Exhibit 10.17
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Christopher Giancarlo Employment
Agreement
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EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT
(“Agreement”) is entered into as of March 26, 2007 (the
“Effective Date”), by and between GFI Group Inc.
(the “Company” or “GFI”), a Delaware
Corporation and Christopher Giancarlo, an individual
(“Executive”).
WHEREAS, Executive is currently
employed as the Executive Vice President - Corporate Development of
the Company; and
WHEREAS, the Company and Executive
desire to enter into this Agreement to set out the terms and
conditions for the continued employment relationship of Executive
with the Company.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements set forth herein and for other
good and valuable consideration, the receipt and sufficiency of
which hereby are acknowledged, the parties hereto agree as
follows:
1.
Nature of Employment
.
(a)
The Company
hereby agrees to continue to employ Executive as a full-time
employee in the position of Executive Vice President -
Corporate Development and Executive accepts such continued
employment, on the terms and conditions set forth in this
Agreement, for the Term of this Agreement (as defined in Section 2
below). Throughout the Term, Executive will report directly
to the Chief Executive Officer of the Company (the
“CEO”) and will perform and discharge well and
faithfully such duties and functions consistent with his position
as Executive Vice President - Corporate Development as may be
assigned to him from time to time by the CEO in his discretion in
connection with the conduct of the Company’s business,
including with respect to any business conducted by any affiliate
of the Company (including any subsidiaries, parents, or other
enterprises under common ownership or control with the Company)
(each a “Related Entity”). If Executive is
elected or appointed an officer or director of the Company, or any
other Related Entity, during the period of Executive’s
employment with the Company, Executive will serve in such capacity
without additional compensation.
(b)
During the period
of Executive’s employment with the Company, Executive:
(i) will devote 100% of his employment energies, interests,
abilities and time to the performance of his duties and shall not,
without the written consent of the CEO, render to others any
service of any kind for compensation; (ii) will not render services
to any business activity that is directly or indirectly competitive
with any business conducted by the Company or any Related Entity;
(iii) will observe and carry out such reasonable rules,
regulations, policies, directions and restrictions as may be
established from time to time by the Board or the board of
directors of any Related Entity, including but not limited to the
published standard policies, practices and procedures of the
Company as in effect from time to time, as applied to other senior
executives of the Company; and (iv) do such reasonable traveling as
may be required in connection with the performance of such duties
and responsibilities consistent with such traveling requirements
prior to the execution of this Agreement.
(c)
Executive may
serve on corporate, civic and/or charitable boards with the consent
of the Company ,
provided that
the Company may require Executive
to resign any or all such board seats in their sole discretion if
they believe such board participation conflicts with
Executive’s role with the Company or is otherwise too
time-consuming or distracting to Executive.
(d)
Executive
acknowledges that this Agreement contains non-competition and
non-disclosure of proprietary information provisions, and Executive
agrees to comply with these provisions. Executive understands that
entering into and complying with these provisions is a condition to
Executive’s continued employment and that failure to comply
with the terms and conditions of these provisions may result in
termination “for cause” under this Agreement and in
other damages to the Company.
2.
Term of Employment
.
Subject to earlier termination in
accordance with the terms hereof, the term of this Agreement shall
commence on the Effective Date and shall continue through February
28, 2010; provided , however , that Executive’s
employment by the Company will automatically be extended by twelve
(12) additional months on March 1, 2010 and on each subsequent
March 1, unless either party provides written notice to the other
party no less than sixty (60) days prior to such March 1 of its
intention not to extend the term of Executive’s
employment. The period from the Effective Date until the
later of February 28, 2010 or the end of any subsequent extension
of Executive’s employment pursuant to this Section 2, unless
earlier terminated as provided herein, shall be referred to as the
“Term”. If the Company provides a Notice of
Non-Renewal, the provisions of Section 5(b) shall continue to apply
in accordance with its terms after the expiration of the Term
unless and until the parties provide otherwise in a written
agreement executed by both parties.
3.
Compensation and
Benefits .
