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Exhibit 10.25
AMENDED
AND RESTATED
EMPLOYMENT
AGREEMENT
This
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the
“Agreement”) is dated as a October 31, 2000, and
is entered into between Asset Alliance Corporation, a Delaware
corporation (the “Company”), and Bruce H. Lipnick
(the “Employee”).
WHEREAS,
the Employee and the Company are parties to an Employment
Agreement, dated as of March 4, 1998 (the “Prior
Agreement”); and
WHEREAS,
the Employee and the Company have agreed to amend the Prior
Agreement as set forth herein.
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 as follows:
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(a)
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The
Employee shall continue to serve on the Board of Directors of the
Company (the “Board”) and as President and 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 of Directors of the Company, to perform such managerial
duties consistent with the usual duties of an officer of his
status. Such employment shall be on the teams and conditions set
forth herein. The Employee hereby accepts such employment and
agrees to devote substantially all of his business time to the
faithful and diligent performance of the duties provided
herein.
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(b)
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The
term of the Employee’s employment by the Company shall
commence as of January 1, 2000 (the “Effective Date”)
and continue for a period of five years from such date (the
“Initial Employment Period”), which Initial Employment
Period shall be automatically extended for an additional one year
period on each anniversary of this agreement (such that the
remaining term as of each anniversary shall be five years) unless
and until the Employee’s employment is terminated pursuant to
the terms hereof.
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(a)
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Salary .
The Company shall compensate the Employee with a base salary of
$600,000
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)
in the sole discretion of the Board.
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(b)
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Incentive Bonus .
The Company shall pay Employee each year during the Term as
additional compensation amounts determined by reference to the
Company’s Audited Cash Earnings Available for Common
Shareholders per Fully Diluted Share, par value $0.01 per share, of
the Company (the “Common Stock”), as determined by the
Board and the Company’s independent accountants in accordance
with Exhibit A.
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(c)
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Discretionary Bonus .
Employee shall be eligible to receive a discretionary annual bonus
in the sole discretion of the Board.
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(d)
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Benefits .
The Employee shall be entitled to participate in a Company
sponsored 401(k) plan, and any Company sponsored group health,
medical, hospitalization, disability, accident and life insurance
plans, all on such terms as the Bored shall determine in
establishing such benefit programs as promptly as is reasonably
practicable after the date hereof, and such other employee benefits
as the Board may hereafter make available to the executives of the
Company. The Company agrees to pay to the Employee up to $15,000
per year for the Employee to use to pay the premiums on (i)
personal life insurance policy for Employee providing death
benefits for Employee’s designated beneficiaries and (ii) a
personal disability policy for the benefit of
Employee.
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(e)
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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 him
in furtherance of his duties hereunder, including, without
limitation, expenses for Company leased automobile and related
expenses consistent with the Company’s automobile policies as
adopted by the Board, and for traveling, 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.
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(f)
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Vacations .
During each year of employment, the Employee shall be entitled to
paid vacations for an aggregate of the greater of (A) four weeks,
or (B) such period as may be provided from time to time in the
Company’s vacation policy.
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(a)
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This
agreement shall be terminated upon the happening of any of the
following events: (i) in the case of a termination by the Company
for Cause (as defined in section 3(e) hereof), on the date set
forth in the notice of termination; (ii) in the case of other
terminations, whenever the Company or the Employee shall give at
least six months’ advance written notice of termination, in
which event the Agreement shall be terminated on the date set forth
in such notice; (iii) upon the death of the Employee; or (iv) upon
the Permanent Disability (as such term is defined in Section 3(f)
hereof) of the Employee.
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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 (as defined in Section 3(e)
hereof) or is terminated by the Employee for Good Reason (as
defined in Section 3(g) hereof), 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 continue to receive the full amount of his then current base
salary plus all other benefits to which the Employee is entitled to
pursuant to Section 2(e) 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 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
years pursuant to Section 2(b) of the Agreement, provided, however,
that if such termination is the result of a Change of Control, then
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 days after the date the
Employee’s employment is terminated.
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(c)
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In
the event the Employee’s employment with the Company is
terminated upon the Employee’s death or Permanent Disability
(as such term is defined in Section 3(f) hereof), the Employee or
his legal representative shall continue to receive his then current
base salary for a two 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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(d)
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In
the event of a termination of Employee by the Company for Cause (as
defined in Section 3(e) hereof), the Company shall not be obligated
to pay Employee any compensation or benefits after the date of
termination and Employee must exercise any vested stock options
held by Employee within 30 days of such date.
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(e)
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For
purposes hereof, “Cause” shall mean any of the
following: (i) the continued, intentional failure, neglect or
refusal of the Employee to substantially fulfill his material
duties as an employee after ninety (90) days’ notice of
breach is received from the Company; (ii) a material breach of any
fiduciary duty or other material dishonesty by the Employee with
respect to the Company or any affiliate thereof resulting in actual
material harm to the Company or such affiliate; or (iii) the
conviction of the Employee for a felony.
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(f)
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For
purposes hereof, “Permanent Disability” shall mean the
total incapacitation of the Employee so as the preclude performance
of the duties of his employment hereunder for an aggregate period
of six months in any twelve month period.
