Employment Agreement - Instinet Corp. and J.A. McEntire IV
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is entered into as
of this 1st day October, 2001 by and between Instinet Corporation, a Delaware
corporation ("Instinet"), and J.A. McEntire IV ("Executive").
WITNESSETH:
WHEREAS, Executive is currently employed by PROTRADER Group
Limited Partnership, a Delaware limited partnership ("ProTrader") as its Chief
Executive Officer pursuant to the Executive Employment Agreement, dated as of
January 1, 2000, between Executive and ProTrader (the "ProTrader Employment
Agreement");
WHEREAS, pursuant to a series of transactions contemplated by
the Interest Purchase Agreement, dated as of July 23, 2001, among Instinet and
the holders of all of the issued and outstanding limited partnership interests
of ProTrader and membership interests of the sole general partner of ProTrader,
including Executive (the "Purchase Agreement"), Instinet is purchasing all of
the outstanding equity interests in ProTrader and of the sole general partner of
ProTrader, including all of the limited partnership interests of ProTrader
currently owned by Executive, and ProTrader will become a wholly owned indirect
subsidiary of Instinet (the "Transactions");
WHEREAS, in connection with and subject to consummation of the
Transactions, Instinet desires to employ Executive as a Senior Vice President of
U.S. Institutional Business functioning as the Co-Head of the Direct Access and
Small Hedge Fund Division of Instinet and Executive desires to accept such
employment, in each case, on the terms and conditions set forth herein;
WHEREAS, each of Instinet and Executive intends for this
Agreement to supersede and replace the ProTrader Employment Agreement in its
entirety; however, Executive will also continue as ProTrader's Chief Executive
Officer pursuant to the terms of this Agreement;
WHEREAS, each of Instinet and Executive hereby acknowledges
and agrees that Executive has had and will continue to have a prominent role in
the management of the business, and the development of the goodwill, of
ProTrader and its Affiliates (as defined below) including, following
consummation of the Transactions, of Instinet and its Affiliates, and has
established and developed and will continue to establish and develop relations
and contacts with the principal customers and suppliers of ProTrader and such
Affiliates , all of which constitute valuable goodwill of, and could be used by
Executive to compete unfairly with, ProTrader, Instinet and their respective
Affiliates; and
WHEREAS, (i) in the course of his employment with ProTrader
and Instinet prior to and following consummation of the Transactions, Executive
has obtained and will continue to obtain confidential and proprietary
information and trade secrets concerning the business and operations of
ProTrader, Instinet and their respective Affiliates that could be used to
compete unfairly with ProTrader, Instinet and their respective Affiliates; (ii)
Executive has and will continue to create and develop certain work products,
inventions and other intellectual property
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which constitute an essential portion of the property of ProTrader, Instinet and
their respective Affiliates, (iii) the covenants and restrictions contained in
Sections 8 through 14, inclusive, constitute a material inducement to Instinet
to enter into the Purchase Agreement and consummate the Transactions and are
intended to protect the legitimate interests of ProTrader, Instinet and their
Affiliates in their respective goodwill, trade secrets and other confidential
and proprietary information and intellectual property following consummation of
the Transactions; and (iv) Executive desires to enter into this Agreement and to
be bound by such covenants and restrictions.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and promises contained herein and for other good and valuable
consideration, Instinet and Executive hereby agree as follows:
l. Agreement to Employ. Upon the terms and subject to
the conditions of this Agreement, Instinet hereby employs Executive, and
Executive hereby accepts such employment, in each case, subject to the
consummation of the Transactions.
2. Term; Position and Responsibilities.
(a) Term of Employment. Unless Executive's employment
shall sooner terminate pursuant to Section 7, Instinet shall employ Executive on
the terms and subject to the conditions of this Agreement for a term commencing
on the date hereof (the "Commencement Date") and ending on the second
anniversary of the Commencement Date. The period during which Executive is
employed by Instinet pursuant to this Agreement shall be referred to as the
"Employment Period." The Employment Period shall be automatically extended for
one additional year unless at least three (3) months prior to the end of the
Employment Period Instinet or the Executive shall have given written notice of
the intent not to extend this Agreement. The provisions of Section 7 of this
Agreement do not and will not apply to notices not to extend the Agreement under
this section.
Should either Instinet or Executive give written notice of
intent not to renew this Agreement under this section and, in connection
therewith, Executive's employment with the Company terminates (other than for
Cause (as defined below)), Executive will be entitled to payment of an Accrued
Bonus Amount (as defined below) for the 2003 fiscal year within 30 days of
expiration of the Employment Period for the period of such fiscal year preceding
Executive's termination of employment.
