Exhibit 10.10
EMPLOYMENT AGREEMENT
by and between
FINANCIAL SERVICES ACQUISITION CORPORATION
and
Xxxxx X. Xxxxxx
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of September 11, 1996, by and between Xxxxx X.
Xxxxxx (the "Executive"), and Financial Services Acquisition Corporation, a
Delaware corporation (the "Company").
WHEREAS, the Company desires to employ the Executive and the
Executive desires to furnish services to the Company and its subsidiaries on the
terms and conditions hereinafter set forth; and
WHEREAS, the parties desire to enter into this agreement setting
forth the terms and conditions of the employment relationship of the Executive
with the Company;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth below, the parties hereby agree as follows:
1. Employment. The Company hereby agrees to employ the Executive, and
the Executive hereby accepts such employment, on the terms and conditions
hereinafter set forth.
2. Term. The period of employment of the Executive by the Company
hereunder (the "Employment Period") shall commence (the "Commencement Date") on
the business day immediately following the date that the notice period given by
the Executive to his current employer expires (it being understood that the
Executive will inform the Company of the Commencement Date, which is anticipated
to be not later than October 1, 1996), and ending on the second anniversary of
the Commencement Date, unless further extended as provided in this Section 2 or
sooner terminated in the event that the Executive's employment is terminated
without breach of this Agreement as provided in Section 7. On the first
anniversary of the Commencement Date and on each successive anniversary
thereafter, the term of the Executive's employment shall be automatically
extended for one (1) additional year unless, on or prior to such anniversary,
the Company shall have delivered to the Executive or the Executive shall have
delivered to the Company written notice that the term of the Executive's
employment hereunder will not be
1
extended.
3. Position and Duties. During the Employment Period, the Executive
shall serve as Vice President, General Counsel, and Assistant Secretary of the
Company and Vice President and Assistant Secretary of the Company's subsidiary,
Euro Brokers Investment Corporation ("EBIC"). The Executive's responsibilities
and authority shall include such responsibilities and authority as may from time
to time be assigned to the Executive by the Chairman or Vice Chairman of the
Company, provided that such responsibilities and authority are consistent with
the Executive's position with the Company and EBIC. The Executive agrees to
devote substantially all of his working time and efforts to the performance of
his duties for the Company and EBIC.
4. Place of Performance. In connection with the Executive's employment
by the Company, the Executive shall be based at the principal executive offices
of EBIC in New York, New York, except for reasonably required travel on the
Company's business.
5. Compensation and Related Matters.
(a) Base Salary. As compensation for the performance by the Executive
of his obligations hereunder, during the Employment Period, the Company shall
pay the Executive a base salary at the rate of $215,000 per annum ("Base
Salary"). Base Salary shall be paid in approximately equal installments in
accordance with the Company's and EBIC's customary payroll practices. Base
Salary may be increased from time to time in accordance with the normal
business practices of the Company and EBIC and, if so increased, shall not
thereafter during the Employment Period be decreased.
(b) Guaranteed Bonus. During the Employment Period, the Company shall
pay the Executive a guaranteed minimum bonus at the rate of $35,000 per annum
("Minimum Bonus"). Minimum Bonus shall be paid in approximately equal
semi-annual installments. Minimum Bonus may be increased from time to time in
accordance with the normal business practices of the Company and EBIC.
(c) Other Bonuses. During the Employment Period, the Executive shall be
eligible to receive, in addition to the Minimum Bonus, such annual bonus (the
"Annual Bonus") as may be awarded to him as the Chairman or Vice Chairman of the
Company shall determine, or if an annual incentive plan is adopted by the
Company or a
2
subsidiary thereof, in accordance with the terms of such plan.
(d) Pro Ration. The Executive shall be entitled to pro rata payments
under Section 5(b) above, and to be considered for pro rata payments under
Section 5(c) above, in each case to the extent that the period of his service to
the Company at the regular time for the determination for such payments is less
than the full period over which the determination of such payments is normally
measured.
