Compensation Agreement - Penson Worldwide Inc. and Philip A. Pendergraft
COMPENSATION AGREEMENT
This Compensation Agreement (this "Agreement") is made and
entered into as of October 20, 2000, by and between Penson Worldwide, Inc., a
Delaware corporation (the "Company"), and Philip A. Pendergraft, an individual
("Executive").
RECITALS
WHEREAS, the Company desires to hire Executive on an at-will
basis and Executive desires to become employed by the Company on an at-will
basis; and
WHEREAS, the Company and Executive have determined that it is
in their respective best interests to enter into this Agreement on the terms and
conditions as set forth herein.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and promises contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
AGREEMENT
1. EMPLOYMENT TERMS AND DUTIES
1.1 DUTIES. Executive shall serve as Executive Vice President.
Executive shall perform all reasonable duties assigned by the Board of Directors
(the "Board"). During Executive's employment, Executive shall devote his full
working time and efforts to the performance of his duties and the furtherance of
the interests of the Company and shall not be otherwise employed.
Notwithstanding the above, Executive may serve as a director or trustee of other
organizations, or engage in charitable, civic, and/or governmental activities
provided that such service and activities do not prevent Executive from
performing the duties required of Executive under this Agreement. Executive may
engage in personal activities, including, without limitation, personal
investments, provided that such activities do not interfere with Executive's
performance of duties hereunder and/or the provisions of Executive's written
agreements with the Company.
1.2 TERM. This Agreement is in effect through December 31,
2002. Prior to the expiration of this Agreement, the Board's compensation
committee shall review this Agreement to determine whether any changes or
adjustments are necessary. This provision is not intended to and does not alter
Executive's at-will employment status, as described in Section 4.1.
1.3 COMPENSATION AND BENEFITS.
1.3.1 BASE SALARY. In consideration of the services
rendered to the Company hereunder by Executive and Executive's covenants
hereunder and in the Company's Confidentiality, Proprietary Information and
Inventions Agreement, the Company shall pay Executive a salary at the monthly
rate of Thirty Seven Thousand Five Hundred Dollars and 00/100 (Four Hundred
Fifty Thousand Dollars ($450,000) annualized) (the "Base Salary"), less
statutory deductions and withholdings, payable in accordance with the Company's
regular payroll practices.
1.3.2 BONUS. The Company shall maintain a bonus pool
made up of an amount equal to 5% of the Company's pre-tax profits (the "Bonus
Pool"). The maximum Bonus Pool shall be One Million Seven Hundred Thousand
Dollars and 00/100 ($1,700,000) per year. Executive shall be entitled to a bonus
in the amount of 26.5% of the Bonus Pool up to a maximum payment of Four
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Hundred Fifty Thousand Dollars ($450,000) per year. Executive may elect to have
any bonus payment paid on a monthly, quarterly or annual basis. Should Executive
elect monthly or quarterly bonus payments during the year, the Company shall be
entitled to offset any overpayments made during that year from bonus payments
made during the following year.
1.3.3 STOCK OPTIONS. Subject to the approval of the
Board, on the effective date of the Company's initial public offering, the
Company shall grant an option to purchase 388,125 shares ("Option Shares") of
its Common Stock to Executive, in consideration for services rendered, at an
exercise price equal to the initial public offering price of the Company's
Common Stock. The option will become exercisable in twenty-four (24) successive
equal monthly installments ratably upon Executive's completion of each month of
service to the Company over the twenty-four (24) month period commencing the
month following the effective date of the initial public offering. On the one
year anniversary of the effective date of the initial public offering, the
Company shall grant to Executive an option to purchase 59,487 shares of its
Common Stock at an exercise price equal to the closing selling price on that
date. This option shall become exercisable in successive equal monthly
installments over the twenty-four (24) month period of service commencing the
month following the date such option is granted.
2. PROTECTION OF COMPANY'S CONFIDENTIAL, PROPRIETARY INFORMATION
AND INVENTIONS.
