EXHIBIT 10.1
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EMPLOYMENT AGREEMENT
AGREEMENT made as of the 4th day of January, 2006, between BKF
Capital Group, Inc., a Delaware corporation ( "BKF Capital"), BKF Management
Co., Inc., a Delaware corporation (together with BKF Capital, the "Company"),
and Xxxxxx Xxxx (the "Executive").
The Board of Directors of BKF Capital(the "Board") desires to provide
for the employment of the Executive. The Executive is willing to commit
himself to serve the Company on the terms and conditions herein provided.
In order to effect the foregoing, the Company and the Executive wish
to enter into an employment agreement on the terms and conditions set forth
below. Accordingly, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the Executive, and
the Executive hereby agrees to serve the Company, on the terms and
conditions set forth herein.
2. TERM. The employment of the Executive by the Company as provided in
Section 1 will commence on January 25, 2006 (the "Effective Date")
and end on the third anniversary of the Effective Date (the "Original
Term"), unless further extended or sooner terminated as hereinafter
provided (as extended or sooner terminated, the "Term"). Commencing
on the expiration of the Original Term, the Term of the Executive's
employment shall automatically be extended for successive additional
one-year periods, thereafter, unless, not later than 60 days prior to
the expiration of the Original Term or any one-year extension
thereof, either party shall have given notice to the other party
hereto that it does not wish to extend this Agreement.
3. POSITION AND DUTIES. The Executive shall serve as Chief Financial
Officer of BKF Capital and of each subsidiary of BKF Capital
(including, but not limited to, BKF Asset Management, Inc.) and he
shall have such responsibilities, duties and authority commensurate
with such positions (or any position to which he may be promoted
after the date hereof) and as may from time to time be assigned to
the Executive by the Board that are consistent with such
responsibilities, duties and authority. The Executive, in carrying
out his duties under this Agreement, shall report directly to the
Chief Executive Officer of the Company. During the Term, the
Executive shall devote substantially all his working time (excluding
periods of vacation and other approved leaves of absence) and efforts
to the business and affairs of the Company.
4. PLACE OF PERFORMANCE. In connection with the Executive's employment
by the Company during the Term, the Executive shall be based at the
principal executive offices of the Company in New York City, New
York, except for required travel on the Company's business.
5. COMPENSATION AND RELATED MATTERS.
(a) SALARY. During the Term, the Company shall pay to the
Executive an annual base salary at a rate of $275,000 per
annum or such higher rate as may from time to time be
determined by the Board, such salary to be paid in
substantially equal installments in accordance with Company
policy (but in any event not less frequently than monthly).
The Executive's base salary shall be subject to annual
review for increase or decrease by the Board (or a committee
thereof); provided that in no event shall the Executive's
base salary be payable at a rate of less than $275,000 per
annum. Compensation of the Executive by salary payments
shall not be deemed
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exclusive and shall not prevent the Executive from
participating in any other compensation or benefit plan of
the Company.
(b) ANNUAL BONUS. Each year during the Original Term, the
Executive will be eligible to receive an annual bonus
provided he satisfies the applicable performance criteria.
For the 2006 fiscal year of the Company, the Executive's
minimum annual bonus shall be $125,000 provided that he
remains continuously employed with the Company through
December 31, 2006. Thereafter, the Executive's target bonus
opportunity shall be in an amount to be set at the sole
discretion of the compensation committee of the Board (the
"Compensation Committee"). The Executive's annual bonus will
be paid in the form (and at the same general time) as
bonuses are generally paid to senior managers and portfolio
managers of the Company.
(c) EQUITY GRANTS.
