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TABLE OF CONTENTS
TABLE OF CONTENTS
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy
Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
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Filed by the Registrant
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Filed by a Party other than the Registrant
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Check the appropriate box:
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material under §240.14a-12
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Institutional Financial Markets, Inc.
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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Payment of Filing Fee (Check the appropriate box):
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No fee required.
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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(1)
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Title of each class of securities to which transaction applies:
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(2)
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Aggregate number of securities to which transaction applies:
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(3)
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Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):
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(4)
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Proposed maximum aggregate value of transaction:
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(5)
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Total fee paid:
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Fee paid previously with preliminary materials.
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
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(1)
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Amount Previously Paid:
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(2)
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Form, Schedule or Registration Statement No.:
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Date Filed:
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INFORMATION ABOUT THE ANNUAL MEETING
November 10,
2016
Dear
Stockholder:
You
are cordially invited to attend the annual meeting of stockholders of Institutional Financial Markets, Inc., which will be held on December 21, 2016, at
10:00 a.m., local time, at the offices of Duane Morris LLP, located at 1540 Broadway, New York, New York 10036.
We
are pleased to furnish our proxy materials to most of our stockholders over the Internet. We believe that this e-proxy process expedites stockholders' receipt of our proxy materials
and reduces the costs and environmental impact of our annual meeting. Only stockholders who directly owned shares of our common stock and/or our Series E Voting Non-Convertible Preferred Stock
(also known as "record holders") as of the close of business on October 26, 2016, the record date for the annual meeting, will receive paper copies of our proxy materials. On or about
November 10, 2016, we will have mailed to our record holders our proxy materials and, to all of our other stockholders, a Notice of Internet Availability of Proxy Materials containing
instructions on how to access our 2016 proxy statement and annual report and vote online. For those stockholders that only receive a Notice of Internet Availability of Proxy Materials, the Notice
contains instructions on how you can receive a paper copy of the proxy statement and annual report.
The
attached proxy statement, with the accompanying formal notice of the meeting, describes the matters expected to be acted upon at the meeting. We urge you to review these materials
carefully and to take part in the affairs of our company by voting on the matters described in the proxy statement.
Your
vote is very important. You may vote your shares of common stock or Series E Voting Non-Convertible Preferred Stock via a toll-free telephone number or over the Internet. If
you received a paper copy of the proxy card by mail, you may vote by signing, dating and mailing the proxy card in the envelope provided. Instructions regarding these three methods of voting are
contained in our proxy materials. If you attend the meeting in person, you may continue to have your shares of common stock or Series E Voting Non-Convertible Preferred Stock voted as
instructed in your proxy or you may withdraw your proxy and vote your shares of common stock or Series E Voting Non-Convertible Preferred Stock at the meeting in person. We look forward to
seeing you at the meeting.
On
behalf of our management team and our Board of Directors, I would like to express our appreciation for your continued support of Institutional Financial Markets, Inc.
Sincerely,
Jack
J. DiMaio, Jr.
Chairman
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ELECTRONIC AND TELEPHONE PROXY AUTHORIZATION
Institutional Financial Markets, Inc.'s stockholders of record on the close of business on October 26, 2016, the record date for
the 2016 annual meeting of stockholders, may authorize their proxies to vote their shares by telephone or Internet by following the instructions in Institutional Financial Markets, Inc.'s proxy
materials. If you have any questions regarding how to authorize your proxy by telephone or Internet, please call Institutional Financial Markets, Inc. Investor Relations
at (215) 701-8952.
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NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
To
the Stockholders of Institutional Financial Markets, Inc.:
Notice
is hereby given that the annual meeting of stockholders of Institutional Financial Markets, Inc., a Maryland corporation, will be held on December 21, 2016, at
10:00 a.m., local time, at the offices of
Duane Morris LLP, located at 1540 Broadway, New York, New York 10036, to consider and vote on the following matters:
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1.
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To
elect eight directors, each to serve until the next annual meeting of stockholders and until his or her successor is duly elected and qualified, or until his or
her earlier death, resignation or retirement;
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2.
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To
approve Amendment No. 1 to the Company's Second Amended and Restated 2010 Long-Term Incentive Plan to increase the number of shares of the Company's common
stock authorized for issuance thereunder from 7,080,000 shares to 9,080,000 shares;
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3.
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To
approve, on an advisory basis, the compensation of the named executive officers of the Company, as disclosed in the proxy statement;
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4.
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To
ratify the appointment of Grant Thornton LLP as our independent registered public accounting firm for the year ending December 31, 2016; and
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5.
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To
transact such other business as may properly come before the meeting or any adjournment or postponement thereof.
Our
Board of Directors has fixed the close of business on October 26, 2016 as the record date for determining the stockholders entitled to notice of, and to vote at, the annual
meeting, and at any adjournments or postponements thereof. Only stockholders of record of our common stock and our Series E Voting Non-Convertible Preferred Stock, par value $0.001 per share,
at the close of business on the record date will be entitled to notice of, and to vote at, the annual meeting and at any adjournments or postponements thereof.
The
Board has a contractual obligation to recommend to the Company's stockholders the election of Daniel G. Cohen, the current Vice Chairman of the Board, at the Company's 2016 annual
meeting of stockholders, as further described in the section entitled "
Rights of Certain Stockholders to Nominate Directors
" under Proposal
One—Election of Directors.
Your vote is very important. Accordingly, you are asked to vote, whether or not you plan to attend the annual meeting.
You
may vote: (1) by telephone, by calling the toll-free number as instructed in our proxy materials, (2) by using the Internet, as instructed in our proxy materials, (3) by mail (if
you received your proxy materials by mail), by marking, signing, dating and returning the attached proxy card in the postage-paid envelope that we have provided, or (4) by attending the annual
meeting in person. For specific instructions on voting, please refer to our proxy materials or the information forwarded to your broker, bank or other holder of record. Any stockholder of our company
attending the annual meeting may vote in person even if he or she has previously voted using the telephone, the Internet or a proxy card. If you plan to attend the annual meeting to vote in person and
your shares are registered with our transfer agent, Computershare, in the name of a broker, bank, or other nominee, you must obtain a proxy issued in your name from such broker, bank or other nominee.
By
Order of the Board of Directors,
Rachael
Fink
Secretary
November 10,
2016
Philadelphia, Pennsylvania
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ATTENDANCE AT ANNUAL MEETING—ADMISSION POLICY AND PROCEDURES
The 2016 Annual Meeting of Stockholders (the "meeting") of Institutional Financial Markets, Inc. (the "Company") will begin promptly at
10:00 a.m., local time, on December 21, 2016 at the offices of Duane Morris LLP, located at 1540 Broadway, New York, New York 10036. All attendees must present a
valid photo identification to be admitted to the meeting. Cameras (including cellular phones or personal digital assistants (PDAs) with photographic capabilities), recording devices and other
electronic devices, and the use of cellular phones or PDAs, will not be permitted at the meeting. Representatives of the Company will be at the entrance to the meeting and these representatives will
have the authority, on the Company's behalf, to determine whether the admission policy and procedures have been followed and whether you will be granted admission to the meeting.
Admission Policy
Attendance at the meeting is limited to:
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(A)
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Stockholders
of record ("record holders") on the close of business on October 26, 2016, the record date for the meeting (the "record date"), or authorized
representatives of entities who are record holders. Authorized representatives of entities who are record holders must present a letter from the entity certifying to their status as an authorized
representative.
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(B)
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Stockholders
whose shares are held for them by banks, brokerages or other intermediaries ("beneficial holders"). Beneficial holders must present evidence of their
ownership, such as a letter from the bank, broker or other intermediary confirming ownership, or the relevant portion of a bank or brokerage firm account statement.
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(C)
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Authorized
representatives of entities who are beneficial holders. In addition to any evidence required under paragraph (B) above, authorized representatives
must present: (1) a letter from the record holder certifying to the beneficial ownership of the entity they represent, and (2) a letter from the entity certifying to their status as an
authorized representative.
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Appendix A:
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Second Amended and Restated 2010 Long-Term Incentive Plan and Amendment No. 1 to the Second Amended and Restated 2010 Long-Term Incentive Plan.
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INSTITUTIONAL FINANCIAL MARKETS, INC.
Cira Centre, 2929 Arch Street, 17
th
Floor, Philadelphia, Pennsylvania 19104
PROXY STATEMENT
ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON DECEMBER 21, 2016
INFORMATION ABOUT THE ANNUAL MEETING
Introduction
Why You Have Received This Proxy Statement
You have received these proxy materials because the Board of Directors (the "Board" or the "Board of Directors") of Institutional Financial
Markets, Inc., a Maryland corporation (the "Company"), is soliciting your proxy to vote your shares at the Company's 2016 annual meeting of stockholders, or the "meeting," to be held on
December 21, 2016 at 10:00 a.m., local time, at the offices of Duane Morris LLP, located at 1540 Broadway, New York, New York 10036, or at any postponement or adjournment of the
meeting. This proxy statement includes information that we are required to provide to you under the rules of the U.S. Securities and Exchange Commission, or the SEC, and that is designed to assist you
in voting your shares. On or about November 10, 2016, paper copies of our proxy materials will have been mailed to our stockholders who directly own shares of our common stock (known as "record
holders") as of the close of business on October 26, 2016. In addition, on or about November 10, 2016, the Notice of Internet Availability of Proxy Materials (the "Notice"), containing
instructions on how to access this proxy statement and our annual report and how to vote over the Internet will have been mailed to all of our other stockholders as of the close of business on
October 26, 2016.
