EXHIBIT 10.14
CONFIDENTIAL
August 22, 2001
Xx. Xxxxxxx Xxxxx
000 Xxxxxxxxxx Xxxx
Xxx Xxxxxx, XX 00000
Dear Xxxx:
This letter (the "Agreement ") confirms your election to resign from
employment with SoundView Technology Group, Inc. (the "Company") effective
September 14, 2001. We express our gratitude for your services and wish you
happiness and success in your future endeavors. Our mutual understanding and
agreement with respect to the transition of your duties as President of the
Company and your separation from employment is as follows:
1. You hereby confirm that your employment with the Company and its
subsidiaries will end effective at the close of business on September 14, 2001
(the "Separation Date"). Your resignation as President of the Company and each
of its subsidiaries is effective as of the Separation Date. You will continue to
serve as a director of the Company for either the remainder of your elected term
or until you voluntarily resign as a Director, but this Agreement reflects your
resignation from your position as a director of the Company's subsidiaries,
effective as of the Separation Date.
2. If you have not revoked this Agreement within the time period set
forth in Section 14, your total and final compensation, payments and benefits
from the Company for your employment therewith (including payment for accrued
vacation, severance, etc.) shall be as follows (in each case less applicable
statutory deductions and withholdings):
(a) You have received your regular base salary through August
31, 2001, and you will be reimbursed for expenses in accordance with Company
policy.
(b) Within three days after the Effective Date (as defined
below), you will receive lump sum separation payments in the amounts of $283,333
(equal to current salary through January 31, 2003) and $1,100,000 (guaranteed
bonus as of December 31, 2002).
(c) Your stock options shall be treated as follows:
(i) all non-qualified and incentive stock options
held by you by reason of the merger between Wit and SoundView, as shown on
Schedule 1 attached to this Agreement, shall be deemed fully vested as of the
next business day following the expiration of the revocation period set forth
below in Section 14 of this Agreement (the "Effective Date");
(ii) 87,500 of the $9.00 incentive stock options
granted to you on or about July 24, 2000 shall be deemed fully vested as of
the Effective Date;
(iii) 437,500 of the $5.00 incentive stock options
granted to you on or about January 24, 2001 shall be deemed fully vested as of
the Effective Date.
For all of the stock options described above in this Section
3(c), you shall have one (1) year from the date of the Effective Date within
which to exercise any portion or all of such options. You shall be entitled to
exercise such options as provided in your stock option grant agreement, and as
available to Company employees generally from time to time (such as, at present,
cashless exercise through an E*Trade OptionsLink account).
You agree that two hundred sixty-two thousand five hundred
(262,500) shares of your $9.00 option grant dated July 24, 2000 and five hundred
sixty-two thousand five hundred (562,500) of your $5.00 option grant dated
January 24, 2001 shall remain unvested and shall be deemed cancelled as of the
Effective Date of this Agreement.
(d) You will continue to actively participate in all the
Company's benefit plans and programs until through the Separation Date, after
which time you will cease to be a participant thereunder in accordance with the
terms thereof. You retain your right to benefits you have earned and are
entitled to under specific terms of these plans through the Separation Date, and
you may have conversion privileges under some of these plans. Specific
information concerning these plans and your entitlements thereunder will be
forwarded to you separately.
(e) You and your immediate family are entitled to continue to
be covered under the Company's group medical insurance program for a period of
18 months from the Separation Date (or such longer period as may be required by
law) or until you experience a "COBRA" disqualifying event" (such as becoming
covered by any other group health plan), whichever occurs first. This continued
coverage shall be paid for by you. Specific information on this program will be
sent to you separately. Your coverage is governed by and subject to adjustment
in accordance with the terms of the documents governing the program.
(f) As of the Effective Date, the Company agrees to remove all
restrictions from and vest you completely in the 14,336 shares of Company common
stock held in your name in the Retention Pool described in Section 5.7 of the
Merger Agreement between Wit and SoundView. Within three (3) business days of
the Effective Date, the Company agrees to instruct its transfer agent to provide
you with a stock certificate evidencing your unrestricted and unencumbered
ownership of said 14,336 shares of Company stock.
