Exhibit 10.5
FIRST ALBANY COMPANIES INC.
2007 INCENTIVE COMPENSATION PLAN
RESTRICTED STOCK UNITS AGREEMENT
THIS
RESTRICTED STOCK UNITS AGREEMENT (the “Agreement”)
confirms the grant on September 21, 2007 (the “Grant
Date”) by First Albany Companies Inc . , a New York
corporation (the “Company”), to [ insert name of
employee ] (“Employee”) of Restricted Stock
Units (the “Units”), including rights to Dividend
Equivalents as specified herein, as follows:
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Number
Granted :
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[ insert number of RSUs
] Units |
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How Units
Vest :
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10 % of the Units will vest
immediately upon the Grant Date, 30% of the Units, if not
previously forfeited, will vest on the first anniversary of the
Grant Date, 30% of the Units, if not previously forfeited, will
vest on the second anniversary of the Grant Date and 30% 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. |
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Settlement
Date :
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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 so elected by Employee 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 vesting or such deferral date as Employee may have
elected 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 the terms and conditions of the
Company’s 2007 Incentive Compensation Plan (the
“Plan”), and 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(d)(iii) 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, FIRST ALBANY COMPANIES 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 .
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| Employee: |
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FIRST ALBANY COMPANIES
INC. |
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By: |
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[Employee
Name]
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TERMS AND CONDITIONS OF RESTRICTED STOCK UNITS
The following Terms and Conditions
apply to the Units granted to Employee by First Albany Companies
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
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 .
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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 in such form as may be requested by the Company, but
thereafter such Units 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 .
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(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 contain
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 will
not, at any time prior to an applicable Stated Vesting Date, acting
alone or in conjunction with others, directly or indirectly
(A) render services for any organization or engage (either as
owner, investor, partner, stockholder, employer, employee,
consultant, advisor, or director) dir
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