Exhibit 10.29
SEPARATION AGREEMENT
Separation Agreement (this "Agreement") dated as of February 8, 2005
between FIRST MONTAUK FINANCIAL CORP, its 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,
WILIIAM KURINSKY ("Kurinsky" or "Employee").
WHEREAS, Kurinsky has been a senior executive officer and member of the
Board of Directors of FMFC; and
WHEREAS, Kurinsky has been employed by FMFC as chief executive officer
of FMFC pursuant to a written employment agreement dated as of January 1, 2004
between FMFC and Kurinsky (the "Employment Agreement"); and
WHEREAS, Kurinsky and FMFC each desire an amicable cessation of the
employment relationship and a termination of the rights and obligations of the
parties under the Employment Agreement except as otherwise provided herein.
NOW, THEREFORE, in consideration of the covenants and promises
contained herein and for other good and valuable consideration, receipt of which
is hereby acknowledged, Kurinsky and FMFC ( who hereinafter collectively may be
referred to as the "Parties") hereby mutually agree as follows:
1. Employee acknowledges and agrees that effective at 5:00 pm Eastern
Standard time on February 8, 2005, Employee's employment is terminated (the
"Termination Date".) Notwithstanding the foregoing, Employee shall continue to
serve as a member of the Board of Directors of FMFC in accordance with the
Certificate of Incorporation and Bylaws of FMFC.
2. In consideration for the Parties' execution of this Agreement, the
Company and the Employee agree as follows:
a. Solely for the purpose of determining the benefits under
Article IX of the Employment Agreement, Employee's termination shall be deemed a
termination without cause and a termination by the Company under Section 9.1(c)
of the Employment Agreement.
b. FMFC shall issue to Employee a total of 197,824 shares of
newly created Series B Convertible Preferred Stock, in accordance with the terms
and conditions of the Certificate of Designation of Series B Convertible
Preferred Stock annexed hereto as Exhibit A, which Series B Preferred Stock
shall be deemed to have a value or issue price of $1,000,00.00. FMFC shall cause
the Certificate of Designation of Series B Convertible Preferred Stock to be
filed with the Secretary of State of New Jersey within five (5) business days of
the date hereof. FMFC shall grant Employee "piggyback" registration rights with
respect to the shares of common stock underlying the Series B Convertible
Preferred Stock, which registration rights shall become effective if the
proposed merger with Olympic Cascade Financial Corp. is not effected within 180
days of the Termination Date.
c. The Company shall issue to Employee a promissory note (the
"Note") in the principal amount of $200,000, payable with interest at the rate
of 8% per annum, with a maturity date of February 8, 2006 and otherwise
substantially in the form of Exhibit C annexed hereto.
d. The Company shall pay Employee a lump sum payment of
$136,000.
e. The Company shall pay to Employee out of the management
incentive pool (including all underwriting warrants earned through the
Termination Date by the Company for inclusion therein regardless of whether such
warrants have actually been issued) Employee's earned share thereof through the
Termination Date.
f. The Company shall issue to Employee, in connection with his
retention as a consultant, an aggregate of 200,000 common stock options under
the Company's 2002 Incentive Stock Option Plan with an exercise price of $0.83,
with an exercise term of three (3) years. The options shall vest in two
increments, with the first increment vesting on the date hereof and the second
one year from the date hereof. Employee's existing outstanding options for an
aggregate of 325,000 shares shall terminate upon execution of this Agreement.
g. All unvested restricted stock grants held by Employee
for 250,000 shares shall be deemed vested in full.
3. Consulting Agreement.
Simultaneously with the execution of this Agreement, the Company will
enter into a consulting agreement (the "Consulting Agreement") with the
Employee, substantially in the form of Exhibit D to this Agreement. The
Consulting Agreement shall be for a term of 24 months commencing on the
Termination Date and the Company shall pay the Employee $12,645 per month as
compensation for services to be rendered under the Consulting Agreement.
4. Benefits:
a. FMFC shall continue to provide to Employee for a period of
twenty-four (24) months the Continuation Benefits set forth in Section 1.7 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.
b. Employee shall be paid for unused vacation time for 2005 in
accordance with the Company's current policy.