3. Other than as set forth herein, you will not receive any
compensation, payments or benefits of any kind from the Company or Releasees (as
that term is defined below), and you expressly acknowledge and agree that you
are not entitled to and will not receive any additional compensation, payments
or benefits of any kind from the Company or Releasees, and that no
representations or promises have been made to you to the contrary.
4. You understand and agree that you are receiving compensation,
payments and/or benefits under this Agreement that are in excess of those to
which you are now or in the future may be entitled from the Company or
Releasees, and that such compensation, payments and benefits are being provided
to you in consideration for your acceptance and execution of, and in reliance
upon your representations in this Agreement, and you acknowledge that such
consideration is adequate and satisfactory to you.
5. In exchange for the compensation, payments, benefits and other
consideration provided to you pursuant to this Agreement, you agree as follows:
(a) You agree to accept the compensation, payments, benefits
and other consideration provided for in this Agreement in full resolution and
satisfaction of, and hereby IRREVOCABLY AND UNCONDITIONALLY RELEASE, REMISE AND
FOREVER DISCHARGE the Company and Releasees
from any and all agreements, promises, rights, liabilities, claims and demands
of any kind whatsoever, in law or equity, whether known or unknown, asserted or
unasserted, fixed or contingent, apparent or concealed, which you, your heirs,
executors, administrators, successors or assigns ever had, now have or hereafter
can, shall or may have for, upon, or by reason of any matter, cause or thing
whatsoever existing, accruing, arising or occurring at any time on or prior to
the date you execute this Agreement, including, without limitation, any and all
rights and claims arising out of or relating to your employment or separation
from employment with the Company, and any and all contract claims, benefit
claims, tort claims, fraud claims, claims for bonuses, defamation, disparagement
and other personal injury claims, claims under any federal, state or municipal
wage payment, discrimination or fair employment practices law, statute or
regulation and claims for costs, expenses and attorneys' fees with respect
thereto, except that the Company's obligations under this Agreement shall
continue in full force and effect in accordance with their terms. You further
agree that this Agreement shall act as a complete bar to any claim, demand or
action of any kind, whatsoever which could be brought by you against the Company
and Releasees, except for claims based on this Agreement, or the Employee
Agreement or the Indemnification Agreement as defined in Section 12 below. THIS
RELEASE AND WAIVER INCLUDES, WITHOUT LIMITATION, ANY AND ALL RIGHTS AND CLAIMS
UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, THE CIVIL RIGHTS
ACT OF 1991, THE CIVIL RIGHTS ACT OF 1866 (42 U.S.C. SS. 1981), THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT, AS AMENDED, THE AMERICANS WITH DISABILITIES ACT,
THE AGE DISCRIMINATION IN EMPLOYMENT ACT, THE FAIR LABOR STANDARDS ACT, THE
FAMILY AND MEDICAL LEAVE ACT, THE NEW YORK HUMAN RIGHTS LAW, AND ALL OTHER
FEDERAL, STATE OR LOCAL STATUTES, ORDINANCES, REGULATIONS OR CONSTITUTIONAL
PROVISIONS.
(b) For purposes of this Agreement, the term "the Company and
Releasees" includes the Company and their past, present and future direct and
indirect parents, subsidiaries, affiliates, divisions, predecessors, successors,
and assigns, and their respective past, present and future stockholders,
officers, directors, representatives, agents and employees, in their official
capacities, and all other related individuals and entities, jointly and
individually, and this Agreement shall inure to the benefit of and shall be
binding and enforceable by all such entities and individuals.
(c) It is expressly understood and agreed that this Agreement
shall act as a complete bar to any claim, demand or action of any kind
whatsoever brought by you or on your behalf against the Company and Releasees
including, without limitation, any claim, demand or action before a federal,
state or municipal court or any arbitration tribunal, except for claims, demands
or actions to enforce this Agreement, or the Employee Agreement or the
Indemnification Agreement as defined in Section 12 below.
