UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event
reported): November 17, 2014.
MERRIMAN HOLDINGS, INC.
(Exact Name of Registrant as Specified
in Charter)
Delaware |
001-15831 |
11-2936371 |
(State or Other Jurisdiction |
(Commission File Number) |
(IRS Employer |
of Incorporation) |
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Identification No.) |
250 Montgomery St., 16th Floor
San Francisco, CA 94104
(Address of
Principal Executive Offices) (Zip Code)
Registrant’s telephone number,
including area code (415) 248-5600
(Former Name or Former Address, if Changed
Since Last Report)
250 Montgomery Street, 16th Floor,
San Francisco, California 94104
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Item 5.02(e) |
Compensatory Plan, Contract or Arrangement |
On November 17, 2014, Merriman Holdings, Inc. entered into “Double
Trigger” Change of Control Agreements with D. Jonathan Merriman, Chief Executive Office, William J. Febbo, Chief Operating
Officer, and Michael C. Doran, General Counsel. The terms of the Change of Control Agreements provide for payment of certain benefits
in the event that there is (1) a change of control of the Company, followed within 12 months by (ii) termination of the executive,
or the executive resigns for good cause. The term of each agreement is initially for two years, with automatic one year renewals
unless cancelled by either party. The benefits provided by the Change of Control Agreements, if triggered, include one year salary
and bonus for Messrs. Merriman and Febbo and six months for Mr. Doran, and acceleration of vesting on all stock options or restricted
stock held by the executive. The form of the Change of Control Agreements is attached hereto as an exhibit.
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99.1 |
Form of Change of Control Agreements entered into on November 17, 2014. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Merriman Holdings, Inc. |
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Date: November 21, 2014 |
By: |
/s/ D. JONATHAN MERRIMAN |
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D. Jonathan Merriman |
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Chief Executive Officer |
Exhibit 99.1
CHANGE OF CONTROL AGREEMENT
THIS CHANGE OF CONTROL AGREEMENT (this "Agreement")
is entered into as of November 17, 2014, between Merriman Holdings, Inc., a Delaware company (the "Company"), and [____________]
(the "Executive").
WHEREAS, the parties desire to enter into this Agreement setting
forth certain of the terms and conditions for the employment relationship of the Executive with the Company.
NOW, THEREFORE, it is AGREED as follows:
1. Employment. The Executive is hereby employed
as [____________] of the Company and the Company’s subsidiary, Merriman Capital, Inc. As Chief Executive Officer of the Company,
the Executive shall [__________________________________] of the Company and Merriman Capital, Inc. as customarily performed by
persons serving in such capacities. He shall also perform such other duties as the Board of Directors of the Company (the “Board
of Directors”) may from time to time direct. Executive agrees to serve the Company faithfully and to the best of his ability
and to devote his full time, attention, and efforts to the business and affairs of the Company during the term of his employment.
The Executive hereby confirms that he is under no contractua1 commitments inconsistent with his obligations set forth in this Agreement.
2. Location of Services. During the term of this
Agreement, the Executive shall be principally located at the offices of the Company located in the San Francisco, CA metropolitan
area.
3. Salary. The Company shall pay, or cause to
be paid, the Executive an annual salary equal to $[_________], with such increases as may be determined by the Company in its discretion
("Base Salary"). The Base Salary of the Executive shall not be decreased at any time during the term of this Agreement
from the amount then in effect unless the Executive otherwise agrees in writing. Participation in deferred compensation, discretionary
bonus, retirement, and other employee benefit plans and in fringe benefits shall not reduce the Base Salary. The Base Salary shall
be payable to the Executive no less frequently than monthly.
4. Termination of Employment.
(a) The Executive may terminate his employment at any time after
the 30-day notice period in Section 5 has elapsed. The Board of Directors of the Company may terminate the Executive's employment
at any time, subject to payment of the compensation described below in certain circumstances.
(b) In the event that there is: (i) first, a “Change of
Control” (as defined below), and (ii) following the Change of Control, and within 12 months of the consummation of
the Change of Control transaction, either (A) the Executive is terminated in circumstances which do not meet the definition of
“Termination for Cause” (as defined below); or (B) the Executive terminates his employment for “Good Reason”
(as defined below), then the Executive will be entitled to receive the “Compensatory Package” (as defined below) from
the Company.
(c) The Executive shall have no right to receive compensation
or other benefits from the Company for any period after Termination for Cause by the Company or termination by the Executive other
than termination with Good Reason, except for any vested retirement benefits to which the Executive may be entitled under any qualified
employee pension plan or vested options under any qualified option plan maintained by the Company and any deferred compensation
to which the Executive may be entitled.
