Exhibit 10.5


 


APPENDIX A


 


June 3, 2009


 


Morgan Stark

At the address last on the records of the Company


 


Dear Morgan:


 


This letter (the “Agreement”)
is an appendix to your employment letter agreement, dated as of June 3,
2009, with Park Exchange LLC (the “Exchange Sub”), LexingtonPark Parent
Corp. (the “Company”), and Ramius LLC (“Ramius”) (the “Executive Letter
Agreement”).  Defined terms otherwise
used in this Agreement shall have the meaning ascribed to them in the Executive
Letter Agreement.  This Agreement shall
constitute your agreement relating to your post-retirement employment with the
Company and the HF Subsidiary, effective as of June 3, 2009, as a Senior
Advisor.  As set forth more fully below,
except as otherwise provided in this Agreement, this Agreement shall supersede
any and all prior employment agreements and letters relating to your employment
with the Company, including the Executive Letter Agreement.


 


1.             Position.


 


(a)           Commencing
upon the date on which your service as a Senior Advisor first commences due to
your cessation of full-time employment as contemplated by and in accordance
with Section 4(b) of the Executive Letter Agreement (the “Effective
Date”), and continuing for thirty-six (36) months from the Effective Date,
except as otherwise specified herein (the “Term”), the Exchange Sub shall
employ you as a Senior Advisor.


 


(b)           During
your employment as a Senior Advisor you may not be employed by, or otherwise
affiliated in any way with, any “Competitor” of the Company, as defined below.  You may be affiliated with a business that is
not a Competitor; provided, however, that such affiliation does not interfere
with your ability to perform your duties and responsibilities set forth in this
Agreement.


 


(c)           During
your employment you shall be subject to, and must comply with, all Company
policies and procedures applicable to the HF Subsidiary, as now existing or as
may be modified or supplemented by the Company in its sole discretion.


 

















 


2.             Duties
and Responsibilities.  Your duties and responsibilities as a Senior
Advisor shall be defined by mutual agreement between you and the Board of
Directors of the Company; provided, however, that your time commitment to the
Company and the HF Subsidiary as a Senior Advisor shall not exceed twenty percent
(20%) of the average level of bona fide services performed by you on behalf of
the Company and the HF Subsidiary during the thirty-six (36) month period
immediately preceding the commencement of your service as a Senior Advisor.


 


3.             Use
of Facilities.  During your employment as a Senior Advisor to
the Company and the HF Subsidiary, the Company shall provide you with
reasonable use of, and access to, office space on the Company’s premises if
such space is then available.  You shall
also have reasonable use of the Company’s other services and facilities as
necessary to carry out your duties as a Senior Advisor, the costs of which will
be borne the Company.


 


4.             Compensation.


 


(a)           Base
Salary.  You will be entitled to receive a base salary
at the rate of Seven Hundred Fifty Thousand Dollars ($750,000) per annum, less
applicable tax and payroll deductions (the “Base Salary”), payable in
accordance with the Company’s prevailing payroll practices.  Any obligation to pay your Base Salary will
commence upon the Effective Date of this Agreement and shall cease upon the
termination of your employment as a Senior Advisor. You will not be entitled to
any other compensation, including any bonus.


 


(b)           Change
in Control.  Provided there is a Change in Control of the
Company during the Term of this Agreement (as defined in paragraph 1(a) above)
and, provided further, that as of the date of such a Change in Control, you are
employed as a Senior Advisor, and have not given notice of your voluntary
termination or resignation, you shall be entitled to receive in one lump sum,
the unpaid balance of your Base Salary for the remainder of the Term, less
applicable tax and payroll deductions (the “Retirement Change in Control
Payment”).  The Retirement Change in
Control Payment shall be payable by the Company to you within ten (10) calendar
days of any Change in Control.


 


(c)           Equity
Vesting.  Provided that you are not employed by, or
otherwise affiliated with, any Competitor (as defined below) of the Company
during the Term of this Agreement or thereafter, any Company securities, stock,
deferred cash or deferred compensation you received from the Company (and any
awards received from Ramius pursuant to the Ramius LLC Employee Ownership
Program) prior to the Effective Date of this Agreement, shall continue to vest
in accordance with, and subject to, the terms and conditions set forth in the
applicable award agreements granting you such equity or deferred compensation.