6. In exchange for your execution of and agreement to be bound by
the terms of this Agreement, the Company agrees as follows:
(a) The Company agrees to accept your release provided in this
Agreement in full resolution and satisfaction of, and hereby IRREVOCABLY AND
UNCONDITIONALLY RELEASE, REMISE AND FOREVER DISCHARGE you, your heirs,
executors, successors and legal assigns from any and all agreements, promises,
rights, liabilities, claims and demands of any kind whatsoever, in law or
equity, whether known or unknown, asserted or unasserted, fixed or contingent,
apparent or concealed, which the Company ever had, now has or hereafter can,
shall or may have for, upon, or by reason of any matter, cause or thing
whatsoever existing, accruing, arising or occurring at any time on or prior to
the date the Company executes this Agreement, including, without limitation, any
and all rights and claims arising out of or relating to your employment, or
separation from employment with the Company, and any and all contract claims,
benefit claims, tort claims, fraud claims, claims for breach of covenants,
breach of fiduciary duty, misrepresentation, misappropriation of trade secrets,
tortious interference with business, defamation, disparagement and other
personal injury claims,
claims under any federal, state or municipal wage payment, discrimination or
fair employment practices law, statute or regulation and claims for costs,
expenses and attorneys' fees with respect thereto, except that your obligations
under this Agreement shall continue in full force and effect in accordance with
their terms. The Company further agrees that this Agreement shall act as a
complete bar to any claim, demand or action of any kind, whatsoever which could
be brought by it against you, except for claims based on your role as a Director
of the Company. Notwithstanding the foregoing, in the event of a claim against
you based on your role as a Director, you shall retain all rights under your
Indemnification Agreement as defined in Section 12 below.
(b) It is expressly understood and agreed that this Agreement
shall act as a complete bar to any claim, demand or action of any kind
whatsoever brought by the Company, or on its behalf, against you, including,
without limitation, any claim, demand or action before a federal, state or
municipal court or any arbitration tribunal, except for claims, demands or
actions to enforce this Agreement.
7. Nothing contained in this Agreement shall be deemed to
constitute an admission or evidence of any wrongdoing or liability on the part
of you, the Company or Releasees, nor of any violation of any federal, state or
municipal statute, regulation or principle of common law or equity. You and the
Company each expressly deny any wrongdoing of any kind in regard to your
employment, or your separation from employment.
8. As further consideration for the compensation, payments,
benefits and other consideration provided to you pursuant to this Agreement, you
agree as follows:
(a) You agree that on the Separation Date you will return to
the Company all the Company property in your possession which includes, but is
not limited to any keys, credit cards, I.D. cards, etc., and any and all
original or duplicate copies of your work product and of files, calendars,
books, records, notes, notebooks, manuals, computer disks, diskettes and any
other magnetic and other media materials you have in your possession or under
your control belonging to the Company or Releasees or containing confidential or
proprietary information concerning the Company or Releasees or their officers,
directors, employees, consultants, customers or operations. You may retain
copies of such materials as approved by me.
(b) You agree that during the course of your employment with
the Company, you have had substantial access to trade secrets, copyrighted
materials, proprietary computer software and programs, and other confidential
and proprietary information and materials of or about the Company or Releasees
or their legal and business affairs, operations, officers, directors, employees,
consultants, vendors or customers (the "Confidential and Proprietary Information
and Materials"). Such Confidential and Proprietary Information and Materials
includes, without limitation, (i) marketing, promotional, advertising and
business plans, studies, data, programs and strategies; (ii) existing and new or
envisioned products; (iii) computer aided systems, software, strategies,
designs, programs and plans; (iv) information and materials concerning past,
present and prospective officers, directors, employees, consultants, customers,
vendors, suppliers and business partners; (v) information and materials
regarding past, present and prospective employment policies and procedures and
employee benefits plans, policies and programs; (vi) studies and analyses,
research and development projects and test data; (vii) marketing, sales,
pricing, costs, and other business and financial data and projections; and
(viii) information and materials developed from the foregoing information and
materials, the disclosure of which to competitors of the Company or others would
cause the Company to suffer substantial and irreparable damage. You recognize,
therefore, that it is in the Company's legitimate business interest to restrict
your disclosure of such Confidential and Proprietary Information and Materials
for any purposes other than as agreed to in writing by the Company and to
prohibit any potential appropriation of such Confidential and Proprietary
Information and Materials by you for the benefit of the Company's competitors or
to the detriment of the Company.