(e) Expenses. The Company shall promptly reimburse the Executive for
all reasonable business expenses incurred during the Employment Period by the
Executive in performing services hereunder, including all expenses of travel and
living expenses while traveling on business or at the request of and in the
service of the Company, provided that such expenses are incurred and accounted
for in accordance with the policies and procedures established by the Company.
(f) Other Benefits. The Executive shall be entitled to participate in
all of the employee benefit plans currently maintained by the Company or a
subsidiary thereof, in accordance with the terms of such plans, and shall be
entitled to participate in or receive benefits under any employee benefit plan
made available by the Company or a subsidiary thereof in the future to its
executives and key management employees (including without limitation each
incentive plan, pension and retirement plan, supplemental pension and retirement
plan, stock option plan, life insurance and health-and-accident plan, medical
insurance plan, disability plan, survivor income plan, relocation plan and
vacation plan), subject to and on a basis consistent with the terms, conditions
and overall administration of such plans. Nothing paid to the Executive under
any plan currently in effect or made available in the future shall be deemed to
be in lieu of the salary or bonus payable to the Executive pursuant to
subsections (a) and (b) of this Section 5.
(g) Vacation. The Executive shall be entitled to 20 vacation days in
each calendar year (and a pro rata number of vacation days for any initial
portion of the Employment Period that is not a full calendar year).
3
The Executive shall also be entitled to all paid holidays given by the
Company to its executives.
(h) Services Furnished. During the Employment Period, the Company shall
furnish the Executive with office space, stenographic assistance and such other
facilities and services as shall be suitable to the Executive's position and
adequate for the performance of his duties as set forth in Section 3 hereof.
6. Offices. Subject to Section 3 hereof, the Executive agrees to serve
without additional compensation, if elected or appointed thereto, as a director
of the Company or any subsidiaries of the Company and as a member of any
committees of the board of directors of any such corporations, and in one or
more executive positions of any of the Company's subsidiaries, provided that the
Executive is indemnified for serving in any and all such capacities on a basis
no less favorable than is currently provided to any other director of the
Company or any of its subsidiaries, or any such executive position, as the case
may be.
7. Termination. The Executive's employment hereunder may be terminated
without any breach of this Agreement only under the circumstances set forth in
the following subsections (a), (b), (c), (d) and (e):
(a) Death. The Executive's employment hereunder shall terminate upon
his death.
(b) Disability. If, as a result of the Executive's incapacity due to
physical or mental illness, the Executive shall have been absent from the
full-time performance of his duties hereunder for the entire period of six
consecutive months, and within thirty (30) days after written Notice of
Termination (as defined in Section 8 hereof) is given shall not have returned to
the performance of his duties hereunder on a full-time basis, the Company may
terminate the Executive's employment hereunder for "Disability."
(c) Cause. The Company may terminate the Executive's employment
hereunder for Cause. For purposes of this Agreement, the Company shall have
"Cause" to terminate the Executive's employment hereunder upon the occurrence of
any of the following events:
4
(i) the conviction of the Executive for the
commission of a felony; or
(ii) the willful and continuing failure by the Executive to
substantially perform his duties hereunder (other than such failure resulting
from the Executive's incapacity due to physical or mental illness or subsequent
to the issuance of a Notice of Termination by the Executive for Good Reason)
after demand for substantial performance is delivered by the Company in writing
that specifically identifies the manner in which the Company believes the
Executive has not substantially performed his duties; or
(iii) the willful misconduct by the Executive (including, but
not limited to, breach by the Executive of the provisions of Section 11
hereof) that is demonstrably and materially injurious to the Company or
its subsidiaries, whether monetarily or otherwise.
For purposes of this Section 7(c), no act or failure to act on the Executive's
part shall be considered "willful" unless done or failed to be done by the
Executive in bad faith and without reasonable belief that the Executive's action
or omission was in the best interest of the Company.
