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.
3.
Compensation
and Benefits .
a.
Base
Salary . You will be paid a
base salary at the rate of not less than Four Hundred Thousand
Dollars ($400,000) per annum (“Base Salary”), payable
in accordance with the Company’s prevailing payroll practices
but no less frequently than monthly. The term Base Salary as
utilized in this Agreement shall refer to Base Salary as in effect
from time to time, including any increases. Except as
otherwise provided in this Agreement, any obligation to pay your
Base Salary will cease upon the termination of your
employment.
b.
Annual
Bonus . For each calendar
year during which you are employed by the Company, you shall be
entitled to earn an annual performance-based bonus pursuant to a
Company bonus plan as determined by the Chief Executive Officer of
the BD Subsidiary in consultation with the Chief Executive Officer
of the Company (the “Internal Committee”), and, if
necessary, approved by the Compensation Committee of the
Company’s Board of Directors (the “Compensation
Committee”). The total annual bonus that may be earned by you
for any calendar year is referred to herein as the “Annual
Bonus.” Your Annual Bonus shall be determined
consistently with and on the same basis as, and shall have terms
and conditions no less favorable than those that apply to, other
similarly situated executives of the Company. Your Annual
Bonuses may, at the discretion of the Internal Committee and/or the
Compensation Committee, and consistent with similarly situated
executives of the Company, include a certain percentage of
restricted securities, other stock or security-based awards or
deferred cash or other deferred compensation.
c.
Benefits
. During
the Term, you will be entitled to employee benefits, fringe
benefits and perquisites consistent with, and on the same basis as,
similarly situated executives of the Company, subject to the terms
of the Transaction Agreement, including, without limitation, the
provisions contained in Section 7.6 thereof.
d.
Expense
Reimbursement . During the Term, the
Company shall reimburse you for all reasonable expenses incurred by
you in the performance of your duties in accordance with the
Company’s policies applicable to similarly situated
executives of the Company. All reimbursements provided under
this Agreement shall be made or provided in accordance with the
requirements of Section 409A (“Section 409A”)
of the Internal Revenue Code of 1986, as amended (the
“Code”).
e.
Vacation
. During
the Term, you shall be eligible for paid-time off in accordance
with the BD Subsidiary’s vacation policy.
4.
Restricted
Stock Award .
a.
Award . The Company will
grant you, effective as of the Effective Date, 115,533 restricted
shares of Company common stock (“Common Stock”) (the
“Restricted Stock Award”) on the terms and conditions
set forth in this paragraph 4; provided, however, if as of the
Effective Date, the Company’s shareholders have not approved
an amendment or a successor plan to the Cowen Group, Inc. 2007
Equity and Incentive Plan and the Cowen Group, Inc.
2006
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Equity and Incentive Plan
(together, the “Cowen Plan”) and there are not
sufficient shares under the Cowen Plan to grant you the entire
amount of shares of Common Stock subject to the Restricted Stock
Award, you will be granted a “Pro-Rata Restricted Stock
Award” on the Effective Date. For purposes of this
Agreement, a “Pro-Rata Restricted Stock Award” means
that number of restricted shares of Common Stock equal to the
product of (i) (x) the total number of shares of Common
Stock subject to your Restricted Stock Award, divided by
(y) the total number of shares of Common Stock subject to
similar restricted stock awards or restricted stock unit awards to
be granted on the Effective Date and (ii) the total number of
shares of Common Stock available for grant under the Cowen Plan on
the Effective Date.
b.
Failure to
Grant the Entire Restricted Stock Award on the Effective
Date . In the event that the
Company has not granted you the entire Restricted Stock Award on
the Effective Date, the Company shall, by July 1, 2010, grant
you any theretofore ungranted portion of the Restricted Stock
Award; provided, however, if there are not sufficient shares
available to grant you such ungranted portion of the Restricted
Stock Award by July 1, 2010, the Company shall instead, in no
event later than July 1, 2010, grant you the right to receive
an amount in cash equal to One Million Dollars ($1,000,000), less
the Effective Date value of the Pro-Rata Restricted Stock Award and
any other portion of the Restricted Stock Award, if any, previously
granted to you (such cash award, the “Cash Makeup
Award”).
c.
