Exhibit 10.2


 


EXECUTION COPY


 


June 3, 2009


 


David
M. Malcolm


At
the address last on the records of Cowen


 


Dear
Greg:


 


As
you know, Cowen Group, Inc. (“Cowen”) has entered into a Transaction
Agreement and Agreement and Plan of Merger (the “Transaction Agreement”) with
LexingtonPark Parent Corp. (the “Company”), Lexington Merger Corp., Park
Exchange LLC (the “Exchange Sub”), and Ramius LLC (“Ramius”), pursuant to
which, among other things, Cowen will become a wholly owned subsidiary of the
Company and Exchange Sub will acquire substantially all of the assets and
assume all of the liabilities of Ramius (collectively, the “Transaction”). The
Company and Cowen desire to have your continued dedication and service pending
and following the Transaction. Accordingly, we are pleased to offer you
continued employment with the Company and its subsidiaries, and we look forward
to continuing our mutually rewarding and beneficial relationship. This letter
agreement (the “Agreement”) will outline the terms of your continued employment.
This Agreement will become effective upon the Effective Time (as defined in the
Transaction Agreement) (the “Effective Date”) and, as more fully set forth
below, shall, as of the Effective Date, supersede any and all prior employment
agreements and letters concerning your employment with Cowen and its
subsidiaries, including, without limitation the Employment Agreement by and
between Cowen and Company, LLC and you, dated as of March 4, 2008 (the “Previous
Employment Agreement”).


 


1.                                            Term. This Agreement
provides the details of the terms of your employment from and following the
Effective Date until termination of your employment (the “Term”), and certain
other terms and conditions of your employment with the Company and its
subsidiaries that continue beyond the Term unless otherwise specified.


 


2.                                            Position. You shall be
employed as the Chief Executive Officer and President of the Company’s
Broker-Dealer Subsidiary (the “BD Subsidiary”) and shall report directly to the
Chief Executive Officer of the Company. You shall also be appointed, on the
Effective Date, to serve as a member of the Board of Directors of the Company
and as a member of the Company’s Executive Management Committee and the Company’s
Operating Committee. You shall have the duties, responsibilities and authority
commensurate with your title and position and such other duties and
responsibilities as may be reasonably assigned to you by the Chief Executive
Officer of the Company, including (a) the responsibility of making
non-binding recommendations to the Compensation Committee of the Company’s
Board of Directors (the “Compensation Committee”) to assist such committee in
making compensation decisions relating to senior management of the BD
Subsidiary and (b) the responsibility, in consultation with the Chief
Executive Officer of the Company, for determining the compensation of the
employees of the BD Subsidiary whose compensation is not determined by the
Compensation


 

















 


Committee.
You shall continue to be subject to, and must comply with, all policies and
procedures applicable to employees of the BD Subsidiary, as now existing or as
may be modified or supplemented from time to time by the BD Subsidiary.


 


3.                                       Compensation
and Benefits.


 


(a)                                       Base Salary.  You will be paid a base salary at the rate of
not less than Four Hundred Fifty Thousand Dollars ($450,000) per annum (“Base
Salary”), payable in accordance with the Company’s prevailing payroll practices
but no less frequently than monthly. The term Base Salary as utilized in this
Agreement shall refer to Base Salary as in effect from time to time, including
any increases. Except as otherwise provided in this Agreement, any obligation
to pay your Base Salary will cease upon the termination of your employment.


 


(b)                                      Annual Bonus.  For each calendar year during which you are
employed by the Company (excluding any period in which you are employed as a
Senior Advisor, as defined below), you shall be entitled to earn an annual
performance-based bonus pursuant to a Company bonus plan as determined by the
Compensation Committee. The total annual bonus that may be earned by you for
any calendar year is referred to herein as the “Annual Bonus.” Your Annual
Bonus shall be determined by the Compensation Committee consistently with and
on the same basis as, and shall have terms and conditions no less favorable
than those that apply to, other similarly situated executives of the Company, provided
that you shall be entitled to a minimum Annual Bonus equal to Two
Hundred Thousand Dollars ($200,000) for each completed calendar year ending
during the Term (excluding any Notice Period, as defined below, upon a
voluntary termination without Good Reason, as defined below). Your Annual
Bonuses may, at the discretion of the Compensation Committee, and consistent
with similarly situated executives of the Company, include a certain percentage
of restricted securities, other stock or security-based awards or deferred cash
or other deferred compensation.


