Exhibit 10.49
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of March 1, 2004, by and
between Ladenburg Xxxxxxxx & Co. Inc., a Delaware corporation (the "Company"),
and Xxxxxxxxx Xxxxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive and the
Executive desires to accept such employment on the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the mutual premises and
agreements herein contained, and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties, intending to
be legally bound, hereby agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Agreement:
1.1 "Board" means the Board of Directors of the
Company, as it may be constituted from time to time.
1.2 "Cause" means (1) any willful failure or refusal
by the Executive to attempt to perform his material duties
which continues after written notice of such willful failure
or refusal from the Board and a reasonable opportunity to
cure; (2) the alcoholism or drug addiction of Executive; (3)
conviction of a felony (other than a traffic violation); or
(4) any action taken by a regulatory body or a self regulatory
organization that substantially impairs the Executive from
performing his duties.
1.3 "Good Reason" means (1) relocation of the
Executive's principal place of business outside the New York,
New York Area; (2) a material breach of this Agreement by the
Company; provided that the Company has not remedied
such breach or other violation of a Good Reason event within
thirty (30) days of receipt of written notice of such breach
or other violation.
2. TERM OF EMPLOYMENT. Subject to Section 6 hereof, the term of the
Executive's employment under this Agreement shall be from March __, 2004 through
April 1, 2005 (the "Term").
3. DUTIES OF EMPLOYMENT. The Executive hereby agrees for the Term to
serve as the Company's Executive Vice President and Chief Financial Officer and
to supervise and manage on a day-to-day basis the overall accounting functions
and financial reporting of the Company or to perform such other executive
responsibilities as may be assigned to him from time to time by the Board or the
Company's Chief Executive Officer. The Executive shall perform such duties
faithfully and diligently at all times and shall devote substantially all of his
business time and efforts to the performance of his services hereunder, provided
that the Executive may be involved in charitable activities and, with the
consent of the Company, serve on boards of directors of other companies,
provided such activities do not materially interfere with performance of
Executive's obligations hereunder.
4. COMPENSATION AND OTHER BENEFITS.
4.1 SALARY. As his base compensation for all services
to be rendered by the Executive hereunder, the Company shall
pay to the Executive a base salary at a monthly rate of
$17,833.33 in accordance with the Company's usual payroll
practices for senior executives, and which shall be subject to
annual increases each July 1. The monthly base salary set
forth in this Section 4.1 shall hereinafter be referred to as
the "Base Salary." The Company shall withhold or cause to be
withheld from the Base Salary (and other amounts hereunder)
all taxes and other amounts as are required by law to be
withheld.
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4.2 ADDITIONAL COMPENSATION. In addition to the Base
Salary, the Executive will be eligible to receive additional
compensation in the form of annual or other bonuses determined
in the discretion of the Company.
4.3 PARTICIPATION IN EMPLOYEE BENEFIT PLANS. The
Executive shall be permitted to participate in all group life,
hospitalization and disability insurance plans, health
programs, pension plans, similar benefit plans, sick days,
personal days, payroll practices and so-called "fringe benefit
programs" of the Company (including the Ladenburg Xxxxxxxx &
Co. Inc. Severance Pay Program) as are now existing or
adopted, as such may hereafter be revised, replaced or
terminated, and offered to senior executives generally to the
extent the Executive is eligible under the eligibility
provisions of any such plan. Further, for as long as such
benefits are offered to the Company's management employees,
the Company agrees to pay for, or at its option reimburse the
Executive for, the cost of the Executive's group health care
premium (family coverage), until termination of employment
under this Agreement. The Executive shall be entitled to
receive not less than four (4) weeks of paid vacation each
contract year taken at such times as mutually agreed by the
Company and the Executive; any unused vacation time shall
accumulate to his benefit in later years.
4.4 The Company shall indemnify and hold Executive
harmless against any claims, suits, damages, losses or
liabilities incurred by Executive or arising out of the acts
by Executive made in the scope of his employment hereunder.
