Executive Employment Agreement - Penson Worldwide Inc. and Philip A. Pendergraft
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT ("EA") is made and entered into
this 21st day of April, 2006, by and among Philip A. Pendergraft ("EXECUTIVE"),
a resident of Texas, and PENSON WORLDWIDE, INC., a Delaware corporation (the
"COMPANY").
I. EMPLOYMENT.
A. Executive's employment pursuant to his EA is conditioned on
Executive's signature agreement to, and ongoing compliance with the Confidential
Information, Invention Assignment and Arbitration Agreement, which is EXHIBIT A
hereto ("CONFIDENTIAL INFORMATION AGREEMENT").
B. Commencing on January 1, 2006 ("Effective Date"), and for an
indefinite period thereafter, Executive shall be employed pursuant to this EA by
the Company, or by a designated subsidiary of the Company (the Company or such
subsidiary, as the case may be, that employs Executive will be hereinafter
referred to as the "EMPLOYER"). Executive's employment pursuant to this EA shall
continue for an indefinite period, until terminated by either Executive or
Employer.
C. Subject only to the provisions of Section VII., Executive's
employment shall be "at-will," meaning that either Executive or Employer may
terminate it at any time, with or without any advance notice and with or without
any particular reason or cause or advance procedures. It also means that
Executive's job duties, responsibilities, title, reporting level, regular place
of employment, compensation, benefits and Employer's policies and procedures can
be changed, in the sole discretion of Employer, at any time, with or without
advance notice and with or without any particular reason or cause or advance
procedures.
D. In agreeing to be employed pursuant to this EA, Executive
represents and warrants that Executive has not previously entered into, and in
the future shall not enter into, any agreement, either written or oral, that
conflicts with any of Executive's obligations under this EA or may be an
impediment to Executive providing services under this EA.
II. POSITION.
A. Executive shall be employed by Employer on a regular full-time
basis, with the job title of Chief Executive Officer, reporting to the Board of
Directors. Executive shall have such job duties and responsibilities
commensurate with such position, which may change as Employer's business needs
and market conditions change from time-to-time.
B. Executive's initial, regular place or base of employment shall
be at the Company's principal office in Dallas, Texas.
C. During Executive's employment with Employer, Executive shall
devote Executive's full business time, best efforts, abilities, energies and
skills to the good faith performance of Executive's job duties and
responsibilities hereunder, and shall perform said duties and responsibilities
at all reasonable times and places in accordance with reasonable directions and
requests made by the Employer consistent with Executive's position and
Employer's business needs as determined by Employer. Executive shall not engage
in any other employment, business, or business-related activity unless Executive
receives prior written approval from Employer's Board of Directors to hold such
outside employment or engage in such business or activity, which written
approval shall not be unreasonably withheld if such outside employment, business
or activity would not in any way be competitive with the business or proposed
business of Employer or otherwise conflict with or adversely affect in any way
Executive's ability to fulfill Executive's obligations under this EA. Executive
shall not be required to receive prior written approval for activities related
to family investments or charitable organizations.
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III. CASH COMPENSATION.
A. Salary Compensation.
1. Executive shall earn and be paid a salary, at a
weekly rate of Fourteen Thousand Four Hundred Twenty-Three Dollars and Eight
Cents ($14,423.08) which is equivalent to Seven Hundred Fifty Thousand Dollars
and No Cents ($750,000.00) per annum. However, effective on the first day of the
calendar month following the date of the consummation of the initial public
offering of the Company's securities ("IPO"), Executive's salary shall be
reduced to a weekly rate of Nine Thousand Six Hundred Fifteen Dollars and
Thirty-Eight Cents ($9,615.38) which is equivalent to Five Hundred Thousand
Dollars and No Cents ($500,000.00) per annum.
2. Executive's salary shall be paid at periodic
intervals in accordance with Employer's regular payroll schedule and practices.
3. Executive's salary rate shall be reviewed from
time-to-time, generally on an annual basis, and may be changed by the
Compensation Committee of Company's Board of Directors ("Compensation
Committee") in its sole discretion.
B. Annual Bonus Compensation Opportunities. As a performance and
retention incentive, Executive shall be eligible to earn an annual bonus award.