Notice of Electronic Availability of Proxy Statement and Annual Report
As permitted by SEC rules, the Company is making this proxy statement and its annual report available to its stockholders electronically via the
Internet. On or about November 10,
2016, we will have mailed to our stockholders (other than record holders) the Notice, which contains instructions on how to access this proxy statement and our annual report and vote online. If you
received the Notice by mail, you will not receive a printed copy of the proxy materials in the mail. Instead, the Notice instructs you on how to access and review all of the important information
contained in the proxy statement and annual report over the Internet. The Notice also instructs you on how you may submit your proxy over the Internet. If you received the Notice by mail and would
like to receive a printed copy of our proxy materials, you should follow the instructions for requesting such materials contained in the Notice.
Who May Vote
Only holders of record of shares of our common stock, par value $0.001 per share ("common stock"), and/or our Series E Voting
Non-Convertible Preferred Stock, par value $0.001 per share ("Series E Preferred Stock"), at the close of business on October 26, 2016, the record date for the meeting (the "record
date"), are entitled to receive notice of, and to vote at, the meeting or any adjournment or postponement thereof. Each stockholder of record as of the close of business on the record date is entitled
to one vote on each matter properly brought before the meeting for each share of common stock and for each share of Series E Preferred Stock held by such stockholder as of such time.
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How You May Vote
You may vote using any of the following methods:
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•
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BY MAIL:
If you have received your proxy materials by mail, mark, sign, and
date the attached proxy card and return it in the postage-paid envelope that we have provided. The named proxies will vote your shares according to your directions. If you sign and submit the proxy
card, which is attached to this proxy statement, without indicating your vote, the named proxies will vote your shares in favor of the Company's nominees named in this proxy statement and in favor of
all other proposals.
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•
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BY TELEPHONE OR OVER THE INTERNET:
Authorize a proxy by telephone by
following the instructions in the attached proxy card or over the Internet by following the instructions in the Notice. If you hold shares of the Company's common stock or Series E Preferred
Stock in "street name," please refer to the voting instruction form used by your broker, bank or nominee to see if you may submit voting instructions by telephone or over the Internet. If you vote by
telephone or over the Internet, you do not need to return the attached proxy card to the Company by mail.
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•
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BY ATTENDING THE ANNUAL MEETING IN PERSON:
Attend the meeting and vote in
person. If your shares of the Company's common stock or Series E Preferred Stock are held in the name of a bank, broker or other nominee, you must obtain a proxy from the record holder,
executed in your favor, and bring it with you to hand in with your ballot, in order to be able to vote in person at the meeting.
We
encourage stockholders to submit their proxies in advance of the meeting. Voting by proxy in advance of the meeting will in no way limit your right to attend and vote at the meeting
if you later decide to attend the meeting in person. If you are a record holder and have given a proxy to vote your shares, then you may revoke your proxy at any time before it is exercised by:
(a) giving written notice of revocation no later than the commencement of the meeting to our Secretary, Rachael Fink, at Institutional Financial Markets, Inc., Cira Centre, 2929 Arch
Street, 17
th
Floor, Philadelphia, Pennsylvania 19104; (b) delivering no later than the commencement of the meeting a properly executed, later-dated proxy to our Secretary,
Rachael Fink, at Institutional Financial Markets, Inc., Cira Centre, 2929 Arch Street, 17
th
Floor, Philadelphia, Pennsylvania 19104; or (c) voting in person at the
meeting.
If
your shares are held in "street name" by a broker, bank or other nominee, you should follow the instructions provided by your broker, bank or other nominee to submit, change or revoke
your voting instructions.
The
Board has a contractual obligation to recommend to the Company's stockholders the election of Daniel G. Cohen, the current Vice Chairman of the Board, to the Board at the Company's
2016 annual meeting of stockholders. See Proposal One—Election of Directors, "Rights of Certain Stockholders to Nominate Directors" below.
The
named proxies will vote in accordance with your instructions on the matters set forth below and will vote upon any other business that may properly come before the meeting in their
best judgment to the same extent as the person delivering the proxy would be entitled to vote. If you are a holder of record of common stock or Series E Preferred Stock and you return a
properly executed proxy, but do not provide instructions as to one or more matters, the persons named as proxies intend to cast all of the votes you are entitled to cast:
(i)
FOR
the election to the Board of Messrs. Cohen, Costello, Dawson,
DiMaio, Haraburda, McEntee and Subin and Ms. Liberto, the Company's nominees for directorship positions at the meeting; (ii)
FOR
the
approval of Amendment No. 1 to the Second Amended and Restated 2010 Long-Term Incentive Plan to increase the number of shares of the Company's common stock authorized for issuance thereunder
from 7,080,000 shares to 9,080,000
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shares;
(iii)
FOR
the approval, on an advisory basis, of the compensation of the named executive officers of the Company; and
(iv)
FOR
the ratification of the appointment of Grant Thornton LLP as the Company's independent registered public accounting firm for the
year ending December 31, 2016. Other than the matters set forth in this proxy statement and any procedural matters relating to the matters set forth herein, we are not aware of any other
nominees for election as directors or other business that may properly be brought before the meeting.
Quorum
The presence, in person or represented by proxy, of stockholders entitled to cast a majority of the votes entitled to be cast at the meeting is
necessary to constitute a quorum at the meeting. As of the record date, there were 12,090,382 shares of common stock outstanding and entitled to vote at the meeting and 4,983,557 shares of
Series E Preferred Stock outstanding and entitled to vote at the meeting. The common stock and the Series E Preferred Stock vote together on all matters. Each stockholder of record as of
the close of business on the record date is entitled to one vote on each matter properly brought before the meeting for each share of common stock and for each share of Series E Preferred Stock
held by such stockholder as of such time.
If
a quorum is not present at the meeting, the stockholders present in person or represented by proxy have, or the presiding officer at the meeting has, the power to adjourn the meeting
until a quorum is present or represented. Under Maryland law, the presiding officer at the meeting also has the power to adjourn the meeting for any reason, regardless of whether a quorum is present.
Required Vote to Approve Each Proposal
For Proposal One (the election of eight directors to the Board), the eight nominees receiving a plurality of the votes cast (that is, the eight
nominees receiving the greatest number of votes) will be elected to the Board. A proxy marked "withhold" with respect to the election of a director will not be voted as to the director indicated, but
will be counted for purposes of determining whether there is a quorum at the meeting.
In
order to be approved, Proposals Two (the approval of Amendment No. 1 to the Company's Second Amended and Restated 2010 Long-Term Incentive Plan), Three (the approval, on an
advisory basis, of the compensation of the named executive officers of the Company) and Four (the ratification of the appointment of Grant Thornton LLP as the Company's independent registered
public accounting firm for the year ending December 31, 2016) each require the affirmative vote of the majority of all of the votes cast by stockholders present in person or represented by
proxy at the meeting and entitled to vote thereon.
For
purposes of Proposals One (the election of eight directors to the Board), Three (the approval, on an advisory basis, of the compensation of the named executive officers of the
Company) and Four (the ratification of the appointment of Grant Thornton LLP as the Company's independent registered public accounting firm for the year ending December 31, 2016),
abstentions will not be counted as votes cast and will have no effect on the result of the vote, although they will be considered present for the purpose of determining the presence of a quorum. For
purposes of Proposal Two (the approval of Amendment No. 1 to the Company's Second Amended and Restated 2010 Long-Term Incentive Plan), abstentions will count as votes cast and will have the
same effect as votes cast against the proposal because such proposals are subject to the stockholder approval requirements of the NYSE MKT listing rules. For purposes of all proposals, broker
non-votes, if any, will not be counted as votes cast and will have no effect on the result of the vote, although they will be considered present for the purpose of determining the presence of a
quorum. A "broker non-vote" results when a broker, bank or other nominee properly executes and returns a proxy but indicates that the nominee is not voting with
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respect
to a particular matter because the nominee has not received voting instructions from the beneficial owner.
Please
note that brokerage firms or other nominees may not vote your shares with respect to matters that are not "routine" under the rules that guide how most brokers vote your stock.
Proposals One (the
election of eight directors to the Board), Two (the approval of Amendment No. 1 to the Company's Second Amended and Restated 2010 Long-Term Incentive Plan) and Three (the approval, on an
advisory basis, of the compensation of the named executive officers of the Company), are not "routine" matters. Accordingly, most brokerage firms or other nominees may not vote your shares with
respect to such proposals without specific instructions from you as to how your shares are to be voted. Proposal Four (the ratification of the appointment of Grant Thornton LLP as the Company's
independent registered public accounting firm for the year ending December 31, 2016) is a "routine" matter and, therefore, brokerage firms and other nominees will have discretion to vote on
such proposal.
As
of the record date, our executive officers and directors own, in the aggregate, shares of the Company's securities representing approximately 43.6% of the votes entitled to be cast at
the meeting, and intend to vote (i)
FOR
the election to the Board of Messrs. Cohen, Costello, Dawson, DiMaio, Haraburda, McEntee and Subin
and Ms. Liberto, the Company's nominees for directorship positions at the meeting; (ii)
FOR
the approval of Amendment No. 1 to the
Second Amended and Restated 2010 Long-Term Incentive Plan to increase the number of shares of the Company's common stock authorized for issuance thereunder from 7,080,000 shares to 9,080,000 shares;
(iii)
FOR
the approval, on an advisory basis, of the compensation of the named executive officers of the Company; and
(iv)
FOR
the ratification of the appointment of Grant Thornton LLP as the Company's independent registered public accounting firm for the
year ending December 31, 2016. Based on the foregoing, the election of each nominee for director, the approval of Amendment No. 1 to the Second Amended and Restated 2010 Long-Term
Incentive Plan, the approval, on an advisory basis, of the compensation of the named executive officers of the Company, and the ratification of the appointment of Grant Thornton LLP as the
Company's independent registered public accounting firm for the year ending December 31, 2016 are highly likely.
