Exhibit 10.39
BGC HOLDINGS, L.P.
FIRST AMENDMENT
TO
AGREEMENT OF LIMITED
PARTNERSHIP
This First Amendment
(“First Amendment”) to the Agreement of Limited
Partnership of BGC Holdings, L.P., amended and restated as of
March 31, 2008 (the “Agreement”) is dated as of
this 1 st day of March, 2009.
WITNESSETH:
WHEREAS, the General Partner and the
Exchangeable Limited Partners wish to amend the agreement to create
a new class of Units in the partnership; and
WHEREAS, this First Amendment has
been approved by each of the General Partner and the Exchangeable
Limited Partners (by the affirmative vote of a Majority in
Interest)
NOW, THEREFORE, the Agreement is
hereby amended on the terms set forth in this First
Amendment:
Section 1. Creation and
Description of Restricted Partnership Units
Pursuant to the authority conferred
on the General Partner under the Agreement, including without
limitation Section 4.02 thereof, there is hereby created a new
class of Units in the Partnership designated as Restricted
Partnership Units. Restricted Partnership Units shall be considered
Working Partner Units.
The definition of “Working
Partner Unit” is hereby amended and restated as
follows:
“ Working Partner Unit
” means any Unit (including High Distribution Units, High
Distribution II Units, High Distribution III Units, High
Distribution IV Units, Grant Units, Matching Grant Units or
Restricted Partnership Units) designated as a Working Partner Unit
in accordance with the terms of this Agreement.
The first two sentences of
Section 4.02 of the Agreement are hereby amended and restated
as follows:
“SECTION 4.02.
Interests. (a) Generally. (i) Types of
Interests. Interests in the Partnership shall be divided into:
(A) a General Partnership Interest, and (B) Limited
Partnership Interests (including for the avoidance of doubt, the
Regular Limited Partnership Interests, the Exchangeable Limited
Partnership Interests, the Special Voting Limited Partnership
Interest, the Founding Partner Interests, the REU Interests and the
Working Partner Interests (which shall not constitute separate
classes or groups of
partnership interests within the meaning of the
Act, provided that, Restricted Partnership Units shall be a
separate class of Working Partner Interests and shall
constitute a separate class or group of partnership interests
within the meaning of Section 12(g) of the Securities Exchange
Act of 1934.).”
Subsection (v) is hereby added
to Section 12.01 (a) of the Agreement as
follows:
“(v) Restricted Partnership
Units . Restricted Partnership Units shall represent a separate
class of Working Partner Interests in the Partnership.
Section (d) (iv) is hereby
added to Section 4.03 as follows:
(d)(iv) Each grant of an Restricted
Partnership Unit shall set forth an amount (“the Restricted
Partnership Post-Termination Amount”), potentially payable to
the holder of such Restricted Partnership Unit following the
redemption of such Restricted Partnership Unit in accordance with
Section 12.03(b), as well as a vesting schedule setting forth
the portion of the Restricted Partnership Post-Termination Amount
that shall become payable in such circumstances and the terms and
conditions of such vesting; provided that if a vesting
schedule is not set forth in the documentation relating to such
grant or is not otherwise specified in writing, the Restricted
Partnership Post-Termination Amount shall vest annually over
three(3) years on a pro rata basis.
In addition, the last clause of
section 4.03(e)(i) shall be replaced with the following: “
provided that if no vesting schedule is set forth in the
documentation relating to such grant or is otherwise specified in
writing, the Restricted Partnership Post-Termination Amount shall
vest annually over three (3) years on a pro rata
basis.”
To the extent necessary to give
effect to the creation of a new class of Units,
Section 4.02(h) shall be deemed to have been amended by the
adoption of this First Amendment.
Section 2. Voting Rights
of Restricted Partnership Units .
Notwithstanding anything set forth
in Section 13.01 or elsewhere in the Agreement, the Agreement
is hereby amended to provide that all Restricted Partnership Units
shall have no voting rights except as required by the
Act.
Section 3.
Post-Termination Payment; Maximum Distributions In Respect of
Restricted Partnership Units .
A. The following
Section 12.02(l) shall be added to the Agreement:
“12.02(l). Post-Termination
Payments for Restricted Partnership Units .
(i) Subject to Sections 12.02(l)(ii)
and 12.02(l)(vi), following the Termination of a holder of
Restricted Partnership Units, the Partnership shall redeem the
Restricted Partnership Units, and in exchange therefor, shall
deliver to such holder (or his, her or its Personal Representative
in the event of
