Exhibit 10.10
BKF CAPITAL GROUP, INC.
RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT (the "Agreement") is made and entered
into as of ____ (the "Grant Date"), between BKF Capital Group, Inc., a Delaware
corporation ("BKF"), and ____ (the "Employee") pursuant to the terms and
conditions of the BKF 1998 Incentive Compensation Plan, as amended and restated
(the "Plan"). Capitalized terms not defined in this Agreement shall have the
meanings set forth in the Plan. By execution below, Employee agrees to be bound
by the terms and conditions described herein and the provisions of the Plan.
1. Grant of Restricted Stock.
(a) As of the Grant Date, BKF's Compensation Committee (the
"Committee") grants to Employee an aggregate of ____shares of BKF common
stock, $1.00 par value (the "Stock"), provided that during the Restriction
Period (as defined below), such shares shall not be sold, assigned,
transferred, pledged, hypothecated or otherwise disposed of (the
"Restricted Stock").
(b) Shares of Restricted Stock issued to Employee shall be held in
escrow during the Restriction Period (as defined below) by BKF or by an
escrow agent appointed by the Committee. The Committee may require stock
powers endorsed in blank to be executed by Employee with respect to such
shares to facilitate the forfeiture and cancellation of such shares in the
event vesting conditions are not satisfied.
2. Restriction Period. Except as expressly provided herein, the
restrictions set forth in Section 1 hereof shall commence as of the Grant
Date and shall lapse (and the Restricted Stock shall vest) in ___
installments: ___% on [date], __% on [date] and the remainder on [date],
with any fractional share included in the last installment (the entirety of
such period referred to herein as the "Restriction Period"). Shares of
Stock not previously forfeited or canceled shall be delivered to Employee
by BKF or the escrow agent appointed by BKF, free of all restrictions, no
later than 10 days after the expiration of the Restriction Period, provided
that fractional shares may be settled in cash.
3. Shareholder Rights. During the Restriction Period, Employee shall be
entitled to receive dividends on the Restricted Stock when, as, and if
dividends are declared and paid on BKF's Stock, shall be entitled to vote
Restricted Stock on any matter submitted to a vote of holders of BKF's
Stock, and shall have all other rights of a shareholder of BKF except as
otherwise expressly provided hereunder.
4. Termination of Employment.
(a) Except to the extent otherwise provided herein or any employment
agreement or severance agreement between Employee and BKF, the provisions
of this Section 4 shall apply to the Restricted Stock upon Employee's
termination
of employment with BKF and all subsidiaries or affiliates of BKF
("Termination") for any reason.
(b) In the event of Employee's Termination by reason of death or
Disability (as defined below), or by BKF without Cause, all restrictions
shall lapse (and the Restricted Stock shall vest) as to the aggregate
number of shares of Restricted Stock then subject to restriction, and BKF
shall promptly transfer shares of Stock, free of such restrictions, to
Employee.
(c) In the event of Employee's Termination for any reason other than
as provided in Section 4(b), all unvested Restricted Stock held by Employee
shall be immediately forfeited and canceled.
5. Change in Control.
(a) Provided that the Restricted Stock granted hereunder has not
otherwise been forfeited or cancelled, upon the occurrence of a Change in
Control, all restrictions shall lapse (and the Restricted Stock shall vest)
as to the aggregate number of shares of Restricted Stock then subject to
restriction, and BKF shall promptly transfer shares of Stock, free of such
restrictions, to Employee.
(b) For purposes of this Agreement, a "Change in Control" means the
occurrence of any of the following:
(i) any "person" as such term is currently used in Section 13(d) of
the Exchange Act becomes a "beneficial owner", as such term is
currently used in Rule 13d-3 promulgated under that Act, of 50% or
more of BKF's Voting Stock (as defined);
(ii) all or substantially all of the assets or business of BKF are
disposed of pursuant to a merger, consolidation, or other transaction,
unless (A) the shareholders of BKF immediately prior to such merger,
consolidation or other transaction beneficially own, directly or
indirectly, in substantially the same proportion as they owned BKF's
Voting Stock, all of the Voting Stock or other ownership interests of
the entity or entities, if any, that succeed to the business of BKF,
or (B) a majority of the board of directors of the surviving
corporation in such a transaction consists of Incumbent Directors or
directors appointed by Xxxxx Management Co., Inc. but excluding
directors who were members of the other entity's board of directors;
(iii) the board of directors of BKF (the "Board") adopts any plan of
liquidation providing for the distribution of all or substantially all
of BKF's assets; or
(iv) BKF combines with another company and is the surviving
corporation but, immediately after the combination, the shareholders
of
BKF immediately prior to the combination hold, directly or indirectly,
50% or less of the Voting Stock of the combined company (there being
excluded from the number of shares held by such shareholders, but not
from the Voting Stock of the combined company, any shares received by
affiliates of such other company in exchange for securities of such
other company).
