Exhibit 10.21
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "
Agreement ")
is dated as of [________], 2008 and is entered into between
Tailwind Financial Inc., a Delaware corporation (the "
Company "),
and Bruce H. Lipnick (the "
Employee ").
WHEREAS,
Asset Alliance Corporation, a Delaware Corporation ("
AAC ")
and the Employee are party to that certain Employment Agreement
dated as of October, 2000, as amended from time to time (the
"
Prior Agreement ");
WHEREAS,
the Company is party to that certain Agreement and Plan of
Merger (the "
Merger Agreement "),
dated January 8, 2008, by and among the Company, Buyer Acquisition
Corporation, a Delaware corporation and a wholly owned subsidiary
of the Company and AAC; and
WHEREAS,
as a condition to the Company consummating the transactions
contemplated by the Merger Agreement, the Employee and AAC
have agreed to terminate the Prior Agreement and the Employee
has agreed to enter into this Agreement, all effective upon
and subject to the consummation of the transactions
contemplated by the Agreement (the date of such consummation,
the "
Effective Date ").
NOW,
THEREFORE, in consideration of the mutual covenants herein
contained and for good and valuable consideration, receipt of
which is hereby acknowledged, the parties, intending to be
legally bound, agree, effective as of the Effective Date, as
follows:
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(a)
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The
Employee shall serve on the Board of Directors of the Company
(the "
Board ")
and as Chief Executive Officer of the Company and in such other
executive managerial position or positions with the Company or its
subsidiaries or affiliates as shall hereafter be designated by the
Board, to perform such managerial duties consistent with the usual
duties of an officer of such status. Such employment shall be on
the terms and conditions set forth herein. The Employee agrees to
devote substantially all of the Employee's business time to the
faithful and diligent performance of the duties provided
herein.
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(b)
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Unless
earlier terminated in accordance with Section 3 hereof, the term of
the Employee's employment by the Company (the "
Term ")
shall commence as of the Effective Date and continue for a period
of three (3) years from such date (the "
Initial Employment Period "),
which Initial Employment Period shall be automatically extended for
an additional one (1) year period on each anniversary of the
Effective Date (such that the remaining
term
as of each anniversary shall be three (3) years) unless either the
Employee or the Company gives sixty (60) days notice that the Term
shall not be extended, subject to the conditions of termination
pursuant to Section 3 hereof.
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(a)
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Salary. The
Company shall compensate the Employee with a base salary of
$750,000
per annum, commencing
on the Effective Date and payable in accordance with the normal
payroll practices of the Company. The base salary shall be reviewed
annually and may be increased (but shall not be decreased) by the
Board in its sole discretion.
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(b)
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Guaranteed Annual Bonus. The
Company shall pay the Employee for each calendar year during the
Term a guaranteed annual bonus of $300,000, payable in accordance
with normal payroll practices of the Company but in no event later
than the 15th day of the third month following the
year for
which such bonus is paid.
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(c)
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Incentive Bonus. The
Company shall pay Employee for each calendar year during the Term
an incentive bonus determined by reference to the Company's
consolidated Earnings Before Interest, Taxes, Depreciation and
Amortization ("
EBITDA ")
before executive incentive and other executive discretionary
compensation, in each case including the results of AAC and its
subsidiaries from not later than January 1, 2008, but that for the
purposes of calculating EBITDA, earnings should exclude gain/loss
associated with certain items such as impairment or valuation
allowance for long-lived assets and gain/loss on separation from
affiliates (as so adjusted, "
Adjusted EBITDA ").
The incentive bonus (the "
Incentive Bonus ")
that the Employee shall receive shall be 4.56% of Adjusted EBITDA,
provided that no Incentive Bonus shall be payable for a particular
year unless the Company's Adjusted EBITDA is greater than twelve
million dollars ($12,000,000). Seventy-five percent (75%) of the
Incentive Bonus shall be paid no later than the 30th day after the
year for which such Incentive Bonus was earned, and the remainder
of the Incentive Bonus shall be paid no later than the 15th day of
the third month following the end of the year for which such
Incentive Bonus was earned.
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(d)
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Discretionary Bonus. Employee
may be eligible to receive a discretionary annual bonus in such
amount and based on special achievement, in each case as determined
by the Board in its sole discretion.
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(e)
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Option Plan. Employee
shall be eligible to participate in the Company's employee option
pool (the "
Employee Option Pool ")
and on the Effective Date shall be granted an option to purchase
1,050,000 shares of the Company's common stock with an exercise
price equal to the closing price of the Company's common stock on
the Effective Date.
Unless
otherwise provided in applicable agreement, payment of the exercise
price and any other payment required may be made in on a
net-settlement basis with the Company withholding the amount of
common stock sufficient to cover the exercise price and tax
withholding obligation. Such options will vest and become
exercisable on the Effective Date.
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(f)
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Benefits. The
Employee shall be entitled to participate in any Company sponsored
401(k) plan and any other retirement plan, deferred compensation
plan and any other executive compensation plan, and any Company
sponsored group health, medical, hospitalization, disability,
accident and life insurance plans, all on such terms as the Board
shall determine in establishing such benefit programs as promptly
as is reasonably practicable after the Effective Date, and such
other employee benefits as the Board may hereafter make available
to the executives of the Company, provided that in no event shall
benefits be less favorable in the aggregate than those in effect
immediately before the Effective Date unless otherwise agreed to by
the Employee in writing. The Company agrees to pay to the Employee
an amount equal to the premiums on (i) the personal life insurance
policy for the Employee providing death benefits for the Employee's
designated beneficiaries and (ii) the personal disability policy
for the benefit of the Employee, each as in effect at the time of
termination.
