form8k.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
___________
FORM
8-K
___________
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported):
June
16, 2009
___________
BROADPOINT
GLEACHER SECURITIES GROUP, INC.
(Exact
name of registrant as specified in its charter)
___________
New
York
(State
or other jurisdiction of incorporation)
0-14140
(Commission
File Number)
22-2655804
(IRS
Employer Identification No.)
12
East 49th Street,
31st
Floor
New
York, New York
(Address
of Principal Executive Offices)
10017
(Zip
Code)
(212) 273-7100
(Registrant’s
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report)
____________
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
|
o
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
|
o
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
|
o
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
|
|
o
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
|
Item
5.02. Departure of
Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers.
At the
Annual Meeting of Shareholders of Broadpoint Gleacher Securities Group, Inc.
(the “Company”) held on June 16, 2009 (the “Annual Meeting”), the shareholders
of the Company (1) approved the Amendment and Restatement of the Broadpoint
Securities Group, Inc. 2003 Non-Employee Directors Stock Plan (the “2003 Plan”)
and (2) the Amendment and Restatement of the Broadpoint Securities Group, Inc.
2007 Incentive Compensation Plan (the “2007 Plan”). Also effective
June 16, 2009, the names of each of the 2003 Plan and the 2007 Plan were changed
consistent with the Company's name change. The following is a summary and
general description of the purpose and principal terms of the Amended and
Restated 2003 and Amended and Restated 2007 Plans:
2003
Plan
Purpose. The
purpose of the 2003 Plan is to promote the interests of the Company, its
subsidiaries and its shareholders by further aligning the intentions of
directors with those of the Company’s shareholders. To do this, the
2003 Plan offers equity-based opportunities providing directors with a
proprietary interest in maximizing the growth, profitability and overall success
of the Company.
Number of
Shares. The maximum number of shares of common stock of the
Company (“Common Stock”) as to which awards could be granted may not exceed
2,000,000 shares. The limits on the numbers of shares that can be
issued are subject to proportional adjustment to reflect certain stock changes,
such as stock dividends and stock splits.
Administration and
Eligibility. The administration, interpretation and operation
of the 2003 Plan will be vested in the Board of Directors of the Company (the
“Board”). The day-to-day administration of the 2003 Plan will be carried out by
persons other than members of the Board designated by the Board. Each
Director who is not an employee of the Company or any of its controlled
subsidiaries (a “Non-Employee Director”) is eligible to receive awards under the
2003 Plan.
Awards Under the 2003
Plan. Both stock options and restricted shares may be awarded
under the 2003 Plan. All awards will be evidenced by an agreement
approved by the Board. Each person who is or becomes a Non-Employee
Director on the date of an annual meeting of the Company’s shareholders and
whose service will continue after such meeting will be eligible to receive a
grant of restricted shares or options to purchase shares of Common Stock. The
number of options or restricted shares to be awarded is within the discretion of
the Board, except that no Non-Employee Director may receive an option worth more
than $100,000 (as determined by the Board) or more than $100,000 in
restricted shares.
Currently,
each person who is or becomes a Non-Employee Director on the date of an Annual
Meeting of the Company’s shareholders and whose service will continue after such
meeting will be eligible to receive a grant of restricted shares or options to
purchase shares of Common Stock. Under the 2003 Plan as amended and restated,
each person who is or becomes a Non-Employee Director on the date of the Annual
Meeting and whose service will continue after such meeting will receive an award
of stock options worth $50,000 or $50,000 in restricted shares (as elected
by the Non-Employee Director).
The
Non-Employee Director must elect prior to the Annual Meeting whether such award
will be made in the form of stock options or restricted shares. Shares of
restricted stock will be subject to vesting conditions as set forth in the award
agreement. The 2003 Plan also permits the Board to allow each
Non-Employee Director to elect to receive all or a portion of his or her annual
cash retainer in the form of stock options or restricted stock. The Board will
determine the terms of such restricted shares.
The
exercise price of all options granted under the 2003 Plan must equal the fair
market value of a share of Common Stock on the date of grant. Each option will
have a term of not more than ten years (as determined by the Board) and, unless
otherwise determined by the Board in its sole discretion, will vest as to
one-third of the shares on the first three anniversaries of the grant date.