(d) The term "Termination for Cause' shall mean termination
by the Company because of the Executive's (i) fraud or material misappropriation with respect to the business or assets of the
Company; (ii) persistent refusal or failure materially to perform his duties and responsibilities to the Company for a period of
at least ten (10) days, which continues after the Executive receives notice from the Board of Directors of such refusal or failure;
(iii) conduct that constitutes disloyalty to the Company and which materially harms the Company or conduct that constitutes breach
of fiduciary duty involving personal profit; (iv) conviction, or the entry of a plea of guilty or nolo contendere by the Executive,
of a felony or crime, or willful violation of any law, rule, or regulation, involving moral turpitude; (v) becoming unable to perform
his duties due to regulatory or legal action, loss of licenses or registration with FINRA or by entry into an agreement with the
Securities and Exchange Commission, (vi) the use of drugs or alcohol which interferes materially with the Executive's performance
of his duties; or (vii) material breach of any provision of this Agreement.
(e) The term resignation for "Good Reason" shall mean
that Executive's resignation occurs within three months of one of the following events: (i) an involuntary reduction of Executive's
job duties or responsibilities; (ii) the Board requires that Executive report to someone other than the Board of Directors; (iii)
any involuntary reduction of Executive's Base Salary; (iv) any fundamental change in the structure of Executive’s compensation
package including but not limited to any material reduction in the amount of Executive’s potential bonus; or (v) the issuance
of a directive requiring Executive to relocate to a new office located more than 50 miles from his current office at 250 Montgomery
Street, 16th Floor, San Francisco, CA 94104.
(f) The term “Change
of Control” shall mean (i) a sale of substantially all of the assets of the Company; (ii) a merger or consolidation
in which the Company is not the surviving corporation (other than a merger or consolidation in which stockholders immediately before
the merger or consolidation control, immediately after the merger or consolidation, more than 50% of the stock voting power of
the surviving entity); or (iii) a reverse merger in which the Company is the surviving corporation but the shares of the Company’s
Common Stock outstanding immediately preceding the merger are converted by virtue of the merger into other property, whether in
the form of securities, cash or otherwise (other than a reverse merger in which stockholders immediately before the merger control,
immediately after the merger or consolidation, more than 50% of the stock voting power of the surviving entity); or (iv) any
transaction or series of related transactions in which in excess of 50% of the Company’s stock voting power is transferred.
(g) The term “Compensatory Package” shall mean an
amount equal to (i) One (1.0) times Executive’s annual Base Salary; (ii) immediate vesting of all of Executive’s stock
options and restricted stock which is subject to vesting; (iii) an amount equal to One (1.0) times Executive’s total bonus
and discretionary compensation payments for the preceding twelve months paid and payable (i.e., if last executive bonus was calculated
on a period ended within the last 12 months, the bonus portion of the compensatory package would be the sum of the portion of the
last bonus which related to the most recent 12 month period, and the bonus that would be payable for the stub period since the
last bonus calculation. For example, if Compensatory Package were calculated on Sept. 30 and last bonus was paid on a the calendar
year ended the prior Dec. 31, bonus portion of Compensatory Package would be the sum of 3/12’s or 25%, of the last bonus,
plus 9/12’s, or 75%, of the annual bonus that would be payable under current year bonus plan); and (iv) Company payment,
for a period of twelve months, of all benefits which Executive is currently receiving.
5. Termination by the Executive. The Executive
may terminate his employment at any time during the term of this Agreement by giving thirty (30) days' prior written notice thereof
to the Board of Directors of the Company. In the event of termination by the Executive under this Section 5, the Company may at
its option elect to have the Executive cease to provide services immediately, provided that during such 30-day notice period the
Executive shall be entitled to continue to receive his Base Salary.
6. Term.
(a) The initial term of this Agreement shall be for a period
of Two (2) years from the date hereof.
(b) On each anniversary of the date hereof beginning One (1)
year from the date hereof, this Agreement shall be automatically renewed for a further One (1) year period unless Executive or
the Company notifies the other party in writing at least 30 days prior to the anniversary of the date hereof that they do not wish
to renew this Agreement.
7. Return of Proprietary Property. The Executive
agrees that all property in the Executive's possession that he obtains or is assigned in the course of his employment with the
Company, including, without limitation, all documents, reports, manuals, memoranda, customer lists, credit cards, keys, access
cards, and all other property relating in any way to the business of the Company, is the exclusive property of the Company, even
if the Executive authored, created, or assisted in authoring or creating such property. The Executive shall return to the Company
all such property immediately upon termination of employment or at such earlier time as the Company may request.
