CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of November 28,
2007 ("Agreement Date"), by and between Xxxxxx Securities, Inc., a Delaware
corporation ("Company"), having an address of 000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx,
Xxxxxx Xxxx, Xxx Xxxxxx 00000, and Xxxxxxx Xxxxxx (the "Employee"), residing at
000 Xxxxx Xxxxx, Xxxxxx Xxxxxx, XX 00000.
WITNESSESTH:
WHEREAS, the Company is a registered broker-dealer and member of the
Financial Industry Regulatory Authority ("FINRA") engaged in the business of
market making, trading, institutional agency trading, investment banking and
research; and
WHEREAS, the Company wishes to employ the Employee and the Employee is
willing to be so employed and to render services to the Company, all upon the
terms and subject to the conditions contained herein;
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the parties agree as follows:
1. EMPLOYMENT. Subject to and upon the terms and conditions contained
in this Agreement, the Company hereby agrees to employ Employee and Employee
agrees to enter the employ of the Company, for the period set forth in Paragraph
2 hereof, to render the services to the Company, its affiliates and/or
subsidiaries described in Paragraph 3 hereof.
2. TERM. Employee's employment by the Company is at the will of either
party. Employee's term of employment (the "Agreement Term") under this Agreement
shall commence on a date no later than November 20, 2007 (such date, the
"Commencement Date") and shall continue until terminated by either party for any
reason but subject to the terms and conditions set forth herein, but in no event
will Employee render any services under this Agreement to the Company in any
form whatsoever prior to the Commencement Date.
3. DUTIES AND RESPONSIBILITIES OF PARTIES.
(a) Employee shall be employed as the Company's Senior Vice
President ("SVP") of Institutional Sales, as co-Head of the Institutional Sales
Group with an individual who Employee has the sole approval of as co-head. It is
agreed that Employee shall perform his services in the Company's Jersey City,
New Jersey offices, as well as in the offices of the Company's affiliates and/or
subsidiaries in New Jersey and he will be responsible for institutional account
coverage and, at the request of the Company, for managing institutional sales
and sales trading, which duties, responsibilities and work location may only be
changed by mutual written agreement of the parties. All existing and future
institutional sales traders or other members of the Institutional Sales Group
(each, a "Subordinate", and collectively, the "Subordinates") employed by the
Company will report to the co-Heads of the Institutional Sales Group, unless
existing employees previously specified by written commitments of the firm are
prohibited from doing so.
(b) Employee shall report to the Chief Executive Officer of
the Company or any other more senior executive officers appointed by the Board
of Directors of the Company and agrees to abide by all bylaws and applicable
policies of the Company promulgated from time to time by the Board of Directors
of the Company.
(c) The Company represents that it will continue to update its
technological resources to maintain its current level of technology.
(d) The Company represents that it has, and will maintain, the
ability to trade in the overseas markets currently available to the firm.
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CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
(e) The Company agrees to implement the employment of a CSA
agreement and soft dollar person with knowledge and expertise of regulatory and
legal requirements applicable to the Institutional Sales Group business as
necessitated by the business needs of the Institutional Sales Group as
determined by the Company.
4. EXCLUSIVE SERVICES AND BEST EFFORTS. Employee shall devote all of
his working time, attention, best efforts and ability during regular business
hours exclusively to the service of the Company, its affiliates and subsidiaries
during the term of this Agreement. Nothing shall preclude Employee from (i)
engaging in charitable activities and community affairs or (ii) managing his
personal investments and affairs; provided, however, that such activities do not
materially interfere with the proper performance of his duties and
responsibilities as an employee of the Company.
5.1. COMPENSATION AND EXPENSES.
(a) Subject to the limitations set forth in this Agreement, Company shall pay
out to the Employee a commission that is *** of the "Net Commissions" generated
by Employee (the "Employee's Commission").