5. Expense Reimbursement.
To the extent Employee has unreimbursed business expenses,
incurred through the Termination Date, Employee must submit the expenses with
all appropriate documentation within 60 days of the date hereof; 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.
6. 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.
7. Employee acknowledges that the consideration provided in this
Agreement is less than that to which Employee would otherwise be entitled under
the Employment Agreement. The Company acknowledges that Employee is accepting
less consideration under this Agreement than he would otherwise be entitled to
under the Employment Agreement. The parties further acknowledge that the
execution, delivery and performance of this Agreement is conditioned upon the
execution and delivery of mutual releases between the Parties.
8. The Parties agree that, except as provided for herein, in the
Consulting Agreement and in the Note, there shall be no other payments or
benefits payable to Employee, including but not limited to, salary, bonuses,
commissions, gross up payments, finder's fees and/or other payments.
9. Arbitration:
a. Any dispute arising out of the interpretation, application,
and/or performance of this Agreement shall be settled through final and binding
arbitration before a panel of arbitrators in accordance with the rules of the
National Association of Securities Dealers (the "NASD"). Any judgment upon any
arbitration award may be entered in any court, federal or state, having
competent jurisdiction of the parties before a single arbitrator in the State of
New Jersey in accordance with the Rules of the American Arbitration Association.
The arbitrators shall be selected by the NASD. Any judgment upon any arbitration
award may be entered in any court, federal or state, having competent
jurisdiction of the parties.
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.
10. Employee and FMFC agree that the terms and existence of this
Agreement are and shall remain confidential and agree 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.
11. Employee understands and agrees that the Company shall be required
to file a copy of this Agreement and Exhibits with the Securities and Exchange
Commission ("SEC") and make other disclosures in accordance with the rules and
regulations of the SEC. The Company shall provide Employee with the opportunity
to comment upon such disclosures prior to any filing or public notice thereof.
In addition, the Company shall be required to continue Employee's registration
with the NASD for a period of 24 months at the costs and expense of the Company.
12. 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 Article VI of
the Employment Agreement (Non-Disclosure) shall remain in full force and effect.
13. Solely for the purpose of determining the applicability of the
Restrictive Covenant in Article VII of the Employment Agreement, Employee shall
be deemed to have voluntarily terminated his employment as of the termination
date of the Employment Agreement, and Employee hereby agrees that all of the
provisions of Article VII, as modified by this paragraph, shall remain in full
force and effect. Further, in addition to the provisions of Article VII,
Employee also agrees that in consideration for the payments and other
consideration provided in this Agreement and the Consulting Agreement, Employee
will not for a period of six months after the termination of the Consulting
Agreement, either directly or indirectly, (a) solicit any person who is employed
by FMFC (or who was employed by FMFC within 90 days of the termination of the
Consulting Agreement) to: (i) terminate his employment with FMFC; (ii) accept
employment with anyone other than FMFC, or (b) in any manner interfere with the
business of FMFC.
14. Litigation
a. Employee shall cooperate fully with the Company in the
prosecution or defense, as the case may be, of any and all actions, governmental
inquiries or other legal or regulatory proceedings in which Employee's
assistance may be reasonably requested by the Company. Reasonable expenses
arising from the cooperation will be reimbursed by the Company. Consistent with
the Certificate of Incorporation of the Company's and its By-Laws as in effect
on the date hereof, FMFC will hold harmless and indemnify Employee from and
against any expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement arising from any claim, suit or other action against Employee
by any third party, on account of any action or inaction by Employee taken or
omitted to be taken by Employee on behalf of FMFC during the course of his
employment, up to his date of termination, provided that such action or inaction
by Employee was within the scope of Employee's employment. In accordance with
Article XIV of the Employment Agreement, the Company further agrees to maintain
such insurance as is necessary and reasonable to protect the Employee from any
and all claims arising from or in connection with his employment by the Company
for a period of six (6) years after the Termination Date.
b. Employee acknowledges that he has advised the Company
completely and candidly of all facts of which he is aware that may give rise to
legal matters.
