Exhibit 10.19
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as
of May 7, 2008 (the “Effective Date” ), is
by and between COHEN BROTHERS, LLC ( “Company” )
and JOSEPH W. POOLER, JR. ( “Executive”
).
WHEREAS, Executive is currently
employed by Company, but without an employment
agreement;
WHEREAS, Company wishes to continue
the employment of Executive pursuant to the terms of this
Agreement, and Executive wishes to continue Executive’s
employment on the terms set forth below; and
NOW, THEREFORE, the parties hereto,
intending to be legally bound, agree as follows:
1. Term . The initial term of
this Agreement shall commence on the Effective Date, and shall end,
unless sooner terminated as provided in herein, on
December 31, 2008. The initial term shall be renewed
automatically for additional consecutive periods of one year from
the date corresponding to the end of such initial term (and each
renewal term), unless sooner terminated as provided in
Section 4 or Section 5. The period during which Executive
is employed hereunder being hereinafter referred to as the
“Term.”
2. Duties . During the Term,
Executive shall be employed by Company and its subsidiaries as
Chief Financial Officer, reporting directly to the Chief Executive
Officer, and, as such, Executive shall faithfully perform for
Company the duties of said offices and shall perform such other
comparable duties of an executive, managerial or administrative
nature as shall be specified and designated from time to time by
the Board of Managers of Company (the “Board”).
Executive shall devote substantially all of his business time and
effort to the performance of his duties hereunder.
3. Compensation .
3.1 Salary . Company shall
pay Executive during the Term a salary at a minimum rate of
$250,000 per annum (the “Annual Salary”), in
accordance with the customary payroll practices of Company
applicable to senior executives. The Board periodically shall
review Executive’s Annual Salary and may provide for such
increases therein as it may in its discretion deem appropriate;
provided that Executive’s Annual Salary shall be
increased by no less than 10% per annum as of January 1,
2009, and January 1, 2010. Any such increased salary shall
constitute the “Annual Salary” as of the time of the
increase.
3.2 Bonus . During the Term,
in addition to the Annual Salary, for each calendar year of Company
ending during the Term, Executive shall have the opportunity to
receive, no later than March 15 of the following year, an
annual bonus in an amount and on such terms to be determined by the
Board, but in any event not less than $300,000 for the entire
calendar year (pro rated if Executive is employed by Company for
less than the entire calendar year of Company by multiplying such
bonus by a fraction (x) the numerator of which is the number
of days in the calendar year preceding the termination and
(y) the denominator of which is 360), provided, if
Executive’s employment terminates for Cause, Executive will
not have earned, nor be eligible to receive, any bonus not yet paid
as of the date of the notice of termination. Nothing contained in
the foregoing shall limit Executive’s eligibility to receive
any other bonus under any other bonus plan, stock option or
equity—based plan, or other policy or program of Company or
any affiliate of Company.
3.3 Equity Compensation Plan
. Executive shall be entitled to otherwise participate in the
Company’s Amended 2005 Key Employee Unit Option Plan (the
“Plan”), and other Company equity
plans and may without limitation be granted
Options (as such term is defined in the Plan) to purchase units of
membership interests in the Company, at the then fair market value
strike price determined by the Committee (as defined in the Plan)
under the Plan in the discretion of the Committee, as defined in
the Plan.
3.4 Benefits-In General .
Executive shall be permitted during the Term to participate in any
group life, hospitalization or disability insurance plans, health
programs, retirement plans, 401k plans, fringe benefit programs and
other benefits that may be available to other senior executives of
Company generally, in each case to the extent that Executive is
eligible under the terms of such plans or programs.
3.5 Vacation . Executive
shall be entitled to vacation of no less than 20 business days per
year, to be credited in accordance with Company’s
policies.
3.6 Expenses .
(a) Company shall pay or reimburse
Executive for all ordinary and reasonable out- of-pocket expenses
actually incurred (and, in the case of reimbursement, paid) by
Executive during the Term in the performance of Executive’s
services under this Agreement, in accordance with Company’s
policies regarding such reimbursements. The amount of expenses
eligible for reimbursement during any calendar year shall not
affect the expenses eligible for reimbursement in any other
calendar year, and the reimbursement of an eligible expense shall
be made as soon as practicable after the Executive submits the
request for such reimbursement, but not later than December 31
following the calendar year in which the expense was
incurred.
(b) In addition, Company shall
reimburse Executive, or pay directly, the reasonable costs and
expenses of Executive in connection with negotiating and drafting
of this Agreement, but in no event shall the Company reimburse or
pay an amount greater than $2,500.
4. Termination upon Death or
Disability .
4.1 If Executive dies during the
Term, the Term shall terminate as of the date of death, and the
obligations of Company to or with respect to Executive shall
terminate in their entirety upon such date except as otherwise
provided under this Section 4.
4.2 If Executive is unable to
perform substantially and continuously the duties assigned to him
due to a disability as defined for purposes of Company’s
long-term disability plan then in effect, or, if no such plan is in
effect, by virtue of ill health or other disability for more than
180 consecutive or nonconsecutive days out of any consecutive
12-month period, Company shall have the right, to the extent
permitted by law, to terminate the employment of Executive upon
notice in writing to Executive.
