EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") entered into as of October 1, 2000
by and between X.X. XXXXXXXX & CO., INC., a New Jersey corporation
("MHM" or "Employer"), with offices located at Newport Office Tower,
525 Washington Boulevard, 00xx Xxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000,
and XXXXXX X. XXXXXXXXXX, residing at 000 Xxx Xxxxxx, Xxxxxx Xxxx, Xxx
Xxxxxx 00000 ("Employee").
W I T N E S S E T H :
A. MHM is engaged in business as a registered securities broker-dealer
("Employer's Business").
B. Employee has been employed as an executive officer of Employee, and the
parties desire to evidence such employment by incorporating the terms
thereof into this Agreement.
C. Employer desires to employ Employee as its Chief Operating Officer,
Senior Vice President, Treasurer and Secretary for the purposes, among
things, of overseeing operations generally and monitoring and preparing
reports upon the financial status of Employer, as well as assisting in
operations of Employer's affiliates and subsidiaries including, without
limitation, xXxxxxxxx.xxx Inc.
NOW, THEREFORE, in consideration of the foregoing, the parties agree as
follows:
1. Employment
(a) During the Term of Employment as defined in Section 2, Employer
agrees to employ Employee, as a principal executive officer, to hold
such titles and perform such functions as Employer's Board of Directors
may designate, and to serve as a member of the Board of Directors if
elected. Employee agrees to act in the foregoing capacities, in
accordance with the terms and conditions contained in this Agreement.
(b) Employee shall devote all of Employee's working time to performance
of his duties under this Agreement. Employee shall render services,
without additional compensation, in connection with the operation of
Employer's business, including activities of affiliates and
subsidiaries of the Employer. As used in this Agreement, the term
"affiliate" shall mean any entity or person that, directly or
indirectly, is controlled by or under common control with Employer,
including without limitation, xXxxxxxxx.xxx Inc.
(c) In view of Employee's duties and responsibilities hereunder,
Employee shall continue to maintain his existing licenses with the NASD
including, without limitation, his Series 4, 7, 22, 24, 53 and 63
registrations, as well as to undertake to qualify for any other NASD
license tests or applicable regulatory requirements necessary or
convenient
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to enable Employee to undertake and fulfill his functions, from time to
time, under this Agreement.
2. Term
The initial term of Employee's employment under this Agreement shall be
for a three year term, to commence on October 1, 2000 and end on
September 30, 2003 (the "Initial Term"). Thereafter, this Agreement
shall be automatically renewed and extended for consecutive one year
renewal terms, unless either party sends to the other party a notice of
non-renewal at least sixty (60) days prior to the expiration of the
Initial Term or any renewal term (the "Renewal Term"). The Initial Term
and Renewal Term are subject to earlier termination as set forth in
Section 5. The actual term of employment is defined as "Term of
Employment."
3. Compensation
(a) Employer shall pay to Employee an annual base salary of $200,000
per annum. All payments shall be made in equal bi-weekly installments,
in arrears, or such other installments as may be consistent with the
payroll practices of Employer for its Employees. The Board of
Directors, in its sole discretion, may increase such base salary, at
any time or from time to time but not decrease the sum.
(b) The Board of Directors may, in its sole discretion, award
incentive compensation, by way of cash, stock options, or
participation in equity derived from the Employer's investment
banking activities.
4. Additional Employee Benefits
(a) Employer shall reimburse Employee for all expenses reasonably
incurred by Employee in connection with the performance of Employee's
duties under this Agreement against Employee's pre-submitted documented
vouchers for such expenses, which must be approved in writing by a
senior executive officer of Employer prior to the incurrence of such
expense.
(b) Employee shall be entitled to reasonable vacation periods each year
and other general medical and employee benefit, retirement and
compensation plans (including profit sharing or pension plans) as shall
have been established and are continuing for senior management.
5. Termination
(a) Employer may terminate this Agreement for cause.