(b) Position and Responsibilities. During the Employment
Period, Executive shall be employed by and serve Instinet as a Senior Vice
President of U.S. Institutional Business functioning as the Co-Head of the
Direct Access and Small Hedge Fund Division of Instinet and shall have such
duties and responsibilities as are customarily assigned to individuals serving
in such position and such other duties consistent with Executive's title and
position as an Instinet Executive Vice President of U.S. Institutional Business
(the "EVP-USIB") may specify from time to time. Executive shall also continue to
serve as ProTrader's Chief Executive Officer provided that Executive shall not
receive any additional compensation or benefits for his services as ProTrader's
Chief Executive Officer. Executive shall devote all of his skill, knowledge,
commercial efforts and working time to the conscientious and faithful
performance of his duties
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and responsibilities for Instinet and ProTrader (except for (i) vacation time as
set forth in Section 6(c) and absence for sickness or similar disability and
(ii) to the extent that it does not interfere with the performance of
Executive's duties hereunder, (A) such reasonable time as may be devoted to the
fulfillment of Executive's civic responsibilities, (B) subject to the prior
written approval of Instinet's Board of Directors (the "Board") and to
compliance with the provisions of Sections 8 through 14, inclusive, service on
boards of directors of other corporations and entities and (C) such reasonable
time as may be necessary from time to time for personal financial and family
matters).
3. Base Salary. As compensation for the services to be
performed by Executive during the Employment Period, the Executive shall earn a
base salary at an annualized rate of $280,000, payable in installments on
Instinet's regular payroll dates, but in any event no less frequently than
monthly. Instinet shall review Executive's base salary annually during the
Employment Period and, in its sole discretion, may increase (but may not
decrease) such base salary from time to time based upon such performance and
market factors as the Compensation Committee of the Board shall consider
relevant. The annual base salary payable to Executive under this Section 3 shall
hereinafter be referred to as the "Base Salary".
4. Incentive Compensation Arrangements.
(a) Annual Incentive Bonus. Executive shall receive a
guaranteed annual bonus for ProTrader's 2001 fiscal year and shall be eligible
to receive an annual performance bonus for each of ProTrader's 2002 and 2003
fiscal years provided in the case of each such annual bonus (the "Bonus") that
Executive remains continuously employed by Instinet through the applicable
payment date for such Bonus. The Bonus for each fiscal year shall be determined
as follows: (i) for fiscal year 2001, the guaranteed Bonus shall equal $250,000,
(ii) for fiscal year 2002, the projected target Bonus shall be equal to the
product of (A) $450,000 and (B) the Bonus Fraction (as defined below) and (iii)
for fiscal year 2003, the projected target Bonus shall be equal to the product
of (A) at least $450,000 and (B) the Bonus Fraction. The Bonus, if any, payable
pursuant to this Section 4(a) shall be paid to Executive as soon as reasonably
practicable following delivery to the Board of the audited financial statements
of ProTrader for the relevant fiscal year, but in no event later than March 1 of
the following year. The term "Bonus Fraction" shall mean, with respect to a
fiscal year, a fraction, the numerator of which is the Pretax Earnings (as
defined below) of ProTrader for the relevant fiscal year and the denominator of
which is $20,000,000. The term "Pretax Earnings" shall mean the earnings of
ProTrader for the relevant fiscal year determined prior to any deduction
therefrom for corporate income taxes and otherwise in accordance with generally
accepted accounting principals on the basis of the audited financial statements
of ProTrader prepared for such fiscal year.
(b) Option Grants. As soon as practicable after the
Commencement Date, Instinet shall grant Executive options (the "Options") to
purchase 75,000 shares of the common stock of Instinet under the Instinet 2000
Stock Option Plan (as the same may be amended and in effect from time to time,
the "Option Plan"). The terms and conditions of the Options, including the
grant, vesting, exercise, payment and all other terms of such Options, shall be
governed by the terms of the Option Plan, as amended and in effect from time to
time and any applicable agreement or other instrument evidencing any options
granted to Executive pursuant to the terms of the Option Plan. A copy of the
Option Plan is attached to the Agreement.
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5. Employee Benefits. During the Employment Period,
Executive shall be eligible to participate in the employee benefit plans and
programs maintained by Instinet from time to time in which senior executives of
Instinet are eligible to participate, including to the extent then maintained by
Instinet life, medical, dental, accidental and disability insurance plans and
profit sharing, pension, retirement, deferred compensation and savings plans, in
accordance with the generally applicable terms and conditions thereof as in
effect from time to time. The benefits referred to in this Section 5 shall be
provided to Executive on a basis that is commensurate with Executive's position
and duties with Instinet.
6. Perquisites and Expenses.
(a) General. During the Employment Period, Executive
shall be eligible to participate in all special benefit or perquisite programs
maintained by Instinet from time to time for the senior executives of Instinet,
on the generally applicable terms and conditions thereof as in effect from time
to time.