 


(c)                                       Benefits.  During the Term, you will be entitled to
employee benefits, fringe benefits and perquisites consistent with, and on the
same basis as, similarly situated executives of the Company, subject to the
terms of the Transaction Agreement, including, without limitation, the
provisions contained in Section 7.6 thereof.


 


(d)                                      Expense
Reimbursement.  During
the Term, the Company shall reimburse you for all reasonable expenses incurred
by you in the performance of your duties in accordance with the Company’s
policies applicable to similarly situated executives of the Company. All
reimbursements provided under this Agreement shall be made or provided in
accordance with the requirements of Section 409A (“Section 409A”) of
the Internal Revenue Code of 1986, as amended (the “Code”).


 


(e)                                       Vacation.  During the Term, you shall be eligible for
paid-time off in accordance with the BD Subsidiary’s vacation policy.


 


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(f)                                              Effective Date
Payment.  You will become vested on the
Effective Date in the right to be paid One Million Five Hundred Thousand
Dollars ($1,500,000) (the “Effective Date Payment”). The Effective Date Payment
will be paid to you in a single lump sum in cash on the Effective Date.


 


(g)                                           CHRP Interest.  On March 14, 2008, you were admitted as a
member of Cowen Healthcare Royalty GP, LLC (“GP LLC”), such that your interest
in GP LLC equals six and one-quarter percent (6.25%) as of such date. Your
interest in GP LLC relates only to the initial Cowen Healthcare Royalty
Partners fund (the “Healthcare Fund”). Such membership interest in GP LLC is
referred to herein as the “CHRP Interest.” At the time you were admitted as a
member of GP LLC, you purchased your interest in GP LLC from Cowen Capital
Partners II, LLC (“CCP II”) at a price equal to the aggregate amount paid by
CCP II as of that date relating to the interest so purchased. You are obligated
to make all future payments and contributions relating to capital calls by the
Healthcare Fund and are entitled to receive all future distributions. The CHRP
Interest vested with regard to fifty percent (50%) on January 1, 2009 and,
except as otherwise provided in paragraph 5 hereof, the remaining fifty percent
(50%) shall vest on January 1, 2010.


 


4.                                       Restricted
Stock Award.


 


(a)                                       Award.  The Company will grant you, effective as of the
Effective Date, 288,832 restricted shares of Company common stock (“Common
Stock”) (the “Restricted Stock Award”) on the terms and conditions set forth in
this paragraph 4; provided, however, if
as of the Effective Date, the Company’s shareholders have not approved an
amendment or a successor plan to the Cowen Group, Inc. 2007 Equity and
Incentive Plan and the Cowen Group, Inc. 2006 Equity and Incentive Plan
(together, the “Cowen Plan”) and there are not sufficient shares under the
Cowen Plan to grant you the entire amount of shares of Common Stock subject to
the Restricted Stock Award, you will be granted a “Pro-Rata Restricted Stock
Award” on the Effective Date. For purposes of this Agreement, a “Pro-Rata
Restricted Stock Award” means that number of restricted shares of Common Stock
equal to the product of (i) (x) the total number of shares of Common
Stock subject to your Restricted Stock Award, divided by (y) the total
number of shares of Common Stock subject to similar restricted stock awards or
restricted stock unit awards to be granted on the Effective Date and (ii) the
total number of shares of Common Stock available for grant under the Cowen Plan
on the Effective Date.


