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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into between XXXXXX X. XXXXXXXX
(hereinafter "Employee") and MILLER, JOHNSON, STEICHEN, KINNARD, INC.
(hereinafter "MJSK") at its principal place of business at 0000 Xxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000.
WHEREAS, Employee has acted as Senior Vice President, Director of
Retail Sales and Branch Manager of the Minneapolis office of Xxxx X. Xxxxxxx &
Company, Incorporated since June 1, 1999 pursuant to a written Employment
Agreement;
WHEREAS, Xxxx X. Xxxxxxx & Company, Incorporated was acquired by MJSK's
parent company Xxxxxxxxx.xxx Group, Inc. in September 2000 and Employee agreed
to be employed by Xxxx X. Xxxxxxx & Company, Incorporated following such
acquisition until December 31, 2000 pursuant to a written employment agreement;
WHEREAS, MJSK and Employee desire to amend the terms of Employee's
employment terms and conditions.
NOW, THEREFORE, it is agreed between the parties as follows:
1. DUTIES. MJSK agrees to employ Employee, and Employee agrees to
perform the duties of an Executive Vice President, Director of MJSK's Retail
Equity Sales and Branch Manager of the MJSK Minneapolis office for the benefit
of MJSK on a full-time basis commencing on January 1, 2001. The parties hereto
acknowledge that effective on or about February 1, 2001, the Minneapolis office
of MJSK will include the retail sales forces of the former Xxxx X. Xxxxxxx and
Company broker dealer and the X.X. Xxxxxxxx & Company broker dealer. Employee's
duties shall be to act as Director of MJSK's Retail Equity Sales and Branch
Manager for all retail equity sales located in the MJSK Minneapolis office as
well as to oversee said office's equity trading, equity institutional and equity
research departments.
2. COMPENSATION. For all services rendered during the term of
employment, MJSK shall compensate Employee in accordance with the schedule
attached hereto as Exhibit A. The terms and conditions of Employee's present
Employment Agreement with Xxxx X. Xxxxxxx & Company, Incorporated shall remain
in full force and effect until December 31, 2000.
3. BENEFITS. Employee will receive the full range of standard benefits
that accrue to MJSK employees, including 401(k) plan, retirement plan, vacation,
and medical plans, as Employee meets the eligibility criteria set forth in those
benefit plans. MJSK reserves the right to modify, change, or discontinue its
benefit plans. In such event, Employee will be eligible for such benefits as are
then afforded to other MJSK employees in positions similar to that held by
Employee.
4. COMPLIANCE. Employee agrees to comply with and abide by all the
rules and regulations of the securities industry as set forth in state and
federal law, and in the rules and regulations of governmental agencies and
self-regulatory bodies. Employee also agrees to comply with and abide by all
internal rules and policies of MJSK as may be established and amended from time
to time.
5. TRADE SECRETS. Employee acknowledges and agrees that the identities
of MJSK's customers and employees, and all memoranda, notes, records,
statements, reports, and documents of every kind concerning customers or
customer accounts, or concerning MJSK's internal operations and procedures,
regardless of whether such documents were created by MJSK, MJSK's clearing
broker, an employee or affiliate of MJSK, or by the Employee, and including all
originals, copies, electronic and other data compilations (the "Records") are
confidential business records and trade secrets of MJSK, and are the sole
property of MJSK. Except as otherwise expressly permitted by MJSK in writing,
Employee agrees to maintain the Records in the strictest confidence, to not
share any Records with any person outside of MJSK,
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except as necessary in the interest of MJSK. Upon Employee's termination,
whether voluntary or involuntary, with or without cause, or whenever MJSK may
request, Employee shall immediately relinquish possession to MJSK of all
Records. Employee agrees that Employee will not at any time assert or claim an
ownership or property interest in the Records nor use information from the
Records in any manner that might adversely affect MJSK's best interests.
6. TERM OF EMPLOYMENT. The Term of Employment under this Agreement
shall commence on January 1, 2001 and shall continue through December 31, 2001.
