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Exhibit
10.1
September 18,
2007
[Employee]
LaBranche & Co Inc.
One Exchange Plaza
New York, NY 10006
RE: Change in Control
Agreement
Dear
:
LaBranche & Co Inc.
(the “ Company ”) has determined that
appropriate steps should be taken to reinforce and encourage your
continued employment and dedication, in light of the prospect of a
sale of the Company or other change in control transaction. In
consideration for you remaining in its employ, the Company and you
agree as follows:
1. TERM
This Agreement shall be
effective on the date hereof (the “ Effective Date
”) and shall continue in effect until the end of the twelve
month period following a Change in Control (as defined below);
provided , however , that this Agreement shall
immediately terminate upon your termination of employment for any
reason other than by the Company without Cause (as defined below)
or by you for Good Reason (as defined below).
2. TERMINATION OF YOUR EMPLOYMENT IN
CONNECTION WITH A CHANGE IN CONTROL.
In the event of a Qualifying
Termination (as defined below), then:
(a) the Company shall pay to
you a lump-sum cash amount equal to one times the sum of
(i) your annual base salary in effect immediately prior to the
Change in Control or your annual base salary in effect immediately
prior to the date of your termination of employment, whichever is
greater and (ii) the annual cash bonus paid to you for the
calendar year immediately preceding the year in which your
employment with the Company is terminated or the aggregate cash
bonus paid to you during the twelve month period immediately
preceding the date your employment with the Company is terminated,
whichever is greater (and you shall not be entitled to any other
severance benefits which may otherwise be payable to you upon a
termination of employment as set forth in any other agreement
between you and the Firm (as defined below), if any) (the “
Change in Control Payment ”), payable within 10
business days after the date of such Qualifying Termination;
and
(b) you and your family shall
receive continuation of group health plan benefits (including all
life insurance, health, accident and liability plans and programs)
to which you were entitled to participate in immediately prior to a
Qualifying Termination to the extent authorized by and consistent
with COBRA until the earlier of (i) the twelve-month period
following the date of a Qualifying Termination and (ii) your
employment with a new employer, with the cost of the regular
premium for such benefits shared in the same relative proportion by
the Company and you as in effect on the date of
termination.
3. SECTION 409A.
To the extent applicable,
this Agreement shall be interpreted in accordance with
Section 409A of the Internal Revenue Code of 1986, as amended
and Department of Treasury regulations and other interpretive
guidance issued thereunder, including without limitation any such
regulations or other guidance that may be issued after the
Effective Date (“ 409A Guidance ”).
Notwithstanding anything in this Agreement to the contrary, if at
the time of your termination of employment with the Company, you
are a “specified employee” within the meaning of
Section 409A and the deferral of the commencement of any
payments or benefits otherwise payable hereunder as a result of
such termination of employment is necessary in order to prevent any
accelerated or additional tax under 409A Guidance, then the portion
of the Change in Control Payment that is nonqualified deferred
compensation under 409A Guidance shall, to the extent necessary, be
paid out in a lump sum on the first day following the six month
anniversary of the date of your Qualifying Termination. The Company
shall consult with you in good faith regarding the implementation
of this Section 3; provided , that none of the Firm or
any of its directors, employees or representatives shall have any
liability to you with respect thereto.
4. DEFINITIONS.
For purposes of this
Agreement, the following terms shall have the following
meanings:
(a) “ Cause
” shall mean: (1) your material breach of, or material
failure or refusal to perform your duties to the Firm which is not
cured by you within thirty (30) days of your receipt of
written notice thereof; (2) your violation of any material
Firm policy (including, but not limited to, the Firm’s Code
of Conduct, Corporate Governance Guidelines, Compliance Manual and
Written Supervisory Procedures) as in effect from time to time
which is materially damaging to the business or reputation of any
member of the Firm individually or the Firm as a whole and which is
not cured (if such violation is in fact curable) by you within
thirty (30) days of your receipt of written notice thereof;
(3) your conviction of (or plea of nolo contendere with
respect to) a felony or other crime involving moral turpitude;
(4) your performance of any act or your material failure to
act which constitutes, in the reasonable good faith determination
of the Firm, fraud or a breach of a fiduciary trust, including
without limitation misappropriation of funds or misrepresentation
of the Firm’s operating results or financial condition to any
member of the Firm individually or the Firm as a whole or any
executive officer; (5) your gross negligence, willful
misconduct, or reckless or intentional engagement in conduct or
activities materially damaging to the business or reputation of any
member of the Firm individually or the Firm as a whole, as
determined in reasonable good faith by the Firm; or (6) your
becoming subject to any “statutory disqualification”
within the meaning of Section 3(a)(39) of the Securities
Exchange Act of 1934, as amended.
