Exhibit 10.26


 


COWEN GROUP, INC.


 


2008 DEFERRED CASH AWARD AGREEMENT


 


THIS AGREEMENT (the “Agreement”)
is made by and between Cowen Group, Inc.,
a Delaware corporation (the “Company”) and 
[  ] (the “Executive”), as of February 2,
2009.


 


RECITALS


 


WHEREAS, the Company has adopted the Cowen Group, Inc. 2006 Equity
and Incentive Plan (the “2006 Plan”) and the shareholders of the Company, upon
recommendation of the Board of Directors, have approved the Cowen Group, Inc.
2007 Equity and Incentive Plan (the “2007 Plan”, together with the 2006 Plan,
collectively referred to herein as the “Plan”) pursuant to which the Executive
has been granted an award (the “Award”); and


 


WHEREAS, the Award shall consist of a grant of deferred cash in
accordance with and subject to the conditions set forth in this Agreement and
the Plan; and


 


WHEREAS, the Executive has accepted the grant of the Award and hereby
agrees to the terms and conditions hereinafter stated; and


 


WHEREAS, the capitalized terms used herein but not defined in Section 2.1
or elsewhere in this Agreement shall have the respective meanings given to them
in the Plan;


 


NOW THEREFORE, in consideration of the foregoing recitals and of the
promises and conditions contained herein, it is agreed as follows:


 


ARTICLE I


GRANT OF DEFERRED CASH


 


Section 1.1 — Grant of Deferred Cash.


 


The Company has granted as of the date hereof (the “Grant Date”) the
right to receive [  ] Dollars ($[  ]  in
deferred cash, less applicable tax and payroll deductions and subject to the
conditions and restrictions set forth below (the “Deferred Cash”).  The Company expressly reserves the right to
settle the Award in the form of cash or in Cowen Group, Inc. stock, at its
sole election.  In the event the Company
elects to settle the Award in the form of Cowen Group, Inc. stock, such
stock shall be valued as of the Vesting Dates, as defined in Section 1.2
herein.


 

















 


Section 1.2 — Vesting Period.


 


Subject to (i) accelerated vesting upon a Change in Control as defined
in Section 7 of the Plan and as determined by the Compensation Committee
of the Company, (ii) the forfeiture and other provisions set forth in Section 1.3
or any other provisions regarding accelerated vesting set forth in the Plan and
as determined by the Compensation Committee of the Company, where applicable, the
Executive shall receive (x) Thirty Three Percent (33%) of the Deferred
Cash subject to this Agreement on May 15, 2010; (y) Thirty Three Percent
(33%) of the Deferred Cash subject to this Agreement on May 15, 2011; and (z) the
remaining Thirty Four Percent (34%) of the Deferred Cash subject to this
Agreement on May 15, 2012 (collectively, the “Vesting Date(s)”, and that
period from Grant Date through the final Vesting Date, the “Restricted Period”).


 


Section 1.3 — Cessation of Employment.


 


(a)                                  Continued
Vesting in the Event of Termination without Cause.  If the Executive’s employment or service with
the Company and its Subsidiaries and Affiliates is terminated other than as a
result of Resignation, death, Disability or Retirement, or for Cause, then any
unvested Deferred Cash shall continue to vest in accordance with, and be
payable according to, the schedule set forth in Section 1.2 above.


 


(b)                                 Continued
Vesting in the event of Retirement. 
In the event that the Executive’s employment or service with the Company
and its Subsidiaries and Affiliates is terminated as a result of the Executive’s
Retirement, then the Deferred Cash shall continue to vest in accordance with, and
be payable according to, the schedule set forth in Section 1.2 above,
provided, however, that if prior to the fourth anniversary of the Grant Date,
the Executive (X) violates any provision of this Agreement or (Y) directly
or indirectly, in one or a series of transactions, owns, manages, operates,
controls, invests or acquires an interest in, whether as a proprietor, partner,
stockholder, member, lender, director, officer, employee, joint venturer,
investor, lessor, supplier, customer, agent, representative or other
participant, or otherwise engages or participates in, whether as a proprietor,
partner, stockholder, member, lender, director, officer, employee, joint
venturer, investor, lessor, supplier, customer, agent, representative or other
participant, any business which competes, directly or indirectly, with any businesses
of the Company or any Subsidiary or any Affiliate of the Company (as determined
by the Company) (“Competitive Business”), then the Executive shall forfeit any unvested
or unpaid Deferred Cash and shall repay to the Company any Deferred Cash that the
Executive received after Retirement under this Agreement. Notwithstanding the
foregoing, ownership by the Executive as a passive investor of less than one
percent (1%) of the stock of a corporation that is traded on an established
exchange shall not constitute a violation of clause (Y) above.


