EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement (the "AGREEMENT") is entered into effective as of
January 3, 2003, between SoundView Technology Group, Inc., a Delaware
corporation (the "CORPORATION") and Xxxxxx Xxxxxxxxx (the "EMPLOYEE").
W I T N E S S E T H:
The Corporation desires to confirm the employment of the Employee in order
to have the benefits of her expertise and knowledge. The Employee, in turn,
desires her employment with the Corporation on the terms set forth in this
Agreement. The parties, therefore, enter into this Agreement to establish the
terms and conditions of the Employee's employment with the Corporation.
In consideration of the mutual covenants and representations contained in
this Agreement, the Corporation and the Employee agree as follows:
1. EMPLOYMENT OF EMPLOYEE; DUTIES.
The Corporation agrees to employ the Employee, and the Employee agrees to
be employed by the Corporation, as General Counsel, Secretary and Executive Vice
President and as a Managing Director, in the Old Greenwich office, for the
period specified in Section 2 (the "EMPLOYMENT PERIOD"), subject to the terms
and conditions of this Agreement. It is agreed to and understood that prior to
relocation to the Connecticut/Westchester, New York area, the Employee may work
out of her home office one day a week. During the Employment Period, the
Employee shall report to the Chief Executive Officer and she shall assume such
duties and responsibilities consistent with her position as may be reasonably
assigned to her by the Corporation.
2. EMPLOYMENT PERIOD. The Employment Period shall begin on February 24,
2003 and shall continue until December 31, 2004.
3. BASE SALARY. During the Employment Period, the Corporation shall pay
the Employee at a monthly rate equal to an annual salary of Two Hundred Thousand
Dollars ($200,000) for 2003 and Two Hundred and Fifty Thousand Dollars
($250,000) for 2004 (the "Base Salary"). The Base Salary shall be payable in
equal periodic installments which are not less frequent than monthly. The Base
Salary shall be subject to annual review for upward adjustments based on the
policies of the Corporation and the Employee's contributions to the business of
the Corporation.
4. ANNUAL BONUS PLAN. During the Employment Period, the Employee shall be
entitled to participation at the senior executive level in the Corporation's
bonus plan. Upon the commencement of the Employment Period, the Employee shall
be entitled to a guaranteed bonus
of Sixty Thousand Dollars ($60,000) (the "SIGNING BONUS"). The Signing Bonus
shall be paid no later than February 28, 2003. For the period ending December
31, 2003, the Employee shall be entitled to a guaranteed bonus of at least Three
Hundred and Fifty Thousand Dollars ($350,000) (the "2003 BONUS"). The 2003 Bonus
shall be paid no later than January 31, 2004. Continued employment by the
Employee throughout the period covered by the 2003 Bonus, except as may
otherwise be provided in Section 8, is a requirement for payment to be made by
the Corporation. The amount of the bonus, if any, in excess of the 2003 Bonus,
shall take into account various factors, including the overall financial
performance of the Corporation and may include, if applicable, achievement of
objective written goals set for the Executive by mutual agreement with the
Corporation, but it also being understood and agreed that any such additional
bonus shall be in the sole and absolute discretion of the Corporation.
5. BENEFITS.
(a) In addition to and except for the matters governed by this
Agreement, the Employee shall be entitled to all employee benefits and
perquisites, including but not limited to pension, deferred compensation plans,
incentive, stock options, group life insurance, disability, sickness and
accident insurance and health benefits under such plans and programs as provided
to other senior executive officers of the Corporation from time to time.
(b) The Employee shall be entitled to four (4) weeks paid vacation as
well as holidays, leave of absence and leave for illness and temporary
disability in accordance with the policies of the Corporation.
(c) The Employee shall be entitled to reimbursement for normal and
customary business expenses, including professional and association fees in
accordance with the Company's policies for expense reimbursement. The
Corporation shall pay the Employee's reasonable relocation expenses associated
with her move from the New York City to the Connecticut/Westchester, New York
area, not to exceed $35,000.
(d) The Corporation shall cover Employee under their Directors and
Officers insurance, shall provide Employee with Professional Liability Insurance
and shall execute an indemnification agreement indemnifying Employee similar to
those previously entered into and executed by the Corporation.
6. RESTRICTED STOCK GRANT. The Employee shall be granted One Hundred
Thousand (100,000) shares of restricted stock of the Corporation on her first
day of employment at the Company (currently scheduled for February 24, 2003).
