Exhibit 10.4
EXECUTION COPY
July 10, 2009
Christopher A. White
At the address last on the records of Cowen
Dear Chris:
As you know, Cowen Group, Inc.
(“Cowen”) has entered into a Transaction Agreement and Agreement and Plan of
Merger (the “Transaction Agreement”) with LexingtonPark Parent Corp. (the “Company”),
Lexington Merger Corp., Park Exchange LLC (the “Exchange Sub”), and Ramius LLC
(“Ramius”), pursuant to which, among other things, Cowen will become a wholly
owned subsidiary of the Company and Exchange Sub will acquire substantially all
of the assets and assume all of the liabilities of Ramius (collectively, the “Transaction”). The Company and Cowen desire to have your
continued dedication and service pending and following the Transaction. Accordingly, we are pleased to offer you
continued employment with the Company and its subsidiaries, and we look forward
to continuing our mutually rewarding and beneficial relationship. Cowen, the Company and you previously entered
into a letter agreement on June 3, 2009, which outlined the terms of your
continued employment (the “Prior Agreement”).
Given that the terms of your continued employment have changed since the
parties entered into the Prior Agreement, the parties wish to enter into this
letter agreement (the “Agreement”), which will outline such updated terms of
your continued employment and will supersede the Prior Agreement. This Agreement will become effective upon the
Effective Time (as defined in the Transaction Agreement) (the “Effective Date”)
and, as more fully set forth below, shall, as of the Effective Date, supersede
any and all prior employment agreements and letters concerning your employment
with Cowen and its subsidiaries, including, without limitation, the Prior
Agreement.
1. Term. This Agreement provides the details of the
terms of your employment from and following the Effective Date until
termination of your employment (the “Term”), and certain other terms and
conditions of your employment with the Company and its subsidiaries that
continue beyond the Term unless otherwise specified.
2. Position. You shall be employed as a Managing Director
and the Chief Financial Officer of the Company and shall report directly to the
Chief Executive Officer of the Company, and you shall also be appointed, on the
Effective Date, to serve as a member of the Company’s Operating Committee. You shall have the duties, responsibilities
and authority commensurate with your title and position and such other duties
and responsibilities as may be reasonably assigned to you by the Chief
Executive Officer of the Company. You
shall continue to be subject to, and must comply with, all policies and
procedures applicable to employees of the Company’s Broker-Dealer subsidiary
(the “BD Subsidiary”), as now existing or as may be modified or supplemented from
time to time by the BD Subsidiary.
duties within such thirty
(30)-day period. “Disabled” and “Disability,”
as used herein, shall mean your inability to perform the essential duties and
responsibilities of your job with or without reasonable accommodation, for a
continuous period of ninety (90) days or more, or for one hundred twenty (120)
days or more in a twelve (12)-month period, due to a physical or mental
condition. Disputes on the issues of
Disability shall be determined by an impartial, reputable physician agreed upon
by the parties or their respective doctors.
Upon termination under this paragraph 5b, in addition to any rights you
have under paragraph 4 of this Agreement, you or your estate shall be entitled
to receive (i) the Accrued Obligations and (ii) the Equity Benefits.
c. Termination for Cause. The Company may terminate your employment with
or without Cause. Upon termination of
employment for Cause, you shall be entitled to receive only that portion of
your Base Salary earned, but unpaid, as of the date of termination, payable no
later than thirty (30) days after your date of termination. For purposes of this Agreement, “Cause” shall
mean the occurrence of an event set forth in clauses (i) through (iv) below
as determined by the Company in good faith:
i. your conviction of any crime (whether or not related
to your duties at the BD Subsidiary), with the exception of minor traffic
offenses;
ii. fraud, dishonesty, gross negligence or substantial
misconduct in the performance of your duties and responsibilities of your
employment;
iii. your material violation of or failure to comply with
the Company’s internal policies or the rules and regulations of any
regulatory or self-regulatory organization with jurisdiction over the BD
Subsidiary;
iv. your failure to perform the material duties of your
position.
