BROADPOINT SECURITIES GROUP, INC.
Exhibit 10.17
BROADPOINT SECURITIES GROUP, INC.
2007 INCENTIVE COMPENSATION PLAN
RESTRICTED STOCK UNITS AGREEMENT
RESTRICTED STOCK UNITS AGREEMENT
THIS RESTRICTED STOCK UNITS AGREEMENT (the “Agreement”) confirms the grant on March 31, 2008
(the “Grant Date”) by Broadpoint Securities Group, Inc., a New York corporation (the “Company”), to
Xxxxxx Xxxxxx (“Employee”) of Restricted Stock Units (the “Units”), including rights to Dividend
Equivalents as specified herein, as follows:
Number Granted: 450,000 Units
How Units Vest: 20% of the Units, if not previously forfeited, will
vest on each of the first, second, third, fourth and fifth anniversaries of the
Grant Date, provided that Employee continues to be employed by the Company or a
subsidiary on each vesting date (each, a “Stated Vesting Date”). In addition,
if not previously forfeited, the Units will become vested upon the occurrence
of certain events relating to Termination of Employment to the extent provided
in Section 4 of the Terms and Conditions of Restricted Stock Units attached
hereto (the “Terms and Conditions”). The terms “vest” and “vesting” mean that
the Units have become non-forfeitable. If Employee has a Termination of
Employment prior to the Stated Vesting Date and the Units are not otherwise
deemed vested by that date, the Units will be immediately forfeited except as
otherwise provided in Section 4 of the Terms and Conditions.
Settlement Date: Units that become vested will be settled on the
following applicable date (such date being the “Settlement Date”): (i) Units
that become vested on or before the third anniversary of the Grant Date will be
settled on the earlier of the date when Employee has a Termination of
Employment and the third anniversary of the Grant Date; (ii) Units that become
vested after the third anniversary of the Grant Date and on or before the
fourth anniversary of the Grant Date will be settled on the fourth anniversary
of the Grant Date; and (iii) Units that become vested after the fourth
anniversary of the Grant Date and on or before the fifth anniversary of the
Grant Date will be settled on the fifth anniversary of the Grant
Date. Notwithstanding the foregoing, if Employee timely elects to defer the
settlement of any Unit in accordance with Section 8(a) of the Terms and
Conditions, such Unit will be settled in accordance with such election. Units
granted hereunder will be settled by delivery of one Share for each Unit being
settled (together with any cash or Shares resulting from Dividend Equivalents).
The Units are subject to (i) the terms and conditions of the Company’s 2007 Incentive Compensation
Plan (the “Plan”) and (ii) this Agreement, including the Terms and Conditions attached hereto. The
number of Units, the kind of shares deliverable in settlement of Units, and other terms relating to
the Units are subject to adjustment in accordance with Section 5 of the Terms and Conditions and
Section 5.3 of the Plan.
Employee acknowledges and agrees that (i) Units are nontransferable, except as provided in Section
3 of the Terms and Conditions and Section 9.2 of the Plan, (ii) Units are subject to forfeiture
upon Employee’s Termination of Employment in certain circumstances and, following certain
Terminations of Employment, failure of Employee to comply with non-competition and related
conditions set forth in Section 4(e)(iv) prior to vesting, as specified in Section 4 of the Terms
and Conditions, and (iii) sales of shares delivered in settlement of Units will be subject to the
Company’s policies regulating trading by employees.
Employee: |
BROADPOINT SECURITIES GROUP, INC. | ||||||||
| By: | /s/ Xxxxxx Xxxxxx
|
By: | /s/ Xxx Xxxxxxxxxxxx | ||||||
Xxxxxx Xxxxxx |
Xxx Xxxxxxxxxxxx | ||||||||
TERMS AND CONDITIONS OF RESTRICTED STOCK UNITS
The following Terms and Conditions apply to the Units granted to Employee by Broadpoint Securities
Group, Inc. (the “Company”), and Units (if any) resulting from Dividend Equivalents, as specified
in the Restricted Stock Units Agreement (of which these Terms and Conditions form a part). Certain
terms of the Units, including the number of Units granted, vesting date(s) and Settlement Date, are
set forth in the Agreement.