 


(b)                                      Failure to
Grant the Entire Restricted Stock Award on the Effective Date.  In the event that the
Company has not granted you the entire Restricted Stock Award on the Effective
Date, the Company shall, by July 1, 2010, grant you any theretofore
ungranted portion of the Restricted Stock Award; provided, however, if there
are insufficient shares to grant you such ungranted portion of the Restricted
Stock Award, the Company shall instead, in no event later than July 1,
2010, grant you the right to receive an amount in cash equal to Two Million
Five Hundred Thousand Dollars ($2,500,000), less the Effective Date value of
the Pro-Rata


 


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Restricted
Stock Award and any other portion of the Restricted Stock Award, if any,
previously granted to you (such cash award, the “Cash Makeup Award”).


 


(c)                                       Vesting.  The Restricted Stock Award (or the Cash Makeup
Award, as applicable) shall vest and become free of restrictions in two equal
installments on each of the second and third anniversaries of the Effective
Date, provided that you are employed by the Company or a subsidiary thereof and
have not yet given notice to terminate your employment without Good Reason (as
set forth in paragraph 6 below) as of such date. Notwithstanding the foregoing,
any theretofore unvested portion of the Restricted Stock Award (or the Cash
Makeup Award, as applicable) shall immediately vest in full and become free of
restriction (and, in the case of the Cash Makeup Award, be paid in cash within
thirty (30) days of the date of termination), in the event that, (i) your
employment is terminated (x) by the Company other than for Cause (as
defined below), (y) due to your death or Disability (as defined below) or (z) by
you for Good Reason (as defined below) or (ii) a Change in Control of the
Company (as defined in the Cowen Group, Inc. 2007 Equity and Incentive
Plan, as may be revised to reflect the structure of the Company following the
Transaction) occurs after the Effective Date (each of the events in clauses (i) and
(ii), an “Accelerated Vesting Event”). In the event that an Accelerated Vesting
Event occurs prior to the Company having granted you any portion of the
Restricted Stock Award or the Cash Makeup Award, as applicable, you shall vest
in full in, and be paid in cash within thirty (30) days of the date of
termination (or, in the event of a Change in Control, on the date of such
Change in Control), an amount in cash equal to the theretofore ungranted
portion of the Restricted Stock Award.


 


(d)                                      Registration.  As of the Effective Date, the Company shall,
at its expense, reserve for issuance a number of shares of Common Stock at
least equal to the number of shares of Common Stock that will be subject to the
Restricted Stock Award and shall, as soon as reasonably possible after the
Effective Date, file a registration statement on Form S-8 (or any
successor form, or if Form S-8 is not available, other appropriate forms)
with respect to the shares of Common Stock subject to the Restricted Stock
Award. The Company shall thereafter maintain the effectiveness of such
registration statement or registration statements (and maintain the current
status of the prospectus or prospectuses contained therein) for so long as you
hold the Restricted Stock Award (or any portion thereof) or any of the shares
of Common Stock that were previously subject to the Restricted Stock Award, or
until such earlier date as such Restricted Stock Award and shares of Common
Stock, as applicable, may otherwise be freely sold under applicable law.


 


(e)                                       Other Terms of
Restricted Stock Award; Form of Agreement.  The terms of your Restricted Stock Award will
be evidenced in an award agreement by and between you and the Company, which
will be substantially in the same form as (and shall in no event contain terms
less favorable to you than those contained in) the “Form of 2007 Equity
Award Agreement for Executive Officers” filed as Exhibit 10.25 to the
Cowen Group, Inc. Form 10-K for the year ended December 31,
2008, provided that such award agreement will be modified to incorporate


 


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the
terms of this Agreement (including, without limitation, the defined terms
contained herein and the restrictive covenants set forth herein) which shall,
in any event, control.