None
of the Proposals, if approved, entitle stockholders to appraisal rights under Maryland law or our charter documents.
Other Information to Review Before Voting
This proxy statement and our Annual Report on Form 10-K, as amended, are both available on our website at
http://www.ifmi.com.
Householding of Proxy Material
The SEC has adopted rules that permit companies and intermediaries (such as banks and brokers) to satisfy the delivery requirements for proxy
statements and annual reports with respect to two or more stockholders sharing the same address by delivering a single proxy statement addressed to those stockholders. This process, which is commonly
referred to as "householding," can result in cost savings. A number of brokers with account holders who are our stockholders will be "householding" our proxy materials. A single Notice will be
delivered to multiple stockholders who share an address unless we received contrary instructions from the impacted stockholders prior to the mailing date. Once you have received notice from your
broker that they will be "householding" communications to your address, "householding" will continue until you are notified otherwise or until you revoke your consent. If, at any time, you no longer
wish to participate in "householding" and would prefer to receive a separate copy of the Notice, our annual report, proxy statement and other proxy materials, please notify your
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broker
or direct your request in writing or by phone to our Secretary, Rachael Fink, at Institutional Financial Markets, Inc., 2929 Arch Street, 17
th
Floor,
Philadelphia, PA 19104; phone: (215) 701-9555.
If
you are a stockholder sharing an address with another stockholder who receives multiple copies of the proxy materials and wish to request "householding" of your communications, please
contact us at the above address or telephone number.
Cost of Proxy Solicitation
All expenses in connection with our solicitation of proxies will be borne by us. In addition to solicitation by mail, proxies may be solicited
on our behalf by our directors, officers or employees in person, by telephone, facsimile or by other electronic means. In accordance with SEC regulations and the rules of the NYSE MKT, we will
reimburse brokerage firms and other custodians, nominees and fiduciaries for their expenses incurred in connection with mailing proxies and proxy materials and soliciting proxies from the beneficial
owners of our common stock.
Questions and Additional Copies
If you have any questions with respect to the Company or the matters described herein, or questions about how to submit your proxy, or if you
need additional copies of this proxy statement or the attached proxy card, you should contact:
Institutional
Financial Markets, Inc.
Cira Centre
2929 Arch Street, 17
th
Floor
Philadelphia, Pennsylvania 19104
Attn: Investor Relations
Phone: (215) 701-8952
Email: investorrelations@ifmi.com
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PROPOSAL ONE—ELECTION OF DIRECTORS
Pursuant to the Maryland General Corporation Law and our charter and Bylaws, our business and affairs are managed under the direction of our
Board of Directors. Our Board of Directors, based on the recommendation of its Nominating and Corporate Governance Committee (the "Nominating and Corporate Governance Committee"), has unanimously
nominated all eight of its current directors, Messrs. Cohen, Costello, Dawson, DiMaio, Haraburda, McEntee and Subin and Ms. Liberto (each a "Company Nominee" and, collectively, the
"Company Nominees"), for election as directors at the annual meeting, each to serve until the next annual meeting of stockholders and until his or her successor has been duly elected and qualified, or
until his or her earlier death, resignation or retirement.
Our
Nominating and Corporate Governance Committee knows of no reason why any of the Company Nominees would be unable or unwilling to serve on the Board of Directors, but if any Company
Nominee should be unable or unwilling to serve, the named proxies will vote
FOR
the election of such
other person for director as the Board of Directors, based on the recommendation of our Nominating and Corporate Governance Committee, may nominate in the place of such Company Nominee.
Names of the Company Nominees and Biographical Information; Qualifications
Daniel G. Cohen
, age 47, has, since September 16, 2013, served as the Vice Chairman of
the Board of Directors and of the board of managers of the Company's majority owned subsidiary, IFMI, LLC, as President and Chief Executive of the Company's European Business, and as President,
a director and the Chief Investment Officer of the Company's indirect majority owned subsidiary, Cohen & Company Financial Limited (formerly known as EuroDekania Management Limited), a
Financial Conduct Authority regulated investment advisor and broker dealer focusing on the European capital markets ("CCFL"). Mr. Cohen served as the Chief Executive Officer and
Chief Investment Officer of the Company from December 16, 2009 to September 16, 2013 and as the Chairman of the Board of Directors from October 6, 2006 to September 16,
2013. Mr. Cohen served as the executive Chairman of the Company from October 18, 2006 to December 16, 2009. In addition, Mr. Cohen served as the Chairman of the board of
managers of IFMI, LLC from 2001 to September 16, 2013, as the Chief Investment Officer of IFMI, LLC from October 2008 to September 16, 2013, and as Chief Executive Officer
of IFMI, LLC from December 16, 2009 to September 16, 2013. Mr. Cohen served as the Chairman and Chief Executive Officer of J.V.B. Financial Group, LLC (formerly
C&Co/PrinceRidge Partners LLC), the Company's indirect broker dealer subsidiary ("JVB"), from July 19, 2012 to September 16, 2013. Mr. Cohen served as a director of Star
Asia Finance, Limited ("Star Asia"), a permanent capital vehicle investing in Asian commercial real estate, until the Company's sale of its interest in Star Asia on February 20, 2014.
Mr. Cohen served as Chairman of Cohen Financial Group, Inc. since its inception in April 2007 until its liquidation in February 2012. Mr. Cohen served as a director of Muni
Funding Company of America, LLC, a company investing in middle-market non-profit organizations until it merged with Tiptree Financial Partners, L.P. in June 2011. Since 2000,
Mr. Cohen has been the Chairman of the board of directors of The Bancorp, Inc. (NASDAQ: TBBK), a holding company for The Bancorp Bank, which provides various commercial and retail
banking products and services to small and mid-size businesses and their principals in the United States, and since January 2015 has served as Executive Chairman of The Bancorp Bank. Mr. Cohen
is a member of the Academy of the University of Pennsylvania, a member of the Visiting Committees for the Humanities and a member of the Paris Center of the University of Chicago. Mr. Cohen is
also a Trustee of the List College Board of the Jewish Theological Seminary, a member of the board of the Columbia Global Center in Paris, a Trustee of the Paideia Institute and a Trustee of the Arete
Foundation.
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Thomas P. Costello
, age 70, has served as our director and as the Chairman of the Audit Committee of the Board of Directors (the "Audit
Committee") since October 6, 2006. Mr. Costello served as a trustee and Chairman of the audit committee of the board of trustees of Alesco Financial Trust ("AFT") from
January 2006 until the merger of Sunset Financial Resources, Inc. ("Sunset") with AFT. Mr. Costello served as a director for KPMG LLP from 2002 to 2004. Prior to that, he was
employed at Arthur Andersen LLP for 35 years, including serving as National Practice Director from 1996 to 2002, where he was responsible for the accounting and audit practices of the
Arthur Andersen offices in the southeast region of the United States. From 1985 to 1996, he served as partner in charge of the accounting and audit practice in Arthur Andersen's Philadelphia office.
Prior to that, he acted as engagement partner where he served clients in numerous industries and worked with both large multinational and small and mid-sized public companies. From December 2006 to
February 2011, Mr. Costello served on the board of directors and was the Chairman of the audit committee of Advanta Corp., a Pennsylvania-based financial services company that is in the process
of liquidation. Mr. Costello also is a member of the Board of Trustees and serves on the Audit and Compliance Committee of Thomas Jefferson University Hospital. Mr. Costello is a
Certified Public Accountant.
G. Steven Dawson
, age 59, has served as our director since January 11, 2005. Mr. Dawson also serves as the Chairman of the
Nominating and Corporate Governance Committee, as a member of the Audit Committee, and as a member of the Compensation Committee of the Board of Directors (the "Compensation Committee").
Mr. Dawson was previously a member of the compensation committee and nominating and corporate governance committee for Sunset, and was also the Chairman of Sunset's special committee in
connection with Sunset's merger with AFT. Mr. Dawson is a private investor and in addition to his current board activities noted above, he has, from time to time, served on the boards of other
public and private companies. He currently serves on the board of directors of Medical Properties Trust (NYSE: MPW), a Birmingham, Alabama-based real estate investment trust ("REIT") specializing in
the ownership of acute care facilities and related medical properties (Chairman of the audit committee and member of the investment committee) and American Campus Communities (NYSE: ACC), an
Austin-based equity REIT focused on student housing (Chairman of the audit committee). From 1990 to 2003, Mr. Dawson served as Chief Financial Officer of Camden Property Trust and its
predecessors, a multi-family REIT based in Houston with apartment operations, construction and development activities throughout the United States.
Jack J. DiMaio, Jr.
, age 49, has served as the Chairman of the Board of Directors since September 24, 2013. Mr. DiMaio is
the founder and Chief Executive Officer of the Mead Park group of companies and has served in this capacity since September 2011. Prior to founding Mead Park, Mr. DiMaio was a Managing Director
and Global Head of Interest Rate, Credit and Currency Trading of Morgan Stanley, and served in this capacity from September 2009 to August 2011. In addition, Mr. DiMaio served as a member of
Morgan Stanley's Management Committee during his tenure at the firm. Prior to joining Morgan Stanley, Mr. DiMaio co-founded DiMaio Ahmad Capital LLC, a New York-based asset manager
specializing in credit markets, and served as the Chief Executive Officer and Managing Partner from February 2005 to August 2009. Before founding DiMaio Ahmad Capital LLC, Mr. DiMaio was
a Managing Director and Head of the Diversified Credit Hedge Fund Group at Credit Suisse Alternative Capital, Inc. from March 2004 to February 2005. Prior to that time, Mr. DiMaio was
the Chief Executive Officer of Alternative Investments at Credit Suisse Asset Management. In addition, Mr. DiMaio was an Executive Board Member of Credit Suisse Securities (USA), Inc.
and of Credit Suisse Asset Management. Mr. DiMaio joined Credit Suisse in 1989, and, after completing its sales and trading program, he joined Credit Suisse's credit research group. In 1990,
Mr. DiMaio joined the Credit Suisse corporate bond trading desk where he was appointed Head Trader in 1995 and the Department Head in 1996. At the end of 1997, Mr. DiMaio was appointed
Head of Credit Suisse Global Credit Trading. In 2000, Mr. DiMaio was responsible for Credit Suisse's entire Global Credit Products Cluster and was named Head of Fixed Income Division North
America. Mr. DiMaio holds a B.S. in Finance from New York Institute of Technology.