1. GENERAL. The Units are granted to Employee under the Company’s 2007 Incentive
Compensation Plan (the “Plan”). A copy of the Plan and information regarding the Plan, including
documents that constitute the “Prospectus” for the Plan under the Securities Act of 1933, can be
obtained from the Company upon request. All of the applicable terms, conditions and other
provisions of the Plan are incorporated by reference herein. Capitalized terms used in the
Agreement and this Terms and Conditions but not defined herein shall have the same meanings as in
the Plan. If there is any conflict between the provisions of the Agreement and this Terms and
Conditions and mandatory provisions of the Plan, the provisions of the Plan govern, otherwise, the
terms of this document shall prevail. By accepting the grant of the Units, Employee agrees to be
bound by all of the terms and provisions of the Plan (as presently in effect or later amended), the
rules and regulations under the Plan adopted from time to time, and the decisions and
determinations of the Company’s Executive Compensation Committee (the “Committee”) made from time
to time, provided that no such Plan amendment, rule or regulation or Committee decision or
determination without the consent of an affected Participant shall materially affect the rights
of the Employee with respect to the Units.
2
2. ACCOUNT FOR EMPLOYEE. The Company shall maintain a bookkeeping account for
Employee (the “Account”) reflecting the number of Units then credited to Employee hereunder as a
result of such grant of Units and any crediting of additional Units to Employee pursuant to
payments equivalent to dividends paid on Common Stock under Section 5 hereof (“Dividend
Equivalents”).
3. NONTRANSFERABILITY. Until Units are settled in accordance with the terms of this
Agreement, Employee may not sell, transfer, assign, pledge, margin or otherwise encumber or dispose
of Units or any rights hereunder to any third party other than by will or the laws of descent and
distribution, except for transfers to a Beneficiary or as otherwise permitted and subject to the
conditions under Section 9.2 of the Plan.
4. TERMINATION PROVISIONS. The following provisions will govern the vesting and
forfeiture of the Units in the event of Employee’s Termination of Employment and/or occurrence of a
post-termination Forfeiture Event (as defined below), unless otherwise determined by the Committee
(subject to Section 9(a) hereof):
(a) Death or Disability. In the event of Employee’s Termination of Employment due to
death or Disability (as defined below), all Units then outstanding, if not previously vested, will
immediately vest, and all Units will be settled in accordance with the settlement terms set out in
the Agreement, giving effect to any valid deferral election of Employee then in effect.
(b) Retirement or Involuntary Termination by the Company not for Cause. In the event of
Employee’s Retirement or an involuntary Termination of Employment by the Company not for Cause,
Units not previously vested shall not then be forfeited provided that Employee executes a
settlement agreement and release provided to the Employee as soon as practicable following the date
of Employee’s Termination of Employment, in such form as may be reasonably requested by the
Company, but thereafter such Units that have not vested shall be forfeited if there occurs a
Forfeiture Event prior to the earlier of the Stated Vesting Date for such Units or Employee’s
death. Upon such a Termination of Employment, the then-outstanding Units that are vested at the
date of Termination and that become vested thereafter will be settled in accordance with the
settlement terms set out in the Agreement, giving effect to any valid deferral election of Employee
then in effect. The foregoing notwithstanding, any settlement resulting from a Termination of
Employment which would be made to a “specified employee” as defined under Code Section 409A shall
be made six months after the date of Termination of Employment.
(c) Termination by Employee for any Reason or by the Company for Cause. In the
event of Employee’s Termination of Employment by Employee for any reason (other than due to
Retirement) or by the Company for Cause, the portion of the then-outstanding Units not vested at
the date of Termination will be forfeited, and the portion of the then-outstanding Units that are
vested and non-forfeitable at the date of Termination will be settled on the Settlement Date
specified in the Agreement, except that any valid deferral election of Employee shall be given
effect. The foregoing notwithstanding, any settlement resulting from a Termination of Employment
which would be made to a “specified employee” as defined under Code Section 409A shall be made six
months after the date of Termination of Employment.