 


5.                                       Termination of
Employment.


 


(a)                                  By the Company
Other than for Death, Disability or for Cause; By You  for Good Reason.  If your employment is terminated (i) by
the Company for any reason other than due to (x) your death or Disability
(as defined below) or (y) for Cause (as defined below) or (ii) by you
upon resignation for Good Reason (as defined below), you shall be entitled to
receive (A) that portion of your Base Salary earned, but unpaid as of the
date of termination, paid within thirty (30) days of the date of your
termination, (B) any Annual Bonus earned by you for a prior completed
calendar year to the extent not theretofore paid and not theretofore deferred
(with any such deferred amounts to be paid in accordance with and at the times
set forth in the applicable deferral arrangement) paid at the same time as all
other Company annual bonuses are paid for the year in which your employment
terminates, but in no event later than March 15 of the calendar year
following the year in which your employment terminates (the amounts described
in clauses (A) and (B), and the times at which such amounts are paid,
shall be hereinafter referred to as the “Accrued Obligations”); (C) your
rights and interests in the CHRP Interest shall immediately vest, (D) you
shall be entitled to receive a lump sum cash payment (the “Separation Payment”)
equal to the sum of (x) Two Million Two Hundred Fifty Thousand Dollars
($2,250,000), (y) your Base Salary as of the end of the calendar year
immediately preceding the calendar year in which such termination occurs, and (z) the
cash portion of your Annual Bonus in respect of the calendar year immediately
preceding the calendar year in which such termination occurs, and (E) in
addition to any rights you have with respect to the Restricted Stock Award
under paragraph 4 of this Agreement, (1) any outstanding equity awards
shall become fully vested and exercisable and any restrictions thereon shall
lapse effective as of your date of termination (provided that any delays in
payment or settlement set forth in such grant or award agreements that are required
under Section 409A shall remain effective) and (2) any stock options
outstanding as of your date of termination shall remain exercisable for the
remainder of the respective terms of such stock options (taking into account
any provisions of the equity incentive plan or option agreements that cause
them to expire or be replaced in connection with changes in control or similar
events) (clauses (1) and (2) collectively referred to herein as the “Equity
Benefits”). In order to receive the Separation Payment, you will also be
required to sign a Settlement Agreement and Release of the Company in a form
customarily used by the BD Subsidiary, which will include a general release of
known and unknown claims, provisions relating to return of Company property and
non-disparagement and a requirement to cooperate regarding any future
litigation (the “Release”) within fifty-two (52) days of the date of
termination of your employment (or such earlier time as may be permissible
under the Release taking into account any revocation period). The Separation
Payment shall be paid to you within ten (10) days following the expiration
of the revocation period applicable to the Release and in no event later than
sixty (60) days of the date of termination of your employment, assuming you
have signed, returned to the Company and not revoked the Release. You may not
both become a “Senior Advisor” (as provided in paragraph 5(b) below) and
resign your employment for Good Reason. Accordingly, in the event you


 


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become
a Senior Advisor, you shall not be entitled to payment under this paragraph 5(a) and
you shall be limited to the rights, terms and conditions set forth in paragraph
5(b) (Senior Advisor Status). Conversely, in the event you resign your
employment for Good Reason, you shall not be entitled to payments as a Senior
Advisor under paragraph 5(b) (Senior Advisor Status) and Appendix A
hereto, and shall be limited to the rights, terms and conditions set forth in
this paragraph 5(a).


 


(b)                                           Senior Advisor
Status.  When by reason of your
retirement in accordance with the applicable policy of the Company (which for
the avoidance of doubt permits retirement on or after the attainment of age 55
with five years of service) at any time on or after the date that annual
bonuses are paid by the Company in respect of the Company’s 2011 fiscal year,
you cease to serve as the Chief Executive Officer and President of the BD
Subsidiary (or in whatever position you then serve), provided you are otherwise
an employee in good standing at that time, and continuing for a three (3) year
period, the Company will employ you as a Senior Advisor pursuant to a Senior
Advisor Agreement in the form attached hereto as Appendix A.