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(g)
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For
purposes hereof, “Good Reason” shall exist if the
Company shall: (i) be in breach of or default under any material
provision of this Agreement and not cure such breach within 30 days
or receiving notice of such breach from the Employee; (ii) change
the principal work location of the Employee away from Manhattan,
New York, without the consent of the Employee, which consent may be
withheld by the Employee for any reason; (iii) materially change
the duties of the Employee without the Employee’s consent,
which consent may be withheld by the Employee for any reason; (iv)
reduce the Employee’s base salary or benefits without the
Employee’s consent, which consent may be withheld by the
Employee for any reason; (v) become insolvent or bankrupt or file a
voluntary or involuntary petition in bankruptcy or make an
assignment for the benefit of creditors or consent to the
appointment of a trustee or receiver; or (vi) undergo a Change of
Control (as defined in Section 3(h) hereof).
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(h)
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For
purposes hereof, a “Change of Control” of the Company
shall have occurred if (a) any “person” (as such term
is used in Sections 13(d) and 14(d)(2) of the U.S. Securities
Exchange Act of 1934), other than the Company or any subsidiary of
the Company or any employee benefit plan sponsored by the Company
or any subsidiary of the Company, shall become the beneficial owner
(within the meaning of Rule 13d-3 under the U.S. Securities
Exchange Act of 1934), directly or indirectly, of securities of the
Company representing in excess of 50% of the combined voting power
of the Company’s then outstanding securities, or if (b)
during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the
Company cease for any reason to constitute a majority of the
directors thereof, unless each new director was elected by, or on
the recommendation of, a majority of the directors then still in
office who were directors at the beginning of such
period.
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(i)
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In
the event Employee shall become subject to the excise tax imposed
by Section 4999 of the Code and any related penalties or interest
(the “Excise Tax”) by reason of any compensation
payable to him hereunder, as determined by the Company’s
independent accountants on the request of Employee, the Company
agrees to make an additional “gross-up” payment to the
Employee in an amount such that, after payment by Employee of all
taxes (including any Excise Tax, interest and penalties) imposed
upon the gross-up payment, Employee shall retain an amount equal to
the Excise Tax.
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(j)
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Employee
shall have no obligation to seek to mitigate any amounts payable
under this Section 3 and any amounts he receives from other
employment shall not be offset against or otherwise reduce the
amount due Employee hereunder.
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4. |
Noncompetition; Nonintervention.
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(a)
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While
in the employ of the Company, the Employee agrees to devote
substantially all of his time, attention and energies to the
performance of the business of the Company and the Employee shall
not, directly or indirectly, alone or as a member of any
partnership or other business organization, or as a partner,
officer, director, employee, stockholder, consultant, or agent of
any other corporation, partnership, or other business organization,
be actively engaged in or concerned with any other duties or
pursuits which interfere with the performance of his duties as an
employee of the Company, or which, even if noninterfering, may be
contrary to the best interests of the Company (provided, however,
that the Employee may continue his business activities involving
the providing of investment management and advisory services for a
cash alternative fund and involving market neutral strategies and
convertible arbitrage programs or, with the Board’s prior
consent, any other strategy which is not in competition with the
Company or its affiliates at the time such strategy commences (the
“Existing Activities”)).
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(b)
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Until
two years after the termination or cessation of the
Employee’s employment with the Company for any reason
(including termination of employment by the Company without Cause),
the Employee shall not, directly or indirectly, alone or as a
member of any partnership or other business organization, or as a
partner, officer, director, employee, stockholder, consultant or
agent of any corporation, partnership or business organization,
engage in the business of acquiring equity interests of, or
otherwise investing in, investment management firms other than (i)
continuation of the Existing Activities, and (ii) after termination
of the Employee’s employment with the Company for any reason,
investing in or acting as a partner, officer, director, employee,
stockholder, consultant or agent of any investment management firm
in which the Employee is a principal executive officer involved in
management of the business on a day-to-day basis. For a period of
two years after the termination or cessation of the
Employee’s employment with the Company for any reason
(including termination of the employment by the Company without
Cause) the Employee shall not, directly or indirectly, alone or as
a member of any partnership or other business organization, or as a
partner, officer, director, employee, stockholder, consultant or
agent of any corporation, partnership or business organization (A)
request or cause any customer of the Company or its affiliates to
cancel or terminate any business relationship with the Company or
such affiliate, or (B) solicit or otherwise cause any employee of
the Company or its affiliates to terminate such employee’s
relationship with the Company or such affiliate.
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5. |
Confidential Information.
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(a)
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The
Employee will not at any time, whether during or after the
termination or cessation of his employment, reveal to any person,
association or company any of the trade secrets or confidential
information concerning the organization, business or finances of
the Company so far as they have come or may come to his knowledge,
except as may be required in the ordinary course of performing his
duties as an employee of the Company or except as may be in the
public domain through no fault of the Employee, and the Employee
shall keep secret all matters entrusted to him and shall not use or
attempt to use any such information in any manner which may injure
or cause loss or may be calculated to injure or cause loss whether
directly or indirectly to the Company.
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(b)
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The
Employee agrees that during his employment he shall not make, use
or permit to be used any notes, memoranda, drawings,
specifications, programs, data or other materials of any nature
relating to any matter within the scope of the business of the
Company or concerning any of its dealings or affairs otherwise than
for the benefit of the Company. The Employee shall not, after the
termination or cessation of his employment, use or permit to be
used any such notes, memoranda, drawings, specifications, programs,
data or other materials, it being agreed that any of the foregoing
shall be and remain the sole and exclusive property of the Company
and that immediately upon the termination or cessation of his
employment the Employee shall deliver all of the foregoing, and all
copies thereof, to the Company, at its main office.
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This
agreement shall inure to the benefit of and shall be binding
upon the parties hereto and the
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