exv10w1






Exhibit 10.1




September 21, 2010          




Peter J. McNierney

Gleacher & Company, Inc.

1290 Avenue of the Americas

New York, New York 10019



Dear Peter:




     In connection with the expiration of the employment agreement between you and Gleacher &
Company, Inc. (the “Company”) dated as of May 15, 2007 (the “Employment Agreement”)
and the rights under Section 5(a) upon a termination of employment due to the expiration of the
Employment Agreement, in order to ensure your continued service with the Company, the Company
desires to enter into this letter agreement (the “Letter”) with you to be effective as of
September 21, 2010 (the “Effective Date”), in full satisfaction of your rights and the
Company’s obligations under the Employment Agreement and the equity awards outstanding as of the
date hereof containing similar terms to those provided under Section 5(a) of the Employment
Agreement.




	1.	 	Treatment of Unvested RSUs and Stock Options. The restricted stock units granted to you
under Section 3(d) of the Employment Agreement and listed on the attached Schedule I (the
“Original RSUs”) and the additional restricted stock units and stock options to
acquire shares of Company common stock granted to you and listed on Schedule II (the
“Subsequent RSUs” and the “Stock Options”, respectively) that are not vested
as of the Effective Date are hereby amended to provide that they are fully vested and
non-forfeitable effective as of the Effective Date. For the avoidance of doubt, the Original
RSUs and Subsequent RSUs will be settled in accordance with their original settlement schedule
and terms.






	2.	 	Severance Payment under Section 5(a)(iv). Upon any termination of your employment following
the Effective Date, you will receive the “Severance Payment” that you would otherwise have
been eligible to receive upon a termination of employment pursuant to Section 5(a)(iv) of the
Employment Agreement calculated as follows: (a) One Million Eight Hundred Thousand Dollars
($1,800,000) less (b) the amount equal to the publicly-traded “fair market value” (based on
the closing sales price of a share of Company common stock on the applicable exchange on the
Effective Date) of one share of




 









 






	 	 	Company common stock multiplied by 600,000. The Severance Payment will be payable in a lump
sum 29 days following your “separation from service” within the meaning of Section 409A of
the Internal Revenue Code, as amended (the “Code”) (or the next business day),
provided that, in the event you are a “specified employee” (within the meaning of Section
409A of the Code as determined in accordance with the methodology established by the Company
as of the date of your separation from service), the Severance Payment will instead be paid
to you on the first business day after the date that is six months following your separation
from service. As a condition to receiving the Severance Payment, you will be required to
execute and deliver to the Company (and not revoke) a general release of claims against the
Company, its affiliated entities and their current and former directors, officers and
employees, in a standard form used by the Company in cases of termination of employment no
later than 21 days following your separation from service.






	3.	 	Termination of Employment without Cause. In the event that following the Effective Date your
employment is terminated by the Company without “Cause” (as defined on Annex A attached
hereto), you will be entitled to the following: (i) the Company will continue to pay you your
annual base salary until the date that is twelve (12) months following your termination of
employment; and (ii) the Company will provide you with the “Continued Benefits” (as defined in
Section 5(c)(ii) of the Employment Agreement) consistent with and subject to the terms,
conditions and limitations set forth in Section 5(c)(ii) of the Employment Agreement. In
addition, upon a termination of your employment by the Company without Cause on or after
January 1, 2011, the Executive Compensation Committee of the Board of Directors of the Company
(the “Board”) will consider in good faith your performance for the portion of the
fiscal year of the Company in which your date of termination occurs (i.e., the 2011 fiscal
year or a later year) in assessing your eligibility for, and the amount (if any) of, a
pro-rata bonus award in respect of such fiscal year under the terms of the applicable Company
annual bonus plan, including any performance goals. You understand and agree that the
opportunity for, and amount of, any such pro-rata bonus award will be in the sole discretion
of the Executive Compensation Committee. Any such pro-rata bonus will be paid at the time
annual bonuses in respect of such year are generally paid to executives of the Company, but in
no event later than two and a half (2-1/2) months following the end of the fiscal year for
which the annual bonus is awarded.






	4.	 	Survival of Certain Employment Agreement Provisions. Notwithstanding the expiration and
termination of the Employment Agreement, the following provisions of the Employment Agreement
will survive and continue in full force and effect (with respect to the provisions referenced
in clause (i) below, only through the period referred to therein) as if set forth herein in
their entirety, with references to “the Executive” referring to “you” and any similar
modifications as are necessary to retain the original meaning and intent of such provisions:
(i) the provisions of the Employment Agreement set forth in Section 5(a)(ii) and 5(c)(i) that
relate to the payment of a pro-rated bonus for the fiscal year in which your termination
occurs will apply solely with respect to the 2010 fiscal year and only if you resign or are
terminated without Cause by the Company prior to the payment of annual bonuses in respect of
the 2010 fiscal year of the Company (i.e., on or




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	 	 	about February 15, 2011); and (ii) the restrictive covenants and remedies set forth in
Sections 7, 8 and 9 of the Employment Agreement.