Payment for the underlying Common Stock upon exercise of an option may be made
either in cash, by certified check, bank draft, or money order by delivery of
shares of Common Stock already owned by the Non-Employee Director for at least
six months, or, if permitted by the Board and applicable law, some other form of
payment acceptable to the Board. Unless the Board establishes otherwise, the
options granted under the 2003 Plan will not entitle a Non-Employee Director to
receive dividend equivalents with respect to his or her shares subject to the
option.
Restricted
share awards are grants of Common Stock made to a Non-Employee Director subject
to conditions established by the Board in the relevant award agreement. The
restricted shares only become unrestricted in accordance with the conditions and
vesting schedule, if any, provided in the relevant award agreement, but in no
event will restricted shares vest prior to six months after the date of grant. A
Non-Employee Director may not sell or otherwise dispose of restricted shares
until the conditions imposed by the Board have been satisfied. Restricted share
awards under the 2003 Plan may be granted alone or in addition to stock options.
Restricted shares which vest will be reissued as unrestricted Common Stock. Each
Non-Employee Director who receives a grant of restricted shares will have the
right to receive all dividends and vote or execute proxies for such shares. Any
stock dividends will be treated as additional restricted shares.
Forfeiture Upon
Termination. If a person
ceases to be a Non-Employee Director on the Board for any reason (other than
death or total disability), any unexercisable stock option will be forfeited and
cancelled by the Company. Such Non-Employee Director’s right to exercise any
then-exercisable stock option will terminate 90 days after the date of such
termination (but not beyond the stated term of such stock option). If a
Non-Employee Director dies or becomes totally disabled, such director (or the
estate or other legal representative of the Non-Employee Director), to the
extent the stock options are exercisable immediately prior to the date of death
or total disability, will be entitled to exercise any stock options at any time
within the one-year period following such death or disability, but not beyond
the stated term of such stock option.
If a
person ceases to be a Non-Employee Director on the Board for any reason (other
than death or total disability) prior to the lapsing of any applicable
restriction period, or the satisfaction of any other restrictions, applicable to
any grant of restricted shares, such restricted shares will be forfeited by such
Non-Employee Director. In the case of death or total disability of a
Non-Employee Director, he or she (or the estate or other legal representatives
of the Non-Employee Director) will become 100% vested in any restricted shares
as of the date of termination.
Change of Control;
Merger. If a Change of Control, as defined in the 2003 Plan,
occurs (i) all stock options then unexercised and outstanding will become
fully vested and exercisable and (ii) all restrictions, terms and
conditions applicable to restricted shares then outstanding will be deemed
lapsed and satisfied, each as of the date of the Change of Control.
If the
Company enters into or is involved in any merger, reorganization or other
business combination with any person or entity (a “Merger Event”) and the
Company will be or is the surviving entity, the Board may, as of the date of
such Merger Event, replace such stock options with substitute stock options in
respect of the shares of the surviving corporation on such terms and conditions,
as to the number of shares, pricing and otherwise, which will substantially
preserve the value, rights and benefits of any affected stock options granted
hereunder as of the date of the consummation of the Merger Event. If any Merger
Event occurs, the Company has the right, but not the obligation, to pay to each
affected Non-Employee Director an amount in cash or certified check equal to the
excess of the fair market value of the Common Stock underlying any unexercised
stock options (whether then exercisable or not) over the aggregate exercise
price of such unexercised stock options. If, in the case of a Merger Event in
which the Company will not be, or is not, the surviving corporation, and the
Company determines not to make the cash or certified check payment described
above, the Company will compel and obligate, as a condition of the consummation
of the Merger Event that the surviving entity grant substitute stock options in
the manner described in the 2003 Plan. Upon receipt by any affected Non-Employee
Director of any such substitute stock options (or payment) as a result of any
such Merger Event, such Non-Employee Director’s affected stock options for which
such substitute options (or payment) were received will thereupon be cancelled
without the need for obtaining the consent of any such affected Non-Employee
Director.