In the case of clauses (ii) through (iv) above,
to the extent your alleged breach is reasonably subject to cure, your
employment shall not be terminated for Cause unless and until you have been
given written notice and shall have failed to correct any such violation, failure
or refusal to follow instructions within ten (10) business days of such
notice.
d. Termination By You without
Good Reason. You may
terminate your employment with or without “Good Reason”. Upon termination of your employment by you without
Good Reason, you shall be entitled to receive only that portion of your Base
Salary earned, but unpaid, as of the effective date of termination, payable no
later than thirty (30) days after the effective date of termination . For purposes of this Agreement, “Good Reason”
shall mean:
i. any requirement that
your services during the Term be rendered primarily at a location or locations
other than the Company’s or the BD Subsidiary’s offices in the New York City
metropolitan area;
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ii. a material diminution by the Company or the BD
Subsidiary of your roles and responsibilities, it being agreed and understood
that your roles and responsibilities may change on terms that are mutually
acceptable to you, the Company, and the BD Subsidiary, and such change will be
deemed not to be a material diminution within the meaning of this clause; or
iii. any material breach of this Agreement by the Company.
In order to invoke a termination for Good Reason, you must
provide written notice to the Company of the existence of the conditions giving
rise to such “Good Reason” within ninety (90) days following your knowledge of
the initial existence of such condition or conditions, and the Company shall
have thirty (30) days following receipt of such written notice (the “Cure
Period”) during which it may remedy the condition. In the event that the Company fails to remedy
the condition constituting Good Reason during the Cure Period, you must deliver
notice to the Company of your intention to terminate employment, if at all,
within ninety (90) days following the Cure Period in order for such termination
to constitute a termination for Good Reason.
e. Further Effect of
Termination on Board and Officer Positions. If your employment ends for any reason, you
agree that you will cease immediately to hold any and all officer or director
positions you then have with the Company or any subsidiary, absent a contrary
direction from the Board of Directors of the Company (which may include either
a request to continue such service or a direction to cease serving upon notice
without regard to whether your employment has ended). You hereby irrevocably appoint the Company to
be your attorney-in-fact to execute any documents and do anything in your name
to effect your ceasing to serve as a director and officer of the Company and
any subsidiary, should you fail to resign following a request from the Company
to do so. A written notification signed
by a director or duly authorized officer of the Company that any instrument,
document or act falls within the authority conferred by this clause will be
conclusive evidence that it does so.
f. No Mitigation; Offset. In no event shall you be obligated to seek
other employment or take any other action by way of mitigation of the amounts
payable to you under any of the provisions of this Agreement and such amounts
shall not be reduced whether or not you obtain other employment. In the event of your termination of
employment, the Company may offset, to the fullest extent permitted by law, any
amounts due to the Company from you, or advanced or loaned to you by the
Company, from any monies owed to you or your estate by reason of your
termination, except to the extent such withholding or offset is not permitted
under Section 409A without the imposition of additional taxes or penalties
on you.
6. Notice of Termination. You shall not voluntarily terminate your
employment relationship with the Company or any of its affiliates without Good
Reason (including, due to retirement) without first giving the Company at least
one hundred eighty (180) days’ prior written notice of the effective date of
your retirement, resignation or other termination (the “Notice Period”). Such written notice shall be sent by
certified mail to the General Counsel of the Company at the Company’s primary
New York address. The Company retains
the right to waive the notice requirement in whole or in part or to place you
on paid leave for all or part of
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Please indicate your
acceptance of these terms by signing and returning one copy of this Agreement. The second copy is for your records.
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Sincerely,
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COWEN
GROUP, INC.
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By:
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/s/
J. Kevin McCarthy
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Name:
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J.
Kevin McCarthy
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Title:
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General
Counsel
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ACKNOWLEDGED
AND AGREED:
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LexingtonPark
Parent Corp.
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By:
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/s/
Marran Ogilvie
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Name:
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Marran
Ogilvie
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Title:
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Secretary
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AGREED AND ACCEPTED:
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Signed:
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/s/ Christopher A. White
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Christopher A. White
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Date:
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July 10, 2009
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[Signature Page to White Employment Letter]
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