The terms and conditions of each such annual bonus award opportunity shall be
provided in writing to Executive not later than January 31 of each calendar year
for that calendar year and shall be attached to this Agreement each year as
Attachment 1. However, the following will apply to each annual bonus award
opportunity made available to Executive during Executive's employment with
Employer.
1. Each annual bonus award opportunity will be
conditioned on Employer's achievement of calendar year revenue and net income
objectives, and any other objectives, established in the discretion of the Board
for the calendar year.
2. Each annual bonus award opportunity also will be
conditioned on Executive's full-time active services to Employer continuously
through the calendar year. However, should the Executive be terminated without
cause, leave for good reason, die or become permanently disabled, the Executive
or his estate will be entitled to all bonus compensation that has been earned in
accordance with the terms of the then applicable annual bonus award opportunity
but not yet paid at the time of Executive's departure, death or permanent
disability, including any bonus compensation earned for partial portions of a
calendar year.
3. It is the intent of Employer, generally, to pay
annual bonuses no later than March 15 of the next calendar year, after
Employer's audited financial statements for the calendar year just ended have
been prepared and approved by the Board.
4. The Employer may provide for periodic progress bonus
awards against the total annual bonus opportunity.
C. Discretionary Bonuses. To the extent Employer exceeds both its
revenue and its net income and/or any other objectives established for a
calendar year by the Board, Executive shall be eligible for a discretionary
bonus award, which would be in addition to Executive's annual bonus award
opportunity. Whether to grant such additional bonus award and, if so, in what
form and amount, shall be determinations made in the sole discretion of the
Board.
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D. Withholdings. All cash compensation paid to Executive pursuant
to this EA, including any Severance Benefits per Section VII.B., shall be
subject to (i) any and all applicable federal, state and local income and
employment withholding taxes; (ii) other amounts required to be deducted or
withheld by Employer under applicable law or order requiring the withholding or
deduction of amounts otherwise payable as compensation or wages to employees;
(iii) such other withholdings and deductions as may be allowed by applicable
law; and (iv) such other withholdings and deductions as may be authorized in
writing by Executive.
IV. EMPLOYEE BENEFITS & EXPENSES.
A. Employee Benefits. Executive shall be eligible to participate
in all employee benefits and benefit plans generally made available to executive
employees of Employer from time-to-time, subject to the terms, conditions and
relevant qualification criteria for such benefits and benefit plans. Employer,
in its discretion, may change from time-to-time the employee benefits and
benefit plans it generally makes available to its executive employees.
B. Expenses & Expense Reimbursement. Executive shall be entitled
to reimbursement from Employer of all reasonable and necessary business, travel
and entertainment expenses incurred by Executive in the performance of
Executive's job responsibilities hereunder, subject to the expense reimbursement
policies and procedures of Employer in effect from time-to-time which, at
minimum, shall require completion and submission of expense reimbursement
request forms and receipts evidencing such expenses.
V. EQUITY
A. Option. On the date on which the agreement between the Company
and the underwriter or underwriters managing the IPO is executed and priced
("UNDERWRITING AGREEMENT"), Executive shall be granted a stock option to
purchase up to One Hundred Thousand (100,000) shares of Company common stock
("Option") under the Company's 2000 Stock Incentive Plan ("PLAN"). The Option
will be granted as an Incentive Stock Option to the extent permissible under
applicable law. The per share exercise price of the Option will be equal to the
price per share at which the Company's common stock is to be sold in the IPO
pursuant to the Underwriting Agreement before underwriting discounts and
commissions, and the vesting commencement date of the Option ("VESTING
COMMENCEMENT DATE") shall be the effective date of the IPO. The Option will vest
and become exercisable over four (4) years in sixteen (16) quarterly
installments of Six Thousand Two Hundred Fifty (6,250) shares each, which will
vest and become exercisable on successive quarterly anniversaries of the Vesting
Commencement Date, provided that Executive has continuously provided active
services to Employer throughout each relevant quarter. The Option will be
evidenced by the Company's form stock option agreement under the Plan, and will
be subject to the terms and conditions of that agreement and the Plan. Executive
will be eligible for future additional stock option grants in the discretion of
the Board of Directors.
B. Stock Options & Change in Control. The stock option agreement
for the Option, and the stock option agreement for each stock option granted
after the Option, shall contain the following terms relative to a "Change in
Control" (defined in Section VI.B.2., below).