 


(c)                                  Acceleration.  If the Executive’s employment or service with
the Company or any Subsidiaries or any Affiliates of the Company is terminated
as a result of death or Disability, the unvested Deferred Cash shall immediately
vest in full as of the 


 

















 


Termination
Date, and become payable within thirty (30) days after the Termination Date.


 


(d)                                 Forfeiture.  If the Executive’s employment or service with
the Company or any Subsidiaries or any Affiliates of the Company is terminated
due to the Executive’s Resignation or by the Company for Cause, then any
unvested or unpaid Deferred Cash shall immediately be forfeited to the Company
as of the Termination Date and neither the Executive nor any of the Executive’s
successors, heirs, assigns, or personal representatives shall thereafter have
any further rights or interests in such Deferred Cash.  In addition, in the event of a Termination
for Cause, the Executive shall pay to the Company an amount equal to the
Deferred Cash previously paid to the Executive under this Agreement.  In the event of Termination without Cause, where
the Executive is permitted to receive payments of the Deferred Cash pursuant to
Section 1.3(a), if the Company reasonably determines that the Executive has
violated any of the provisions of paragraphs (b), (c), (d), (e), (f) or (g) of
Section 2.2 herein, then any unvested or unpaid Deferred Cash shall
immediately be forfeited to the Company as of the Termination Date and neither
the Executive nor any of the Executive’s successors, heirs, assigns, or
personal representatives shall thereafter have any further rights or interests
in such Deferred Cash.


 


Section 1.4 — Change in Control.


 


In the event of a Change in Control as defined in Section 7
of the Plan and as determined by the Compensation Committee of the Company, any
unvested Deferred Cash shall immediately vest in full as of the date of the
Change in Control and be payable according to the schedule set forth in Section 1.2
above.  However, in the event of a
termination by the Company for Cause subsequent to a Change in Control, any unpaid
Deferred Cash shall immediately be forfeited to the Company as of the
Termination Date and neither the Executive nor any of the Executive’s
successors, heirs, assigns, or personal representatives shall thereafter have
any further rights or interests in such Deferred Cash.  In addition, in the event of a Termination
for Cause subsequent to a Change in Control, the Executive shall pay to the
Company an amount equal to the Deferred Cash previously paid to the Executive
under this Agreement.


 


Section 1.5 — Taxes.


 


Any payments of Deferred Cash will be reduced by all
applicable federal, state, or local tax withholdings and any other required
withholdings.


 


ARTICLE II


MISCELLANEOUS


 


Section 2.1 — Definitions.


 


(a)                                  “Cause” shall have the meaning set forth in the Executive’s
employment or other agreement with the Company or any Subsidiary or any
Affiliate of the Company, 


 

















 


provided that if the Executive is not a party to any such
employment or other agreement or such employment or other agreement does not
contain a definition of Cause, then Cause shall mean, when the Company, in good faith and its sole discretion, determines that
any of the following occurs: (x) a breach by the Executive of any
provisions of the Plan or this Agreement, including, but not limited to, any of
the restrictive covenants set forth in paragraphs (a), (b), (c), (d), (e), (f) or
(g) under Section 2.2 of this Agreement, or (y) (i) the Executive has been convicted of any
crime (whether or not related to his or her duties at the Company or any
Subsidiary or Affiliate of the Company); (ii) fraud, dishonesty, gross
negligence or substantial misconduct in the Executive’s performance of his or
her duties and responsibilities; (iii) the Executive’s violation of, or
failure to comply with, the internal policies of the Company or any
Subsidiary or any Affiliate of the Company
or the rules and regulations of any regulatory or self-regulatory
organization with jurisdiction over the Company or any Subsidiary or any
Affiliate of the Company; or (iv) the
Executive’s failure to perform the material duties of his or her position,
including, by way of example and not of limitation, the failure or refusal to
follow instructions reasonably given by the Executive’s superiors in the course
of employment.


