BROADPOINT GLEACHER SECURITIES
GROUP, INC.
2007 INCENTIVE COMPENSATION
PLAN
(As Amended and Restated Through June 16, 2009)
The purpose of
this 2007 Incentive Compensation Plan (the “Plan”) is
to advance the interests of the Broadpoint Gleacher Securities
Group, Inc., a New York corporation (the “Company”),
and its shareholders by providing a means (a) to attract,
retain, and reward officers, other employees, and persons who
provide services to the Company and its subsidiaries, (b) to
link compensation to measures of the Company’s performance in
order to provide additional incentives, including stock-based
incentives and cash-based annual incentives, to such persons for
the creation of shareholder value, and (c) to enable such
persons to acquire or increase a proprietary interest in the
Company in order to promote a closer identity of interests between
such persons and the Company’s shareholders. The Plan is
intended to qualify certain compensation awarded under the Plan as
“performance-based” compensation under Code Section
162(m) to the extent deemed appropriate by the Committee which
administers the Plan.
The definitions of
awards under the Plan, including Options, SARs, Restricted Stock,
Deferred Stock, Stock granted as a bonus or in lieu of other
awards, and Other Stock-Based Awards, are set forth in
Section 6, and the definition of Performance Awards, including
Annual Incentive Awards, is set forth in Section 8. Such
awards, together with any other right or interest granted to a
Participant under the Plan, are termed “Awards.” In
addition to such terms and the terms defined in Section 1, the
following terms shall be defined as set forth below:
2.1 “Annual
Incentive Award” means a conditional right granted to a
Participant under Section 8.3 to receive a cash payment, Shares or
other Awards based on performance during all or part of a specified
fiscal year.
2.2
“Beneficiary” means the person(s) or trust(s) which
have been designated by a Participant in his or her most recent
written beneficiary designation filed with the Committee to receive
the benefits specified under the Plan upon such Participant’s
death. If, upon a Participant’s death, there is no designated
Beneficiary or surviving designated Beneficiary, then the term
Beneficiary means the person(s) or trust(s) entitled by will or the
laws of descent and distribution to receive such
benefits.
2.3
“Board” means the Board of Directors of the
Company.
2.4
“Cause,” unless defined otherwise in the terms and
conditions of a Participant’s Award, means (i) the
Participant’s conviction of, or plea of guilty or “no
contest” to, any felony; (ii) Participant’s conviction
of, or plea of guilty or “no contest” to, a violation
of criminal law involving the Company and its business;
(iii) the Participant’s commission of an act of fraud or
theft, or material dishonesty in connection with his performance of
duties to Company and its affiliates; or (iv) the
Participant’s willful refusal or gross neglect by the
Participant to perform the duties reasonably assigned to him and
consistent with his position with Company and its affiliates or
otherwise to comply with the material terms of any employment
agreement between the Company or any of its affiliates and the
Participant, which refusal or gross neglect continues for more than
fifteen (15) days after the Participant receives written
notice thereof
from the
Company providing reasonable detail of the asserted refusal or
gross neglect (and which is not due to a physical or mental
impairment).
2.5
“Code” means the Internal Revenue Code of 1986, as
amended, including regulations thereunder and successor provisions
and regulations thereto.
2.6
“Committee” means the Compensation Committee of the
Board, and the term “Committee” shall refer to the full
Board in any case in which it is performing any function of the
Committee under the Plan. A member of the Committee is not required
by the terms of the Plan to be a Qualified Member at the time of
appointment or during his or her term of service on the
Committee.
2.7
“Company” has the meaning set forth in Section 1
above.
2.8 “Covered
Employee” has the meaning as defined in Section 8.5 of
the Plan.
2.9
“Effective Date” means the date on which the Plan takes
effect, as set forth in Section 9.14 of the Plan.
2.10 “Fair
Market Value,” means, with respect to Shares, Awards, or
other property, the fair market value of such Shares, Awards, or
other property determined by such reasonable methods or procedures
as shall be established from time to time by the Committee in
compliance with the requirements of Section 409A of the Code.