(i) On the Effective Date, the Executive shall be
granted (x) 25,000 restricted shares of BKF
Capital's common stock, par value $1.00 per share
("Stock") (the "Sign-On Restricted Stock") and (y)
50,000 stock options (the "Sign-On Options") to
acquire Stock for an exercise price per share equal
to the fair market value of a share of Stock on the
date of grant as determined by the Compensation
Committee in accordance with the terms of BKF
Capital's 1998 Incentive Compensation Plan, as
amended (the "Company Equity Plan"). The Sign-On
Restricted Stock and Sign-On Options (collectively,
the "Sign-On Equity Grants") shall each be 25%
vested on the Effective Date and the remaining 75%
of each type of grant shall vest ratably in 25%
(i.e., 33?% of the unvested 75%) installments on
December 31, 2006, December 31, 2007 and December
31, 2008, respectively. Upon the death or
disability (as described in Section 7(b) hereof) of
the Executive, the Sign-On Equity Grants shall be
vested (to the extent not then already vested) and,
in the case of the Sign-On Options, shall remain
exercisable in accordance with the terms of the
Company Equity Plan and the Option Agreement
evidencing such grant as described in Section
5(c)(iii) hereof.
(ii) In addition, immediately prior to the occurrence of
a "Change in Control of the Company" (as defined
herein), all Sign-On Equity Grants shall
immediately vest.
(iii) All Sign-On Equity Grants shall be awarded pursuant
to the Company Equity Plan. All shares of the
Sign-On Restricted Stock and all shares of Stock
that may be issued upon the exercise of the Sign-On
Options shall have been timely registered with the
Securities & Exchange Commission pursuant to a Form
S-8 or otherwise.
(iv) For purposes hereof, a "Change in Control of the
Company" shall be deemed to have occurred upon (A)
the acquisition (other than from BKF Capital) by
any "person" (as such term is defined in Sections
13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the "1934 Act")) of beneficial
ownership (within the meaning of rule 13d-3
promulgated under the 0000 Xxx) of 50% or more of
the combined voting power of BKF Capital's then
outstanding voting securities; or (B) (1) a merger
of consolidation involving BKF Capital if the
stockholders of BKF Capital, immediately before
such merger or consolidation, do not, as result of
such merger or consolidation, own, directly or
indirectly, more than 50% of the combined voting
power of the then outstanding voting securities of
the corporation resulting from such merger or
consolidation in substantially the same proportion
as their ownership of the combined voting power of
the voting securities of BKF Capital outstanding
immediately before such merger or
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consolidation, or (2) the adoption by the Board of
a plan of liquidation providing for the
distribution of substantially all of the assets of
the Company or an agreement for the sale or other
disposition of all or substantially all of the
assets of the Company (including without limitation
a sale or other disposition of more than 50% of the
capital stock of BKF Asset Management, Inc.).
Notwithstanding the foregoing, a Change in Control
of the Company shall not be deemed to occur solely
because 50% or more of the combined voting power of
BKF Capital's then outstanding securities is
acquired by (i) a trustee or other fiduciary
holding securities under one or more employee
benefit plans maintained by the Company or any of
its subsidiaries or (ii) any corporation which,
immediately prior to such acquisition, is owned
directly or indirectly by the stockholders of BKF
Capital in the same proportion as their ownership
of stock in BKF Capital immediately prior to such
acquisition.
(v) The Executive shall be eligible for additional
equity grants during the Term as determined by the
Compensation Committee in its sole discretion.
(d) EXPENSES. The Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the
Executive in performing services hereunder, including all
expenses of travel and living while away from home on
business or at the request of and in the service of the
Company, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures
established by the Company and applicable to its senior
executives.
(e) OTHER BENEFITS. The Executive shall be entitled to
participate in all of the current employee benefit plans,
fringe and perquisite plans, practices, programs, policies
and arrangements the Company generally makes available to
its executives and key management employees at a level and
on such terms as are commensurate with his positions
(including, without limitation, each retirement plan, annual
and long-term incentive compensation plans, stock option and
purchase plans, group life insurance and accident plan,
medical and dental insurance plans, and disability plan).
The Executive shall be entitled to participate in or receive
benefits under any employee benefit plan, fringe and
perquisite plans, practices, programs, policies and
arrangement generally made available by the Company in the
future to its executives and key management employees at a
level and on such terms as are commensurate with his
positions, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans
and arrangements. Nothing herein shall be construed as
preventing the Company from amending or terminating any
current or future employee benefit plan or arrangement.