 


(b)                                 “Disability” means that the Executive (i) is unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less than 12
months, or (ii) is, by reason of any medically determinable physical or
mental impairment which can be expected to result in death or can be expected
to last for a continuous period of not less than 12 months, receiving income
replacement benefits for a period of not less than 3 months under an accident
and health plan covering employees of the Company or any Subsidiary or any
Affiliate of the Company.


 


(c)                                  “Resign” or “Resignation” shall mean any voluntary
termination of employment by the Executive and shall, for vesting purposes,
commence on the earlier of (i) the commencement of the Notice Period, or (ii) the
Termination Date.


 


(d)                                 “Retirement” or “Retire” shall mean any retirement in
accordance with the applicable policies of the Company, if any, as amended from
time to time, and after the retiree having attained the age of fifty-five (55) and
completed five (5) years of continuous service with the Company; provided,
that such retiree shall certify in writing to the Company that the Executive
will permanently retire as of the Termination Date and will not thereafter be
employed by or otherwise engage in any Competitive Business.


 


(e)                                  “Termination Date” shall mean the date of termination of
employment or service, whether by death, Disability or otherwise.


 


Section 2.2 — Notice of
Termination and Restrictive Covenants.


 


(a)                                  Notice of Termination. 
The Executive shall not voluntarily Retire, Resign or otherwise terminate his
or her employment relationship with the Company or any of the Company’s
Subsidiaries or Affiliates, for any reason or no reason, without first giving 


 

















 


the Company at least one hundred eighty (180) days’ prior
written notice of the effective date of such Retirement, Resignation or other
termination (the “Notice Period”).   Such written notice shall be sent in
accordance with Section 2.5 of this Agreement.  The Company retains
the right to waive the notice requirement in whole or in part or to place the
Executive on paid leave for all or part of this Notice Period.  In the
alternative, at any time after the Executive gives notice, the Company may, but
shall not be obligated to, provide the Executive with work and (i) require
the Executive to comply with such conditions as it may specify in relation to
transitioning the Executive’s duties and responsibilities; (ii) assign the
Executive other duties; or (iii) withdraw any powers vested in, or duties
assigned to the Executive.  Any vesting or payment of Deferred Cash awarded
pursuant to this Agreement shall cease at the commencement of the Notice
Period.


 


(b)                                 Non-Solicitation.   The Executive agrees that during the
Executive’s employment, or if the Executive voluntarily terminates employment
or if the Executive’s employment is terminated, for any reason or no reason,
the Executive shall not, during the Executive’s employment, Notice Period and
for a period of one hundred eighty (180) days following the expiration of the
Notice Period, without the Company’s prior written consent, directly or
indirectly: (i) solicit or induce, or cause others to solicit or induce,
any director, officer or employee of the Company or any Subsidiary or any
Affiliate of the Company, to leave the Company, such Subsidiary or Affiliate or
in any way modify their relationship with the Company, such Subsidiary or
Affiliate; (ii) hire or cause others to hire any director, officer or
employee of the Company or any Subsidiary or any Affiliate of the Company; (iii) encourage
or assist in the hiring process of any director, officer or employee of the
Company or any Subsidiary or any Affiliate of the Company, or in the
modification of any such person’s relationship with the Company, such
Subsidiary or Affiliate, or cause others to participate, encourage or assist in
the hiring process of any director, officer or employee of the Company or any
Subsidiary or any Affiliate of the Company; (iv) interfere in any way with
the rendering of professional services to the Company or any Subsidiary or any
Affiliate of the Company by any client, prospective client, consultant,
independent contractor or vendor, or their respective individual employees; or (v) solicit
the trade or patronage of any client or customer or any prospective client or
customer of the Company or any Subsidiary or any Affiliate of the Company for
purposes of engaging in any business relationship with respect to any products,
services, trade secrets or other matters in which the Company or such
Subsidiary or such Affiliate of the Company is active.