At any time while Shares are traded on the NASDAQ Global Market,
the Fair Market Value of a Share as of any given date means the
closing sales price of a Share in composite trading of NASDAQ
Global Market-listed securities for that date or, if no sale
occurred on that date, on the latest preceding day on which a sale
occurred, as reported by a reliable reporting service.
2.11
“Participant” means an individual who has been granted
an Award under the Plan, for so long as the Company has any
obligation under the Plan with respect to such Award or such Award
remains subject to any restriction under the Plan.
2.12
“Plan” has the meaning set forth in Section 1
above.
2.13
“Preexisting Plans” mean the Company’s 1989 Stock
Incentive Plan, 1999 Long-Term Incentive Plan, 2001 Long-Term
Incentive Plan and Restricted Stock Inducement Plan for Descap
Employees, each as amended.
2.14
“Qualified Member” means a member of the Committee who
is a “Non-Employee Director” within the meaning of
Rule 16b-3(b)(3) under the Securities Exchange Act of 1934 and
an “outside director” within the meaning of
Regulation 1.162-27 under Code Section 162(m).
2.15
“Retirement,” unless defined otherwise in the terms and
conditions of a Participant’s Award, means a
Participant’s termination of employment with the Company and
all of its affiliates for reasons other than Cause on or after
(i) having completed at least five years of service and
(ii) reaching any age, that, when added to service with the
Company and its affiliates (in each case, expressed as completed
years and completed months), equals at least 60.
2.16
“Shares” means shares of common stock, par value $0.01
per share, of the Company and such other securities as may be
substituted or resubstituted for Shares pursuant to
Section 5.3.
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3.1 Authority
of the Committee . The Plan shall be administered by the
Committee. The Committee shall have full and final authority to
take the following actions, in each case subject to and consistent
with the provisions of the Plan:
(a) to select
persons to whom Awards may be granted;
(b) to
determine the type or types of Awards to be granted to each
Participant;
(c) to
determine the number of Awards to be granted, the number of Shares
to which an Award will relate, the cash amount payable in
settlement of an Annual Incentive Award and the performance
conditions applicable thereto, all other terms and conditions of
any Award granted under the Plan (including, but not limited to,
any exercise price, grant price, or purchase price, any restriction
or condition, any schedule or performance conditions for the lapse
of restrictions or conditions relating to transferability,
forfeiture, exercisability, or settlement of an Award, and
accelerations or modifications thereof, based in each case on such
considerations as the Committee shall determine), and all other
matters to be determined in connection with an Award;
(d) to
determine whether, to what extent, and under what circumstances an
Award may be settled, or the exercise price of an Award may be
paid, in cash, Shares, other Awards, or other property, or an Award
may be canceled, forfeited, or surrendered;
(e) to
determine whether, to what extent, and under what circumstances
cash, Shares, other Awards, or other property payable with respect
to an Award will be deferred either automatically, at the election
of the Committee, or at the election of the Participant;
(f) to
prescribe the form of each Award agreement, which need not be
identical for each Participant;
(g) to adopt,
amend, suspend, and rescind such rules and regulations and appoint
such agents as the Committee may deem necessary or advisable to
administer the Plan;
(h) to
correct any defect or supply any omission or reconcile any
inconsistency in the Plan and to construe and interpret the Plan
and any Award, rules and regulations, Award agreement, or other
instrument hereunder; and
(i) to make
all other decisions and determinations as may be required under the
terms of the Plan or as the Committee may deem necessary or
advisable for the administration of the Plan.