Unless otherwise agreed to in writing by the Executive,
nothing paid to the Executive under any plan or arrangement
presently in effect or made available in the future shall be
deemed to be in lieu of the salary payable to the Executive
pursuant to paragraph (a) of this Section.
(f) VACATIONS. The Executive shall be entitled to not less than
four weeks' paid vacation for each twelve-month period
during the Term (prorated for partial years). The Executive
shall also be entitled to all paid holidays and personal
days given by the Company to its executives.
(g) SERVICES FURNISHED. The Company shall furnish the Executive
with office space, stenographic assistance and such other
facilities and services as shall be suitable to the
Executive's position and adequate for the performance of his
duties as set forth in Section 3.
6. OFFICES. If elected or appointed, the Executive shall serve without
additional compensation as a director of BKF Capital's subsidiaries,
and in one or more executive offices (in addition to those
specifically provided in Section 3 above) of any of BKF Capital's
subsidiaries, provided that the Executive is
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indemnified for serving in any and all such capacities on a basis no
less favorable than is currently provided by the Company or any of
its subsidiaries.
7. TERMINATION. The Executive's employment hereunder may be terminated
only under the following circumstances:
(a) DEATH. The Executive's employment hereunder shall terminate
upon his death.
(b) DISABILITY. If, as a result of the Executive's incapacity
due to physical or mental illness, the Executive shall have
been absent from his duties hereunder on a full-time basis
for the entire period of six consecutive months and within
thirty (30) days after written notice of such termination is
received by the Executive (after the end of such six-month
period) Executive shall not have returned to the performance
of his duties hereunder on a full-time basis, the Company
may terminate Executive's employment hereunder.
(c) TERMINATION BY THE COMPANY. The Company may terminate the
Executive's employment hereunder with or without Cause. For
purposes of this Agreement, the Company shall have "Cause"
to terminate the Executive's employment hereunder upon (i)
the willful and continued failure of Executive to
substantially perform his duties with the Company (other
than any such failure resulting from Executive's incapacity
due to physical or mental illness or any such failure
subsequent to Executive being delivered a Notice of
Termination without Cause 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
Executive by the Board which specifically identifies the
manner in which the Board believes that Executive has not
substantially performed Executive's duties and Executive 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 Executive in misconduct which is demonstrably
and materially injurious to the Company or its affiliates;
(iii) any act of willful dishonesty towards the Company that
has a material adverse effect on the Company; (iv)
Executive's willful, material, knowing and intentional
failure to comply with applicable laws with respect to the
execution of the Company's business operations; (v)
Executive's theft, fraud, embezzlement, dishonesty or
similar conduct which has resulted or is likely to result in
material damage to the Company or any of its affiliates or
subsidiaries; (vi) Executive's habitual intoxication or
continued abuse of illegal drugs which materially interferes
with Executive's ability to perform his assigned duties and
responsibilities; or (vii) Executive's conviction of, or
plea of guilty or no contest to, any felony. For purposes of
this Section 7(c), no act or failure to act by Executive
shall be considered "willful" unless done or omitted to be
done by Executive in bad faith and without reasonable belief
that Executive's action or omission was in the best
interests of the Company.
(d) TERMINATION BY THE EXECUTIVE.
(i) The Executive may terminate his employment
hereunder with or without Good Reason.