(b) For purposes of this Agreement, the term "Net Commissions" shall mean gross
commissions that are actually received by the Company and derived directly from
the Employee's total purchase and sale of securities from transactions on
accounts that are covered by the Employee for the firm, less any and all
expenses related to the fees incurred in connection with the purchase or sale
transactions effectuated by Employee, and any associated trading system or other
costs including,
(i) all actual, third-party transaction costs
including execution, brokerage fees, give-up, clearing and/or flip
charges, and processing ticket charges;
(ii) all applicable, direct internal transaction
costs including execution, brokerage fees, give-up, clearing and/or
flip charges, and processing ticket charges;
(iii) all commission rebates relating to equity
business payable to introducing brokers or account executives not
employed by the Company, if any, which are approved by the Company;
(iv) all bad debts of any Employee customer,
including uncollectible commissions;
(v) all errors relating to Employee's customers'
business;
(vi) reasonable travel, entertainment and meal
expenses consistent with the policy determined by Company for such
matters, so long as approved by Company management prior to
reimbursement;
(vii) expenses incurred directly by Employee related
to recruitment, promotion or marketing by or of Employee, in each case
as approved by Company management;
(c) Notwithstanding anything to the contrary contained herein,
and for purposes of clarity, in no event shall Company be required to pay
Employee's Commission for those sales whose fees are not actually received by
Company.
(d) Upon his entering into this Agreement, the Company shall grant to
Employee *** shares of "restricted stock". For so long as Employee shall remain
in the employ of Company, the "restricted stock" shall vest equally on an annual
basis over a four (4) year period (the "Vesting Period") from the Commencement
Date, and the initial *** shares shall begin to vest on the first anniversary of
the Commencement Date. All vested stock is not forfeited by the Employee in the
event his employment with the Company ends for any reason. In the event of a
Change of Control, all previously unvested restricted stock granted by this
Section 5.1(c) shall automatically vest with Employee, regardless of the date.
-2-
CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
For the purposes herein, "Change of Control" shall mean any of the following:
(i) direct or indirect acquisition by any person (as the term "person" is used
in Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended) of more than fifty percent (51%) of the voting capital stock of the
Company, in a single or series of related transactions; (ii) the occurrence of a
sale of all or substantially all of the assets of the Company to an entity which
is not a direct or indirect subsidiary of the Company; (iii) the occurrence of a
reorganization, merger, consolidation or similar transaction involving the
Company, unless (A) the shareholders of the Company immediately prior to the
consummation of any such transaction will initially own securities representing
a majority of the voting power of the surviving or resulting corporation, and
(B) the directors of the Company immediately prior to the consummation of such
transaction will initially represent a majority of the directors of the
surviving or resulting corporation; or (iv) any other event which is at any time
irrevocably designated as "Change in Control" for purposes of this Agreement by
resolution adopted by a majority of the directors of the Employer.
(e) The Company will grant options for the purchase of common
stock of the Company at an exercise price of *** per share to the Employee in
the following amounts in the event Revenue earned by the Institutional Sales
Group reaches in the aggregate certain milestones by December 31st, 2008 (the
"Milestone Date"). The options shall be in the same form and under the same
terms as described under the Company's Stock Option Plan. For the purpose of
this Agreement, "Revenue" is defined as the total commissions earned by the
Company on the purchase and sale of securities from transactions on accounts
that are covered by the Institutional Sales Group for the firm. In addition, all
stock grants under this section vest immediately upon the Milestone Date, and
are not forfeited by the Employee in the event his employment with the Company
ends for any reason after the Milestone Date.
REVENUE MILESTONE OPTION GRANTS
----------------- -------------
*** ***
*** ***
*** ***
(f) The Company agrees to pay Employee a draw against the
Employee's Commissions during the first two months following the Commencement
Date in the amount of *** per month. Employee agrees to pay back any deficiency
in the draw beginning in the third month of his employment.
(g) Employee agrees that the Company may, at any time, demand
and receive payment from the Employee for or deduct from any Employee's
Commission payable to Employee under this Agreement, any taxes, withholding
payments, license fees, registration fees, ticket charges, bonding fees, or such
other expenses, fees or costs payable or chargeable to the Employee which have
been paid, accrued or otherwise incurred by the Company on behalf of the
Employee in connection with the Employee's duties under this Agreement.