Vesting
. The
Restricted Stock Award (or the Cash Makeup Award, as applicable)
shall vest and become free of restrictions in two equal
installments on each of the second and third anniversaries of the
Effective Date, provided that you are employed by the Company or a
subsidiary thereof and have not yet given notice to terminate your
employment without Good Reason (as set forth in paragraph 6 below)
as of such date. Notwithstanding the foregoing, any
theretofore unvested portion of the Restricted Stock Award (or the
Cash Makeup Award, as applicable) shall immediately vest in full
and become free of restriction (and, in the case of the Cash Makeup
Award, be paid in cash within thirty (30) days of the date of
termination), in the event that, (i) your employment is
terminated (x) by the Company other than for Cause (as defined
below), (y) due to your death or Disability (as defined below)
or (z) by you for Good Reason (as defined below) or
(ii) a Change in Control of the Company (as defined in the
Cowen Group, Inc. 2007 Equity and Incentive Plan, as may be
revised to reflect the structure of the Company following the
Transaction) occurs after the Effective Date (each of the events in
clauses (i) and (ii), an “Accelerated Vesting
Event”). In the event that an Accelerated Vesting Event
occurs prior to the Company having granted you any portion of the
Restricted Stock Award or the Cash Makeup Award, as applicable, you
shall vest in full in, and be paid in cash within thirty (30) days
of the date of termination (or, in the event of a Change in
Control, on the date of such Change in Control), an amount in cash
equal to the theretofore ungranted portion of the Restricted Stock
Award.
d.
Registration
. As of the
Effective Date, the Company shall, at its expense, reserve for
issuance a number of shares of Common Stock at least equal to the
number of shares of Common Stock that will be subject to the
Restricted Stock Award and shall, as soon as reasonably possible
after the Effective Date, file a registration statement on
Form S-8 (or any successor form, or if Form S-8 is not
available, other appropriate forms) with respect to the
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shares of Common Stock
subject to the Restricted Stock Award. The Company shall
thereafter maintain the effectiveness of such registration
statement or registration statements (and maintain the current
status of the prospectus or prospectuses contained therein) for so
long as you hold the Restricted Stock Award (or any portion
thereof) or any of the shares of Common Stock that were previously
subject to the Restricted Stock Award, or until such earlier date
as such Restricted Stock Award and shares of Common Stock, as
applicable, may otherwise be freely sold under applicable
law.
e.
Other Terms of
Restricted Stock Award; Form of Agreement
. The terms
of your Restricted Stock Award will be evidenced in an award
agreement by and between you and the Company, which will be
substantially in the same form as (and shall in no event contain
terms less favorable to you than those contained in) the
“Form of 2007 Equity Award Agreement for Executive
Officers” filed as Exhibit 10.25 to the Cowen
Group, Inc. Form 10-K for the year ended
December 31, 2008, provided that such award agreement will be
modified to incorporate the terms of this Agreement (including,
without limitation, the defined terms contained herein and the
restrictive covenants set forth herein) which shall, in any event,
control.
5.
Termination of
Employment .
a.
By the Company
Other than for Death, Disability or for Cause; By You for Good
Reason . If your employment is
terminated (i) by the Company for any reason other than due to
(x) your death or Disability (as defined below) or
(y) for Cause (as defined below) or (ii) by you upon
resignation for Good Reason (as defined below), you shall be
entitled to receive (A) that portion of your Base Salary
earned, but unpaid as of the date of termination, paid within
thirty (30) days of the date of your termination, (B) any
Annual Bonus earned by you for a prior completed calendar year to
the extent not theretofore paid and not theretofore deferred (with
any such deferred amounts to be paid in accordance with and at the
times set forth in the applicable deferral arrangement) paid at the
same time as all other Company annual bonuses are paid for the year
in which your employment terminates, but in no event later than
March 15 of the calendar year following the year in which your
employment terminates (the amounts described in clauses
(A) and (B), and the times at which such amounts are paid,
shall be hereinafter referred to as the “Accrued
Obligations”), and (C) in addition to any rights you
have with respect to the Restricted Stock Award under paragraph 4
of this Agreement, (1) any outstanding equity awards shall
become fully vested and exercisable and any restrictions thereon
shall lapse effective as of your date of termination (provided that
any delays in payment or settlement set forth in such grant or
award agreements that are required under Section 409A shall
remain effective) and (2) any stock options outstanding as of
your date of termination shall remain exercisable for the remainder
of the respective terms of such stock options (taking into account
any provisions of the equity incentive plan or option agreements
that cause them to expire or be replaced in connection with changes
in control or similar events) (clauses (1) and
(2) collectively referred to herein as the “Equity
Benefits”).
b.
Death or
Disability . Your employment shall
terminate on your death. If you become
“Disabled,” the Company may terminate your employment
by giving you thirty (30) days’ written notice of its
intention to do so unless you return to full-time performance of
your
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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
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