3.2 Manner of
Exercise of Committee Authority . Any action of the Committee
with respect to the Plan shall be final, conclusive, and binding on
all persons, including the Company, subsidiaries of the Company,
Participants, any person claiming any rights under the Plan from or
through any Participant, and shareholders. The express grant of any
specific power to the Committee, and the taking of any action by
the Committee, shall not be construed as limiting any power or
authority of the Committee. At any time that a member of the
Committee is not a Qualified Member, (i) any action of the
Committee relating to an Award intended by the Committee to qualify
as “performance-based compensation” within the meaning
of Code Section 162(m) and regulations thereunder may be taken by a
subcommittee, designated by the Committee or the Board, composed
solely of two or more Qualified Members, and (ii) any action
relating to an Award granted or to be granted to a Participant who
is then subject to Section 16 of the Securities Exchange Act
of 1934 in respect of the Company may be taken either by such a
subcommittee or by the Committee but with each such member who is
not a Qualified Member abstaining or recusing himself or herself
from such action, provided that, upon such
abstention
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or recusal, the
Committee remains composed of two or more Qualified Members. Such
action, authorized by such a subcommittee or by the Committee upon
the abstention or recusal of such non-Qualified Member(s), shall be
the action of the Committee for purposes of the Plan. The Committee
may delegate to officers or managers of the Company or any
subsidiary of the Company the authority, subject to such terms as
the Committee shall determine, to perform functions designated by
the Committee, to the extent that such delegation is permitted
under applicable laws. Other provisions of the Plan
notwithstanding, the Board may perform any function of the
Committee under the Plan, in order to ensure that transactions
under the Plan are exempt under Rule 16b-3 or for any other
reason; provided , however , that authority
specifically reserved to the Board under the terms of the Plan, the
Company’s Certificate of Incorporation or By-Laws, or
applicable law shall be exercised by the Board and not by the
Committee.
3.3 Limitation
of Liability . Each member of the Committee shall be entitled
to, in good faith, rely or act upon any report or other information
furnished to him by any officer or other employee of the Company or
any subsidiary, the Company’s independent certified public
accountants, or any executive compensation consultant, legal
counsel, or other professional retained by the Company to assist in
the administration of the Plan. No member of the Committee, nor any
officer or employee of the Company acting on behalf of the
Committee, shall be personally liable for any action,
determination, or interpretation taken or made in good faith with
respect to the Plan, and all members of the Committee and any
officer or employee of the Company acting on behalf of the
Committee or members thereof shall, to the extent permitted by law,
be fully indemnified and protected by the Company with respect to
any such action, determination, or interpretation.
Persons who are
eligible to be granted Awards under the Plan include (i) any
executive officer and other officer or employee of the Company or
any subsidiary, including any such person who may also be a
director of the Company, (ii) any other person who provides
substantial personal services to the Company or any subsidiary not
solely in the capacity as a director, and (iii) any person who
has agreed to become an employee of the Company or a subsidiary
provided that no such person may receive any payment or
exercise any right relating to an Award until such person has
commenced employment.
5. Limitation on Shares Available for Awards; Per-Person
Limitations; Adjustments
5.1 Aggregate
Number of Shares Available for Awards .
(a)
Evergreen Share Reservation . Awards relating to Shares may
be granted if, at the time of grant of each Award, the aggregate
number of Shares subject to outstanding Awards and outstanding
awards under the Preexisting Plans plus the number of Shares
subject to the Award being granted do not exceed the sum of
(x) 15,675,000 Shares (subject to adjustment as provided in
Section 5.3) plus (y) 25% of the number of Shares issued
and outstanding immediately prior to the grant of such Award. For
purposes of this Section 5.1(a), an Option or SAR is
“outstanding” until it is exercised and any other Award
is “outstanding” in the calendar year in which it is
granted and for so long thereafter as it remains subject to any
vesting condition requiring continued employment, and options and
other awards under each of the Preexisting Plans are treated as
“outstanding” in accordance with the terms of each such
Preexisting Plan. The foregoing notwithstanding, the maximum number
of shares that may be subject to ISOs granted under the Plan shall
be 2.5 million, subject to adjustment as provided in
Section 5.3.
(b) Type
of Shares Deliverable . The Shares delivered in connection with
Awards may consist, in whole or in part, of authorized and unissued
Shares, treasury Shares or Shares acquired in the market for the
account of a Participant.