(b) Business Travel, Lodging, etc. During the Employment
Period, Instinet shall reimburse Executive for reasonable travel, lodging, meal
and other reasonable expenses incurred by him in connection with the performance
of his duties and responsibilities hereunder upon submission of evidence,
satisfactory to Instinet, of the incurrence and purpose of each such expense and
otherwise in accordance with the generally applicable terms and conditions of
Instinet's business expense reimbursement policy applicable to its senior
executives as in effect from time to time.
(c) Vacation. During the Employment Period, Executive
shall be entitled to paid vacation and paid holidays in accordance with the
plans, policies, programs and practices established and maintained by Instinet
for the executive officers of Instinet from time to time.
7. Termination of Employment.
(a) Termination Due to Death or Disability. Executive's
employment may be terminated due to Executive's death or Disability (as defined
below). In the event that Executive's employment hereunder terminates due to his
death or is terminated by Instinet due to Executive's Disability, the Employment
Period shall expire on the applicable Date of Termination and no compensation or
benefits shall be payable to or in respect of Executive in connection with such
termination except as provided in Section 7(f)(ii). For purposes of this
Agreement, "Disability" shall mean a physical or mental disability that, with
reasonable accommodation, prevents or would prevent the performance by Executive
of his duties hereunder for 180 or more consecutive or non-consecutive days in
any consecutive twelve-month period. The determination of Executive's Disability
shall (i) be made by an independent physician who is reasonably acceptable to
Instinet and Executive (or his representative), (ii) be final and binding on the
parties hereto and (iii) be based on such competent medical evidence as shall be
presented to such independent physician by Executive and/or Instinet or by any
physician or group of physicians or other competent medical experts employed by
Executive and/or Instinet to advise such independent physician.
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(b) Termination by Instinet for Cause. Executive's
employment may be terminated by Instinet for Cause (as defined below). In the
event of a termination of Executive's employment by Instinet for Cause, the
Employment Period shall expire on the applicable Date of Termination and no
compensation or benefits shall be payable to or in respect of Executive in
connection with such termination except as provided in Section 7(f)(ii). "Cause"
shall mean (i) the willful failure of Executive substantially to perform his
duties hereunder (other than any such failure due to Executive's physical or
mental illness or injury), after a written demand for substantial performance
has been delivered, and a reasonable opportunity of at least 30 days to cure has
been given, to Executive by Instinet, which demand identifies in reasonable
detail the manner in which Instinet believes that Executive has not
substantially performed his duties and which sets forth in reasonable detail the
steps necessary for Executive to cure his failure to substantially perform his
duties; (ii) Executive's dishonesty or gross negligence in the performance of
his duties hereunder or engaging in willful and serious misconduct, which in the
case of any such misconduct or gross negligence, has caused or is reasonably
expected to result in direct or indirect material injury to Instinet or any of
its Affiliates; (iii) breach by Executive of any material provision of this
Agreement or of any other written agreement with Instinet or any of its
Affiliates or (iv) Executive's conviction of, or entering a plea of guilty or
nolo contendere to, a crime that constitutes a felony or other crime of moral
turpitude or fraud.
(c) Termination Without Cause. Executive's employment may
be terminated by Instinet Without Cause (as defined below). In the event of a
termination of Executive's employment by Instinet Without Cause, the Employment
Period shall expire on the applicable Date of Termination and no compensation or
benefits shall be payable to or in respect of Executive in connection with such
termination except as provided in Section 7(f)(i). A termination "Without Cause"
shall mean a termination of Executive's employment by Instinet other than due to
Executive's death or Disability as described in Section 7(a) and other than for
Cause as described in Section 7(b).
(d) Termination by Executive. Executive may terminate his
employment for any reason, including for Good Reason (as defined below). In the
event of a termination of Executive's employment by Executive, the Employment
Period shall expire on the applicable Date of Termination and, if such
termination is other than for Good Reason, no compensation or benefits shall be
payable to or in respect of Executive in connection with such termination except
as provided in Section 7(f)(ii) and, if such termination is for Good Reason, no
compensation or benefits shall be payable to or in respect of Executive in
connection with such termination except as provided in Section 7(f)(i). A
termination of employment by Executive for "Good Reason" shall mean a
termination by Executive of his employment with Instinet within 30 days
following the occurrence, without Executive's consent, of any of the following
events: (i) the assignment to Executive of a title that is different from, and a
substantial diminution from, the title specified in Section 2; (ii) the
assignment to Executive of new or different duties and responsibilities that are
significantly different from, and that result in a substantial diminution of,
the duties and responsibilities of Executive that are specified in Section 2;
(iii) a requirement that the Executive relocate his or her primary place of
employment or service by more than 50 miles; or (iv) a breach by Instinet of any
material provision of this Agreement or of any other written agreement with
Executive; provided that, within 30 days following the occurrence of any of the
events set forth herein, Executive shall have delivered written notice to
Instinet of his intention to terminate his employment for Good Reason, which
notice specifies in reasonable detail the circumstances
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claimed to give rise to Executive's right to terminate his employment for Good
Reason, and Instinet shall not have cured such circumstances within 30 days of
receipt of such notice.