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Jack Haraburda,
age 77, has served as our director, a member of the Nominating and Corporate Governance Committee (except for a seven
month period in 2010) and the Chairman of the Compensation Committee since October 6, 2006. Mr. Haraburda served as a trustee and Chairman of the compensation committee of AFT's board of
trustees from January 2006 until Sunset's merger with AFT. Mr. Haraburda is the managing partner of CJH Securities Information Group, a professional coaching business. Mr. Haraburda
served as managing director for the Philadelphia Complex of Merrill Lynch, Pierce, Fenner & Smith Incorporated from 2003 to 2005. He has also served in various positions at Merrill Lynch from
1984 until 2003, including as managing director of Merrill Lynch's Princeton Complex, resident Vice President of Merrill Lynch's Philadelphia Main Line Complex, marketing director and national sales
manager of Merrill Lynch Life Agency and Chairman of Merrill Lynch Metals Company. From 1980 to 1984, he was managing director of Comark Securities, a government securities dealer. From 1968 until
1980, he served as a financial advisor, national sales manager for the Commodity Division, manager of the Atlanta Commodity Office and the Bala Cynwyd office of Merrill Lynch.
Diana Louise Liberto, Esq.
, age 59, has served as our director since December 21, 2015 and serves as a member of the Nominating and
Corporate Governance Committee. Ms. Liberto is a graduate of the Rutgers University School of Law, having earned a Juris Doctor degree with honors. After clerking for a United States District
Court Judge from September 1991 to September 1992, Ms. Liberto worked with a law firm in Philadelphia, Pennsylvania. Ms. Liberto then joined the office of the General Counsel of Wal-Mart
Stores, Inc., serving in various capacities from 2004 until October 2015, including an interim assignment in Wal-Mart India. In October 2015, Ms. Liberto became the Chief Executive
Officer of WalkMyMind, Inc., a corporate and personal wellness company headquartered in Philadelphia, Pennsylvania. Ms. Liberto serves on the advisory board of J3Personica, a medical
education selection and assessment startup company.
James J. McEntee, III
, age 59, has served as our director since December 21, 2015 and serves as a member of the Investment
Committee of the Board of Directors (the "Investment Committee"). Mr. McEntee has been a director of The Bancorp (NASDAQ: TBBK) since September 2000, has been a director of T-REX Group (a
privately held company that provides a comprehensive financial services platform focused on renewable energy assets) since October 2014, served as the Chief Financial Officer and Chief Operating
Officer of FinTech Acquisition Corp (NASDAQ: FNTC) from January 2015 to July 2016, and has served as President and Chief Financial Officer of FinTech Acquisition Corp. II since April 2016.
Mr. McEntee was the Vice-Chairman and Co-Chief Operating Officer of C&Co/PrinceRidge LLC (formerly known as The PrinceRidge Group LLC and now JVB), the Company's broker dealer
subsidiary, from October 2012 until October 2013. Mr. McEntee was the Chief Executive Officer of Alesco Financial, Inc. from the date of its incorporation in 2006 until its merger with
Cohen & Company Inc. in December 2009 and was the Chief Operating Officer of Cohen & Company Inc. from March 2003 until December 2009. Mr. McEntee was a principal in
Harron Capital, L.P., a media and communications venture capital fund, from 1999 to September 2002. From 1990 through 1999, Mr. McEntee was a stockholder at Lamb McErlane, PC, a law
firm, and from 2000 until 2004 was of counsel to Lamb McErlane. Mr. McEntee was previously a director of Pegasus
Communications Corporation, a publicly held provider of communications and other services, and of several other private companies.
Neil S. Subin
, age 52, has served as our director since June 7, 2011. Mr. Subin also serves as a member of the Audit
Committee, the Compensation Committee and the Investment Committee. Mr. Subin has served as Chairman of the Board of Broadbill Investment Partners, LP, a private investment fund, since
2011. Mr. Subin founded and has been the managing director and president of Trendex Capital Management, a private investment fund focusing primarily on financially distressed companies, since
its formation in 1991. Prior to forming Trendex Capital, Mr. Subin was a private investor from 1988 to 1991 and was an associate with Oppenheimer & Co. from 1986 to 1988.
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Mr. Subin
has served as a director of Phosphate Holdings, Inc. (OTC: PHOS.PK) since November 2010 and as a director of Federal-Mogul Corporation (NASDAQ: FDML) since December 2007.
Mr. Subin also served as a director of Primus Telecommunications Group, Incorporated (OTCBB: PMUG.OB) from July 2009 until December 2013, as a director of Movie Gallery, Inc. (OTC:
MOVIQ.PK) from May 2008 to December 2010, as a director of FiberTower Corporation (NASDAQ: FTWR) from December 2001 to December 2009, and as a director of Hancock Fabrics, Inc. (OTC: HKFI.PK)
from August 2009 through December 2015 and as a director of Penn Treaty American Corp. since July 2015.
When
determining whether it is appropriate to re-nominate a current director to continue on the Board of Directors, the Board focuses primarily on the information provided in each of the
director's individual biographies set forth above and its knowledge of the character and strengths of the sitting directors. With respect to Mr. Cohen, the Company considered his years of
executive leadership with IFMI, LLC as well as other companies, his extensive investment experience and his expertise in strategic planning and business expansion. With regard to
Mr. Costello, the Company considered his significant audit experience as well as his expertise and background with regard to accounting and financial matters generally. With regard to
Mr. Dawson, the Company considered his experience as a director of the Company and its predecessors as well as his prior experience as the Chief Financial Officer of a public company and as an
independent director for other public companies. With regard to Mr. DiMaio, the Company considered his significant experience in the financial services industry, including serving in management
positions of other financial institutions, and his unique perspective with respect to corporate strategy and business development. With regard to Mr. Haraburda, the Company considered his
experience as a director of the Company and its predecessors as well as his extensive knowledge of the securities industry. With regard to Ms. Liberto, the Company considered her legal
background and knowledge of corporate governance matters. With regard to Mr. McEntee, the Company considered his extensive leadership in the investment management industry generally, as well as
his deep understanding of the Company, its products and its businesses. With regard to Mr. Subin, the Company considered his extensive experience and expertise in the investment management
field, particularly with respect to investing in financially distressed companies.
Rights of Certain Stockholders to Nominate Directors
On May 9, 2013, the Company entered into a Securities Purchase Agreement (the "CBF Purchase Agreement") regarding a strategic investment
in the Company by Cohen Bros. Financial, LLC, of which Mr. Cohen is the sole member ("CBF"). Pursuant to the CBF Purchase Agreement, the Company agreed, among other things, that at any
meeting at which the Company's stockholders may vote for the election of directors, for so long as CBF, and certain of its affiliates collectively own 10% or more of the Company's outstanding common
stock (as calculated under the CBF Purchase Agreement), CBF may designate one individual to stand for election at such meeting.
In
accordance with the Cohen Purchase Agreement, the Company has nominated Daniel G. Cohen to stand for election to the Board at the meeting and the Board is (a) recommending to
the Company's stockholders the election of Mr. Cohen at the meeting, and (b) soliciting proxies for Mr. Cohen in connection with the meeting to the same extent as it is soliciting
proxies for the other Company Nominees.
Legal Proceedings
None of our directors or executive officers has been involved in any events enumerated under Item 401(f) of Regulation S-K during
the past ten years that are material to an evaluation of the ability or integrity of such persons to be our directors or executive officers.
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No
material proceedings exist in which any of our directors or executive officers is an adverse party to the Company or any of its subsidiaries or has a material interest adverse to the
Company or any of its subsidiaries.
Family Relationships
There is no family relationship between any of our directors or executive officers.
THE BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE
FOR
THE ELECTION OF EACH OF THE EIGHT COMPANY NOMINEES RECOMMENDED
BY THE BOARD OF DIRECTORS' NOMINATING AND CORPORATE GOVERNANCE COMMITTEE AND UNANIMOUSLY APPROVED FOR NOMINATION BY THE BOARD OF DIRECTORS. IN THE ABSENCE OF INSTRUCTIONS TO THE CONTRARY, PROXIES
SOLICITED IN CONNECTION WITH THIS PROXY STATEMENT WILL BE VOTED
FOR
EACH OF THE EIGHT COMPANY NOMINEES.
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CORPORATE GOVERNANCE AND BOARD OF DIRECTORS INFORMATION
This section of our proxy statement contains information about a variety of our corporate governance policies and practices. In this section,
you will find information about how we are complying with the corporate governance rules of the NYSE MKT, which were approved by the SEC. We are committed to operating our business under strong and
accountable corporate governance practices. The information found on, or accessible through, our website is not incorporated into, and does not form a part of, this proxy statement or any other
report or document we file with or furnish to the SEC.