8. Confidential Information. Except as permitted
or directed by the Board of Directors of the Company, during the time the Executive is employed by the Company or at any time thereafter,
the Executive shall not divulge, furnish, or make accessible to anyone or use in any way (other than in the ordinary course of
the business of the Company) any confidential or secret information or knowledge of the Company, whether developed by himself or
by others. Such confidential and/or secret information encompassed by this Section 8 includes, but is not limited to, the Company's
customer and supplier lists, business plans, and financial, marketing, and personnel information. The Executive agrees to refrain
from any acts or omissions that would reduce the value of any confidential or secret knowledge or information to the Company, both
during his employment hereunder and at any time after the termination of his employment. The Executive's obligations of confidentiality
under this Section 8 shall not apply to any knowledge or information that is now published publicly or that subsequently becomes
generally publicly known, other than as a direct or indirect result of a breach of this Agreement by the Executive. Notwithstanding
anything contained herein, Executive agrees that the “Proprietary Information Agreement by and between Executive and the
Company shall remain in full force and effect, and is not superseded by this Agreement.
9. Assignment. The rights and obligations of the
Company under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the Company.
The Executive may not assign this Agreement or any rights hereunder. Any purported or attempted assignment or transfer by the Executive
of this Agreement or any of the Executive's duties, responsibilities, or obligations hereunder shall be void.
10. Company Remedies. The Executive acknowledges
that the remedy at law for any breach of any of the provisions of Sections 7 or 8 will be inadequate, and that the Company shall
be entitled, in addition to any remedy at law or in equity, to preliminary and permanent injunctive relief and specific performance.
11. Other Contracts. The Executive shall not,
during the term of this Agreement, have any other paid employment other than with a subsidiary of the Company or a subsidiary of
the Company’s parent company, Merriman Holdings, Inc., a Delaware corporation, except with the prior approval of the Board
of Directors.
12. Notices. All notices, requests, demands, consents,
or other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given
if delivered by overnight courier or express mail service or by postage prepaid registered or certified mail, return receipt requested
(the return receipt constituting prima facie evidence the giving of such notice request, demand or other communication), by personal
delivery, or by fax with confirmation of receipt and a copy mailed with postage prepaid, to the following address or such other
address of which a party may subsequently give notice to the other party in accord with the provisions of this Section. Notice
is effective immediately if by personal delivery or by fax with confirmation received and a copy mailed the same day. Notice sent
by overnight courier or by registered or certified mail is effective the earlier of actual receipt or the fifth date after the
date mailed as evidenced by the sender's certified or registered receipt.
To the Company: |
Merriman Holdings, Inc. |
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250 Montgomery Street, 16th Floor |
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San Francisco, CA 94104 |
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Attn: General Counsel |
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To Executive: |
[_______________] |
13. Attorneys Fees. Should any party hereto retain
counsel for the purpose of enforcing, or preventing the breach of, any provision hereof including, but not limited to, the institution
of any action or proceeding, whether by arbitration, judicial or quasi-judicial action, or otherwise, to enforce any provision
hereof, or for damages for any alleged breach of any provision hereof, or for a declaration of such party's rights or obligations
hereunder, then whether the matter is settled by negotiation, or by arbitration or judicial determination, the prevailing party
shall be entitled to be reimbursed by the losing party for all costs and expenses incurred thereby, including, but not limited
to, reasonable attorney's fees for the services rendered to such prevailing party.
14. Amendments or Additions. No amendments or
additions to this Agreement shall be binding unless in writing and signed by all parties hereto.
15. Section Headings. The section headings used
in this Agreement are included solely for convenience and shall not affect, or be used in connection with, the interpretation of
this Agreement.
16. Severability. The provisions of this Agreement
shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability
of the other provisions hereof.
17. Release of Claims. Company and Executive agree
that Company may require Executive to sign a release of claims arising from this Agreement as a condition to receiving payment
under this Agreement, but may not require Executive to release any other claims he might have as a condition to receiving payment
under this Agreement.
18. Governing Law. This Agreement shall be governed
by the laws of the State of California (other than the choice of law rules thereof).
IN WITNESS WHEREOF, this Change of Control Agreement is executed
as of the date first written above.
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“EXECUTIVE” |
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[________________] |
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“COMPANY” |
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MERRIMAN HOLDINGS, INC. |
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By: |
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Title: |
Merriman (CE) (USOTC:MERR)
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