 


5.             Benefits.  During the Term,
you, your spouse and your eligible dependents will be eligible to receive
health and medical benefits, to the extent such eligibility is permissible
under the health and medical benefit plans in place at the Company at that
time.  All such health and medical
benefits shall be provided in accordance with the terms and eligibility
requirements of 


 


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their
respective plans, but in no event on terms that are less favorable than those
then existing and applied to similarly situated executives of the Company.


 


6.             Expenses.  All documented and
verified, reasonable and necessary expenses which you incur in connection with
the performance of your duties hereunder shall be reimbursed in accordance with
the Company’s general policies.  You must
submit proper documentation for each such expense within sixty (60) days after
the later of (i) your incurrence of such expense or (ii) your receipt
of the invoice for such expense.


 


7.             Termination
of Employment.


 


(a)           Death
or disability.  Your employment as a Senior Advisor shall
terminate on your death. If you become disabled, the Company may terminate your
employment by giving you thirty (30) days written notice of its intention to
terminate this Agreement. In such event, your employment shall be terminated
unless you return to full-time performance of your duties within such thirty
(30) day period. “Disabled”, as used herein, shall mean “Disability,” as such
term is defined in Section 409A of the Internal Revenue Code of 1986, as
amended (“Section 409A”).  Disputes on
the issues of disability shall be determined by an impartial, reputable
physician agreed upon by the parties or their respective doctors. Upon
termination under this paragraph 7(a), you or your estate shall be entitled to
receive (i) the Equity Benefits and (ii) any benefits or compensation
that have been earned, but unpaid, as of the date of termination.


 


(b)           Cause.  Nothing herein
shall prevent the Company from terminating your employment for cause.  For purposes of this Agreement, “Cause” shall
mean the occurrence of an event set forth in clauses (i) through (iv) below
as determined by the Company in good faith:


 


(i)            your conviction of any crime (whether or not related to your
duties at the Company), with the exception of minor traffic offenses;


 


(ii)           fraud, dishonesty, gross negligence or substantial
misconduct in the performance of your duties and responsibilities;


 


(iii)          your material violation of or failure to comply with the
Company’s internal policies or the rules and regulations of any regulatory
or self-regulatory organization with jurisdiction over the Company;


 


(iv)          your failure to perform the material duties of your
position.


 


In the case of clauses (ii) through
(iv) above, to the extent your alleged breach is reasonably subject to
cure, your employment shall not be terminated for Cause unless and until you
have been given written notice and shall have failed to correct any such
violation, failure or refusal to follow instructions within ten (10) business
days of such notice.


 


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Upon termination under
this paragraph 7(b), you shall be entitled to receive only that Base Salary
earned but unpaid as of the date of termination.


 


(c)           Offset.  In the event of
termination, the Company may offset, to the fullest extent permitted by law,
any amounts due to the Company from you, or advanced or loaned to you by the
Company, from any monies owed to you or your estate by reason of your
termination, except to the extent such withholding or offset is not permitted
under Section 409A without the imposition of additional taxes or penalties
on you.


 


8.             Notice
of Resignation or Termination of Employment.  During the Term of this Agreement, you will
not voluntarily resign or otherwise terminate your employment as a Senior
Advisor without first giving the Company at least ninety (90) days prior
written notice of the effective day of your resignation or other termination.
Such written notice shall be sent, by certified mail, to the Company, Attn: General Counsel of the Company at the Company’s primary New
York address.  The Company retains the right to waive the
notice requirement in whole or in part. The Company may, but shall not be
obligated to, provide you with work at any time after such notice is given
pursuant to this paragraph and the Company may, in its discretion, in respect
of all or part of an unexpired period of notice:  (i) require you to comply with such
conditions as it may specify in relation to transitioning your duties and
responsibilities, (ii) assign you other duties or (iii) withdraw any
powers vested in, or duties assigned to, you. 
Upon termination under this paragraph 8, you shall be entitled to
receive only that Base Salary earned but unpaid as of the date of termination.