Employee shall be granted a minimum of an additional Fifty Thousand (50,000)
shares of restricted stock of the Corporation on or about January 31, 2004. The
terms of the restricted stock grants shall be set forth in a Restricted Stock
Agreement in the general form of Exhibit 1 and shall vest annually over a three
(3) year period. In the event of changes in the Common Stock of the Corporation
by reason of any stock dividend, spin-off, split-up, recapitalization, merger,
consolidation, business combination or exchange of shares and the like, the
Corporation shall make an equitable adjustment to the number of restricted
shares to be granted hereunder.
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7. NON-DISCLOSURE; NON-COMPETITION
7.1 EMPLOYEE NON-DISCLOSURE, NON-COMPETITION AND ASSIGNMENT OF INVENTIONS
AGREEMENT. As a condition to this Agreement, Employee agrees to execute and
comply with the terms and conditions of the "SoundView Technology Group, Inc.
Employee Non-Disclosure, Non-Competition and Assignment of Inventions Agreement"
(the "Non-Disclosure Agreement") attached as Exhibit 1.
7.2 CONFIDENTIALITY. Employee covenants and agrees to keep this Agreement
and its terms confidential and to not discuss or disclose the terms of this
Agreement or any of the discussions or correspondence relating thereto with any
past, present or future employees of the Corporation, any prospective
employer(s) or any representatives thereof. Notwithstanding the foregoing,
Employee may discuss and disclose the terms of this Agreement with her attorney,
financial advisors and immediate family members, provided she first informs such
individuals of their obligation to keep that information confidential.
8. TERMINATION.
8.1 TERMINATION BY THE CORPORATION.
(a) The Corporation may terminate the Employee's employment under
this Agreement without Cause (as defined in Section 8.1(b)), at any time by
giving notice thereof to the Employee. The Employment Period shall terminate as
of the date of such termination of employment.
(b) The Corporation may terminate the Employee's employment under
this Agreement for Cause at any time by notifying the Employee of such
termination. For all purposes of this Agreement, the Employment Period shall end
as of the date of such termination of employment. "CAUSE" shall mean the
Executive's (i) neglect, failure or refusal to timely perform the duties of her
employment (other than by reason of a physical or mental illness or impairment),
or her gross negligence in the performance of her duties, (ii) material breach
of any agreements, covenants and representations made in any employment
agreement or nondisclosure agreement with the Corporation or any subsidiary,
(iii) violation of any law, rule, regulation or by-law of any governmental
authority (state, federal or foreign), any securities exchange or association or
other regulatory or self-regulatory body or agency applicable to the Corporation
or any subsidiary or any material general policy or directive of the Corporation
or any subsidiary, (iv) conviction of, or plea of guilty or nolo contendere to,
a crime involving a felony, (v) giving or accepting undisclosed material
commissions or other payments in cash or in kind in connection with the affairs
of the Corporation or its clients, or (vi) habitual abuse of alcohol or drugs.
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8.2 TERMINATION BY THE EMPLOYEE. The Employee may terminate this
Agreement at any time, for any reason or for no reason at all, by giving notice
thereof to the Corporation at least thirty (30) days before the effective date
of such termination. The Employment Period shall terminate as of the date of
such termination of employment.
8.3 SEVERANCE BENEFITS.
(a) Except as provided in 8.3(b), if the Employee's employment under
this Agreement is terminated on or before the end of the Employment Period by
the Corporation without Cause or if the Employee dies or becomes disabled (as
defined in Section 8.4) or by the Employee for Good Reason (as defined in
Section 8.3(d)), the Corporation shall pay the Employee a lump sum cash payment,
within thirty (30) days of the date of such termination, equal to the remainder
of the salary of the Employment Period, and the 2003 Bonus if it has not yet
been paid as well as 50% of any unvested Restricted Stock.
(b) If the Employee's employment under this Agreement is terminated
by the Corporation following a Change of Control or terminated by the
Corporation within three months prior to an executed agreement leading to a
Change of Control without Cause or by the Employee for Good Reason, the
Corporation shall pay the Employee a lump sum cash payment, within thirty (30)
days of the date of such termination, equal to four hundred thousand dollars
($400,000) plus the 2003 Bonus if it has not yet been paid.