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(b) "Cause" within the meaning of this Agreement shall mean any one or
more of the following:
(i) Employee's breach of any of the material provisions
of this Agreement; or
(ii) Employee's failure or refusal to follow any specific
written directions of the person Employee reports to
(which directions include a statement to the effect
that failure or refusal to follow such directions
shall constitute cause for termination of the
employment of Employee hereunder); or
(iii) Employee's failure or refusal to perform Employee's
duties in accordance with Recital B or Section 1
hereof, provided Employee shall have been given
written notice by the person Employee reports to of
such failure or refusal to perform these duties and
ten business days within which to cure the same; or
(iv) Failure by Employee to comply in any material respect
with the terms of any provision contained in this
Agreement, if any, or any written policies or
directives of Employer's senior management, provided
Employee shall have been given written notice of such
failure or refusal to perform these duties and ten
business days within which to cure the same; or
(v) Employee is convicted of, pleads guilty or no contest
to, or admits or confesses to any felony or any act
of fraud, misappropriation or embezzlement; or
(vi) Employee engages in an intentional fraudulent act or
dishonest act to the damage or prejudice of Employer
and/or its affiliates or in conduct or activities
damaging to the property, business or reputation of
Employer and/or its affiliates; or
(vii) If Employee is registered or licensed with the
National Association of Securities Dealers, Inc. or
any other regulatory authority, federal or state, and
has violated any applicable rule of any such
regulatory authority.
(c) If Employer notifies Employee of its election to terminate this
Agreement for cause, this termination shall become effective at the
time notice is deemed to have been given in accordance with Section 9.
(d) This Agreement shall automatically terminate upon the death of
Employee.
(e) This Agreement may be terminated by Employer without cause
upon physical incapacity or disability of Employee to perform
the services required to be performed under this Agreement.
For purposes hereof, Employee's incapacity or disability to
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perform such services for any cumulative period of ninety (90) days
during any twelve-month period, or for any consecutive period of sixty
(60) days, shall be deemed to satisfy the condition of "incapacity or
disability."
6. Non-Solicitation, Non-Disclosure,
Shop Rights and Xxxxxxx Xxxxxxx
(a) Non-Solicitation.
During Employee's Term of Employment with Employer, and for a
period of one (1) year from the date of expiration or termination of
such employment (the "Restricted Period"), Employee covenants and
agrees that Employee will not, directly or indirectly, either for
himself or for any other person or business entity, (i) solicit any
employee of Employer to terminate his employment with Employer or
employ such individual during his employment with Employer and for a
period of one (1) year after such individual terminates his employment
with Employer, or (ii) make any disparaging statements concerning
Employer, Employer's Business or its officers, directors, or employees,
that could injure, impair or damage the relationships between Employer
or Employer's business on the one hand and any of the employees,
customers or suppliers of Employer's business, or any lessor, lessee,
vendor, supplier, customer, distributor, employee or other business
associate of Employer's Business.
(b) Non-Disclosure and Non-Use.
(i) Description of Confidential Information. For purposes of
this Section 6(b), Confidential Information means any information
disclosed during the Restricted Period, which is clearly either marked
or reasonably understood as being confidential or proprietary
including, but not limited to, information disclosed in discussions
between the parties in connection with technical information, data,
proposals and other documents of Employer pertaining to its business,
products, services, finances, product designs, plans, customer lists,
public relations and other marketing information and other unpublished
information. Confidential Information shall include all tangible
materials containing Confidential Information including, but not
limited to, written or printed documents and computer disks and tapes,
whether machine or user readable.
(ii) Standard of Care. Employee shall protect the Confidential
Information from disclosure to any person other than other employees of
Employer who have a need to know, by using a reasonable and prudent
degree of care, in light of the significance of the Confidential
Information, to prevent the unauthorized use, dissemination, or
publication of such Confidential Information.
(iii) Exclusion. This Section 6(b) imposes no obligation
upon Employee with respect to information that: (a) was in Employee's
possession before receipt from
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Employer; (b) is or becomes a matter of public knowledge through no
fault of Employee; (c) is rightfully received by Employee from a third
party who does not have a duty of confidentiality; (d) is disclosed
under operation of law, except that Employee will disclose only such
information as is legally required and give Employer prompt prior
notice; or (e) is disclosed by Employee with Employer's prior written
consent.