(e) Notice of Termination; Date of Termination.
(i) Notice of Termination. Any termination by Instinet
pursuant to Section 7(a), 7(b) or 7(c), or by Executive pursuant to Section
7(d), shall be communicated by a written Notice of Termination addressed to the
other party to this Agreement. A "Notice of Termination" shall mean a notice
stating that Executive or Instinet, as the case may be, is electing to terminate
Executive's employment with Instinet, stating the proposed effective date of
such termination, indicating the specific provision of this Section 7 under
which such termination is being effected and, if applicable, setting forth in
reasonable detail the circumstances claimed to provide the basis for such
termination.
(ii) Date of Termination. The term "Date of Termination"
shall mean (i) if Executive's employment is terminated by his death, the date of
his death, (ii) if Executive's employment is terminated by Instinet for Cause,
the date on which Notice of Termination is given or, if later, the effective
date of termination specified in such Notice of Termination, and (iii) if
Executive's employment is terminated by Instinet Without Cause, due to
Executive's Disability or by Executive for any reason, the date specified in the
applicable Notice of Termination provided that such date shall not be less than
30 days nor more than 60 days after the date on which Notice of Termination is
given.
(f) Payments Upon Certain Terminations.
(i) In the event of a termination of Executive's
employment by Instinet Without Cause or a termination by Executive of his
employment for Good Reason during the Employment Period, Instinet shall pay to
Executive (or, following his death, to Executive's estate) within 30 days of the
Date of Termination his (x) full Base Salary through the Date of Termination,
(y) reimbursement for any unreimbursed business expenses incurred by Executive
prior to the Date of Termination that are subject to reimbursement pursuant to
Section 6(b) and (z) payment for vacation time accrued as of the Date of
Termination but unused (such amounts under clauses (x), (y) and (z),
collectively the "Accrued Obligations"). In addition, in the event of any such
termination of Executive's employment, provided Executive executes and delivers
to Instinet a Release of Claims in substantially the form attached hereto as
Exhibit A, Executive (or, following his death, Executive's estate) shall be
entitled to the following compensation and benefits upon the effectiveness of
such Release of Claims, which shall constitute liquidated damages for all
purposes:
(A) continued payments of the Base Salary, payable in
installments in accordance with Instinet's regular payroll policies,
for the period beginning on the Date of Termination and ending on the
first anniversary of the Date of Termination (the "Severance Period");
(B) a pro rata Bonus for the fiscal year of ProTrader
that includes the Date of Termination (the "Accrued Bonus Amount") in
an amount equal to (i) if such termination occurs during fiscal year
2001, $250,000 multiplied by a fraction, the numerator of which
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is the number of calendar days in such fiscal year prior to the Date of
Termination and the denominator of which is 365 and (ii) if such
termination occurs during fiscal year 2002 or fiscal year 2003, the
Bonus that would have been payable to Executive pursuant to Section
4(a) hereof had Executive's employment with Instinet continued until
the last day of such fiscal year determined based solely on the Pretax
Earnings of ProTrader for the period (the "Accrued Bonus Period")
beginning on the first day of the relevant fiscal year and ending on
the Date of Termination after pro rating both the numerator and
denominator of the fraction described in Section 4(a)(ii)(B) by
multiplying each by a fraction, the numerator of which is the number of
calendar days in the relevant fiscal year prior to the Date of
Termination and the denominator of which is 365; provided that in the
case of any Accrued Bonus Amount payable to Executive for the 2003
fiscal year, the amount payable pursuant to this Section 7(f)(i)(B)
shall be reduced by the amount of any pro rata bonus payable to
Executive pursuant to Section 2(a) of this Agreement. The Accrued Bonus
Amount shall be paid to Executive as soon as reasonably practicable
following delivery to the Board of the audited financial statements of
ProTrader for the fiscal year of ProTrader that includes the Date of
Termination, but in no event later than March 1 of the following year;
and
(C) continued coverage during the Severance Period under
Instinet's medical and health insurance plans referred to in Section 5
(the "Continued Benefits") for Executive and his eligible dependents
participating in such plans immediately prior to the Date of
Termination, subject to timely payment by Executive of all premiums,
contributions and other co-payments required to be paid by senior
executives of Instinet under the generally applicable terms of such
plans as in effect from time to time.
