Exhibit 10.39
EMPLOYMENT AGREEMENT
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PARTIES: JACK CARL/312-FUTURES, INC., a corporation organized under the
laws of Delaware (the "Company"), and ALLYSON D. LAACKMAN an
Illinois resident ("Employee").
DATE: July 1, 1995
PREAMBLE: The Company operates a full-service commodity brokerage business,
engaged in buying, selling and otherwise dealing in and providing
brokerage services with respect to commodities and interests
therein and relating thereto, having its principal place of
business at 200 West Adams Street, Suite 1500, Chicago, Illinois
60606. Employee, by education and experience, possesses
extraordinary qualifications to serve as a senior executive
officer of the Company. The parties hereto, recognizing the
value of Employee's services to the Company, desire to secure the
employment of Employee on the terms and conditions herein stated.
TERMS:
1. Employment. The Company hereby employs Employee and Employee hereby
accepts employment as the Chief Financial Officer of the Company. Employee
agrees to diligently and faithfully perform such duties of a Chief Financial
Officer as are assigned to her by the Chief Executive Officer of the Company or
the Board
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of Directors of the Company from time to time, subject to the general
supervision, and pursuant to the orders, advice and directions, of the Board of
Directors of the Company. Employee shall devote to her employment her full time
(exclusive of vacation periods, holidays or periods of illness or incapacity)
and best efforts consistent with commodities industry practices, except that
Employee may make investments, including trade commodities futures for her own
account so long as such activities do not interfere with the performance of her
duties hereunder. Further, employee shall be appointed to the Board of
Directors of Index Futures Group, Inc. and other operating subsidiaries as
designated by the Chief Executive Officer.
2. Term. The term of Employee's employment hereunder shall commence on
the date hereof and terminate on June 30, 1996 unless terminated sooner by the
Company, in its sole discretion, in writing, for "good cause" as hereinafter
defined. "Good cause" as used herein shall be deemed to exist upon the
occurrence of any of the following events:
(a) a material breach by Employee of the terms and conditions of this
Agreement as reasonably determined by the Chief Executive Officer of or
Board of Directors of the Company which breach has not been cured within
thirty (30) days of Employee's receipt of written notice thereof; or
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(b) the commission of an act of dishonesty relating to the Company's
business or the commission of a fraudulent act on the part of Employee; or
(c) actions or failures to act by Employee which directly and proximately
(i) constitute a major offense under the rules of the Chicago Mercantile
Exchange or any comparable rules of any other commodity futures or
securities exchange on which the Company conducts its business, which
offense results in the expulsion from membership of such exchange or a
monetary penalty in excess of fifty thousand dollars ($50,000), (ii) result
in the suspension of Employee from engaging in any aspect of the
commodities futures or securities business which is necessary to the
discharge of her duties hereunder for a period of more than one hundred and
twenty (120) days, or (iii) result in a material restriction on her ability
to supervise other employees by reason of a violation of any laws or rules
and regulations promulgated by the Commodity Futures Trading Commission,
the Securities and Exchange Commission, any commodity futures or securities
exchange, the National Association of Securities Dealers, or the National
Futures Association if and to the extent that such restriction materially
adversely affects her ability to discharge her duties hereunder for a
period of more than one hundred and twenty (120) days, unless in any such
case, Employee (having the burden of proof therefor) demonstrates
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that said actions or failures to act did not result from Employee's willful
misconduct or gross negligence; or
(d) the death or total disability, as herein defined, of Employee.
(e) As used herein, Employee shall be deemed to be "totally disabled," if
she is unable to perform, by reason of physical or mental incapacity, her
duties or obligations as set forth under this Agreement for a period of one
hundred twenty (120) consecutive days during any twelve (12) consecutive
month period. For purposes of computing the period of one hundred twenty
(120) consecutive days of disability, if after being so disabled Employee
performs her duties hereunder for a period of at least thirty (30)
consecutive days, then any subsequent disability shall be deemed to
commence a new period of disability for purposes hereof.
(f) Employee shall have the right to terminate this Agreement for
nonpayment of her compensation when due or in the event of a material
breach by the Company of the terms and conditions of this Agreement, which
breach has not been cured within thirty (30) days after the Company's
receipt of written notice thereof. Employee shall then be relieved of any
obligation under paragraph 6 hereof and shall be
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entitled to full compensation, including severance payments as defined
below in paragraph 7.
