EXHIBIT 10.1
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July 24, 2006
Mr. Xxxxxx Xxxxxxxx
0000 Xxxx Xxxxxx Xxx. 0X
Xxx Xxxx, Xxx Xxxx 00000
Dear Phil:
This letter sets forth the terms of your Separation Agreement
and General Release ("Agreement") from BKF Management Co., Inc. (the
"Company"). Your signature at the end of this Agreement will signify your
acceptance of and agreement to the provisions of this Agreement. This offer
will remain open until the close of business on August 14, 2006.
1. RESIGNATION DATE. You shall resign as an employee and resign
your officer positions with the Company and any subsidiaries and affiliates
effective as of the close of business on July 24, 2006 (the "Resignation
Date"). The Company shall timely file a Form U-5 with the NASD stating that the
reason for your departure was "Voluntary," and shall cooperate with you in
connection with the prompt transfer of your registration(s).
2. COMPENSATION AND BENEFITS THROUGH RESIGNATION DATE. Provided
that you continue to work for the Company through your Resignation Date, the
Company shall:
a. continue your current base salary through your
Resignation Date, payable on regularly scheduled paydays;
b. continue your current benefits on the same terms and
conditions through the Resignation Date.
3. SEPARATION PAYMENTS. The following amounts shall be payable to
you on the first regularly scheduled payday to occur at least ten days after
receipt of this fully executed agreement from you:
a. Two-hundred thousand dollars ($200,000), an amount
representing one-quarter of your current annual base salary;
and
b. one million, eighty-six thousand, six hundred and sixty
dollars ($1,086,660), an amount representing a pro-rata portion
of your 2006 bonus amount for the period April 1 through
September 30, 2006. Federal taxes shall be withheld at the
supplemental, or bonus, rate, to the extent permitted by law.
4. TRACK RECORD. At the time of your departure, or as soon
thereafter as reasonably possible, the Company shall provide you with documents
or access to documents necessary for you to utilize the performance history
generated by the funds with respect to the portfolios for which you acted as a
portfolio manager for the time period that you acted as a portfolio manager on
each such fund ("Track Record"). The Company makes no representation or
warranties regarding your right under applicable law and regulations to use
such track records but acknowledges and agrees that it authorizes your use and
publication of them. You acknowledge and agree that you shall indemnify the
Company for any losses suffered by the Company as the result of the use or
publication of the Track Record by you or by any other individual or entity to
whom you disclosed the Track Record. You shall not be liable for indemnifying
the Company for any losses which result from the Company's own negligence.
5. MUTUAL RELEASE OF ALL CLAIMS.
a. RELEASE BY YOU. In consideration of the mutual
covenants and agreements set forth herein, you, on behalf of yourself and your
heirs, successors, agents, executors and assigns (the "Releasing Parties")
hereby irrevocably, fully, and unconditionally release and forever discharge
the Company and any and all of its current and former shareholders, partners,
officers, directors, members, trustees, managers, employees, agents,
contractors, representatives, fiduciaries, predecessors, successors and assigns
in their individual and/or representative capacity (collectively "Released
Parties"), from any and all suits, claims, promises, obligations, liabilities,
disputes, controversies, contentions, differences, demands and causes of
action, known or unknown, fixed or contingent, in law or equity, which you ever
had, now have or hereafter can, shall or may have for, upon or by reason of any
matter, cause or thing occurring up to and including the date you sign this
Agreement, including, but not limited to, those arising under:
o Age Discrimination in Employment Act, 29 U.S.C. ss. 621 ET
SEQ.,
o Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section
Number 2000e ET SEQ., the Employee Retirement Income Security Act of 1974, 29
U.S.C. ss. 1001 ET SEQ., the Americans with Disabilities Act, 42 U.S.C. ss.
12101 ET SEQ., the Family and Medical Leave Act of 1993, 29 U.S.C. Section
Number 2601 ET SEQ., New York State Human Rights Law, N.Y. Exec. Law Section
Number 296 et seq., New York State Labor Law, and the New York City Human
Rights Law, N.Y.C. Admin. Code ss. 8-107 et seq., all AS AMENDED;
o any and all other federal, state and local laws, rules,
regulations, contract law or principal of common law, including tortious or
wrongful discharge, breach of an express or implied contract, breach of a
covenant of good faith and fair dealing, negligent or intentional infliction of
emotional distress, defamation, misrepresentation or fraud; and
o any and all claims related to your employment or separation
from employment.
Nothing in this section, however, releases any of the Company's
obligations as set forth in this Agreement or precludes an action by you to
enforce the terms of this Agreement.
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Additionally, nothing contained in this Agreement limits, restricts, releases
or waives any of your rights to vested benefits under any of the Company's
benefits plans or any rights of indemnification you may have. Furthermore,
nothing contained in this Agreement limits, restricts, releases or waives the
rights of any persons who are identified as third party beneficiaries under any
agreements to which you are a signatory.
b. RELEASE BY COMPANY. In consideration of the obligations
of you set forth herein, the Company, on behalf of its current and former
shareholders, partners, officers, directors, members, trustees, managers,
employees, agents, contractors, representatives, fiduciaries, predecessors,
successors and assigns in their individual and/or representative capacity,
hereby irrevocably, fully, and unconditionally releases and forever discharges
you, your heirs, successors, agents, executors and assigns from all actions,
claims, obligations, liabilities, demands and causes of action, known or
unknown, fixed or contingent, in law or equity, which they ever had, now have
or hereafter can, shall or may have for, upon or by reason of any matter, cause
or thing occurring up to and including the date of this Agreement.
