Exhibit 10.9
BKF CAPITAL GROUP, INC.
RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT (the "Agreement") is made and
entered into as of March 10, 2005 (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) on __________ (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, other than Xxxx X. Xxxxx or any entity
directly or indirectly controlled by him, 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) a majority of BKF's board of directors (the "Board")
consists of individuals other than Incumbent Directors, which
term means the members of the Board on the date of this
Agreement; provided that any individual becoming a director
subsequent to such date whose election or nomination for election
was supported by a majority of the directors who then comprised
the Incumbent Directors shall be considered an Incumbent
Director;
(iii) 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;
(iv) the Board adopts any plan of liquidation providing for
the distribution of all or substantially all of BKF's assets; or
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(v) 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;
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(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:
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(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.
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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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, an individual
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