(d) Good Reason. The Executive may terminate his employment
during the Employment Period hereunder for "Good Reason" within 90 days after
the occurrence, without the written consent of the Executive, of an event
constituting a material breach of this Agreement by the Company that has not
been fully cured within ten (10) days after written notice thereof has been
given
5
by the Executive to the Company. The Executive's right to terminate his
employment hereunder for Good Reason shall not be affected by his incapacity due
to physical or mental illness.
(e) Unilateral. The Executive may unilaterally terminate his
employment during the Employment Period other than for Good Reason, and without
the Company's consent, upon not less than 60 days written notice to the Company.
8. Termination Procedure.
(a) Notice of Termination. Any termination of the Executive's
employment by the Company or by the Executive (other than termination pursuant
to Section 7(a) hereof) shall be communicated by written Notice of Termination
to the other party hereto in accordance with Section 14. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall indicate
the specific termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated.
(b) Date of Termination. "Date of Termination" shall mean (i) if the
Executive's employment is terminated by his death, the date of his death, (ii)
if the Executive's employment is terminated for Disability pursuant to Section
7(b), thirty (30) days after Notice of Termination (provided that the Executive
shall not have returned to the performance of his duties on a full-time basis
during such thirty (30) day period), (iii) if the Executive's employment is
terminated for Cause pursuant to Section 7(c), the date specified in the Notice
of Termination, which shall not be earlier than the date of the Notice of
Termination and (iv) if the Executive's employment is terminated for any other
reason, the date on which a Notice of Termination is given or any later date
(within 60 days) set forth in such Notice of Termination.
9. Compensation upon Termination or During Disability.
(a) Disability; Death. During any period that the Executive fails to
perform his duties hereunder as a result of incapacity due to physical or mental
illness ("Disability Period"), the Executive shall continue to receive his full
Base Salary and Minimum Bonus at the rate in effect at the beginning of such
period and continue as a participant in all compensation and employee benefit
plans in which the Executive was participating
6
pursuant to Section 5(f) until his employment is terminated pursuant to Section
7(b) and shall continue to receive such Base Salary and Minimum Bonus for a
period of six months thereafter. Subsequent to the six-month period following
termination of the Executive's employment pursuant to Section 7(b), or in the
event the Executive's employment is terminated by reason of his death, the
Company shall have no further obligations to the Executive under this Agreement
and the Executive's benefits shall be determined under the Company's retirement,
insurance and other compensation programs then in effect in accordance with the
terms of such programs.
(b) By Company without Cause or by the Executive for Good Reason. If
during the Employment Period the Executive's employment is terminated by the
Company other than for Cause or Disability or by the Executive for Good Reason,
then --
(i) in addition to any amounts due the Executive pursuant to
Sections 5(a), 5(b) or 5(c) hereof, the Company shall continue to pay
to the Executive (or his legal representatives or estate) his Base
Salary and Minimum Bonus as in effect on the Date of Termination for
the remainder of the Employment Period or, if greater, for one year;
and
(ii) the Company or a subsidiary thereof shall maintain in
full force and effect, for the continued benefit of the Executive and
his dependents for the remainder of the Employment Period or, if
greater, for one year, all medical, dental and life insurance benefit
plans and programs in which the Executive was entitled to participate
immediately prior to the Date of Termination, provided that the
Executive's continued participation is possible under the general terms
and provisions of such plans and programs. In the event that the
Executive's participation in any such plan or program is barred, the
Company shall arrange to provide the Executive and his dependents with
benefits substantially similar to those which the Executive and his
dependents would otherwise have been entitled to receive under such
plans and programs from which their continued participation is barred.
