EMPLOYMENT AGREEMENT AMENDMENT NO. 2
Exhibit
10.2
EMPLOYMENT
AGREEMENT AMENDMENT NO. 2
EMPLOYMENT
AGREEMENT AMENDMENT
made on
this 29th
day of
December 2006, by and between vFinance,
Inc.,
a
Delaware corporation (the "Company"), and Xxxxxxx X. Xxxxxxx ("Employee").
WITNESSETH:
WHEREAS,
Employee and the Company desire to amend the Amended and Restated Employment
Agreement dated November 16, 2004, as amended, (the “Employment
Agreement”).
NOW,
THEREFORE,
in
consideration of the foregoing and for other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, the Company and
Employee hereby agree as follows:
1.
Paragraph 3 to the Employment Agreement shall be deleted in its entirety and
replaced with the following provision:
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3.
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Duties.
Employee shall, subject to overall direction consistent with the
legal
authority of the Board of Directors of the Company (the "Board"),
serve
as, and have all power and authority inherent in the offices of Chief
Executive Officer and, effective January 3, 2007, Chairman of the
Board
and shall be responsible for those areas in the conduct of the business
reasonably assigned to him by the Board of Directors. Employee shall
devote substantially all his business time and efforts to the business
of
the Company; provided, however, that it is understood and agreed
that,
while Employee may devote time to other business matters in which
he has
an interest, in the event of a conflict, Employee's first and primary
responsibility shall be to the performance of his duties for the
Company.
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2.
Paragraph 5 (a) to the Employment Agreement shall be deleted in its entirety
and
replaced with the following provision:
5.
(a) Base
Salary.
Effective as of January 1, 2007, the Company shall pay to Employee an initial
base salary of $396,750 per annum and shall increase per annum beginning January
1, 2008 by the reported COLA and each year thereafter ("Base Salary"). The
Base
Salary and Employee's other compensation will be reviewed by the Board at least
annually and may be increased (but not decreased) from time to time as the
Board
may determine.
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3.
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Paragraph
6 (a), (b) and (c)(1) of the Employment Agreement shall be deleted
in its
entirety and replaced with the following
provisions:
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6. Severance
Payments and Change of Control Payments and Provisions.
Upon
the occurrence of a Triggering Event (as hereinafter defined), Employee shall
be
entitled to the immediate receipt of change in control payments, severance
or
material event payments (collectively referred to as “Severance Payments and
Benefits” and hereinafter defined in Paragraph 6 (c)) from the Company in
accordance with the terms hereinafter set forth:
(a) Triggering
Event.
The
occurrence of any of the following events shall be defined as a "Triggering
Event" for purposes hereof:
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A
Change of Control (as hereinafter
defined);
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(2)
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The
Company’s termination of Employee's employment (other than for Cause (as
hereinafter defined)) at any time prior to the expiration of the
Term;
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(3)
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The
voluntary resignation of Employee for "good reason," which for purposes
hereof shall include, without limitation, a demotion or a change
in
Employee's duties to the Company under Section 3 hereof, or (ii)
a
reduction in salary, benefits, bonuses, incentives or perquisites;
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(4)
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The
relocation of the principal office of the Company or the relocation
of
Employee outside of Broward or Palm Beach Counties in Florida;
or
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(5)
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The
death or Disability of the Employee (as defined
herein).
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(b) Change
of Control.
For
purposes of this Agreement, the term "Change in Control" shall mean the
occurrence of any of the following events not approved by a majority of the
Company’s Board of Directors who were members of the Board of Directors
immediately prior to such event:
(1) Thirty
percent (30%) or more of the Company's outstanding voting stock shall be
beneficially owned (within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934) by any person (other than Employee), entity
or
“group” within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934;
(2) A
change
in the majority of the Company's Board of Directors;
(3) Any
merger, consolidation or business combination pursuant to which the Company
is
not the surviving corporation or thirty percent (30%) or more of the Company's
outstanding voting stock shall be beneficially owned (within the meaning of
Section 13(d)(3) or 14(d)(2))by any person (other than Employee), entity or
“group” (as defined in Rule 13d-3) after such merger, consolidation or business
combination;
(4) A
liquidation or dissolution of the Company; or
(5) The
sale
of all or substantially all of the Company's assets.
(c) Severance
Payments and Benefits.
For
purposes of this Agreement, the term “Severance Payments and Benefits" shall
mean:
(1) Employee
shall receive a lump sum payment equal to:
(i)
two
(2) multiplied by the sum of Employee's highest annual Base Salary;
plus
(ii)
two
(2) multiplied by the higher of:
(a)
the
highest bonus, incentive and other compensation payments actually received
by
Employee in respect of any year within the three (3) fiscal years preceding
the
Triggering Event (or the annualized sum of bonuses, incentives and other
compensation which Employee received during the year in which the Triggering
Event occurred); or
(b)
the
highest bonus, incentive and other compensation payments the Employee was
entitled (notwithstanding the fact that the Employee agreed to a lesser amount
pursuant to Section 5 (e) above) to receive pursuant to Exhibit A in respect
of
any year within the three (3) fiscal years preceding the Triggering Event (or
the annualized sum of bonuses, incentives or other compensation which Employee
was entitled to receive pursuant to Exhibit A during the year in which the
Triggering Event occurred notwithstanding the fact that the Employee agreed
to a
lesser amount pursuant to Section 5 (e) above).
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4.
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All
other provisions of the Employment Agreement shall remain in full
force
and effect.
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IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the date first hereinabove
written.
EMPLOYER:
VFINANCE,
INC.
By:
/s/
Xxxxxxx Xxxxxxx
Authorized
Representative
EMPLOYEE:
/s/
Xxxxxxx X. Xxxxxxx
Xxxxxxx
X. Xxxxxxx
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