The Company shall pay all costs and expenses including
attorneys' fees incurred in the investigation, defense, appeal
and any settlement of any such matter. Nothing contained
herein shall entitle the Executive to indemnification by the
Company in excess of that permitted under applicable law. This
provision shall survive the termination of this Agreement.
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5. CONFIDENTIALITY, ETC.
5.1 The Executive covenants and agrees that he shall
treat as confidential all information and financial matters of
the Company and its subsidiaries and affiliates, other than
information which becomes generally available to the public
otherwise than through disclosure by the Executive
(collectively "Confidential Information"), including, without
limitation, trade secrets, client lists, pricing policies,
operational methods, research projects and technical
processes, and that he shall not disclose, communicate or
divulge any Confidential Information to any person or entity
other than the Company or its affiliates and that he shall not
use any Confidential Information for the benefit of any person
or entity other than the Company or its affiliates unless
expressly authorized in writing by the Board; PROVIDED,
HOWEVER, that the foregoing shall not preclude the Executive
from divulging information in what he reasonably and in good
faith believes is in the ordinary cause of the Company's
business or is required to be disclosed pursuant to regulatory
requirement to regulatory agencies.
5.2 The Executive agrees that during the period he is
employed hereunder and for a period of one (1) year
thereafter, he will not, without the prior written consent of
the Company, directly or indirectly (including without
limitation by assisting any other person or entity to do so or
identifying for any other person or entity), (a) solicit,
entice, persuade, or induce any employee, director, officer,
associate, or substantially full-time consultant, agent or
independent contractor of the Company or its affiliates (i) to
terminate such person's employment or engagement by the
Company or an affiliate or (ii) to become employed by any
person, firm, partnership, corporation, or other entity other
than the Company or its affiliates nor (b) solicit or transact
any business with any prior (within six (6)
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months of termination) or then current customer and/or client
of the Company or its affiliates.
5.3 If the Executive commits a material breach of any
of the provisions of Sections 5.1 or 5.2 above, the Company
shall have the right to have the provisions of this Agreement
specifically enforced by any court having equity jurisdiction
without being required to post bond or other security and
without having to prove the inadequacy of the available
remedies at law (the foregoing being expressly waived by the
Executive hereby), it being acknowledged and agreed by the
Executive hereby that any such breach or threatened breach
will cause irreparable injury to the Company and that money
damages will not provide an adequate remedy to the Company. In
addition, the Company may take all such other actions and
remedies available to it under the law and in equity and shall
be entitled to such damages as it can show it has sustained by
reason of such breach.
6. TERMINATION.
6.1 Subject to the provisions of this Agreement, the
Company or the Executive may terminate the Executive's
employment hereunder on thirty (30) days prior written notice
to the other party, which notice shall specify in detail the
basis for termination.
6.2 If the Company terminates the Executive's
employment hereunder for Cause, the Company shall pay the
Executive any unpaid Base Salary earned through the date of
termination, as well as any payments due to Executive under
Section 4.3.
6.3 If the Company terminates the Executive's
employment hereunder without Cause or the Executive terminates
his employment hereunder for Good Reason, the Company shall
pay Executive (1) any unpaid Base Salary earned
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through the date of termination, (2) the Additional
Compensation, if any, for periods preceding the date of
termination to the extent not already paid, (3) as liquidated
damages an amount equal to the greater of (A) his then-current
annual salary multiplied by the number of years and partial
years remaining to the end of the original term or (B) amounts
due the Executive under the Ladenburg Xxxxxxxx Xxxxxxxxx Pay
Program, as well as (4) any payments due to Executive under
Section 4.3. The Company's obligations pursuant to this
Section 6.3 are not subject to the Executive's duty to
mitigate damages by seeking other employment nor shall the
aforesaid payments be reduced by amounts otherwise earned by
the Executive.
6.4 The Company shall pay to the Executive, his
spouse, designated beneficiary or estate, as the case may be,
any amounts owing pursuant to this Section 6 in a single lump
sum within thirty (30) days following termination of the
Executive's employment.
