EXHIBIT 10.1
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CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT is entered into as of the JUNE 1, 2005 by and
between Xxxxx Management Co., Inc. and BKF CAPITAL GROUP, INC., both Delaware
corporations (referred to collectively herein as the "Company"), and XXXXX XXXXX
("Employee").
W I T N E S S E T H
WHEREAS, the Company considers the establishment and maintenance of a
sound and vital employee infrastructure to be essential to protecting and
enhancing the best interests of the Company and its stockholders; and
WHEREAS, the Company recognizes that, as is the case with many publicly
held corporations, the possibility of a change in control may arise and that
such possibility may result in the departure or distraction of infrastructure
personnel to the detriment of the Company and its stockholders; and
WHEREAS, the Board (as defined in Section 1) has determined that it is
in the best interests of the Company and its stockholders to secure Employee's
continued services and to ensure Employee's continued and undivided dedication
to his or her duties in the event of any threat or occurrence of a Change in
Control (as defined in Section 1) of the Company; and
WHEREAS, the Board has authorized the Company to enter into this
Agreement.
NOW, THEREFORE, for and in consideration of the promises and the mutual
covenants and agreements herein contained, the Company and Employee hereby agree
as follows:
1. DEFINITIONS. As used in this Agreement, the following terms
shall have the respective meanings set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Bonus Amount" means the average of the annual
year-end benefit (which shall include any amounts set forth on Exhibit A hereto,
as it may be amended from time to time) earned by Employee from the Company (or
its affiliates) over the three (3) completed fiscal years of the Company
immediately preceding Employee's Date of Termination (annualized in the event
Employee was not employed by the Company (or its affiliates) for the whole of
any such fiscal year).
(c) "Cause" means (i) the willful and continued failure
of Employee to substantially perform his duties with the Company (other than any
such failure resulting from Employee's incapacity due to physical or mental
illness or any such failure subsequent to Employee being delivered a Notice of
Termination without Cause
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by the Company or delivering a Notice of Termination for Good Reason to the
Company) after a written demand for substantial performance is delivered to
Employee by the Board which specifically identifies the manner in which the
Board believes that Employee has not substantially performed Employee's duties
and Employee has not cured to the satisfaction of the Board any such failure
that is capable of being cured in all respects within ten (10) days of receiving
such written demand; (ii) the willful engaging by Employee in misconduct which
is demonstrably and materially injurious to the Company or its affiliates; or
(iii) Employee's conviction of, or plea of guilty or no contest to, any felony
related to the Company. For purpose of the preceding sentence, no act or failure
to act by Employee shall be considered "willful" unless done or omitted to be
done by Employee in bad faith and without reasonable belief that Employee's
action or omission was in the best interests of the Company. Any act, or failure
to act, based upon authority given pursuant to a resolution duly adopted by the
Board, based upon the advice of counsel for the Company (or upon the
instructions of an officer of the Company) shall be conclusively presumed to be
done, or omitted to be done, by Employee in good faith and in the best interests
of the Company. Cause shall not exist unless and until the Company has delivered
to Employee a copy of a resolution duly adopted by three-quarters (3/4) of the
entire Board (excluding Employee if Employee is a Board member) at a meeting of
the Board called and held for such purpose (after reasonable notice to Employee
and an opportunity for Employee, together with counsel, to be heard before the
Board), finding that in the good faith opinion of the Board an event set forth
in clauses (i), (ii) or (iii) has occurred and specifying the particulars
thereof in detail. The Company must notify Employee of any event constituting
Cause within ninety (90) days following the Company's knowledge of its existence
or such event shall not constitute Cause under this Agreement.