15. Employee agrees to cause all requests for references to be
forwarded in writing to the Company, attention: Office of the President. The
Company will state in response to such inquiries your dates of employment and
positions held. The Company shall not be responsible for responses to reference
requests sought or obtained other than under the procedures set forth in this
paragraph.
16. Employee realizes there are many laws and regulations prohibiting
employment discrimination, or otherwise regulating employment or claims related
to employment pursuant to which Employee may have rights or claims. These
include but are not limited to Title VII of the Civil Rights Act of 1964, as
amended; the Americans with Disabilities Act of 1990; the Pregnancy
Discrimination Act; the National Labor Relations Act, as amended; 42 U.S.C 1981;
the Employee Retirement Income Security Act of 1974, as amended; the Age
Discrimination in Employment Act of 1967, as amended; the Civil Rights Act of
1991; the Worker Adjustment and Retraining Notification Act; the New York State
and City Human Rights Laws; the New Jersey Law Against Discrimination; the New
Jersey Conscientious Employee Protection Act, the New Jersey Family Leave Act,
and other Federal, State and local human rights, fair employment and other laws.
Employee also understands there are other statutes and contract and tort laws
which relate to Employee's employment and/or the termination of Employee's
employment. Employee hereby knowingly and voluntarily agrees to waive and
release any rights or claims Employee may have under these and other laws, but
does not intend to, nor is Employee waiving any rights or claims that may arise
after the date that this Agreement is signed by Employee. Notwithstanding the
foregoing sentence, Employee's waiver and release shall not extend to (i) any
rights, remedies, or claims Employee may have in enforcing the terms of the
Agreement; and (ii) any rights Employee may have to receive vested amounts under
FMFC's stock option plans or pension plans.
17. This Agreement shall be deemed to have been made within the County
of Monmouth, State of New Jersey, and shall be interpreted and construed and
enforced in accordance with the laws of the State of New Jersey without regard
to its conflicts of law provision.
18. Employee is hereby advised of Employee's rights to review this
Agreement with counsel of Employee's choice. Employee has had the opportunity to
consult with an attorney and/or other advisor of Employee's choosing before
signing the Agreement, and was given a period of twenty-one (21) days to
consider the Agreement. Employee is permitted, at his discretion, to return the
Agreement prior to the expiration of this 21-day period. Employee acknowledges
that in signing this Agreement, Employee has relied only on the promises written
in this Agreement, and not on any other promise made by the Company or any other
entity or person.
19. Employee represents that Employee has not filed any complaints,
charges or claims against FMFC with any local, State, or Federal agency or
court, or with any other forum.
20. Employee agrees to immediately return any FMFC property no matter
where located including, but not limited to, FMFC I.D. card, corporate credit
card, keys, computer disks, and written/electronic material prepared in the
course of employment at FMFC. Notwithstanding the foregoing, Employee shall be
entitled to retain his desktop and laptop computers and all personal belongings
as well as office furnishings.
21. If any provision of this Agreement, or any part thereof, is held to
be invalid or unenforceable because of the scope or duration of or the area
covered by such provision, Employee and FMFC agree that the court or other
appropriate decision-making authority making such determination shall reduce the
scope, duration and/or area of such provision (and shall substitute appropriate
provisions for any such invalid or unenforceable provisions) in order to make
such provision enforceable to the fullest extent permitted by law and/or shall
delete specific words and phrases, and such modified provision shall then be
enforceable and shall be enforced. In the event that any court or other
appropriate decision-making authority determines that the time period or the
area, or both, are unreasonable and that any of the covenants is to that extent
invalid or unenforceable, the parties hereto agree that such covenants will
remain in full force and effect, first, for the greatest time period, and
second, in the greatest geographical area that would not render them
unenforceable. If any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement shall nonetheless
survive and be enforced to the fullest extent permitted by law.
22. Except as otherwise expressly provided herein, this Agreement, the
Consulting Agreement, the Note and the Mutual Release constitute the entire
agreement between the Parties and supersede any and all prior agreements,
whether written or oral. This Agreement may not be modified or changed, except
in a written agreement signed by both Parties.