	5.	 	Section 409A. The payments and benefits under this Letter are intended to comply with the
requirements of Section 409A of the Code (“Section 409A”) or an exemption or exclusion
therefrom. Any payments that qualify for the “short-term deferral” exception or another
exception under Section 409A shall be paid under the applicable exception. All payments to be
made upon a termination of employment may only be made upon a “separation from service” within
the meaning of Section 409A. If you are considered a “specified employee” for purposes of
Section 409A (as determined in accordance with the methodology established by the Company as
in effect on your date of termination), any payment that constitutes nonqualified deferred
compensation within the meaning of Section 409A that is otherwise due to you under this Letter
during the six-month period following your separation from service on account of your
separation from service will be accumulated and paid to you on the first business day after
the date that is six months following your separation from service. Any reimbursements or
in-kind benefits provided under this Letter will be provided in accordance with the
requirements of Section 409A, including, where applicable, the requirement that (i) any
reimbursement is for expenses incurred during your lifetime (or any shorter period of time
specified herein); (ii) the amount of expenses eligible for reimbursement, or in-kind benefits
provided, during a calendar year may not affect the expenses eligible for reimbursement, or
in-kind benefits to be provided, in any other calendar year; (iii) the reimbursement of an
eligible expense will be made no later than the last day of the calendar year following the
year in which the expense is incurred, provided that you have submitted an invoice for such
expenses at least thirty (30) days before the end of the calendar year next following the
calendar year in which such fees and expenses were incurred; and (iv) the right to
reimbursement or in-kind benefits is not subject to liquidation or exchange for another
benefit.






	6.	 	Miscellaneous. Notwithstanding any other provision of this Letter, the Company may withhold
from any amounts payable or benefits provided to you, such minimum Federal, state and/or local
taxes as shall be required to be withheld under any applicable law or regulation. Section 13
(entitled “Governing Law”) and Section 21 (entitled “Dispute Resolution”) of your Employment
Agreement will apply to this Letter as if set forth herein. This Letter constitutes the entire
understanding and agreement between you and the Company with regard to all matters addressed
herein. You acknowledge and agree that, except as expressly set forth herein, the Employment
Agreement is terminated and of no further force and effect and the Company has no obligations
thereunder. This Letter may be amended only in writing, signed by the parties hereto.




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     If you agree that this Letter appropriately represents our understanding, please sign and
return this Letter, which will become a binding agreement on our receipt.



	 	 	 	 	 
	 	Very truly yours,


Gleacher & Company, Inc.

 	 
	 	By:  	                                                     /s/ Eric J. Gleacher
 	 
	 	 	Name:  	Eric J. Gleacher 	 
	 	 	Title:  	Chief Executive Officer and Chairman
of the Board of Directors 	 
	 



Accepted and agreed as of

September 21, 2010:




	 	 	 

	/s/ Peter J. McNierney

	 	 
	 
	 	 
	Peter J. McNierney
	 	 






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Schedule I




Original RSUs Granted under Section 3(d) of the Agreement



	 	 	 	 	 	 	 
	Grant Date	 	# of Shares	 	Vesting Dates	 	Settlement Date
	Recapitalization Date

	 	600,000 
	 	All vested on
September 21, 2010
	 	All to be settled
on September 21,
2010
	June 30, 2008

	 	125,000 
	 	33.3% on each of
June 30, 2009, 2010
and 2011
	 	June 30, 2011
	January 1, 2009

	 	125,000 
	 	33.3% on each of
January 1, 2010,
2011 and 2012
	 	January 1, 2012
	June 30, 2009

	 	125,000 
	 	33.3% on each of
June 30, 2010, 2011
and 2012
	 	June 30, 2012
	January 1, 2010

	 	125,000 
	 	33.3% on each of
January 1, 2011,
2012 and 2013
	 	January 1, 2013






Schedule II




Subsequent RSUs and Stock Options



	 	 	 	 	 	 	 
	Grant Date	 	# of Shares	 	Vesting Dates	 	Settlement Date
	December 18, 2008

	 	600,000 options
	 	33.3% on each of
December 18, 2009,
2010 and 2011
	 	NA
	February 13, 2009

	 	51,652 RSUs
	 	33.3% on each of
February 13, 2010,
2011 and 2012
	 	February 13, 2012
	February 11, 2010

	 	383,529 RSUs
	 	33.3% on each of
February 11, 2011,
2012 and 2013
	 	February 11, 2013






 









 






Annex A



For purposes of the Letter, “Cause” shall mean (i) your conviction of, or plea of guilty or “no
contest” to, any felony; (ii) your conviction of, or plea of guilty or “no contest” to, a violation
of criminal law involving the Company and its business; (iii) your commission of an act of fraud or
theft, or material dishonesty in connection with your performance of duties to the Company; or (iv)
your willful refusal or gross neglect to perform the duties reasonably assigned to you and
consistent with your position with the Company or otherwise to comply with the material terms of
this Letter, which refusal or gross neglect continues for more than fifteen (15) days after you
receive 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). In no event shall your
employment be considered to have been terminated for Cause unless and until you receive a copy of a
resolution adopted by the Board finding that, in the good faith opinion of the Board, you are
guilty of acts or omissions constituting Cause, which resolution has been duly adopted by an
affirmative vote of a majority of the Board, excluding you and any individual alleged to have
participated in the acts constituting Cause. Any such vote shall be taken at a meeting of the Board
called and held for such purpose, after reasonable written notice is provided to you setting forth
in reasonable detail the facts and circumstances claimed to provide a basis of termination for
Cause and you are given an opportunity, together with counsel, to be heard before the Board.