For the full and faithful
performance of the services to be rendered by Executive and in
consideration of Executive’s obligations under this
Agreement, provided Executive is not in breach of this Agreement,
the Company shall pay to Executive and Executive shall be entitled
to receive:
(a)
Base Compensation
. As compensation for
his services to be rendered hereunder, the Company shall pay to
Executive a base salary at the rate of $265,000 per annum until
March 1, 2007 and thereafter at the rate of $300,000 per annum (as
applicable, the “Base Salary”), which shall be payable
in periodic installments in accordance with the standard payroll
practices of the Company in effect from time to time. During
the Term, Executive’s Base Salary shall be reviewed at least
annually by the Company and may be increased (but not decreased)
from time to time as shall be determined by the
Company.
(b)
Discretionary Bonus
. The Company may pay
Executive a discretionary bonus, in such an amount, on such terms
and at such time as may be determined by the Company its sole and
absolute discretion (“Discretionary Bonus”), it being
specifically understood that the Discretionary Bonus may be paid in
any combination of cash, restricted stock units
(“RSUs”)
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and/or other
forms of equity or other compensation approved by the Compensation
Committee of the Board (the “Committee”).
(c)
Fringe Benefits
. During the Term, the
Company shall also make available to Executive such benefits and
perquisites as are generally provided by the Company to its
executives at Executive’s level of responsibility,
provided , however , that nothing herein contained
shall be deemed to require the Company to adopt, maintain or
continue in effect any particular plan or policy. Executive
shall further be entitled to paid vacation, holidays, personal days
and sick days in accordance with the Company’s standard
policies and procedures in effect from time to time;
provided, however , Executive shall be entitled to
not less than four weeks of vacation per year.
(d)
Expenses . During the Term, the Company
shall reimburse Executive in accordance with applicable Company
policy in effect from time to time, for normal, reasonable and
approved out-of-pocket business expenses incurred by Executive in
connection with the performance of his duties and responsibilities
hereunder; provided that Executive submits documentation
reasonably required by Company expense reimbursement policies and
procedures in effect and as amended from time to time. The
Company shall also reimburse Executive for such annual expenses and
membership costs, consistent with past practice, incurred by
Executive for the purpose of attending continuing legal education
programs and otherwise maintaining good standing in the New York
State bar.
(e)
Withholding
. All amounts of
compensation payable to Executive hereunder shall be subject to,
and paid after reduction for, any and all required deductions or
withholdings for federal, state, local and foreign income tax
withholding, Social Security, Medicare, unemployment or other
similar government benefit or insurance contributions, and any
other deductions or withholdings required by law or authorized by
Executive.
(f)
Stay Bonus
. Within 10 days after the
occurrence of a Change in Control, the Company will pay Executive a
lump sum cash payment of $1,000,000 (the “Stay
Bonus”). If Executive voluntarily terminates his
employment during the six (6) month transition period following the
Change in Control for any reason other than due to the assignment
of duties materially inconsistent with Executive’s duties and
responsibilities with the Company immediately prior to the Change
in Control (“Inconsistent Duties”), Executive shall be
required to repay the Stay Bonus. It is understood and agreed
that requesting Executive to transition matters for which he is
responsible prior to the Change in Control shall not be considered
to be Inconsistent Duties hereunder.
4.
Special Covenants
.
(a)
Nondisclosure of Confidential and
Proprietary Information .
(i)
Executive
acknowledges that before and during the Term, Executive has had and
will have access to and possession of trade secrets, confidential
information and/or proprietary information (collectively, and as
defined more extensively below, “Confidential
Information”) of the Company and its Related Entities and
their respective clients. Executive recognizes
and
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acknowledges that
this Confidential Information is valuable, special and unique to
the business of the Company and each Related Entity, and that
access to and knowledge thereof are essential to the performance of
Executive’s duties to the Company and to each Related Entity,
if applicable. During the time that Executive is an employee
of the Company and at all times thereafter, Executive will keep
secret and will not use or disclose any Confidential Information to
any person or entity, in any fashion or for any purpose whatsoever,
except at the request of the Company or as may be required by
applicable law.
