March 14, 2008
Exhibit
10.4
March 14,
2008
By
Hand
Mr. C.
Xxxxx Xxxx
000 Xxxx
Xxxxxx
Xxxxxxxx,
Xxx Xxxx 00000
Dear
Xxxxx:
This
letter agreement (the “Agreement”) will confirm the terms of
the separation of your employment from Broadpoint
Securities Group, Inc. (“Broadpoint”; Broadpoint, together with all its other
direct and indirect controlled affiliates, and its and their respective
successors, past or current directors, officers and employees, collectively, are
the “Company”).
1.
Separation. Effective
March 31, 2008, your employment with Broadpoint will cease, and you will
relinquish all titles, offices and authority related to that
employment.
2.
Severance
Pay. If you execute this Agreement, Broadpoint shall provide
you with the following payments and benefits:
a. as
soon as practicable following the execution of this Agreement by you, but in any
event on or before March 31, 2008, a lump sum cash payment in the amount of
Four-Hundred Ninety-Four Thousand Four-Hundred Dollars ($494,400.00), less
required tax withholdings;
b. any
unpaid salary accrued as of the date of the termination of your employment with
the Company, payable as soon as practicable following the execution of this
Agreement by you, but in any event on or before March 31, 2008;
c. prompt
reimbursement (but in any event on or before March 31, 2008, subject to your
timely submission of appropriate documentation), in accordance with applicable
Company policies for any business expenses incurred by you prior to the date of
the termination of your employment with the Company;
d. if
you elect continued health insurance coverage under COBRA (including medical,
dental and vision), the Company will pay the full cost of your current premiums
as long as you are eligible for and maintain COBRA coverage, up to a maximum of
eighteen months;
e. any
unvested restricted stock units awarded to you pursuant to the 2007 Incentive
Compensation Plan Restricted Stock Units Agreement between you and First Albany
Companies, Inc. dated September 21, 2007 (the “RSU Agreement”) shall continue to
vest in accordance with and subject to the terms of paragraph 4(b) of the RSU
Agreement and shall be settled in accordance with the RSU Agreement, provided however, that your
engaging in the conduct set forth in paragraphs 4(d)(iii)(A) or 4(d)(iii)(E) (in
respect of Sections 7.4(a) and 7.4(b) of the Company’s 2007 Incentive
Compensation Plan) of the RSU Agreement shall not be considered a “Forfeiture
Event” within the meaning of paragraph 4 of the RSU Agreement; and
f. any
vested or accrued benefits and entitlements under the plans, programs and
arrangements of the Company in which you participated prior to the date of the
termination of your employment, including, without limitation, the Company’s
401(k) plan and deferred compensation plan, in any case, in accordance with the
terms and conditions of, and at the time set forth in, such plans, programs and
arrangements.
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3.
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Release.
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(a) You
have agreed that certain of the payments and benefits provided in this Agreement
exceed any payment, benefit or other thing of value to which you would otherwise
be entitled under any policy, plan or practice of the Company, and accept
such payments and benefits in full satisfaction of all claims for
further compensation of any kind, including, without limitation, salary, bonus,
and severance payments.