(h). With respect to Subordinates, Subordinates shall be
compensated by the Institutional Sales Group in an amount ***
5.2 FORGIVABLE LOAN.
(a) The Employee hereby acknowledges the future receipt of ***
(the "Loan") to be loaned to Employee by the Company, which will be distributed
in the following manner: *** shall be paid to the attorneys for the Employee
upon the Company's receipt of Employee's acknowledgement of the Company's offer
of employment. Such funds shall be placed in an attorney trust account and not
released until the Employee reports to work on the Commencement Date and
executes this Agreement, as verified in writing by the Company. If the Employee
does not report to work by the Commencement Date, such funds shall be returned
to the Company. If and only if Employee reports to work by the Commencement Date
and executes this Agreement, the Company shall wire directly to the Employee on
the Commencement Date an ***, and the remaining *** no later than the one month
anniversary of the Commencement Date. The Loan shall accrue interest at the
annual rate of *** from the Commencement Date, up to and including the two year
anniversary of the Commencement Date (the "Due Date"), and if payment of the
-3-
CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
Loan is accelerated during such period, the total amount due under the Loan
shall be payable on a demand basis. The Loan shall be evidenced by a Promissory
Note executed and delivered on or after the date hereof, the form of which is
annexed hereto as Exhibit "A", and the terms of which incorporated herein by
this reference.
Employee agrees and acknowledges that the Company may take out life
insurance and disability policies upon the Employee, with the Company as sole
beneficiary, in the amount of the Loan and shall keep such policies in force
until the Loan is repaid in full.
(b) The Loan will be forgiven as follows:
i. In the event the Employee is employed as of the first
anniversary of the Commencement Date (the "First
Anniversary"), the Company will forgive *** of the Loan and
the accrued interest on the forgiven debt. Once forgiven, the
Company cannot seek repayment of the forgiven debt that is the
subject of this paragraph.
ii In the event the Employee is employed as of the second
anniversary of the Commencement Date (the "Second
Anniversary"), the Company will forgive the full balance of
the Loan, including all accrued interest and will issue to the
Employee a written release confirming the cancellation and
forgiveness of the debt and the related document attached as
Exhibit A.
iii In the event that the Company terminates the Employee's
employment without "Good Cause" (as defined herein) prior to
the Due Date, the Company agrees to cancel and forgive the
Loan and any accrued interest and as such the Employee is not
obligated to repay the Loan and any accrued interest, and will
issue to the Employee a written release confirming the
cancellation and forgiveness of the debt and the related
document attached as Exhibit A. The termination of Employee's
employment will be deemed to have been for "Good Cause" as
defined below in paragraph 13.
iv. In the event that the Employee terminates the Agreement
with "Good Reason" (as defined herein) prior to the Due Date,
the Company agrees to cancel and forgive the Loan and any
accrued interest and as such the Employee is not obligated to
repay the Loan and any accrued interest, and will issue to the
Employee a written release confirming the cancellation and
forgiveness of the debt and the related document attached as
Exhibit A. "Good Reason" is defined as any of the following
events which are not cured by Company within thirty (30) days
after receipt of written notice of termination from Employee
based on: (1) a significant change in the nature or scope of
Employee's authorities, powers, functions or duties, or a
reduction in compensation; (2) a determination by a court that
there has occurred a material breach by the Company of any
provision of this Agreement which is not remedied within 30
days after receipt by the Company of written notice from
Employee; or (3) a Change in Control as defined in Section
5.1(d).
v. Upon Employee's termination of this Agreement other than
for Good Reason prior to the First Anniversary Date of the
Commencement Date, the Loan shall become immediately due and
payable. Upon Employee's termination of this Agreement other
than for Good Reason after the First Anniversary but prior to
the Second Anniversary, the remaining balance of the Loan not
forgiven shall become immediately due and payable, in each
case without further action from the Company on the date
employment ceases. In the event that the Company is forced to
expend legal or other fees in its effort to the collect the
amount due and payable under the Loan and this paragraph
5.2(b), Employee agrees that such costs shall be borne and
payable exclusively by Employee, and that such costs shall
begin to accrue interest at the rate of 8% from the date
Employee ceases to be in the employ of Company.
-4-
CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
6. BUSINESS EXPENSES. Subject to 5.1(b), the Employee shall be
reimbursed by the Company for those business expenses incurred by him, which are
reasonable and necessary for the Employee to perform his duties under this
Agreement, upon submission of such accounts and records as may reasonably be
required by the policies established from time to time by the Company.