Executive shall not have a duty to mitigate the costs to
Instinet under this Section 7(f)(i), nor shall any payments from Company to
Executive of Base Salary and Continued Benefits be reduced or canceled to the
extent of any compensation, fees or comparable benefit coverage earned by
(whether or not paid currently) or offered to Executive during the Severance
Period by a subsequent employer or other Person (as defined below) for which
Executive performs services, including but not limited to consulting services.
The foregoing not withstanding, should Executive receive benefits coverage by a
subsequent employer during the Severance Period, all healthcare medical benefits
coverage provided by Instinet to Executive shall immediately terminate.
(ii) If Executive's employment shall terminate upon his
death or Disability or if Instinet shall terminate Executive's employment for
Cause or Executive shall terminate his employment without Good Reason in any
such case during the Employment Period, Instinet shall pay to Executive (or, in
the event of Executive's death, to his estate) the Accrued Obligations plus one
month's base salary within 30 days following the Date of Termination. Executive
shall remain entitled to all benefits under COBRA. In addition, if Executive's
employment shall terminate upon his death or Disability during the Employment
Period in fiscal year 2001, 2002 or 2003, Instinet shall pay to the Executive
(or, in the event of Executive's death, to his estate) the Accrued Bonus Amount,
determined in accordance with Section 7(f)(i)(B) if any, in one lump sum within
five business days following the Bonus Payment Date for the fiscal year of
Instinet that includes the Date of Termination.
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(iii) Except as specifically set forth in this Section
7(f), no benefits payable to Executive under any otherwise applicable plan,
policy, program or practice of Instinet or its Affiliates in which Executive was
a participant during his employment with Instinet or any of its Affiliates
(including, without limitation, ProTrader) shall be limited by this Section
7(f), provided that Executive shall not be entitled to receive any compensation,
benefits or other payments under any such plan, policy, program or practice
providing any bonus or incentive compensation or severance compensation or
benefits (and the provisions of this Section 7(f) shall supersede the provisions
of any such plan, policy, program or practice). The provisions of this paragraph
shall not be construed to waive or undermine Executive's rights under the
Purchase Agreement, or under the Option Plan with respect to any options
previously granted Executive as of the Termination Date.
(g) Resignation upon Termination. Effective as of any
Date of Termination under this Section 7 or otherwise as of the date of
Executive's termination of employment with Instinet, Executive shall resign, in
writing, from positions then held by him with Instinet or any of its Affiliates.
8. Unauthorized Disclosure. During the period of
Executive's employment with Instinet or any of its Affiliates and following any
termination of such employment, without the prior written consent of the Board
or its authorized representative, except to the extent required by an order of a
court having jurisdiction or under subpoena or other compulsory process, in
which event, Executive shall use his best efforts to consult with the Board
prior to responding to any such order or subpoena, and except as required in the
appropriate performance of his duties hereunder during the period of his
employment, Executive shall not disclose any confidential or proprietary trade
secrets, customer lists, drawings, designs, programs, software, protocols,
information regarding product development, marketing plans, sales plans,
manufacturing plans, management organization information (including but not
limited to data and other information relating to members of the Boards of
Directors of Instinet or any of its Affiliates or to management of Instinet or
any of its Affiliates), operating policies or manuals, business plans, financial
records, packaging design or other financial, commercial, business or technical
information (a) relating to Instinet or any of its respective Affiliates or (b)
that Instinet or any of its Affiliates may receive belonging to suppliers,
customers or others who do business with Instinet or any of its Affiliates which
Executive knows or has reason to know is confidential information as defined in
this paragraph (collectively, "Confidential Information") to any third person
unless such Confidential Information has been previously disclosed to the public
or is in the public domain (other than by reason of Executive's breach of this
Section 8).
9. Non-Competition. During the period of Executive's
employment with Instinet and, following any termination thereof, the period
ending on the later of (a) six months after the Date of Termination or (b) the
last day of the Severance Period (such periods, collectively the "Restriction
Period"), Executive shall not, directly or indirectly, become employed by, serve
as agent or consultant to, or become an officer, partner, director, or
substantial stockholder or other owner (other than a holder of less than 1% of
the outstanding voting shares of any publicly held company) of, or serve in any
other manner or capacity, whatsoever, with any electronic communications network
or "ECN" competitor of Instinet (ECN as defined in 17 C.F.R. 240.11Ac1-1(a))
including but not limited to any subsidiary, Affiliate or division of Brass
Holdings, Brut ECN or Sungard which is involved in the provision of products
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or services related to the ECN business of Brass Holdings, Brut ECN or Sungard
and any of the following companies or their current subsidiaries: Island/Datek;
MarketXT; Archipelago Holdings L.L.C., Terra Nova or Townsend Analytics, Inc.;
Strike; Spear, Leeds & Kellogg or Redi-Book; Ecross Net; Bloomberg; Optimark;
ITG; Primex; Cybercorp; Tradescape; Knight Securities; NeoNet; LiquidNet; OM
Group; Nasdaq/AMEX; or the ECN business of any affiliate of any of the foregoing
companies, and further, Executive agrees that he will not, directly or
indirectly, serve in the same capacities as set forth above with any direct
access or day-trading firms, including but not limited to any of the following
companies or their current subsidiaries: Broadway Trading, Carlin Equities,
AllTech, Momentum, Andover, Hold Brother, Heartland, Trinex, Schoenfeld or ETG.
