Severance Agreement, Waiver, and Release - Ladenburg Thalmann & Co. Inc. and Victor Rivas
SEVERANCE AGREEMENT, WAIVER, AND RELEASE
This Severance Agreement, Waiver, and Release (the "Agreement"), dated
as of March 9, 2004, is entered into by Victor Rivas ("Rivas") and Ladenburg
Thalmann & Co. Inc., a Delaware corporation ("Ladenburg").
WHEREAS, Rivas has been employed by Ladenburg as its Chairman and Chief
Executive Officer and as the President and Chief Executive Officer of Ladenburg
Thalmann Financial Services Inc., the Company's parent ("LTFS"), pursuant to the
parties' Employment Agreement, dated as of February 8, 2001 (collectively, the
"Employment Agreement");
WHEREAS, Rivas now desires to retire from his positions with LTFS,
Ladenburg and each of LTFS' and Ladenburg's subsidiaries and affiliates
(collectively, the "Company");
WHEREAS, the parties mutually desire to resolve any and all disputes
between them, including all issues pertaining to the amount and calculation of
compensation and benefits due under the Employment Agreement;
NOW, THEREFORE, in consideration of the acts, payments, covenants, and
mutual agreements herein described and agreed to be performed, Rivas and the
Company agree as follows (capitalized terms not defined herein shall have the
meanings ascribed to them in the Employment Agreement):
1. Effective as of the close of business on March 31, 2004, Rivas
shall be deemed to have resigned from all positions with the
Company.
2. In connection with Rivas' resignation, the Company shall pay
Rivas, as severance, a lump sum of $448,907.10 (representing
the remainder of Rivas' salary, Guaranteed Bonus and any
Override under the Employment Agreement and 26 days of unused
vacation) by the close of business on March 31, 2004.
3. The Company shall continue to pay or provide, consistent with
the Company's prior practices applicable to Rivas immediately
prior to the date hereof as if Rivas is an active employee of
the Company, health benefits for Rivas (and his dependents)
and all other benefits described in Section 7(E)(2) of the
Employment Agreement, until the earlier of (i) Rivas' 65th
birthday, and (ii) the date Rivas becomes eligible to be
covered under another substantially equivalent program by
reason of employment or consultancy elsewhere.
4. Rivas shall be entitled to retain his personal computer and
laptop (collectively, the "Computers") used during the term of
the Employment Agreement; provided, however, that the Company
shall be entitled to remove from the hard drive of such
Computers all files related to the business of the Company.
5. Effective March 31, 2004, the Employment Agreement shall be
deemed terminated, except for the provisions of Sections 5(C),
6 and 8 thereof which shall survive termination of the
Employment Agreement. For the avoidance of doubt, the
restrictive covenants provided in Section 6 of the Employment
Agreement (other than Section 6(A)) shall terminate on August
24, 2004.
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6. The terms and provisions of the Indemnification Agreement
between Rivas and LTFS, dated as of May 7, 2001
("Indemnification Agreement"), shall remain in full force and
effect and shall survive termination of the Employment
Agreement.
7. The terms and provisions of the Stock Option Agreement, dated
May 7, 2001, between LTFS and Rivas and the Stock Option
Agreement, dated January 10, 2002, between LTFS and Rivas
shall remain in full force and effect in accordance with the
terms of such option agreements.
8. By the close of business on March 31, 2004, the Company shall
pay Rivas a lump sum equal to earned and unpaid base salary
and any unpaid business expenses as of March 31, 2004. In
addition, the Company shall pay or provide Rivas with any
other amounts or benefits owing to Rivas under any employee
benefit plans of the Company as of March 31, 2004, which shall
be paid or provided in accordance with the terms of the
applicable plan. All payments and benefits described in this
paragraph are referred to herein collectively as the "Accrued
Amounts."
COMPLETE RELEASE
In consideration of the Company's obligations stated above, Rivas
hereby forever releases the Company, its past and present employees, officers,
directors, parent companies, subsidiaries, divisions, successors and assigns
from all claims Rivas may now have based on his employment with the Company or
the separation of that employment through the date of execution of this
Agreement to the maximum extent permitted by law. This includes a release, to
the maximum extent permitted by law, of any rights or claims Rivas may have
under: (1) the Age Discrimination Employment Act, which generally prohibits age
discrimination in employment; Title VII of the Civil Rights Act of 1964, which
generally prohibits discrimination in employment based on race, color, national
origin, religion or sex; the Equal Pay Act, which generally prohibits paying men
and women unequal pay for equal work; the Americans with Disabilities Act, which
generally prohibits discrimination on the basis of disability; the Employee
Retirement Income Security Act of 1974, which governs the provision of pension
and welfare benefits; and all other federal, state or local laws prohibiting
employment discrimination, or (2) Section 806 of 18 U.S.C. 1514A, which
generally provides certain protection for employees of publicly traded companies
and all other federal, state or local laws providing similar protection. This
also includes a release by Rivas of any claims for wrongful discharge, any
compensation claims (other than as provided in this Agreement) or any other
claims under any statute, rule, regulation, or under the common law. This
release covers both claims known and unknown to Rivas based on his employment
with the Company or the separation of that employment through the date of
execution of this Agreement.