(ii) For purposes of this Agreement, "Good Reason" shall
mean
(A) (1) any material diminution or material
adverse change in the duties or
responsibilities of the Executive, (2) any
adverse change in the Executive's titles
or offices with the Company or reporting
responsibilities or obligations, or
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(3) any assignment of duties or
responsibilities that are materially
inconsistent with the Executive's
position;
(B) a reduction by the Company in the
Executive's rate of annual base salary (as
provided in Section 5(a) hereof);
(C) any requirement of the Company that the
Executive be based anywhere other than the
office where the Executive is located at
the date of this Agreement, if such
relocation increases the Executive's
commute by more than thirty-five (35)
miles;
(D) the failure by the Company or any of its
affiliates to pay any compensation to the
Executive within thirty (30) days of its
becoming due hereunder;
(E) the failure of BKF Capital to grant to
Executive any Sign-On Equity Grants
pursuant to Section 5(c) hereof;
(F) the failure of the Company to continue to
provide the Executive participation in any
employee benefit plans, fringe and
perquisite plans, practices, programs,
policies and arrangements at a level of
participation equal to that generally
provided to other executives and key
management employees of the Company; or
(G) the adoption by the Board of a plan of
liquidation providing for the distribution
of substantially all of the assets of the
Company;
provided, that, in the case of any event described in
clauses (A), (B), (D), (E) or (F) of this Section 7(d)(iii)
which is an isolated, insubstantial and inadvertent event,
the Company has not cured such change, reduction,
requirement or failure within thirty (30) days after
receiving written notice thereof from the Executive; and
PROVIDED, FURTHER, that Executive may resign his employment
for Good Reason if in connection with any Change in Control
of the Company the successor does not assume this Agreement.
(e) Any termination of the Executive's employment by the Company
or by the Executive (other than termination pursuant to
subsection (a) hereof) shall be communicated by written
Notice of Termination to the other party hereto in
accordance with Section 15. For purposes of this Agreement,
a "NOTICE OF TERMINATION" shall mean a notice which shall
indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable
detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under
the provision so indicated.
(f) "DATE OF TERMINATION" shall mean (i) if the Executive's
employment is terminated by his death, the date of his
death, (ii) if the Executive's employment is terminated
pursuant to subsection (b) above, thirty (30) days after
Notice of Termination is given (provided that the Executive
shall not have returned to the performance of his duties on
a full-time basis during such thirty (30)-day period), (iii)
if the Executive's employment is terminated pursuant to
subsection (c) above, the date specified in the Notice of
Termination; provided that if the Company terminates the
Executive's employment without Cause the Date of Termination
shall not be less than thirty (30) days following the date
such Notice of Termination is provided to the Executive, and
(iv) if
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the Executive's employment is terminated pursuant to
subsection (d), the date specified in the Notice of
Termination provided that the Date of Termination shall not
be less than thirty (30) days following the date such Notice
of Termination is provided to the Company.
8. COMPENSATION UPON TERMINATION OR DURING DISABILITY.
(a) During any period that the Executive fails to perform his
duties hereunder as a result of incapacity due to physical
or mental illness ("disability period"), the Executive shall
continue to receive his full salary at the rate then in
effect for such period until his employment is terminated
pursuant to Section 7(b) hereof, provided that payments so
made to the Executive during the first 180 days of the
disability period shall be reduced by the sum of the
amounts, if any, payable to the Executive at or prior to the
time of any such payment under disability benefit plans of
the Company or under the Social Security disability
insurance program, and which amounts were not previously
applied to reduce any such payment. In addition, upon
termination pursuant to Section 7(b), the Company shall pay
the Executive the Accrued Obligations (as defined in Section
8(b)) through the date of Termination and the Sign-On Equity
Grants shall not terminate and shall continue to vest in
accordance with Section 5(c)(i) hereof.
(b) If the Executive's employment is terminated by his death,
the Company shall pay to the Executive's estate his (w)
annual base salary through the Date of Termination, to the
extent not previously paid, and if not yet paid, any annual
bonus earned for the calendar year that preceded the Date of
Termination (x) reimbursement for any unreimbursed business
expenses incurred by the Executive prior to the Date of
Termination that are subject to reimbursement pursuant to
Section 5(d), (y) payment for vacation time accrued as of
the Date of Termination but unused and (z) any other amount
or benefit due under an employee benefit plan or arrangement
maintained or provided by the Company; including the
benefits and payments described in the Section 5(e) (such
amounts under clauses (w), (x), (y) and (z), collectively
the "Accrued Obligations") in accordance with Section 12(c).