6.5 On termination of employment, the Executive shall
promptly return to the Company all documents, materials,
papers, data, statements and any other written material
(including but not limited to all copies thereof) belonging to
the Company and other property of the Company.
7. EXPENSES. The Company shall reimburse the Executive for his
reasonable out-of-pocket expenses incurred pursuant to this Agreement and in
connection with the performance of his duties under this Agreement, in
accordance with the general policy of the Company, upon submission of
satisfactory documentation evidencing such expenditures.
8. NON-ASSIGNMENT. This Agreement and all of the Executive's rights and
obligations hereunder are personal to the Executive and shall not be assignable;
PROVIDED, HOWEVER, that upon his death all of the Executive's rights to cash
payments under this Agreement shall inure to the benefit of his widow, personal
representatives, designees or other
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legal representatives, as the case may be.
Any person, firm or corporation succeeding to the business of the Company by
merger, purchase, consolidation or otherwise may assume by contract or operation
of law the obligations of the Company hereunder; PROVIDED, HOWEVER, that the
Company shall, notwithstanding such assumption, remain liable and responsible
for the fulfillment of its obligations under this Agreement. This Agreement
shall be binding upon the parties, their successors, heirs, administrators and
permitted assigns.
9. OTHER PROVISIONS.
9.1 NOTICES. Any notice or other communication
required or permitted hereunder shall be in writing and shall
be delivered personally, telegraphed, telexed, sent by
facsimile transmission or sent by certified, registered or
express mail, postage prepaid. Any such notice shall be deemed
given when so delivered personally or sent by facsimile
transmission or, if mailed, five days after the date of
deposit in the United States mail, as follows:
(i) if to the Company, to:
Ladenburg Xxxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
(ii) if to the Executive, to;
Xx. Xxxxxxxxx Xxxxxxxx
0 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Facsimile:
Any party may change its address for notice hereunder
by notice to the other party hereto.
9.2 ENTIRE AGREEMENT. This Agreement contains the
entire agreement between the parties with respect to the
subject matter hereof and
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supersedes all prior representations, warranties and
agreements, written or oral, with respect thereto.
9.3 WAIVERS AND AGREEMENTS. This Agreement may be
amended, modified, superseded, canceled, renewed or extended,
and the terms and conditions hereof may be waived, only by a
written instrument signed by the parties or, in the case of a
waiver, by the party waiving compliance. No delay on the part
of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any
waiver on the part of any party of any right, power or
privilege hereunder, nor any single or partial exercise of any
right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right,
power or privilege hereunder.
9.4 GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the substantive laws of
the State of New York, without regard to its principle of
conflicts of law.
9.5 COUNTERPARTS. This Agreement may be executed in
two counterparts, each of which shall be deemed an original
but both of which together shall constitute one and the same
instrument. The execution of this Agreement may be by actual
or facsimile signature.
9.6 HEADINGS. The headings in this Agreement are for
reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
10. ARBITRATION. The parties hereto agree that, except as provided in
Section 5.3, any controversy or claim arising out of this Agreement or the
Executive's employment hereunder (including without limitation any claims the
Executive may have under federal, state or local discrimination laws) shall be
determined by arbitration. Any arbitration under this Agreement shall be
conducted pursuant to the Federal Arbitration Act and the substantive laws
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of the State of New York before the New York Stock Exchange in accordance with
its constitution and rules. Such arbitration shall be held in New York City. The
decision of the arbitrator(s) shall be final and binding upon the parties. The
costs of arbitration, including the fees and expenses of the arbitrator, shall
be borne fifty percent by the Company, on the one hand, and fifty percent by the
Executive, on the other, but each shall pay its own attorneys' fees and other
professional costs and expenses. Any decision rendered by the arbitrator, except
as provided above, shall be final and binding and may be entered in any court
having jurisdiction.
11. SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written.
Ladenburg Xxxxxxxx & Co. Inc.
By: /s/ Xxxxxx X. Xxxxx
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/s/ Xxxxxxxxx Xxxxxxxx
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Xxxxxxxxx Xxxxxxxx
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