 


(c)                                            Death or
Disability.  Your
employment 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 do so unless you return to full-time performance of your
duties within such thirty (30)-day period. “Disabled” and “Disability,” as used
herein, shall mean your inability to perform the essential duties and
responsibilities of your job with or without reasonable accommodation, for a
continuous period of ninety (90) days or more, or for one hundred twenty (120)
days or more in a twelve (12)-month period, due to a physical or mental
condition. 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 5(c), in addition to any rights
you have under paragraph 4 of this Agreement, you or your estate shall (i) vest
in and be entitled to retain all rights and interests in the CHRP Interest and (ii) be
entitled to receive the Equity Benefits. In addition, you or your estate shall
be entitled to receive the Accrued Obligations.


 


(d)                                           Termination for
Cause.  The Company may terminate your
employment with or without Cause. Upon termination of employment for Cause, you
shall be entitled to receive only that portion of your Base Salary earned, but
unpaid, as of the date of termination, payable no later than thirty (30) days
after your date of termination. Upon termination of your employment for Cause,
you or your estate shall be entitled to retain any amounts distributed to you
in connection with your receipt of the CHRP Interest; provided, however, the
entirety of your membership interest in GP LLC shall revert back to CCP II at
cost, and CCP II shall promptly pay to you the sum of your membership interest
payments (i.e., the amount you
paid to CCP II for the interest) plus any amounts subsequently paid by you in
connection with capital calls, if any, less any distributions previously
received by you in respect of such membership interests. 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 Board of Directors of the Company in good
faith:


 


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


 


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


 


(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 BD Subsidiary;


 


(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.


 


(e)                                  Termination By
You without Good Reason.  You
may terminate your employment with or without “Good Reason”. Subject to the
provisions of paragraph 5(b) herein, upon termination of your employment
by you without Good Reason, you shall be entitled to receive only that portion
of your Base Salary earned, but unpaid, as of the effective date of
termination, payable no later than thirty (30) days after the effective date of
termination and to retain all rights and interests in that portion of the CHRP
Interest that has vested as of the commencement of the Notice Period (defined
below), but you shall not be entitled to any of the payments or benefits set
forth on Appendix A hereto. For purposes of this Agreement, “Good Reason” shall
mean:


 


(i)                                     any requirement that your
services during the Term be rendered primarily at a location or locations other
than the Company’s or the BD Subsidiary’s offices in New York, New York;


 


(ii)                                       a material
diminution by the Company or the BD Subsidiary of your positions, roles and
responsibilities as Chief Executive Officer and President of the BD Subsidiary
or as otherwise contemplated by Section 2 of this Agreement, including the
Company’s failure to appoint (or reappoint) you to serve as a member of the
Company’s Board of Directors, Executive Management Committee or Operating
Committee; or


 


(iii)                                    any material
breach of this Agreement by the Company.


 


In
order to invoke a termination for Good Reason, you must provide written notice
to the Company of the existence of the conditions giving rise to such “Good
Reason” within ninety (90) days following your knowledge of the initial existence
of such condition or conditions, and the Company shall have thirty (30) days
following receipt of such written notice (the “Cure Period”) during which


 


7

















 


it
may remedy the condition. In the event that the Company fails to remedy
the condition constituting Good Reason during the Cure Period, you must deliver
notice to the Company of your intention to terminate employment, if at all,
within ninety (90) days following the Cure Period in order for such termination
to constitute a termination for Good Reason.


 


(f)                                              Further Effect
of Termination on Board and Officer Positions.  If your full time employment ends for any
reason (including upon your becoming a Senior Advisor), you agree that you will
cease immediately to hold any and all officer or director positions you then
have with the Company or any subsidiary, absent a contrary direction from the
Board of Directors of the Company (which may include either a request to
continue such service or a direction to cease serving upon notice without
regard to whether your employment has ended). You hereby irrevocably appoint
the Company to be your attorney-in-fact to execute any documents and do
anything in your name to effect your ceasing to serve as a director and officer
of the Company and any subsidiary, should you fail to resign following a
request from the Company to do so. A written notification signed by a director
or duly authorized officer of the Company that any instrument, document or act
falls within the authority conferred by this clause will be conclusive evidence
that it does so.