Recapitalization
Adjustments. In
the event of any change in capitalization affecting the Common Stock of the
Company, including without limitation, a distribution, recapitalization, stock
split, reverse stock split, consolidation, subdivision, split-up, spin-off,
split-off, combination, or exchange of Common Stock or other corporate
transaction or event that affects the Common Stock such that an adjustment is
determined by the Board, in its sole discretion, to be necessary or appropriate
in order to prevent dilution or enlargement of benefits or potential benefits
intended to be made available under the 2003 Plan, the Board may, in any manner
that it in good faith deems equitable, adjust any or all of (i) the maximum
number of shares of Common Stock of the Company with respect to which awards may
be granted, (ii) the number of shares of Common Stock of the Company (or
number and kind of other securities or property) subject to outstanding awards,
and (iii) the exercise price or other price per share with respect to any
outstanding awards.
Amendment, Suspension or Termination
of the 2003 Plan. The
Board may suspend or terminate the 2003 Plan (or any portion thereof) at any
time and may amend the 2003 Plan at any time and from time to time in such
respects as the Board may deem advisable to ensure that any and all Awards
conform to or otherwise reflect any change in applicable laws or regulations, or
to permit the Company or the Non-Employee Directors to benefit from any change
in applicable laws or regulations, or in any other respect the Board may deem to
be in the best interests of the Company or any Subsidiary. No such amendment,
suspension or termination will (x) materially adversely effect the rights
of any Non-Employee Director under any outstanding Stock Options or Restricted
Share grants, without the consent of such Non-Employee Director or (y) be
effective without shareholder approval if such approval is required to comply
with any applicable law or stock exchange rule (such as increasing the number of
shares of Common Stock that may be issued under the 2003
Plan.
2007
Plan
Purpose. The 2007 Plan
is intended to qualify certain compensation awarded under the 2007 Plan as
“performance-based” compensation under Section 162(m) of the Code, to the
extent deemed appropriate by the Executive Compensation Committee of the Company
(“Compensation Committee”) which administers the 2007 Plan. Section 162(m)
generally eliminates a federal income tax deduction for annual compensation in
excess of one million dollars paid by the Company to any officer named in the
Summary Compensation Table of the Company’s Proxy Statement unless that
compensation is paid on account of attainment of one or more “performance-based”
goals. One requirement for compensation to be performance-based is that the
compensation is paid pursuant to a plan that the shareholders have
approved.
The 2007
Plan is designed to advance the interests of the Company by providing a means
through which incentive awards can be granted to officers, other employees and
persons who provide services to the Company and its subsidiaries. By making
grants of awards under this plan, the Company can attract, retain and reward
such persons and, by linking compensation measures to performance, the Company
can provide incentives for the creation of shareholder value. In addition, the
interests of the Company’s shareholders and the award recipients can be more
closely aligned by giving the recipients an interest in the long-term success of
the Company.
Number of Shares. Awards
may be made under the 2007 Plan if, at the time of grant, the aggregate number
of shares subject to outstanding awards under the 2007 Plan and outstanding
awards under the First Albany Restricted Stock Inducement Plan, the 1989 Stock
Incentive Plan, 1999 Long-Term Incentive Plan, and the 2001 Long-Term Incentive
Plan (the “Preexisting Plans”) plus the number of shares subject to the award
being granted under the 2007 Plan do not exceed the sum of
15,675,000 shares and 25% of the number of shares issued and
outstanding immediately prior to the grant of such award. The 2007 Plan provides
that no further awards will be granted under the Preexisting Plans. There is a
maximum of 2.5 million shares that may be subject to incentive stock
options granted under the 2007 Plan.
Administration.
The 2007 Plan is administered by the Compensation Committee. The Compensation
Committee has the full and final authority to, among other matters, select the
persons to whom awards may be granted; determine the type(s) of awards that may
be granted under the 2007 Plan to each participant; determine under what
circumstances awards 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
cancelled, forfeited or surrendered; and to construe and interpret the
provisions of the 2007 Plan and outstanding awards.
Any
action taken by the Compensation Committee with respect to the 2007 Plan will be
final, conclusive, and binding on all persons, including the Company, its
subsidiaries, participants, and any person claiming any rights under the 2007
Plan from or through any participant or shareholder. The Compensation Committee
may delegate to officers or managers of the Company or its subsidiaries, the
authority to perform functions designated by the Compensation Committee, to the
extent that such delegation is permitted under applicable laws. In addition, the
Board of directors may perform any function of the Compensation Committee in
order to ensure that transactions under the 2007 Plan are exempt under
Rule 16b-3.