Code of Business Conduct and Ethics
We have established a Code of Business Conduct and Ethics (the "Code of Ethics") which sets forth basic principles of conduct and ethics to
guide all of our employees, officers and directors. The purpose of the Code of Ethics is to:
-
•
-
Promote honest and ethical conduct, including fair dealing and the ethical handling of actual or apparent conflicts of interest between
personal and professional relationships;
-
•
-
Promote avoidance of conflicts of interest, including disclosure to an appropriate person or committee of any material transaction or
relationship that reasonably could be expected to give rise to such a conflict;
-
•
-
Promote full, fair, accurate, timely and understandable disclosure in reports and documents that we file with, or submit to, the SEC and in our
other public communications;
-
•
-
Promote compliance with applicable governmental laws, rules and regulations;
-
•
-
Promote the prompt internal reporting to an appropriate person or committee of violations of the Code of Ethics;
-
•
-
Promote accountability for adherence to the Code of Ethics;
-
•
-
Provide guidance to employees, officers and directors to help them recognize and deal with ethical issues;
-
•
-
Provide mechanisms to report unethical conduct; and
-
•
-
Help foster our long-standing culture of honesty and accountability.
A
waiver of any provision of the Code of Ethics as it relates to any director or executive officer must be approved by our Board of Directors without the involvement of any director who
will be personally affected by the waiver or by a committee consisting entirely of directors, none of whom will be personally affected by the waiver. Waivers of the Code of Ethics for directors or
executive officers will be promptly disclosed to our stockholders as required by applicable law. A waiver of any provision of the Code of Ethics as it relates to any other officer or employee must be
approved by our Chief Financial Officer or Chief Legal Officer, if any, but only upon such officer or employee making full disclosure in advance of the behavior in question.
The
Code of Ethics is available on our website at
http://www.ifmi.com
and is also available in print free of charge to any stockholder who
requests a copy by submitting a written request to Institutional Financial Markets, Inc., Cira Centre, 2929 Arch Street, 17th Floor, Philadelphia, Pennsylvania 19104,
attention: Corporate Secretary.
Director Independence
Our Board of Directors is comprised of a majority of independent directors. In order for a director to be considered "independent," our Board of
Directors must affirmatively determine, based upon its
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review
of all relevant facts and circumstances and after considering all applicable relationships, if any, that each of the directors has no direct or indirect material relationship with the Company
or its affiliates and satisfies the criteria for independence established by the NYSE MKT and the applicable rules promulgated by the SEC. Our Board of Directors has determined that each of the
following members of the Board of Directors is independent: Thomas P. Costello, G. Steven Dawson, Jack Haraburda, Diana Louise Liberto and Neil S. Subin. Our Board of Directors has determined that
Daniel G. Cohen is not independent because he is an employee of the Company. With respect to determining whether James J. McEntee, III is independent, our Board of Directors considered that, per
Section 803(A)(2) of the NYSE MKT Company Guide, a director who was employed by the Company during the past three years will not be considered independent. In light of the fact that this
restrictive period expired with respect to Mr. McEntee only in October 2016, our Board has determined that Mr. McEntee is not independent. Lastly, our Board of Directors has determined
that Jack J. DiMaio, Jr. is not independent because of the contractual relationships and obligations among the Company and Mead Park Advisors LLC (see "Certain Relationships and Related
Party Transactions—Mead Park, Mead Park Advisors LLC, Mr. Ricciardi, Mr. DiMaio and Mr. Edward E. Cohen").
It
is the policy of our Board of Directors that the independent members of our Board of Directors meet separately without management directors at least twice per year during regularly
scheduled Board meetings to discuss such matters as the independent directors consider appropriate. In 2015, the Company's independent directors met separately without management directors two times.
Leadership Structure
The roles of Chairman of the Board and Chief Executive Officer are currently filled by separate individuals. Jack J. DiMaio, Jr.
is our Chairman and Lester R. Brafman is our Chief
Executive Officer. The Board believes that the separation of the offices of the Chairman and Chief Executive Officer is appropriate at this time because it allows our Chief Executive Officer to focus
primarily on the Company's business strategy, operations and corporate vision. However, the Board does not have a policy mandating that the roles of Chairman and Chief Executive Officer continue to be
separated. Our Board elects our Chairman and our Chief Executive Officer, and each of these positions may be held by the same person or may be held by different people. We believe it is important that
the Board retain flexibility to determine whether the two roles should be separate or combined based upon the Board's assessment of the company's needs and leadership at a given point in time.
As
noted above, the independent directors meet without management present at regularly scheduled executive sessions. The current leadership model, when combined with the composition of
the Board, the strong leadership of our independent directors and Board committees and the highly effective corporate governance structures and processes already in place, strikes an appropriate
balance between consistent leadership and independent oversight of the Company's business and affairs.
Role of the Board in Risk Oversight
The Board of Directors as a whole has responsibility for risk oversight, with reviews of certain areas conducted by relevant Board committees
that report on their findings to the Board. The oversight responsibility of the Board and the Board committees is facilitated by management reporting processes designed to provide information to the
Board concerning the identification, assessment and management of critical risks and management's risk mitigation strategies and practices. These areas of focus include compensation, financial
(including accounting, reporting, credit, liquidity and tax), operational, legal, regulatory, compliance, political and strategic risks. The full Board (or the appropriate Board committee), in concert
with the appropriate members of management within the Company, reviews management reports to formulate risk identification, risk management and risk mitigation strategies. When a Board committee
initially reviews management reports, the Chairman of the relevant Board committee briefs the full Board on the specifics of the matter at the next Board
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meeting.
This process enables the Board to coordinate the risk oversight role, particularly with respect to risks spanning more than one operational area. The Board's role in risk oversight does not
have a direct effect on the Board's leadership structure.
Recommendation of Nominees to Our Board of Directors
Subject to the rights of certain stockholders to nominate directors (see Proposal One—Election of Directors, "Rights of Certain
Stockholders to Nominate Directors" above), our Board of Directors is responsible for the selection of nominees for election or appointment to the Board of Directors based on recommendations of our
Nominating and Corporate Governance Committee, which is currently comprised of Mr. Dawson, Mr. Haraburda and Ms. Liberto. Our Nominating and Corporate Governance Committee may
consider nominees recommended by management and stockholders using the criteria approved by the Board of Directors to evaluate all candidates. Our Nominating and Corporate Governance Committee reviews
each candidate's qualifications, including whether a candidate possesses any of the specific qualities and skills desirable for members of the Board of Directors. Evaluations of candidates generally
involve a review of background materials, internal discussions and interviews with selected candidates, as appropriate. Upon selection of a qualified candidate, our Nominating and Corporate Governance
Committee recommends the candidate for consideration by the full Board of Directors. Our Nominating and Corporate Governance Committee may engage consultants or third-party search firms to assist in
identifying and evaluating potential nominees. Nominees for the Board of Directors should be committed to enhancing long-term stockholder value and must possess a high level of personal and
professional ethics, sound business judgment and integrity.
Our
Board of Directors' policy is to encourage the selection of directors who will contribute to our overall corporate goals. Our Nominating and Corporate Governance Committee may, from
time to time, review the appropriate skills and characteristics required of members of our Board of Directors, including such factors as business experience, diversity and personal skills in finance,
marketing, financial reporting and other areas that are expected to contribute to an effective board. We do not have a specific policy on diversity of the Board of Directors. Instead, the Board of
Directors evaluates nominees in the context of the Board of Directors as a whole, with the objective of recommending a group that can best support the success of the business and, based on the group's
diversity of experience, represent stockholder interests through the exercise of sound judgment. Such diversity of experience may be enhanced by a mix of different professional and personal
backgrounds and experiences. Diversity is considered broadly and includes variety in personal and professional backgrounds, experience and skills, geographic location, as well as differences in
gender, race, ethnicity and age. In evaluating potential candidates for our Board of Directors, our Nominating and Corporate Governance Committee will consider these factors in light of the specific
needs of the Board at the time of its evaluation.
Our
Nominating and Corporate Governance Committee may consider director candidates recommended by our stockholders. Our Nominating and Corporate Governance Committee will apply the same
standards in considering candidates submitted by stockholders as it does in evaluating candidates submitted by members of our Board of Directors. To recommend a prospective nominee for consideration
by our Nominating and Corporate Governance Committee, the candidate's name and qualifications must be submitted in writing to our Secretary at Institutional Financial Markets, Inc., Cira
Centre, 2929 Arch Street, 17
th
Floor, Philadelphia, Pennsylvania 19104.
Communications with Our Company
Any employee, stockholder or other person may communicate with our Board of Directors or individual directors. Any such communications may be
sent in writing to Institutional Financial
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Markets, Inc.,
Cira Centre, 2929 Arch Street, 17
th
Floor, Philadelphia, Pennsylvania 19104, Attn: Board of Directors.
Our
Audit Committee has also established procedures for (a) the receipt, retention, and treatment of complaints received by our Company regarding accounting, internal accounting
controls, or auditing matters, and (b) the confidential, anonymous submission by our employees of concerns regarding questionable accounting or auditing matters. If you wish to contact our
Audit Committee to report complaints or concerns relating to the financial reporting of our Company, you may do so in writing to the Chairman of the Audit Committee at Institutional Financial
Markets, Inc., Cira Centre, 2929 Arch Street, 17
th
Floor, Philadelphia, Pennsylvania 19104.
Any
such communications may be made anonymously. We also have a compliance telephone hotline that may be used, on an anonymous basis or otherwise, to report any concerns or violations of
our standards of conduct, policies or laws and regulations. The number to the hotline is (800) 399-3595.
Director Attendance at Annual Meeting
Although director attendance at our annual meeting each year is strongly encouraged, we do not have an attendance policy. Messrs. Cohen,
Costello, Dawson, Haraburda and Subin attended our 2015 annual meeting.
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MEETINGS AND COMMITTEES OF OUR BOARD OF DIRECTORS
Meetings of the Board of Directors
During the 2015 fiscal year, our Board of Directors held five meetings. Each of our directors attended at least 75% of the total number of
meetings held by our Board of Directors during 2015.
