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EXHIBIT 10.22
NATIONAL SECURITIES CORPORATION
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into
this 15th day of October, 1996, by and between NATIONAL SECURITIES CORPORATION,
a Washington corporation (the "Company"), and XXXXXX X. XXXXXXXXX, an
individual ("Executive").
RECITALS
A. The Company desires to be assured of the association
and services of Executive for the Company.
B. Executive is willing and desires to be employed by
the Company, and the Company is willing to employ Executive, upon the terms,
covenants and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, covenants
and conditions hereinafter set forth, the parties hereto do hereby agree as
follows:
1. Employment. The Company hereby employs Executive as
Chairman and Director of Corporate Finance, subject to the supervision and
direction of the Company's Board of Directors. This Agreement supersedes an
earlier Employment Agreement, dated May 22, 1995 between the Company and
Executive.
2. Term. The term of this Agreement shall be for a
period of five (5) years commencing on the date hereof, unless terminated
earlier pursuant to Section 7 below.
3. Compensation; Reimbursement.
3.1 Base Salary. For all services rendered by Executive
under this Agreement, the Company shall pay Executive a base salary ("Base
Salary") of $24,000 per annum. The Base Salary is subject to increases from
time to time at the discretion of the Compensation of the Board of Directors of
the Company.
3.2 Brokerage Commissions. The Company shall pay
Executive 50% of the gross amount of commissions earned by the Company on
brokerage customers of Executive.
3.3 Investment Banking Fees. The Company shall pay
Executive 70% of all revenue (net of expenses associated with such revenue)
earned by the Company on investment banking activities initiated by Executive
("Banking Fees"). Additionally, Executive shall receive 80% of any warrants
issued the Company with respect to investment banking activities initiated by
Executive.
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3.4 Firm Expansion. The Company acknowledges that since
the commencement of his employment, Executive has assisted in the growth of the
Company through the acquisition of additional firms and individuals and groups
of brokers. Accordingly, the Company shall pay Executive 3% of the Company's
commissions or other revenues generated by brokers of the Company brought into
the Company by Executive, or by the Company's participation in business
transactions, as identified from time to time in Exhibit "A" appended hereto
and made a part hereof (the "Override"), as amended by the Company's Board of
Directors.
3.5 Additional Benefits. In addition to that provided in
paragraphs 3.1, 3.2, 3.3 and 3.4 above, Executive shall be entitled to all
other benefits of employment now or hereafter provided to the other executives
of the Company, its operating divisions or subsidiaries, including but not
limited to individual health insurance, disability insurance and on-premises
parking. The Company shall also provide Executive with automobile
reimbursement and life insurance coverage in amounts determined by the Board of
Directors.
3.6 Nominee for Director. For the term of this Agreement
or until Executive's employment hereunder terminates, whichever comes first,
the Company shall cause Executive (or his assignee) to be nominated as a
director of the Company.
3.7 Options. It is contemplated that from time to time
Executive shall be granted options to acquire common stock of the Company.
3.8 Continuing Obligations. All of the Company's
compensation obligations under this paragraph shall continue through the term
of this Agreement.
4. Scope of Duties.
4.1 Assignment of Duties. Executive shall have such
duties as may be assigned to him from time to time by the Company's Board of
Directors commensurate with his experience and responsibilities in the position
for which he is employed pursuant to Section 1 above. Such duties shall be
exercised subject to the control and supervision of the Board of Directors of
the Company.
4.2 Executive's Devotion of Time. Executive hereby
agrees to devote his full time, abilities and energy to the faithful
performance of the duties assigned to him and to the promotion and forwarding
of the business affairs of the Company, and not to divert any business
opportunities from the Company to himself or to any other person or business
entity. Executive shall be entitled to not less than five (5) weeks of paid
vacation and not less than two (2) weeks of paid sick leave during each fiscal
year of the Company.