7
(c) By Company for Cause or by the Executive Other than for Good
Reason. If the Executive's employment shall be terminated by the Company for
Cause or by the Executive other than for Good Reason, then the Company shall pay
the Executive his Base Salary and Minimum Bonus (at the rate in effect at the
time Notice of Termination is given) through the Date of Termination, and the
Company shall have no additional obligations to the Executive under this
Agreement except as set forth in subsection (d) of this Section 9.
(d) Compensation Plans. Following any termination of the Executive's
employment, the Company shall pay the Executive all unpaid amounts, if any, to
which the Executive is entitled as of the Date of Termination under any
compensation plan or program of the Company, at the time such payments are due.
10. Mitigation. The Executive shall not be required to mitigate the
amount of any payment provided for the Executive by seeking other employment or
otherwise, nor, except as is hereinafter specifically provided in this Section
10, shall the amount of any payment or benefit provided for the Executive
hereunder be reduced by any compensation earned by the Executive as the result
of employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Executive to the Company or otherwise. To the
extent that the Executive, during the relevant period described in Section
9(b)(i) hereof, shall receive from a subsequent employer base salary and/or any
bonus similar to the Minimum Bonus, the payments to be provided under the
provisions of said Section shall be correspondingly reduced. To the extent that
the Executive, during the relevant period described in Section 9(b)(ii) hereof,
shall receive from a subsequent employer benefits similar to those to be
provided under Section 9(b)(ii), the benefits to be provided under the
provisions of said Section shall be correspondingly reduced.
8
11. Confidential Information; Noncompetition Requirement.
(a) Confidential Information. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all trade secrets, confidential
information, and knowledge or data relating to the Company and its businesses,
which shall have been obtained by the Executive during the Executive's
employment by the Company and which shall not have been or now or hereafter have
become public knowledge (other than by acts by the Executive or representatives
of the Executive in violation of this Agreement). The Executive shall not,
without the prior written consent of the Company or as may otherwise be required
by law or legal process, communicate or divulge any such trade secrets,
information, knowledge or data to anyone other than the Company and those
designated by the Company. Any termination of the Executive's employment or of
this Agreement shall have no effect on the continuing operation of this Section
11(a).
(b) Noncompetition Requirement. During (1) any period that the
Executive is performing services hereunder, (2) a period of six months following
a termination of the Executive's employment by the Company for Cause or by the
Executive other than for Good Reason (if the Company so requests, notifies and
pays the Executive as provided in Section 11(c) below) and (3) with respect to
clauses (i) and (ii) of this Section 11(b), any period that the Executive is
entitled to payment pursuant to Section 9(b)(i), the Executive agrees that,
without the prior written consent of the Company, he shall not, directly or
indirectly, with or without pay, either as an employee, employer, consultant,
agent, principal, partner, stockholder, corporate officer, director, manager,
investor, lender, advisor, owner, associate or in any other individual or
representative capacity, (i) solicit, entice, encourage or otherwise attempt to
procure or service by telephone or otherwise accounts from any customers
(determined as of the Date of Termination) of the Company or a subsidiary
thereof for a business that is directly competitive (a "Competitive Business")
with the business in which the Company is then engaged (the "Business"), (ii)
solicit, entice or encourage any employee (determined as of the Date of
Termination) of the Company or a subsidiary thereof to terminate such employee's
employment in order to work in a Competitive Business, or (iii) upon the
9
written request of the Company, directly engage or participate in any
Competitive Business unless such Competitive Business is located more than
seventy-five (75) miles from the site, as of the Date of Termination, of the
Company's executive offices in New York and Connecticut; provided, however,
that (x) trading by the Executive for his own benefit or in proprietary
accounts shall not constitute a Competitive Business and (y) the Executive may
engage or participate in a business which has a Competitive Business as a
component or portion thereof if engaging or participating in such Competitive
Business does not constitute a substantial part of the Executive's duties.