(b) In
exchange for the consideration provided for in this Agreement, you acknowledge
by your signature below that you, for you yourself, your heirs, executors,
administrators and assigns (collectively, “Releasor”) forever waive, release and
discharge the Company and its parents, affiliates, heirs and assigns, and any
and all current and former directors, officers, employees, agents, contractors
and any and all employee pension or welfare benefit plans of the Company,
including current and former trustees and administrators of these plans (each
and all, including the Company, referred to as “Releasees”) from all claims,
charges, liabilities, expenses or demands, in law or in equity, whether known or
unknown, you ever had, now have or may have, against Releasees by reason of any
actual or alleged act, omission, transaction, practice, conduct or occurrence,
or other matter arising from the beginning of time to the date of this Agreement
and arising from or relating to your employment with, or termination from
employment with, the Company, including a release of any rights or claims you
may have under any federal, state, city or local laws prohibiting discrimination
on the basis of age, sex, race, disability, religion, national origin, sexual
orientation or any other proscribed basis, or any rights or claims you may have
under Title VII of the Civil Rights Act of 1964, as amended, and the Civil
Rights Act of 1991, which prohibit discrimination in employment based upon race,
sex, religion and national origin; the Americans with Disabilities Act of 1990,
which prohibits discrimination based upon disability; the Age Discrimination in
Employment Act, which prohibits discrimination on the basis of age; the Family
and Medical Leave Act of 1993, which prohibits discrimination based on
requesting or taking a family or medical leave; Section 1981 of the Civil Rights
Act of 1866, which prohibits discrimination based upon race; Section 1985(3) of
the Civil Rights Act of 1871 which prohibits conspiracies to discriminate; the
Employee Retirement Income Security Act of 1974, which prohibits discrimination
with regard to benefits; the New York State Human Rights Law, Executive Law §§
296 et seq.; the New York
City Human Rights Law, N.Y.C. Charter & Admin. Code §§ 8-101 et seq.; any federal,
state or local laws against discrimination; any claim for attorneys fees; or any
other federal, state, or local statute, or common law relating to employment,
wages, hours, bonus, compensation or benefits or any other terms and conditions
of employment, including without limitation any claims for breach of contract,
breach of an implied covenant of good faith and fair dealing, intentional and/or
negligent infliction of emotional distress, defamation, and wrongful
discharge. This includes a release by you of any claims in any way
related to your employment with the Company. Anything to the contrary
notwithstanding in this Agreement, nothing herein shall release Company or any
Releasee from any claims or damages based on (i) any right you may
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have to
enforce this Agreement (including, without limitation, those Sections of the
Employment Agreement which survive the execution and delivery of this Agreement
as provided in Xxxxxxx 00 xxxxx), (xx) any right or claim that arises after the
date of this Agreement, (iii) your eligibility for indemnification and
advancement of expenses in accordance with applicable laws, the certificate of
incorporation and by-laws of Company or this Agreement, or any applicable
insurance policy or (iv) any right you may have to obtain contribution as
permitted by law in the event of the entry of a judgment against you as a result
of any act or failure to act for which you, on the one hand, and Company and/or
any Releasee, on the other hand, are jointly liable.
(c) For
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Broadpoint, for itself and on behalf of the Releasees, forever
waives, releases and discharges you and the Releasors from all claims, charges,
liabilities, expenses or demands, in law or in equity, whether known or unknown,
that Broadpoint and/or any Releasee ever had, now have or may have, against you
and/or any Releasor by reason of any actual or alleged act, omission,
transaction, practice, conduct or occurrence, or other matter arising from the
beginning of time to the date of this Agreement and arising from or relating to
your employment with, or termination from employment with, the
Company. Anything to the contrary notwithstanding in this Agreement,
nothing herein shall release you or any Releasor from any claims or damages
based on (i) any right Broadpoint may have to enforce this Agreement, (ii) any
right or claim that arises after the date of this Agreement, (iii) any right
that Broadpoint and/or any Releasee may have to obtain contribution as permitted
by law in the event of the entry of a judgment against Broadpoint and/or any
Releasee as a result of any act or failure to act for which Broadpoint and/or
any Releasee, on the one hand, and you and/or any Releasor, on the other hand,
are jointly liable(iv) your willful misconduct or gross negligence or (v) your
violation of any securities law or act of theft or fraud.
4. Confidential
Information. You agree that during your employment you had
access to and possession of Confidential Information (as defined below) about
the Company and its clients or prospective clients. You agree that
you will not use any such information for your personal benefit or disclose it
to any third party. Anything herein to the contrary notwithstanding,
the provisions of this Section 4 shall not apply (i) when disclosure is required
by law or by any court, arbitrator, mediator or administrative or legislative
body (including any committee thereof) with apparent jurisdiction to order you
to disclose or make accessible any information, (ii) with respect to any
litigation, arbitration or mediation involving this Agreement, including, but
not limited to, the enforcement of this Agreement, or (iii) as to Confidential
Information that becomes generally known to the public or within the relevant
trade or industry other than due to your violation of this Section 4 or (iv) in
connection with any assistance provided by you pursuant to Section 7
below. “Confidential Information” includes, by way of illustration
and not limitation, (i) information with respect to any investments made or to
be made by the Company and any transactions in which they have been, are or will
be engaged, (ii) performance information, (iii) financial or other business
information with respect to the Company, (iv) lists of the Company’s clients,
prospects or vendors, (v) personal, financial and other business information or
investments of clients or prospects, (vi) any information disclosed to the
Company by any third party which, to your knowledge, the Company has agreed, or
is otherwise obligated, to treat as confidential or proprietary, (vii) all
databases, customer lists, vendor agreements, brokerage agreements, computer
programs or enhancements to computer programs worked on or created by an
employee of the Company or under license to the
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Company,
(viii) any work product, including research on particular companies or
industries, created by an employee of the Company, and (ix) all personal,
financial, or other information concerning the Company’s principals or
employees.