In addition, upon termination pursuant to Section 7(a) the
Sign-On Equity Grants shall not terminate and shall continue
to vest in accordance with Section 5(c)(i) hereof.
(c) If the Executive's employment shall be terminated by the
Company for Cause or by the Executive for other than Good
Reason, the Company shall pay the Executive the Accrued
Obligations (excluding any earned but unpaid bonus for a
prior calendar year if the event or events giving rise to
the termination for Cause occurred in whole or in part
during such prior calendar year) through the Date of
Termination and the Company shall have no further
obligations to the Executive under this Agreement.
(d) If (A) the Company shall terminate the Executive's
employment without Cause or (B) the Executive shall
terminate his employment for Good Reason, then
(i) the Company shall pay the Executive the Accrued
Obligations through the Date of Termination at the
rate at the time Notice of Termination is given;
and
(ii) the Company shall, not later than fifteen (15)
business days following the Date of Termination,
pay to the Executive in a lump sum an amount equal
to the sum of (x) his then current annual base
salary and (y) the average annual incentive bonus
paid or awarded to the Executive during the
three-year period (or such lesser period during
which the Executive has been employed by the
Company) preceding the calendar year in which the
date of Termination occurs, but in no event less
than $125,000.
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(iii) all unvested Sign On Equity Grants that would have
become vested in accordance with Section 5(c)(i)
hereof on the December 31 next following the Date
of Termination had the Executive remained employed
with the Company through such December 31 shall
become vested as of the Date of Termination on a
prorated basis determined on the basis of the
number of months elapsed from the most recent
December 31 preceding the Date of Termination
through the Date of Termination.
(e) All amounts under this Section 8 shall be conditioned upon
the execution by the Executive of a standard release of the
Company and its affiliates then being generally used by the
Company.
9. MITIGATION/OFFSET. The Executive shall have no duty to
mitigate any payments hereunder by seeking other employment or
otherwise.
10. PROTECTION OF THE COMPANY'S INTERESTS.
(a) As a condition of his employment, the Executive shall be
required to execute the Company's standard proprietary
inventions and confidentiality agreement. The Executive
recognizes that the services to be performed by him
hereunder are special, unique and extraordinary in that, by
reason of his employment hereunder, he may acquire
confidential information and trade secrets concerning the
operation of the Company or its affiliates or subsidiaries,
the use or disclosure of which could cause the Company or
its affiliates or subsidiaries substantial losses and
damages which could not be readily calculated and for which
no remedy at law would be adequate. Accordingly, the
Executive covenants and agrees that he will not at any time,
except in performance of his obligations hereunder, or with
the prior written consent of the Board, or as otherwise
required by law or in response to a lawful and valid
subpoena or other legal process or other governmental or
regulatory inquiry directly or indirectly disclose to any
person, any confidential information that he may learn or
has learned by reason of his association with the Company,
or any of its predecessors, subsidiaries and affiliates. The
term "confidential information" means any information not
previously disclosed or otherwise available to the public or
to the trade with respect to the Company's, or any of its
predecessors', affiliates' or subsidiaries' products,
facilities and methods, trade secrets and other intellectual
property, systems, procedures, manuals, confidential
reports, product price lists, customer lists, financial
information, business plans, prospects or opportunities.
(b) The Executive confirms that all confidential information is
and shall remain the exclusive property of the Company, its
affiliates and subsidiaries. All business records, papers
and documents kept or made by the Executive relating to the
business of the Company, its predecessors, affiliates and
subsidiaries shall be and remain the property of the
Company. Upon the termination of his employment with the
Company or upon the request of the Company at any time, the
Executive shall promptly deliver to the Company, and shall
not without the consent of the Board retain copies of, any
written materials not made available to the public, or
records and documents made by the Executive or coming into
his possession concerning the business or affairs of the
Company or any of its affiliates or subsidiaries; provided
that the Executive may retain his contact list, address book
and similar information, any non-proprietary documents he
may have received, and any personal information or files
that he possessed prior to the Effective Date relating the
money management or similar business.