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(b) “ Change in
Control ” shall mean:
(i) any person (other than
George M.L. LaBranche, IV, James G. Gallagher, Alfred O. Hayward
and William J. Burke, III, the Subsidiaries, any trustee or other
fiduciary holding securities under any employee benefit plan of the
Subsidiaries, any company owned, directly or indirectly, by the
stockholders of the Subsidiaries in substantially the same
proportions as their ownership of the common stock of the entities
comprising the Subsidiaries or any other person, group or entity
controlled or managed by any of the foregoing) acquires beneficial
ownership, directly or indirectly, of securities of either the
Company or the Subsidiaries, representing all or a majority of the
combined voting power of the Company’s or the
Subsidiaries’ then outstanding securities; or
(ii) the sale of all or
substantially all of the consolidated assets of the Company or the
Subsidiaries (other than such a sale or disposition immediately
after which such assets will be owned directly or indirectly by the
stockholders of the Company in substantially the same proportions
as their ownership of the common stock of the Company immediately
prior to such sale or disposition).
(c) “ Disability
” shall mean your absence from employment for at least one
hundred twenty (120) days in any twelve (12) month period
as a result of your incapacity due to mental or physical illness or
incapacity, as reasonably determined by the Firm.
(d) “ Firm
” shall mean the Company and collectively, the
Company’s and LSHI’s (as defined below) other
subsidiaries or affiliates (including, but not limited to, LSP (as
defined below) and LSPS (as defined below)).
(e) “ Good
Reason ” shall mean a material breach by the Firm of the
terms of your employment (including without limitation a material
diminution of your duties, responsibilities or authority, any
material reduction of your compensation (including base salary and
target bonus), or the relocation of the Firm’s or the
Subsidiaries’ offices to a location not within New York City,
Westchester County, New York, Fairfield County, Connecticut or a
location more than fifty (50) miles from your current
residence as of the date hereof without your written consent) which
is not corrected by the Firm within thirty (30) days of your
written notice to the Firm.
(f) “ Qualifying
Termination ” shall mean the occurrence of a Change in
Control and, within 12 months thereafter, your employment is
terminated by (i) the Company for any reason other than for
death, Disability or Cause or (ii) you for Good
Reason.
(g) “
Subsidiaries ” shall mean collectively, LaBranche
Structured Holdings, Inc. (“ LSHI ”), LaBranche
Structured Products, LLC (“ LSP ”), LaBranche
Structured Products Specialists LLC (“ LSPS ”)
and the other subsidiaries of LSHI.
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5. MISCELLANEOUS.
(a) Governing Law .
The terms of this Agreement and all rights and obligations of the
parties thereto, including its enforcement, shall be interpreted
and governed by the laws of the State of New York without regard to
the principles of conflicts of laws of the State of New York or
those of any other jurisdiction which could cause the application
of the laws of any jurisdiction other than the State of New
York.
(b) Release; Survival
. Any and all payments to which you may become entitled under
Section 2 are conditioned upon and subject to your execution
of, and not having revoked within any applicable revocation period,
a general release of the Firm and its directors and officers, and
in substantially the form attached on Annex A hereto.
Notwithstanding anything to the contrary contained elsewhere in
this Agreement, the expiration or termination of this Agreement
shall not relieve any party of any obligations that may have
accrued hereunder prior to such expiration or termination. The
provisions of Sections 2, 3 and this Section 5 shall survive
the expiration or termination of this Agreement.
(c) Legal Fees;
Reimbursement of Certain Expenses . The Company shall promptly
reimburse you for reasonable legal fees and reasonable expenses
incurred by you in connection with seeking to obtain or enforce in
good faith any right or benefit provided to you by the Company
pursuant to or in accordance with this Agreement up to a maximum of
$50,000; provided , however , that, notwithstanding
the
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