 


9.             Non-Solicitation.


 


(a)           While
employed by the Company as a Senior Advisor and for a period of two (2) years
following the expiration of the Term of your employment or the effective date
of your termination, you will not, without the Company’s prior written consent,
directly or indirectly, (a) solicit or induce, or cause others to solicit
or induce, any employees of the Company to leave the Company, or in any way
modify their relationship with the Company, (b) hire or cause others to
hire any employees of the Company, (c) encourage or assist in the hiring
process of any employees of the Company or in the modification of any such
employee’s relationship with the Company, or cause others to participate,
encourage or assist in the hiring process of any employees of the Company.


 


(b)           In
addition, while employed by the Company as a Senior Advisor and for a period of
two (2) years following the expiration of the Term of your employment or
the effective date of your termination, you agree you will not, directly or
indirectly, solicit the trade or patronage of any clients or customers or any
prospective clients or customers of the Company with respect to any investment
banking or alternative investment products, services, trade secrets or other
investment banking or alternative investment product matters in which the
Company is active, which includes, but is not limited to, investment banking,
hedge fund and private equity investments, sales and trading and/or research;
provided however, that you shall not be subject to 


 


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the
restrictions set forth in this paragraph 9(b) in the limited event you are
not employed by, or otherwise affiliated with, any Competitor of the Company as
defined below in paragraph 10.  This
paragraph 9 shall survive expiration of the Term and shall continue in full
force and effect during your employment with the Company and thereafter as
applicable.


 


10.           Non-Competition.  During your
employment as a Senior Advisor and for a period of one (1) year following
the expiration of the Term of your employment or the effective date of your
termination, you may not, anywhere in the United States or elsewhere in the
world, directly or indirectly, be employed by, assist or otherwise be
affiliated with any Competitor of the Company. 
For purposes of this Agreement, “Competitor” of the Company shall mean
any public or private investment banking or commercial banking firm, as well as
any firm engaging in alternative investment strategies, including hedge fund
and private equity fund investments, as well as any of such firms’ subsidiaries
or controlled affiliates.  This paragraph
10 shall survive expiration of the Term and shall continue in full force and
effect during your employment with the Company and thereafter as applicable.


 


11.           Non-Disclosure
of Confidential Information.  You will not at any time, whether during your
employment or following the termination or expiration of your employment, for
any reason whatsoever, and forever hereafter, directly or indirectly disclose
or furnish to any firm, corporation or person, except as otherwise required by
law, any confidential or proprietary information of the Company with respect to
any respect of its operations or affairs. “Confidential or proprietary
information” shall mean information generally unknown to the public to which
you gain access by reason of your employment by the Company and includes, but
is not limited to, information relating to all present or potential customers,
business and marketing plans, sales, trading and financial data and strategies,
salaries and employment benefits, and operational costs.  This paragraph 11 shall survive expiration of
the Term and shall continue in full force and effect during your employment
with the Company and thereafter as applicable.


 


12.           Return
of Company Property and Company Work Product.  All records, files, memoranda, reports,
customer information, client lists, documents, equipment, and the like,
relating to the business of the Company which you prepared or came into contact
with while you were an employee of the Company, shall remain the sole property
of the Company. You agree that on request by the Company, and in any event upon
the termination of your employment, you shall turn over to the Company all
documents, papers, or other material in your possession and under your control
which may contain or be derived from confidential information, together with
all documents, notes, or other work product which is connected with or derived
from your services to the Company whether or not such material is in your
possession. You agree you shall have no proprietary interest in any work
product developed or used by you and arising out of employment by the
Company.  This paragraph 12 shall survive
expiration of the Term and shall continue in full force and effect during your
employment with the Company and thereafter as applicable.


 


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13.           Remedies
and Rights to Injunctive Relief.  In the event of a breach by you of your
obligation under this Agreement, the Company, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. You
acknowledge that the Company shall suffer irreparable harm in the event of a
breach or prospective breach of paragraphs 9, 10, 11 and/or 12 hereof, and
monetary damages would not be adequate compensation. Accordingly, the Company
shall be entitled to seek injunctive relief in any federal or state court of
competent jurisdiction located in New York County. You waive the defense that a
remedy at law would be adequate. This paragraph 13 shall survive expiration of
the Term and shall continue in full force and effect during your employment
with the Company and thereafter as applicable.