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(g)
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Expenses. The
Company shall pay or reimburse the Employee for all expenses
normally reimbursed by the Company and reasonably incurred by the
Employee in furtherance of the Employee's duties hereunder,
including, without limitation, expenses for a Company leased
automobile, gas, insurance, parking, and related expenses
consistent with the Company's automobile policies as adopted by the
Board, and for traveling, meals, hotel accommodations , car service
and driver, and the like upon submission by the Employee of
vouchers or an itemized list thereof prepared in compliance with
such rules relating thereto as the Board may, from time to time,
adopt and as may be required in order to permit such payments as
proper deductions to the Company under the Internal Revenue Code of
1986, as amended (the "
Code ")
and the rules and regulations adopted pursuant thereto now or
hereafter in effect;
provided ,
however ,
that to the extent required to comply with the provisions of
Section 409A of the Code, no reimbursement of expenses incurred by
the Employee during any taxable year shall be made after the last
day of the following taxable year, and the right to reimbursement
shall not be subject to liquidation or exchange for another
benefit.
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(h)
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Vacations. During
each year of employment, the Employee shall be entitled to paid
vacations and personal days for the greater of (A) a minimum of
four (4) weeks, or (B) such period as may be provided from time to
time in the
Company's
vacation policy; provided, however, that any unused vacation at the
end of the year may be carried over to following years so long as
no more than eight (8) weeks of unused vacation may be carried over
to a following year.
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(i)
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Continuation of Life Insurance Policy. The
Company shall continue that certain life insurance policy on the
Employee's life for $19 million purchased by the Company (the
"
Life Insurance Policy ").
The Company shall continue to be the beneficiary of the Life
Insurance Policy, and shall pay the premiums due on such policy
during the Term. Any dividends on the Life Insurance Policy prior
to its maturity or the death of the Employee shall inure to the
benefit of the Company.
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In
the event that the Employee's death occurs during the Term,
subject to applicable law, including but not limited to the
requirements of any stock exchange on which the Company is
listed, the Company shall use the proceeds of the Life
Insurance Policy as follows: (1) to purchase, and the estate
of the Employee shall be obligated to sell, shares of capital
stock of the Company then held by the Employee's estate (the
"
Shares "),
at a price per Share equal to the average of the closing prices for
the Company's common stock for the 20 trading days ending
immediately prior to the date of the Employee's death for an amount
of Shares equal to the lesser of (x) all of such Shares and (y) the
quotient obtained by dividing $15 million by such average price;
and (2) if less than $15 million is used by the Company to
repurchase Shares, the excess of $15 million in proceeds over the
amount used to repurchase Shares shall be paid to the Employee's
estate
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Within
sixty (60) days after termination of this Agreement, the Bruce
H. Lipnick Irrevocable Inter Vivos Life Insurance Trust U/A/D
August 13, 1999, or its designee, may, at its option, purchase
the Life Insurance Policy for a price not to exceed the cash
surrender value and unearned premiums as of the date of the
termination of this Agreement, less any indebtedness
thereon;
provided ,
however ,
that if the Life Insurance Policy is a term policy, the price shall
be the unearned portion of the premium paid. The Company shall not
cause or permit the Life Insurance Policy to lapse except upon
termination of this Agreement and following sixty (60) days' prior
written notice to the Employee.
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(a)
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This
Agreement may be terminated at any time by the Company with or
without Cause, upon Permanent Disability, by the Employee for Good
Reason or by the Employee for any other reason (with thirty (30)
days notice), and shall terminate upon death.
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(b)
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In
the event that the Employee's employment with the Company is
terminated by the Company without Cause or is terminated by the
Employee for Good Reason, then during the period from the effective
date of termination through the date on which the then current term
of this Agreement was to expire, the Employee shall, in accordance
with the Company’s normal payroll practices, continue to
receive the full amount of the Employee's then current base salary
plus all other benefits to which the Employee is entitled to
receive pursuant to Section 2 hereof and otherwise (including,
without limitation, the continued vesting and exercisability during
such period of all stock options held by the Employee) and in a
single lump sum within five (5) days after the date of the
Employee's employment is terminated three (3) times the average of
the Incentive Bonus paid or payable to the Employee in the last two
(2) years; provided, however, that if such termination is the
result of a Change of Control, then all unvested options or
restricted shares shall vest immediately and (as applicable) become
exercisable upon the date the Employee's employment is terminated
and remain exercisable for a period of not less than ninety (90)
days following termination (but not beyond their expiration date),
and the full amount which would be payable to the Employee under
this subparagraph (b) during the foregoing period through the end
of the then-current term of this Agreement will be paid to the
Employee in a single lump sum within five (5) days after the date
the Employee's employment is terminated.
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(c)
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For
purposes of this Agreement, termination of employment means the
Employee has incurred a "separation from service" within the
meaning of Section 409A of the Code and applicable guidance issued
thereunder.
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(d)
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In
the event the Employee's employment with the Company is terminated
upon the Employee's death or Permanent Disability, the Employee or
the Employee's legal representative shall continue to receive the
Employee's then current base salary for a two (2) year period and
all stock options held by Employee shall, to the extent vested,
continue to be exercisable during such period.
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(e)
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In
the event the Employee's employment with the Company is terminated
by the Company for Cause, the Company shall not be obligated to pay
the Employee any compensation or benefits after the date of
termination, any unvested stock options held by the Employee will
expire immediately, and any vested s
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