4.3 Conflicting Activities. For the term of this
Agreement or until Executive's employment hereunder terminates, whichever
occurs first, Executive hereby agrees to promote and develop all business
opportunities that come to his attention relating to current or anticipated
future business of the Company, in a manner consistent with the best interest
of the Company and with his duties under this Agreement. Should Executive
discover a business opportunity that
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does not relate to the current or anticipated future business of the Company,
he shall first offer such opportunity to the Company. Should the Board of
Directors of the Company not exercise its right to pursue this business
opportunity within a reasonable period of time, not to exceed thirty (30) days,
Executive may develop the business opportunity for himself; provided, however,
that such development may in no way conflict or interfere with the duties owed
by Executive to the Company under this Agreement. Further, Executive may
develop such business opportunities only on his own time, and may not use any
service, personnel, equipment, supplies, facility, or trade secrets of the
Company in their development. As used herein, the term "business opportunity"
shall not include business opportunities involving investment in publicly
traded stocks, bonds or other securities, or other investments of a personal
nature.
5. Severance. So long as this Agreement is in effect,
and except as would be inconsistent with paragraph 7, upon termination of
Executive's employment, Executive or Executive's designees or heirs shall be
entitled to a lump sum payment of $500,000 (the "Severance Payment"); provided,
however, that, the Company shall not be obligated to pay of Executive any or
all of the Severance Payment if, after giving effect to that payment, the
Company's net capital will be less than $3,500,000.00 at the end of the broker
month during which Executive's employment was terminated. Notwithstanding any
other provision of this Agreement to the contrary, for purposes of this
paragraph 5, all compensation payable pursuant to paragraph 3 hereof shall be
accrued to the date of termination of employment.
6. Confidentiality of Trade Secrets and Other Materials.
Other than in the performance of his duties hereunder, Executive agrees not to
disclose, either during the term of his employment by the Company or at any
time thereafter, to any person, firm or corporation any information concerning
the business affairs, the trade secrets or the customer lists or similar
information of the Company. Any technique, method, process, technology or
customer compilation or list used by the Company shall be considered a "trade
secret" for the purposes of this Agreement. Notwithstanding the foregoing, the
names and other information relating to the retail brokerage customers of
Executive who have been assigned Executive's A/E number shall not be considered
as "confidential information" for purposes of this Section 6 or any other
provision of this Agreement.
7. Termination.
7.1 Bases for Termination.
(a) Executive's employment hereunder may be terminated at
any time by mutual agreement of the parties.
(b) Executive's employment hereunder shall automatically
terminate on the last day of the month in which Executive dies. If Executive
becomes permanently disabled and is unable to perform the essential duties
defined in paragraph 4 hereof (the "Duties") with or without accommodation,
then Executive's employment hereunder may be terminated. "Permanent
disability" as used herein shall mean mental or physical disability or both,
evidenced by:
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(i) a consecutive six month period of time during which
Executive is unable to perform the Duties with or without
accommodation; and
(ii) medical documentation from Executive's attending
physician or a duly licensed independent physician selected by
the Company's Board of Directors, stating that Executive is
physically and/or mentally disabled from performing the
essential Duties with or without accommodation and that the
disabling condition is permanent and will not substantially
change or improve.
Executive may terminate his or her employment hereunder by
giving the Company 60 days prior written notice, which termination shall be
effective on the 60th day following such notice.
(d) Executive's employment may not be terminated by the
Company against his or her will without a finding, by an impartial third person
or panel, of fraud, theft or defalcation.
8. Noncompete. Executive covenants and agrees that
during the term of his employment hereunder and for a period of one (1) year
thereafter (the "Noncompetition Period"), Executive shall not, directly or
indirectly recruit, solicit or otherwise induce any customer, officer or
employee of the Company to discontinue such relationship with the Company.
During the Noncompetition Period, Executive shall hold in confidence and shall
not disclose to anyone, or use or otherwise exploit for his own benefit or the
benefit of any person or entity, any confidential or proprietary information of
the Company, including, without limitation, customer and vendor lists,
financial statements and information, trade secrets or marketing arrangements
and plans, unless directed to do so by order of any court; provided, however,
that the terms of this paragraph 8 shall not restrict Executive with respect to
any Company customer who has been assigned Executive's A/E number.