Committees of the Board of Directors
The Board of Directors currently has four standing committees: the Audit Committee, the Compensation Committee, the Investment Committee and the
Nominating and Corporate Governance Committee. The Board of Directors has affirmatively determined that each committee member satisfies the independence requirements of the NYSE MKT and the SEC for
membership on the Audit Committee, the Compensation Committee and the Nominating and Corporate Governance Committee. From time to time our Board of Directors may establish a new committee or disband a
current committee depending upon the circumstances.
Audit Committee
We have a separately designated standing Audit Committee of our Board of Directors, as defined in Section 3(a)(58)(A) of the Exchange
Act. The Audit Committee is currently comprised of three of our independent directors: Messrs. Costello, Dawson and Subin. Mr. Costello is the Chairman of our Audit Committee. Our Board
of Directors has determined that each of the members of our Audit Committee is "independent" within the meaning of the rules of the NYSE MKT and the SEC and that each of the members of our Audit
Committee is financially literate and has accounting or related financial management expertise, as such qualifications are defined under the rules of the NYSE MKT. In addition, our Board of Directors
has determined that Mr. Costello is an "audit committee financial expert" as defined by the SEC. Our Audit Committee operates under a written charter that was originally adopted in 2006 and
amended in 2007, 2009 and 2014. A copy of the charter may be found on our website at
http://www.ifmi.com
and will be provided in print, free of charge,
to any stockholder who requests a copy by submitting a written request to our Secretary at Institutional Financial Markets, Inc., Cira Centre, 2929 Arch Street, 17th Floor, Philadelphia,
Pennsylvania 19104. Our Audit Committee met five times in 2015. Each of the committee members attended all of the meetings of our Audit Committee held during fiscal year 2015.
Our
Audit Committee has responsibility for engaging independent registered public accounting firms, reviewing with them the plans and results of the audit engagement, approving the
professional services they provide to us, reviewing their independence and considering the range of audit and non-audit fees. Our Audit Committee assists our Board of Directors with oversight of
(a) the integrity of our financial statements; (b) our compliance with legal and regulatory requirements; (c) the qualifications, independence and performance of the registered
public accounting firm that we employ for the audit of our financial statements; and (d) the performance of the people responsible for our internal audit function. Among other things, our Audit
Committee prepares the Audit Committee report for inclusion in our annual proxy statement, conducts an annual review of its charter and evaluates its performance on an annual basis. Our Audit
Committee also establishes procedures for the receipt, retention, and treatment of complaints that we receive regarding accounting, internal accounting controls and auditing matters and the
confidential, anonymous submission by employees of concerns regarding questionable accounting or auditing matters. Our Audit Committee has the authority to retain counsel and other experts or
consultants at our expense that it deems necessary or appropriate to enable it to carry out its duties without seeking approval of our Board of Directors.
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Compensation Committee
The members of the Compensation Committee are Messrs. Dawson, Haraburda and Subin. Mr. Haraburda is the Chairman of the
Compensation Committee. Our Board of Directors has determined that each of the members of the Compensation Committee is "independent" within the meaning of the rules of the NYSE MKT.
The
Compensation Committee assists our Board of Directors in discharging its responsibilities relating to compensation of our directors and officers. The Compensation Committee has
overall responsibility for evaluating, recommending changes to and administering our compensation plans, policies and programs. Among other things, the Compensation Committee (a) reviews the
Company's overall compensation structure, policies and programs; (b) makes recommendations to the Board of Directors with respect to incentive-compensation plans and equity-based plans;
(c) annually reviews the compensation of directors for service on the Board of Directors and its committees and recommends changes in Board compensation; (d) annually reviews the
performance of our Chief Executive Officer and communicates the results of the review to the Chief Executive Officer and the Board of Directors; (e) if required by applicable law, produces an
annual report on executive compensation for inclusion in our annual proxy statement; (f) annually reviews and reassesses the adequacy of its charter and recommends any proposed changes to the
Board for approval; and (g) annually reviews its performance. The Compensation Committee has authority to grant awards under our 2006 Long-Term Incentive Plan, as amended, and the 2010
Long-Term Incentive Plan. The Compensation Committee also has the authority to retain counsel and other experts or consultants at the Company's expense that it deems necessary or appropriate to enable
it to carry out its duties without seeking approval of the Board of Directors.
The
Compensation Committee operates under a written charter that was originally adopted in 2006 and amended in 2009 and 2014. A copy of the charter may be found on our website at
http://www.ifmi.com
and
will be provided in print, without charge, to any stockholder who requests a copy. The Compensation Committee met two times in
2015. Each of the committee members attended all of the meetings of our Compensation Committee held during fiscal year 2015.
Investment Committee
The members of the Investment Committee are Messrs. Cohen, McEntee and Subin. Mr. Cohen is the Chairman of the Investment
Committee. Formed in 2010, the Investment Committee's primary function is to assist the Board of Directors in its oversight of the Company's investment objectives, practices, strategies and policies.
The Investment Committee did not hold any meetings 2015.
Nominating and Corporate Governance Committee
The members of the Nominating and Corporate Governance Committee are Messrs. Dawson and Haraburda and Ms. Liberto.
Mr. Dawson is the Chairman of the Nominating and Corporate Governance Committee. Our Board of Directors has determined that each of the members of the Nominating and Corporate Governance
Committee is "independent" within the meaning of the rules of the NYSE MKT.
The
Nominating and Corporate Governance Committee's primary functions are to (a) recommend to the Board of Directors qualified candidates for election as directors and recommend a
slate of nominees for election as directors at our annual meeting; (b) periodically prepare and submit to the Board of Directors for adoption its selection criteria for director nominees;
(c) review and make recommendations on matters involving the general operation of the Board of Directors, including development and recommendation of our corporate governance guidelines;
(d) annually recommend to the Board of Directors nominees for each committee of the Board; and (e) facilitate the assessment of the Board's performance as a whole and of the individual
directors and report thereon to the Board of
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Directors.
The Nominating and Corporate Governance Committee has the authority to retain counsel and other experts or consultants at the Company's expense that it deems necessary or appropriate to
enable it to carry out its duties without seeking the approval of the Board of Directors.
The
Nominating and Corporate Governance Committee operates under a written charter that was originally adopted in 2006 and amended in 2009 and 2014. A copy of the charter may be found on
our website at
http://www.ifmi.com
and will be provided in print, without charge, to any stockholder who requests a copy. Our Nominating and Corporate
Governance Committee met three times in 2015. Each of the committee members attended the meeting of our Nominating and Corporate Governance held during fiscal year 2015.
EXECUTIVE OFFICERS
Set forth below is information regarding our executive officers as of November 10, 2016.
|
|
|
|
|
|
|
|
Name
|
|
Age
|
|
Position
|
|
Lester R. Brafman
|
|
|
54
|
|
Chief Executive Officer
|
|
Daniel G. Cohen
|
|
|
46
|
|
President and Chief Executive, European Business
|
|
Joseph W. Pooler, Jr.
|
|
|
51
|
|
Executive Vice President, Chief Financial Officer and Treasurer
|
Lester R. Brafman
, age 54, has served as the Chief Executive Officer of the Company and of IFMI, LLC since September 16,
2013. Mr. Brafman served as the President of the Company and of IFMI, LLC from June 3, 2013 until September 16, 2013. Prior to joining the Company and IFMI, LLC,
Mr. Brafman served as a Managing Director at Goldman Sachs & Co. from July 2001 until August 2012. During his tenure at Goldman Sachs, Mr. Brafman held various positions
including in Leveraged Finance Sales; as Chief Operating Officer of Global Credit and Mortgage Trading; and as Head of High Yield and Distressed Trading. Prior to joining Goldman Sachs,
Mr. Brafman served as a Managing Director at Credit Suisse First Boston from July 1994 until October 2000 where, over the course of his employment, he served as Head of High Yield Trading and
as Head of Emerging Market and Sovereign Trading. Prior to joining Credit Suisse, Mr. Brafman worked at Wasserstein Perella & Co. from March 1992 until July 1994, and at Lehman
Brothers Holdings Inc. from September 1988 until March 1992. Mr. Brafman received a B.A. from Columbia University and an M.B.A. from the Amos Tuck School of Business Administration,
Dartmouth College.
Daniel G. Cohen
, age 46, has served as the President and Chief Executive of the Company's European Business since September 16,
2013. See Proposal One—Election of Directors, "Names of the Company Nominees and Biographical Information; Qualifications" above for Mr. Cohen's biographical information.
Joseph W. Pooler, Jr.
, age 51, has served as Executive Vice President, Chief Financial Officer and Treasurer of the Company since
December 16, 2009 and as IFMI, LLC's Chief Financial Officer since November 2007 and as Chief Administrative Officer since May 2007. From July 2006 to November 2007, Mr. Pooler
also served as Senior Vice President of Finance of IFMI, LLC. From November 2007 to March 2009, Mr. Pooler also served as Chief Financial Officer of Muni Funding Company of
America, LLC, a company investing in middle-market non-profit organizations. Prior to joining IFMI, LLC, from 1999 to 2005, Mr. Pooler held key management positions at Pegasus
Communications Corporation (now known as The Pegasus Companies, Inc. (OTC: PEGX)), which operated in the direct broadcast satellite television and broadcast television station segments. While
at Pegasus, Mr. Pooler held various positions including Chief Financial Officer, Principal Accounting Officer, and Senior Vice President of Finance. From 1993 to 1999, Mr. Pooler held
various management positions with MEDIQ, Incorporated, including Corporate Controller, Director of Operations, and Director of Sales Support. Mr. Pooler holds a B.A. from Ursinus College, an
M.B.A. from Drexel University, and was a Certified Public Accountant in the Commonwealth of Pennsylvania (license lapsed).
