efc8-0541_emailex104.htm


    Exhibit
10.4


     

    BROADPOINT
SECURITIES GROUP, INC.

     

     

    2007
INCENTIVE COMPENSATION PLAN

    RESTRICTED
STOCK UNITS AGREEMENT

     

     

    THIS RESTRICTED STOCK UNITS AGREEMENT
(the "Agreement") confirms the grant by Broadpoint Securities Group, Inc., a New York corporation (the
"Company"), to Lee Fensterstock ("Employee") of Restricted Stock Units (the
"Units"), including rights to Dividend Equivalents as specified herein, as of
the __ day of March, 2008 (the "Grant Date"), as follows:

     

    
      	
              Number
      Granted:  125,000 Units

               

              How Units
      Vest:  The Units, if not previously forfeited, will vest
      on January 1, 2009; provided that Employee
      continues to be employed by Broadpoint Capital, Inc., a wholly-owned
      subsidiary of the Company (the "Employer"), or another Group Entity on
      such vesting date (the "Vesting Date").  In
      addition, if not previously forfeited, the Units will become vested upon
      the occurrence of certain events relating to Termination of Employment and
      certain events relating to a Change of Control (as defined below), in each
      case 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 a 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:  Units that become vested will be settled on the
      earlier of the third anniversary of the Grant Date and the date on which
      the Employee has a Termination of Employment (such earlier date being the
      "Settlement Date").  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 grant of the Units is subject to and conditional upon the
closing of the capital investment in the Company in the amount of approximately
$15,000,000 effected by a Stock Purchase Agreement by and between Mast Capital
Management, LLC, certain other investors and the Company.  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, 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
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
      SECURITIES GROUP, INC.

              
	
                 

                /s/  Lee
      Fensterstock

              	 	 /s/ Peter M.
      Nierney
	
                      
      Lee Fensterstock

              	 	 By: 
      Peter M. Nierney


      

       

    

     

     

     

     

     

     

     

    
      
        

      

    

     

    TERMS AND CONDITIONS OF RESTRICTED STOCK UNITS

     

     

    The following Terms and Conditions
apply to the Units granted to Employee by 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 dates 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.           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").

     

    
      
        
        

      

      
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    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 upon the
occurrence of certain events relating to a Termination of Employment and certain
events relating to a Change of Control, in each case unless otherwise determined
by the Committee (subject to Section 8(a) hereof):

     

     

    (a)           Death or
Disability.  In the event of
Employee's death or Disability (as defined below), all Units then outstanding,
if not previously vested, will immediately become vested and non-forfeitable,
and all Units will be settled in accordance with the settlement terms set out in
the Agreement.

     

     

    (b)           Termination by Employee
Without Good Reason or by the Employer for Cause.  In the event of
Employee's Termination of Employment by Employee without Good Reason or by the
Employer for Cause, any outstanding Units that are not vested at the date of
Termination will be forfeited, and any outstanding Units that are vested and
non-forfeitable at the date of Termination will be settled on the Settlement
Date specified in the Agreement.  The foregoing
notwithstanding, if Employee is a “specified employee” as defined under Code
Section 409A, any settlement resulting from Employee’s Termination of Employment
shall be made six months after the date of such Termination of Employment.

     

     

    (c)           Termination by the Employer
Without Cause or by Employee for Good Reason.  In the event of
Employee's Termination of Employment by the Employer for any reason other than
Cause or by Employee for Good Reason, all Units then outstanding, if not
previously vested, will immediately become vested and non-forfeitable and will
be settled on the Settlement Date specified in the Agreement.  The foregoing
notwithstanding, if Employee is a “specified employee” as defined under Code
Section 409A, any settlement resulting from Employee’s Termination of Employment
shall be made six months after the date of such Termination of Employment.

     

     

    (d)           Change of
Control.  In the event of a
Change of Control prior to Employee’s Termination of Employment, all Units
then outstanding, if not previously vested, will immediately become vested and
non-forfeitable and will be settled on the Settlement Date specified in the
Agreement.  The foregoing
notwithstanding, if Employee is a “specified employee” as defined under Code
Section 409A, any settlement resulting from Employee’s Termination of Employment
shall be made six months after the date of such Termination of Employment.

     

    (e)           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 that contains the
same or similar defined terms:

     

    (i)           "Cause"
means:  (A) Employee’s conviction of, or plea of guilty or “no
contest” to, any felony; Employee’s conviction of, or plea of guilty or “no
contest” to, a violation of criminal law involving any Group Entity; (B)
Employee’s commission of an act 

     

     

    
      
        
        

      

      
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    of fraud
or theft, or material dishonesty in connection with his performance of his
duties to any Group Entity; or (C) Employee’s willful refusal or gross neglect
by Employee to perform the duties reasonably assigned to him and consistent with
his positions with the Company and the Employer, which refusal or gross neglect
continues for more than fifteen (15) days after Employee receives written notice
thereof from Company providing reasonable detail of the asserted refusal or
gross neglect (and which is not due to a physical or mental
impairment).

     

     

    (ii)                      "Change
of Control" means a transaction or event, or a series of transactions or
events, as a result of which MatlinPatterson Global Opportunities Partners II,
L.P. (and/or one or more of its affiliates) shall either (A) no longer have the
right to elect all the members of the Board of Directors of the Company, or (B)
no longer own at least thirty-five percent (35%) of the outstanding shares of
common stock of the Company.

     

     

    (iii)                      "Disability"
means "disability" as defined in Code Section 409A.

     

     

    (iv)                      "Good
Reason" means (A) the failure by the Company to perform fully the terms of
this Agreement, any plan or agreement referenced in this Agreement, or any other
material written agreement between the Company and Employee, other than an
immaterial and inadvertent failure not occurring in bad faith and remedied by
the Company promptly; (B) any reduction in Employee’s base salary or failure to
pay any material amounts due to Employee in accordance with the terms of any
other material written agreement between the Company and Employee; (C) the
assignment to Employee of any duties inconsistent in any material respect with
his position as Chairman and Chief Executive Officer of the Company, or any
other action by Company which results in a diminution in his position,
authority, duties or responsibilities, excluding for this purpose any immaterial
and inadvertent action not occurring in bad faith and remedied by Company
promptly; or (D) any change in the place of Employee’s principal place of
employment to a location outside New York City.

     

     

    (v)           "Group
Entity" means either the Company or any of its subsidiaries and
affiliates.

     

     

    (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:

     

     

    (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 

     

    
      
        
        

      

      
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    paid on
each outstanding Share at such payment date, divided by the Fair Market Value of
a Share 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 the 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 the 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 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.

     

     

    (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 for administrative convenience, including, for
example, by crediting cash Dividend Equivalents rather than additional
Units.

     

    
      
        
        

      

      
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    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 (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 the
Units may not be deferred.  All settlements of the Units shall comply with
requirements under Code Section 409A.

     

     

    (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.

     

    
      
        
        

      

      
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    (a)           Binding Agreement; Written
Amendments.  This Agreement
shall be binding upon the heirs, executors, administrators and successors of the
parties.  This
Agreement and 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 the Units, and supersede
any prior agreements or documents with respect thereto.  No amendment,
alteration, suspension, discontinuation, or termination of this Agreement which
may 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 One Penn Plaza, New York, New York 10119, 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.

     

     

    
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