thereafter be so given, served or
sent.
10. SEVERABILITY.
The invalidity of any one or more provisions hereof shall not affect the
remaining portions of this Agreement, all of which are inserted conditionally on
their being held valid in law; and in the event that one or more of the
provisions contained herein should be invalid, or should operate to render this
Agreement invalid, this Agreement shall be construed as if such invalid
provisions had not been inserted.
11. WAIVERS.
Neither the waiver by either party of a breach of or a default under any of
the provisions of this Agreement, nor the failure of either party, on one or
more occasions, to enforce any of the provisions of this Agreement or to
exercise any right, remedy or privilege hereunder, shall thereafter be construed
as a waiver of any subsequent breach or default of a similar nature, or as a
waiver of any such provisions, rights, remedies or privileges hereunder.
12. ENTIRE AGREEMENT, AMENDMENTS.
This Agreement contains the entire agreement between the parties with
respect to the transactions contemplated herein, and supersedes all prior oral
or written agreements, commitments or understandings with respect to the matters
provided for herein and therein. Any amendment or change relating hereto shall
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be in writing and duly executed by the Employee and the Company.
13. GOVERNING LAW.
This Agreement, the rights and obligations of the parties hereto, and any
claims or disputes relating thereto, shall be governed by and construed in
accordance with the laws of the State of New York (but not including the choice
of law rules thereof).
14. ASSIGNMENT.
All of the provisions hereof shall be binding upon and inure to the benefit
of the parties and the heirs, executors, administrators and permitted assigns of
Employee and the successors and assigns of the Company; provided that Employee's
obligations hereunder are personal and nondelegable, whether by operation of law
or otherwise, and except pursuant to the laws of testate or intestate
distribution upon the death of Employee, Employee's rights hereunder are not
assignable whether by operation of law or otherwise. The Company's rights and
obligations hereunder may be freely assigned provided such assignee assumes all
of the Company's duties and obligations hereunder.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Employment
Agreement as of the date first above written.
KNIGHT/TRIMARK GROUP, INC.
By: _________________________________
Xxxxxx Xxxxxx, Executive Vice President
and
Chief Operating Officer of Knight
Securities, Inc.
Xxxxxxx Xxxxxxxxx
_________________
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