4.3 Upon termination of employment
due to death or disability, (i) Executive (or
Executive’s estate or beneficiaries in the case of the death
of Executive) shall be entitled to receive any Annual Salary and
other benefits earned and accrued under this Agreement prior to the
date of termination (and reimbursement under this Agreement for
expenses incurred prior to the date of termination);
(ii) without duplication of any amounts due under clause
(i) , Executive (or Executive’s estate or beneficiaries
in the case of the death of Executive) shall receive an amount
equal to the annual bonus that, in the absence of such termination,
would have been payable for the calendar year in which termination
occurs, payable at such time as would have applied in the absence
of such termination, with such amount to be multiplied by a
fraction (x) the numerator of which is the number of days in
the calendar year preceding the termination and (y) the
denominator of which is 360; (iii) all outstanding unvested
Options pursuant to the Plan held by Executive shall fully vest and
become immediately exercisable, as applicable, and subject to
the
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terms of such Plan; and (iv) Executive (or
Executive’s estate or beneficiaries in the case of the death
of Executive) shall have no further rights to any other
compensation or benefits hereunder, or any other rights hereunder
(but, for the avoidance of doubt, shall receive such disability and
death benefits as may be provided under Company’s plans and
arrangements in accordance with their terms).
5. Certain Terminations of
Employment; Certain Benefits .
5.1 Termination by Company for
Cause; Termination by Executive without Good Reason
.
(a) For purposes of this Agreement,
“Cause” shall mean Executive’s:
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(i)
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indictment of
or formal admission to a felony, or any crime of moral turpitude,
dishonesty;
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(ii)
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indictment of
or formal admission to fraud, misappropriation or
embezzlement;
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(iii)
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continued and
repeated gross insubordination after written notice thereof by the
CEO;
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(iv)
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continued and
repeated failure to materially adhere to the directions of the CEO,
to adhere to Company’s written policies and practices or to
devote a substantial majority of his business time and efforts to
Company and its subsidiaries and/or affiliates; or
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(v)
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material breach
of any of the provisions of Section 6;
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provided that Company shall not be permitted to terminate
Executive for Cause except on written notice given to Executive at
any time not more than 30 days following the occurrence of any of
the events described in clause (iii) through (v) above
(or, if later, Company’s knowledge thereof). No termination
for Cause under clause (i) through (v) shall be effective
unless the Board makes a determination that Cause exists after
notice to Executive, and Executive has been provided with an
opportunity (with counsel of his choice) to contest the
determination at a meeting of the Board.
(b) Company may terminate this
Agreement and Executive’s employment hereunder for Cause, and
Executive may terminate his employment on at least 30 days’
written notice given to Company. If Company terminates Executive
for Cause, or Executive terminates his employment and the
termination by Executive is not for Good Reason in accordance with
Section 5.2, (i) Executive shall receive Annual Salary
and other benefits earned and accrued under this Agreement prior to
the termination of employment (and reimbursement under this
Agreement for expenses incurred prior to the termination of
employment); and (ii) Executive shall have no further rights
to any other compensation or benefits under this Agreement on or
after the termination of employment. For avoidance of doubt,
pursuant to Section 3.2, if terminated for Cause, Executive
shall not have earned any bonus not yet paid as of the date of the
notice of termination.
5.2 Termination by Company
without Cause; Termination by Executive for Good Reason
.
(a) For purposes of this Agreement,
“Good Reason” shall mean, unless otherwise
consented to by Executive, the occurrence of any one or more of the
following:
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(i)
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The assignment of Executive to
duties materially inconsistent with the
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Executive’s authorities,
duties, responsibilities, and status (including titles and
reporting requirements) as an officer of Company, or a material
reduction or alteration in the nature or status of the
Executive’s authorities, duties, or responsibilities from
those in effect as of the Effective Date (or as subsequently
increased), other than an insubstantial and inadvertent act that is
remedied by Company promptly after receipt of notice thereof given
by the Executive;
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(ii)
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Company’s
requiring Executive to be based at a location in excess of 35 miles
from the location of Executive’s principal job location or
office as of the Effective Date, except for required travel on
Company’s business to an extent substantially consistent with
the Executive’s present business obligations;
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(iii)
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Company’s
material and willful breach of this Agreement;
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(iv)
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a reduction in
Annual Salary of Executive or failure to pay the minimum bonus
required by Section 3.2;
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(v)
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The failure of
Company to maintain Executive’s relative level of coverage
under Company’s employee benefit or retirement plans,
policies, practices, or arrangements in which the Executive
participates as of the Effective Date, both in terms of the amount
of benefits provided and the relative level of Executive’s
participation. For this purpose, Company may eliminate and/or
modify existing programs and coverage levels; provided,
however, that Executive’s level of coverage under all
such programs must be at least as great as is such coverage
provided to executives who have the same or lesser levels of
reporting responsibilities within Company’s
organization;
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(vi)
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The failure of
Company to obtain a satisfactory agreement from any successor to
Company to assume and agree to perform Company’s obligations
under this Agreement; and
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Executive’s right to terminate
employment for Good Reason shall not be affected by the
Executive’s incapacity due to physical or mental illness. The
Executive’s continued employment shall not constitute a
consent to, or a waiver of rights with respect to, any circumstance
constituting Good Reason herein.
Notwithstanding the foregoing,
(i) Good Reason shall not be deemed to exist unless written
notice of termination on account thereof (specifying a termination
date no later than 30 days from the date of such notice) is given
to the Company and to the CEO no later than 30 days after the time
at which the event or condition purportedly giving rise to Good
Reason first occurs o