3. Compensation. For all services rendered by Employee under this
Agreement, the Company shall pay Employee:
(a) a base salary at the rate of $135,000 per annum payable in equal
installments as the Company, from time to time, pays other salaried
employees, but not less frequently than monthly, plus
(b) an annual bonus equal to 1.75% of income, as defined below, if income
is less than two (2) million dollars, and 2.5% of income, as defined below, if
income is greater than two (two) million dollars. "Income" as used in this
paragraph is defined as pre-tax, pre-market-to-market, and pre-bottomline bonus
expenses consolidated income in excess of 15% return on investment.
4. Forfeiture of Compensation. In the event that Employee's employment
hereunder shall be terminated pursuant to subparagraph 2(a), (b), or (c) hereof,
the Company shall have no obligation to pay to Employee any further compensation
or other payments under this Agreement, and Employee shall forfeit the same.
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5. Benefits. Employee shall be entitled to participate in such group
life and medical insurance plans, and qualified retirement and profit sharing
plans, as the Company may establish, from time to time, for its managerial
employees or executive officers generally. Notwithstanding the foregoing, the
Company shall provide at no cost to Employee a term life insurance policy
insuring the life of Employee and naming as loss payee a beneficiary of
Employee's choosing in an amount equal to three times the base compensation set
forth under Paragraph 3 (a) above. Said policy or policies shall contain a
provision permitting the assignment or assumption of said policies by Employee
at Employees cost in the event of the termination of employment hereunder.
The Company shall reimburse Employee for such travel, entertainment and
other business expenses reasonably incurred by her in connection with the
business of the Company upon presentation by Employee to the Company of
substantiating evidence thereof in such form as the Company reasonably may
require from time to time.
Employee shall be entitled to four (4) weeks of paid vacation during each
fiscal year of the Company in which this Agreement shall continue in full force
and effect (pro-rated for any portions of fiscal years during the term of this
Agreement, based on the number of months (or portions thereof) of such fiscal
year which occur during the term of this Agreement).
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Employee shall be paid for all unused vacation (not to exceed two (2) weeks) not
later than the end of each calendar year hereof. In addition, Employee shall be
entitled to such holidays as are made available generally to managerial and
executive employees of the Company.
6. Non-Competition. During the term of this Agreement and for a period
of nine (9) months thereafter ("the severance period"), Employee covenants and
agrees with the Company that she shall not, directly or indirectly; (a) solicit
commodity or securities business from any persons or entities that are or were
during the period covered by this agreement customers of the Company, either as
an employee, agent, consultant, licensee, independent contractor, owner or
otherwise, or (b) solicit for employment or employ any persons who are or were
during the period covered by this sentence employees of the Company.
7. Non-Continuation/Termination. In the event that the term of
Employee's employment hereunder shall not be extended by the Company beyond the
term provided for in paragraph 2 hereof on terms (including compensation)
substantially equivalent to the terms set forth in this Agreement or is
terminated prior to the end of the term except by reason of a termination for
"good cause" as defined in paragraph 2 hereof, Employee shall receive severance
pay (the "severance payments") in an amount equal to nine (9) months salary as
set forth herein payable in equal installments as the Company, from time to
time, pays other
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salaried employees, but not less frequently than monthly; provided however that
such severance payments shall cease if during the severance period the Employee
secures full-time employment and, further provided, however, that if Employee
shall become self-employed that Employee shall receive such severance payments
as set forth herein only to the extent that Employee's monthly gross income from
her self-employment shall be less than the monthly severance payment. Further,
Employee agrees to make all books and records of such self-employment available
to the company upon its request. The parties further agree that if Employee
shall purchase an existing business, Employer shall have the right to determine
the extent by which Employee's taxable earnings from such business equal or
exceed the severance payments called under this Agreement (herein the "Excess
Earnings") which severance payments may be thereafter reduced by the amount of
such Excess. In making this determination, Employee agrees to make all books
and records of such employment available to company upon its request. Any costs
incurred in making the determination set forth herein shall be paid for by
Employer. Employee shall remain subject to the provisions contained in
paragraph 6 for the full period specified herein.
In the event that the Company offers to extend the term of Employee's
employment hereunder on substantially equivalent terms and Employee does not
accept such offer, Employee shall remain subject to the provisions contained in
this paragraph 6 for the full period specified herein.