 


(c)                                  Non-Disclosure of Confidential Information.  The Executive shall
not at any time, whether during the Executive’s employment or following the
termination of employment, for any reason whatsoever, directly or indirectly,
disclose or furnish to any entity, firm, corporation or person, except as
otherwise required by applicable law, any confidential or proprietary
information of the Company or any Subsidiary or any Affiliate of the Company; provided,
however, that in the event disclosure is required by applicable law, the
Executive shall provide the Company or any Subsidiary or any Affiliate of the
Company, as applicable, with prompt notice of such requirement prior to making
any disclosure, so that the Company, such Subsidiary or Affiliate of the
Company, as applicable, may seek an appropriate protective order.  “Confidential or propriety 


 

















 


information” shall mean information generally unknown to the
public to which the Executive gains access by reason of the Executive’s relationship
with the Company or any Subsidiary or any Affiliate of the Company, and
includes, but is not limited to, information relating to all present or
potential customers, business and marketing plans, sales, trading and financial
data and strategies, salaries and employment benefits, and operational costs.


 


(d)                                 Non-Disparagement.  The Executive shall not at any time, whether
during the Executive’s employment or following the termination of employment,
for any reason whatsoever, and shall not cause or induce others to, defame or
disparage the Company or any Subsidiary or any Affiliate of the Company, or the
directors or officers of the Company or any Subsidiary or any Affiliate of the
Company.


 


(e)                                  Company Property.  All records, files, memoranda, reports, customer
information, client lists, documents and equipment relating to the business of
the Company or any Subsidiary or any Affiliate of the Company which the
Executive prepares, possesses or comes into contact with while the Executive is
an employee of the Company or any Subsidiary or any Affiliate of the Company,
shall remain the sole property of the Company, such Subsidiary or
Affiliate.  The Executive agrees that
upon the Executive’s termination of employment, for any reason or no reason,
the Executive shall provide to the Company or any Subsidiary or any Affiliate
of the Company, as applicable, all documents, papers, files or other material
in the Executive’s possession and under the Executive’s control that are
connected with or derived from the Executive’s services to the Company or any
Subsidiary or any Affiliate of the Company. 
The Executive agrees that the Company or the applicable Subsidiary or
Affiliate of the Company, owns all work product, patents, copyrights and other
material produced by the Executive during the Executive’s employment with the
Company or any Subsidiary or any Affiliate of the Company.


 


(f)                                    Compliance with Company Policies.  The Executive agrees
to fully comply with the applicable internal policies of the Company or any
Subsidiary or any Affiliate of the Company, as such policies may be amended
from time to time, at any time, during the Executive’s employment by Company or
any Subsidiary or any Affiliate of the Company.


 


(g)                                 Cooperation.  The Executive agrees to cooperate fully with
the Company or any Subsidiary or any Affiliate of the Company at any time,
whether during the Executive’s employment or following the termination of
employment, taking into account the requirements of any subsequent employment
by the Executive, on all matters relating to the Executive’s employment, which
cooperation shall be provided without additional consideration or compensation
and shall include, without limitation, being available to serve as a witness
and be interviewed and making available any books, records or other documents
within the Executive’s control, provided, however, that the Executive need not
take any action hereunder that would constitute a violation of law or an
obligation to any third party or cause a waiver of attorney-client privilege.  Without limiting the generality of the
foregoing, the Executive shall cooperate in connection with any (i) past,
present or future suit, countersuit, action, arbitration, mediation,
alternative 


 

















 


dispute resolution process, claim, counterclaim, demand,
proceeding; (ii) inquiry, proceeding or investigation by or before any
governmental authority; or (iii) arbitration or mediation tribunal, in
each case involving the Company or any Subsidiary or any Affiliate of the
Company.  In connection with the
Executive’s providing such cooperation, the Company or any Subsidiary or any
Affiliate of the Company, as applicable, shall reimburse the Executive for
reasonable travel, lodging and other expenses incurred by the Executive, upon
submission of documentation reasonably acceptable to the Company or any
Subsidiary or any Affiliate of the Company, as applicable.


