|
Exhibit 10.23
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 Stephen G. Bondi (the "
Employee ").
WHEREAS,
Asset Alliance Corporation, a Delaware Corporation ("AAC") and
the Employee are party to that certain Employment Agreement
dated as of July 10, 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:
| |
(a)
|
The
Employee shall serve as Executive
Vice President and Chief Financial 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 of Directors of the Company (the "
Board ")
and shall perform such managerial duties consistent with the usual
duties of an officer of such status. The Employee shall report to
and carry out the lawful directions of the Company's President.
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.
|
| |
(b)
|
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.
|
| |
(a)
|
Salary. The
Company shall compensate the Employee with a base salary of
$400,000
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.
|
| |
(b)
|
Guaranteed Annual Bonus. The
Company shall pay the Employee for each calendar year during the
Term a guaranteed annual bonus of $150,000, 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.
|
| |
(c)
|
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 3% 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.
|
| |
(d)
|
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.
|
| |
(e)
|
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
600,000 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 third anniversary of the Effective
Date.
|
| |
(f)
|
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, and such other employee benefits as the Board may
hereafter make available to the executives of the Company, provided
that in no event shall such 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.
|
| |
(g)
|
Expenses. The
Company shall pay or reimburse the Employee for all expenses
normally reimbursed by the Company and reasonably incurred by him
in furtherance of his 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, travel
expenses, meals, hotel accommodations and the like upon submission
by him 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.
|
| |
(h)
|
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
three (3) 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.
|
| |
(a)
|
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 reason (with thirty (30) days
notice), and shall terminate upon death.
|
| |
(b)
|
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 his then current base salary, plus
annual or pro-rata guaranteed annual and incentive bonus equal to
the average of the two previous years' bonuses, such bonuses to be
paid no later than the
end of the calendar year in which the
Employee’s termination occurs
or, if later, by the 15th day of the third month following the
Employee's termination ,
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); 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).
|
| |
(c)
|
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.
|
| |
(d)
|
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 twelve (12) month period
and all stock options held by Employee shall, to the extent vested,
continue to be exercisable during such period in accordance with
their terms.
|
| |
(e)
|
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 stock options will remain
exercisable for a period of ninety (90) days following termination
(but not beyond their expiration date).
|
| |
(f)
|
For
purposes hereof, "
Cause "
shall mean any of the following: (i) dishonesty of the Employee
detrimental to the best interests of the Company and its
subsidiaries; (ii) a breach of any fiduciary duty or other act
of dishonesty by the Employee with respect to the Company or any
subsidiary thereof; (iii) the conviction of the Employee of a crime
which constitutes a felony or any other crime involving moral
turpitude, fraud or misrepresentation; (iv) material breach by the
Employee of his obligations under this Agreement which breach, if
susceptible to cure, has continued for a period of thirty (30) days
following written notice to the Employee specifying the nature of
such breach; or (v) failure, neglect or refusal of the Employee to
follow the reasonable instructions of the Board or its designee,
the President of the Company or the Executive Vice President of the
Company, which are consistent with his position.
|
| |
(g)
|
For
purposes hereof, "
Permanent Disability "
shall mean the total incapacitation of the Employee so as to
preclude performance of the duties of the Employee's employment
hereunder for an aggregate period of three (3) months in any twelve
(12) month period.
|
| |
(h)
|
For
purposes hereof, "
Good Reason "
means one or more of the following: (i) a material diminution in
the Employee's compensation; (ii) a material diminution in the
Employee's authority, duties, or responsibilities; (iii) a material
adverse change in reporting responsibilities; (iv) a material
change in the geographic location at which the Employee must
perform the services (including, without limitation, a relocation
outside Manhattan, New York that results in a material adverse
change in commute); or (v) any other action or inaction that
constitutes a material breach of the terms of this Agreement
(expressly including, without limitation, a reduction in benefits
in violation of Sect
|
|