7. CONFIDENTIALITY. Employee shall keep confidential, except as the
Company may otherwise consent in writing, and not disclose or make any use of
except for the benefit of the Company and in no way harmful to the Company, at
any time either during the term of this Agreement or thereafter, any trade
secrets, knowledge, data, intellectual property or other information of the
Company relating to the Company and its businesses, including, without
limitation, information regarding cost of new accounts, customer lists, customer
activity rates and other customer information, technology (hardware and
software), discoveries, processes, algorithms, mask works, strategies, products,
processes, know how, technical data, designs, formulas, test data, business
plans, marketing plans and advertising results or other subject matter
pertaining to any business of the Company or any of its clients, customers,
consultants, licensees or affiliates which Employee may produce, obtain or
otherwise learn of during the course of Employee's performance of services
(collectively "CONFIDENTIAL Information"). Employee shall not deliver,
reproduce, or in any way allow any such Confidential Information to be delivered
to or used by any third parties without the specific direction or consent of a
duly authorized representative of the Company, except in connection with the
discharge of his duties thereunder. The terms of this paragraph shall survive
termination of this Agreement. Notwithstanding anything to the contrary herein,
Employee shall not have any obligation to keep confidential any information
that: (a) is required by law or regulation to be disclosed by Employee, or (b)
is required to be disclosed by Employee to any government agency or person to
whom disclosure is required by judicial or administrative process or (c) any
client information of clients that Employee has had contact while in the Employ
of the Company, or (d) any client information or clients that Employee had
contact with prior to becoming an Employee of the Company.
7.1 RESTRICTION DURING EMPLOYMENT. Employee agrees that at no time
during its employment with the Company will Employee (i) in any way induce or
attempt to induce any employee or registered representative of the Company (or
of any affiliate of the Company) or any person, firm or corporation having any
contract with the Company (or any affiliate of the Company), either to leave
such employment or association with the Company or to breach or terminate its
contract with the Company (or with any affiliate of the Company); (ii) in any
way induce or attempt to induce any employee or registered representative of the
Company (or any affiliate of the Company) or any person, firm or corporation
having a contract with the Company (or any affiliate of the Company) to become
employed by, associated with or enter into a contract or agreement with another
stock brokerage firm or other entity; and (iii) in any way induce or attempt to
induce any account, customer and client of the Company from terminating their
relationship with the Company or becoming an account, customer and client of
another stock brokerage or trading firm or similar entity.
7.2 RESTRICTIONS AFTER EMPLOYMENT.
(a) Employee agrees that for a period of one (1) year after the
termination of his employment with the Company, the Employee will not induce or
attempt to induce any employee or registered representative of the Company or
any other person, firm or corporation having any contract or association with
the Company either from leaving such employment or association with the Company
or to breach or terminate his or its contract with the Company or in any way
induce or attempt to induce any employee or registered representative of the
Company (or any affiliate of the Company), except the Co-Head of the
Institutional Sales Group, or any person, firm or corporation having a contract
with the Company (or any affiliate of the Company) to become employed by,
associated with or enter into a contract or agreement with another stock
brokerage or trading firm or other similar entity
(b) Employee agrees that for a period of thirty (30) days
after the termination of his employment with the Company for whatever reason,
the Employee will not engage, as an owner, partner, shareholder, officer,
director, employee, consultant, advisor, agent or representative, in any
business which competes with the Company or any of its affiliates in trading or
executing in equity markets, including but not limited to equity-related
products.
-5-
CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
8. RETURN OF CONFIDENTIAL MATERIAL. Upon the completion or other
termination of Employee's services for the Company, Employee shall promptly
surrender and deliver to the Company all records, materials, equipment,
drawings, documents, notes and books and data of any nature pertaining to any
invention, trade secret or Confidential Information of the Company or to
Employee's services, and Employee will not take with him any description
containing or pertaining to any Confidential Information, knowledge or data of
the Company which Employee may produce or obtain during the course of his
services. The terms of this paragraph shall survive termination of this
Agreement.
9. OTHER OBLIGATIONS; CERTAIN REPRESENTATIONS.
(a) Employee acknowledges that the Company from time to time
may have agreements with other persons which impose obligations or restrictions
on the Company made during the course of work there under or regarding the
confidential nature of such work. Employee will be bound by all such obligations
and restrictions and will take all action necessary to discharge the obligations
of the Company there under.
(b) All of Employee's obligations under this Agreement shall
be subject to any applicable agreements with, and policies issued by the Company
to which Employee is subject, that are generally applicable to the five highest
paid executives of the Company.