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5.2 Annual
Per-Person Limitations . In each calendar year during any part
of which the Plan is in effect, a Participant may be granted Awards
under Section 6 (including Performance Awards under
Section 8 based on Awards authorized under Section 6)
relating to up to his or her Annual Limit, which consists of an
Annual Share Award Limit and an Annual Performance Award Limit. A
Participant’s Annual Share Award Limit, in any year during
any part of which the Participant is then eligible under the Plan,
shall equal two million Shares plus the amount of the
Participant’s unused Annual Share Award Limit relating to the
same type of Award as of the close of the previous year, subject to
adjustment as provided in Section 5.3. With respect to Annual
Incentive Awards pursuant to Section 8, a Participant’s
Annual Incentive Award limit relating to a given fiscal year shall
be (i), in the case of the Chief Executive Officer or any other
executive officer principally having Company-wide responsibilities,
the greater of 25% of Company profits after taxes but before
payment of bonuses to all employees or 10% of Company revenue, and
(ii), in the case of an executive officer or other person
principally having responsibilities for one or more specific
business units, the greatest of 30% of the net income of such
business unit(s), 10% of the revenues of such business unit(s), or
25% of the economic value created (“EVC”, as defined in
Section 8.2(b) below) of such business unit(s). With respect
to Performance Awards pursuant to Section 8, other than Annual
Incentive Awards, which Performance Awards are payable solely in
cash, a Participant may not be granted Awards authorizing the
earning during any calendar year of an amount that exceeds the
Participant’s Annual Performance Award Limit, which for this
purpose shall equal $3.0 million plus the amount of the
Participant’s unused cash Annual Performance Award Limit as
of the close of the previous year. For this purpose, (i)
“earning” means satisfying performance conditions so
that an amount becomes payable, without regard to whether it is to
be paid currently or on a deferred basis or continues to be subject
to any service requirement or other non-performance condition, and
(ii) a Participant’s Annual Performance Award Limit is
used to the extent a cash amount or number of shares may be
potentially earned or paid under an Award, regardless of whether
such amount or shares are in fact earned or paid. The per-person
limitations on Awards under Section 6, Annual Incentive
Awards, and other Performance Awards are each separate from one
another.
5.3
Adjustments . In the event of any change in the outstanding
Shares after the Effective Date by reason of any Share dividend or
split, reorganization, recapitalization, merger, consolidation,
spin-off, combination or exchange of Shares, repurchase,
liquidation, dissolution or other corporate exchange, any large,
special and non-recurring dividend or distribution to shareholders,
or other similar corporate transaction, the Committee may make such
substitution or adjustment, if any, as it deems to be equitable and
in order to preserve, without enlarging, the rights of
Participants, as to (i) the number and kind of Shares which
may be delivered in connection with Awards granted thereafter,
including the number of shares reserved for incentive stock options
under Section 5.1(a), (ii) the number and kind of Shares
by which annual per-person Award limitations are measured under
Section 5.2, (iii) the number and kind of Shares subject
to or deliverable in respect of outstanding Awards, and
(iv) the exercise price, grant price or purchase price
relating to any Award and/or make provision for payment of cash,
other Awards or other property in respect of any outstanding Award.
In addition, the Committee is authorized to make adjustments in the
terms and conditions of, and the criteria included in, Awards
(including Performance Awards, Annual Incentive Awards, and the
performance goals relating thereto) in recognition of unusual or
nonrecurring events (including events described in the preceding
sentence, as well as acquisitions and dispositions of businesses
and assets) affecting the Company, any subsidiary or any business
unit, or the financial statements of the Company or any subsidiary,
or in response to changes in applicable laws, regulations,
accounting principles, tax rates and regulations or business
conditions or in view of the Committee’s assessment of the
business strategy of the Company, any subsidiary or business unit
thereof, performance of comparable organizations, economic and
business conditions, personal performance of a Participant, and any
other circumstances deemed relevant; provided that no such
adjustment shall be authorized or made if and to the extent that
such authority or the making of such adjustment would cause
Options, SARs, Performance Awards granted under Section 8.2
hereof, or Annual Incentive Awards granted under Section 8.3
hereof to Participants designated by the Committee
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as Covered
Employees and intended to qualify as “performance-based
compensation” under Code Section 162(m) and regulations
thereunder otherwise to fail to qualify as “performance-based
compensation” under Code Section 162(m) and regulations
thereunder.