(d) "Change in Control" means the occurrence of any one
of the following events:
(i) individuals who, at the beginning of any
twenty-four (24) month period, constitute the Board (the "Incumbent
Directors") cease for any reason during such period to constitute at
least a majority of the Board, provided that any person becoming a
director subsequent to the date of this Agreement, whose election or
nomination for election was approved by a vote of at least two-thirds
of the Incumbent Directors then on the Board (either by a specific vote
or by approval of the proxy statement of the Company in which such
person is named as a nominee for director, without written objection to
such nomination) shall be an Incumbent Director; provided, HOWEVER,
that no individual initially elected or nominated as a director of the
Company as a result of an actual or threatened election contest with
respect to directors or as a result of any other actual or threatened
solicitation of proxies (or consents) by or on behalf of any person
other than the Board shall be deemed to be an Incumbent Director;
(ii) any "Person" (as such term is defined in
Section 3(a)(9) of the Securities Exchange Act of 1934 (the "Exchange
Act") and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange
Act) is or becomes a "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or
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indirectly, of securities of the Company representing 25% or more of
the combined voting power of the Company's then outstanding securities
eligible to vote for the election of the Board (the "Company Voting
Securities"); PROVIDED, HOWEVER, that the event described in this
paragraph (ii) shall not be deemed to be a Change in Control by virtue
of any acquisitions by Xxxx Xxxxx or any affiliate of him;
(iii) the consummation of a merger, consolidation,
statutory share exchange or similar form of corporate transaction
involving the Company or any of its Subsidiaries that requires the
approval of the Company's stockholders, whether for such transaction or
the issuance of securities in the transaction (a "Business
Combination"), unless immediately following such Business Combination:
(A) more than 50% of the total voting power of (x) the corporation
resulting from such Business Combination (the "Surviving Corporation"),
or (y) if applicable, the ultimate parent corporation that directly or
indirectly has beneficial ownership of 100% of the voting securities
eligible to elect directors of the Surviving Corporation (the "Parent
Corporation"), is represented by Company Voting Securities that were
outstanding immediately prior to such Business Combination (or, if
applicable, is represented by shares into which such Company Voting
Securities were converted pursuant to such Business Combination), and
such voting power among the holders thereof is in substantially the
same proportion as the voting power of such Company Voting Securities
among the holders thereof immediately prior to the Business
Combination, (B) no person (other than any employee benefit plan (or
related trust) sponsored or maintained by the Surviving Corporation or
the Parent Corporation or Xxxx Xxxxx or any affiliate of him), is or
becomes the beneficial owner, directly or indirectly, of 25% or more of
the total voting power of the outstanding voting securities eligible to
elect directors of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation) and (C) at least a majority of
the members of the board of directors of the Parent Corporation (or, if
there is no Parent Corporation, the Surviving Corporation) following
the consummation of the Business Combination were Incumbent Directors
at the time of the Board's approval of the execution of the initial
agreement providing for such Business Combination (any Business
Combination which satisfies all of the criteria specified in (A), (B)
and (C) above shall be deemed to be a "Non-Qualifying Transaction)"; or
(iv) the stockholders of the Company approve a
plan of complete liquidation or dissolution of the Company or a sale of
all or substantially all of the Company's assets.
Notwithstanding the foregoing, a Change in Control of the Company shall
not be deemed to occur solely because any person acquires beneficial ownership
of more than 25% of the Company Voting Securities as a result of the acquisition
of Company Voting Securities by the Company which reduces the number of Company
Voting Securities outstanding; PROVIDED, THAT if after such acquisition by the
Company such person becomes the beneficial owner of additional Company Voting
Securities that
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increases the percentage of outstanding Company Voting Securities beneficially
owned by such person, a Change in Control of the Company shall then occur.
(e) "Date of Termination" means (i) the effective date on
which Employee's employment by the Company terminates as specified in a prior
written notice by the Company or Employee, as the case may be, to the other,
delivered pursuant to Section 10 or (ii) if Employee's employment by the Company
terminates by reason of death, the date of death of Employee.
(f) "Disability" means termination of Employee's
employment by the Company due to Employee's absence from Employee's duties with
the Company on a full-time basis for at least one hundred eighty (180)
consecutive days as a result of Employee's incapacity due to physical or mental
illness; PROVIDED, THAT, the Company may not terminate the Employee's employment
as a result of Disability unless it has first given the Employee notice of such
termination and, within thirty (30) days after such notice is given, the
Employee has not returned to the full-time performance of the Employee's duties.
