EXHIBIT V
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of the 22
day of October, 2002 (the "Effective Date"), by and between INTERNATIONAL ASSETS
HOLDING CORPORATION, a Delaware corporation (the "Company"), and SCOTT J. BRANCH
(the "Executive").
R E C I T A L S
A. The Company, directly or through its subsidiaries, operates a
financial services company, including a market making and proprietary trading
firm specializing in global securities.
B. The Executive shall be, pursuant to the terms of this Agreement, the
President of the Company, and may hold such offices in its subsidiaries as may
be appropriate for the conduct of its business.
C. The Company is a publicly held entity, having previously offered
shares of the Company's common stock pursuant to a registration statement, and
continues to file reports as to the Company's business.
D. The Board of Directors of the Company (the "Board") considers it
essential to the best interests of the Company that the Executive commence
employment with the Company.
E. In order to induce the Executive to accept employment with the
Company, the Company desires to enter into this Agreement with the Executive,
and to be bound by it.
F. The Executive, desiring to accept employment by the Company, agrees
to be bound by the covenants herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth hereinafter, the Company and the Executive agree as follows:
1. Recitals. All of the above recitals are true and correct.
2. Term. The term of this Agreement shall be for a period of three
years commencing on the Effective Date, subject, however, to prior termination
as herein provided. Thereafter, this Agreement shall automatically renew for one
additional year unless either party shall have given written notice to the other
of its intent not to renew the Agreement no less than 90 days prior to the end
of the initial three year term of this Agreement and may be further extended by
the mutual written agreement of the Company and the Executive on a yearly basis.
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Page 2
3. Duties. During the period of employment (except as otherwise agreed by
the Executive), the Executive will be employed as the President of the Company
and shall have powers and duties as may from time to time be delegated to the
Executive by the Chief Executive Officer or the Board. The Executive shall
report to Chief Executive Officer of the Company. The Executive shall devote
substantially all of the Executive's business time to the affairs of the
Company.
4. Indemnification. The Company agrees to defend, indemnify and hold
harmless the Executive for acts in his capacity as Executive to the fullest
extent permitted by Delaware corporate law at the present time (or as such right
of indemnity may be increased in the future). The Company agrees to reimburse
the Executive on a monthly basis for any cost of defending any action or
investigation (including reasonable attorneys' fees and expenses) subject to an
undertaking from the Executive to repay the Company if the Executive is
determined not to be entitled to such indemnity by a Court of competent
jurisdiction.
5. Compensation and Related Matters.
(a) Basic Salary. As a compensation for the duties to be
performed by the Executive hereunder, the Company will pay the Executive a base
salary at an annual rate of $175,000 per year through the first anniversary of
the Effective Date, and such annual salary shall thereafter during the three
year term hereof increase effective as of the first day of each succeeding
12-month period by the greater of (i) the change in the consumer price index
during the preceding 12-month period, or (ii) such other amount as the Board in
its discretion determines to be appropriate. The Executive's base salary shall
be payable in accordance with the customary payroll practices of the company as
in effect from time to time during the period of employment.
(b) Bonus Plan.
(i) In addition to the base salary, the Executive shall be
entitled to additional compensation in an amount determined by the Board taking
into account the consolidated pre-tax earnings of the Company (including its
subsidiaries) for each fiscal year that ends during the initial three year term
hereof.
(ii) For purposes of this Section 5(b), the "consolidated
pre-tax earnings of the Company" shall be determined by the independent public
accountants then regularly servicing the Company, in accordance with generally
accepted accounting principles, consistently applied, based on the audited
consolidated financial statements of the Company for such fiscal year, which
determination shall be binding on the parties hereto.
(iii) Additional compensation authorized by the Board shall be
paid within sixty days after the later of: (A) the date on which the Company's
independent accountants delivers its final report on the audited consolidated
financial statements of the Company for the relevant fiscal year, or (B) the
next December 31 following the end of such fiscal year.
Employment Agreement of Scott J. Branch
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(c) Stock Options.
(i) The Executive shall be eligible to participate in a new
Stock Option Plan (the "Plan") to be established by the Company subject to
stockholder approval at the next convened annual general meeting of the
Company's stockholders. In the event the Plan is approved by the stockholders,
the Executive shall receive grants of options thereunder as provided in
subsection 5(c)(ii) hereof and at such other times as consideration shall be
given by the Board or such committee to the grants of stock options generally to
senior executive officers of the Company. If the Plan shall not be approved by
the stockholders or if the Plan is approved by the stockholders but shall
subsequently be terminated or if no options remain available for grant
thereunder, the Executive shall be entitled to participate in such other
incentive program as the Company may substitute for the Plan for its senior
executive officers.
(ii) Subject to approval of the Plan by the stockholders and in
connection with the employment of the Executive by the Company, the Company will
issue to the Executive 275,000 stock options at an exercise price of $2.50 per
share, pursuant to the terms and conditions of the Plan and a Stock Option
Agreement to be executed between the Company and the Executive following
approval of the Plan (the "Stock Option Agreement"). The stock options will have
a term of 10 years. The stock options will have a three year vesting schedule
with one-third of such options becoming exercisable at the end each of the
first, second and third years of the Stock Option Agreement and will become
fully vested and non-forfeitable in the event of a change of control of the
Company. In the event of any termination of Executive's employment with the
Company pursuant to this Agreement: (i) any non-vested options shall be
cancelled and shall be of no further force or affect; and (ii) any vested
options shall be cancelled and shall be of no further force or affect if not
exercised by Executive within ninety (90) days of any termination of Executive's
employment with the Company.
(d) Additional Compensation. The Company may award additional
bonuses to the Executive from time to time in amounts as determined by the Board
or a committee of the Board, and such compensation shall be payable in the
manner and at the time or times directed by the Board or its committee.
(e) Reimbursement of Expenses. During the term of this Agreement,
the Company shall promptly pay or reimburse the Executive for all reasonable
business expenses actually incurred or paid by the Executive in the performance
of his services hereunder, all in accordance with the policies and procedures of
the Company for the reimbursement of business expenses of its senior executive
officers, provided that the Executive properly accounts therefor in accordance
with Company policy.
(f) Benefits. The Company shall, at its sole cost, and expense,
provide life insurance, medical insurance, disability insurance, retirement and
other benefits comparable to those provided by comparable companies to their
senior executive officers.
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6. Vacation, Days Off. The Executive may take a maximum of 4 weeks
vacation per year, at times to be determined in the manner most convenient for
the business of the Company. In addition, the Executive may take time off at
such times as may be determined by the Board to attend such meetings and
postgraduate courses as may comply with regulatory and licensing requirements of
the businesses conducted by the Company, or which otherwise directly advance the
interests of the Company. The Company may, in its discretion, reimburse the
Executive for some or all of the expenses incurred to register for or attend
such training courses.
7. Termination Provisions
(a) Termination
(i) The Executive's employment hereunder shall automatically
terminate (A) upon and by the failure of Executive to purchase Securities
pursuant to the terms and conditions of the Share Subscription Agreement between
the Company and Executive of even date herewith (the "Subscription Agreement");
(B) upon any termination of the Subscription Agreement (C) upon the Executive's
death or Disability (as hereinafter defined); (D) upon written notice by the
Company for "Cause" (as hereinafter defined); or (E) upon 30 days written notice
by either party.
(ii) For purposes of this Agreement, "Disability" shall have
the same meaning as that term has under a disability policy maintained for the
Executive by the Company. If no such policy exists, or if payment of benefits
under the policy is not conditioned on meeting such a definition, then
"Disability" shall mean that the Executive is unable to perform his duties
hereunder on a full-time basis for three consecutive months after reasonable
accommodation by the Company.
(iii) For purposes of this Agreement, the Company shall have
"Cause" to terminate the Executive's employment hereunder upon (A) the willful
failure by the Executive to substantially perform the Executive's duties (other
than any such failure resulting by the Executive's Disability) and continuance
of such failure for more than 30 days after the Company notifies the Executive
in writing of the Executive's failure to perform; (B) the engaging by the
Executive in willful misconduct which is injurious to the Company; (C) the
conviction of the Executive in a court of proper jurisdiction of a crime which
constitutes a felony in respect of the conduct of the business of the Company;
or (D) a finding by the National Association of Securities Dealers, Inc. (the
"NASD"), another self-regulatory body of competent jurisdiction (the "SRO"), or
U.S. Securities and Exchange Commission (the "SEC') that the Executive
personally violated its rules or regulations, and such finding or penalty
therefor restricts the Executive's ability to perform his obligations under this
Agreement. Notwithstanding the foregoing, the Executive shall not be deemed to
have personally violated roles or regulations of the NASD, an SRO, or the SEC,
if a finding or penalty imposed is based upon a finding that the Executive did
not adequately supervise such employee, but was not otherwise a party to the
acts constituting the misconduct by such other person. Further, the Executive
shall not be deemed to have been terminated for Cause unless and until there has
been delivered to the Executive notice that a resolution has been duly adopted
by the Board which finds that the Company has
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"Cause" to terminate the Executive as contemplated in this Section 7(a),
provided, that the Executive is terminated for Cause upon conviction of a felony
as identified in clause (C) above, and upon the revocation of any license
required under applicable law for the conduct of the business of the Company by
the Executive.
(b) Compensation Upon Termination. In the event the Executive's
employment hereunder terminates pursuant to Section 7(a)(i)(A) or 7(a)(i)(B)
hereof, no additional compensation shall be payable to the Executive following
the date of termination of employment. If either (i) the Company shall terminate
the employment of the Executive for Cause pursuant to the provisions of Section
7(a)(i)(C) hereof, or (ii) the Executive shall resign (other than as a result of
the violation of this Agreement by the Company), then the Company shall pay the
Executive 100% of the compensation set forth in Section 5 hereof for 30 days
following the date of the termination of employment. If the Company shall
terminate the employment of the Executive without Cause or the Executive resigns
as a result of a breach by the Company of its obligations to the Executive,
whether set forth herein or otherwise, then the Company shall pay the Executive
100% of the compensation set forth in Section 5 hereof for the remaining term of
this Agreement, or six full months, whichever period shall be greater.
8. Nondisclosure and Noncompetition.
During the period of employment hereunder and for a period of one year
after termination of this Agreement (for whatever reason), the Executive shall
not, without the written consent of the Board or a person authorized thereby,
disclose to any person or appropriate for his own use, information, knowledge or
data which is not theretofore publicly known and in the public domain that is
obtained by the Executive while in the employ of the Company (which for purposes
of this Section 8 shall include the Company or any of its subsidiaries),
respecting information about the Company, or of any products, systems, programs,
procedures, manuals, guides, confidential reports and communications,
improvements, designs or styles, customers, methods of distribution, sales,
prices, profits, costs, contracts, suppliers, business prospects, business
methods, techniques, research, trade secrets, or know-how of the Company, except
as the Executive may, in good faith, reasonably believe to be for the Company's
benefit. The Executive acknowledges that all information about the Company's
trading department customers, clients, prospects and pricing models constitutes
trade secrets under Section 688.002(4) of the Florida Statutes. Notwithstanding
the foregoing, following the termination of employment hereunder, the Executive
may disclose any information, knowledge or data of the type described to the
extent required by law in connection with any judicial or administrative
proceeding or inquiry.
In addition to the foregoing and in the interest of protecting the
Company's trade secrets, during the term of this Agreement and for a period of
one year after termination of this Agreement for any reason, the Executive shall
not, without the written consent of the Board or a person authorized thereby,
directly or indirectly, do any business with respect to, or solicit any business
similar to the business of the Company from, any of the Company's customers,
clients, or accounts without the consent of the Company; provided, that this
prohibition shall not limit the authority of the Executive (or the Executive's
new
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employer) to solicit business from any client or customer of the Company
that is already a customer or client of that new employer thirty days prior to
the last day the Executive is employed by the Company. In addition, Executive
shall not directly, or through any company of which Executive is an officer,
employee, or more than 5% owner, hire any employee of the Company, or attempt to
solicit any employee of, or independent contractor used by, the Company to leave
the service of the Company.
Executive agrees that the restrictions of this Section 8 are reasonable as
to time, area, subject matter and otherwise due to the confidential nature of
the information and trade secrets of the Company, and the unique role and
substantial compensation of the Executive. The covenants contained in this
Section 8 shall survive the termination of the Executive's employment pursuant
to this Agreement provided, however, that in the event this Agreement terminates
prior to the Conversion, as such term is defined in the Share Purchase Agreement
of even date herewith between the Executive and the Company, the noncompetition
provisions in this Section 8 shall not extend to the fixed income business
engaged in by the Executive prior to the date of this Agreement. The foregoing
provisions of this Section 8 shall be binding upon the Executive's heirs,
successors and legal representative. The Executive acknowledges and confirms
that the Company shall be entitled to specific performance or injunctive relief
without proof of monetary damages and without further proof of irreparable
injury in an action instituted in any court of competent jurisdiction, or a
proceeding before the NASD.
9. Other Directorships. The Company acknowledges and understands that the
Executive may be offered the opportunity to sit on the board of directors of
other public and private companies. The Executive agrees that he will not serve
on the board of directors of any company in competition with the Company and its
affiliates, and the Executive agrees that he will not accept any appointment to
another Board without the prior written consent of the Company, which consent
shall not be unreasonably withheld. The Company may determine that the Executive
shall not serve as a director, officer, or in any other position with an entity
that does not maintain liability insurance in an amount deemed to be adequate by
the Company. The Company agrees that the Executive shall be entitled to any fees
or salary received for his participation on the Boards of Directors of such
companies.
10. Attorneys' Fees. In the event a proceeding is brought to enforce or
interpret any part of this Agreement or the rights or obligations or any party
to this Agreement, the prevailing party shall be entitled to recover as an
element of such party's costs of suit, through all appeals, and not as damages,
reasonable attorneys' fees and paralegal's fees to be fixed by the arbitrator(s)
or court. The prevailing party shall be the party who is entitled to recover his
costs of suit or proceeding whether or not the action proceeds to final
judgment. A party not entitled to recover his costs shall not recover attorneys'
fees.
11. Successors and Assigns. This Agreement and the benefits hereunder are
personal to the Company and are not assignable or transferable by the Executive
without the written consent of the Company. The services to be performed by the
Executive hereunder may not be assigned by the Company, without the written
consent of the
Employment Agreement of Scott J. Branch
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Executive, to any person, firm, corporation or other entity, with the exception
of a parent or subsidiary of the Company. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the Company and the
Executive and the Executive's heirs and legal representatives, and the Company's
successors and permitted assigns.
12. Governing Law. This Agreement shall be construed in accordance with
and governed by the law of the State of Florida, without regard to the
application of principles of conflict of laws.
13. Notices. All notices and other communications required or permitted to
be given under this Agreement shall be in writing and shall be deemed to have
been given if delivered personally or sent by certified mail, return receipt
requested, postage prepaid, to the parties to this Agreement shall specify by
notice to the other:
If to the Company: International Assets Holding Corporation
220 East Central Parkway
Altamonte Springs, Florida 32701
With a copy to: Louis T. M. Conti, Esq.
Holland & Knight LLP
200 S. Orange Avenue, Suite 2600
Orlando, Florida 32801
If to the Executive: Mr. Scott Branch
39 Meeker Avenue
Allendale, New Jersey 07401
With a copy to: Alfred George Smith II, Esq.
Shutts & Bowen
201 S. Biscayne Blvd., Suite 1500
Miami, Florida 33131-4328
All notices and communications shall be deemed to have been received on the date
of delivery or on the third business day after the mailing thereof.
14. Modification; Waiver. No provisions of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is approved
by the Board or a person authorized thereby, and is agreed to in a writing
signed by the Executive and such officer as may be specifically designated by
the Board. No waiver by either party hereto at the time of any breach by the
other party hereto of any condition or provision of this Agreement, or
compliance therewith, by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same time, or at any prior or
subsequent time.
15. Complete Understanding. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not set forth expressly in this Agreement.
This Agreement
Employment Agreement of Scott J. Branch
Page 8
supercedes all prior agreements and understandings between the Company and the
Executive concerning his employment by the Company as well as his compensation,
including stock options, in connection therewith, except that the Executive
acknowledges that certain confidentiality provisions contained have been
subsumed and incorporated herein, and shall be deemed to continue from the
inception of his employment by the Company.
16. Headings. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
this Agreement.
17. Severability. The invalidity of any one or more of the words, phrases,
sentences, clauses or sections contained in this Agreement shall not affect the
enforceability of the remaining portions of this Agreement or any part thereof,
all of which are inserted conditionally on their being valid in law, and if any
one or more of the words, phrases, sentences, clauses or sections contained in
this Agreement shall be declared invalid, this Agreement shall be construed as
if such invalid word or words, phrase or phrases, sentence or sentences, clause
or clauses, or section or sections had not been inserted.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
19. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by binding arbitration in
Orlando, Florida, in accordance with the rules of the American Arbitration
Association then in effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first above written.
COMPANY:
INTERNATIONAL ASSETS HOLDING
CORPORATION, a Delaware corporation
By: /s/ Diego J. Veitia
---------------------------------
Name: Diego J. Veitia
Title: Chairman and CEO
EXECUTIVE:
/s/ Scott J. Branch
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Scott J. Branch