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In the event, that Employee voluntarily terminates her employment
hereunder, Employee shall remain subject to the provisions contained in this
paragraph 7 for the full period specified herein. In the event of Employee's
voluntary termination of this agreement, Employer agrees to provide accurate
recommendations to those entities requested by Employee, provided however the
content of those recommendations shall be based on the sole judgment of the
Employer.
8. Confidentiality. The Employee shall not at any time during or after
the term of this Agreement or in any manner, either directly or indirectly,
divulge, disclose, or communicate to any person, firm or corporation in any
manner whatsoever any confidential information relating to the business of the
Company. The term "confidential information" as used herein means all
information of a business or technical nature relative to the business of the
Company, the business of any customer of the Company or the business of any
person, firm or corporation which consults with, or is affiliated with the
Company, including, without limitation, pricing information and customer lists.
Said term shall not include information so generally known as to be part of the
public domain.
9. Enforcement. Each of the covenants contained in paragraphs 6, 7 and 8
hereof is separate and independent. Employee acknowledges and agrees that the
Company's remedies at law may be inadequate in the event of a breach or
threatened
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breach of the covenants set forth therein, and in such event, the Company shall
be entitled to have an injunction issued by any court of competent jurisdiction,
enjoining and restraining each and every party concerned therewith from the
creation or continuation of such breach (in addition to any other legal and
equitable remedies which the Company may have), and each and every such party
concerned therewith, jointly and severally, shall be obligated to pay all costs
and expenses, including reasonable attorneys' fees, related to the enforcement
by the Company to its rights hereunder.
In the event that any provision of paragraphs 6, 7 or 8 hereof shall be
determined by any court of competent jurisdiction to be unenforceable by reason
of its extending for too great a period of time or over too great a geographical
area, it shall be interpreted to extend only over the maximum period of time for
which it may be enforceable and over the maximum geographical area to which it
may be enforceable.
10. Notice. Any and all notices, designations, consents, offers,
acceptances, or any other communication provided herein, shall be in writing and
deemed given when deposited in the U.S. Mail, registered or certified mail,
return receipt requested, addressed, in the case of the Company, to its
principal place of business in the State of Illinois, and in the case of
Employee, to her last known place of residence, as last furnished by Employee to
Company.
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11. Governing Law. This Agreement shall be subject to and governed by the
laws of the State of Illinois, irrespective of the fact that Employee may become
a resident of a different state.
12. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, legal representatives,
executors, administrators, successors and assigns, subject to the limitations on
assignment referred to in paragraph 15 hereof.
13. Entire Agreement.
(a) This Agreement constitutes the entire agreement between the
parties and contains all of the agreements between the parties with respect
to the subject matter hereof; this Agreement supersedes any and other
agreements, either oral or in writing, between the parties hereto with
respect to the subject matter hereof.
(b) No change or modification of this Agreement shall be valid unless
the same be in writing and signed by the parties hereto. No waiver of any
provision of this Agreement shall be valid unless in writing and signed by
the person or party to be charged.
14. Severability. If any portion or portions of this Agreement shall be,
for any reason, invalid or unenforceable, the
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remaining portion or portions shall nevertheless be valid, enforceable and
carried into effect, unless to do so would clearly violate the present legal and
valid intention of the parties hereto.
15. Headings. The headings in this Agreement are inserted for convenience
only and are not to be considered in construction of the provisions hereof.
16. Assignability. This Agreement shall not be assignable by either party
hereof, except that the Company may assign its rights to, and cause its
obligations under this Agreement to be assumed by any person, corporation,
partnership or other entity (whether or not affiliated with the Company),
provided that the Company guarantee payment of the obligations and liabilities
assigned or the Company transfers (whether by sale, merger or otherwise) all or
substantially all of its assets to such transferee and such transferee assumes
all of the Company's obligations hereunder. Notwithstanding the foregoing,
nothing contained herein shall be deemed to preclude the executors or
administrators of Employee's estate from assigning rights to payment hereunder
to Employee's heirs or devisees in connection with the probate, administration
or settlement of Employee's estate.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by
one of its officers, thereunto duly authorized, and Employee has hereunto set
her hand and seal on the day and year first above written.
JACK CARL/312-FUTURES, INC.
By: /s/ BURTON J. MEYER
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Chief Executive Officer
/s/ ALLYSON D. LAACKMAN
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Allyson D. Laackman
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