 


(h)                                 Injunctive Relief.  In the event of a breach by the Executive of
the Executive’s obligations under this Agreement, the Company, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this
Agreement.  The Executive acknowledges
that the Company shall suffer irreparable harm in the event of a breach or
prospective breach of paragraphs (a), (b), (c), (d), (e), (f) or (g) of
this Section 2.2 and that monetary damages would not be adequate
relief.  Accordingly, the Company shall
be entitled to seek injunctive relief in any federal or state court of competent
jurisdiction located in New York County, or in any state in which the Executive
resides.  The Executive further agrees
that the Company or any Subsidiary or any Affiliate of the Company shall be
entitled to recover all costs and expenses (including attorneys’ fees) incurred
in connection with the enforcement of the Company’s rights hereunder.


 


Section 2.3 — Offset.


 


In the event that the Executive
voluntarily terminates employment or if the Executive’s employment is
terminated, for any reason or no reason, the Company may offset, to the fullest
extent permitted by law, any amounts of money, Deferred Cash or shares of Stock
due to the Company from the Executive, or advanced or loaned to the Executive
by the Company, from any monies, Deferred Cash or shares of Stock owed to the
Executive or the Executive’s estate by the Company as a result of such
termination of employment.


 


Section 2.4 — Governing Law.


 


This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
other than its laws regarding conflicts of law (to the extent that the
application of the laws of another jurisdiction would be required
thereby).  The Committee shall have final
authority to interpret and construe this Agreement and to make any and all
determinations under them, and its decision shall be binding and conclusive
upon the Executive and the Executive’s legal representative in respect of any
questions arising under this Agreement.


 


Section 2.5 — Notices.


 


Any notice to be given under
the terms of this Agreement shall be in writing and addressed to the Company at
1221 Avenue of the Americas, New York, NY 


 

















 


10020, Attention: Head of
Human Resources, and to the Executive at the Executive’s home address as of the
date of this Agreement or at such other address as either party may hereafter
designate in writing to the other by like notice.


 


Section 2.6 — Effect of Agreement.


 


Except as otherwise provided
hereunder, this Agreement shall be binding upon and shall inure to the benefit
of any successor or successors of the Company.


 


Section 2.7 — Amendment.


 


This Agreement may not be
amended or modified in any manner (including by waiver) except by an instrument
in writing signed by both parties hereto. 
The waiver by either party of compliance with any provision of this
Agreement shall not operate or be construed as a waiver of any other provision
of this Agreement or of any subsequent breach of such party of a provision of
this Agreement.


 


Section 2.8 — No Right to Continued Employment.


 


Nothing in this Agreement shall be
deemed to confer on the Executive any right to continued employment with the
Company or any Subsidiary or any Affiliate of the Company.


 


Section 2.9 — Section 409A.


 


This
Agreement is intended to comply with the requirements of Section 409A and
shall be interpreted accordingly.  In the
event that any provision of this Agreement would cause this Agreement to become
subject to Section 409A or cause this Agreement to fail to comply with Section 409A,
such provision may be deemed null and void and the Company and the Executive
agree to amend or restructure this Agreement, to the extent necessary and
appropriate to avoid adverse tax consequences under Section 409A.  To the extent (i) any payments to which
the Executive becomes entitled under this agreement, or any agreement or plan
referenced herein, in connection with the Executive’s separation of service
from the Company constitute deferred compensation subject to Section 409A
and (ii) Executive is deemed by the Company at the time of such separation
of service to be a “specified” employee under Section 409A, as determined
by the Company, by which determination the Executive agrees that he is bound,
then such payment or payments shall not be made or commenced until the earliest
of (i) the expiration of the six (6)-month period measured from the date
of the Executive’s “separation from service” (as such term is defined below); (ii) the
date the Executive becomes “disabled” (as defined in Section 409A of the
Code); or (iii) the date of the Executive’s death following such
separation from service; provided, however, that such deferral shall only be
effected to the extent required to avoid adverse tax treatment to the
Executive, including (without limitation) the additional twenty percent (20%)
tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of
the Code in the absence of such deferral. 
Upon the expiration of the applicable deferral period, any payments
which would have otherwise been made during that period (whether in a single
sum or in installments) in the absence of this paragraph shall be paid to the
Executive or 