(c) If the Employee's employment under this Agreement is terminated
by the Corporation for Cause or by the Employee without Good Reason, the
Corporation shall only pay the Employee a lump sum cash payment within thirty
(30) days of the date of such termination, equal to Employee's unpaid Base
Salary to the termination date.
(d) "GOOD REASON" means any material failure by the Corporation to
pay or provide the compensation and benefits under this Agreement or a breach by
the Corporation of this Agreement; provided that, in each such event, the
Employee shall give the Corporation notice thereof which shall specify in
reasonable detail the circumstances constituting Good Reason, and there shall be
no Good Reason with respect to any such circumstances cured by the Corporation
within thirty (30) days after such notice.
(e) A "CHANGE IN CONTROL" shall be deemed to have occurred on:
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(i) the date of the acquisition by any "person" (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act), excluding the Corporation or any of its
subsidiaries or affiliates or any employee benefit plan
sponsored by any of the foregoing, of beneficial
ownership (within the meaning of Rule 13d-3 under the
Exchange Act) of 50.1% or more of either (x) the then
outstanding shares of common stock of the Corporation or
(y) the then outstanding voting securities entitled to
vote generally in the election of directors; or
(ii) the date the individuals who constitute the Board as of
the date of the Corporation's initial public offering
(the "Incumbent Board") cease for any reason to
constitute at least a majority of the members of the
Board, provided that any individual becoming a director
subsequent to the effective date of the initial public
offering whose election, or nomination for election by
the Corporation's stockholders, was approved by a vote of
at least a majority of the directors then comprising the
Incumbent Board (other than any individual whose
nomination for election to Board membership was not
endorsed by the Corporation' management prior to, or at
the time of, such individual's initial nomination for
election) shall be, for purposes of the Plan, considered
as though such person were a member of the Incumbent
Board; or
(iii) the consummation of a merger, consolidation,
recapitalization, reorganization, sale or disposition of
all or a substantial portion of the Corporation's assets,
a reverse stock split of outstanding voting securities,
the issuance of shares of stock of the Corporation in
connection with the acquisition of the stock or assets of
another entity, provided, however, that a Change in
Control shall not occur under this clause (iii) if
consummation of the transaction would result in at least
51% of the total voting power represented by the voting
securities of the Corporation (or, if not the
Corporation, the entity that succeeds to all or
substantially all of the Corporation's business)
outstanding immediately after such transaction being
beneficially owned (within the meaning of Rule 13d-3
promulgated pursuant to the Exchange Act) by at least 75%
of the holders of outstanding voting securities of the
Corporation immediately prior to the transaction, with
the voting power of each such continuing holder relative
to other such continuing holders not substantially
altered in the transaction.
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(f) If the Employee is entitled to receive payments or other benefits
under this Agreement upon the termination of his employment with the
Corporation, the Employee hereby irrevocably waives the right to receive any
payments or other benefits under any other severance or similar plan maintained
by the Corporation ("OTHER SEVERANCE PLAN"), provided, however, that if the
payments and other benefits provided under such Other Severance Plan exceed the
payments and other benefits under this Agreement, the Employee, in his sole
discretion, may elect to receive the payments and benefits under such Other
Severance Plan in lieu of the payments and benefits under this Agreement upon
her termination of employment. Notwithstanding anything to the contrary in this
Agreement, nothing contained herein shall affect Employee's rights with respect
to any stock option, restricted stock or other equity participation granted
pursuant to any stock option, restricted stock, or other equity participation
plan of the Corporation or its affiliates, all of which shall be governed by the
terms of the governing documents, including the specific grant documents.
8.4 TERMINATION BY DEATH OR DISABILITY. Except for the right to the
payment of any unpaid Base Salary and any guaranteed bonus, as provided in this
Agreement, This Agreement shall terminate automatically upon the Employee's
death. If the Corporation determines in good faith that the Employee has a
"total disability" (within the meaning of such term or of a similar term as
defined in the Corporation's long-term disability plan as in effect from time to
time), the Corporation may terminate her employment under this Agreement by
notifying the Employee thereof at least thirty (30) days before the effective
date of such termination.
9. NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and if sent by
registered or certified mail to the Employee at the last address she has filed
in writing with the Corporation or, in the case of the Corporation, to the
Corporation's principal executive offices.