5. Company
Property. You further represent that you have returned or will
return to the Company all Company property and equipment of any kind in your
possession or control, including any credit cards, keys, building passes and
identity cards, as well as any information stored in a computer or on disk,
including any and all information or documents regarding the Company’s clients,
and all Confidential Information. Anything to the contrary
notwithstanding, you shall be entitled to retain (i) papers and other materials
of a personal nature, including, but not limited to, photographs,
correspondence, personal diaries, calendars and rolodexes, personal files and
phone books, (ii) information showing your compensation or relating to
reimbursement of expenses, (iii) information that you reasonably believe
may be needed for tax purposes and (iv) copies of plans, programs and agreements
relating to your employment, or termination thereof, with the
Company.
6. No Disparagement or
Harm. You agree not to make any comments or statements to the
press, or to any individual or entity with whom the Company has a business
relationship or any other person if such comment or statement could be
reasonably likely to adversely affect the business reputation of the Company or
that of any of its employees. Broadpoint agrees, and agrees to cause
members of the executive management of Broadpoint Securities Group, Inc. , not
to make any comments or statements to the press, to any individual or entity
with whom Broadpoint or any such person or entity has a business relationship or
to any other person or entity if such comment or statement could be reasonably
likely to adversely affect your reputation or that of any other
Releasor. Notwithstanding the foregoing, nothing in this paragraph
shall prevent any person from (x) responding publicly to incorrect, disparaging
or derogatory public statements to the extent reasonably necessary to correct or
refute such public statement or (y) making any truthful statement to the extent
(i) necessary with respect to any litigation, arbitration or mediation involving
this Agreement, including, but not limited to, the enforcement of this Agreement
or (ii) required by law or by any court, arbitrator, mediator or administrative
or legislative body (including any committee thereof) with apparent jurisdiction
over such person.
7. Cooperation. You
agree to make yourself available to the Company in any pending or future
governmental or regulatory investigation, civil or administrative proceeding, or
arbitration, subject to any privileges that you may have. To the
extent possible, Broadpoint, for itself and on behalf of the
Company, will try to limit your participation to regular business
hours. In any event, (i) in any matter subject to this Section 7, you
shall not be required to act against your own legal interest and (ii) any
request for such cooperation shall take into account your other personal and
business commitments. Broadpoint agrees to provide you reasonable
notice, to the extent practicable, in the event your cooperation is
required. Broadpoint will reimburse you for all reasonable costs and
expenses incurred by you in connection with such cooperation and any such
proceeding or arbitration. Such costs and expenses shall include,
without limitation, travel costs and legal fees to the extent you reasonably
believe that the subject matter of such cooperation may result in a claim
against you. Your entitlement to reimbursement of such costs and
expenses, including legal fees, pursuant to this Section 7, shall in no way
affect your rights to be indemnified and/or advanced expenses in accordance with
the Company’s
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corporate
or constituent documents, any applicable insurance policy, and/or in accordance
with this Agreement. Notwithstanding any other provision in this
Agreement to the contrary, all expenses eligible for reimbursement hereunder
shall be paid to you promptly in accordance with Broadpoint’s customary
practices applicable to the reimbursement of expenses of such
type, but in any event by no later than December 31 of the calendar
year following the calendar year in which such expenses were incurred.
The expenses incurred by you in any calendar year that are
eligible for reimbursement under this Agreement shall not affect the expenses
incurred by you in any other calendar year that are eligible for reimbursement
hereunder. Your right to receive any reimbursement hereunder shall not be
subject to liquidation or exchange for any other benefit.