After the end of the Term of Employment, any continuing employment relationship
between MJSK and Employee shall then be an "employment at will" relationship.
That is, after the end of the Term of Employment, MJSK could terminate Employee
at any time for any reason, or for no reason at all, with or without notice.
Likewise, after the end of the Term of Employment, Employee could terminate his
employment with MJSK at any time for any reason, or for no reason at all, with
or without notice. Employee's employment hereunder may be terminated by MJSK
prior to the expiration of the Term of Employment upon the happening of any of
the following events: (i) expiration of the initial term of this Agreement,
without renewal; (ii) death of Employee; (iii) notice to Employee that
Employee's employment is terminated due to Employee's material inability to
perform Employee's usual and customary duties by reason of total physical or
mental disability where such disability has continued continuously for a period
in excess of six (6) continuous months; or (iv) at any time by the Company for
cause. For purposes of this Agreement, termination for cause shall mean: (i) if
Employee commits any fraud, misappropriation or embezzlement; (ii) if Employee
materially and repeatedly breaches any provision of this Agreement after notice
thereof; or (iii) for any act, or failure to act, of Employee, attributable to
his gross negligence or willful misconduct, which causes a material adverse
effect on MJSK's business, condition, prospects or reputation, as determined by
MJSK's Board of Directors in its reasonable business judgment.
7. ARBITRATION. MJSK and Employee agree that any dispute regarding or
arising out of this Agreement, the Employee's employment at MJSK, or any event
occurring in connection with Employee's employment or termination of employment
at MJSK, including but not limited to claims of fraud in the inducement of this
contract, defamation, discrimination, or harassment, shall be submitted to
arbitration pursuant to the Federal Arbitration Act. Such arbitration will be
conducted before the National Association of Securities Dealers, Inc. ("NASD")
in accordance with the NASD Code of Arbitration Procedure, or if the NASD
refuses to accept jurisdiction, before the American Arbitration Association
("AAA") under the AAA's applicable Arbitration Rules. The award of the
arbitrator(s), or a majority of them, shall be final and judgment upon such
award may be entered in any court of competent jurisdiction. This arbitration
provision shall continue in force after the termination of employment.
8. INJUNCTIVE RELIEF. Notwithstanding the arbitration provision
contained in this Agreement, Employee agrees that MJSK may apply for, and obtain
from any state or federal court of competent jurisdiction, appropriate
injunctive relief prohibiting, among other things, the violation of the terms of
paragraph 5 of this Agreement, and may do so pending arbitration, pending a
decision of the arbitration panel, and also for purposes of enforcing any
decision of the arbitration panel. In the event that an order or decree for
injunctive or other relief shall be granted to MJSK hereunder, Employee agrees
to pay any and all costs and expenses of MJSK, including attorney's fees,
incurred in obtaining such relief, and further, that the period from which any
injunctive relief to enforce this Agreement shall commence shall be the date of
obtaining such relief.
9. INDEMNIFICATION. Employee agrees to indemnify and hold MJSK harmless
against any and all losses and liabilities incurred by MJSK, including attorney
fees, that result from (i) the Employee's breach of any obligation contained in
this Agreement; (ii) Employee's violation of any state or federal law; (iii)
Employee's violation of any rule or regulation of any regulatory or
self-regulatory organization; (iv) Employee's violation of MJSK's internal
policies and procedures; and (v) claims asserted against MJSK by Employee's
customers that are based upon Employee's misconduct, except to the extent that
Employee is indemnified by MJSK under its articles and by-laws.
10. REPRESENTATIONS AND WARRANTIES. Employee hereby represents and
warrants that he has read this entire Agreement, and has had an opportunity to
ask MJSK representatives questions about it. Employee further represents and
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warrants that he has had an opportunity to consult with an attorney (at
Employee's expense) before signing this Agreement.