(ii)
The term
“Confidential Information”, includes, but is not
limited to, information written, in digital form, in graphic form,
electronically stored, orally transmitted or memorized concerning
or relating to the Company or
any of its Related Entities, including all financial data
relating to the business of GFI and/or any of its Related Entities,
lines of credit or debt obligations, customer pricing information,
personal and contract information about or relating to GFI
employees, or traders and other dealer representatives, profit and
loss statements, broker, desk or company productivity data,
financial models, computer software programs, source and other
codes, information about direct communication lines, electronic and
voice trading systems and screen systems, all information about the
Company’s or any of its Related Entities’ business
prospects and opportunities, and all other information about or
gained from any customer to the Company or to any Related Entity
providing services during Executive’s employment with the
Company and all information reasonably determined by the Company to
be proprietary or confidential. Notwithstanding the
foregoing, this clause shall not apply (i) to any disclosure of
Confidential Information required by law or by any court,
arbitrator, mediator or administrative or legislative body
(including any committee thereof) with actual or apparent
jurisdiction to order Executive to disclose or make accessible,
(ii) to the extent required in connection with any other
litigation, arbitration or mediation involving this Agreement,
including, but not limited to, the enforcement of this Agreement,
(iii) as to Confidential Information that is or becomes generally
known to the public or within the relevant trade or industry other
than due to Executive’s violation of Section 4(a)(i), or (iv)
information disclosed to Executive in good faith by a third person
who, to the best of Executive’s knowledge, was legally
entitled to disclose such information.
(iii)
Executive further
recognizes that GFI and certain Related Entities have received and
in the future will receive from third parties confidential or
proprietary information (“Third Party Information”)
subject to a duty on their part to maintain the confidentiality of
such information and to use it only for certain limited
purposes. Executive will hold Third Party Information in the
strictest confidence and will not disclose to anyone (other than
Company personnel who need to know such information in connection
with their work for GFI) or use, except in connection
with
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work for GFI,
Third Party Information unless expressly authorized by GFI in
writing.
(iv)
All Confidential
Information, proprietary and/or confidential files and records are
and at all times shall remain the exclusive property of the
Company. Executive agrees to store and maintain all
Confidential Information in a secure place. Executive agrees
to make no use of any Confidential Information on his own behalf or
on behalf of any other person or entity other than the Company.
Executive further agrees that any property situated on the
Company’s premises and owned by the Company, including
computer disks and other digital, analog or hard copy storage
media, filing cabinets, lockers, desks or other work areas, is
subject to inspection by Company personnel at any time with or
without notice. When Executive leaves the employ of the
Company, Executive will deliver to the Company (and will not keep
in his possession, recreate or deliver to anyone else) any and all
devices, records, recordings, data, notes, reports, proposals,
lists, correspondence, specifications, drawings, blueprints,
sketches, materials, computer materials, equipment, other documents
or property, together with all copies thereof (in whatever medium
recorded), belonging to the Company, any Related Entity or their
successors or assigns.
(b)
Assignment of Inventions and
Intellectual Property .
(i)
The term
“Proprietary Rights” means all trade secrets,
trademarks, service marks, patents, copyrights, mask works and
other intellectual property rights throughout the world. The
term “Inventions” means all Proprietary Rights,
inventions, ideas, processes, formulas, source and object codes,
data, programs, technology, writings, software programs, other
works of authorship, know-how, discoveries, developments, designs,
schematics, manuals, drawings, techniques, employee suggestions,
development tools, computer printouts, or any claim of rights (or
any related improvements or modifications to the
foregoing).
(ii)
Subject to
Sections 4(b)(iii) and 4(b)(iv), Executive hereby assigns and
agrees to assign in the future (when any such Invention or
Proprietary Right is first reduced to practice or first fixed in a
tangible medium, as applicable) to the Company all right, title and
interest in and to any and all Inventions (and all Proprietary
Rights with respect thereto) whether or not patentable or
registrable under copyright or similar statutes, made or conceived
or reduced to practice or learned by Executive, either alone or
jointly with others, during or at any time after the period of
employment with the Company, which (a) relate to methods, designs,
brokerage or other products, trading systems and screens or any
other processes which relate to or pertain to the actual or
anticipated business, functions, operations, research or
development of the Company, (b) arise (wholly or partly) from
Executive’s efforts during any time that Executive
is
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employed by the
Company or utilizing any physical or intellectual property owned by
the Company, or any Related Entity, or (c) is based on any
information or knowledge gained by Executive through his employment
with the Company. Inventions assigned to the Company, or to a
third party as directed by the Company pursuant to this Section,
are hereinafter referred to as “Company
Inventions.”
(iii)
During
Executive’s period of employment, and for twelve (12) months
thereafter, Executive will promptly disclose to the Company, fully
and in writing, all Inventions authored, conceived or reduced to
practice by Executive, either alone or jointly with others.
In addition, Executive will promptly disclose to the Company all
patent applications filed by Executive or on his behalf
within twelve (12) months
after termination
of employment.