(iv) Stock Trading. If the information disclosed or of which
Employee becomes aware is material non-public information about the
Employer, then Employee agrees not to trade in the securities of MHM or
Emey, or in the securities of or any appropriate and relevant third
party, until such time as no violation of the applicable federal and
state securities laws would result from such securities trading.
(v) Return of Confidential Information. The Employee will
immediately destroy or return all tangible material embodying
Confidential Information (in any form and including, without
limitation, all summaries, copies and excerpts of Confidential
Information) upon the earlier of (i) the completion or termination of
the dealings between the Employer and Employee under the Agreement or
(ii) at such time that Employer may so request.
(vi) Notice of Breach. Employee shall notify Employer
immediately upon discovery of any of his unauthorized use or disclosure
of Confidential Information, or any other breach of the Agreement by
Employee, and will cooperate with Employer in every reasonable way to
help Employer regain possession of Confidential Information and
prevents its further unauthorized use.
(vii) Injunctive Relief. The Employee acknowledges that
disclosure or use of Confidential Information in violation of the
Agreement could cause irreparable harm to the Employer for which
monetary damages may be difficult to ascertain or an inadequate remedy.
The Employee therefore agrees that the Employer will have the rights in
addition to its other rights and remedies, to seek and obtain
injunctive relief from any violation of the Agreement.
(c) Shop Rights and Inventions, Patents, and Technology.
Employee shall promptly disclose to Employer any developments, designs,
patents, inventions, improvements, trade secrets, discoveries,
copyrightable subject matter or other intellectual property conceived,
either solely or jointly with others, developed, or reduced to practice
by Employee during Employee's Term of Employment in connection with the
services performed for Employer (the "Company Developments") and shall
treat such information as proprietary to Employer. Employee agrees to
assign to Employer any and all of Employee's right, title and interest
in the Company Developments and Employee hereby agrees that Employee
shall have no rights in the Company Developments. Any and all Company
Developments in connection with the services
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performed for Employer pursuant to the Agreement are "works for hire"
created for and owed exclusively by Employer.
7. Representation and Indemnification
Employee hereby represents and warrants that Employee is not a party to
any agreement, whether oral or written, which would prohibit Employee from being
employed by Employer, and Employee further agrees to indemnify and hold
Employer, its directors, officers, shareholders and agents, harmless from and
against any and all losses, cost or expense of every kind, nature and
description (including, without limitation, whether or not suit be brought, all
reasonable costs, expenses and fees of legal counsel), based upon, arising out
of or otherwise in respect of any breach of such representation and warranty.
8. Injunctive Relief
The parties acknowledge that the services to be rendered hereunder by
Employee are special, unique and of extraordinary character, and that in the
event of a breach or a threatened breach of Employee of any of Employee's
obligations under this Agreement, Employer will not have an adequate remedy at
law. Accordingly, in the event of any breach or threatened breach of Employee,
Employer shall be entitled to such equitable and injunctive relief as may be
available to restrain Employee and any business, firm, partnership, individual,
corporation or entity participating in the breach of this agreement. Nothing in
this agreement shall be construed as prohibiting Employer from pursing any other
remedies available at law or in equity for such breach or threatened breach,
including the recovery of damages and the immediate termination of the
employment of Employee under this Agreement.
9. Notices
All notices shall be in writing and shall be delivered personally
(including by courier), sent by facsimile transmission (with appropriate
documented receipt thereof), by overnight receipted courier service (such as UPS
or Federal Express) or sent by certified, registered or express mail, postage
prepaid, to the parties at their address set forth at the beginning of this
Agreement with Employer's copy being sent to Employer at its then principal
office. Any such notice shall be deemed given when so delivered personally, or
if sent by facsimile transmission, when transmitted, or, if mailed, forty-eight
(48) hours after the date of deposit in the mail. Any party may, by notice given
in accordance with this Section to the other party, designate another address or
person for receipt of notices hereunder. Copies of any notices to be given to
Employer shall be given simultaneously to: Xxxxxxx & Xxxxxx LLP, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxxxx, Esq..