Nothing in this paragraph shall be construed to limit the Executive's ability to
serve in any of the above capacities with a non-ECN competitor of Instinet that
is not a direct access or day-trading firm or be a customer of any of the
companies set forth above or their current subsidiaries. Notwithstanding the
foregoing, the noncompetition provisions of this Section 9 shall not apply upon
a termination of Executive's employment with Instinet and its Affiliates in the
event that such termination of employment occurs as a result of the expiration
of this Agreement and the non-renewal of the Employment Period; provided, that
in the event that Instinet agrees to pay severance to Executive in the amount
and subject to the terms and conditions set forth in Section 7(f)(i) following
any such termination of employment, the noncompetition provisions of this
Section 9 will apply for the Severance Period.
10. Non-Solicitation of Employees. During the Restriction
Period, Executive shall not, directly or indirectly, for his own account or for
the account of any other Person, (i) solicit for employment, employ or otherwise
interfere with the relationship of Instinet or any of its Affiliates with any
natural person which Executive knew or had reason to know is or was employed by
or otherwise engaged to perform services for Instinet or any of its Affiliates
at any time during which Executive was employed by Instinet or any of its
Affiliates or during the six-month period preceding such solicitation,
employment or interference (in the case of any such activity by Executive after
the date of Executive's termination of employment), other than any such
solicitation or employment engaged in by Executive during the period of his
employment with Instinet or any of its Affiliates for the benefit of Instinet or
its Affiliates, or (ii) induce any employee of Instinet or any of its Affiliates
who is a member of management to engage in any activity which Executive is
prohibited from engaging in under any of Sections 8, 9, 10 or 11 or to terminate
his employment with Instinet. For purposes of this Section 10 and Section 11,
the terms "solicit" and "solicitation" mean any communication of any kind
whatsoever, regardless of by whom initiated, inviting, encouraging or requesting
any Person to take or refrain from taking any action.
11. Non-Solicitation of Customers. During the Restriction
Period, Executive shall not, directly or indirectly, for his own account or for
the account of any other Person, solicit or otherwise attempt to establish any
business relationship of a nature that is competitive with the business or
relationship of Instinet or any of its Affiliates with any Person which
Executive knew or had reason to know is or was a customer, client or distributor
of Instinet or any of its Affiliates at any time during which Executive was
employed by Instinet or any of its Affiliates or during the twelve-month period
preceding the date of Executive's termination of employment (in the case of any
such activity by Executive after the date of Executive's termination of
employment), other than any such solicitation engaged in by Executive during the
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period of his employment with Instinet or any of its Affiliates for the benefit
of Instinet or its Affiliates.
12. Return of Documents. In the event of the termination
of Executive's employment for any reason, Executive shall deliver to Instinet
all of the property of Instinet and its Affiliates and the non-personal
documents and data of any nature and in whatever medium of each of Instinet and
its Affiliates, and he shall not take with him any such property, documents or
data or any reproduction thereof, or any documents containing or pertaining to
any Confidential Information.