3
(d) Termination due to a Change of Control. Notwithstanding clause 4(c) above,
if a Change of Control occurs and if, as a result of such Change of Control, Employee does not
continue thereafter as the Chief Financial Officer of the Company and his employment terminates for
any reason (other than death or Disability) on five days prior written notice, within 120 days of
such Change of Control, Units not previously vested shall not then be forfeited provided that
Employee executes a settlement agreement and release provided to the Employee as soon as
practicable following the date of Employee’s Termination of Employment in such form as may be
reasonably requested by the Company, but thereafter such Units that have not vested shall be
forfeited if there occurs a Forfeiture Event pursuant to clauses (B) or (C) of Section 4(e)(iv)
prior to the earlier of the Stated Vesting Date for such Units or Employee’s death. Upon such a
Termination of Employment, the then-outstanding Units that are vested at the date of Termination
and that become vested thereafter will be settled in accordance with the settlement terms set out
in the Agreement, giving effect to any valid deferral election of Employee then in effect. The
foregoing notwithstanding, any settlement resulting from a Termination of Employment which would be
made to a “specified employee” as defined under Code Section 409A shall be made six months after
the date of Termination of Employment,
(e) Certain Definitions. The following definitions apply for purposes of this
Agreement, whether or not Employee has an employment agreement or other agreement with a Group
Entity contain the same or similar defined terms:
(i) “Cause” has the meaning given in the Plan.
(ii) “Change of Control” means a transaction or event, or a series of transactions or events, as a
result of which MatlinPatterson Global Opportunities Partners II, L.P. (and/or one or more of its
affiliates) shall no longer have the right to elect all the members of the Board.
(iii) “Disability” means “disability” as defined in Code Section 409A.
(iv) A “Forfeiture Event” means and shall be deemed to have occurred if, at any time after the
grant of the Units including following Employee’s Termination of Employment, Employee shall have
failed to comply with any of the following conditions. Without the consent in writing of the
Board, Employee (A) holds the position of Chief Financial Officer for any other broker dealer,
financial advisory or financial services firm; (B) directly or indirectly, (x) solicits for
employment or hires anyone who was an employee of the Company or any its subsidiaries within the
period of 180 days prior to any termination of Employee’s
employment or (y) solicits any customer or client of the Company or any of its subsidiaries to
transfer its business away from the Company or any of its subsidiaries or to cease doing business
with the Company or any of its subsidiaries or (C) otherwise fails to comply with the conditions
set forth in Section 7.4(a), (b) and (c) of the Plan. However, following Termination of
Employment, Employee shall be free to purchase stock or other securities of an organization or
business so long as it is listed upon a recognized securities exchange or traded over-the-counter
and such investment does not represent a greater than five percent equity interest in the
organization or business. The Company and the Employee acknowledge and agree that the Company’s
sole and exclusive remedy for a Forfeiture Event pursuant to this Agreement is forfeiture of
unvested Units, in accordance with the terms of this Agreement.
4
(v) “Group Entity” means either the Company or any of its subsidiaries and affiliates.
(vi) “Pro Rata Portion” means, for each tranche of Units, a fraction the numerator of which
is the number of days that have elapsed from the Grant Date to the date of Employee’s Termination
of Employment and the denominator of which is the number of days from the Grant Date to the Stated
Vesting Date for that tranche. A “tranche” is that portion of Units that have a unique Stated
Vesting Date.
(vii) “Retirement” means a “Retirement” as defined in the Plan which also qualifies as a
Termination of Employment.
(viii) “Termination of Employment” means the event by which Employee ceases to be employed by a
Group Entity and immediately thereafter is not employed by any other Group Entity and which
constitutes a “separation from service” under Code Section 409A and its associated regulations.
(a) Dividend Equivalents. Subject to Section 5(d), Dividend Equivalents will be
credited on Units (other than Units that, at the relevant record date, previously have been settled
or forfeited) and deemed reinvested in additional Units, to the extent and in the manner as
follows:
(i) Cash Dividends. If the Company declares and pays a dividend or distribution on Shares
in the form of cash, then a number of additional Units shall be credited to Employee’s Account as
of the last day of the calendar quarter in which such dividend or distribution was paid equal to
the number of Units credited to the Account as of the record date for such dividend or distribution
multiplied by cash amount of the dividend or distribution paid on each outstanding Share at such
payment date, divided by the Fair Market Value of a share of Common Stock at the date of such
crediting; provided, however, that in the case of an extraordinary cash dividend or distribution
the Company may provide for such crediting at the dividend or distribution payment date instead of
the last day of the calendar quarter.