(c) Employee represents that he has the legal capacity to
enter into this Agreement, and as of the Commencement Date he is under no
employment contract, non-competition agreement, or any other obligation that
would violate or be in conflict with the terms and conditions of this Agreement
or encumber his performance of duties assigned to him by the Company other than
potential conflicts arising from Employee's previous relationship with eTrade
Financial, Inc., or any successor, assignee, or purchaser of any rights of
eTrade Financial, Inc. (the "Former Employer"). Employee further represents and
warrants that he has not signed or committed to any employment or consultant
duties or other obligations that would divert his full attention or conflict
with from the duties assigned to him by the Company.
(d) Employee holds all licenses required by FINRA, all
applicable self regulatory organizations, and all federal and state securities
and other laws necessary to perform services to the Company as contemplated by
this Agreement. All such licenses are in full force and effect, and Employee
covenants to take such action as is necessary to maintain all such licenses in
full force and effect during the term of this Agreement.
(e) If during the first two-years of this Agreement while the
Loan is still outstanding the Employee is enjoined from working for the Company
by a court of law, the Employee agrees to: (i) return to work to the Company
whenever the restraints lapse or are removed or (ii) at the Company's sole
discretion, continue to remain in the employ of the Company performing services
not prevented from being provided by the Employee under the restraints.
(f) If the Employee is enjoined from working for the Company
by a court of law and the Employee decides, in his sole discretion, not to
return to work for the Company after the restraints lapse or are removed, in
such event the Company may demand the Loan to be repaid by the Employee and the
Employee agrees to repay the Loan, interest free, as follows: the Employee will
be entitled to keep a prorated portion of the Loan for the period of time the
Employee worked during the two-year period accrued through the latest month-end
prior to the Employee's last day of work and pay back the balance. For example,
if the Employee last worked 45 days into the two-year period, the Employee would
be entitled to keep two-months/24-months multiplied by *** of the Loan, or ***,
and repay the balance of ***. For the avoidance of doubt, any time during which
the Employee was restrained from working for the Company in the role of either
SVP of Institutional Sales, Co-Head of the Institutional Sales Group, or in any
role generally associated with such positions, and the Company elects not to
-6-
CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
have the Employee perform any other services for the Company, such time shall
not be considered time worked for the previous equation herein. If the Employee
refuses to tender said Loan repayment within 60 days of the demand from Company,
Employee agrees to reimburse Company for any reasonable costs of collection of
such debt, including reasonable attorneys' fees and to pay interest on the debt
at an annual rate of 5% calculated from the date demand is made by the Company.
Notwithstanding the foregoing, if the Employee reports to work after the
restraints lapse and the Company refuses to continue Employee's employment or
re-employment, the Company cannot demand repayment of the Loan and the Employee
is not obligated in any manner to pay back the Loan, and the Employee will also
immediately vest in all "restricted stock" under Section 5.1(d).
(g) ADJUSTMENT FOR INJUNCTION OR OTHER RESTRAINT.
If the Employee is enjoined or otherwise restrained from performing
his duties as SVP of Institutional Sales and/or Co-Head of Institutional Sales
for a certain time period ("Time of Restraint"), the Company may elect during
such Time of Restraint, in its sole option, to either (i) request that Employee
perform other duties for the Company, or (ii) perform no duties for the Company
until such restraints lapse. Only in the event that the Company elects to have
Employee perform no duties for the Company during the Time of Restraint, each of
the First Anniversary, Second Anniversary, Due Date and Milestone Dates
(collectively, the "Defined Dates") as defined in this Agreement, as well as any
other dates based upon any of the Defined Dates, shall be extended by an amount
of time equal to the Time of Restraint.
10. TRADE SECRETS OF OTHERS. Employee will not enter into any
agreement, either written or oral, which is in conflict with this Agreement.
11. EMPLOYEE BENEFITS. During the Agreement Term, the Company agrees to
include Employee in its group medical and hospital plan. Employee understands
and acknowledges that Employee will be responsible for monthly payments for such
insurance at the rate commensurate with other employees of Company. Employee
hereby authorizes the Company to deduct the fees accrued for the insurance
provided to Employee under this paragraph on a monthly basis from the Employee's
share of net commissions prior to Company's distribution of the same. Company
reserves the right to (i) cancel Employee's insurance in the event Employee's
share of net commissions is insufficient to cover the monthly insurance expense
hereunder, or (ii) require Employee to make such monthly payments in lieu of
Company's deduction of the same from Employee's share of net commissions. The
Company may withhold from any benefits payable to the Employee all federal,
state, local and other taxes and amounts as shall be permitted or required
pursuant to law, rule or regulation.