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10. Miscellaneous
(a) This Agreement shall be governed in all respects, including
validity, construction, interpretation and effect, by New Jersey law,
without giving effect to conflicts of laws. The parties hereby agree
that any action, proceeding or claim arising out of, or relating in any
way to, this Agreement shall be brought and enforced in the courts of
the State of New Jersey or of the United States of America for New
Jersey, and irrevocably submit to such jurisdiction, and waive any
claim that such courts represent an inconvenient forum. Any process or
summons to be served upon either party may be served by transmitting a
copy thereof by registered or certified mail, return receipt requested,
postage prepaid, addressed to such party at the address set forth
hereinabove. Such mailing shall be deemed personal service and shall be
legal and binding upon said party in any action, proceeding or claim.
(b) This Agreement may be amended, superseded, canceled, renewed or
extended, and the terms hereof may be waived, only by a written
instrument signed by authorized representatives of the parties or, in
the case of a waiver, by an authorized representative of the party
waiving compliance. No such written instrument shall be effective
unless it expressly recites that it is intended to amend, supersede,
cancel, renew or extend this Agreement or to waive compliance with one
or more of the terms hereof, as the case may be. No delay on the part
of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of
any party of any such right, power or privilege, or any single or
partial exercise of any such right, power or privilege, preclude any
further exercise thereof or the exercise of any other such right, power
or privilege. The rights and remedies herein provided are cumulative
and are not exclusive of any rights or remedies that any party may
otherwise have at law or in equity.
(c) In view of Employer's need and desire to maintain a proper working
environment with suitable demeanor of its employees and in light of
Employer's sensitivity to the views of its customers and potential
customers and to regulatory bodies having jurisdiction over Employer's
business activities, Employer has instituted a policy of requiring
employees to be subject to, at Employer's sole reasonable discretion,
alcohol and drug testing procedures and requirements. Employee
specifically consents to the same, agrees to be subject to whatever
procedures may now or hereinafter be put in place covering such testing
and understands and agrees that Employee's consent to this is a
material inducement to Employer to enter into this agreement and to
provide for the employment of Employee hereunder.
(d) If any provision or any portion of any provision of this Agreement
or the application of any such provision or any portion thereof to any
person or circumstance, shall be held invalid or unenforceable, the
remaining portion of such provision and the remaining provisions of
this Agreement, or the application of such provision or portion of such
provision as is held invalid or unenforceable to persons or
circumstances other than
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those as to which it is held invalid or unenforceable, shall not be
affected thereby and such provision or portion of any provision as
shall have been held invalid or unenforceable shall be deemed limited
or modified to the extent necessary to make it valid and enforceable;
in no event shall this Agreement be rendered void or unenforceable.
(e) The headings to the Sections of this Agreement are for convenience
of reference only and shall not be given any effect in the construction
or enforcement of this Agreement.
(f) This Agreement shall inure to the benefit of and be binding upon
the successor and assigns of Employer, but no interest in this
Agreement shall be transferable in any manner by Employee.
(g) This Agreement constitutes the entire agreement and understanding
between the parties and supersedes all prior discussions, agreements
and undertakings, written or oral, of any and every nature with respect
thereto.
(h) This Agreement may be executed by the parties hereto in separate
counterparts which together shall constitute one and the same
instrument.
(i) In the event of the termination or expiration of this Agreement,
the provisions of Sections 6, 7, 8 and 10 hereof shall remain in full
force and effect, in accordance with their respective terms.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
stated at the beginning of this Agreement.
X.X. XXXXXXXX & CO., INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
/s/ Xxxxxx X.Xxxxxxxxxx
-------------------------------
Employee - Xxxxxx X. Xxxxxxxxxx
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