(g) "Good Reason" means, without Employee's express
written consent, the occurrence of any of the following events after a Change in
Control:
(i) (A) any change in the duties or
responsibilities (including reporting responsibilities) of Employee
that is inconsistent in any material and adverse respect with
Employee's position(s), duties, responsibilities or status with the
Company immediately prior to such Change in Control (including any
material and adverse diminution of such duties or responsibilities) or
(B) a material and adverse change in Employee's titles or offices with
the Company as in effect immediately prior to such Change in Control;
(ii) a reduction by the Company in Employee's
rate of annual base salary as in effect immediately prior to such
Change in Control or as the same may be increased from time to time
thereafter;
(iii) payment of total annual compensation which
is less than Average Total Compensation where Average Total
Compensation is equal to: A) Employee's annual base salary as in effect
immediately prior to the Change of Control, plus B) Employee's Bonus
Amount to be calculated for purposes of this paragraph 1(g)(iii) only,
over the three (3) completed fiscal years of the Company immediately
preceding the Change in Control (annualized in the event Employee was
not employed by the Company (or its affiliates) for the whole of any
such fiscal year; PROVIDED, HOWEVER, that for purposes of calculating
total annual compensation, non-cash remuneration shall not be included
in the calculation of total annual compensation to the extent that the
percentage of non-cash remuneration (including but not limited to
stocks, options, and other equity grants) as a portion of the year-end
benefit exceeds the percentage of non-cash remuneration as a portion of
the year-end benefit that the Company granted Employee as averaged over
the three (3) fiscal years immediately preceding the
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Change of Control, or, if the terms of the non-cash remuneration paid
to the Employee as a portion of total annual compensation substantially
differ from the terms governing non-cash compensation that existed
immediately prior to the Change of Control;
(iv) any requirement of the Company that Employee
be based anywhere other than the office where Employee is located at
the time of the Change in Control, if such relocation increases
Employee's commute by more than thirty-five (35) miles;
(v) the failure by the Company or any of its
affiliates to pay any compensation to Employee within seven (7) days of
its becoming due; or
(vi) the failure of the Company to obtain the
assumption (and, if applicable, guarantee) of this Agreement from any
successor (and Parent Corporation) as contemplated in Section 9(b);
PROVIDED, that, in the case of any event described in clauses (i) through (v)
which is an isolated, insubstantial and inadvertent event, the Company has not
cured such change, reduction, requirement or failure within ten (10) days after
receiving written notice thereof from Employee.
Notwithstanding anything herein to the contrary, any resignation of
employment by Employee for any reason during the 30-day period commencing six
(6) months after the date of the occurrence of any event described in Section
1(d)(iii) shall be considered to be a resignation for Good Reason for purposes
of this Agreement. For purposes of any determination regarding the existence of
Good Reason, any claim by Employee that Good Reason exists shall be presumed to
be correct unless the Company establishes to the Board by clear and convincing
evidence that Good Reason does not exist.
(h) "Qualifying Termination" means a termination of
Employee's employment (i) by the Company other than for Cause or (ii) by
Employee for Good Reason. Termination of Employee's employment on account of
death or Disability shall not be treated as a Qualifying Termination.
(i) "Subsidiary" means any corporation or other entity in
which the Company has a direct or indirect ownership interest of 50% or more of
the total combined voting power of the then outstanding securities or interests
of such corporation or other entity entitled to vote generally in the election
of directors or in which the Company has the right to receive 50% or more of the
distribution of profits or 50% of the assets upon liquidation or dissolution.