(c) Unless you shall first secure the Company's written
consent, you shall not directly or indirectly publish, disclose, market, or
authorize, advise, hire, counsel or otherwise procure any other person or
entity, directly or indirectly, to publish, disclose or market, any Confidential
and Proprietary Information and Materials, including any Confidential and
Proprietary Information and Materials of which you became aware or informed
during your employment with the Company, whether such information is in your
memory or embodied in writing or other form, unless such information becomes
available to the public or to the Company's competitors other than as a result
of the disclosure thereof by you or by other wrongful disclosure. Such
Confidential and Proprietary Information and Materials are and shall continue to
be the exclusive proprietary property of the Company and Releasees, whether or
not they were disclosed to or developed in whole or in part by you.
Notwithstanding the foregoing, in the event you are requested pursuant to or
required by applicable law or regulation or by legal process (including, but not
limited to, oral questions, interrogatories, requests for information or
documents, subpoena, civil investigative demand or similar process) to disclose
any Confidential and Proprietary Information and Materials, you must immediately
notify the Company of such request or requirement so that the Company may seek
an appropriate protective order or waive compliance with the provisions of this
Section. You agree to cooperate with the Company in seeking any such protective
order.
(d) You will not make any statement or issue any
communication, written or otherwise, that disparages, criticizes or otherwise
reflects adversely or encourages any adverse action against the Company or
Releasees, except if testifying truthfully under oath pursuant to any lawful
court order or subpoena or otherwise responding to or providing disclosures
required by law. Similarly, the Company will not make any statement or issue any
communication, written or otherwise, that disparages, criticizes or otherwise
reflects adversely or encourages any adverse action against you, except if
testifying truthfully under oath pursuant to any lawful court order or subpoena
or otherwise responding to or providing disclosures required by law. The Company
also agrees to provide you on the Effective Date with a signed letter of
reference on its letterhead in a form that is mutually agreeable to you and the
Company. The Company further agrees not to make any statement or issue any
communication, written or otherwise, that is inconsistent with the information
set forth in such letter of reference, except if testifying truthfully under
oath pursuant to any lawful court order or subpoena or otherwise responding to
or providing disclosures required by law.
(e) You acknowledge and agree that the Company and Releasees
will suffer immediate, substantial damages not readily ascertainable or
compensable in terms of money in the event of the breach of any of your
obligations under this Section of this Agreement, and that the Company and
Releasees shall therefore be entitled (without limitation of any other rights or
remedies otherwise available to the Company and Releasees) to obtain temporary,
preliminary and other appropriate injunctive relief from any court of competent
jurisdiction prohibiting the continuance or recurrence of any such breach.
9. This Agreement may not be changed orally, and no modification,
amendment or waiver of any of the provisions contained in this Agreement, nor
any future representation, promise or condition in connection with the subject
matter of this Agreement, shall be binding upon any party hereto unless made in
writing and signed by such party.
10. This Agreement shall be subject to and governed by and
interpreted in accordance with the laws of the State of New York without regard
to conflicts of law principles. In any dispute arising from or related to this
Agreement, the parties agree to submit to final and binding arbitration before a
single arbitrator in Stamford, Connecticut under the Employment Dispute
Resolution Rules then in effect of the American Arbitration Association and to
waive their right to a trial by jury. The parties also agree that attorneys'
fees and costs shall be awarded by the arbitrator to the prevailing party.