Rivas further promises never to file or voluntarily participate or
voluntarily assist in any lawsuit, arbitration or other legal action asserting
any claims that are released under this Agreement, provided, however, that
nothing herein shall restrict Rivas' ability to respond to any inquiry from
applicable regulatory authorities or to provide information pursuant to legal
process or to participate in any lawsuit, arbitration or other legal action
pursuant to legal process. If Rivas breaches this Section and files a lawsuit or
arbitration based on legal claims that he has released and the court or
arbitrator decides in favor of the Company, Rivas will pay for all costs
incurred by the Company, including reasonable attorneys' fees, in defending
against such claim.
In consideration of Rivas providing the Company with the release as
referenced above, the Company for itself, and on behalf of its past, present
and/or future parent companies, and any and all of its or their subsidiaries,
divisions, employee benefit and/or pension plans or funds, successors and
assigns, and all of its or their past and/or present employees, directors,
attorneys and assigns, hereby forever
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releases Rivas, his heirs, successors and assigns, from any and all claims
(whether known or unknown) it may now have based upon his employment with the
Company, the separation or termination of that employment, his holding any
office or position with the Company or any employee benefit plan through the
date of execution of this Agreement to the maximum extent permitted by law.
The Company further promises and covenants not to voluntarily
participate or assist in any lawsuit, arbitration or other legal action
asserting any claims that are released under this Agreement, provided, however,
that nothing herein shall restrict the Company's ability to provide complete
information concerning Rivas' employment when required to do so under applicable
law, rule or regulatory requirements. If the Company breaches this Section and
files a lawsuit or arbitration based upon legal claims that it has released and
the court or arbitrator decides in favor of Rivas, the Company agrees that it
will pay for all costs incurred by Rivas, including reasonable attorneys' fees,
in defending against the Company's claim.
Notwithstanding anything herein to the contrary, nothing contained
herein shall release any claims: (i) Rivas or the Company may have to enforce
their rights under this Agreement or the Indemnification Agreement; or (ii)
Rivas may have to any vested or accrued benefits under any 401(k) plan, under
any stock option agreement between him and the Company, or as a shareholder of
the Company.
RETURN OF MATERIALS
At the Company's request, Rivas will promptly deliver to the Company
all memoranda, notes, records, reports, customer lists, manuals, drawings and
other documents (and all copies thereof) relating to the business of the Company
and all property associated therewith (excluding the Computers), which he may
now possess or have under his control (other than his rolodex or similar address
and telephone directories, any documents provided to Rivas in his capacity as a
participant in any employee benefit plan or program, any agreement between Rivas
and the Company with regard to Rivas' employment with, or termination from, the
Company and any information that is required for the preparation of Rivas'
personal tax return).
FUTURE COOPERATION
Rivas agrees to reasonably cooperate with the Company and its legal
advisors in connection with business matters in which Rivas was involved or any
claims investigations, administrative proceedings or lawsuits which relate to
his employment with the Company and of which Rivas has knowledge. Any request
for cooperation will be upon reasonable advance notice and in writing. All
cooperation from Rivas will be at mutually convenient times and locations and
shall be subject to Rivas' personal and business commitments. The Company shall
pay Rivas' reasonable out of pocket expenses in connection with such
cooperation, and the Company will pay Rivas an hourly rate mutually agreed to
between the parties at the time the Company requests Rivas' reasonable
cooperation (other than for cooperation during court testimony).
RIGHT TO RECOVER PAYMENTS; ARBITRATION
If Rivas materially violates his obligations under this Agreement (as
determined by a court or arbitrator), and fails to cure such violation(s) within
fifteen business days following receipt of notice from the Company specifically
setting forth the obligation(s) violated, the paragraph(s) violated and the
actions and/or inactions constituting the violation(s), the Company's
obligations under this Agreement shall cease (other than any rights to
indemnification or directors' and officers' insurance or the Accrued Amounts).
Any controversy arising out of or relating to this Agreement shall be submitted
to one arbitrator in New
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York City pursuant to the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association. The arbitrator's award shall
be final and binding on all parties, and judgment may be entered on an
arbitrator's award in any court having competent jurisdiction. The losing party
shall pay all costs and expenses, including reasonable legal fees, incurred by
the prevailing party in any such arbitration.