This Agreement, and Executive's employment hereunder, is
contingent upon Executive's execution of the Company's Confidentiality,
Proprietary Information and Inventions Agreement, which was provided to
Executive prior to this Agreement.
3. REPRESENTATIONS AND WARRANTIES BY EXECUTIVE
Executive represents and warrants to the Company that (i) this
Agreement is valid and binding upon and enforceable against him in accordance
with its terms, (ii) Executive is not bound by or subject to any contractual or
other obligation that would be violated by his execution or performance of this
Agreement, including, but not limited to, any non-competition agreement
presently in effect, and (iii) Executive is not subject to any pending or, to
Executive's knowledge, threatened claim, action, judgment, order, or
investigation that could adversely affect his ability to perform his obligations
under this Agreement or the business reputation of the Company.
4. MISCELLANEOUS
4.1 EMPLOYMENT. The Company is an at-will employer, which
means that Executive's employment with the Company is for no specific period of
time and may be terminated by the Company or Executive at any time, with or
without prior notice and with or without cause. This is the full and complete
agreement between Executive and the Company with respect to this term of
employment, and it supercedes any prior representations or agreement, whether
written or oral, concerning Executive's term of employment with the Company. The
at-will nature of Executive's employment may only be altered by written
agreement signed by the Company's Chairman and President.
4.2 NOTICES. All notices, requests, and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally against written receipt or by facsimile transmission with
answer back confirmation or mailed (postage prepaid by certified or registered
mail, return receipt requested) or by overnight courier to the parties at the
following addresses or facsimile numbers:
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If to Executive, to:
Penson Worldwide, Inc.
1700 Pacific Avenue, Suite 1400
Dallas, TX 75201
fax: (214) 765-1264
If to the Company, to:
Penson Worldwide, Inc.
1700 Pacific Avenue, Suite 1400
Dallas, TX 75201
fax: (214) 765-1264
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 4.2, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section 4.2, be deemed given upon receipt, and (iii) if
delivered by mail in the manner described above to the address as provided in
this Section 4.2, be deemed given upon receipt (in each case regardless of
whether such notice, request, or other communication is received by any other
person to whom a copy of such notice, request or other communication is to be
delivered pursuant to this Section). Any party from time to time may change its
address, facsimile number, or other information for the purpose of notices to
that party by giving written notice specifying such change to the other parties
hereto.
4.3 AUTHORIZATION TO BE EMPLOYED. This Agreement, and
Executive's employment hereunder, is subject to Executive providing the Company
with legally required proof of Executive's authorization to be employed in the
United States of America.
4.4 ENTIRE AGREEMENT. This Agreement supersedes all prior
discussions and agreements among the parties with respect to the subject matter
hereof and contain the sole and entire agreement between the parties hereto with
respect thereto.
4.5 WAIVER. Any term or condition of this Agreement may be
waived at any time by the party that is entitled to the benefit thereof, but no
such waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No waiver
by any party hereto of any term or condition of this Agreement, in any one or
more instances, shall be deemed to be or construed as a waiver of the same or
any other term or condition of this Agreement on any future occasion. All
remedies, either under this Agreement or by law or otherwise afforded, will be
cumulative and not alternative.
4.6 AMENDMENT. This Agreement may be amended, supplemented, or
modified only by a written instrument duly executed by or on behalf of each
party hereto.