11. ATTORNEY'S FEES. If any legal action, arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged breach, default, or misrepresentation in connection with this Agreement
or any its provisions or any claims are asserted arising out of the employment
relationship between the parties hereto, then the prevailing party, in addition
to any other relief or remedy which that party may be entitled, shall be
entitled to recover reasonable attorneys' fees and costs of the action or
proceeding.
12. ASSIGNMENT. MJSK shall have the right to assign this Agreement to
an affiliate at anytime during the term hereof and Employee hereby consents to
such assignment.
13. GOVERNING LAW AND VENUE. This Agreement, and indeed the entire
relationship between Employee and MJSK, shall be construed, interpreted, and
enforced in accordance with the laws of the State of Minnesota. Any arbitration
or other legal proceeding that may be brought by either party against the other
shall be venued in Minneapolis, Minnesota.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement on the dates indicated below:
Dated: December 20, 2000 Miller, Johnson, Steichen, Kinnard, Inc.
By /s/ Xxxx X. Xxxxxx
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Its SVP/General Counsel
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Dated: December 20, 2000 By /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
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EXHIBIT A
This Exhibit sets forth the compensation for Xxxxxx X. Xxxxxxxx,
National Sales Manager, commencing on January 1, 2001 and continuing through
December 31, 2001.
A. SALARY. A salary at the rate of Two Hundred Fifty Thousand Dollars
($250,000) per year will be paid on a semi-monthly basis. This salary is
guaranteed through December 31, 2001 so long as Employee remains employed by
MJSK.
B. BONUS. Provided Employee is an Employee of MJSK on December 31,
2001, then Employee shall be entitled to receive a bonus payment in an amount to
be determined by the Chief Executive Officer and President of MJSK in their sole
discretion; provided, however, that in no event shall such bonus amount, if
earned, be less than Two Hundred Fifty Thousand Dollars ($250,000). Fifty
Thousand ($50,000) shall be paid as a draw on July 1, 2001 against the bonus to
be earned. In the event that the bonus is not earned by Employee, then Employee
shall repay any amounts paid as a draw by MJSK as soon as practicable after
written demand by MJSK with interest at the applicable federal rate for one year
loans.
C. CAR ALLOWANCE. So long as Employee remains employed by MJSK, MJSK
shall pay Employee a monthly car allowance in the amount of Three Thousand and
00/100 Dollars ($3,000) per month through December 31, 2001.
D. PARKING ALLOWANCE. So long as Employee remains in the employ of MJSK
and is required to office in the downtown Minneapolis area, MJSK shall pay
Employee a monthly parking allowance in the amount of Two Hundred Eight Dollars
($208.00).
X. XXXXX OF STOCK OPTION. Upon execution of this Agreement, MJSK shall
cause its parent corporation, Xxxxxxxxx.xxx Group, Inc. to grant to Employee an
option (the "Option") to purchase one hundred thousand (100,000) shares of the
Company's common stock. The Option shall have an exercise price equal to the
closing price of Xxxxxxxxx.xxx Group, Inc.'s common stock on the date prior to
the date this Agreement is executed. The Option shall expire five (5) years from
the date thereof and vest in accordance with the following schedule:
Date Number of Shares
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January 1, 2002 33,333
January 1, 2003 33,333
January 1, 2004 33,334
The Option shall be evidenced by the Option Agreement attached hereto as Exhibit
X.
X. XXXXXXXXX PAYMENT. In the event Employee's employment is terminated
by MJSK hereunder prior to December 31, 2001 for any reason other than cause or
the death or disability of Employee, MJSK's sole obligation to Employee shall be
the payment of a severance amount equal to Two Hundred Fifty Thousand Dollars
($250,000) and continuation of Employee's health insurance (by COBRA benefit
extension or otherwise) for a period of no longer than one year from the date of
termination.
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Dated: December 20, 2000 MILLER, JOHNSON, STEICHEN, KINNARD, INC.
By /s/ Xxxxxx X. Xxxxxx
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Its SVP/General Counsel
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Dated: December 20, 2000 By /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
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