[signature page is next]
23. The Agreement may be executed in multiple counterparts, each of
which shall be considered an original but all of which shall constitute one
agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
dates set forth below.
I have read this Agreement, and I understand all of its terms. I enter
into and sign this Agreement knowingly and voluntarily with full knowledge of
what it means. I understand that I have twenty-one (21) days to consider this
Agreement and return it to FMFC. I also understand that I have seven (7) days to
revoke this Agreement in writing after I sign it. I understand that a revocation
will become effective only if I furnish FMFC with written notice, within such
seven (7) day period. This Agreement will not become effective or enforceable
until FMFC's receipt back of Employee's executed Agreement and the expiration of
the seven day revocation period.
/s/ William Kurinsky 2/8/05
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William Kurinsky Date
FIRST MONTAUK FINANCIAL CORP.
By /s/ Victor Kurylak 2/8/05
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Victor Kurylak Date
President
MUTUAL RELEASE
Each of the Parties understands and, of his or its own free will,
enters into this Mutual Release.
(a) In consideration of the payments, benefits, agreements, and other
consideration to be provided by FMFC as described in the SEPARATION AGREEMENT
AND RELEASE dated as of February 8, 2005 of which this General Release is a part
(such agreement, this General Release, together, the "Agreement"), WILLIAM
KURINSKY, for himself or herself and for his heirs, executors, administrators,
and their respective successors and assigns (collectively, "Employee"), HEREBY
RELEASES AND FOREVER DISCHARGES, to the maximum extent permitted by law, FIRST
MONTAUK FINANCIAL CORP, its stockholders, subsidiaries, affiliates, divisions,
successors and assigns, their respective current and former 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") of and from all or any manner of actions,
causes and causes of action, suits, debts, obligations, damages, complaints,
liabilities, losses, covenants, contracts, controversies, agreements, promises,
variances, trespasses, judgments and expenses (including attorneys' fees and
costs), extents, executions, claims and demands whatsoever at law or in equity
("claims"), specifically including by way of example but not limitation, Title
VII of the Civil Rights Acts of 1964 and 1991, as amended; the Civil Rights Act
of 1866; the Employee Retirement Income Security Act of 1974, as amended; the
National Labor Relations Act, as amended; the Americans with Disabilities Act of
1990; the Age Discrimination in Employment Act of 1967, as amended; the Worker
Adjustment and Retraining Notification Act; the Pregnancy Discrimination Act;
and all Federal, State and local statutes, regulations, decisional law and
ordinances and all human rights, fair employment, contract and tort laws
relating to Employee's employment with FMFC and/or the termination thereof
including, again by way of example but without limitation, the New Jersey Civil
Rights Laws, the New Jersey Law Against Discrimination, the New Jersey
Conscientious Employee Protection Act, the New Jersey Family Leave Act, any
civil rights or human rights law, as well as all claims for wrongful discharge,
breach of contract, personal injury, defamation, mental anguish, injury to
health and reputation, and sexual harassment, which Employee ever had, now has,
or which Employee hereafter can, shall or may have for, upon or by reason of any
matter, cause or thing whatsoever arising out of Employee's employment by FMFC
or the termination thereof, provided that this General Release shall not extend
to (i) any rights, remedies, or claims Employee may have in enforcing the terms
of this Agreement; (ii) any rights Employee may have to receive vested amounts
under FMFC's stock option plan, 401-K or pension plans; (iii) Employee's rights
to medical benefit continuation coverage, on a self-pay basis, pursuant to
federal law (COBRA); and (iv) claims for indemnification (whether under state
law, the Company's by-laws or otherwise) for acts performed as an officer or
director of the Company or any of its affiliates. Employee takes this action
fully aware of Employee's rights arising under the laws of the United States
(and any State or local governmental entity thereof) and voluntarily waives and
releases all such rights or claims under these or other laws, but does not
intend to, nor is Employee waiving any rights or claims that may arise after the
date that this Agreement is signed by Employee. The provisions of any laws
providing in substance that releases shall not extend to claims which are at the
time unknown to or unsuspected by the person executing such release, are hereby
waived.
