TRANSITION/SEPARATION
AGREEMENT
TRANSITION/SEPARATION AGREEMENT
(the “Agreement”) dated as of December 20, 2005 by
and between
BKF Capital Group, Inc. (“BKF”) and Glenn A. Aigen
(“EXECUTIVE”).
WHEREAS,
Executive has heretofore been employed by BKF and each of its
subsidiaries and affiliates as Chief Financial Officer;
WHEREAS,
BKF and Executive wish to document their agreement regarding
Executive’s transition to resignation as Chief Financial
Officer of BKF and its subsidiaries and affiliates and as an
employee and officer of BKF and its subsidiaries and affiliates as
set forth more fully below.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, BKF and Executive agree as
follows:
1.
Transition/Position/Assistance
(a) Executive
shall resign as Chief Financial Officer of BKF and of each of its
subsidiaries and affiliates in which he is currently serving as
Chief Financial Officer and from all other officer positions with
BKF effective as of the close of business on January 15, 2006
and shall resign from all other positions as an employee and
officer of BKF, its subsidiaries and its affiliates as of
March 15, 2006 or, if earlier, the date that BKF’s
Annual Report for the period ending December 31, 2005 on Form
10-K (the “Form 10-K”) is filed with the
Securities and Exchange Commission (the relevant date being
referred to herein as the “Termination Date”). Except
as provided in the preceding sentence, Executive shall continue to
maintain all other officer positions that he currently holds in
subsidiaries and affiliates of BKF through and including the
Termination Date unless BKF requests in writing that Executive
resign from such other officer positions as of an earlier
date.
(b) During
the period January 1, 2006 through the Termination Date (the
“Transition Period”), Executive shall remain an
employee of such BKF subsidiaries by which he is currently
employed. Executive shall make himself available for three weekdays
per week (which will be Tuesday through Thursday each week unless
BKF and Executive otherwise agree from time to time) during
BKF’s normal business hours as currently in effect) during
the Transition Period to perform services as an employee at
BKF’s offices in the operations and accounting area,
including any transition matters pertaining to his resignation as
Chief Financial Officer. Executive will, however, be permitted
during the Transition Period to seek other employment opportunities
commencing after the Transition Period. In addition, Executive may
arrange for job interviews to be conducted during office hours, so
long as such interviews do not unreasonably interfere with any work
that he may be assigned during the Transition Period. During the
Transition Period, Executive shall report directly to the Chief
Executive Officer of BKF.
(c) BKF
acknowledges and agrees that Executive shall have no obligation to
execute the Form 10-K, but he shall cooperate with and assist BKF,
its then Chief Financial Officer (if one has then been appointed)
and BKF’s accountants in preparing such Form 10-K.
(d) For
the period immediately following the Termination Date through
June 30, 2006 (the “Assistance Period”), Executive
shall make himself reasonably available to the Chief Financial
Officer of BKF (or, if no one is then serving as Chief Financial
Officer of BKF, the Chief Executive Officer of BKF) to assist in
any transition matters not otherwise completed by the Termination
Date, provided that Executive shall not be required to provide such
assistance during the Assistance Period if it shall unreasonably
interfere with Executive’s then employment or other business
enterprises or any short-term vacation or other short-term absences
that Executive may schedule during the Assistance
Period.
(e) For
providing such assistance as may be requested by BKF during the
Assistance Period, Executive shall be paid $90,000, payable by BKF
in a first instalment of $60,000 on March 15, 2006 and a final
instalment of $30,000 on September 16, 2006. It is understood
that Executive shall not be employed by BKF during the Assistance
Period and shall be personally responsible for payment of all taxes
on the $90,000 of aggregate payments. These amounts will be paid to
Executive without regard to the level of assistance actually
required of Executive by BKF during the Assistance
Period.
(f) Executive
shall not be required during the Assistance Period to render any
assistance relating to material non-public matters which would
impair his ability following the Termination Date to acquire or
sell BKF securities (to the extent not then already
impaired).
(g) Executive
shall not be eligible to participate in any employee benefit plan
of BKF or its affiliates during the Assistance Period except as
provided in Section 2(b) hereof.