(ii) Stock Dividends and Splits. If the Company declares and pays a dividend or
distribution on Shares in the form of additional Shares, or there occurs a forward split of Shares,
then a number of additional Units shall be credited to Employee’s Account as of the payment date
for such dividend or distribution or forward split equal to the number of Units credited to the
Account as of the record date for such dividend or distribution or split multiplied by the number
of additional Shares actually paid as a dividend or distribution or issued in such split in respect
of each outstanding Share.
(iii) Other Dividends. If the Company declares and pays a dividend or distribution on
Shares in the form of property other than additional Shares, then a number of additional Units
shall be credited to Employee’s Account as of the payment date for such dividend or distribution
equal to the number of Units credited to the Account as of the record date for such dividend or
distribution multiplied by the Fair Market Value of such property actually paid as a dividend or
distribution on each outstanding Share at such payment date, divided by the Fair Market Value of a
Share at such payment date.
5
(b) Adjustments. The number of Units credited to Employee’s Account shall be
appropriately adjusted, in order to prevent dilution or enlargement of Employee’s rights with
respect to Units or to reflect any changes in the number of outstanding shares of Common Stock
resulting from any event referred to in Section 5.3 of the Plan, taking into account any Units
credited to Employee in connection with such event under Section 5(a) hereof.
(c) Risk of Forfeiture and Settlement of Units Resulting from Dividend Equivalents
and Adjustments. Units which directly or indirectly result from Dividend Equivalents on or
adjustments to a Unit granted hereunder and which do not result from a dividend or distribution on
Shares in the form of cash, shall be subject to the same risk of forfeiture as applies to the
granted Unit and, if not forfeited, will be settled at the same time as the granted Unit. Units
which directly or indirectly result from Dividend Equivalents on or adjustments to a Unit granted
hereunder and which result from an ordinary dividend or distribution on Shares in the form of cash,
shall not be subject to forfeiture and will be settled at the same time as the granted Unit (or if
the granted Unit is forfeited, then at the time the granted Unit would have been settled if it were
not forfeited). Units which directly or indirectly result from Dividend Equivalents on or
adjustments to a Unit granted hereunder and which result from an extraordinary dividend or
distribution on Shares in the form of cash, shall, unless otherwise determined by the Company at
the time of such extraordinary dividend or distribution, be subject to the same risk of forfeiture
as applies to the granted Unit and, if not forfeited, will be settled at the same time as the
granted Unit.
(d) Changes to Manner of Crediting Dividend Equivalents. The provisions of
Section 5(a) notwithstanding, the Company may vary the manner and timing of crediting Dividend
Equivalents in accordance with Code Section 409A for administrative convenience, including, for
example, by crediting cash Dividend Equivalents rather than additional Units.
6. ADDITIONAL FORFEITURE PROVISIONS NOT APPLICABLE. The forfeiture conditions set
forth in Section 7.4 of the Plan shall not apply to all Units hereunder and to gains realized upon
the settlement of the Units, except as specifically stated herein.
7. EMPLOYEE REPRESENTATIONS AND WARRANTIES AND RELEASE. As a condition to any
non-forfeiture of the Units at or after Termination of Employment and to any settlement of the
Units, the Company may require Employee (i) to make any representation or warranty to the Company
as may be required under any applicable law or regulation, to make a representation and warranty
that no Forfeiture Event has occurred or is contemplated, and that otherwise the requirements of
Section 7 above have been met, and (ii) to execute a release of claims against the Company arising
before the date of such release, in such form as may be specified by the Company.
(a) Deferral of Settlement; Compliance with Code Section 409A. Settlement of any
Unit, which otherwise would occur at the Settlement Date, will be deferred in certain cases if and
to the extent Employee is permitted to participate in the Stock Option Gain and Stock Award
Deferral Program or otherwise permitted to defer the Units and Employee makes a valid deferral
election relating to the Units. Deferrals, whether elective or mandatory under the terms of this
Agreement, shall comply with requirements under Code Section 409A. Deferrals
6
will be subject to such other restrictions and terms as may be specified by the Company prior to
deferral. It is understood that Code Section 409A and regulations thereunder may require any
elective deferral to comply with Section 409A(a)(4)(C). Other provisions of this Agreement
notwithstanding, under
U.S. federal income tax laws and Treasury Regulations (including proposed regulations) as
presently in effect or hereafter implemented, any rights of Employee or retained authority of the
Company with respect to Units hereunder shall be automatically modified and limited to the extent
necessary so that Employee will not be deemed to be in constructive receipt of income relating to
the Units prior to the distribution and so that Employee shall not be subject to any penalty under
Code Section 409A.