 


14.           Arbitration;
Legal Fees.


 


(a)           Any
and all disputes arising out of or relating to your employment or the
termination of your employment with the Company, including any statutory claims
based on alleged discrimination, will be submitted to and resolved exclusively
by the American Arbitration Association (“AAA”) pursuant to the AAA’s
Employment Arbitration Rules and Mediation Procedures.  The arbitration shall be held in the City of
New York.  In agreeing to arbitrate your
claims, you recognize that you are waiving your right to a trial in court and
by a jury.  The arbitration award shall
be binding upon both parties, and judgment upon the award may be entered in a
court of competent jurisdiction.  The
cost of such proceedings, including all filing and session fees, and all
attorneys’ fees, shall be assessed in accordance with the AAA Rules or as
otherwise determined by the arbitrator.


 


(b)           The
arbitrators shall not have authority to amend, alter, modify, add to or
subtract from the provisions hereof. The award of the arbitrators, in addition
to granting the relief prescribed above and such other relief as the
arbitrators may deem proper, may contain provisions commanding or restraining
acts or conduct of the parties or their representatives and may further provide
for the arbitrators to retain jurisdiction over this Agreement and the
enforcement thereof. If either party shall deliberately default in appearing
before the arbitrators, the arbitrators are empowered, nonetheless, to take the
proof of the party appearing and render an award thereon.


 


(c)           This
paragraph 14 shall survive expiration of the Term and shall continue in full
force and effect during your employment with the Company and thereafter as
applicable.


 


15.           Severability.  Should any
provision herein be rendered or declared legally invalid or unenforceable by a
court of competent jurisdiction or by the decision of an authorized
governmental agency, such invalidation of such part shall not invalidate the
remaining portions thereof.


 


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16.           Other
Agreements.  You represent and warrant that you are not a
party to any agreement or bound by an obligation which would prohibit you from
accepting and agreeing hereto or fully performing the obligations hereunder.


 


17.           Complete
Agreement.  The provisions herein contain the entire
agreement and understanding of the parties and fully supersede any and all
prior agreements or understandings between them pertaining to the subject
matter hereof, except for those provisions of the Executive Letter Agreement
that must survive in order to carry out the intentions of the parties (such as
the continuing rights under paragraphs 4 and 6 of the Executive Letter
Agreement). There have been no representations, inducements, promises or
agreements of any kind which have been made by either party, or by any person
acting on behalf of either party, which are not embodied herein. The provisions
hereof may not be changed or altered except in writing duly executed by you and
a duly authorized agent of the Company.


 


18.           Applicable
Law.  The interpretation and application of the
terms herein shall be governed by the laws of the State of New York without
regard to principles of conflict of laws.


 


19.           No
Waiver.  Any failure by either party to exercise its
rights to terminate this Agreement or to enforce any of its provisions shall
not prejudice such party’s rights of termination or enforcement for any
subsequent or further violations or defaults by the other party.


 


20.           Counterparts.  This Agreement may
be executed simultaneously in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.


 


21.           Section 409A.  The Company or any
of its applicable affiliates shall withhold from any amounts payable or
provided under this Agreement such federal, state or local taxes as shall be
required to be withheld under any applicable law or regulation and other
required or applicable deductions. 
Except with respect to any payments or benefits which you may be
entitled to under paragraph 4 of the Executive Letter Agreement, which shall be
governed by the provisions contained therein, if and to the extent any portion
of any payment, compensation or other benefit provided to you in connection
with your separation from service (as defined in Section 409A) is
determined to constitute “nonqualified deferred compensation” within the
meaning of Section 409A and you are a specified employee as defined in Section 409A(a)(2)(B)(i),
as determined by the Company or any of its applicable affiliates in accordance
with its procedures, by which determination you hereby agree that you are
bound, such portion of the payment, compensation or other benefit shall not be
paid before the day that is six months plus one day after the date of
separation from service (as determined under Section 409A (the “New Payment Date”), except as Section 409A
may then permit.  The aggregate of any
payments that otherwise would have been paid to you during the period between
the date of separation from service and the New Payment Date shall be paid to
you in a lump sum on such New Payment Date, and any remaining payments will be
paid on their original schedule.  If you 