11. This Agreement shall inure to the benefit of and shall be
binding upon (i) the Company, its successors and assigns, and any company with
which the Company may merge or consolidate or to which the
Company may sell all or substantially all its assets, and (ii) you and your
executors, administrators, heirs and legal representatives. You may not sell
or otherwise assign your rights, obligations or benefits under this Agreement
and any attempt to do so shall be void.
12. (a) This Agreement terminates and supersedes all prior and
contemporaneous agreements between you and the Company, including but not
limited to your employment agreement dated January 31, 2000, but specifically
excluding the Employee Non-Disclosure, Non-Competition and Assignment of
Inventions Agreement dated as of October 16, 1999 (the "Employee Agreement") and
your Indemnification Agreement dated as of February 1, 2000 (the
"Indemnification Agreement"). You will continue to enjoy the benefits of the
Indemnification Agreement to the fullest extent provided for therein, and to be
covered by Directors and Officers Liability insurance as provided in any policy
therefore maintained by the Company from time to time (including the policy
currently in effect, No. 000-00-00 with National Union Fire Insurance Company of
Pittsburgh, Pennsylvania).
(b) The Company acknowledges that the Employee Agreement shall
not operate as a bar or otherwise prohibit you as of or after the Effective Date
from soliciting, enticing or inducing Customers or Suppliers of the Company to
do business with an asset management firm, provided that such asset management
firm does not also provide investment banking or broker-dealer services that are
competitive to the Company.
(c) Aside from the Employee Agreement and the Indemnification
Agreement, all prior and contemporaneous discussions and negotiations have been
and are merged and integrated into, and are superseded by, this Agreement. No
waiver by either party of any provision or condition of this Agreement at any
time shall be deemed a waiver of such provision or condition at any prior or
subsequent time or of any other provision or condition at the same or any prior
or subsequent time. All defined terms in this Agreement apply equally to the
singular and plural forms thereof.
13. In the event any provision of this Agreement shall be held to
be void, voidable, unlawful or, for any reason, unenforceable, the remaining
portions shall remain in full force and effect. The unenforceability or
invalidity of a provision of this Agreement in one jurisdiction shall not
invalidate or render that provision unenforceable in any other jurisdiction.
14. BY SIGNING THIS AGREEMENT, YOU CERTIFY THAT YOU HAVE READ THE
TERMS OF THIS AGREEMENT, AND THAT YOUR EXECUTION OF THIS AGREEMENT SHALL
INDICATE THAT THIS AGREEMENT CONFORMS TO YOUR UNDERSTANDINGS AND IS ACCEPTABLE
TO YOU AS A FINAL AGREEMENT. YOU FURTHER ACKNOWLEDGE AND AGREE THAT, PURSUANT TO
SECTION 6 ABOVE, BY SIGNING THIS AGREEMENT, YOU WAIVE AND RELEASE ANY AND ALL
CLAIMS YOU MAY HAVE OR HAD AGAINST THE COMPANY AND RELEASEES, INCLUDING, WITHOUT
LIMITATION, CLAIMS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT. YOU FURTHER
ACKNOWLEDGE AND AGREE THAT YOU HAVE BEEN ADVISED OF THE OPPORTUNITY TO CONSULT
WITH COUNSEL OF YOUR CHOICE AND THAT YOU HAVE BEEN GIVEN A REASONABLE AND
SUFFICIENT PERIOD OF TIME OF NOT LESS THAN TWENTY-ONE (21) DAYS IN WHICH TO
CONSIDER AND RETURN THIS AGREEMENT. YOU FURTHER ACKNOWLEDGE AND AGREE THAT UPON
YOUR EXECUTION AND RETURN OF THIS AGREEMENT, YOU WILL BE PERMITTED TO REVOKE
THIS AGREEMENT AT ANY TIME DURING A PERIOD OF SEVEN (7) CALENDAR DAYS FOLLOWING
YOUR EXECUTION HEREOF. TO BE EFFECTIVE, THE REVOCATION MUST BE IN WRITING AND
MUST BE HAND-DELIVERED OR TELECOPIED TO THE COMPANY WITHIN THE SEVEN (7) DAY
PERIOD. THIS AGREEMENT WILL NOT BE EFFECTIVE AND FINAL UNTIL THE SEVEN (7) DAY
PERIOD HAS EXPIRED. IF THE AGREEMENT IS REVOKED WITHIN THE AFOREMENTIONED SEVEN
(7) DAY PERIOD, THIS AGREEMENT WILL BE OF NO FURTHER FORCE OR EFFECT, AND
NEITHER YOU NOR THE COMPANY WILL HAVE ANY RIGHTS OR OBLIGATIONS HEREUNDER.
