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AGREEMENT AND RELEASE
CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS AGREEMENT AND
RELEASE.
BY SIGNING THIS AGREEMENT AND RELEASE, YOU GIVE UP AND WAIVE
IMPORTANT
LEGAL RIGHTS.
Agreement between First Montauk Financial Corp., its
stockholders,
subsidiaries, affiliates, divisions, successors and assigns,
their respective
past and present officers, directors, employees, agents,
attorneys, whether as
individuals or in their official capacity, and each of their
respective
successors and assigns (hereinafter collectively referred to as
"FMFC" or the
"Company") and by his own free will, Robert I. Rabinowitz
("Rabinowitz" or
"Employee").
WHEREAS, Rabinowitz has been an employee of FMFC, and
WHEREAS, Rabinowitz has been employed pursuant to a written
employment
agreement dated as of February 8, 2005 (the "Employment
Agreement"); and
WHEREAS, Employee and FMFC each desire an amicable cessation of
the
employment relationship,
NOW, THEREFORE, in consideration of the covenants and
promises
contained herein and for other good and valuable consideration,
receipt of which
is hereby acknowledged, Employee and FMFC (who hereinafter
collectively may be
referred to as the "Parties") hereby agree as follows:
1. Employee acknowledges and agrees that:
a. FMFC has served Employee with a valid and timely notice
that
his employment will not be renewed pursuant to paragraph 1
of
the Employment Agreement;
b. effective the close of business January 31, 2007,
Employee's
employment and the Employment Agreement shall be terminated
(the "Termination Date".), and all terms of the Employment
Agreement shall be deemed superseded by this Agreement.
2. In consideration for Employee's execution of this
Agreement,
and for the release of claims against FMFC, the Company will
give Employee the
following:
a. Solely for the purpose of determining the benefits under
the
Employment Agreement, the termination of Employee's
Employment
shall be deemed a non-renewal pursuant to paragraph 7 (E) of
the Employment Agreement.
b. Employee shall receive and be paid, in accordance with
the
terms and conditions of paragraph 7 (E) of the Employment
Agreement, the sum of $200,000 representing one year of the
Initial Base Salary
c. As additional consideration for the release of claims and
for
the transitional services to be provided by Employee as set
forth in this paragraph 2 (c), FMFC shall pay Employee an
additional $100,000 provided Employee complies with his
obligations under this paragraph. Such sum shall be paid by
FMFC as follows: $50,000 on August 30, 2007, and the balance
of $50,000 on January 31, 2008.
<PAGE>
i) The foregoing payments shall be conditioned on Employee
providing assistance to FMFC in the transition of his
responsibilities to new personnel and the closing of the
merger with FMFG AcquisitionCo., Inc., and full compliance
by
Employee, in all material respects, of his obligations under
this Agreement.
d. The conditions to the vesting of any outstanding stock
options
and stock grants granted to the Employee under any of the
Company's stock option plans, shall be deemed void and all
such incentive awards shall be immediately and fully vested
as
of the date of this agreement and the terms of the awards
shall be deemed amended to provide that the awards shall
remain exercisable for the duration of their original term.
3. Benefits:
a. Group health benefits will continue until January 31, 2008
as
provided in paragraph 5 (A) of the Employment Agreement, and
except as otherwise expressly provided in this Agreement,
Employee will not be entitled to receive any other benefits
after the Termination Date. FMFC shall be responsible for
providing equivalent health benefits or paying all "COBRA"
charges through January 31, 2008.
b. To the extent Employee has unreimbursed business
expenses,
incurred through the Termination Date, Employee must
immediately submit the expenses with all appropriate
documentation; those expenses which meet the Company's
guidelines will be reimbursed. Any expense account that
Employee has with the Company terminates effective on the
Termination Date, and any expenses already incurred will be
reviewed and processed in accordance with the policies and
procedures of the Company. No new expenses may be incurred
after the Termination Date. Employee agrees to promptly pay
any outstanding balance on these accounts that represent
non-reimbursable expenses.
4. Employee understands that this Agreement does not
constitute
an admission by the Company of any liability, error or omission,
including
without limitation, any: (a) violation of any statute, law, or
regulation;
(b) breach of contract, actual or implied; or (c) commission of
any tort.
Employee further acknowledges that in the event the merger with
FMFG
AcquisitionCo., Inc. is not consummated, Employee shall have no
claim against
FMFG AcquisitionCo, Inc. FMFG Ownership, Inc., Investment
Properties of America,
LLC, Edward H. Okun, or any of their affiliates.