13. Work Product.
Executive agrees to disclose in confidence to Instinet any and
all inventions, improvements, designs, original works of authorship, formulas,
processes, computer software programs, databases and trade secrets (including,
but not limited to, market information and marketing designs, proposals and
concepts) (all taken together, the "Developments") that Executive makes,
conceives, first reduces to practice, or creates, either alone or jointly with
others while Executive is employed by Instinet or any of its Affiliates and
that: (a) result from any work performed by Executive for Instinet or any of its
Affiliates, whether or not in the normal course of Executive's duties or during
normal business hours; (b) reasonably relate to the actual or anticipated
business, services, products, research or development of Instinet or any of its
Affiliates; or (c) are developed with the use of Instinet's (or its Affiliates')
time, equipment, supplies or facilities. Executive must promptly disclose
Developments to Instinet whether or not such Developments are patentable,
copyrightable or protectible as trade secrets. Executive understands and agrees
that all Developments shall be the sole and exclusive property of Instinet and
shall constitute "work made for hire" (as that term is defined under Section 101
of the U.S. Copyright Act, 17 U.S.C. Section 101) with Instinet being the person
for whom the work was prepared and that all intellectual property rights therein
shall be the sole and exclusive property of Instinet, and that in the event that
any such Development is deemed not to be a "work made for hire," Executive
hereby irrevocably assigns, transfers and conveys to Instinet, exclusively and
perpetually, all right, title and interest which Executive may have or acquire
in and to such Development throughout the world, including without limitation
any copyrights and patents, and the right to secure registrations, renewals,
reissues, and extensions thereof. Executive agrees to sign any documents and to
do all lawful things necessary, whether during Executive's employment or after,
to assist Instinet to register, perfect, maintain and/or enforce Instinet's
rights in any Development, including without limitation any patent, copyright,
trade secret or other right or interest. Instinet agrees to provide Executive
with reasonable compensation and reimbursement of expenses for any substantial
assistance it requires from Executive regarding Work Product after the
termination of his employment. Nothing in this paragraph shall affect
Executive's ability independently to conceive, practice or create developments
which do not fall within the criteria set forth in this paragraph, which need
not be disclosed to Instinet and shall remain the property of the Executive.
14. Injunctive Relief with Respect to Covenants; Forum,
Venue and Jurisdiction. Executive acknowledges and agrees that the covenants,
obligations and agreements of Executive contained in Sections 8, 9, 10, 11, 12,
13 and 14 relate to special, unique and extraordinary matters and that a
violation of any of the terms of such covenants, obligations or
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agreements may cause Instinet irreparable injury for which adequate remedies are
not available at law. Therefore, Executive agrees that Instinet shall be
entitled to seek an injunction, restraining order or such other equitable relief
as a court of competent jurisdiction may deem necessary or appropriate to
restrain Executive from committing any violation of such covenants, obligations
or agreements. These injunctive remedies are cumulative and in addition to any
other rights and remedies that Instinet may have. Instinet and Executive hereby
irrevocably submit to the exclusive jurisdiction of the courts of New York, and
the Federal courts of the United States of America, in each case located in New
York City in respect of the injunctive remedies set forth in this Section 14 and
the interpretation and enforcement of Sections 8, 9, 10, 11, 12, 13 and 14
insofar as such interpretation and enforcement relate to any request or
application for injunctive relief in accordance with the provisions of this
Section 14, and the parties hereto hereby irrevocably agree that (a) the sole
and exclusive appropriate venue for any suit or proceeding relating solely to
such injunctive relief shall be in such a court, (b) all claims with respect to
any request or application for such injunctive relief shall be heard and
determined exclusively in such a court, (c) any such court shall have exclusive
jurisdiction over the person of such parties and over the subject matter of any
dispute relating to any request or application for such injunctive relief, and
(d) each hereby waives any and all objections and defenses based on forum, venue
or personal or subject matter jurisdiction as they may relate to an application
for such injunctive relief in a suit or proceeding brought before such a court
in accordance with the provisions of this Section 14. All disputes not relating
to any request or application for injunctive relief in accordance with this
Section 14 shall be resolved by arbitration in accordance with Section 17(b).
15. Assumption of Agreement. Instinet shall require any
Successor thereto to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that Instinet would be required to perform it
if no such succession had taken place. Failure of Instinet to obtain such
agreement prior to the effectiveness of any such succession shall be a breach of
this Agreement and shall entitle Executive to compensation from Instinet in the
same amount and on the same terms as Executive would be entitled hereunder if
Instinet had terminated Executive's employment Without Cause as described in
Section 7, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination.
16. Entire Agreement. This Agreement (including the
Exhibit hereto) constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof. All prior correspondence and proposals
(including but not limited to the ProTrader Employment Agreement) and all prior
promises, representations, understandings, arrangements and agreements relating
to such subject matter (including but not limited to those made to or with
Executive by any other Person and those contained in any prior employment,
consulting or similar agreement entered into by Executive and Instinet or any
predecessor thereto or Affiliate thereof) are merged herein and superseded
hereby. All prior agreements existing between Executive and ProTrader, except as
expressly assumed herein, are cancelled and superseded by this Agreement and are
of no force and effect.
17. Miscellaneous.
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(a) Binding Effect; Assignment. This Agreement shall be
binding on and inure to the benefit of Instinet and its respective successors
and permitted assigns. This Agreement shall also be binding on and inure to the
benefit of Executive and his heirs, executors, administrators and legal
representatives. This Agreement shall not be assignable by any party hereto
without the prior written consent of the other parties hereto, except as
provided pursuant to this Section 17(a). Instinet may effect such an assignment
without prior written approval of Executive upon the transfer of all or
substantially all of its business and/or assets (by whatever means), provided
that the Successor to Instinet shall expressly assume and agree to perform this
Agreement in accordance with the provisions of Section 15.