12. DEATH AND DISABILITY.
(a) The Agreement Term shall terminate on the date of
Employee's death, in which event the Employee's Commission and reimbursable
expenses and benefits, if any, owing to Employee through the date of Employee's
death shall be paid to his estate. Employee's estate will not be entitled to any
other compensation upon termination of this Agreement pursuant to this Paragraph
12(a). For purposes of clarity, and notwithstanding anything contrary herein,
should the Employee's death occur prior to the expiring of the Vesting Period
set forth in paragraph 5.1 (d) herein the Company shall have no obligation to
continue to issue Employee's estate stock, subsequent to the date of Employee's
death. Furthermore, should Employee's death occur prior to the Due Dates as set
forth in paragraph 5.2 herein, the Company shall forgive and cancel the Loan and
any accrued interest, and may not seek to recover the same as a collection from
Employee's estate.
(b) If, during the Agreement Term, in the opinion of a duly
licensed physician acceptable to the Employee and the Company, the Employee
because of physical or mental illness or incapacity shall become substantially
unable to perform the duties and services required of him under this Agreement
for a period of thirty (30) or more consecutive days or an aggregate of thirty
(30) days in any twelve-month period (the "Disability"), the Company may, upon
at least thirty (30) days' prior written notice (given at any time after the
expiration of such period) to the Employee of its intentions to do so, terminate
this Agreement as of such date as may be set forth in the notice. In case of
such termination, the Employee shall be entitled to receive any remaining
Employee's Commission and reimbursable expenses and benefits, if any, owing to
the Employee through the date of termination. Furthermore, should Employee's
disability occur prior to the Due Dates as set forth in paragraph 5.2 herein,
the Company shall forgive and cancel the Loan and any accrued interest, and may
not seek to recover the same as a collection from Employee or his estate.
Employee will not be entitled to any other compensation upon termination of this
Agreement pursuant to this Paragraph 12(b) and the vesting of the restricted
stock granted under 5.1(d) shall cease upon termination of this Agreement for
Disability.
-7-
CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
13. GOOD CAUSE.
(a) As used herein, the term "Good Cause" shall mean:
(i) a material breach by Employee of the terms of
this Agreement or the Company's written policies delivered to him, including
those with respect to xxxxxxx xxxxxxx and other trading activities, which
material breach remains uncured after twenty (20) days following Employee's
receipt from Company of written notice specifying such breach or default;
(ii) gross negligence or willful misconduct by
Employee or the material breach of a fiduciary duty of Employee to the Company
in the performance of his duties hereunder;
(iii) the commission by Employee of an act of fraud,
embezzlement or any other crime by Employee in the performance of his duties as
an employee hereunder as determined by a court that has jurisdiction over such
matters;
(iv) conviction of Employee of a felony or any other
crime that could materially interfere with the performance of Employee's duties
hereunder or material damages the reputation of the Company;
(v) failure to hold and maintain in full force and
effect during the term of this Agreement, all licenses required by FINRA, all
applicable self regulatory organizations ("SRO"), and all federal and state
securities and other laws necessary to perform services to the Company as
contemplated by this Agreement.
(vi) except as may have been disclosed in writing to
the Company, Employee's failure to disclose to Company prior or existing
customer complaints, arbitrations, legal proceedings, or regulatory,
administrative, civil or criminal matters threatened or pending, or any other
matter which may adversely affect the employment of the Employee by the Company,
such as a violation of any rules promulgated by the NASD or another SRO, or any
other reportable event that should be disclosed by Employee on Form U-4..
(vii) failure to promptly notify the Company if (i)
Employee becomes a party to any inquiry, investigation, litigation, legal
proceeding or arbitration, (ii) any award or judgment is entered against
Employee; (iii) Employee's registration or license to sell securities is
refused, suspended, threatened or revoked by the SEC, FINRA or any SRO; (iv)
Employee becomes subject to a proceeding to effectuate the foregoing; (v)
Employee is enjoined, temporarily or otherwise, from selling or dealing in
securities; or (vi) Employee is arrested, summoned, arraigned, or indicted in
connection with a criminal offense.
(b) As used herein, the term "Good Cause" shall NOT mean any
action or threatened action against either the Company or the Employee, or both,
by the Former Employer of Employee to restrain or enjoin Employee's employment
with the Company or the Company's business, in whole or in part.