(c) During the Executive's employment with the Company and for a
period of six months following termination of employment for
any reason during the Term (the "Restricted Period"), the
Executive shall not, without the Board's prior written
consent, whether as owner, part owner,
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shareholder, partner, member, director, officer, trustee,
employee, agent or consultant, or in any other capacity, on
behalf of himself or any "Person" (as defined below) other
than the Company or its "Affiliates" (as defined below):
(i) compete, directly or indirectly, whether as owner,
partner, investor, consultant, agent, employee,
co-venturer or otherwise, with the Company and/or
its subsidiaries or Affiliates in the United States
in the money management business ("Competitive
Endeavor") or undertake any planning for any
business that would constitute a Competitive
Endeavor (for purposes hereof, the business of the
Company and/or its subsidiaries or Affiliates shall
include all products and services offered by the
Company or any of its subsidiaries of Affiliates or
under development);
(ii) provide "Investment Management Services" (as
defined below) to any Person that is a "Past
Client," "Present Client" or "Potential Client"
(each as defined below); provided, however, that
this clause (ii) shall not be applicable to Clients
(including Potential Clients) who are also members
of the "Immediate Family" (as defined below) of the
Executive;
(iii) directly or indirectly solicit or induce any Person
for the purpose of (A) causing any funds (other
than funds of which the Executive and/or members of
his Immediate Family are the sole beneficial
owners) with respect to which the Company or its
Affiliates provides Investment Management Services
to be withdrawn from such management, or (B)
causing any "Client" (as defined below), including
any Potential Client, not to engage the Company or
any of its Affiliates to provide Investment
Management Services for any additional funds;
provided, however, that this clause (iii) shall not
be applicable to Clients (including Potential
Clients) who are also members of the Immediate
Family of the Executive;
(iv) directly or indirectly solicit or induce any Past
Client on behalf of any Person other than the
Company or its Affiliates for the purpose of
providing Investment Management Services; provided,
however, that this clause (iv) shall not be
applicable to Past Clients who are also members of
the Immediate Family of the Executive;
(v) contact or communicate with, whether directly or
indirectly, any Past, Present or Potential Clients
in connection with Investment Management Services;
provided, however, that this clause (v) shall not
be applicable to Clients (including Potential
Clients) who are also members of the Immediate
Family of the Executive; or
(vi) (A) directly or indirectly solicit or induce, or
attempt to solicit or induce any employee or
exclusive agent of, or exclusive consultant to, the
Company or any of its Affiliates to terminate its,
his or her relationship therewith, or (B) hire any
employee, exclusive external researcher or similar
exclusive agent or exclusive consultant who was
employed by or acted as an external researcher or
similar agent or consultant of the Company or its
Affiliates at any time during the one year period
preceding such hiring of such Person (excluding for
all purposes of this sentence, secretaries and
persons holding other similar positions).