9. Miscellaneous.
9.1 Transfer and Assignment. This Agreement is personal
as to Executive and shall not be assigned or transferred by Executive without
the prior written consent of the Company. This Agreement shall be binding upon
and inure to the benefit of all of the parties hereto and their respective
permitted heirs, personal representatives, successors and assigns.
9.2 Severability. Nothing contained herein shall be
construed to require the commission of any act contrary to law. Should there
by any conflict between any provisions hereof and any present or future
statute, law, ordinance, regulation, or other pronouncement having the force of
law, the latter shall prevail, but the provision of this Agreement affected
thereby shall be curtailed and limited only to the extent necessary to bring it
within the requirements of the law, and the remaining provisions of this
Agreement shall remain in full force and effect.
9.3 Governing Law. This Agreement is made under and
shall be construed pursuant to the laws of the State of Washington.
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9.4 Counterparts. This Agreement may be executed in
several counterparts and all documents so executed shall constitute one
agreement, binding on all of the parties hereto, notwithstanding that all of
the parties did not sign the original or the same counterparts.
9.5 Entire Agreement. This Agreement constitutes the
entire agreement and understanding of the parties with respect to the subject
matter hereof and supersedes all prior oral or written agreements,
arrangements, and understandings with respect thereto. No representation,
promise, inducement, statement or intention has been made by any party hereto
that is not embodied herein, and not party shall be bound by or liable for any
alleged representation, promise, inducement or statement not so set forth
herein.
9.6 Modification. This Agreement may be modified,
amended, superseded, or canceled, and any of the terms, covenants,
representations, warranties or conditions hereof may be waived, only by a
written instrument executed by the party or parties to be bound by any such
modification, amendment, supersession, cancellation, or waiver.
9.8 Attorneys' Fees and Costs. In the event of any
dispute arising out of the subject matter of this Agreement, the prevailing
party shall recover, in addition to any other damages assessed, its attorneys'
fees and court costs incurred in litigating or otherwise settling or resolving
such dispute whether or not an action is brought or prosecuted to judgment. In
construing this Agreement, none of the parties hereto shall have any term or
provision construed against such party solely by reason of such party having
drafted the same.
9.9 Wavier. The waiver by either of the parties, express
or implied, of any right under this Agreement or any failure to perform under
this Agreement by the other party, shall not constitute or be deemed as a
waiver of any other right under this Agreement, or of any other failure to
perform under this Agreement by the other party, whether of a similar or
dissimilar nature.
9.10 Cumulative Remedies. Each and all of the several
rights and remedies provided in this Agreement, or by law or in equity, shall
be cumulative, and no one of them shall be exclusive of any other right or
remedy, and the exercise of any one of such rights or remedies shall not be
deemed a waiver of, or an election to exercise, any other such right or remedy.
9.11 Headings. The section and other headings contained
in this Agreement are for reference purposes only and shall not in any way
affect the meaning and interpretation of this Agreement.
9.12 Notices. Any notice under this Agreement must be in
writing, may be telecopied, sent by express 24-hour guaranteed courier, or
hand-delivered, or may be served by depositing the same in the United States
mail, addressed to the party to be notified, postage- prepaid and registered or
certified with a return receipt requested. The addresses of the parties for
the receipt of notice shall be as follows:
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If to the Company: National Securities Corporation
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
If to Executive: Xxxxxx X. Xxxxxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
with copy to: Camhy Xxxxxxxxx & Xxxxx
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxx X. Annex, Esq.
Each notice given by registered or certified mail shall be deemed delivered and
effective on the date of delivery as shown on the return receipt, and each
notice delivered in any other manner shall be deemed to be effective as of the
time of actual delivery thereof. Each party may change its address for notice
by giving notice thereof in the manner provided above.
IN WITNESS WHEREOF, the parties hereto have caused this
Employment Agreement to be executed as of the date first set forth above.
"Executive" NATIONAL SECURITIES CORPORATION
_______________________ By:_______________________________
Xxxxxx X. Xxxxxxxxx , President