(b) Arbitration. Any dispute or controversy arising under
or in connection with this Agreement (except in connection with any request or
application for injunctive relief in accordance with Section 14) shall be
resolved by binding arbitration. The arbitration shall be , except to the extent
inconsistent with this Agreement, conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in effect at the
time of the arbitration, and otherwise in accordance with principles which would
be applied by a court of law or equity. The arbitrator shall be acceptable to
both parties to the arbitration. If the parties cannot agree on an acceptable
arbitrator, the dispute shall be heard by a panel of three arbitrators, one
appointed by Instinet, one appointed by Executive, and the third appointed by
the other two arbitrators. All expenses of arbitration shall be borne by the
party who incurs the expense, or, in the case of joint expenses, by both parties
in equal portions.
(c) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York without
reference to principles of conflicts of laws.
(d) Taxes. Instinet may withhold from any payments made
under this Agreement all applicable taxes, including but not limited to income,
employment and social insurance taxes, as shall be required by law.
(e) Amendments. No provision of this Agreement may be
modified, waived or discharged unless such modification, waiver or discharge is
approved by the Board or a Person authorized thereby and is agreed to in writing
by Executive. No waiver by any party hereto at any time of any breach by any
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 waiver of any provision of this Agreement shall be implied
from any course of dealing between or among the parties hereto or from any
failure by any party hereto to assert its rights hereunder on any occasion or
series of occasions.
(f) Severability. In the event that any one or more of
the provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
(g) Notices. Any notice or other communication required
or permitted to be delivered under this Agreement shall be (i) in writing, (ii)
delivered personally, sent by facsimile,
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by courier service or by certified or registered mail, first-class postage
prepaid and return receipt requested, (iii) deemed to have been received on the
date of delivery or, if so mailed, on the third business day after the mailing
thereof, and (iv) addressed as follows (or to such other address as the party
entitled to notice shall hereafter designate in accordance with the terms
hereof):
(A) If to Instinet, to it at:
Office of the General Counsel
Instinet Group Incorporated
3 Times Square
New York, New York 10036
(B) if to Executive, to him at his residential address as
currently on file with Instinet.
Copies of any notices or other communications given under this
Agreement shall also be given to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Attention: Deborah E. Kurtzberg, Esq.
(h) Offset. Instinet shall be entitled to offset any
amounts payable to Executive pursuant to this Agreement (including without
limitation any severance amounts) by any amounts Executive owes to Instinet or
its Affiliates pursuant to the Purchase Agreement or any of the Related
Agreements (as defined in the Purchase Agreement).
(i) Voluntary Agreement; No Conflicts. Executive
represents that he is entering into this Agreement voluntarily and that
Executive's employment hereunder and compliance with the terms and conditions of
this Agreement will not conflict with or result in the breach by Executive of
any agreement to which he is a party or by which he or his properties or assets
may be bound.
(j) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
(k) Headings. The section and other headings contained in
this Agreement are for the convenience of the parties only and are not intended
to be a part hereof or to affect the meaning or interpretation hereof.
(l) Certain Definitions.
"Affiliate": with respect to any Person, means any other
Person that, directly or indirectly through one or more intermediaries,
Controls, is Controlled by, or is under common Control with the first Person,
including but not limited to a Subsidiary of the first Person, a Person of which
the first Person is a Subsidiary, or another Subsidiary of a Person of which the
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first Person is also a Subsidiary, except in the case of Instinet, "Affiliate"
does not include any Reuters entity beyond Instinet Group Incorporated and all
the subsidiaries of Instinet Group Incorporated.
"Control": with respect to any Person, means the possession,
directly or indirectly, severally or jointly, of the power to direct or cause
the direction of the management policies of such Person, whether through the
ownership of voting securities, by contract or credit arrangement, as trustee or
executor, or otherwise.
"Person": any natural person, firm, partnership, limited
liability company, association, corporation, company, trust, business trust,
governmental authority or other entity .
"Subsidiary": with respect to any Person, each corporation or
other Person in which the first Person owns or Controls, directly or indirectly,
capital stock or other ownership interests representing 50% or more of the
combined voting power of the outstanding voting stock or other ownership
interests of such corporation or other Person.
"Successor": of a Person means a Person that succeeds to the
first Person's assets and liabilities by merger, liquidation, dissolution or
otherwise by operation of law, or a Person to which all or substantially all the
assets and/or business of the first Person are transferred.
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IN WITNESS WHEREOF, Instinet has duly executed this Agreement
by its authorized representative, and Executive has hereunto set his hand, in
each case effective as of the date first above written.
INSTINET GROUP INCORPORATED
By: _______________________________
Name:
Title:
Executive:
_______________________________
Name: J.A. McEntire IV
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