BROADPOINT GLEACHER SECURITIES GROUP, INC.
Exhibit 10.61
2007 INCENTIVE COMPENSATION PLAN
RESTRICTED STOCK UNITS AGREEMENT
RESTRICTED STOCK UNITS AGREEMENT
THIS RESTRICTED STOCK UNITS AGREEMENT (the “Agreement”) confirms the grant on February
11, 2010 (the “Grant Date”) by Broadpoint Gleacher 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: 235,294 Units
How
Units Vest: 33-1/3% of the Units if not previously forfeited, will vest on
the first anniversary of the Grant Date, 33-1/3% of the Units if not
previously forfeited, will vest on the second anniversary of the Grant Date and
33-1/3% of the Units, if not previously forfeited, will vest on the third
anniversary 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: Settlement of vested Units will occur on the earlier of the
third anniversary of the Grant Date or when an Employee has had a Termination
of Employment (such date being the “Settlement Date”), except settlement shall
be deferred in certain cases if required in accordance with Section 8(a) of the
Terms and Conditions, and Units that become vested after Termination of
Employment shall be settled at the later of the Stated Vesting Date or the date
determined in accordance with Section 8(a) of the Terms and Conditions. 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.
IN WITNESS WHEREOF, BROADPOINT GLEACHER SECURITIES GROUP, INC. has caused this Agreement to be executed
by its officer thereunto duly authorized, and Employee has duly executed this Agreement, by which
each has agreed to the terms of this Agreement.
| Employee: | BROADPOINT GLEACHER SECURITIES GROUP, INC. | |||||||||
By:
|
/s/ Xxxxxx Xxxxxx | By: | /s/ Xxx Xxxxxxxxxxxx | |||||||
TERMS AND CONDITIONS OF RESTRICTED STOCK UNITS
The following Terms and Conditions apply to the Units granted to Employee by the Broadpoint Gleacher
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,
forfeiture and settlement 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 8(a) hereof):
(a) Death or Disability. In the event of (i) Employee’s Termination of Employment due
to death or (ii) Employee’s 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, but will continue to vest in accordance
with the vesting schedule specified in the Agreement, provided that Employee executes a settlement
agreement and release provided to 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, provided
further that, following the date of Termination of Employment 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 any Units 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 (other than due to Retirement) 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
3
made to a “specified employee” as defined under Code Section 409A shall be made six months
after the date of Termination of Employment.
(d) 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 containing the same or similar defined terms:
(i) “Cause” has the meaning given in the Plan.
(ii) “Disability” means “disability” as defined in Code Section 409A.
(iii) “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 of 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 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.
(iv) “Group Entity” means either the Company or any of its subsidiaries and affiliates.
(v) “Retirement” means a “Retirement” as defined in the Plan which also qualifies as a
Termination of Employment.
(vi) “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..
5. DIVIDEND EQUIVALENTS AND ADJUSTMENTS.
(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:
4
(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 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 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.
(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.
5
(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 and to make a representation and warranty
that no Forfeiture Event has occurred or is contemplated, 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.
8. OTHER TERMS RELATING TO UNITS.
(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 will be subject to
such other restrictions and terms as may be specified by the Company prior to deferral. This
Agreement is intended to comply with the requirements of Section 409A of the Code, and shall be
interpreted and construed consistently with such intent. Any payments to the Employee pursuant to
this Agreement are also intended to be exempt from Section 409A of the Code to the maximum extent
possible, under either the separation pay exemption pursuant to Treasury Regulation Section
1.409A-1(b)(9)(iii) or as short-term deferrals pursuant to Treasury Regulation Section
1.409A-1(b)(4). Each payment and benefit hereunder shall constitute a “separately identified”
amount within the meaning of Treasury Regulation Section 1.409A-2(b)(2). In the event that the
terms of this Agreement would subject the Employee to taxes or penalties under Section 409A of the
Code (“409A Penalties”), the Company and the Employee shall cooperate diligently to amend the terms
of the Agreement to avoid such 409A Penalties, to the extent possible; provided that in no event
shall the Company be responsible for any 409A Penalties that arise in connection with any amounts
payable under this Agreement. To the extent any amounts under this Agreement are payable by
reference to the Employee’s termination of employment, such term shall be deemed to refer to the
Employee’s separation from service, within the meaning of Section 409A of the Code.
Notwithstanding any other provision in this Agreement to the contrary, if the Employee is a
“specified employee,” as defined in Section 409A of the Code, as of the date of the Employee’s
separation from service, then to the extent any amount payable under this Agreement (i) constitutes
the payment of nonqualified deferred compensation, within the meaning of Section 409A of the Code,
(ii) is payable upon the Employee’s separation from service and (iii) under the terms of this
Agreement would be payable prior to the six-month anniversary of the Employee’s separation from
service,
6
such payment shall be delayed until the earlier to occur of (a) the six-month anniversary of the
separation from service or (b) the date of the Employee’s death. It is understood that Code
Section 409A and regulations thereunder may require any elective deferral to comply with Section
409A(a)(4)(C). In addition, 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 be
subject to any 409A Penalties.
(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, and any
deferral election separately filed with the Company relating to the grant of Units under the
Agreement, constitute the entire agreement between the parties with respect to Units, and supersede
any prior agreements or documents with respect thereto. No amendment, alteration, suspension,
discontinuation, or termination of this Agreement which may
7
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 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 100017, 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