(c) Salary and Bonus Continuation. Following a termination of the
Executive's employment by the Company for Cause or by the Executive other than
for Good Reason, the Company may elect, by written notice given to the Executive
within 7 days of such notice of termination, to require the Executive to perform
the covenant provided in subsection (b)(iii) of this Section 11 during the
six-month period following the effectiveness of such termination. As additional
consideration for the Executive's performance of such covenant during such
period, but only for so long as the Executive shall continue to perform such
covenant, the Company shall pay the Executive for each month during such
six-month period an amount equal to one-twelfth (1/12th) of the Executive's
Base Salary and Minimum Bonus. It is agreed and understood that such payment
constitutes full and fair consideration to the Executive for observance of such
covenant.
(d) Injunctive Relief. In the event of a breach or threatened breach of
subsections (a), (b) or (c) of this Section 11, the Executive agrees that the
Company shall be entitled to injunctive relief in a court of appropriate
jurisdiction to remedy any such breach or threatened breach, the Executive
acknowledging that damages would be inadequate and insufficient.
12. Indemnification; Legal Fees. The Company shall indemnify the
Executive to the full extent permitted by law and the by-laws of the Company for
all expenses, costs, liabilities and legal fees which the Executive may incur in
the discharge of his duties hereunder. The Company shall also reimburse the
Executive for any reasonable legal fees and expenses incurred by the Executive
in contesting or disputing any termination of the Executive's employment
hereunder or in seeking to obtain or enforce any right or benefit provided by
this Agreement, but only if the Executive shall substantially prevail with
respect to the preponderance of the matters at issue. Such payments shall be
made within five (5) days after the Executive's request for payment accom-
10
panied with such evidence of his having prevailed (as described
in the preceding sentence) and such evidence of the fees and expenses incurred,
as the Company may reasonably require. Any termination of the Executive's
employment or of this Agreement shall have no effect on the continuing operation
of this Section 12.
13. Successors; Binding Agreement.
(a) Company's Successors. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain such assumption and
agreement prior to the effectiveness of any such succession shall be a breach of
this Agreement and shall entitle the Executive to compensation from the Company
in the same amount and on the same terms as he would be entitled to hereunder if
the Company had terminated his employment other than for Cause, except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Date of Termination. As used in this
Agreement, "Company" shall mean the Company as herein before defined and any
successor to its business and/or assets as aforesaid which executes and delivers
the agreement provided for in this Section 13 or which otherwise becomes bound
by all the terms and provisions of this Agreement by operation of law.
(b) Executive's Successors. This Agreement and all rights of the
Executive hereunder shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive should
die while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts unless otherwise provided herein shall be
paid in accordance with the terms of this Agreement to the Executive's devisee,
legatee, or other designee or, if there be no such designee, to the Executive's
estate.
11
14. Notice. For the purposes of this Agreement, notices, demands and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by United States certified or registered mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive:
Xxxxx X. Xxxxxx
000 Xxxx 000xx Xxxxxx, Xxx. 00X
Xxx Xxxx, Xxx Xxxx 00000
With a copy to the offices of the Company
If to the Company:
Financial Services Acquisition Corporation
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
15. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and an authorized officer of the Company
(other than the Executive). No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. This Agreement
shall be binding on all successors to the Company. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of New York without regard to its conflicts of law principles. Any
payments provided for hereunder shall be paid net of any applicable withholding
required under federal, state or local
12
law. The obligations of the Company and the Executive under Sections 9, 10, 11
and 12 hereof shall survive the expiration of the term of or the termination of
this Agreement. The compensation and benefits payable to the Executive under
this Agreement shall be in lieu of any other severance benefits to which the
Executive may otherwise be entitled upon his termination of employment under any
severance plan, program, policy or arrangement of the Company.
16. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
18. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto; and any prior agreement
of the parties hereto in respect of the subject matter contained herein is
hereby terminated and cancelled.
13
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
FINANCIAL SERVICES ACQUISITION
CORPORATION
By:/s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
/s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx ("Executive")