 


(g)                                           No Mitigation;
Offset.  In no event shall you be
obligated to seek other employment or take any other action by way of
mitigation of the amounts payable to you under any of the provisions of this
Agreement and such amounts shall not be reduced whether or not you obtain other
employment. In the event of your termination of employment, 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.


 


6.                                       Notice of
Termination.  You
shall not voluntarily (other than in connection with  your becoming a Senior
Advisor) terminate your employment relationship with the Company or any of its
affiliates without Good Reason without first giving the Company at least one
hundred eighty (180) days’ prior written notice of the effective date of your
resignation or other termination (the “Notice Period”). Such written notice
shall be sent by certified mail to the 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 or to place you on paid leave for all or
part of the Notice Period. In the alternative, at any time after you give
notice, the Company may, but shall not be obligated to, provide you with work
and (a) require you to comply with such conditions as it may specify in
relation to transitioning your duties and responsibilities; (b) assign you
other duties; or (c) withdraw any powers vested in, or duties assigned to
you. You and the Company shall take all steps necessary (including with regard
to any post-termination services by you) to ensure that any termination of your
employment described in this Agreement constitutes a “separation from service”
within the meaning of Section 409A, and notwithstanding anything contained
herein to the contrary, the date on which such separation from service takes
place shall be the “date of termination of your employment.”


 


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7.                                            Non-Solicitation.  While employed and for a period of one (1) year
following your date of termination for any reason whatsoever, you shall not,
without the prior written consent of the Company, 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; or (d) 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. For purposes of
paragraphs 7, 8, 9 and 10 of this Agreement, Company shall mean the Company and
its controlled affiliates. This provision shall survive the expiration of the
Term.


 


8.                                            Non-Competition.  During the Term (including any applicable
Notice Period), 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; provided,
that ownership for personal investment purposes only of less than 2% of
the voting stock of any publicly held corporation shall not constitute a
violation hereof.


 


9.                                            Non-Disclosure
of Confidential Information.  You shall not at any time, whether during your
employment or following the termination of your employment, for any reason
whatsoever, directly or indirectly, disclose or furnish to any entity, firm,
corporation or person, except as otherwise required by law or in the direct
performance of your duties, any confidential or proprietary information of the
Company with respect to any aspect of its operations, business or clients. “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, operational costs, and employment benefits and
compensation. This provision shall survive the expiration of the Term.


 


10.                                      Company
Property.  All
records, files, memoranda, reports, customer information, client lists,
documents and equipment relating to the business of the Company, which you
prepare, possess or come into contact with while you are an employee of the
Company, shall remain the sole property of the Company. You agree that upon the
termination of your employment, you shall provide to the Company all documents,
papers, files or other material in your possession and under your control that
are connected with or derived from your services to


 


9

















 


the
Company. You agree that the Company owns all work product, patents, copyrights
and other material produced by you during your employment with the Company.
This provision shall survive the expiration of the Term.


 


11.                                           Injunctive
Relief.  In the event of a breach by you
of your obligations 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 7, 8, 9 and/or 10 hereof and that
monetary damages would not be adequate relief.  Accordingly, the Company shall be entitled to
seek injunctive relief in any federal or state court of competent jurisdiction
located in New York County, or in any state in which you reside. This provision
shall survive the expiration of the Term.


 


12.                                           Arbitration.  Any and all disputes arising out of or
relating to your employment or the termination of your employment pursuant to
this Agreement, 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.
The Company and you each hereby irrevocably waive any right to a trial by jury
in any action, suit or other legal proceeding arising under or relating to any
provision of this Agreement. The arbitration award shall be binding upon both
parties, and judgment upon the award may be entered in a court of competent
jurisdiction.


 


13.                                           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, invalidation of such
part shall not invalidate the remaining portions thereof.