6. Specific Terms of Awards
6.1 General
. Awards may be granted on the terms and conditions set forth in
this Section 6. In addition, the Committee may impose on any
Award, at the date of grant or thereafter (subject to
Section 9.5), such additional terms and conditions, not
inconsistent with the provisions of the Plan, as the Committee
shall determine, including terms requiring forfeiture of Awards in
the event of termination of employment or service by the
Participant or upon the occurrence of other events (including,
without limitation, the existence of Cause). The Committee may
require payment of consideration in connection with any Award,
including for purposes of complying with requirements of applicable
state corporation law.
6.2 Options
. The Committee is authorized to grant options to purchase Shares
(“Options”) to Participants on the following terms and
conditions:
(a)
Exercise Price . The exercise price per Share purchasable
under an Option shall be determined by the Committee;
provided , however , that such exercise price shall
be not less than the Fair Market Value of a share on the date of
grant of such Option.
(b) Time
and Method of Exercise . The Committee shall determine the time
or times at which an Option may be exercised in whole or in part,
the methods by which such exercise price may be paid or deemed to
be paid, the form of such payment, including cash, Shares, other
Awards or awards granted under other Company plans, or other
property (including notes or other contractual obligations of
Participants to make payment on a deferred basis, or through
broker-assisted “cashless exercise” arrangements, to
the extent permitted by applicable law), and the methods by which
Shares will be delivered or deemed to be delivered to
Participants.
(c)
Incentive Stock Options . The terms of any incentive stock
option (“ISO”) granted under the Plan shall comply in
all respects with the provisions of Section 422 of the Code,
including but not limited to the requirement that no ISO shall be
granted more than ten years after the Effective Date. Anything in
the Plan to the contrary notwithstanding, no term of the Plan
relating to ISOs shall be interpreted, amended, or altered, nor
shall any discretion or authority granted under the Plan be
exercised, so as to disqualify either the Plan or any ISO under
Section 422 of the Code, unless the Participant has first
requested such disqualification.
6.3 Stock
Appreciation Rights . The Committee is authorized to grant
stock appreciation rights (“SARs”) to Participants on
the following terms and conditions:
(a) Right
to Payment . An SAR shall confer on the Participant to whom it
is granted a right to receive, upon exercise thereof, the excess of
(a) the Fair Market Value of one Share on the date of
exercise, over (B) the grant price of the SAR as determined by
the Committee as of the date of grant of the SAR, which shall be
not less than the Fair Market Value of one Share on the date of
grant.
(b) Other
Terms . The Committee shall determine the time or times at
which an SAR may be exercised in whole or in part, the method of
exercise, method of settlement, whether cash or Shares shall be
payable to the Participant upon exercise, the method by which
Shares will be delivered or deemed to be delivered to Participants,
whether or not an SAR shall be in tandem with any other Award, and
any other terms and conditions of an SAR.
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6.4 Restricted
Stock . The Committee is authorized to grant Awards, in the
form of Shares issued at or shortly after grant of the Award
subject to restrictions (“Restricted Stock”), to
Participants on the following terms and conditions:
(a) Grant
and Restrictions . Restricted Stock shall be subject to such
restrictions on transferability and other restrictions, if any, as
the Committee may impose, which restrictions may lapse separately
or in combination at such times, under such circumstances, in such
installments, or otherwise as the Committee may determine. Except
to the extent restricted under the terms of the Plan and any Award
agreement relating to the Restricted Stock, a Participant granted
Restricted Stock shall have all of the rights of a shareholder
including the right to vote Restricted Stock or the right to
receive dividends thereon.
(b)
Forfeiture . Except as otherwise determined by the
Committee, upon termination of employment or service during the
applicable restriction period, Restricted Stock that is at that
time subject to restrictions shall be forfeited and reacquired by
the Company; provided , however , that the Committee
may provide, by rule or regulation or in any Award agreement, or
may determine in any individual case, that restrictions or
forfeiture conditions relating to Restricted Stock will lapse in
whole or in part in the event of terminations resulting from
specified causes (including, without limitation, Retirement or
termination by the Compan
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