(c) Upon Employee's termination for Good Cause prior to the
First Anniversary of this Agreement, the Loan, shall become immediate due and
payable pursuant to the terms described in paragraph 5.2 hereunder. Upon
Employee's termination for Good Cause after the First Anniversary but prior to
the Second Anniversary, the remaining balance of the Loan not forgiven shall
become immediate due and payable pursuant to the terms described in paragraph
5.2 hereunder
14. REMEDY. It is mutually understood and agreed that Employee's
services are special, unique, unusual, extraordinary and of an intellectual
character giving them a peculiar value, the loss of which cannot be reasonably
or adequately compensated in damages or in an action at law. Accordingly, in the
event of any breach of this Agreement by Employee, the Company shall be entitled
to equitable relief by way of injunction or otherwise in addition to damages the
Company may be entitled to recover. In addition, the Company shall be entitled
to reimbursement from Employee, upon request, of any and all reasonable
attorneys' fees and expenses incurred by it in enforcing any term or provision
of this Agreement.
-8-
CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
15. NOTICES. All notices given hereunder shall be in writing and shall
be deemed effectively given when mailed, if sent by registered or certified
mail, return receipt requested, address to Employee at his address set forth on
the first page of this Agreement and to the Company at its address set forth on
the first page of this Agreement, Attention: XXXXX XXXXXXXXXX, with a copy to
Ellenoff Xxxxxxxx & Schole, LLP, 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxx Xxxxxxxx, Esq., or at such address as such party
shall have designated by a notice given in accordance with this Paragraph 15.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding of the parties with respect to its subject matter and no change,
alteration or modification hereof may be made except in writing signed by the
parties hereto. Any prior or other agreements, promises, negotiations,
understandings or representations not expressly set forth in this Agreement are
of no force or effect.
17. SEVERABILITY. If any provision of this Agreement shall be
unenforceable under any applicable law, then notwithstanding such
unenforceability, the remainder of this Agreement shall continue in full force
and effect.
18. AMENDMENTS, MODIFICATIONS, XXXXXXX.Xx amendment, modification or
waiver of any provisions of this Agreement shall be effective unless the same
shall be in writing and signed by each of the parties hereto, and then such
waiver or consent shall be effective only in specific instances and for the
specific purpose for which given.
19. ASSIGNMENT. Neither this Agreement, nor any of Employee's rights,
powers, duties or obligations hereunder, may be assigned by Employee. This
Agreement shall be binding upon and inure to the benefit of Employee and his
heirs and legal representatives and the Company and its successors and assigns.
Successors of the Company shall include, without limitation, any corporation or
corporations acquiring, directly or indirectly, all or substantially all of the
assets of the Company, whether by merger, acquisition, consolidation, purchase
or otherwise, and such successor shall thereafter be deemed "the Company" for
purposes hereof.
20. APPLICABLE LAW. This Agreement shall be deemed to have been made,
drafted, negotiated and the transactions contemplated hereby consummated and
fully performed in the State of New York and shall be governed by and construed
in accordance with the laws of the State of New York , without regard to the
conflicts of law rules thereof.
21. ARBITRATION.
(a) The parties agree that any and all claims or disputes
arising under this Agreement, as to which they may be adverse parties, will be
resolved by arbitration before FINRA and that with respect to this Agreement, a
party may seek injunctive relief and ancillary damages before FINRA. Each party
irrevocably consents to subject matter and personal jurisdiction before FINRA.
The parties shall restrict themselves to claims for compensatory damages and no
claims shall be made by any party for punitive or similar damages. The parties
agree that any award or decision by FINRA shall be final and binding upon the
parties and a judgment may be entered in a court of competent jurisdiction upon
such award or decision. The parties agree that the location of any arbitration
or legal proceedings hereunder shall be the City of New York, State of New York.
(b) The parties agree that in the event that there is a
threatened breach or breach of any of the covenants, agreements and
representations contained in this Agreement, the Company will suffer immediate
and irreparable harm and money damages and as a result thereof, the Company
shall have the right to seek injunctive relief before FINRA or through the
judicial process in addition to any and all rights and remedies at law or equity
it may have. In any such action or proceeding, the Company shall be entitled to
reimbursement for all legal fees it may incur. The parties further agree that
the Company shall not be required to post any bond with regards to it seeking
any equitable or legal relief hereunder.
