EXHIBIT 10.1
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September 29, 2004
Xx. Xxxxxxx X. Xxxxxx
0 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Dear Xxxx:
This letter will confirm the terms of your Separation Agreement and
General Release ("Agreement") from Xxxxx Management Co., Inc. (the "Company").
Your signature at the end of this Agreement will signify your acceptance of and
agreement to the provisions of this Agreement.
1. Resignation Date. The effective date of your
resignation from the Company shall be September 30, 2004 ("Resignation Date").
2. Separation Payments. In consideration for a general
release of all claims, the Company shall make the following payments to you:
a. The Company shall pay you a lump sum separation
amount of ninety-seven thousand and six hundred
seventy seven dollars ($97,677) by directly
depositing such amount into your account on or about
September 30, 2004. You may direct that a portion of
this payment, in an amount up to the limit allowable
by law, be contributed to your 401(k) plan by
notifying the Company of your decision prior to
September 30, 2004.
b. On each of January 1, 2005, February 1, 2005,
March 1, 2005, April 1, 2005, May 1, 2005 and June 1,
2005, the Company shall pay you a lump sum payment of
twelve thousand, five-hundred dollars ($12,500) by
sending a check payable to you (or to the entity
through which you are conducting consulting services)
to the address listed above. Such amounts shall be
payable to you in full payment for consulting
services for the period January 1 through June 30,
2005. On a quarterly basis, you shall provide up to
the greater of (i) 40 hours or (ii) the number of
hours determined by dividing 37,500 by your
applicable hourly billing rate, of consulting
services to be determined, which services may include
a quarterly review of the Company's risk management
report and discussion of the report with the
Company's head of client service. In the event that
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the Company does not request the full amount of work
from you to which it is entitled, your fees will not
be reduced. You acknowledge and agree, however, that
you shall forfeit any right you may have to a payment
if you provide services as an employee (or functional
equivalent) to a Competitive Business prior to the
date such payment is due. For purposes of this
Agreement, "Competitive Business" means any business
that competes directly or indirectly with the Company
in actively managing money, including but not limited
to, businesses that are engaged in long-only value
equity and short-bias equity, event driven,
distressed debt and equity long/short hedge fund
products, or that otherwise actively manages money or
seeds managers or sponsors hedge funds.
c. On each of July 1, 2005 and September 1, 2005,
the Company shall pay you $37,500 for the type and
quantity of consulting services to the Company
described in paragraph 2(b) herein, or which are
otherwise relevant to the business of the Company
and/or its affiliates, provided however, that you
have established a bona fide consulting business. For
purposes of this paragraph, a "bona fide consulting
business" is a business with two or more paying
clients or two or more full-time employees (other
than yourself), as of July 1, 2005.
3. Stock and Option Grants. With respect to the deferred
stock and option awards to which you are a party, the following provisions shall
apply.
a. Deferred Stock: Within 30 days of your
Resignation Date and subject to receipt of written
delivery instructions in accordance with paragraph
3(c) herein, the Company shall deliver the following
shares of BKF Capital Group Inc. ("BKF") stock:
[X] Sixty-five thousand and forty-eight
(65,048) shares of BKF stock pursuant
to a Deferred Stock Award Agreement
dated January 12, 2001 between you and
BKF.
[X] Three-thousand, three-hundred and
thirty-three (3,333) shares of BKF
stock pursuant to a Deferred Stock
Award Agreement dated January 10, 2003
between you and BKF.
[X] Three-thousand, three-hundred and
thirty-four (3,334) shares of BKF
stock, pursuant to a Deferred Stock
Award Agreement dated January 10, 2003
between you and BKF; provided, however,
that you may elect to receive in lieu
of such shares, the cash value of such
shares as reflected in the closing
price of the stock on September 30,
2004, by giving notice in writing by
the Resignation Date.
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[X] Four-thousand, four-hundred and
thirteen (4,413) shares of BKF stock
provided to you pursuant to a Deferred
Stock Award Agreement dated March 12,
2003.
b. BKF Stock Options. You shall have thirty days
from the Resignation Date to purchase up to
sixty-five thousand and forty-nine (65,049) shares of
BKF stock at an exercise price of $13.03125 per
share, pursuant to the Stock Option Award Agreement
dated January 20, 2000. If you elect to purchase, you
must provide written instructions regarding delivery
consistent with paragraph 3(c) herein and the
exercise price must be paid in cash to the Company.
c. Stock Delivery Instructions. You shall provide
written instructions to BKF to instruct BKF's
transfer agent to either (i) deliver the stock
certificates to you and if so, the delivery address,
or (ii) to deliver the stock certificates to a
brokerage account and, if so, the account number and
address. The delivery of all of the above shares of
BKF stock is subject to your right to elect that a
number of shares sufficient to pay withholding taxes
be withheld. In the event that shares are not
withheld, you shall remit an estimated cash amount to
BKF. All shares of BKF stock so delivered shall be
free of any and all legends, and BKF shall take
reasonable steps to notify relevant brokers that you
are no longer an affiliate of BKF for securities laws
purposes.
d. Proxy. With respect to the shares of BKF stock
to be delivered pursuant to this agreement, you
hereby grant to such persons as shall be designated
by BKF with respect to any meeting of stockholders
your proxy to vote in accordance with the
recommendation of management with respect to any
matters to be voted on by stockholders of BKF.
4. Medical Benefits. The Company shall continue to
provide you with medical benefits at the Company's sole expense by paying your
family medical premium under the Consolidated Omnibus Budget Reconciliation Act
of 1985 ("COBRA") until the earlier of (a) September 30, 2005, or (b) until you
become employed and are eligible for another group insurance plan. From and
after such date, you may be eligible to continue the Company's insurance at your
own expense, pursuant to COBRA.