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No
executive officer was selected as a result of any arrangement or understanding between the executive officer or any other person. All executive officers are appointed annually by, and
serve at the discretion of, our Board of Directors.
All
executive officers are appointed annually by, and serve at the discretion of, our Board of Directors.
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PROPOSAL TWO—APPROVAL OF AMENDMENT NO. 1 TO
THE COMPANY'S SECOND AMENDED AND RESTATED 2010 LONG-TERM INCENTIVE PLAN
This section of this proxy statement is a summary of the material provisions of the Company's Second Amended and
Restated 2010 Long-Term Incentive Plan (the "2010 Long-Term Incentive Plan") as proposed to be amended by Amendment No. 1 to the Second Amended and Restated 2010 Long-Term Incentive Plan
("Amendment No. 1"). Copies of the Long-Term Incentive Plan and Amendment No. 1 are attached to this proxy statement as Appendix A. Because the description is a summary, it does
not contain all of the information about the 2010 Long-Term Incentive Plan, as it is proposed to be amended, that may be important to you. You should refer to the full text of the 2010 Long-Term
Incentive Plan and Amendment No. 1, which are hereby incorporated by reference into this proxy statement, for details of the terms of the 2010 Long-Term Incentive Plan and Amendment
No. 1.
General
The Company is the sponsor of the 2010 Long-Term Incentive Plan. On April 22, 2010, the Board of Directors adopted the Institutional
Financial Markets, Inc. 2010 Long-Term Incentive Plan (the "Original Plan"). On February 3, 2011, the Board of Directors amended (the "February 2011 Amendment") the Original Plan to
reflect the change in the Company's name to "Institutional Financial Markets, Inc." and to increase the number of shares of common stock available for awards under the Original Plan from
1,580,000 shares to 3,580,000 shares. On April 18, 2011, the Board of Directors further amended (the "April 2011 Amendment") the Original Plan, as amended, to increase the number of shares of
common stock available for awards thereunder from 3,580,000 shares to 4,580,000 shares, and the stockholders of the Company approved the April 2011 Amendment on June 7, 2011. On March 8,
2012, the Board of Directors amended and restated the Original Plan, as amended, in its entirety (as so amended and restated, the "Amended and Restated Plan") to reflect the amendments to the Original
Plan made by the February 2011 Amendment and the April 2011 Amendment.
The
Board of Directors adopted the 2010 Long-Term Incentive Plan on November 13, 2013, which amended and restated the Amended and Restated Plan to, among other things and subject
to approval by the Company's stockholders (which approval was obtained at the Company's 2014 annual meeting of stockholders), increase the number of shares of common stock (i) available for
awards under the 2010 Long-Term Incentive Plan from 4,580,000 shares to 7,080,000 shares; (ii) that may underlie options granted under the 2010 Long-Term Incentive Plan in any calendar year to
any eligible person thereunder from 500,000 shares to 3,000,000 shares; and (iii) that may underlie awards, other than options, granted under the 2010 Long-Term Incentive Plan in any calendar
year to any eligible person thereunder from 500,000 shares to 3,000,000 shares.
On
October 27, 2016, the Board of Directors approved Amendment No. 1, which increases, subject to stockholder approval, the maximum number of shares of common stock
available for issuance under our 2010 Long-Term Incentive Plan from 7,080,000 shares to 9,080,000 shares. If stockholder approval is not received, the increase in the number of authorized shares
available for issuance under our 2010 Long-Term Incentive Plan will not be implemented.
The
2010 Long-Term Incentive Plan is not subject to the provisions of ERISA or qualified under Section 401(a) of the Code. All expenses associated with the 2010 Long-Term
Incentive Plan are borne by the Company. While the 2010 Long-Term Incentive Plan is not generally subject to ERISA as it is neither an employee welfare benefit plan nor an employee pension benefit
plan, certain grants to executives may involve deferred delivery of equity securities resulting in an arrangement that may be considered a pension benefit plan to the extent that such an arrangement
defers the executive's income to the termination of employment or beyond. In such situations, the arrangement is intended to qualify
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as
a "top hat" plan, as to which a notice letter is filed with the Department of Labor and which is, therefore, generally exempt from the reporting and disclosure requirements of ERISA.
Purpose
The purpose of the 2010 Long-Term Incentive Plan is to attract key employees, directors, officers, advisors and consultants and to induce them
to remain with us and our subsidiaries and encourage them to increase their efforts to make our business more successful, whether directly or through our subsidiaries or other affiliates. In
furtherance of these objectives, the 2010 Long-Term Incentive Plan is designed to provide equity-based incentives to such persons in the form of options (including stock appreciation rights),
restricted stock, restricted stock units, dividend equivalent rights and other forms of equity based awards as contemplated by the 2010 Long-Term Incentive Plan (collectively, "Awards"), with
eligibility for such Awards determined by the Compensation Committee.
Duration
The 2010 Long-Term Incentive Plan terminates on, and no Award will be granted under the 2010 Long-Term Incentive Plan on or after,
April 22, 2020; provided, however, that the Board of Directors may, at any time prior to that date, terminate the 2010 Long-Term Incentive Plan.
Administration
Except as described below, the 2010 Long-Term Incentive Plan is administered by the Compensation Committee, which consists of two or more
non-employee directors, each of whom is intended to be, to the extent required by Rule 16b-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), a "non-employee
director" under Rule 16b-3 and qualify as an outside director under Section 162(m) of the Code. If, at any time during the term of the 2010 Long-Term Incentive Plan, the Compensation
Committee does not exist, the functions of the Compensation Committee will be exercised by the Board of Directors. No member of the Compensation Committee may act as to matters under the 2010
Long-Term Incentive Plan specifically relating to such member, and grants of Awards to a member of the Compensation Committee will be made and administered by
the Board of Directors rather than the Compensation Committee. Where this summary of the 2010 Long-Term Incentive Plan hereafter refers to the "Compensation Committee," it is intended to refer to the
Board of Directors in those instances where the Board of Directors rather than the Compensation Committee is responsible for the administration of the 2010 Long-Term Incentive Plan.
The
Compensation Committee has the full authority to administer and interpret the 2010 Long-Term Incentive Plan, to authorize the granting of Awards, to determine the eligibility of key
employees, directors, officers, advisors, consultants and other personnel of the Company and its subsidiaries to receive Awards, to determine the number of shares of common stock to be covered by each
Award (subject to the individual participant limitations provided in the 2010 Long-Term Incentive Plan), to determine the terms, provisions and conditions of each Award (which may not be inconsistent
with the terms of the 2010 Long-Term Incentive Plan), to prescribe the form of instruments evidencing Awards and to take any other actions and make all other determinations that it deems necessary or
appropriate in connection with the 2010 Long-Term Incentive Plan or the administration or interpretation thereof. The interpretation by the Compensation Committee of any provisions of the 2010
Long-Term Incentive Plan or an Award granted under the 2010 Long-Term Incentive Plan will be final, conclusive and binding.
The
Compensation Committee, in its discretion, may in the case of Awards (including, in particular, Awards other than options) intended to qualify for an exception from the limitations
imposed by Section 162(m) of the Code, (i) establish one or more performance goals ("Performance Goals") as a precondition to the issuance or vesting of Awards, and (ii) provide,
in connection with the
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establishment
of the Performance Goals, for predetermined Awards to those participants (who continue to meet all applicable eligibility requirements) with respect to whom the applicable Performance
Goals are satisfied. The Performance Goals will be based upon the criteria set forth in Exhibit A to the 2010 Long-Term Incentive Plan. The Performance Goals will be established in a timely
fashion such that they are considered pre-established for purposes of the rules governing performance-based compensation under Section 162(m) of the Code. Prior to the award or vesting, as
applicable, of affected Awards, the Compensation Committee is required to certify that any applicable Performance Goals, and other material terms of the Award, have been satisfied. Performance Goals
which do not satisfy the foregoing provisions may be established by the Compensation Committee with respect to Awards not intended to qualify for an exception from the limitations imposed by
Section 162(m) of the Code.
Eligibility and Types of Awards
Eligibility for Awards under the 2010 Long-Term Incentive Plan is determined by the Compensation Committee. Key employees, directors, officers,
advisors, consultants and other personnel of the Company and its subsidiaries and other persons who are expected to provide significant services to the Company or its subsidiaries, including
IFMI, LLC, any joint venture affiliate of the Company or its subsidiaries and employees of such persons (each a "Participant") are eligible to be granted Awards under the 2010 Long-Term
Incentive Plan.
All
directors and employees of the Company or its affiliates are eligible to receive awards under the 2010 Long-Term Incentive Plan, including the Company's named executive officers,
Lester R. Brafman, Daniel G. Cohen and Joseph W. Pooler, Jr. As of November 10, 2016, all of our directors (eight persons), executive officers (three persons) and employees
of the Company and its affiliates (approximately 81 persons) were eligible to participate in the 2010 Long-Term Incentive Plan.
New Plan Benefits
Because the grant of awards under our 2010 Long-Term Incentive Plan is within the discretion of the Compensation Committee, the Company cannot
determine the dollar value or number of shares of common stock that will in the future be received by or allocated to any participant in 2010 Long-Term Incentive Plan. Accordingly, in lieu of
providing information regarding awards that will be received under the 2010 Long-Term Incentive Plan, the following table provides information concerning the awards that were received by the following
persons and groups during 2015: (i) each named executive officer; (ii) all current executive officers, as a group; (iii) all current directors who are not executive officers, as a
group; and (iv) all current employees who are not executive officers, as a group.
Institutional Financial Markets, Inc.