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CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
22. FULL UNDERSTANDING. Employee represents and agrees that he fully
understands his right to discuss all aspects of this Agreement with his private
attorney, that to the extent, if any that he desired, he availed himself of this
right, that he has carefully read and fully understands all provisions of this
Agreement, that he is competent to execute this Agreement, that his agreement to
execute this Agreement has not been obtained by any duress and that he freely
and voluntarily enters into it, and that he has read this document in its
entirety and fully understands the meaning, intent and consequences of this
document, which is that it constitutes and agreement of employment.
23. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
XXXXXX SECURITIES, INC.
By: /S/ XXXXX XXXX
--------------
Name: Xxxxx Xxxx
Title: President
EMPLOYEE
/S/ XXXXXXX XXXXXX
------------------
Name: Xxxxxxx Xxxxxx
-11-
CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
PROMISSORY NOTE
XXXX XXXXXXXX., an individual residing 00 Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx
00000. ("Debtor"), promises to pay to XXXXXX SECURITIES, INC., a Delaware
corporation, having an address of 000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxxxxx
Xxxx, Xxx Xxxxxx 00000, hereinafter referred to as "Creditor", the sum of ***
which represents a forgivable loan owed by the Debtor to the Creditor under the
employment agreement between the Debtor and Creditor dated November 28, 2007
(the "Employment Agreement"), and interest at the annual rate of *** (the
"Loan") in the event the Loan becomes due under the terms of the Employment
Agreement, which is fully adopted and incorporated herein.
Payment shall be made to the order of Creditor at the address of
Creditor set forth above, or at such other place as Creditor or any subsequent
holder of this Note may designate when the Loan becomes due, unless forgiven
under the terms of the Employment Agreement. Debtor and Creditor further agree
as follows:
1) It is the desire and intent of the parties that the terms,
provisions, covenants and remedies contained in this Note shall be enforceable
to the fullest extent permitted by law. If any term, provision, covenant or
remedy of this Note shall, to any extent, be construed to be invalid or
unenforceable in whole or in part, then such term, provision, covenant or remedy
shall be construed in a manner so as to permit its enforceability under the
applicable law to the fullest extent permitted by law. In any case, the
remaining provisions of this Note or the application thereof, other than those
to which they have been held invalid or unenforceable, shall remain in full
force and effect.
2) Should any provision of this Note require interpretation or
construction, it is agreed by the parties that the entity interpreting or
construing this Note shall not apply a presumption that the provisions hereof
shall be more strictly construed against one party by reason of the rule of
construction that a document is to be construed more strictly against the party
who prepared the Note, it being agreed that both parties (by their respective
attorneys) have participated in the preparation of all the provisions of this
Note.
3) The laws of the State of New York govern this Note and the validity
and performance thereof.
4) This Note and the Employment Agreement embodies the entire
understanding between the parties hereto with respect to the subject matter
hereof and may not be used as evidence of wrongdoing or as an admission of guilt
by either party in any subsequent legal action.
5) This Note may be changed, waived, discharged or terminated only by
an instrument in writing signed by the party against whom enforcement of any
change, waiver, discharge or termination is to be sought. No waiver of any term
or provision of this Note will be deemed a waiver of any subsequent breach of
such term or provision, or the breach of any other term or provision of this
Note. Failure of any party to claim default of all or any part of this Note by
the other party, or failure to enforce all or any of its rights hereunder, will
not be construed as a waiver of any subsequent claims or rights or as novation
or modification in any way of this Note.
6) This Note and any rights herein granted are personal to Creditor,
and any assignment (including a merger, sale of majority stock interest or
transfer of control of Debtor) by Debtor, or other encumbrance, is void (or
shall be deemed to be ineffective in transferring any rights pursuant to this
Note) without Creditor's prior written consent.
7) Creditor has the right to assign the Note.
8) Debtor and any other person who has obligations under this Note
waives the rights of presentment and notice of dishonor. "Presentiment" means
the right to require the Creditor to demand payment of amount due. "Notice of
Dishonor" means the right to require the Creditor to give notice to other
persons that amounts have not been paid.
9) The Debtor represents that he is duly authorized to enter into this
Note.
/S/ XXXXXXX XXXXXX
------------------
Xxxxxxx Xxxxxx
Dated: November 28, 2007 Notary: /S/ XXXXXXX X. XXXXXXXX
-----------------------
-12-