8. Non-Solicit
Covenant. You agree that until one year from the date you
execute this Agreement, you shall not, directly or indirectly, solicit for
employment or hire anyone who then is or was an employee of the Company within
the period of 180 days prior to the termination of your employment with the
Company. Anything to the contrary notwithstanding, Broadpoint agrees
that the following shall not be deemed a violation of this Section 8 (i) your
responding to an unsolicited request for an employment reference regarding
any former employee of the Company from such former
employee, or from a third party, by providing a reference setting forth his
personal views about such former employee or (ii) if an entity with which you are associated hires
or engages any employee of the Company as aforesaid, if you were not, directly
or indirectly, involved in hiring or soliciting such
person as a potential recruit or assisting in the recruitment of such employee.
For purposes hereof, you shall only be deemed to have been involved "indirectly"
in hiring or soliciting an employee if you (x) direct a third party to solicit
or hire the employee, (y) identify an employee to a
third party as a potential recruit or (z) aid, assist or participate with a
third party in soliciting or hiring an employee.
9. No
Liability. You agree that neither this Agreement nor anything
contained herein shall be construed as an admission by the Company that it has
in any respect violated or abridged any federal, state, or local law or any
right or obligation arising by statute, common law or equity, that it may owe or
have owed to you.
10. Agreement to
Arbitrate. The Agreement to Arbitrate entered into by you and
the Company remains in full force and effect, and is hereby incorporated by
reference as if fully set forth herein. You and the Company agree
that any dispute or claim arising between you and the Company respecting the
terms of this Agreement shall be arbitrated in accordance with the terms of the
Agreement to Arbitrate.
11. Entire
Agreement. This Agreement, together with the Agreement to
Arbitrate and the RSU Agreement (as modified hereby) and Sections 8, 9 and 18 of
the Employment Agreement (which Sections shall survive the execution and
delivery hereof and which are hereby incorporated herein by reference as if set
forth in their entirety herein), is the entire agreement between you and the
Company with respect to the subject matter hereof. The Company makes
no representations regarding its relationship with or obligations to you, and
none it may have made in the past survive, except as set forth in this
Agreement. Except as explicitly set forth above, this Agreement
supersedes all existing agreements, including, without limitation, the
Employment Agreement and the Non-Compete and Non-Solicit Agreement dated May 12,
2007
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between
the Company and you, each of which is hereby terminated, whether written or
oral, between you and the Company with respect to the subject matter
hereof.
12. Amendment. This
Agreement cannot be amended, supplemented, or modified nor may any provision
hereof be waived, except by a written instrument executed by you and the
Company.
13. Enforceability. If
any provision of this Agreement is determined by a court of competent
jurisdiction not to be enforceable in the manner set forth in this Agreement,
you agree that it is the intention of the parties to this Agreement that such
provision should be enforceable to the maximum extent possible under applicable
law and that such provision shall be reformed to make it enforceable in
accordance with the intent of the parties. If any provisions of this
Agreement are held to be invalid or unenforceable, such invalidation or
unenforceability shall not affect the validity or enforceability of the other
portions hereof.
14. Legal
Counsel. You acknowledge that you have had an opportunity to
consult with counsel before signing this Agreement.
15. Full
Understanding. You acknowledge that you have read this
Agreement carefully, fully understand the meaning of the terms of this
Agreement, and are signing this Agreement knowingly and
voluntarily.
16. Choice of
Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
to be performed in that state.
17. Voluntary
Execution. You acknowledge that you have carefully read this
Agreement and that you understand all of its terms including the full and final
release of claims set forth in Section 3 above. You further
acknowledge that you have voluntarily entered into this Agreement; that you have
not relied upon any representation or statement, written or oral, not set forth
in this Agreement; that the only consideration for signing this Agreement is as
set forth herein; that the consideration received for executing this Agreement
is greater than that to which you would otherwise be entitled; and that this
document gives you the opportunity and encourages you to have this Agreement
reviewed by your attorney.
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In order
to signify your acceptance of this offer, please execute this Agreement where
indicated, and return it to me, whereupon it shall become binding on the parties
hereto and their respective heirs, successors and assigns.
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Very
truly yours,
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By:
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/s/ Xxx Xxxxxxxxxxxx | |
| Name: Xxx Xxxxxxxxxxxx | |||
| Title: Chief Executive Officer | |||
Understood
and Agreed:
/s/ C.
Xxxxx
Xxxx
C.
Xxxxx Xxxx
Date:
03/14/2008
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