(iv)
Executive also
agrees to assign all right, title and interest in and to any
particular Company Invention to a third party as directed by the
Company.
(v)
Executive
acknowledges that all original works of authorship which are made
by Executive (solely or jointly with others) within the scope of
employment and which may be protected by copyright are “works
made for hire”, pursuant to United States Copyright Act (17
U.S.C. Section 101) and are the property of the Company or any
Related Entity, as applicable, without limitation which shall own
all rights of copyright therein including the sole and exclusive
right to reproduce such works in multiple copies of distribution or
sale to the public and to create and exploit derivative works based
thereon.
(vi)
Executive will
execute, verify and deliver assignments of such Proprietary Rights
to the Company or its designee. Executive’s obligation
to assist the Company with respect to Proprietary Rights relating
to such Company Inventions in any and all countries will continue
beyond the termination of employment and the Company will provide
compensation at a reasonable rate after termination for the time
actually spent by Executive at the Company’s request on such
assistance.
(c)
No Inducement or Employment of
Other Employees .
During
the Term and the twelve (12) month
period immediately following termination of Executive’s
employment for any reason (the “Period of Restriction”)
, Executive will not, directly
or indirectly employ, assist any person, entity or enterprise to
employ, solicit the employment of, or attempt to affiliate for
profit in any manner with (as applicable, a “Prohibited
Action”), any employee of, or any independent contractor
performing services for, the Company or any of its Related
Entities, or any person who was an employee or independent
contractor with the Company or any of its Related Entities at any
time during the six (6) month period immediately preceding the
Prohibited Action, and Executive will not induce or otherwise
encourage any such
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employee or
independent contractor to leave the employ of, or to cease
rendering services to the
Company or any of its Related
Entities.
(d)
Non-Solicitation,
Non-Competition .
(i)
During
the Period of
Restriction, Executive
agrees to refrain, directly or indirectly, from accepting business
from, doing business with, inducing or soliciting any Customer or
vendor of the Company to do business with any business or entity in
competition with any business in which the Company or any entity
related to the Company is engaged, except on behalf
of the Company or as authorized in writing by the Company.
For the purposes of this
Section 4(d), the term (i) “Customers” shall include
any person who is or was a customer or a Prospective Customer of
the Company or any of its Related Entities at any time during the
last twelve (12) months of Executive’s employment under this
Agreement and (ii) “Prospective Customer” shall include
any person or entity contacted or solicited by Executive at any
time during his period of employment by the Company or its Related
Entities for the purpose of becoming a customer of the Company or
any Related Entity.
(ii)
During the Period
of Restriction, Executive may not engage anywhere in the world in
activities, render services to or affiliate himself, in any
capacity (including as a director, officer, employee, consultant,
independent contractor, partner, member or investor) (except save
by way of portfolio investment in shares quoted on a recognized
stock exchange whereby Executive owns less than 1% of the
outstanding stock of such entity), with any entity that provides
services that are competitive with those rendered by the Company or
any Related Entity. Notwithstanding the foregoing, during the
Period of Restriction, (i) Executive may affiliate himself with a
law firm that provides legal services to a competitor of the
Company provided Executive does not directly provide advice to such
competitor during the Period of Restriction and (ii) with the
Company’s prior written consent (as determined by the CEO in
his sole discretion), Executive may render services to any entity
whose primary business purpose is not competitive with any services
rendered by the Company or any related entity.
(e)
Covenants Reasonable; Additional
Remedies; Due Consideration .
(i)
Executive
acknowledges that he will occupy a position of responsibility and
trust, in which Executive will have access to Confidential
Information and will be privy to the confidential business plans
and prospects of the Company and its Related Entities, that
Executive’s relationships with employees of the Company
and/or its Related Entities may be critical to the continued
success of the Company and/or its Related Entities, that the
business of the Company and its Related Entities are conducted on a
worldwide basis, and that Executive’s services under this
Agreement are
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important,
valuable and unique. Executive (i) further acknowledges that the
restrictive covenants of this Section 4 are reasonably necessary to
protect valuable business interests of the Company and its Related
Entities and that it is Executive’s intention and the
intention of the Company that such restrictions and remedies shall
be enforceable to the fullest extent permissible by law and (ii)
agrees that he will not challenge the reasonability or
enforceability of any of the restrictive covenants of this Section
4; provided that Executive may challenge the enforceability of
Section 4 based upon a breach of this Agreement by the Company that
occurs prior to any violation of Section 4 by Executive that is not
cured within 30 days of receipt of written notice from Executive
that is given without 30 days of the occurrence of such purported
breach. If it shall be found by a court of competent
jurisdiction that any such restriction or remedy is unenforceable
but would be enforceable if some part thereof were deleted or the
period or area of application reduced, then such restriction or
remedy shall apply with such modification as shall be necessary to
make it enforceable.