<PAGE>
5. Employee acknowledges that the consideration provided in
this
Agreement exceed that to which Employee would otherwise be
entitled under the normal operation of any benefit plan,
policy or procedure of the Company or under any previous
agreement (written or oral) between Employee and the
Company.
Employee further acknowledges that the agreement by FMFC to
provide consideration pursuant to this Agreement beyond
Employee's entitlement is conditioned upon Employee's
release
of all claims against FMFC and Employee's compliance with
all
the terms and conditions of this Agreement.
6. The Parties agree that, except as provided for herein,
there
shall be no other payments or benefits payable to Employee,
including but not limited to, salary, bonuses, commissions,
finder's fees and/or other payments.
7. Arbitration:
a. The Parties specifically and knowingly and voluntarily
agree
to an arbitrate any controversy, dispute or claim which has
arisen or should arise in connection with Employee's
employment, the cessation of Employee's employment, or in
any
way related to the terms of this Agreement. The Parties
agree
to arbitrate any and all such controversies, disputes, and
claims before a panel of the NASD or a single arbitrator, as
the case may be, in the State of New Jersey in accordance
with
the Rules of the National Association of Securities Dealers,
Inc. ("NASD"), or in the alternative if the NASD does not
accept jurisdiction of the controversy, the American
Arbitration Association. The arbitrator shall be selected by
the NASD, or if applicable, the Association and shall be an
attorney-at-law experienced in the field of corporate law
and
admitted to practice in the State of New Jersey. In the
course
of any arbitration pursuant to this Agreement, Employee and
the Company agree (i) to request that a written award be
issued by the arbitrator and (ii) that each side is entitled
to receive any and all relief it would be entitled to
receive
in a court proceeding. The Parties knowingly and voluntarily
agree to enter into this arbitration clause and to waive any
rights that might otherwise exist to request a jury trial or
other court proceeding, except that Employee agrees that
FMFC
has the right to seek injunctive or other equitable relief
from a court to enforce Paragraphs 8 , 9 and 10 of this
Agreement. This paragraph is intended to be both a
post-dispute and pre-dispute arbitration clause. Any
judgment
upon any arbitration award may be entered in any court,
federal or state, having competent jurisdiction of the
parties.
<PAGE>
b. The Parties' agreement to arbitrate disputes includes, but
is
not limited to, any claims of unlawful discrimination and/or
unlawful harassment under Title VII of the Civil Rights
Act of 1964, as amended, the Age Discrimination in
Employment
Act 1967, as amended, the Americans with Disabilities Act,
the
New Jersey and New York Civil Rights Laws, the New Jersey
Law
Against Discrimination, the New York Executive Law, the New
York City Human Rights Law, the New Jersey Conscientious
Employee Protection Act, the New Jersey Family Leave Act, or
any other federal, state or local law relating to
discrimination in employment and any claims relating to wage
and hour claims and any other statutory or common law
claims.
8. Employee and FMFC agree that the terms and existence of
this
Agreement are and shall remain confidential and agrees not
to
disclose any terms or provisions of this Agreement, or to
talk
or write about the negotiation, execution or implementation
of
this Agreement, without the prior written consent of the
other, except (a) as required by law; (b) as required by
regulatory authorities; (c) as required within FMFC to
process
this Agreement; or (d) in connection with any arbitration or
litigation arising out of this Agreement. Anything herein to
the contrary notwithstanding, Employee may disclose the
terms
of this Agreement to Employee's immediate family, accountant
or attorney, provided they are made aware of and agree to
the
confidentiality provisions.
9. Employee further acknowledges and agrees that any
non-public
and/or proprietary information of the Company and/or its
customers disclosed to or prepared by Employee during
Employee's employment remains confidential and may not be
used
and/or disclosed by Employee hereafter without the prior
written consent of FMFC. Employee further agrees that the
provisions of paragraph 6 of the Employment Agreement
("Restrictive Covenants") shall remain in full force and
effect.
10. As long as Employee is entitled to receive any benefits
under
this Agreement, Employee shall not make any negative or
derogatory statements in verbal, written, electronic or any
other form about the Company, or its officers, employees and
directors including, but not limited to, a negative or
derogatory statement made in, or in connection with, any
article or book, on a website, in a chat room or via the
internet.
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