(b) In consideration of the payments, benefits, agreements, and other
consideration to be provided by Employee as described in the SEPARATION
AGREEMENT AND RELEASE dated as of February 8, 2005 of which this General Release
is a part (such agreement, this General Release, together, the "Agreement"),
FIRST MONTAUK FINANCIAL CORPORATION, for itself stockholders, subsidiaries,
affiliates, divisions, successors and assigns, their respective current and
former officers, directors, employees, agents, attorneys, whether as individuals
or in their official capacity, and each of their respective successors and
assigns, HEREBY RELEASES AND FOREVER DISCHARGES, to the maximum extent permitted
by law, EMPLOYEE, of and from all or any manner of actions, causes and causes of
action, suits, debts, obligations, damages, complaints, liabilities, losses,
covenants, contracts, controversies, agreements, promises, variances,
trespasses, judgments and expenses (including attorneys' fees and costs),
extents, executions, claims and demands whatsoever at law or in equity
("claims"), specifically including by way of example but not limitation, Title
VII of the Civil Rights Acts of 1964 and 1991, as amended; the Civil Rights Act
of 1866; the Employee Retirement Income Security Act of 1974, as amended; the
National Labor Relations Act, as amended; the Americans with Disabilities Act of
1990; the Age Discrimination in Employment Act of 1967, as amended; the Worker
Adjustment and Retraining Notification Act; the Pregnancy Discrimination Act;
and all Federal, State and local statutes, regulations, decisional law and
ordinances and all human rights, fair employment, contract and tort laws
relating to Employee's employment with FMFC and/or the termination thereof
including, again by way of example but without limitation, the New Jersey Civil
Rights Laws, the New Jersey Law Against Discrimination, the New Jersey
Conscientious Employee Protection Act, the New Jersey Family Leave Act, any
civil rights or human rights law, as well as all claims for wrongful discharge,
breach of contract, personal injury, defamation, mental anguish, injury to
health and reputation, and sexual harassment, which Employee ever had, now has,
or which Employee hereafter can, shall or may have for, upon or by reason of any
matter, cause or thing whatsoever arising out of Employee's employment by FMFC
or the termination thereof, provided that this General Release shall not extend
to (i) any rights, remedies, or claims FMFC may have in enforcing the terms of
this Agreement; and (ii) for indemnification (whether under state law, the
Company's by-laws or otherwise) for acts performed by Employee as an officer or
director of the Company or any of its affiliates. FMFC takes this action fully
aware of its rights arising under the laws of the United States (and any State
or local governmental entity thereof) and voluntarily waives and releases all
such rights or claims under these or other laws, but does not intend to, nor is
FMFC waiving any rights or claims that may arise after the date that this
Agreement is signed by FMFC. The provisions of any laws providing in substance
that releases shall not extend to claims which are at the time unknown to or
unsuspected by the person executing such release, are hereby waived.
Employee represents that Employee has been advised to and has had an
opportunity to consult with an attorney and/or any other advisors of Employee's
choosing before signing this Agreement, and was given a period of twenty-one
(21) days to consider this Agreement. Employee is permitted, at his discretion,
to return the Agreement prior to the expiration of this 21-day period. Employee
has relied only on the promises written in the Agreement, and not on any other
promise made by FMFC or any other entity or person.
Employee has seven (7) days to revoke the Agreement after Employee
signs it. The Agreement will not become effective or enforceable until FMFC's
receipt back of Employee's executed Agreement and the expiration of the seven
day revocation period.
Employee has read and understood the Agreement and enters into it
knowingly and voluntarily.
IN WITNESS WHEREOF, each of the parties has executed this Mutual
Release this day of February 8, 2005 having had the opportunity to review this
with counsel of his or its choice.
/s/ William Kurinsky 2/8/05
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William Kurinsky Date
First Montauk Financial Corp.
By: /s/ Victor Kurylak 2/8/05
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Victor Kurylak Date
President