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Agreement shall be deemed superseded by this Agreement.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.
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.
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.
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.
11. 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 within the Company's
guidelines. Consistent with the Certificate of Incorporation
of FMFC, and the Company's Amended and Restated By-Laws, FMFC
will hold harmless and indemnify Employee from and against any
expenses (including attorneys' reasonable 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 and consistent with the
Company's policies and procedures.
b. Promptly after receipt by Employee under this paragraph 11 of
notice of the commencement of any action, suit or proceeding,
Employee shall notify FMFC in writing of the commencement
thereof (but the failure so to notify shall not relieve FMFC
from any liability which it may have under this paragraph
except to the extent that it has been prejudiced in any
material respect by such failure or from any liability which
it may have otherwise). In case any such action is brought
against Employee, and Employee notifies FMFC of the
commencement thereof, FMFC will be entitled to participate
therein, and to the extent it may elect by written notice
delivered to the Employee promptly after receiving the
aforesaid notice from Employee, FMFC may assume the defense
thereof with counsel reasonably satisfactory to such Employee.
Notwithstanding the foregoing, Employee shall have the right
to employ his own counsel in any such case but the fees and
expenses of such counsel shall be at the expense of Employee
unless (i) the employment of such counsel shall have been
authorized in writing by the FMFC in connection with the
defense of such action at the expense of FMFC, (ii) FMFC
shall not have employed counsel reasonably satisfactory
to Employee to have charge of the defense of such
action within a reasonable time after notice of commencement
of the action, or (iii) Employee shall have reasonably
concluded that there may be defenses available to him that are
different from or additional to those available to FMFC (in
which case FMFC shall not have the right to direct the defense
of such action on behalf of Employee), in any of which events
such fees and expenses of one additional counsel shall be
borne by FMFC. Anything in this paragraph to the contrary
notwithstanding, neither Employee or FMFC shall be liable for
any settlement of any claim or action effected without its
written consent; provided however, that such consent was not
unreasonably withheld.
c. 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.
d. The Company is not aware of any claim against Employee by the
Company at the present time, and does not have a present
intention to commence any civil claim or arbitration against
Employee. This representation is based on the actual knowledge
of the executive officers of the Company.
12. You agree 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. Upon request of FMFC, 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.
18. 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.
19. Except as otherwise expressly provided herein, this Agreement
and Release, together with the General 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.
20. 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 toFMFC. 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.
Employee
/s/ Robert I. Rabinowitz November 14, 2006
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Robert I. Rabinowitz Date
First Montauk Financial Corp.
By /s/ Victor K. Kurylak November 14, 2006
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Victor K. Kurylak, President & C.E.O. Date
CONSULT WITH AN ATTORNEY BEFORE SIGNING GENERAL RELEASE. BY SIGNING THIS
GENERAL RELEASE, YOU GIVE UP AND WAIVE IMPORTANT LEGAL RIGHTS.
GENERAL RELEASE
Robert I. Rabinowitz understands and, of my own free will, enters into
this General Release.
In consideration of the payments, benefits, agreements, and other
consideration to be provided by FMFC as described in the agreement of which this
General Release is a part (such agreement, this General Release, together, the
"Agreement"), Robert I. Rabinowitz, 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 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, 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 filly 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.
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, Robert I. Rabinowitz has set his hand this 14th day
of November, 2006 having had the opportunity to review this with counsel of his
or her choice.
/s/ Robert I. Rabinowitz November 14, 2006
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Robert I. Rabinowitz Date