1. Immediately upon a "Change in Control," twenty-five
percent (25%) of all of Executive's then-outstanding option shares, under each
stock option granted to Executive, shall immediately vest and be exercisable,
unless Executive's then-outstanding options are not assumed by the surviving
entity in such Change in Control transaction, in which case, one hundred percent
(100%) of Executive's then-outstanding option shares, under all stock options
granted to Executive, shall immediately vest and be exercisable.
2. If Executive's employment with the Company or a
successor is terminated "Without Cause" (defined in Section VI.C., below) by the
Company or its successor
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within 12 months after the effective data of a "Change in Control," or if
Executive terminates his employment with the Company or its successor for "Good
Reason" within 12 months after the effective date of a "Change in Control", then
one hundred percent (100%) of Executive's then-outstanding option shares, under
each stock option granted to Executive, shall immediately vest and be
exercisable as of the effective date of Executive's termination of employment
("TERMINATION DATE") provided that the conditions of Section VII.A.2. and
Section VII.B.2.a.-b., below, have been satisfied by Executive no later than 90
days after the Termination Date.
C. Stock Options at Death or Permanent Disability. The terms of
the Option and each stock option granted after the Option shall provide that one
hundred percent (100%) of Executive's then-outstanding option shares, under all
stock options granted to Executive, shall immediately vest and become
exercisable in the event of Executive's death or permanent disability.
VI. TERMINATION OF EMPLOYMENT
Although Executive's employment shall be "at-will," termination of the
employment relationship between Executive and Employer shall be classified in
one of the following categories, for the limited purpose only of the Severance
Benefit Opportunity of Section VII.B., below:
A. By Employer for Cause. Termination of Executive's employment
by Employer for "CAUSE" means a termination by Employer of Executive's
employment for any of the following reasons, upon written notice to Executive at
any time:
1. Executive's conviction or plea of nolo contendre to a
felony offense or crime of violence or dishonesty; or
2. The Company's good faith determination, upon majority
vote of Company's Board of Directors, that:
a. Executive has engaged in theft, fraud,
embezzlement or dishonest conduct with respect to any property or funds of
Employer, any affiliate, subsidiary or parent of Employer, or of any vendor,
partner, employee or customer of Employer that is harmful to Employer, to an
affiliate, subsidiary or parent of Employer or to the business, operations,
reputation or business prospects of any of them;
b. Executive has breached any of his
obligations under the Confidential Information Agreement signed by Executive as
a condition of this EA;
c. Executive has engaged in an act of
misconduct which has had an adverse effect on the business, operations,
reputation or business prospects of Employer or of an affiliate, subsidiary or
parent of Employer; or
d. Executive has failed to adequately perform
the material duties or fulfill the responsibilities of Executive' position;
provided, however, that Employer shall have given written notice to Executive,
and Executive shall have had a period of thirty (30) days within which to
cure/remedy the failure(s), described in such written notice giving rise to
possible termination for Cause under this Section VI.A.2.d.; or
e. Executive has breached one or more of
Executive's other obligations under this EA; provided, however, that Employer
shall have given written notice to Executive, and Executive shall have had a
period of thirty (30) days within which to cure/remedy the breach, described in
such written notice, giving rise to possible termination for by Employer for
Cause under this Section VI.A.2.e.
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B. By Executive for Good Reason.
1. Termination of Executive's employment by Executive
shall qualify as a termination by Executive for "GOOD REASON" if all of the
following conditions are met:
a. Executive shall have given advance written
notice of termination to Employer ("NOTICE"), in accordance with Section
VIII.H., below, that includes the following:
(1) a description of the act, omission
or breach giving rise to the Notice, and
(2) a date on which Executive intends
the termination to be effective ("Termination Date"), that is no earlier than 30
days after the date the Notice is delivered to the Employer;
b. The act, omission or breach described in the
Notice is one of the following:
(1) A reduction, without Executive's
consent, of Executive's salary rate or bonus award opportunity by more than ten
percent (10%), unless the salary rates of all Employer's executive-level
employees also have been reduced by at least such percent;
(2) A relocation, without Executive's
consent, of Executive's regular place or base of employment by more than fifty
(50) miles; or
(3) A breach by Employer of one or more
of its obligations under this EA; and
c. The act, omission or breach described in the
Notice first occurred:
(1) during the 12 months after the
effective date of a "Change in Control" of the Company, or
(2) no earlier than 90 days before the
date the Notice is delivered to the Employer; and
d. The Employer failed to remedy, before the
Termination Date, the act, omission or breach described in the Notice.