(b) Fractional Units and Shares. The number of Units credited to Employee’s
Account shall include fractional Units calculated to at least three decimal places, unless
otherwise determined by the Committee. Unless settlement is effected through a broker or agent
that can accommodate fractional shares (without requiring issuance of a fractional share by the
Company), upon settlement of the Units Employee shall be paid, in cash, an amount equal to the
value of any fractional share that would have otherwise been deliverable in settlement of such
Units.
(c) Tax Withholding. Employee shall make arrangements satisfactory to the
Company, or, in the absence of such arrangements, a Group Entity may deduct from any payment to be
made to Employee any amount necessary, to satisfy requirements of federal, state, local, or foreign
tax law to withhold taxes or other amounts with respect to the lapse of the risk of forfeiture
(including FICA due upon such lapse) or the settlement of the Units. Unless Employee has made
separate arrangements satisfactory to the Company, the Company may elect to withhold shares
deliverable in settlement of the Units having a fair market value (as determined by the Committee)
equal to the amount of such tax liability required to be withheld in connection with the settlement
of the Units, but the Company shall not be obligated to withhold such Shares.
(d) Statements. An individual statement of Employee’s Account will be issued to
Employee at such times as may be determined by the Company. Such a statement shall reflect the
number of Units credited to Employee’s Account, transactions therein during the period covered by
the statement, and other information deemed relevant by the Committee. Such a statement may be
combined with or include information regarding other plans and compensatory arrangements for
employees. Employee’s statements shall be deemed a part of this Agreement, and shall evidence the
Company’s obligations in respect of Units, including the number of Units credited as a result of
Dividend Equivalents (if any). Any statement containing an error shall not, however, represent a
binding obligation to the extent of such error, notwithstanding the inclusion of such statement as
part of this Agreement.
9. MISCELLANEOUS.
(a) Binding Agreement; Written Amendments. This Agreement shall be binding upon
the heirs, executors, administrators and successors of the parties. This Agreement, the Plan, any
deferral election separately filed with the Company relating to the grant of Units under the
Agreement and the letter agreement between the Company and the Employee dated as of March [ ],
2008, constitute the entire agreement between the parties with respect to the Units, and supersede
any prior agreements or documents with respect thereto. No amendment,
7
alteration, suspension, discontinuation, or termination of this Agreement which may impose any
additional obligation upon the Company or materially impair the rights of Employee with respect to
the Units shall be valid unless in each instance such amendment, alteration, suspension,
discontinuation, or termination is expressed in a written instrument duly executed in the name and
on behalf of the Company and by Employee.
(b) No Promise of Employment. The Units and the granting thereof shall not
constitute or be evidence of any agreement or understanding, express or implied, that Employee has
a right to continue as an officer or employee of the Company for any period of time, or at any
particular rate of compensation.
(c) Unfunded Plan. Any provision for distribution in settlement of Employee’s
Account hereunder shall be by means of bookkeeping entries on the books of the Company and shall
not create in Employee or any Beneficiary any right to, or claim against any, specific assets of
the Company, nor result in the creation of any trust or escrow account for Employee. With respect
to any entitlement of Employee or any Beneficiary to any distribution hereunder, Employee or such
Beneficiary shall be a general creditor of the Company.
(d) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS
PRINCIPLES.
(e) Legal Compliance. Employee agrees to take any action the Company reasonably
deems necessary in order to comply with federal and state laws, or the rules and regulations of the
NASDAQ Global Market or any other stock exchange, or any other obligation of the Company or
Employee relating to the Units or this Agreement.
(f) Notices. Any notice to be given the Company under this Agreement shall be
addressed to the Company at Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Secretary, and any notice to the Employee shall be addressed to the Employee at Employee’s address
as then appearing in the records of the Company.
8
