Exhibit 10.2
Execution
Copy
SETTLEMENT, RELEASE, COVENANT
NOT
TO SUE, WAIVER AND
NON-DISCLOSURE AGREEMENT
WHEREAS, ANDREW BANHIDI,
individually and on behalf of all his successors, heirs, executors,
administrators, legal representatives, and assigns (hereinafter
referred to collectively as “Banhidi”), and INSTINET
GROUP INCORPORATED, on behalf of its parents, subsidiaries
divisions and affiliates, and their respective predecessors,
successors, assigns, representatives, officers, directors,
shareholders, agents, employees and attorneys (hereinafter referred
to collectively as “Instinet”), have reached agreement
with respect to all matters arising out of Banhidi’s
employment with Instinet and the termination thereof;
NOW, THEREFORE, in consideration of
the mutual convenants and undertakings set forth herein, Banhidi
and Instinet agree as follows:
1. Termination of Employment.
By mutual agreement between the parties, Banhidi’s employment
with Instinet shall terminate on August 1, 2005 (“Termination
Date”). Through the Termination Date, Instinet will continue
to pay Banhidi at his current base salary of $350,000 per
annum , with continuation of Instinet’s benefit
programs through such date.
2. Separation Payments and
Benefits . Instinet will pay Banhidi the amounts described
below, subject to the provisions of this Agreement. The payments to
be provided by this paragraph are in place of, and not in addition
to, payments Banhidi would otherwise be entitled to pursuant to any
policy or practice of Instinet. All payments made pursuant to this
paragraph will be reduced by any and all applicable payroll
deductions including, but not limited to, federal, state and local
tax withholdings.
(a) Severance Payments.
Banhidi will be entitled to receive severance payments for an 18
month period (the “Severance Period”) at the rate of
$350,000 per annum from the Termination Date through
February 1, 2007. During the Severance Period, Banhidi will be
eligible to continue his current health and dental coverage for
himself and his family, but will not be eligible for life
insurance, 401(k) contributions, long-term disability insurance or
any other perquisites or benefits.
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(b) Pro Rata Bonus. Within
five business days following the date (the “Bonus Payment
Date”) annual bonuses for such fiscal year are actually paid
by Instinet to its active employees, but in no event later than
February 28, 2006, Instinet will pay Banhidi $758,630 as his
pro rata bonus for fiscal year 2005.
(c) 150% of Average Annual
Bonus . Instinet agrees to pay Banhidi two equal installments
of $975,000 each, the first such installment to be paid in February
2006 and the second such installment to be paid in February
2007.
3. Return of Instinet
Property . Banhidi agrees to return to Instinet by no later
than the Termination Date, any and all property (including but not
limited to files, records, computer software, computer access
codes, home computers, laptop computers, pagers, Palm Pilots, fax
machines, company IDs, business credit cards, proprietary and
confidential information) which belongs to Instinet, and shall not
retain any copies, duplicates or excerpts thereof, except
that Instinet agrees to transfer to Banhidi all rights to his
Blackberry from the Termination Date. Banhidi will be responsible
for all costs relating to the Blackberry from August 2, 2005
forward.
4. Outplacement Services. At
the request of Banhidi, Instinet will make available executive
outplacement services to Banhidi, to be provided by an outplacement
firm to be selected by Instinet, for a period of up to three
months. These services will include the provision of an office and
telephone for Banhidi to use during the outplacement
period.
5. Instinet Options and
Performance Shares. Banhidi agrees that any options awarded to
him under Instinet 2000 Stock Option Plan (the “Option
Plan”) and any performance shares awarded him under the
Instinet 2004 Performance Share Plan (the “Performance Share
Plan”) will be treated as provided in the Option Plan and the
Performance Share Plan.
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6. Full Satisfaction .
Banhidi, by entering into this Agreement, accepts the benefits to
be conferred on him hereunder in full and complete satisfaction of
any and all asserted and unasserted claims of any kind or
description against Instinet as of the date of this Agreement,
including, but not limited to, claims arising under any federal,
state and local fair employment practice law, workers’
compensation law, and any other employee relations statute,
executive order, law and ordinance, including, but not limited to,
Title VII of the Civil Rights Act of 1964, as amended, the Age
Discrimination in Employment Act of 1967, as amended, the
Rehabilitation Act of 1973, as amended, the Family and Medical
Leave Act, the Americans With Disabilities Act of 1990, as amended,
the Civil Rights Acts of 1866 and 1871, and, except as otherwise
expressly set forth herein, of any other duty and/or other
employment related obligation (all of which are hereinafter
referred to as “employment relations laws”) as well as
any claims arising from tort, tortious course of conduct, contract
(including without limitation any claims arising under
Banhidi’s Employment Agreement dated November 1, 2003, any
offer letter or secondment letter), obligations of “good
faith,” public policy, statute, common law, equity, and all
claims for wages and benefits, monetary and equitable relief,
punitive and compensatory relief, and attorneys’ fees and
costs.
7. Releases .
(A) In consideration of the
covenants and undertakings above, Banhidi releases and discharges
Instinet from any and all liability, and waives any and all rights
of any kind and description that he has or may have against
Instinet as of the date of this Agreement, including, but not
limited to, any asserted and unasserted claims arising from any
employment relations laws, tort, tortious course of conduct,
contract (including without limitation any claims arising under
Banhidi’s Employment Agreement dated November 1, 2003, any
offer letter or secondment letter), public policy, statute, common
law, and equity, and claims for wages and benefits, monetary and
equitable relief, punitive and compensatory relief, and
attorneys’ fees and costs. The foregoing notwithstanding,
Banhidi’s release and waiver do not apply to: (a) his
rights
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arising out of this Agreement; (b) any rights
that Banhidi and any covered dependents may have to purchase health
benefit continuation coverage under federal law commonly known as
COBRA; (c) any accrued and vested payouts or benefits under
Instinet qualified benefit plans; or (d) any rights that Banhidi
may have to indemnification under Instinet’s general
corporate indemnity for acts undertaken by Banhidi within the scope
of his duties while employed at Instinet.
(B) Instinet releases and discharges
Banhidi from any and all liability, and waives any and all rights
of any kind and description that it has or may have against Banhidi
as of the date of this Agreement, regarding which Instinet has
actual knowledge or should have had knowledge, other than rights
under this Agreement or arising as a result of any criminal act of
Banhidi.
8. Non-Competition Covenant .
Banhidi agrees that he will not, through February 1, 2006, directly
or indirectly, become employed by, engage in business with, serve
as an agent or consultant to, or become a partner, member,
principal, stockholder or other owner (other than a holder of less
than 1% of the outstanding voting shares of any publicly held
company) of any direct market access (“DMA”)
broker-dealer or technology vendor (including but not limited to
ITG, E*Trade Institutional, Lava Trading, Sonic Financial
Technologies, Liquidnet, DEx unit of BNY Brokerage, AES unit of
CSFB, DMA unit of BancAmerica Securities, etc.) in the United
States. For these purposes, DMA broker-dealers or technology
vendors are those that offer a technology-enhanced consolidated
poin