(a) Until
March 31, 2006, BKF shall continue to pay Executive his base
salary at the current rate of $253,234 per annum, subject to
applicable withholding taxes. Executive shall receive two special
payments of $99,470.75 each. The first special payment shall be
paid on February 15, 2006 and the second special payment shall
be paid on or following the Termination Date (but no later than
March 15, 2006) provided that Executive has not voluntarily
terminated his employment with the BKF subsidiaries by which he is
employed prior to the relevant payment dates described in the
preceding sentence (for the avoidance of doubt, provided he has not
voluntarily terminated employment prior to the Termination Date in
the case of the second payment which is due on or following the
Termination Date). Executive shall continue to participate in all
employee benefit plans, programs and arrangements of BKF; however,
Executive shall not be eligible for or entitled to receive any
annual bonus provided in respect of the fiscal year ending
December 31, 2006.
(b) Executive
(and his eligible dependents) shall be eligible for COBRA-mandated
health insurance continuation benefits for the 18-month period from
and after April 1, 2006. For the period from April 1,
2006 through June 30, 2006, BKF shall only charge Executive
the monthly rate (if any) charged by BKF to BKF’s similarly
situated active employees for group health insurance coverage. For
the remainder of the 18-month COBRA period following June 30,
2006, Executive may be charged the rate permitted by
COBRA.
(c) Notwithstanding
any BKF policy to the contrary, on the Termination Date, Executive
shall be paid all accrued but unused vacation pay for calendar year
2005, which, for the avoidance of doubt, is $16,557.58 as of the
date hereof, reduced by any vacation days taken in the
remainder of
calendar year 2005. Executive shall not accrue any additional
vacation in 2006 during the Transition Period.
(d) Executive
shall continue to vest in all of his BKF-provided benefits which
are subject to a vesting schedule through and including the
Termination Date.
(e) Executive
acknowledges that his 19,555 vested outstanding options as of the
Termination Date, by their respective terms, will remain
exercisable for 30 days following the Termination Date. In the
event that Executive is unable to exercise his vested options
and/or sell the shares received upon exercise during such 30-day
period due to securities law restrictions, BKF and Executive shall
negotiate in good faith to extend the post-employment option
exercisability period or to provide an immediate cash payment in
lieu thereof (based upon a trailing 30-day average closing price
per share) to the extent any such approach does not result in
adverse tax consequences to Executive or securities law
consequences to BKF or Executive. BKF acknowledges that Executive
shall vest on March 12, 2006 in 2,038 restricted stock units
granted by BKF to him on March 12, 2003 in accordance with the
terms of such units, provided that Executive remains in employment
with BKF through the Termination Date. On the Termination Date,
Executive shall vest in 1,384 shares of restricted stock granted by
BKF to him on March 10, 2004 and 934 shares of restricted
stock granted by BKF to him on March 10, 2005, provided that
Executive remains in employment with BKF through the Termination
Date.
(f) BKF
agrees that any delivery of equity awards to Executive which
requires tax withholding shall be satisfied by withholding of
shares otherwise deliverable to Executive to the extent permitted
under the terms of the BKF equity plan under which such award was
granted.
BKF
shall indemnify and hold harmless Executive to the fullest extent
permitted under applicable law, including following termination of
Executive’s employment.
Concurrent
with the execution of this Agreement, Executive and BKF shall enter
into mutual general releases, in the form of Exhibits A and B
hereto, respectively, releasing the other party of all claims
relating to matters occurring up to and including the signing of
the Agreement, other than claims to enforce the terms of the
Agreement and Executive’s rights to benefits, if any, under
BKF’s employee benefit plans (in accordance with their terms)
(and a bring down general release as of the Termination Date for
claims relating to matters occurring up to and including the
Termination Date); provided that BKF’s release of
Executive shall not apply to any act or acts of Executive which
constituted (i) fraud resulting in a required restatement of
BKF’s financial statements or other fraud having a material
adverse effect of BKF, (ii) a criminal act under applicable
law or regulation involving the assets or business of BKF or
(iii) a willful breach of duty of loyalty owed to BKF or any
of it affiliates (or their respective shareholders), other than
(x) any such breach which any member of the Board knows about
(or should have known about) as of the date of the signing of the
applicable release or (y) the matters set forth in this
Agreement.
5.
Nonsolicitation/noncompetition
(a) BKF
acknowledges that Executive may be solicited for employment at any
time, and hired after the Termination Date by any party, including,
but not limited to, by Jo
|