6. Additional Forfeiture Conditions.
(a) Unless the Committee determines otherwise, Employee's rights in
respect of any unvested Restricted Stock shall immediately terminate and no
shares of Stock shall be delivered in respect of such Restricted Stock if
prior to the scheduled vesting date (A) Employee engages in conduct
specified in Section 6(b), or (B) Employee fails to provide the
representations and certifications required under Section 6(c); provided,
however, that in the event Employee is terminated by BKF and/or its
subsidiaries or affiliates without Cause, Employee shall not be required to
refrain from the conduct specified in Section 6(b) or provide the
representations and certifications required under Section 6(c) to receive
the number of shares of Stock corresponding to the number of shares of
Restricted Stock that have vested prior to the date of such Employee's
termination without Cause.
(b) Employee will have engaged in conduct specified in this
Section 6(b) if, as determined by the Committee, at any time prior to the
scheduled vesting date, Employee:
(i) competes, directly or indirectly, whether as owner, partner,
investor, consultant, agent, employee, co-venturer or otherwise, with
BKF and/or its subsidiaries or affiliates in the United States in the
money management business ("Competitive Endeavors") or undertakes any
planning for any business that would constitute a Competitive
Endeavor. For purposes of this Section 6(b)(i), the business of BKF
and/or its subsidiaries or affiliates shall include all Products and
Services (as defined below) offered by BKF or any of its subsidiaries
or affiliates or under development, and the Employee's undertaking
shall encompass all products and services that may be used in
substitution for Products and Services;
(ii) undertakes any outside activity without the prior written
approval of the Committee, whether or not competitive with the business
of BKF and/or its subsidiaries or affiliates, that could reasonably
give rise to a conflict of interest or otherwise interfere with the
Employee's duties and obligations to BKF and/or any of its subsidiaries
or affiliates. Notwithstanding the foregoing, the Employee may (A) to
the extent such activities are not competitive with the business of BKF
and/or its subsidiaries or affiliates, engage in charitable, civic or
other community activities without compensation to the Employee, and
(B) render without compensation investment advisory and trust services
to immediate members of the Employee's family, which shall include the
Employee and any trust or account that is comprised primarily of assets
held for the benefit of such Employee and/or immediate members of his
family;
(iii) directly or indirectly, (A) hires or attempts to hire any person
who is, or during the prior six-month period was, an employee of BKF
and/or any of its subsidiaries or affiliates, (B) assists another in
hiring or attempting to hire any such person, (C) encourages any such
person to terminate his or her employment with BKF and/or any of its
subsidiaries or affiliates (other than in the course of the Employee's
proper performance of his duties hereunder), (D) solicits or accepts
business from any person or entity which is, or during the prior
six-month period was, a client of BKF and/or any of its subsidiaries or
affiliates, (E) assists another in soliciting or accepting business
from any such person or entity, or (F) encourages any such person or
entity to terminate its business relationship with BKF and/or any of
its subsidiaries or affiliates (other than in the conduct of the
Employee's proper performance of his duties); or
(iv) fails to (A) comply with the code of ethics of BKF, as in effect
from time to time, and (B) notify the Committee of all directorships
or memberships on a board of directors or board of trustees held by
the Employee, regardless of whether (y) such office was held by the
Employee prior to the date hereof or (z) such office would require
prior written consent of the Committee.
(c) Employee must certify to BKF, in accordance with procedures
established by the Committee, that Employee has complied with all the terms
and conditions of this Agreement as of the date such Restricted Stock
vests. By accepting the delivery of shares of Stock under this Agreement,
Employee shall be deemed to have represented and certified at such time
that Employee has complied with all the terms and conditions of this
Agreement.
Unless the Committee determines otherwise, if the vesting date in respect of any
outstanding Restricted Stock occurs, and shares of Stock with respect to such
Restricted Stock would be deliverable under the terms and conditions of this
Agreement except that Employee has not complied with the conditions or
Employee's obligations under this Section 6 (except in the event of Employee's
death or a Disability that impairs Employee's ability to so comply), all of
Employee's rights with respect to such Restricted Stock shall terminate, and no
shares of Stock shall be delivered. The parties intend that the foregoing
provisions of this Section 6 be deemed to be a series of separate covenants, one
for each and every county of each and every state of the United States of
America and each and every political subdivision of each and every country
outside the United States of America where this provision is intended to be
effective.