Nothing in this section, however, releases any of your obligations as
set forth in this Agreement or precludes an action by the Company to enforce
the terms of this Agreement or any claims with respect to any act or acts which
(x) constitute a criminal act under applicable law or regulation involving the
assets or business of the Company or, (y) a willful breach of duty or loyalty
owed to the Company or any of its affiliates (or their respective
shareholders), other than any such breach which any member of the Board of
Directors of the Company or BKF Capital Group, Inc. knows about (or should have
known about) as of the date of this release.
6. INDEMNIFICATION. The Company shall indemnify and hold you
harmless from and against any and all losses incurred by you in connection with
your role as employee or officer of the Company to the fullest extent permitted
under the law, public policy and Company insurance policies, provided, however,
that you shall not be indemnified for acts constituting gross negligence or
willful misconduct.
7. RESTRICTED STOCK. You acknowledge and agree that you hereby
forfeit any equity awards relating to the stock of BKF Capital Group, Inc. that
are unvested as of the Date of Termination.
8. COMPANY PROPERTY. By your signature below, you agree that you
shall return all Company Property to the Company by your Resignation Date.
Company Property includes, but is not limited to (a) building photo
identification card and security access card; (b) Blackberry and peripherals,
Bloomberg key, Citrix key, laptop computer, cell phone etc.; (c) emergency kit
and hood; and (d) the Company Employee and Compliance Manual and any other
Company documents or property not set forth above.
9. NON-DISPARAGEMENT. You agree that you shall not publish or
communicate to any person or entity any disparaging remarks, comments or
statements concerning the Company or its affiliates or any of their officers,
directors, third party administrators, or employees. You further agree that you
shall not publish or communicate to any person or entity any disparaging
remarks, comments or statements concerning any of the Company's attorneys,
service providers, agents or consultants in connection with work performed by
such individuals or entities for the Company. The current officers of the
Company agree that they shall not publish or communicate to any person or
entity any disparaging remarks, comments or statements concerning you. This
provision shall be binding on the parties through the third anniversary of this
Agreement.
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10. RIGHT TO CONSULT AN ATTORNEY AND FULL UNDERSTANDING. The
Company hereby advises you to consult with an attorney prior to signing this
agreement. You acknowledge, represent and agree that you understand the terms
of this Agreement and the Release and that they are written in a manner
calculated to be understood by you.
11. KNOWING AND VOLUNTARY. You agree that you are entering into
this Agreement knowingly and voluntarily, and no promises or inducements for
this Agreement have been made other than those set forth in this Agreement. You
further agree that you are entering into this Agreement of your own free will,
without any duress, and being fully informed and after due deliberation you
accept its terms.
12. ENTIRE AGREEMENT. This Agreement contains the entire agreement
and understanding of the parties with respect to your employment and the
termination of your employment. There are no restrictions, agreements,
promises, warranties, covenants or undertakings between the parties with
respect to the subject matter herein other than those expressly set forth
herein. This Agreement cannot be modified, amended, waived or terminated, in
whole or in part, except in writing signed by both parties hereto.
13. CHOICE OF LAW. This Agreement shall be construed and enforced
in accordance with the laws of the State of New York, without regard to
conflict of laws.
14. PRIOR AGREEMENTS. Except as hereinabove provided, this
Agreement supersedes all prior agreements and understandings (including verbal
agreements and draft term sheets and memorandum of understanding) between you
and the Company and/or its affiliates regarding the terms and conditions of
your employment, and termination of employment, with the Company and/or its
affiliates. You acknowledge and agree that the Retention Agreement dated August
11, 2005 between you and Xxxxx Management Co., Inc. and BKF Capital Group,
Inc., ("Retention Agreement") and, the First Amendment to Retention Agreement,
dated November 15, 2005, between you and BKF Capital Group are both terminated
as of the date of this Agreement and shall be of no further force or effect,
provided, however, that Paragraph 8 of the Retention Agreement shall remain in
full force and effect, as applicable, with respect to the periods preceding and
following the Resignation Date.
15. ACCEPTANCE OF AGREEMENT. By signing this Agreement, you are
providing a complete waiver of all claims that may have arisen, whether known
or unknown, up until this Agreement is executed. You can take up to twenty-one
days from receipt to consider its meaning and effect and to determine whether
you wish to enter into it.
Once you have signed this Agreement, you may revoke your execution
within seven days. Any revocation of this Agreement must be in writing and
either personally delivered to the Director of Human Resources, or if mailed,
postmarked within seven (7) days of the date upon which it was signed by you.
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PLEASE READ CAREFULLY BEFORE SIGNING. THIS DOCUMENT INCLUDES A RELEASE
OF ALL KNOWN AND UNKNOWN CLAIMS.
Sincerely,
/s/ X. Xxxxxx Xxxx
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X. Xxxxxx Xxxx
Chief Financial Officer
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
Dated: July 24, 2006
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