(j) "Termination Period" means the period of time
beginning with a Change in Control and ending two (2) years following such
Change in Control. Notwithstanding anything in this Agreement to the contrary,
if (i) Employee's
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employment is terminated prior to a Change in Control for reasons that would
have constituted a Qualifying Termination if they had occurred following a
Change in Control; (ii) Employee reasonably demonstrates that such termination
(or Good Reason event) was at the request of a third party who had indicated an
intention or taken steps reasonably calculated to effect a Change in Control;
and (iii) a Change in Control involving such third party (or a party competing
with such third party to effectuate a Change in Control) does occur, then for
purposes of this Agreement, the date immediately prior to the date of such
termination of employment or event constituting Good Reason shall be treated as
a Change in Control. For purposes of determining the timing of payments and
benefits to Employee under Section 3, the date of the actual Change in Control
shall be treated as Employee's Date of Termination under Section l (e).
2. TERM OF AGREEMENT. This Agreement shall be effective on the
date hereof and shall continue in effect until the Company shall have given
three (3) years' written notice of cancellation; PROVIDED, that, notwithstanding
the delivery of any such notice, this Agreement shall continue in effect for a
period of two (2) years after a Change in Control, if such Change in Control
shall have occurred during the term of this Agreement. Notwithstanding anything
in this Section 2 to the contrary, this Agreement shall terminate if Employee or
the Company terminates Employee's employment prior to a Change in Control except
as provided in Section l(j).
3. PAYMENTS UPON TERMINATION OF EMPLOYMENT.
(a) QUALIFYING TERMINATION - SEVERANCE. If during the
Termination Period the employment of Employee shall terminate pursuant to a
Qualifying Termination, then the Company shall provide to Employee:
(i) within ten (10) days following the Date of
Termination a lump-sum cash amount equal to the sum of (A) Employee's
base salary through the Date of Termination and any bonus amounts which
have become payable, to the extent not theretofore paid; (B) a pro rata
portion of Employee's annual bonus for the fiscal year in which
Employee's Date of Termination occurs in an amount at least equal to
(1) Employee's Bonus Amount, multiplied by (2) a fraction, the
numerator of which is the number of days in the fiscal year in which
the Date of Termination occurs through the Date of Termination and the
denominator of which is three hundred sixty-five (365), and reduced by
(3) any amounts paid from the Company's annual incentive plan for the
fiscal year in which Employee's Date of Termination occurs; and (C) any
accrued vacation pay, in each case to the extent not theretofore paid;
plus
(ii) within ten (10) days following the Date of
Termination, a lump-sum cash amount equal to (i) two (2) years of the
Employee's annual rate of base salary as of the Employee's Date of
Termination, plus (ii) Employee's Bonus Amount multiplied by a factor
of two (2).
(b) QUALIFYING TERMINATION - BENEFITS. If during the
Termination Period the employment of Employee shall terminate pursuant to a
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Qualifying Termination the Company shall continue to provide, for a period of
eighteen months following Employee's Date of Termination, Employee (and
Employee's dependents, if applicable) with the same level of medical, accident,
disability and life insurance benefits upon substantially the same terms and
conditions (including contributions required by Employee for such benefits) as
existed immediately prior to Employee's Date of Termination (or, if more
favorable to Employee, as such benefits and terms and conditions existed
immediately prior to the Change in Control); PROVIDED, that if Employee cannot
continue to participate in the Company plans providing such benefits, the
Company shall otherwise provide such benefits on the same after-tax basis as if
continued participation had been permitted. Notwithstanding the foregoing, in
the event Employee becomes reemployed with another employer and becomes eligible
to receive welfare benefits from such employer, the welfare benefits described
herein shall be secondary to such benefits during the period of Employee's
eligibility, but only to the extent that the Company reimburses Employee for any
increased cost and provides any additional benefits necessary to give Employee
the benefits provided hereunder.
(c) NONQUALIFYING TERMINATION. If during the Termination
Period the employment of Employee shall terminate other than by reason of a
Qualifying Termination, then the Company shall pay to Employee within thirty
(30) days following the Date of Termination, a lump-sum cash amount equal to the
sum of (1) Employee's base salary through the Date of Termination and any bonus
amounts which have become payable, to the extent not theretofore paid, and (2)
any accrued vacation pay, in each case to the extent not theretofore paid. The
Company may make such additional payments, and provide such additional benefits,
to Employee as the Company and Employee may agree in writing.