2. A "CHANGE IN CONTROL" means a change in the ownership or
control of the Company, effected through any of the following transactions first
occurring after the Company's IPO, and excluding the Company's IPO:
a. a merger, consolidation or reorganization
approved by the Company's stockholders, unless securities representing more than
fifty percent (50%) of the total combined voting power of the outstanding voting
securities of the successor entity are immediately thereafter beneficially
owned, directly or indirectly and in substantially the same proportion, by the
persons who beneficially owned the outstanding voting securities of the Company
immediately prior to such transaction;
b. any stockholder-approved sale, transfer or
other disposition of all or substantially all of the Company's assets in
complete liquidation or dissolution of the Company; or
c. the acquisition, directly or indirectly, by
any person or related group of persons (other than the Company or a person that
directly or indirectly controls, is
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controlled by or is under common control with, the Company) of beneficial
ownership (within the meaning of Rule 13d-3 of the Securities Exchange Act of
1934, as amended) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Company's outstanding securities.
C. Without Cause. Executive's employment is terminated "WITHOUT
CAUSE" if it is terminated in any of the following circumstances:
1. due to Executive's death; or
2. due to Executive's "DISABILITY" which shall mean a
termination upon written notice, or on such prospective date specified in such
notice, delivered by the Employer to Executive, due to Executive's inability,
either with or without reasonable accommodation, by reason of any physical or
mental injury, illness or impairment, to substantially perform the essential
functions required of Executive under this EA for a period of six (6) months
during any rolling 12 month period; or
3. upon any notice, written notice, or on such
prospective date specified in such notice, delivered by the Employer to
Executive, for a reason other than any of the reasons described as "Cause" in
Section VI.A., above; or
4. upon any notice, written notice, or on such
prospective date specified in such notice, delivered by Executive to the
Employer, for a reason other than a reasons and the conditions that qualify as
"Good Reason" under Section VI.B.1., above.
VII. OBLIGATIONS UPON TERMINATION.
A. Any Termination. In addition to any other obligations that may
apply under the Confidential Information Agreement and/or under this EA, the
Parties shall have the following obligations upon any termination of their
employment relationship pursuant to this EA:
1. Employer:
a. Employer shall pay Executive (or Executive's
estate) any unpaid cash compensation earned by Executive pursuant to this EA
through the Termination Date; and
b. Employer shall allow Executive and/or
Executive's dependents, at their sole cost and expense, to continue
participation after the Termination Date in those group health benefit plan in
which Executive and/or Executive's dependents are entitled to participate
pursuant to the terms and conditions of the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA").
c. Employer shall allow Executive and/or
Executive's estate, at their sole cost and expense, to exercise all of
Executive's vested option shares, including those vested consistent with Section
V.B., in accordance with the terms and conditions of the applicable stock option
plan and stock option agreement that govern such option shares.
2. Executive:
a. No later than fifteen (15) days after the
Termination Date, Executive shall return to Employer all items of property that
had been provided for Executive's use during employment with Employer or with
any of its predecessors, or had been paid for by Employer or any of its
predecessors, and
b. No later than fifteen (15) days after the
Termination Date,
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Executive shall return to Employer all documents created or received during the
course of Executive's employment with Employer or with any of its predecessors,
except Executive may retain Executive's personal copies of documents evidencing
Executive's hire, compensation, benefits, stock options, this EA, the
Confidential Information Agreement and any documents that may have been received
by Executive as a shareholder of the Company.
B. Severance Benefit Opportunity. Subject to the conditions of
Section VII.B.2.-3., below, Employer shall provide Severance Benefits to
Executive for the Severance Period in the event that Executive's employment with
Employer (i) is terminated by Employer without Cause or (ii) is terminated by
Executive for Good Reason. Such Severance Benefits, if and to the extent
provided, are not compensation for past services or labor performed by
Executive, but to preserve the goodwill existing between the Parties, to resolve
any disputes or disagreements that may exist between them relating to
Executive's employment and the termination thereof, and to assist Employer and
Executive to move onto other business and employment opportunities,
respectively.