For purposes of this Section 10,
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the term "Past Client" shall mean at any particular time, any Person who at
any point prior to such time is known to the Executive to have been an advisee
or investment advisory customer of, or otherwise a recipient of Investment
Management Services from, the Company or any of its Affiliates, but at such
time is not an advisee or investment advisory customer or client of, or
recipient of Investment Management Services from the Company or any of its
Affiliates; provided however, that the term "Past Client" shall be limited to
those Past Clients who were recipients of Investment Management Services,
directly or indirectly, from the Company or its Affiliates at the date of
termination of the Executive's employment or at any time during the six (6)
months immediately preceding the date of such termination;
the term "Potential Client" shall mean, at any particular time, any Person to
whom the Company or any of its Affiliates, or any director, officer employee,
agent or consultant (or persons acting in any similar capacity) of the Company
or any such Affiliate (acting on its behalf), has, to the knowledge of the
Executive, within six (6) months prior to such time, offered (whether by means
of a personal meeting or by telephone call, letter, written proposal or
otherwise) to provide Investment Management Services, but who is not at such
time an investment advisory customer of, or otherwise a recipient of
Investment Management Services from, the Company or any of its Affiliates
(directly or indirectly);
the term "Present Client" shall mean, at any particular time, any Person who
is, to the knowledge of the Executive, at such time an advisee or investment
advisory customer of, or otherwise a recipient of Investment Management
Services from, the Company or its Affiliates (directly or indirectly);
the term "Client" shall mean all Past Clients, Present Clients and Potential
Clients, subject to the following general rules: (i) with respect to each
Client, the term shall also include any Persons which are known to the
Executive to be Affiliates of such Client, directors, officers or employees of
such Client or any such Affiliates thereof, or Persons who are members of the
Immediate Family of any of the foregoing Persons or Affiliates of any of them;
(ii) with respect to any Client that is a collective investment vehicle
(provided that, for the avoidance of doubt, a 401(k) retirement plan shall not
itself be considered a "collective investment vehicle" except to the extent
the Executive (as applicable) has actual knowledge of the identities of
investors therein), the term shall also include any investor or participant in
such Client; and (iii) with respect to any Client that is a trust or similar
entity, the term shall include the settler and each of the beneficiaries of
such Client and the Affiliates and Immediate Family members of any such
Persons (and, for the avoidance of doubt, the Company will provide the
Executive with a list of "Clients" within five business days following the
Executive's termination of employment during the term hereof);
the term "Immediate Family" shall mean, with respect to any individual, such
individual, the individual's spouse; the descendants (natural or adoptive, of
the whole or half blood) of such individual, such individual's spouse and the
parents (natural or adoptive) of such individual or such individual's spouse;
the grandparents and parents (natural or adoptive) of such individual or such
individual's spouse; the aunts and uncles of such individual or such
individual's spouse; and the siblings and their children (natural or adoptive)
of such individual or such individual's spouse;
the term "Investment Management Services" shall mean any services (including
sub-advisory services) which involve (a) the management of an investment
account or fund (or portions thereof or a group of investment accounts or
funds) of any Person other than the Company or its Affiliates for compensation
and (b) the rendering of advice with respect to the investment and
reinvestment of assets or funds (or any group of assets or funds) of any
Person other than the Company or any of its Affiliates for compensation, and
performing activities related or incidental thereto;
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the term "Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, business trust, limited liability
company, trust, unincorporated organization or government or a political
subdivision, agency or instrumentally thereof or other entity or organization
of any kind; and
the term "Affiliate" shall mean, with respect to any Person, any other Person
which directly or indirectly controls, is controlled by, or is under common
control with that first Person. For purposes of this definition, "control" of
a Person shall mean the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting stock, by contract, or otherwise.
Notwithstanding the provisions of this Section 10, the Executive may,
following the termination of his employment, make personal investments in an
enterprise which is competitive with the Company or its Affiliates, the shares
or other equity interests of which are publicly traded provided his holdings
therein, together with any holdings of his Affiliates and members of his
Immediate Family, are less than three percent (3%) of the outstanding shares
or comparable interests in such entity.
Upon any knowing, material violation of this Section 10, the Company shall
have no further obligations to the Executive hereunder.
(d) Without intending to limit the remedies available to the
Company, the Executive acknowledges that a breach of any of
the covenants contained in this Section 10 may result in
material irreparable injury to the Company or its affiliates
or subsidiaries for which there is no adequate remedy at
law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of such a
breach or threat thereof, the Company, its affiliates or
subsidiaries, shall be entitled to seek a temporary
restraining order and/or a preliminary or permanent
injunction restraining the Executive from engaging in
activities prohibited by this Section 10 or such other
relief as may be required to specifically enforce any of the
covenants in this Section 10.
(e) To the extent that any provision of this Section 10 is found
by a court of competent jurisdiction to be unenforceable due
to geographic scope, duration or otherwise, the relevant
provision or provisions shall be deemed automatically
modified to the minimum extent necessary to be held
enforceable by such court.