4. WITHHOLDING TAXES. The Company may withhold from all payments
due to Employee (or his beneficiary or estate) hereunder all taxes which, by
applicable federal, state, local or other law, the Company is required to
withhold therefrom and any additional amounts which the Employee has agreed to
have withheld.
5. REIMBURSEMENT OF EXPENSES. If any contest or dispute shall
arise under this Agreement involving termination of Employee's employment with
the Company or involving the failure or refusal of the Company to perform fully
in accordance with the terms hereof, the Company shall reimburse Employee, on a
current basis, for all reasonable legal fees and expenses, if any, incurred by
Employee in connection with such contest or dispute (regardless of the result
thereof), together with interest in an amount equal to the average monthly
interest rate payable on the three (3) month United States Treasury Xxxx during
the Accrual Period (as defined in this paragraph 5 herein), but in no event
higher than the maximum legal rate permissible under applicable law, such
interest to accrue from the date the Company receives Employee's statement for
such fees and expenses through the date of payment thereof (the "Accrual
Period"), regardless of whether or not Employee's claim is upheld by a court of
competent jurisdiction; PROVIDED, that Employee shall be required to repay any
such amounts to the Company to the extent that a court issues a final order from
which no appeal can be taken, or with respect to which the time period to appeal
has expired,
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setting forth the determination that the position taken by Employee was
frivolous or advanced by Employee in bad faith.
6. SCOPE OF AGREEMENT. Nothing in this Agreement shall be deemed
to entitle Employee to continued employment with the Company or its
Subsidiaries, and if Employee's employment with the Company shall terminate
prior to a Change in Control, Employee shall have no further rights under this
Agreement (except as otherwise provided hereunder); PROVIDED, that any
termination of Employee's employment during the Termination Period shall be
subject to all of the provisions of this Agreement.
7. NO MITIGATION. In no event shall Employee be obligated to seek
other employment or take other action by way of mitigation of the amounts
payable to Employee under any of the provisions of this Agreement and, except as
provided in Section 3(b), such amounts shall not be reduced whether or not
Employee obtains other employment.
8. INDEMNIFICATION. The Company shall indemnify and hold Employee
harmless for acts and omissions in his capacity as an officer, director or
employee of the Company to the maximum extent permitted under applicable law.
The Company shall maintain a Director's and Officer's Liability Insurance
Policy, which shall provide liability coverage for Employee's benefit, and the
Employee shall remain covered under such policy for a period of at least six (6)
years following the earlier of termination of employment or the occurrence of a
Change in Control.
9. SUCCESSORS; BINDING AGREEMENT.
(a) This Agreement shall not be terminated by any
Business Combination. In the event of any Business Combination, the provisions
of this Agreement shall be binding upon the Surviving Corporation, and such
Surviving Corporation shall be treated as the Company hereunder.
(b) The Company agrees that in connection with any
Business Combination, it will cause any successor entity to the Company
unconditionally to assume (and for any Parent Corporation in such Business
Combination to guarantee), by written instrument delivered to Employee (or his
beneficiary or estate), all of the obligations of the Company hereunder. Failure
of the Company to obtain such assumption and guarantee prior to the
effectiveness of any such Business Combination that constitutes a Change in
Control, shall be a breach of this Agreement and shall constitute Good Reason
hereunder and shall entitle Employee to compensation and other benefits from the
Company in the same amount and on the same terms as Employee would be entitled
hereunder if Employee's employment were terminated following a Change in Control
by reason of a Qualifying Termination. For purposes of implementing the
foregoing, the date on which any such Business Combination becomes effective
shall be deemed the date Good Reason occurs, and shall be the Date of
Termination if requested by Employee.
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(c) This Agreement shall inure to the benefit of and be
enforceable by Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Employee shall die while any amounts would be payable to Employee hereunder had
Employee continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to such person or
persons appointed in writing by Employee to receive such amounts or, if no
person is so appointed, to Employee's estate.