 


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die
during the postponement period, the amounts and entitlements delayed on account
of Section 409A of the Code shall be paid to the personal representative
of your estate on the first to occur of the New Payment Date and thirty (30)
days after the date of your death.  For
purposes of this Agreement, each amount to be paid or benefit to be provided
shall be construed as a separate payment for purposes of Section 409A, and
any payments that are due within the “short
term deferral period” as defined in Section 409A shall not be
treated as deferred compensation unless applicable law requires otherwise.  Neither the Company nor any of its applicable
affiliates nor you shall have the right to accelerate or defer the delivery of
any such payments or benefits except to the extent specifically permitted or
required by Section 409A.  All
reimbursements and in-kind benefits provided under this Agreement that
constitute deferred compensation within the meaning of Section 409A shall
be made or provided in accordance with the requirements of Section 409A,
including, without limitation, that (a) in no event shall reimbursements to
you under this Agreement be made later than the end of the calendar year next
following the calendar year in which the applicable fees and expenses were
incurred, provided, that you shall have submitted an invoice for such fees and
expenses at least ten (10) days before the end of the calendar year next
following the calendar year in which such fees and expenses were incurred; (b) the
amount of in-kind benefits that you are entitled to receive in any given
calendar year shall not affect the in-kind benefits that you are entitled to
receive in any other calendar year; (c) your right to such reimbursements
and in-kind benefits may not be liquidated or exchanged for any other benefit;
and (d) in no event shall your entitlement to such reimbursements or such
in-kind benefits apply later than your remaining lifetime (or if longer,
through the twentieth (20th) anniversary of the Effective Date).  This Agreement is intended to comply with the
provisions of Section 409A and shall, to the extent practicable, be
construed in accordance therewith.  Terms
defined in the Agreement shall have the meanings given such terms under Section 409A
if and to the extent required to comply with Section 409A.  In any event, neither the Company nor any of
its affiliates makes any representations or warrant and shall have no liability
to you or any other person if any provisions of or payments under this
Agreement are determined to constitute deferred compensation subject to Section 409A
but not to satisfy the conditions of Section 409A.


 


22.           Assignment.  The rights and
obligations of the Company under this Agreement will be transferable, and all
of its covenants and agreements will be binding upon and be enforceable by its
successors and assigns.  You may not
assign this offer of employment and the terms and conditions stated herein.


 


23.           Survivorship. 
Upon the expiration or other termination of this Agreement or your
employment, the respective rights and obligations of the parties hereto shall
survive to the extent necessary to carry out the intentions of the parties
under this Agreement.


 


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If you agree to the terms
set forth in this Agreement please acknowledge your agreement by signing the
signature line set forth below.


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  PARK
  EXCHANGE LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jeffrey Solomon

  
	
   

  	
  Name:

  	
  Jeffrey
  Solomon

  
	
   

  	
  Title:

  	
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J. Kevin McCarthy

  
	
   

  	
  Name:

  	
  J. Kevin McCarthy

  
	
   

  	
  Title:

  	
  Manager

  



 


 


ACKNOWLEDGED AND AGREED (solely in respect of that portion of Section 4(c) relating
to the Ramius Employee Ownership Program, and only to the extent applicable):


 


	
  RAMIUS
  LLC

  	
   

  
	
  By:
  C4S & Co., L.L.C., its managing member

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Peter A. Cohen

  	
   

  
	
  Name:

  	
  Peter
  A. Cohen

  	
   

  
	
  Title:

  	
  Managing
  Member

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  AGREED AND ACCEPTED:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed:

  	
  /s/ Morgan Stark

  	
   

  
	
   

  	
  Morgan Stark

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  June 3, 2009

  	
   

  



 


 


[Signature Page to Appendix A of Employment Letter of Morgan Stark]