NO MITIGATION/SET-OFF
Rivas is not required to seek other employment or otherwise mitigate the amount
of any payments to be made by the Company pursuant to this Agreement, and there
shall be no offset against any amounts due to Rivas under this Agreement on
account of any remuneration attributable to any subsequent employment that Rivas
may obtain. The Company's obligation to pay or provide Rivas with the amounts
and benefits provided under this Agreement shall not be subject to set-off,
counterclaim, or recoupment of amounts owed by Rivas to the Company except for
any specific amounts that Rivas agrees he owes to the Company.
CONSULTATION WITH ATTORNEY
Rivas hereby confirms that he has been advised to consult with an
attorney concerning this Agreement and acknowledges that he has had ample
opportunity to do so before signing said Agreement.
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and cannot be altered except in
writing signed by both parties. Except as otherwise provided herein, the terms
of this Agreement and the Indemnification Agreement supersede any other oral or
written arrangement between Rivas and the Company with respect to Rivas'
employment or the separation of his employment by the Company (other than any
stock option or other equity agreement). Both parties acknowledge that no
representations were made to induce execution of this Agreement which are not
expressly contained in this Agreement.
SUCCESSORSHIP; CONTROLLING LAW
This Agreement will be binding on the Company and its successors and
assigns and will also be binding on Rivas, his heirs, administrators, executors
and assigns. This Agreement shall be assignable by the Company only to an
acquirer of all or substantially all of the assets of the Company. The Company
shall require any successor to all or substantially all of the business and/or
assets of the Company, whether direct or indirect, by purchase, merger,
consolidation, acquisition of stock, or otherwise, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent as the
Company would be required to perform it if no such succession had taken place.
This Agreement will be construed under the law of the State of New York, without
regard to conflict of law principles.
PERIOD FOR REVIEW AND CONSIDERATION OF AGREEMENT
Rivas understands that he has a period of twenty-one (21) days from the
date of this Agreement to review and consider this Agreement before signing it.
Rivas may use as much of this twenty-one (21) day period as he wishes prior to
signing. If Rivas has not signed and returned this Agreement to Ladenburg
Thalmann & Co. Inc., at the address provided under the "Notice" paragraph below,
by the date which is twenty-one (21) days after the date of this Agreement,
Rivas will not be eligible to receive the payments
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and benefits described in this Agreement (provided, notwithstanding the
foregoing, that the Employment Agreement, the Indemnification Agreement and any
stock option agreements between the Company and Rivas shall continue in
accordance with their terms).
EMPLOYEE'S RIGHTS TO REVOKE AGREEMENT
Rivas may revoke this Agreement within seven (7) days of signing it.
Revocation can be made by delivering a written notice of revocation to Joseph
Giovanniello Jr., at the address noted in the following paragraph. If Rivas
revokes this Agreement, it will not be effective or enforceable and Rivas will
not receive the payments described herein (provided, notwithstanding the
foregoing, that the Employment Agreement, the Indemnification Agreement and any
stock option agreements between the Company and Rivas shall continue in
accordance with their terms).
NOTICE
For purposes of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given when personally delivered or mailed by United States certified
or registered mail, return receipt requested, postage prepaid, addressed to the
Company at Ladenburg Thalmann & Co. Inc., 590 Madison Avenue, 34th Floor, New
York, New York 10022, Legal Department, Attn: Joseph Giovanniello Jr. and to
Rivas at his principal residence, as contained in the most recent records of the
Company, with a copy to Proskauer Rose LLP, Andrea S. Rattner, Esq., at 1585
Broadway, New York, New York 10036 or to such other address as either party may
have furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon receipt.
Notwithstanding the foregoing, any notice sent to Proskauer Rose LLP shall not
constitute valid notice under this Agreement.
MISCELLANEOUS
The Company shall pay Rivas' reasonable attorneys' fees in connection
with the negotiation and drafting of this Agreement.
In the event of Rivas' death, or a judicial determination of his
incompetence, the compensation and benefits due to Rivas under this Agreement
shall be paid to his estate or legal representative.
The Company hereby represents and warrants that the execution, delivery
and performance of this Agreement has been duly authorized by the Company, and
all actions required to execute and perform this Agreement have been duly
authorized by the Company.
This Agreement may be signed in counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
LADENBURG THALMANN & CO. INC.
By: /s/ Robert Gorczakowski
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Name: Robert Gorczakowski
Title: President
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AGREED AND ACCEPTED:
LADENBURG THALMANN FINANCIAL SERVICES INC.
By: /s/ Salvatore Giardina
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Name: Salvatore Giardina
Title: Vice President and Chief Financial Officer
/s/ Victor M. Rivas
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Victor M. Rivas
Date: March 9, 2004
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