 

















 


the Executive’s
beneficiary in one lump sum. With respect to any determination that the
benefits provided for in this Agreement are subject to Section 409A, then
each payment is a separate payment and, to the extent any payment under this
Agreement may be classified as a “short-term deferral” within the meaning of Section 409A,
such payment shall be deemed a short-term deferral, even if it may also qualify
for an exemption from Section 409A under another provision of Section 409A.
For purposes of this Agreement, separation or termination of the Executive’s
employment with, or Resignation from, the Company or any Subsidiary or any
Affiliate of the Company shall mean “separation from service” within the
meaning of Section 409A of the Code and Section 1.409A-1(h) of
the regulations issued under the Code or any successor regulations.  In any event, the Company makes no
representations or warranties and shall have no liability to the Executive or
any other person if any provisions of or payments under this Agreement are
determined to constitute deferred compensation subject to Code Section 409A
but not to satisfy the conditions of that section.


 


Section 2.10 — Entire Agreement.


 


The
Plan is incorporated herein by reference. 
The Plan and this Agreement constitute the entire agreement of the
parties with respect to the subject matter hereof and supersede in their
entirety all prior undertakings, agreements, correspondence and term sheets of
or between the Company and the Executive with respect to the subject matter
hereof.  If there is a conflict between
the terms and conditions of the Plan and the terms and conditions of this Award
Agreement, the terms and conditions of the Plan shall govern.


 


Section 2.11 — Arbitration.


 


(a)                                  Any and all disputes arising out of or relating to this
Agreement or to the Executive’s employment with the Company or any Subsidiary
or any Affiliate of the Company, including any statutory claims based on
alleged discrimination, shall be submitted to, and resolved exclusively by, the
American Arbitration Association (“AAA”) pursuant to the AAA’s Employment
Arbitration Rules and Mediation Procedures.  The arbitration shall be held in the City of
New York.  In agreeing to arbitrate these
disputes, the Executive recognizes that the Executive is waiving the Executive’s
right to a trial in court and by a jury. 
The arbitration award shall be final and binding upon both parties, and
judgment upon the award may be entered in a court of competent jurisdiction.


 


(b)                                 The arbitrators shall not have authority to amend, alter,
modify, add to or subtract from the provisions hereof.  The award of the arbitrators, in addition to
granting the relief prescribed above and such other relief as the arbitrators
may deem proper, may contain provisions commanding or restraining acts or
conduct of the parties or their representatives and may further provide for the
arbitrators to retain jurisdiction over this Agreement and the enforcement
thereof.  If either party shall
deliberately default in appearing before the arbitrators, the arbitrators are
empowered, nonetheless, to take the proof of the party appearing and render an
award thereon.


 

















 


(c)                                  This Section 2.11 shall not be construed to limit the
Company’s right to obtain relief under Section 2.2(h) (relating to
equitable remedies) with respect to any matter or controversy subject to Section 2.2(h),
and, pending a final determination by the arbitrators with respect to any such
matter or controversy, the Company shall be entitled to obtain any such relief
by direct application to state, federal or other applicable court, without
being required to first arbitrate such matter or controversy.


 

















 


IN WITNESS
WHEREOF, the Company has caused this Agreement to be executed on its behalf by
a duly authorized officer, and the Executive has hereunto set the Executive’s
hand on the date indicated below.


 


	
   

  	
  COWEN GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  
	
   

  	
   

  	
  CHRISTOPHER A. WHITE

  
	
   

  	
   

  	
  VICE PRESIDENT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   Date: