OLYMPIC CASCADE FINANCIAL CORPORATION
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("AGREEMENT") IS MADE AND ENTERED INTO THIS
12TH day of June, 2000, by and between OLYMPIC CASCADE FINANCIAL CORPORATION, a
Delaware corporation (the "Company"), and MARK GOLDWASSER, an individual
("Executive").
RECITALS
A. The Company desires to be assured of the association and services of
Executive for the Company.
B. Executive is willing and desires to be employed by the Company, and
the Company is willing to employ Executive, upon the terms, covenants and
conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions hereinafter set forth, the parties hereto do hereby agree as follows:
1. EMPLOYMENT. The Company hereby employs Executive as "Managing Director",
subject to the supervision and direction of the Company's Chief Executive
Officer and Board of Directors. The Company anticipates that within 90 days from
the date of this Agreement, Executive will be elected President of the Company.
Upon such election, Executive's employment shall continue under the terms and
conditions of this Agreement.
2. TERM. The term of this Agreement shall be for a period of three (3) years
commencing on the date hereof, unless terminated earlier pursuant to Section 6
below.
3. COMPENSATION: REIMBURSEMENT.
3.1 BASE SALARY. For all services rendered by Executive under this
Agreement, and commencing June 12, 2000, the Company shall pay Executive a base
salary ("Base Salary") of $400,000 per annum. The Base Salary is subject to
increases from time to time at the discretion of the Board of Directors of the
Company.
3.2 ADDITIONAL BENEFITS. In addition to the Base Salary, Executive shall be
entitled to all other benefits of employment now or hereafter provided to the
other executives of the Company, its operating divisions or subsidiaries,
including but not limited to individual health insurance, life insurance and
on-premises parking. Executive shall be based in the City of New York in offices
to be established for him by the Company.
3.3 BONUSES. It is contemplated that from time to time Executive will be
paid bonuses based upon the Company's and Executive's performance.
3.4 OPTIONS. Executive shall be granted an option to purchase 150,000
shares of common stock of the Company at an exercise price equal to the closing
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price for such stock on or near the effective date of this Agreement. Such
options shall be 100% vested upon the effective date of this Agreement. In the
event that Executive's employment terminates, his rights with respect to these
options shall be governed by the Company's 2000 Stock Option Plan.
3.5 CONTINUING OBLIGATIONS. All of the Company's compensation obligations
under this paragraph shall continue through the term of this Agreement.
3.6 REIMBURSEMENT. Executive shall be reimbursed for all reasonable
out-of-pocket business expenses for business travel and business entertainment
incurred in connection with the performance of his duties under this Agreement.
The reimbursement of Executive's business expenses shall be upon weekly
presentation to and approval by the Company of valid receipts and other
appropriate documentation for such expenses.
4. SCOPE OF DUTIES.
4.1 ASSIGNMENT OF DUTIES. Executive shall have such duties as may be
assigned to him from time to time by the Company's Board of Directors
commensurate with his experience and responsibilities in the position for which
he is employed pursuant to Section 1 above. Such duties shall be exercised
subject to the control and supervision of the Board of Directors of the Company.
4.2 EXECUTIVE'S DEVOTION OF TIME. Executive hereby agrees to devote his
professional full time, abilities and energy to the faithful performance of the
duties assigned to him and to the promotion and forwarding of the business
affairs of the Company, and not to divert any business opportunities from the
Company to himself or to any other person or business entity. Executive shall be
entitled to not less than four (4) weeks of paid vacation and not less than two
(2) weeks of paid sick leave during each fiscal year of the Company.
4.3 CONFLICTING ACTIVITIES. For the term of this Agreement or until
Executive's employment hereunder terminates, whichever occurs first, Executive
hereby agrees to promote and develop all business opportunities that come to his
attention relating to current or anticipated future business of the Company, in
a manner consistent with the best interest of the Company and with his duties
under this Agreement. If Executive becomes aware of a business opportunity
during the performance of his Company duties, through the use of the Company's
property or information, or under circumstances that would reasonably lead
Executive to believe that the business opportunity was intended by the offeror
to be offered to the Company, he shall first offer such opportunity to the
Company. Should the Chief Executive Officer of the Company, on behalf of the
Company, not exercise its right to pursue this business opportunity within a
reasonable period of time, not to exceed thirty (30) days, Executive may develop
the business opportunity for himself; provided, however, that such development
may in no way conflict or interfere with the duties owed by Executive to the
Company under this Agreement. Further, Executive may develop such business
opportunities only on his own time, and may not use any service, personnel,
equipment, supplies, facility, or trade secrets of the Company in their
development. As used herein, the term "business opportunity" shall not include
business opportunities involving investment in publicly traded stocks, bonds or
other securities, or other investments of a personal nature.
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5. CONFIDENTIALITY OF TRADE SECRETS AND OTHER MATERIALS. Other than in the
performance of his duties hereunder, Executive agrees not to disclose, either
during the term of his employment by the Company or at any time thereafter, to
any person, firm or corporation any information concerning the business affairs,
the trade secrets or the customer lists or similar information of the Company.
Any technique, method, process, technology or customer compilation or list used
by the Company shall be considered a "trade secret" for the purposes of this
Agreement. Notwithstanding the foregoing, the names and other information
relating to the retail brokerage customers of Executive who have been assigned
Executive's A/E number shall not be considered as "confidential information" for
purposes of this Section 5 or any other provision of this Agreement.
6. SEVERANCE. So long as this Agreement is in effect, in the event that the
Company terminates Executive's employment under any circumstances not specified
as a basis for termination in Section 7.1 hereof, Executive or Executive's
designees or heirs shall be entitled to 12 equal monthly payments equal in the
aggregate to one year of Executive's Base Salary as then in effect (the
"Severance Payment").
7. TERMINATION.
7.1 BASES FOR TERMINATION.
(a) Executive's employment hereunder may be terminated at any time by
mutual agreement of the parties.
(b) Executive's employment hereunder shall automatically terminate on
the last day of the month in which Executive dies. If Executive becomes
permanently disabled and is unable to perform the essential duties defined
in paragraph 4 hereof (the "Duties") with or without accommodation, then
Executive's employment hereunder may be terminated. "Permanent disability"
as used herein shall mean mental or physical disability or both, evidenced
by:
(i) a consecutive six month period of time during which Executive
is unable to perform the Duties with or without accommodation; and
(ii) medical documentation from Executive's attending physician
or a duly licensed independent physician selected by the Company's
Board of Directors, stating that Executive is physically and/or
mentally disabled from performing the essential Duties with or without
accommodation and that the disabling condition is permanent and will
not substantially change or improve.
(c) Executive may terminate his employment hereunder by giving the
Company 60 days prior written notice, which termination shall be effective
on the 60th day following such notice.
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(d) Executive's employment may not be terminated by the Company
against his will without a finding, by an impartial third person or panel,
of fraud, theft or defalcation.
(e) Executive's employment hereunder may be terminated by the Company
or by Executive at any time within ninety (90) days after the occurrence of
a Change in Control (as defined below). Upon such termination:
(i) the Company shall pay to Executive as a lump-sum payment an
amount equal to two (2) years' Base Salary in effect at the time of
termination;
(ii) the Company shall provide Executive with a continuation of
health insurance coverage, existing office space and existing
secretarial and telephone services, in each case for a period of
eighteen (18) months after the date of termination; and
(iii) all stock options issued by the Company to Executive shall
immediately vest and become exercisable for a period of at least two
(2) years after the date of termination, notwithstanding any provision
to the contrary in the Company's stock option plan or in any stock
option agreement between the Company and Executive.
For purposes of this Agreement, a "Change in Control" shall mean the
occurrence of any of the following events:
(x) the acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
(collectively, a "person") of Beneficial ownership (as such term
is defined in Rule 13d-3 promulgated under the Exchange Act),
directly or indirectly, of twenty-five percent (25%) or more of
the then outstanding shares of common stock of the Company or
National Securities Corporation (collectively, the "Outstanding
Common Stock"); provided, however, that the following shall not
constitute a Change of Control: (i) any acquisition by an
Underwriter (as such term is defined in Section 2(11) of the
Securities Act of 1933, as amended) for the purpose of making a
public offering; or (ii) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or
National Securities Corporation or any corporation controlled by
the Company or National Securities Corporation;
(y) the sale or liquidation of all or substantially all of
the assets of the Company or National Securities Corporation; or
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(z) any transaction or series of transactions which result
in Steven A. Rothstein directly or indirectly owning less than
ten percent (10%) of the Outstanding Common Stock.
(f) Notwithstanding anything contained herein, or in any other
agreement between the Company and Executive, or benefit or compensation
plan under which the Executive participates, to the contrary, in the event
that any amounts due Executive under this Section 7.1, or under any other
plan or program of the Company or other agreement between the Company and
Executive, constitute "parachute payments," within the meaning of section
280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the
amount of such parachute payments, when reduced by the federal excise taxes
due and owing on such parachute payments, if any, is less than the amount
Executive would receive if he were paid only three (3) times his "base
amount," as that term is defined in section 280G of the Code, then, in lieu
of all payments hereunder which are parachute payments, Executive shall be
paid, in cash, an amount equal to three (3) times his base amount less one
dollar ($1.00). The determinations to be made with respect to this Section
7.1(f) shall be made by an independent auditor jointly selected by the
parties."
8. NONCOMPETE. Executive covenants and agrees that during the terms of his
employment hereunder and for a period of one (1) year thereafter (the
"Noncompetition Period"), Executive shall not, directly or indirectly recruit,
solicit or otherwise induce any customer, officer or employee of the Company or
its affiliates, or any independent contractor associated with the Company or its
affiliates, to discontinue such relationship with the Company or its affiliates.
During the Noncompetition Period, Executive shall hold in confidence and shall
not disclose to anyone, or use or otherwise exploit for his own benefit or the
benefit of any person or entity, any confidential or proprietary information of
the Company, including, without limitation, customer and vendor lists, financial
statements and information, trade secrets or marketing arrangements and plans,
unless directed to do so by order of any court; provided, however, that the
terms of this paragraph 8 shall not restrict Executive with respect to any
Company customer who has been assigned Executive's A/E number.
9. MISCELLANEOUS.
9.1 TRANSFER AND ASSIGNMENT. This Agreement is personal as to
Executive and shall not be assigned or transferred by Executive without the
prior written consent of the Company. This Agreement shall be binding upon
and inure to the benefit of all of the parties hereto and their respective
permitted heirs, personal representatives, successors and assigns.
9.2 SEVERABILITY. Nothing contained herein shall be construed to
require the commission of any act contrary to law. Should there by any
conflict between any provisions hereof and any present or future statute,
law, ordinance, regulation, or other pronouncement having the force of law,
the latter shall prevail, but the provision of this Agreement affected
thereby shall be curtailed and limited only to the extent necessary to
bring it within the requirements of the law, and the remaining provisions
of this Agreement shall remain in full force and effect.
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9.3 GOVERNING LAW. This Agreement is made under and shall be construed
in accordance with the laws of the State of Illinois, without regard to
conflict of laws principles. The Company and Executive hereby consent and
agree to be subject to the jurisdiction of the federal and state courts of
the State of Illinois sitting in Chicago, Illinois, in any suit, action or
proceeding arising out of this Agreement or the transactions contemplated
hereby.
9.4 COUNTERPARTS. This Agreement may be executed in several
counterparts and all documents so executed shall constitute one agreement,
binding on all of the parties hereto, notwithstanding that all of the
parties did not sign the original or the same counterparts.
9.5 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding of the parties with respect to the subject matter hereof
and supersedes all prior oral or written agreements, arrangements, and
understandings with respect thereto. No representation, promise,
inducement, statement or intention has been made by any party hereto that
is not embodied herein, and not party shall be bound by or liable for any
alleged representation, promise, inducement or statement not so set forth
herein.
9.6 MODIFICATION. This Agreement may be modified, amended, superseded,
or cancelled, and any of the terms, covenants, representations, warranties
or conditions hereof may be waived, only by a written instrument executed
by the party or parties to be bound by any such modification, amendment,
supersession, cancellation, or waiver.
9.7 ATTORNEYS' FEES AND COSTS. In the event of any dispute arising out
of the subject matter of this Agreement, the prevailing party shall
recover, in addition to any other damages assessed, its attorneys' fees and
court costs incurred in litigating or otherwise settling or resolving such
dispute whether or not an action is brought or prosecuted to judgment. In
construing this Agreement, none of the parties hereto shall have any term
or provision construed against such party solely by reason of such party
having drafted the same.
9.8 WAIVER. The waiver by either of the parties, express or implied,
of any right under this Agreement or any failure to perform under this
Agreement by the other party, shall not constitute or be deemed as a waiver
of any other right under this Agreement, or of any other failure to perform
under this Agreement by the other party, whether of a similar or dissimilar
nature.
9.9 CUMULATIVE REMEDIES. Each and all of the several rights and
remedies provided in this Agreement, or by law or in equity, shall be
cumulative, and no one of them shall be exclusive of any other night or
remedy, and the exercise of any one of such rights or remedies shall not be
deemed a waiver of, or an election to exercise, any other such right or
remedy.
9.10 HEADINGS. The section and other headings contained in this
Agreement are for reference purposes only and shall not in any way affect
the meaning and interpretation of this Agreement.
9.11 NOTICES. Any notice under this Agreement must be in writing, may
be telecopied, sent by express 24-hour guaranteed courier, or
hand-delivered, or may be served by depositing the same in the United
States mail, addressed to the party to be notified, postage-prepaid and
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registered or certified with a return receipt requested. The addresses of
the parties for the receipt of notice shall be as follows:
If to the Company: Olympic Cascade Financial Corporation
875 North Michigan Avenue
Suite 1560
Chicago, Illinois 60611
Attn: Steven A. Rothstein
If to Executive: Mark Goldwasser
2 Cornell Street
Scarsdale, New York 10583
Each notice given by registered or certified mail shall be deemed delivered and
effective on the date of delivery as shown on the return receipt, and each
notice delivered in any other manner shall be deemed to be effective as of the
time of actual delivery thereof. Each party may change its address for notice by
giving notice thereof in the manner provided above.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed as of the date first set forth above.
EXECUTIVE OLYMPIC CASCADE FINANCIAL
CORPORATION
By:
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Mark Goldwasser Steven A. Rothstein, Chairman
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