7. Repayment. If, following the delivery of Stock to Employee, the
Committee determines that all terms and conditions of this Agreement in respect
of such delivery were not satisfied, BKF shall be entitled to receive, and
Employee shall be obligated to pay BKF immediately upon demand therefor, the
Fair Market Value of the shares of Stock (determined as of the relevant vesting
date) that were delivered to Employee without reduction for any shares of Stock
applied to satisfy withholding tax or other obligations in respect of such
shares.
8. Definitions. Unless otherwise defined in any employment agreement
between Employee and BKF (in which case such definition shall apply with respect
to such Employee), the following terms shall have the meanings ascribed to them:
(i) "Cause" means Employee's (A) conviction, whether following trial
or by plea of guilty or nolo contendere (or similar plea), in a
criminal proceeding (x) on a misdemeanor charge involving fraud,
false statements or misleading omissions, wrongful taking,
embezzlement, bribery, forgery, counterfeiting or extortion, or
(y) on a felony charge or (z) on an equivalent charge to those
in clauses (x) and (y) in jurisdictions that do not use those
designations; (B) engaging in any conduct that constitutes an
employment disqualification under applicable law (including
statutory disqualification as defined under the Securities and
Exchange Act of 1934, as amended); (C) willful failure to
perform Employee's duties to BKF and/or any of its subsidiaries
or affiliates; (D) violation of any securities or commodities
laws, any rules or regulations issued pursuant to such laws, or
the rules and regulations of any securities or commodities
exchange or association of which BKF or any of its subsidiaries
or affiliates is a member; (E) violation of any BKF policy
concerning hedging or confidential or proprietary information,
or Employee's material violation of any other BKF policy as in
effect from time to time; (F) engaging in any act or making any
statement that impairs, impugns, denigrates, disparages or
negatively reflects upon the name, reputation or business
interests of BKF and/or any of its subsidiaries or affiliates;
or (G) engaging in any conduct detrimental to BKF and/or any of
its subsidiaries or affiliates. The determination as to whether
"Cause" has occurred shall be made by the Committee in its sole
discretion. The Committee shall also have the authority in its
sole discretion to waive the consequences under the Plan or any
Agreement of the existence or occurrence of any of the events,
acts or omissions constituting "Cause".
(ii) "Disability" means the Employee's inability, due to physical or
mental incapacity, to substantially perform his duties and
responsibilities of employment for a period of 180 days in any
consecutive nine-month period.
(iii) "Products and Services" means all products and services offered,
planned, researched, developed, tested, sold, licensed, marketed
or otherwise provided by BKF and/or any of its subsidiaries or
affiliates during the Employee's employment.
(iv) "Voting Stock" means the issued and outstanding capital stock or
other securities of any class or classes having
general voting power, under ordinary circumstances in the
absence of contingencies, to elect the directors of a
corporation.
9. No Assignment of Restricted Stock. During the Restriction Period, the
Restricted Stock granted hereunder shall not be subject in any manner to sale,
transfer, pledge, assignment, encumbrance, division or other disposition,
whether by operation of law or otherwise and whether voluntarily or
involuntarily, including any division of property incident to a divorce or other
allocation of marital property.
10. Adjustment. During the Restriction Period, the aggregate number of
shares of Restricted Stock granted hereunder shall be subject to adjustment due
to any stock split, stock dividend or other form of recapitalization by BKF,
such adjustment to be determined by the Committee acting in good faith.
11. Employment Rights. Neither this Agreement nor the grant of Restricted
Stock hereunder shall be deemed to confer on Employee any right to continue in
the employ of BKF or to interfere, in any manner, with the right of BKF to
terminate employment for any reason or no reason in its sole discretion, subject
to the terms of any separate agreement between Employee and BKF.
12. Amendment and Modification. The terms and conditions set forth herein
may be amended only in writing signed by both Employee and an authorized officer
of BKF.
13. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of Employee and BKF, including their respective heirs,
executors, administrators, successors and assigns.
14. Plan and Available Information. The Restricted Stock granted hereunder
shall be subject to such additional terms and conditions as may be imposed under
the terms of the Plan, a copy of which has been furnished with this grant. If
any conflict exists between this Agreement and the Plan, the Plan shall prevail.
15. Governing Law. The validity, construction, and effect of all rules and
regulations applicable to this award shall be determined in accordance with the
laws of the State of New York and applicable Federal law.
16. Withholding Tax. BKF may deduct from any payment to be made to Employee
any amount that federal, state, local or foreign tax law requires to be withheld
with respect to the grant of Restricted Stock or delivery of shares of Stock
hereunder. At the Committee's election, BKF may withhold from the number of
shares of Stock to be delivered upon expiration of the Restriction Period a
number of whole shares up to but not exceeding that number which has a fair
market value nearest but not exceeding the amount of taxes required to be
withheld with respect to such expiration of restrictions.
BKF CAPITAL GROUP, INC.
By:
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EMPLOYEE
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