4.7 BINDING ARBITRATION. Subject to the exceptions set forth
below, Executive and the Company agree that any and all claims or disputes
between Executive and the Company, or any of its employees, managers,
supervisors or agents, which arise out of Executive's employment or under the
terms of Executive's employment, shall be resolved through final and binding
arbitration, as specified herein. This shall include, without limitation,
disputes relating to this Agreement, Executive's employment by the Company, or
the termination thereof, claims for breach of contract or breach of the covenant
of good faith and fair dealing, and any claims of discrimination or other claims
under Title VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act, the Americans with
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Disabilities Act, the Family and Medical Leave Act, the Texas Commission on
Human Rights Act, the Employee Retirement Income Securities Act, the Racketeer
Influenced and Corrupt Organizations Act, or any other federal, state or local
law or regulation now in existence or hereinafter enacted and as amended from
time to time concerning in any way the subject of Executive's employment with
the Company or its termination. The only claims or disputes not covered by this
paragraph are disputes related to (i) claims for benefits under the unemployment
insurance or workers' compensation laws; (ii) issues affecting the validity,
infringement or enforceability of any trade secret or patent rights held or
sought by the Company or which the Company could otherwise seek; or (iii) claims
by the Company to enforce, through injunctive relief or otherwise, violations of
the Confidentiality, Proprietary Information and Inventions Agreement signed by
Executive. In each of these three exceptions, such claims or disputes shall not
be subject to arbitration and will be resolved pursuant to applicable law.
Binding arbitration will be conducted in accordance with the Code of Arbitration
Procedure of the National Association of Securities Dealers ("NASD"). Each party
will split the cost of the arbitration filing and hearing fees, and the cost of
the arbitrator. Executive and the Company understand and agree that the
arbitration shall be instead of any jury trial, and that the arbitrator's
decision shall be final and binding to the fullest extent permitted by law and
enforceable by any court having jurisdiction thereof. The prevailing party shall
be entitled to recover, from the non-prevailing party, the prevailing party's
costs and reasonable attorney's fees, in addition to all other legal or
equitable remedies to which it may otherwise be entitled.
4.8 NO THIRD PARTY BENEFICIARY. The terms and provisions of
this Agreement are intended solely for the benefit of each party hereto and the
Company's successors or assigns, and it is not the intention of the parties to
confer third-party beneficiary rights upon any other person.
4.9 NO ASSIGNMENT; BINDING EFFECT. This Agreement shall inure
to the benefit of any successors or assigns of the Company. Executive shall not
be entitled to assign his obligations under this Agreement.
4.10 HEADINGS. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
4.11 SEVERABILITY. The Company and Executive intend all
provisions of this Agreement to be enforced to the fullest extent permitted by
law. Accordingly, if an arbitrator or court of competent jurisdiction, as
applicable, determines that the scope and/or operation of any provision of this
Agreement is too broad to be enforced as written, the Company and Executive
intend that the court should reform such provision to such narrower scope and/or
operation as it determines to be enforceable. If, however, any provision of this
Agreement is held to be illegal, invalid, or unenforceable under present or
future law, and not subject to reformation, then (i) such provision shall be
fully severable, (ii) this Agreement shall be construed and enforced as if such
provision was never a part of this Agreement, and (iii) the remaining provisions
of this Agreement shall remain in full force and effect and shall not be
affected by illegal, invalid, or unenforceable provisions or by their severance.
4.12 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS APPLICABLE TO
CONTRACTS EXECUTED AND PERFORMED IN SUCH STATE WITHOUT GIVING EFFECT TO
CONFLICTS OF LAWS PRINCIPLES.
4.13 JURISDICTION. With respect to any suit, action, or other
proceeding arising from (or relating to) this Agreement to which the arbitration
provisions of 4.7 do not apply, the Company and Executive hereby irrevocably
agree to the non-exclusive personal jurisdiction and venue of the United States
District Court for the Northern District of Texas (and any Texas State Court
within Dallas County, Texas).
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4.14 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by facsimile, each of which will be deemed an
original, but all of which together will constitute one and the same instrument.
[SIGNATURE PAGE TO COMPENSATION AGREEMENT FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the date first written above.
"COMPANY"
PENSON WORLDWIDE, INC.
By: /s/ ROGER J. ENGEMOEN, JR.
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Name: Roger J. Engemoen, Jr.
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Title: Chairman
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"EXECUTIVE"
PHILIP A. PENDERGRAFT
/s/ PHILIP A. PENDERGRAFT
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Executive's Signature
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Address
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Address
[SIGNATURE PAGE TO COMPENSATION AGREEMENT]
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