(ii)
The parties
hereto acknowledge and agree that in the event of a violation of
any of the provisions of this Section 4 (including Section
4(e)(i)), the Company and/or its Related Entities would suffer
irreparable harm, the damages suffered by the Company and/or its
Related Entities may be difficult to ascertain, and the Company
and/or its Related Entities may not have an adequate remedy at
law. Accordingly, the parties agree that in the event of such
a breach by Executive, if the Company so elects, the Company and/or
its Related Entities shall be entitled, in addition to all other
remedies available to it, to enforce this Section 4 by seeking an
injunction, restraining order, specific performance or other
injunctive relief, without bond. Notwithstanding the
provisions of Section 13(e) below, an action by the Company and/or
its Related Entities seeking to impose any of such remedies may be
brought in a court of law. Such remedies shall not be deemed
to be exclusive of any other remedies available to the Company
and/or its Related Entities, by judicial or arbitral proceedings or
otherwise.
(iii)
Executive
acknowledges that the Company’s agreement to provide the
benefits payable to Executive upon termination of employment
pursuant to Section 5 are additional consideration for
Executive’s agreement to abide by the restrictive covenants
contained in this Section 4 including, without limitation, the
non-solicitation and non-competition provisions of Section 4(d) and
the Company shall be released from any obligation to provide such
benefits in the event of Executive’s violation of any of
these covenants.
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5.
Termination of
Employment .
(a)
The Term and
Executive’s employment by the Company and its Related
Entities (i) may be terminated (A) by the Company at any time with
Cause in accordance with Section 5(f)(i) or without Cause or due to
Executive’s Disability, (B) by Executive at any time outside
the Protection Period (as defined below) for any or no reason upon
not less than 90 days written notice or (C) during the Protection
Period (I) by Executive for Good Reason in accordance with Section
5(f)(iii) and (II) by Executive without Good Reason upon not less
than 90 days written notice and (ii) shall automatically terminate
upon Executive’s death. Upon any termination of
Executive’s employment, Executive agrees to automatically
resign, and is deemed to have automatically resigned from, all
positions with the Company and its Related Entities, including as a
member of the Board or the board of any subsidiary. In the
event Executive provides notice of his intent to terminate his
employment without Good Reason, the Company may place Executive on
garden leave during all or a portion of the 90-day notice period,
which may entail, without limitation, relieving Executive of his
positions and/or duties with the Company and its Related Entities
or preventing Executive from performing his services at a Company
location and any such actions shall not be a breach of this
Agreement, be considered to be a termination of Executive without
Cause or constitute an event of “Good Reason”. The
Company shall continue to comply with its obligations under Section
3 during any period of garden leave.
(b)
In the event the
Term and Executive’s employment is terminated by the Company
for any reason other than Cause or Disability or voluntarily by
Executive for Good Reason, in each case, outside the Protection
Period, Executive shall be entitled to receive (i) the amount
of Executive’s Base Salary and expenses accrued with respect
to the period prior to the date of termination of Executive’s
employment, to the extent not previously paid; (ii) a lump sum cash
payment in an amount equal to the greater of (A) the sum of
Executive’s annual Base Salary as of the day immediately
preceding the date of such termination, and the average annual
bonus (including the cash and equity component of such annual
bonus) earned by Executive during the two most recently completed
fiscal years of the Company (“Average Bonus”) and (B)
the sum of the amount of Base Salary otherwise payable to Executive
through the end of the Term and a pro rated portion of
Executive’s Average Bonus based on the number of days that
have elapsed as of Executive’s date of termination during the
relevant calendar year; and (iii) continued medical coverage at
active employee rates for the longer of the remainder of the Term
and one year from Executive’s date of termination or, if
earlier, until Executive receives other employer-provided
coverage. In addition, any and all outstanding RSUs
previously granted to Executive as part of a
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