10. NOTICE.
(a) For purposes of this Agreement, all notices and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered or five (5) days after deposit in
the United States mail, certified and return receipt requested, postage prepaid,
addressed as follows:
If to the Employee:
Xxxxx Xxxxx
00 Xxxxxx Xxxx
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
If to the Company:
Xxxxx Management Co., Inc.
0 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
(b) A written notice of Employee's Date of Termination by
the Company or Employee, as the case may be, to the other, shall (i) indicate
the specific termination provision in this Agreement relied upon, (ii) to the
extent applicable, set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Employee's employment under the
provision so indicated and (iii) specify the termination date (which date shall
be not less than fifteen (15) (thirty (30), if termination is by the Company for
Disability) nor more than sixty (60) days after the giving of such notice). The
failure by Employee or the Company to set forth in such notice any fact or
circumstance which contributes to a showing of Good Reason or Cause shall not
waive any right of Employee or the Company hereunder or preclude Employee or the
Company from asserting such fact or circumstance in enforcing Employee's or the
Company's rights hereunder.
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11. FULL SETTLEMENT. The Company's obligation to make any payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall be in lieu and in full settlement of all other severance
payments to Employee under any other severance or employment agreement between
Employee and the Company, and any severance plan of the Company. The Company's
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have
against Employee or others.
12. RESOLUTION OF DISPUTES. All claims by the Employee for
benefits under this Agreement shall be directed to and determined by the Board
and shall be in writing. Any denial by the Board of a claim for benefits under
this Agreement shall be delivered to the Employee in writing and shall set forth
the specific reasons for the denial and the specific provisions of this
Agreement relied upon. The Board shall afford a reasonable opportunity to the
Employee for a review of the decision denying a claim and shall further allow
the Employee to appeal to the Board a decision by the Board within sixty (60)
days after notification by the Board that the Employee's claim has been denied.
13. EMPLOYMENT WITH SUBSIDIARIES. Employment with the Company for
purposes of this Agreement shall include employment with any Subsidiary.
14. SURVIVAL. The respective obligations and benefits afforded to
the Company and Employee as provided in Sections 3 (to the extent that payments
or benefits are owed as a result of a termination of employment that occurs
during the term of this Agreement), 4 (to the extent that Payments are made to
Employee as a result of a Change in Control that occurs during the term of this
Agreement), 5, 8, 9(c), 11 and 12 shall survive the termination of this
Agreement.
15. GOVERNING LAW; VALIDITY. THE INTERPRETATION, CONSTRUCTION AND
PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF, OF SUCH PRINCIPLES OF ANY OTHER
JURISDICTION WHICH COULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF DELAWARE. THE INVALIDITY OR UNENFORCEABILITY OF ANY
PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF
ANY OTHER PROVISION OF THIS AGREEMENT, WHICH OTHER PROVISIONS SHALL REMAIN IN
FULL FORCE AND EFFECT.
16. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
17. MISCELLANEOUS. No provision of this Agreement may be modified
or waived unless such modification or waiver is agreed to in writing and signed
by Employee and by a duly authorized officer of the Company. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any
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condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. Failure by Employee or the Company
to insist upon strict compliance with any provision of this Agreement or to
assert any right Employee or the Company may have hereunder, including, without
limitation, the right of Employee to terminate employment for Good Reason, shall
not be deemed to be a waiver of such provision or right or any other provision
or right of this Agreement. Except as otherwise specifically provided herein,
the rights of, and benefits payable to, Employee, his estate or his
beneficiaries pursuant to this Agreement are in addition to any rights of, or
benefits payable to, Employee, his estate or his beneficiaries under any other
employee benefit plan or compensation program of the Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by a duly authorized officer of the Company and Employee has executed
this Agreement as of the day and year first above written.
XXXXX MANAGEMENT CO., INC.
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President, General
Counsel and Secretary
BKF CAPITAL GROUP, INC.
By: /s/ Xxxxx X. Xxxxx, Xx.
--------------------------------
Xxxxx X. Xxxxx, Xx.
Member of Board of Directors
/s/ Xxxxx X. Xxxxx
--------------------------------
Xxxxx X. Xxxxx