Sincerely,
SoundView Technology Group, Inc.
By:
-------------------------------- ------------
Xxxx X. Xxxxx Date
Its Chief Executive Officer
BY SIGNING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU ARE COMPETENT, THAT YOU HAVE
BEEN AFFORDED A TIME PERIOD OF 21 DAYS TO REVIEW AND CONSIDER THIS AGREEMENT
WITH AN ATTORNEY OF YOUR CHOICE, THAT SUCH TIME PERIOD IS A REASONABLE AND
SUFFICIENT TIME FOR SUCH REVIEW, THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THIS
AGREEMENT AS FULLY AND FINALLY WAIVING ANY AND ALL CLAIMS, DEMANDS, DISPUTES AND
DIFFERENCES OF ANY KIND WHATSOEVER WHICH YOU MAY HAVE HAD OR NOW HAVE AGAINST
THE COMPANY, THAT NO REPRESENTATIONS, PROMISES OR INDUCEMENTS HAVE BEEN MADE TO
YOU EXCEPT AS SET FORTH IN THIS AGREEMENT, AND THAT YOU HAVE SIGNED THIS
AGREEMENT FREELY AND VOLUNTARILY, INTENDING TO BE LEGALLY BOUND BY ITS TERMS,
AND WITH FULL UNDERSTANDING OF ITS CONSEQUENCES.
__________________________________ Date:__________________
Xxxxxxx Xxxxx
I acknowledge that I have read
this Agreement and that I understand
and voluntarily accept its terms.
WITNESSED BY: __________________
SCHEDULE 1
Xxxxxxx Xxxxx
OPTION OPTION
NUMBER DATE PLAN/TYPE SHARES PRICE EXERCISED VESTED CANCELLED UNVESTED OUTSTANDING EXERCISABLE
------ ---- --------- ------ ----- --------- ----- --------- -------- ----------- -----------
LG000015 1/31/00SV95/NQ 83,197 $0.69 0 83,197 0 0 83,197 83,197
00001578 1/31/00SV95/NQ 61,531 $1.10 0 30,765 0 30,766 61,531 30,765
LG000154 1/31/00SV95/NQ 38,684 $1.10 0 38,684 0 0 38,684 38,684
00001378 1/31/00SV95/NQ 26,953 $1.54 0 26,953 0 0 26,953 26,953
00001404 1/31/00SV95/NQ 198,724 $1.63 0 99,360 0 99,364 198,724 99,360
00001431 1/31/00SV95/NQ 25,364 $1.66 0 25,364 0 0 25,364 25,364
------ - - ------ ------
Total NQ 304,323 0 130,130 434,453 304,323
00001577 1/31/00SV95/ISO 29,783 $1.10 0 14,892 0 14,891 29,783 14,892
LG000153 1/31/00SV95/ISO 52,630 $1.10 0 52,630 0 0 52,630 52,630
00001377 1/31/00SV95/ISO 53,910 $1.54 0 13,478 0 40,432 53,910 13,478
00001430 1/31/00SV95/ISO 50,731 $1.66 0 12,683 0 38,048 50,731 12,683
LG000039 1/31/00SV95/ISO 25,365 $1.66 0 25,365 0 0 25,365 25,365
------ - - ------ ------
Total ISO 119,048 0 93,371 212,419 119,048