1. Severance Benefits during Severance Period. The
"SEVERANCE PERIOD" shall be twelve (12) months measured from the Effective Date
of the Post Termination General Release of All Claims Agreement. "SEVERANCE
BENEFITS" shall consist of the following:
a. Post-Termination Payments. Periodic
payments, at the Executive's weekly salary rate in effect just prior to the time
of the act or omission resulting in Executive's termination ("SEVERANCE
PAYMENTS"). Such payments shall be paid at periodic intervals in accordance with
Employer's regular payroll schedule and practices.
b. COBRA Premium Payments. At Employer's full
expense, continuation coverage for Executive and Executive's eligible
dependent(s), existing as of the Termination Date, under Employer's group health
plans, subject to the terms, conditions and election requirements of COBRA or
applicable state law counterpart to COBRA ("PAID HEALTH PLAN COVERAGE"). Any
additional period of post-termination health plan coverage to which Executive
and Executive's dependents may be eligible under COBRA, or under a state law
counterpart to COBRA, after expiration of COBRA Premium Benefits provided under
this Section VII.B.1.b., shall be at Executive's full personal cost and expense.
2. Severance Benefit Conditions & Limitations.
a. In order to receive any Severance Benefits,
Executive must execute a Post-Termination General Release of All Claims
Agreement, in a form provided by Employer that is substantially similar in all
material respects to EXHIBIT B hereto, which is made a part of this EA ("GENERAL
RELEASE"); provided, however, that the General Release becomes effective and
enforceable in accordance with its terms.
b. Executive shall provide, cooperatively and
in good faith, to those person(s) designated by Employer, all information
necessary to effectively transition to others Executive's job, technical,
operational and financial information and knowledge, work product and pending
work, as and to the extent requested by Employer during the 60 day period after
the Termination Date.
c. In order to receive and continue to receive
Severance Benefits, Executive must comply with Executive's obligations under the
Confidential Information Agreement in accordance with its terms, and must comply
with the restrictions of this Section VII.B.2.c. For the purposes of this
Section VII.B.2.c., the following definitions shall apply: (i) "BUSINESS" means
the development, marketing and sales of technology-based processing solutions
for the execution, clearing, custody and settlement of securities, commodities
and/or foreign exchange transactions; (ii) "CUSTOMER" means any person, entity
or business that was a customer, or was specifically targeted to become a
customer, of the Employer or the Company during the one (1)
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year period prior to the Termination Date; (iii) "TERRITORY" means and includes
each of the fifty (50) states of the United States of America, Canada and the
United Kingdom; and (iv) "SERVICE PROVIDER," means any person who is during the
Severance Period, and was at any time during the one (1) year period prior to
the Termination Date, an employee, consultant, or independent contractor of the
Employer or the Company.
(1) Non-Solicitation of Service
Providers. During the Severance Period, Executive shall not, anywhere in the
Territory, on Executive 's own behalf or on behalf of any other person or
entity, either directly or indirectly recruit, encourage or solicit any Service
Provider to leave or reduce that Service Provider's employment with or services
to the Employer or to the Company
(2) Non-Solicitation of Customers.
During the Severance Period, Executive shall not, anywhere in the Territory, on
Executive's own behalf or on behalf of any other person or entity, either
directly or indirectly, contact, recruit, encourage or solicit any Customer with
respect to the Business.
(3) Non-Competition. During the
Severance Period, Executive shall not, anywhere in the Territory, whether as an
employee, agent, consultant, advisor, independent contractor, proprietor,
partner, officer, director, joint venturer, trustee, stockholder, investor,
lender or guarantor of any corporation, partnership or other entity, or in any
other capacity, either directly or indirectly (on Executive's own behalf or on
behalf of any other person or entity) (a) engage in the Business or (b) permit
Executive 's name to be used in the Business. Notwithstanding the foregoing,
Executive may own, directly or indirectly, solely as an investment, up to two
percent (2%) of any class of "publicly traded securities" of any business that
is competitive with or similar to the Business or any person who owns a business
that is competitive with or similar to the Business.