5. Other Payments. The Company shall provide you with
your base salary through September 30, 2004 and reimbursement for authorized
expenses. In addition, the Company shall pay or reimburse you (within 10 days of
being invoiced with reasonable supporting documentation) for all reasonable
expenses incurred by you in connection with your travel to and attendance at the
meetings with Xxxxxxx Xxxxx scheduled for October 1 and 29, 2004 and with UBS
scheduled for October 9, 2004 and any other reasonable expenses you incur after
September 30, 2004 while performing services at the request of the Company.
6. Mutual Release of Claims. In consideration of the
obligations of the Company herein, you, on behalf of yourself and your heirs,
successors, administrators and assigns (the "Releasing Parties") hereby
irrevocably, fully, and unconditionally release and
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forever discharge the Company and any and all of its current and former
shareholders, partners, officers, directors, trustees, employees, agents,
contractors, successors and assigns (collectively "Released Parties"), from
all actions, claims, obligations, liabilities, demands and causes of action,
known or unknown, fixed or contingent, in law or equity, which you ever had,
now have or hereafter can, shall or may have for, upon or by reason of any
matter, cause or thing occurring up to and including the date you sign this
Agreement, including, but not limited to, those arising under:
o Any equity award Agreements between BKF and you,
except as set forth herein;
o Title VII of the Civil Rights Act of 1964, 42 U.S.C.
ss. 2000e et seq., the Employee Retirement Income
Security Act of 1974, 29 U.S.C. ss. 1001 et seq., the
Americans with Disabilities Act, 42 U.S.C. ss. 12101
et seq., the Family and Medical Leave Act of 1993, 29
U.S.C. ss. 2601 et seq., Age Discrimination in
Employment Act, 29 U.S.C. ss. 621 et seq., New York
State Human Rights Law, N.Y. Exec. Law ss. 296 et
seq., New York State Labor Law, and the New York City
Human Rights Law, N.Y.C. Admin. Code ss. 8-107 et
seq., all as amended;
o any and all federal, state and local laws, rules,
regulations or common law relating to discrimination,
including national origin, wages, hours, overtime
pay, or employment; and
o any and all other federal, state and local laws,
rules, regulations, contract law or principal of
common law, including but not limited to breach of an
express or implied contract, breach of a covenant of
good faith and fair dealing, defamation,
misrepresentation, or fraud.
Nothing in this section, however, releases any of the
Company's obligations (i) as set forth in this Agreement or precludes an action
by you to enforce the terms of this Agreement; (ii) to indemnify you in
accordance with the organizational documents, policies or other indemnification
undertakings generally applicable to executive officers of the Company, as in
effect from time to time; and (iii) pay or provide benefits vested as of the
Resignation Date under the Company's qualified retirement and other benefit
plans.
In consideration for this release and other good and valuable
consideration, the Company hereby irrevocably, fully and unconditionally
releases and forever discharges you from all actions, claims, obligations,
liabilities, demands and causes of action, known or unknown, fixed or
contingent, in law or equity, which it ever had, now has or hereafter can, shall
or may have for, upon or by reason of any matter, cause of thing occurring up to
and including the date of this Agreement.
7. Company Property. By your signature below, you agree
that on the Resignation Date you will return all Company Property to the
Company. Company Property includes, but is not limited to, (a) Building photo
identification card and security access card; and (b) any other Company
documents and property not set forth above.
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8. Confidentiality. You agree that the terms and
conditions of this Agreement are confidential and that you shall not disclose
the existence of this Agreement or any of its terms to any third parties
(including but not limited to other current or former Company employees), other
than to your spouse, attorney, financial advisor/accountant, or as required by
law or as may be necessary to enforce this Agreement. The Company acknowledges
that the terms and conditions of this Agreement are confidential and agrees that
the existence of this Agreement and its terms only shall be disclosed internally
on a need-to-know basis only, and, to third parties as required by law, as
necessary to enforce this Agreement, or as required for an external
investigation or audit.
9. Full Understanding and Access to Counsel. You
acknowledge, represent and agree that you understand the terms of this
Agreement and the Release and that they are written in a manner calculated to
be understood by you. You further acknowledge and agree that you had an
opportunity to discuss the terms of this Agreement with your attorney.
10. Knowing and Voluntary. You agree that you are
entering into this Agreement knowingly and voluntarily, and no promises or
inducements for this Agreement have been made other than those set forth in
this Agreement. You further agree that you are entering into this Agreement of
your own free will, without any duress, and being fully informed and after due
deliberation you accept its terms.
11. Entire Agreement. This Agreement contains the entire
agreement and understanding of the parties with respect to the termination of
your employment. This Agreement cannot be modified, amended, waived or
terminated, in whole or in part, except in writing signed by both parties.
12. Choice of Law. This Agreement shall be construed
and enforced in accordance with the laws of the State of New York.
13. Acceptance of Agreement. By signing this Agreement,
you are providing a complete waiver of all claims that may have arisen,
whether known or unknown, up until this Agreement is executed.
Please acknowledge your acceptance and agreement to the
foregoing by signing it before a notary where indicated below and returning it
to the Company.
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PLEASE READ CAREFULLY BEFORE SIGNING. THIS DOCUMENT INCLUDES
A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
Sincerely,
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Chief Financial Office and
Senior Vice-President
Sworn to before me this 30th
day of September, 2004
/s/ Xxxxx Xxxxxxxx
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Notary Public
/s/ Xxxxxxx X. Xxxxxx Dated: September 30, 2004
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Xxxxxxx X. Xxxxxx
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