10. WITHHOLDING TAXES. The Corporation shall have the right, to the extent
required by law, to withhold from any payment of any kind due to the Employee
under this Agreement to satisfy the tax withholding obligations of the
Corporation under applicable law.
11. BINDING AGREEMENT; WAIVER. This Agreement shall be binding upon the
Employee and the Corporation on and after the date of this Agreement. The rights
and obligations of the Corporation under this agreement shall inure to the
benefit of and shall be binding upon the Corporation and any successor of the
Corporation, and the benefits of this Agreement shall inure to the benefit of
the Employee's estate and beneficiaries in the event of the Employee's death or
legal guardian in the event of his total disability. Neither party may assign
his or its duties or rights under this Agreement without the prior written
consent of the other party; provided, however that (i) the Corporation may
assign this Agreement to any subsidiary, parent or affiliate, without the
consent of the Employee, and such assignment shall not, in and of itself,
constitute, a termination of employment under this Agreement and (ii) this
Agreement may be assigned without consent in connection with any sale of all or
substantially all of the Corporation's assets or upon any merger, consolidation
or reorganization of the Corporation with or into any other corporation.
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12. ENTIRE AGREEMENT. This Agreement and the SoundView Technology Group,
Inc. Employee Non-Disclosure, Non-Competition and Assignment of Inventions
Agreement constitute the entire understanding of the Employee and the
Corporation with respect to the subject matter hereof and supersedes and voids
any and all prior agreements or understandings, written or oral, regarding the
subject matter hereof. This Agreement may not be changed, modified, or
discharged orally, but only by an instrument in writing signed by the parties.
13. GOVERNING LAW AND SEVERABILITY. This Agreement shall be governed by
the laws of the State of New York (without giving effect to choice of law
principles or rules thereof that would cause the application of the laws of any
jurisdiction other than the State of New York) and the invalidity or
unenforceability of any provisions hereof shall in no way affect the validity or
enforceability of any other provision. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective only to the extent of such prohibition or unenforceability
without invalidating or affecting the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
14. ARBITRATION. DISPUTES REGARDING THE EMPLOYEE'S EMPLOYMENT WITH THE
CORPORATION, INCLUDING, WITHOUT LIMITATION, ANY DISPUTE UNDER THIS AGREEMENT
WHICH CANNOT BE RESOLVED BY NEGOTIATIONS BETWEEN THE CORPORATION AND THE
EMPLOYEE, BUT EXCLUDING ANY DISPUTES REGARDING THE EXECUTIVE'S COMPLIANCE WITH
THE RESTRICTIONS OF THE EMPLOYEE NON-DISCLOSURE, NON-COMPETITION AND ASSIGNMENT
OF INVENTIONS AGREEMENT REFERRED TO IN SECTION 6 OF THIS AGREEMENT, SHALL BE
SUBMITTED TO, AND SOLELY DETERMINED BY, FINAL AND BINDING ARBITRATION CONDUCTED
BY JAMS/ENDISPUTE, INC.'S A RBITRATION RULES APPLICABLE TO EMPLOYMENT DISPUTES,
AND THE PARTIES AGREE TO BE BOUND BY THE FINAL AWARD OF THE ARBITRATOR IN ANY
SUCH PROCEEDING. THE ARBITRATOR SHALL APPLY THE LAWS OF THE STATE OF NEW YORK
WITH RESPECT TO THE INTERPRETATION OR ENFORCEMENT OF ANY MATTER RELATING TO THIS
AGREEMENT; IN ALL OTHER CASES THE ARBITRATOR SHALL APPLY THE LAWS OF THE STATE
SPECIFIED IN THE CORPORATION'S ALTERNATIVE DISPUTE RESOLUTION POLICY AS IN
EFFECT FROM TIME TO TIME (IF ANY). ARBITRATION MAY BE HELD IN NEW YORK, NEW
YORK, OR SUCH OTHER PLACE AS THE PARTIES HERETO MAY MUTUALLY AGREE, AND SHALL BE
CONDUCTED SOLELY BY A FORMER JUDGE. JUDGMENT UPON THE AWARD BY THE ARBITRATOR
MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
SOUNDVIEW TECHNOLOGY GROUP, INC.
/s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx
Chief Executive Officer
EMPLOYEE:
/s/ Xxxxxx Xxxxxxxxx
---------------------
Date: ____________________
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