EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (the "AGREEMENT") is entered into effective as of
February 5, 2003, between SoundView Technology Group, Inc., a Delaware
corporation (the "CORPORATION"), and Xxxxxx Xxxxx (the "EMPLOYEE").
W I T N E S S E T H:
The Corporation desires to confirm the continued employment of the Employee
in order to have the benefits of his expertise and knowledge. The Employee, in
turn, desires to continue his 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 continued 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 a Managing Director and Head of Sales in the
Old Greenwich office of its subsidiary, SoundView Technology Corporation, for
the period specified in Section 2 (the "EMPLOYMENT PERIOD"), subject to the
terms and conditions of this Agreement. During the Employment Period, the
Employee shall report to the Chief Executive Officer or such other senior
executive as the Corporation may deem appropriate from time to time and he shall
assume such duties and responsibilities as may be properly assigned to him by
the Corporation.
2. EMPLOYMENT PERIOD. The Employment Period shall begin on the date of
this Agreement and shall continue until December 31, 2003.
3. 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), which is a draw against the Bonus provided for in Section 4
(the "SALARY"). The Salary shall be payable in equal periodic installments which
are not less frequent than the periodic installments in effect for salaries of
other senior executives of the Corporation.
4. BONUS. For the period ending December 31, 2003, subject to the
conditions set forth in this Agreement, the Employee shall be entitled to a
bonus equal to (i) one percent (1%) of the Net Trading Revenue of SoundView
Technology Corporation and (ii), for those equity offerings in which SoundView
Technology Corporation participates as an underwriter or selected dealer, either
(a) 1/2% of selling concessions on lead or co-managed equity offerings or (b) 1%
of syndicate designations on all other equity offerings. (the "BONUS"). The
Bonus may be modified by up to 15% by the outcome of performance goals described
in Attachment A. NET
TRADING REVENUE for purposes of determining the Bonus pursuant to this Section 4
is defined as gross commissions less trading losses generated from the trading
conducted by the sales and trading departments of SoundView Technology
Corporation for the period commencing January 1, 2003 and ending December 31,
2003, provided, however, that Net Trading Revenue shall not include selling
concessions or syndicate designations. Net Trading Revenue shall be determined
by the Corporation using the same method of accounting as it does for the
preparation of its financial statements and shall be calculated in order to
permit the payment of the Bonus on or before January 30, 2004. The determination
of Net Trading Revenue, revenue from selling concessions and syndicate
designations by the Corporation shall be conclusive and not subject to
challenge. The Bonus is intended to be, and is understood by Employee to be, an
inducement to continued employment throughout the Employment Period and until
the Bonus is paid, which shall not be later than when other bonuses are paid to
the sales department or January 30, 2004, whichever is earliest. For the
avoidance of doubt, except for Salary and unless a payment is made pursuant to
Section 7 or a mid-year bonus is paid pursuant to the next sentence, no money
will be paid to the Employee for the Bonus unless the Employee is a current
employee of the Corporation on January 30, 2004. Notwithstanding the foregoing,
if the Compensation Committee of the Board of Directors authorizes the payment
of a mid-year bonus to the members of the Sales department of SoundView
Technology Corporation, Employee shall be paid a mid-year Bonus, less Salary
paid to date, at the same time and subject to the same general conditions as the
bonus payments to the members of the Sales department. Thus, for example, if a
mid-year bonus is paid based on the first six (6) months of activity, with a 25%
holdback, Employee shall be entitled to a payout of his Bonus, less 25%, payable
at the same time as other bonuses are paid. Any amounts held back from the
mid-year bonus, if any, shall be payable on January 30, 2004 as provided in this
Section 4. Notwithstanding anything to the contrary contained in this Section 4,
if there is a Change of Control, as defined in Section 7.3(e), prior to December
31, 2003, provided that Employee is still employed by the Corporation, Employee
shall be paid on or before January 30, 2004 a sum equal to the greater of (x)
one million dollars ($1,000,000) or (y) the Bonus, in each case less the amount
of any Bonus and Salary paid during the course of the year to Employee.
5. BENEFITS.
(a) In addition to and except for the matters governed by this
Agreement, the Employee shall be entitled to 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 Managing
Directors 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.
2
(c) The Employee shall be entitled to reimbursement for normal and
customary business expenses in accordance with the Company's policies for
expense reimbursement.
6. NON-DISCLOSURE; NON-COMPETITION
6.1 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"
attached as Exhibit 1.
6.2 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 the terms of this Agreement with his attorney, financial
advisors and immediate family members, provided he first informs such
individuals of their obligation to keep that information confidential.
7. TERMINATION.
7.1 TERMINATION BY THE CORPORATION.
(a) The Corporation may terminate the Employee's employment under
this Agreement without Cause (as defined in Section 7.1(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 his
employment (other than by reason of a physical or mental illness or impairment),
or his gross negligence in the performance of his duties in any material
respect, (ii) material breach of any agreements, covenants and representations
made in any employment agreement or other agreement with the Corporation or any
subsidiary, (iii) material 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 moral turpitude, dishonesty, fraud or
unethical business conduct, or a felony, (v) violation of the Employee
Non-Disclosure, Non-Competition and Assignment of Inventions Agreement, (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,
(vi) failure to obtain or maintain any registration, license or other
authorization or approval that the Corporation or any
3
subsidiary reasonably believes is required in order for the Grantee to perform
his duties, or (vii) habitual abuse of alcohol or drugs.
7.2 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.
7.3 SEVERANCE BENEFITS.
(a) Except as provided in 7.3(b), if the Employee's employment under
this Agreement is terminated before the end of the Employment Period by the
Corporation without Cause or if the Employee dies or becomes totally disabled
(as defined in Section 7.4), the Corporation shall pay the Employee a lump sum
cash payment, within thirty (30) days of the date of such termination, equal to
the Bonus, calculated as of the termination of the Employee's employment, less
bonus payments andSalary paid to that date.
(b) If the Employee's employments under this Agreement is terminated
by the Corporation following 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 the
greater of (x) one million dollars ($1,000,000) or (y) the Bonus, calculated as
of the termination of the Employee's employment, less bonus payments andSalary
paid to that date.
(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 Salary to
the termination date.
(d) "GOOD REASON" means (i) any material reduction in the Employee's
authority, duties or responsibilities occurring after a Change in Control or
(ii) any material failure by the Corporation to pay or provide the compensation
and benefits under 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:
(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
4
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.
(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
his termination of employment.
5
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.
7.4 TERMINATION BY DEATH OR DISABILITY. Except for the right to the
payment of any unpaid 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
his employment under this Agreement by notifying the Employee thereof at least
thirty (30) days before the effective date of such termination.
8. 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 he has filed in
writing with the Corporation or, in the case of the Corporation, to the
Corporation's principal executive offices.
9. WITHHOLDING TAXES. The Corporation shall have the right, to the extent
permitted 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.
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.
13. ENTIRE AGREEMENT; LAST 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.
The parties hereto agree that this Agreement shall not be renewed or
renegotiated following the Employment Period.
6
14. 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.
15. 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 ARBITRATION 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.
7
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
WITNESS/ATTEST SOUNDVIEW TECHNOLOGY GROUP, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------- ----------------------------------
Xxxx X. Xxxxx
Chief Executive Officer
EMPLOYEE
/s/ Xxxxxx Xxxxx
-------------------------------------
Date: ____________________
8