Eligibility. Persons eligible to
receive awards under the 2007 Plan include (a) executive officers, other
officers or employees of the Company and its subsidiaries, including directors,
(b) any person who provides substantial personal services to the Company or
any subsidiary not solely in the capacity as a director, and (c) any person
who has agreed to become an employee of the Company or any subsidiary provided
that such person cannot receive any payment or exercise any right relating to an
award until such person has begun employment.
Awards
under the 2007 Plan.
Options - Under the
2007 Plan, the Compensation Committee is authorized to grant options to purchase
shares to participants under the following terms. The exercise price of the
option will be determined by the Compensation Committee, however, the exercise
price may not be below the fair market value (on the date of grant) of the
shares covered by the option. The Compensation Committee will determine the time
an option may be exercised and method by which a exercise price may be deemed
paid, as well as the form of such payment. The Compensation Committee will
determine at the time of grant the terms of vesting and forfeiture of the
options. Options granted under the 2007 Plan may be nonqualified stock options
or options that qualify are “incentive stock options” under Section 422 of
the Code.
Stock Appreciation Rights
(“SARs”) - SARs are awards that give a participant the right to receive
payment from the Company in an amount equal to (1) the excess of the fair
market value of a share on the date of exercise over the exercise price,
multiplied by (2) the number of shares with respect to which the award is
exercised. The grant price of the SAR will not be less than the fair market
value of one share on the date of grant. The Compensation Committee determines
the terms and conditions of each SAR, including time(s) when an SAR may
exercised, method of settlement, and method of delivery. The Compensation
Committee will determine at the time of grant the terms of vesting and
forfeiture of the SARs.
Restricted Stock
Awards - Restricted stock awards are shares of the Company’s Common Stock
which vest in accordance with terms established by the Executive Compensation
Committee in its discretion. Restricted stock will be subject to restrictions on
transferability and other restrictions that the Compensation Committee may
impose. These restrictions may lapse separately or in combination as the
Compensation Committee may determine. Except as restricted under the terms of
the 2007 Plan and any award agreement regarding restricted stock, a participant
will have all the rights of a shareholder including the right to vote restricted
stock or the right to receive dividends. Except as otherwise determined by the
Compensation Committee, upon termination of employment or service during the
applicable restriction period, restricted stock will be forfeited and reacquired
by the Company.
The
Compensation Committee may require that cash dividends paid on a share of
restricted stock may be automatically reinvested in additional shares of
restricted stock or applied to the purchase of additional awards under the 2007
Plan.
Deferred Stock and
Restricted Stock Units - Deferred stock awards (also referred to as
Restricted Stock Units) refer to rights to receive shares that will be delivered
to participants at specified future dates. Shares will be issued at the
expiration of the deferral or vesting period specified for an award by the
Compensation Committee. In addition the Compensation Committee may impose
restrictions that may lapse at the expiration date, an earlier specified date,
or otherwise as the Compensation Committee may determine. The Compensation
Committee, in its discretion, also may provide that an award will be settled in
cash rather than shares.
Except as
otherwise provided by the Compensation Committee, upon termination of employment
during the applicable deferral or vesting period or portion thereof to which
forfeiture conditions apply, all deferred stock or restricted stock units that
remain subject to such risk of forfeiture will be forfeited.
Bonus Shares and Awards in
Lieu of Cash Obligations - The Compensation Committee is authorized to
grant shares as a bonus or grant shares in lieu of Company obligations to pay
cash or other awards under other 2007 plans or compensatory arrangements. These
shares or awards will be subject to terms determined by the Compensation
Committee.
Other Stock Awards -
The Compensation Committee is authorized to grant such other awards as may be
denominated in, payable in, or otherwise based on the stock of the Company.
These shares or awards will be subject to terms determined by the Compensation
Committee.
Deferred Compensation
Awards - The Compensation Committee is authorized to grant awards in lieu
of cash compensation or upon the deferral of cash compensation payable by the
Company, including cash amounts payable under other plans. Such awards may be
granted at a discount related to the value of the Award in lieu of the deferred
compensation.