11. SCOPE OF AGREEMENT. Nothing in this Agreement shall be deemed to
entitle the Executive to continued employment with the Company or its
subsidiaries; provided, that any termination of the Executive's
employment shall be subject to all of the provisions of this
Agreement.
12. ASSIGNMENT; SUCCESSORS; BINDING AGREEMENT.
(a) This Agreement shall not be assignable by the Executive.
(b) This Agreement shall inure to the benefit of and be
binding upon any successor or assign of the Company.
(c) This Agreement and all rights of the Executive hereunder
shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees
and legatees. If the Executive should die while any amounts
would still be payable to him hereunder if he had continued
to live, all such amount unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement
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to the Executive's devisee, legatee, or other designee or,
if there be no such designee, to the Executive's estate.
13. NOTICE. For the purposes of this Agreement, notices, demands and all
other communications provided for in this Agreement shall be in
writing and shall be deemed to have been duly given when delivered or
(unless otherwise specified) mailed by United States certified or
registered mail, return receipt requested, postage prepaid, addressed
as follows:
If to the Executive:
Xxxxxx Xxxx
000 Xxxxxx Xxx
Xxxxxxxxx, XX 00000
If to the Company:
BKF Capital Group, Inc.
0 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
or to such other address as any party may have furnished to the
others in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
14. CODE SECTION 409A. If any provision of this Agreement (or of any
award of compensation, including equity compensation) would cause the
Executive to incur any additional tax or interest under Section 409A
of the Code or any regulations or Treasury guidance promulgated
thereunder, the Company shall use its reasonable best efforts to
reform such provision to preserve the intended tax treatment of the
payments and benefits provided by this Agreement; provided that the
Company shall: (i) maintain, to the maximum extent practicable, the
original intent of the applicable provision without violating the
provisions of Section 409A of the Code and (ii) notify and consult
with the Executive regarding such amendments or modifications prior
to the effective date of any such change.
15. MISCELLANEOUS. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and such officer of the
Company as may be specifically designated by the Board. No waiver by
either party hereto at any time of any breach by the other party
hereto of, or compliance with, any 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. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject
matter hereof have been made by either party which are not set forth
expressly in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by
and construed under the laws of the State of New York without regard
to its conflicts of law principles.
16. VALIDITY. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
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17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all
of which together will constitute one and the same instrument.
18. SECTION HEADINGS. The section headings contained herein are for
reference purposes only and shall not in any way affect the meaning
or interpretation of this Agreement.
19. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein
and supersedes all prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether
oral or written, by any officer, employee or representative of any
party hereto; and any prior agreement of the parties hereto in
respect of the subject matter contained herein is hereby terminated
and cancelled.
20. INDEMNIFICATION. The Executive shall be entitled to indemnification
to the maximum extent allowed under the Company's By-Laws and under
the laws of the State of Delaware and on a basis (and subject to an
indemnification agreement, if any) no less favorable than any other
director or officer of the Company is indemnified by the Company. The
Executive shall be entitled to the protection of any insurance
policies the Company may elect to maintain generally for the benefit
of its directors and officers against all costs, charges and expenses
incurred or sustained by him in connection with any action, suit or
proceeding to which he may be made a party by reason of his being or
having been a director, officer or employee of the Company or any of
its subsidiaries or his serving or having served any other enterprise
or benefit plan as a director, officer, employee or fiduciary at the
request of the Company. Notwithstanding anything to the contrary
herein, the Executive's rights under this section 23 shall survive
the termination of his employment for any reason and the expiration
of this Agreement for any reason.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
Attest: BKF CAPITAL GROUP, INC.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxx Xxxxxxxxx
--------------------------- ----------------------------
Name: Xxxx Xxxxxxxxx
Title: Chief Executive Officer
Attest: BKF MANAGEMENT CO., INC.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxx Xxxxxxxxx
--------------------------- ----------------------------
Name: Xxxx Xxxxxxxxx
Title: Chief Executive Officer
/s/ Xxxxxx Xxxx
--------------------------------
XXXXXX XXXX
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