 


14.                                           Treatment of
Current Equity; Share Lockup.  Notwithstanding anything to the contrary in
any of (i) the Previous Employment Agreement, (ii) the Cowen Group, Inc.
2007 Equity and Incentive Plan, (iii) the Cowen Group, Inc. 2006
Equity and Incentive Plan, (iv) the Transaction Agreement, and (v) any
other applicable agreement, contract, or arrangement between you and Cowen or
any of its subsidiaries, you hereby agree that neither the Transaction nor any
related transaction shall result in the accelerated vesting of, or lapsing of
restrictions on, any outstanding equity awards held by you as of the Effective
Date. You shall be prohibited from selling any portion of the shares of Common
Stock held by you as of the Effective Date or received (net of any shares sold
or withheld at that time to pay taxes) by you upon the vesting and/or exercise
of equity awards granted to you prior to the Effective Date, in either case
until the first to occur of (a) the one (1) year anniversary of the
Effective Date, (b) your termination of employment by the Company without
Cause, due to your death or Disability, or by you for Good Reason, and (c) the
occurrence of a Change in Control of the Company occurring after the Effective
Date.


 


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15.                                      Complete
Agreement.  The
provisions herein contain the entire agreement and understanding of the parties
regarding compensation and your employment and shall, as of the Effective Date,
fully supersede any and all prior agreements, representations, promises or
understandings, written or oral, between them pertaining to the subject matter,
including, without limitation the Previous Employment Agreement. In the event
that either (i) the Transaction is not consummated, (ii) the
Transaction Agreement is terminated in accordance with its terms or (iii) your
employment with Cowen has terminated prior to the Effective Date, this
Agreement shall be null and void ab initio and of no
further force and effect. The provisions of this Agreement may not be changed
or altered except in writing signed by you and a duly authorized agent of the
Company.


 


16.                                      Choice of Law.  The interpretation and application of the
terms herein, and your employment relationship at the Company, shall be
governed by the laws of the State of New York without regard to principles of
conflict of laws.


 


17.                                      No Waiver.  Any failure by either party to exercise its
rights to terminate this offer or to enforce any of its provisions shall not
prejudice such party’s rights of termination or enforcement for any subsequent
or further violations, breaches or defaults by the other party. A waiver of any
provision of this Agreement shall not be valid or effective unless memorialized
in writing and signed by both parties to this Agreement.


 


18.                                      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 your rights under this Agreement and the terms and
conditions stated herein.


 


19.                                      Tax Compliance.  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. 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 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


 


11

















 


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. In no event shall a tax
gross-up payment be paid later than the end of the year following the year that
the related taxes, or taxes on the underlying income or imputed income, are
remitted to the applicable taxing authority. Terms defined in this 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.


 


20.                                 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.


 


12

















 


Please indicate your
acceptance of these terms by signing and returning one copy of this Agreement.
The second copy is for your records.


 


	
   

  	
   

  	
  Sincerely,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  COWEN
  GROUP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Christopher A. White

  
	
   

  	
   

  	
  Name:

  	
  Christopher
  A. White

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
  ACKNOWLEDGED
  AND AGREED: 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  RAMIUS
  LLC

  	
   

  	
   

  
	
   

  	
   

  	
   

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

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Peter A. Cohen

  	
   

  	
   

  
	
  Name:

  	
  Peter
  A. Cohen

  	
   

  	
   

  
	
  Title:

  	
  Managing
  Member

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ACKNOWLEDGED
  AND AGREED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  LEXINGTONPARK
  PARENT CORP.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Christopher A. White

  	
   

  	
   

  
	
  Name:

  	
  Christopher
  A. White

  	
   

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Jeffrey M. Solomon

  	
   

  	
   

  
	
  Name:

  	
  Jeffrey
  M. Solomon

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  AGREED
  AND ACCEPTED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed:

  	
  /s/
  David M. Malcolm

  	
   

  	
   

  
	
   

  	
  David M. Malcolm

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  June
  3, 2009

  	
   

  	
   

  
							



 


Signature
Page to Employment Letter of David M. Malcolm