Performance-Based
Awards - The
Compensation Committee may establish performance goals for individual employees,
groups of employees or the Company as a whole. Such goals may be based on:
(1) earnings per share; (2) revenues; (3) cash flow;
(4) cash flow return on investment; (5) return on net assets, return
on assets, return on investment, return on capital, return on equity;
profitability; (6) economic value created (as defined in the 2007 Plan);
(7) operating margins or profit margins; (8) income or earnings before
or after taxes; pretax earnings; pretax earnings before interest, depreciation
and amortization; operating earnings; pretax operating earnings, before or after
interest expense and before or after incentives, service fees, and extraordinary
or special items; net income; (9) total shareholder return or stock price;
(10) book value per share; (11) expense management; improvements in
capital structure; working capital; costs; and (12) any of the above goals
as compared to the performance of a published or special index deemed applicable
by the Compensation Committee including, but not limited to, the
Standard & Poor’s 500 Stock Index or a group of comparator companies.
It may make grants of performance-based awards contingent upon the attainment of
such goals. Such awards may be settled in the form of cash, restricted stock or
restricted stock units or a combination of cash and restricted stock or
restricted stock units.
Annual Incentive
Awards - The Compensation Committee may grant annual incentive awards as
an alternative to traditional cash bonuses. The Compensation Committee may
establish performance goals for such awards based on the same types of business
criteria as used for performance-based awards. Such awards may be settled in the
form of cash, restricted stock or restricted stock units or a combination of
cash and restricted stock or restricted stock units.
The
foregoing description of the terms of the Amended and Restated 2003 and 2007
Plans is not complete and is qualified in its entirety by reference to the
copies of the plans, which are included with this Current Report on Form 8-K as
Exhibits 10.1 and 10.2.
Item
8.01. Other
Events.
On June
16, 2009, the Company held its Annual Meeting at which the
shareholders:
|
(1)
|
elected
and/or re-elected five members of the Board of Directors - one Class I
director, three Class II directors and one Class III director - whose
terms will expire at the annual meeting of shareholders in 2011, 2012, and
2010, respectively. The elected/re-elected directors are as
follows:
|
Class I
director: Robert A. Gerard.
Class II
directors: Lee Fensterstock, Eric Gleacher, and Christopher R.
Pechock.
Class III
director: Victor Mandel.
|
(2)
|
approved
the Amendment and Restatement of the Broadpoint Securities Group, Inc.
2003 Non-Employee Directors Stock Plan (the “2003 Plan”), which increases
the number of shares of Common Stock available for the grant of awards
from 100,000 to 2,000,000, increases the individual annual dollar limit on
grants of stock options and restricted stock under the 2003 Plan from
$50,000 to $100,000, permits Non-Employee Directors to elect whether their
annual grants under the 2003 Plan will be made in the form of stock
options or restricted stock, permits Non-Employee Directors to elect to
receive their annual cash Directors’ fees in the form of stock options or
restricted stock (rather than just restricted stock), permits the Board to
determine the vesting schedule and term of stock options granted under the
2003 Plan, and restates the 2003 Plan in its
entirety;
|
|
(3)
|
approved
the Amendment and Restatement of the Broadpoint Securities Group, Inc.
2007 Incentive Compensation Plan (the “2007 Plan”), which increases the
number of shares of Common Stock available for the grant of awards by
5,000,000 shares, clarifies other provisions of the 2007 Plan and
restates the 2007 Plan in its
entirety;
|
|
(4)
|
approved
an Amendment of the Company’s certificate of incorporation (the
“Certificate of Incorporation”) to effect a reverse stock split at a ratio
of not less than one-for-three, nor more than one-for-six, at any time
prior to June 16, 2010, with the exact ratio to be determined by the Board
of Directors; and
|
|
(5)
|
ratified
the appointment of PricewaterhouseCoopers LLP as independent registered
public accounting firm of the Company for the fiscal year ending December
31, 2009.
|
Item
9.01. Financial Statements
and Exhibits.
(d) Exhibits.
10.1 – Amended and Restated Broadpoint
Gleacher Securities Group, Inc. 2003 Non-Employee Directors Stock
Plan.
10.2 – Amended and Restated
Broadpoint Gleacher Securities Group, Inc. 2007 Incentive Compensation
Plan.
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BROADPOINT GLEACHER
SECURITIES GROUP, INC.
By: /s/ Robert I.
Turner
Name: Robert I.
Turner
Title: Chief
Financial Officer
Dated:
June 22, 2009