Executive acknowledges and agrees that each of the restrictions of Section
VII.B.2.c. is reasonable with respect to subject matter, length of time, and
geographic area, and will not prevent Executive from pursuing an occupation or
living during the Severance Period.
d. In the event that Executive breaches any of
Executive's obligations under Section VII.B.2.c., above, prior to expiration of
the Severance Period:
(1) Executive shall cease to be
entitled to any further Severance Benefits, otherwise to be provided under
Section VII.B.1., above, except that Executive shall be eligible to receive or
retain, as the case may be, Severance Benefits equal to fifty percent (50%) of
the total amount of Severance Benefits to which Executive otherwise would have
been eligible to receive in the absence of such breach; and
(2) Employer shall be entitled to
recover from Executive any and all amounts that may have been paid to or on
behalf of Executive as Severance Benefits in excess of fifty percent (50%) of
the total amount of Severance Benefits to which Executive otherwise would have
been eligible to receive in the absence of Executive's breach; and
(3) Employer shall be entitled to take
any and all action(s) necessary to pursue legal and equitable remedies against
Executive, including, without limitation, injunctive relief.
e. Severance Benefits provided under Section
VII.B.1., above, shall in all cases be reduced by any payments or benefits to
which Executive may be entitled under the federal Worker Adjustment Retraining
Notification Act, and/or under any applicable state law counterpart statute.
f. Severance Benefits under Section VII.B.1.,
above, shall be the only severance and/or measure of damages or loss, to which
Executive shall be entitled upon any termination of Executive's employment with
Employer. Except as set forth in Section VII.A.1., above, no other amounts or
benefits shall be owed to Executive including, but not limited to, under any
other plan, program or practice of Employer or of any subsidiary, affiliate or
parent of Employer.
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3. Delayed Commencement Date for Severance Benefits.
Notwithstanding any provision to the contrary in this EA, no Severance Benefits
to which Executive otherwise becomes entitled under this EA, shall be made or
provided to Executive prior to the EARLIER of (i) the expiration of the six
(6)-month period measured from the date of his "separation from service" with
the Employer (as such term is defined in Treasury Regulations issued under
Section 409A of the Internal Revenue Code("Code")) or (ii) the date of his
death, if Executive is deemed at the time of such separation from service to be
a "key employee" within the meaning of that term under Code Section 416(i) and
such delayed commencement is otherwise required in order to avoid a prohibited
distribution under Code Section 409A(a)(2). Upon the expiration of the
applicable Code Section 409A(a)(2) deferral period, all Severance Benefits that
otherwise would have payable to Executive during the deferral period shall be
paid or reimbursed to Executive in a lump sum, and any remaining Severance
Benefits due to Executive pursuant to this EA shall be paid or provided in
accordance with Section VII.B.1.
VIII. MISCELLANEOUS.
A. Governing Law. This EA shall be construed and interpreted in
accordance with the laws of State of Texas.
B. Severability. Should any provision (or portion of provision)
of this EA become or be deemed unenforceable, such unenforceability will not
affect any other provision and this EA shall be construed as if such
unenforceable provision (or portion of provision) had never been contained
herein, except that if the restrictions of VII.B.2.c.(2)-(3)., are found to be
unenforceable, Executive shall not be entitled to more than 50% of the Severance
Benefits provided by Section VII.B.1.
C. Remedies. Except as otherwise provided herein, all rights and
remedies provided pursuant to this EA or by law shall be cumulative, and no such
right or remedy shall be exclusive of any other. Either of the Parties may
pursue any one or more rights or remedies hereunder or may seek damages or
specific performance in the event of the other party's breach hereunder or may
pursue any other available remedy.
D. Arbitration. Any and all disputes by and among any of the
Parties that arise from or relate to this EA shall be resolved through final and
binding arbitration which shall be instead of any civil litigation, except to
the extent specifically set forth in Section VIII.D.5., below. Each of the
Parties hereby waives their respective right to a jury trial as to such
disputes, and understands and agrees 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 provisions of this Section VIII D. shall
replace and supersede the provisions of Section 5 of the Confidential
Information Agreement in its entirety.
1. Arbitration shall be conducted in Dallas, Texas, in
accordance with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association ("AAA Rules") then in effect and to the
extent consistent with applicable law, although the arbitrator shall be selected
by mutual agreement of the parties and need not be a panel member of the
American Arbitration Association. It is the Parties' intent that, prior to
initiating arbitration proceedings, the Parties shall mediate their dispute with
one another in a good faith attempt to avoid the necessity of resolving their
disputes through arbitration proceedings.
2. The arbitrator shall allow the discovery authorized
and/or required by applicable law in arbitration proceedings, including but not
limited to discovery available under applicable State and/or federal arbitration
statutes, including the Federal Arbitration Act.
3. The arbitrator shall issue a written award that sets
forth the essential findings of fact and conclusions of law on which the award
is based. The arbitrator shall have the
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authority to award any relief authorized by applicable law in connection with
the asserted claims or disputes. The arbitrator's award shall be subject to
correction, confirmation, or vacation, as provided by any applicable law setting
forth the standard of judicial review of arbitration awards.
4. Each party to the arbitration shall bear their own
respective attorneys' fees and costs incurred in connection with the
arbitration; and the parties shall share equally the arbitrator's fees, unless
law applicable at the time of the arbitration hearing requires otherwise. The
arbitrator shall award attorneys' fees and costs of arbitration to the
prevailing party. If there is a dispute as to which of the Parties is the
prevailing party in the arbitration, the Arbitrator will decide this issue.
5. Any dispute or controversy arising out of or relating
to any interpretation, construction, performance or breach of Sections 2 and 4
of the Confidential Information Agreement may, at the election of the Company in
its sole discretion, be brought in any state or federal court of competent
jurisdiction. In connection therewith, Executive acknowledges that his breach of
or other failure to comply with any provision of the foregoing Sections would
cause irreparable harm to the Company for which there is no adequate remedy at
law, and that in the event of such breach or failure the Company shall have, in
addition to any and all remedies at law, the right to an injunction, specific
performance, or other equitable relief to prevent the violation of his
obligations thereunder.
6. To the extent that any of the AAA Rules or anything
in this Section VIII.D. conflicts with any arbitration procedures required by
applicable law, the arbitration procedures required by applicable law shall
govern. In the event Executive is a registered representative under the rules of
the National Association of Securities Dealers, Inc. ("NASD"), then
notwithstanding anything to the contrary in this Section, if required by the
rules of the NASD, the arbitration shall be conducted in accordance with the
rules and procedures of the NASD, the Company's Employee Handbook and other
Company documentation (each of which contain policies and procedures relating to
NASD arbitration).
E. Assignment; Successors. This EA may not be assigned by
Executive. This EA may be assigned by Employer, upon written notice to
Executive, and shall be binding on the successors of Employer.
F. Changes to Agreement. This EA may only be changed by another
written agreement signed by Executive and by a duly authorized representative of
Company. Notwithstanding the foregoing, the Company reserves the right to amend
this EA in any way that the Company in good faith determines may be advisable to
help ensure compliance with Section 409A of the Code and any regulations or
other guidance thereunder (together, "Section 409A"). Any such amendment shall
preserve, to the extent reasonably possible and in a manner intended to satisfy
Section 409A and avoid the imputation of penalties or taxes under Section 409A,
the original intent of the parties and the level of benefits hereunder.
G. Counterparts. This EA may be executed in more than one
counterpart, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
H. Notices. Notice under this EA, including any change to the
following and assignment of this EA by the Company, shall be delivered as
follows:
To the Company: Penson Worldwide, Inc.
1700 Pacific Avenue, Suite 1400
Dallas, Texas 75201
Attn: Chairman, Compensation Committee
To: Executive: Philip A. Pendergraft
---------------------
1700 Pacific Avenue, Suite 1400
Dallas, Texas 75201
Page 10 of 11 Philip A. Pendergraft
Executive Employment Agreement
<PAGE>
I. Complete Agreement. There are no promises, representations or
commitments made by, between or among Executive and Employer regarding the
subjects covered by this EA that do not appear expressly written in this EA. In
executing this EA, each of the Parties represents and warrants to the others
that it is not relying on any promises, representations, negotiations,
statements or commitments that are not expressly set forth in this EA. This EA
supersedes, cancels and replaces any and all prior verbal and written agreements
between the Parties regarding any of the subjects covered by this EA.
IN WITNESS WHEREOF, the Parties have executed this EA as of the date first above
written.
EXECUTIVE:
/s/ Philip A. Pendergraft
----------------------------------------------------
Name: Philip A. Pendergraft
THE COMPANY -- Pension Worldwide, Inc.:
/s/ John Drew
----------------------------------------------------
By: John Drew
Title: Chair, Compensation Committee
Board of Directors
Page 11 of 11 Philip A. Pendergraft
Executive Employment Agreement