Second Amended and Restated 2010 Long-Term Incentive Plan
|
|
|
|
|
|
|
Name and Position
|
|
Number of
Shares of
Restricted
Stock (#)
|
|
|
Lester R. Brafman, Chief Executive Officer
|
|
|
75,758
|
|
|
Daniel G. Cohen, Vice Chairman
|
|
|
—
|
|
|
Joseph W. Pooler, Jr., Chief Financial Officer and Treasurer
|
|
|
45,455
|
|
|
Current Executive Officers as a Group
|
|
|
121,213
|
|
|
Non-Executive Director Group
|
|
|
212,121
|
|
|
Non-Executive Officer Employee Group
|
|
|
32,258
|
|
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Available Shares
If Amendment No. 1 to our 2010 Long-Term Incentive Plan is approved at our 2016 annual meeting of stockholders, the total number of
shares of common stock awarded under the 2010 Long-Term Incentive Plan, subject to adjustment upon certain corporate transactions or events, may not, in the aggregate, be greater than 9,080,000.
Currently, our 2010 Long-Term Incentive Plan authorizes the issuance of up to 7,080,000 shares of our common stock. As of November 10, 2016, of the 7,080,000 shares of the Company's common
stock authorized for issuance under our 2010 Long-Term Incentive Plan, there were 217,764 shares available for issuance under our 2010 Long-Term
Incentive Plan. In no event may any eligible person receive options for more than 3,000,000 shares on an annual basis. The maximum number of shares that may underlie Awards, other than options,
granted in any one year to any eligible person may not exceed 3,000,000 shares. If an option or other Award granted under the 2010 Long-Term Incentive Plan expires or terminates, the shares subject to
any portion of the Award that expires or terminates without having been exercised or paid, as the case may be, will again become available for the issuance under the 2010 Long-Term Incentive Plan.
Unless previously terminated by the Board of Directors, no new Award may be granted under the 2010 Long-Term Incentive Plan after April 22, 2020.
Awards Under Our 2010 Long-Term Incentive Plan
Stock Options
The terms of specific options, including whether options constitute "incentive stock options" for purposes of Section 422(b) of the Code,
will be determined by the Compensation Committee. The exercise price of an option will also be determined by the Compensation Committee and reflected in the applicable Award agreement. The exercise
price for each option will be not less than 100% of the Fair Market Value (as defined in the 2010 Long-Term Incentive Plan) of the underlying stock on the day the option is granted. In the case of an
incentive stock option granted to a 10% stockholder, the exercise price may not be lower than 110% of the Fair Market Value of the common stock on the date of grant. Options will be exercisable at
such times and subject to such terms as determined by the Compensation Committee. Each option will be exercisable after the period or periods specified in the applicable Award agreement, which will
generally not exceed ten years from the date of grant (or five years in the case of an incentive stock option granted to a 10% stockholder, if permitted under the 2010 Long-Term Incentive Plan). An
option must be exercised by the holder thereof by written notice (in the form prescribed by the Compensation Committee) to the Company or its designee specifying the number of shares to be purchased.
Except
as may otherwise be provided in the applicable Award agreement, if a Participant's employment is terminated by the Company without cause, or because of the retirement, disability
or death of the Participant, the 2010 Long-Term Incentive Plan provides for limited periods of time in which certain options may be exercised and any options that are not exercised will be forfeited.
Subject to the provisions of the applicable Award agreement, if the Participant's employment is terminated for cause, all of the Participant's vested and unvested options will immediately be
forfeited.
Each
option granted under the 2010 Long-Term Incentive Plan is nontransferable by the optionee except by will or the laws of descent and distribution of the state wherein the optionee is
domiciled at the time of his death; provided, however, that the Compensation Committee may (but need not) permit other transfers, where it concludes that such transferability (i) does not
result in accelerated U.S. federal income taxation, (ii) does not cause any option intended to be an incentive stock option to fail to be described in Section 422(b) of the Code,
(iii) complies with applicable law, including securities laws, and (iv) is otherwise appropriate and desirable. The Compensation Committee may also grant "stock appreciation rights" as
part of (or as the exclusive way to exercise) an option.
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The
Compensation Committee will determine the time or times at which an option may be exercised in whole or in part, and the method or methods by which, and the form or forms in which,
payment of the option price with respect thereto may be made or deemed to have been made (including, without limitation, by cash, loans or third-party sale programs, or by the tender of
previously-owned shares). An individual who holds an option granted under the 2010 Long-Term Incentive Plan will have none of the rights of a stockholder with respect to the shares which are the
subject of that option unless and until those shares are issued and outstanding as a result of the exercise of the option.
Restricted Stock
An award of restricted stock is an award of common stock that is subject to restrictions on sale, transferability and such other restrictions,
if any, as the Compensation Committee may impose at the date of grant. Grants of restricted stock will be subject to vesting schedules as determined by the Compensation Committee. Restrictions on the
shares will lapse in accordance with the terms of the applicable Award agreement, as determined by the Compensation Committee. The restrictions on the shares of common stock may lapse separately or in
combination at such times, under such circumstances, including, without limitation, a specified period of employment or the satisfaction of pre-established criteria, in such installments or otherwise,
as the Compensation Committee may determine. Except to the extent restricted under the award agreement relating to the restricted stock, a participant granted restricted stock has all of the rights of
a stockholder, including, without limitation, the right to vote and the right to receive dividends on the restricted stock. Cash dividends on shares of restricted stock will, unless otherwise provided
by the Compensation Committee, be held by the Company until the period of forfeiture in relation to the shares has lapsed. Such dividends will be forfeited if the underlying shares are forfeited. If
the shares are not forfeited, the dividends will be paid over to the Participant as soon as practicable after the period of forfeiture has lapsed.
Except
as may be provided in an applicable Award agreement, if, during the forfeiture period in relation to a Participant's restricted stock, the Participant's employment is terminated
by the Company without cause, or because of the retirement, disability or death of the Participant, or in the event of a change in control of the Company, the restrictions on all of the Participant's
restricted stock will immediately lapse. Except as may otherwise be provided in an applicable Award agreement, if the Participant's employment is terminated for cause, or the Participant resigns from
employment, all of the Participant's restricted stock that is still subject to restrictions will immediately be forfeited and, if the Participant paid any purchase price for the restricted stock, the
Company will pay the Participant the lower of that price or the then market value of the stock on the date of termination.
Restricted Stock Units
Restricted stock units will vest as provided in the applicable award agreement. A restricted stock unit represents a future right to receive the
Fair Market Value of a share of the Company's common stock, or, if provided by the Compensation Committee, the right to receive the Fair Market Value of a share of common stock in excess of a base
value established by the Compensation Committee at the time of grant. Each restricted stock unit will generally be settled by the transfer of one share of the Company's common stock. The Compensation
Committee may allow the Company, or the Participant, to elect that restricted stock units be settled by the transfer of cash or shares of the Company's common stock. Generally, the settlement date for
restricted stock units will be the first day of the month following the month in which the restricted stock units vest. The Compensation Committee may, in its discretion and under certain
circumstances, permit a Participant to receive, as settlement of restricted stock units, installments over a period not to exceed 10 years. In addition, the Compensation Committee may establish
a program under which distributions with respect to restricted stock units may be deferred for additional periods, any such deferrals may be subject to Section 409A of the Code.
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Rights
to payments with respect to restricted stock units are generally not subject to alienation, transfer, assignment, pledge or garnishment. Restricted stock units do not give the
holder thereof any rights with respect to common stock or any ownership interest in the Company. Except as may be provided in accordance the 2010 Long-Term Incentive Plan, the holder of a restricted
stock unit will not have any voting, dividend or derivative or other similar rights with respect to the restricted stock unit.
Dividend Equivalents
A dividend equivalent is a right to receive (or have credited) the equivalent value of regular cash dividends declared on common stock otherwise
subject to an Award. The Compensation Committee may provide that amounts payable with respect to dividend equivalents will be converted into cash or additional common stock. The Compensation Committee
will establish all other limitations and conditions of awards of dividend equivalents as it deems appropriate. Dividend equivalents granted in relation to options that are intended to qualify as
performance-based compensation for purposes of Section 162(m) of the Code will be payable regardless of whether the related option is exercised. The Compensation Committee may establish a
program under which amounts payable in respect of dividend equivalents may be deferred; any such deferrals may be subject to Section 409A of the Code.
Other Equity-Based Awards
The 2010 Long-Term Incentive Plan authorizes the granting of other Awards based upon the common stock of the Company (including the grant of
securities convertible into common stock and stock appreciation rights) and interests (which may be expressed as units or otherwise) in subsidiaries, as applicable.
Special Rules Upon Reorganizations, Changes in Control, Etc.
If the Company is involved in a merger, consolidation, dissolution, liquidation, reorganization, exchange of shares, sale of substantially all
of the assets or stock of the Company or a transaction similar thereto, or upon certain changes in capital structure and other similar events, the Compensation Committee may make related adjustments
in its discretion to outstanding Awards and various 2010 Long-Term Incentive Plan provisions (including, without limitation, to the number and kind of shares available under the 2010 Long-Term
Incentive Plan).
Without
limiting the foregoing, upon a "Change in Control" of the Company (as defined in the 2010 Long-Term Incentive Plan), the Compensation Committee may make such adjustments as it,
in its discretion, determines are necessary or appropriate in light of the Change in Control, but only if the Compensation Committee determines that the adjustments do not have an adverse economic
impact on the Participants (as determined at the time of the adjustments).
Amendment and Termination
The Board of Directors may amend the 2010 Long-Term Incentive Plan as it deems advisable, except that it may not amend the 2010 Long-Term
Incentive Plan in any way that would adversely affect a Participant with respect to an Award previously granted unless the amendment is required in order to comply with applicable laws; provided,
however, that the 2010 Long-Term Incentive Plan may not be amended without stockholder approval in any case in which amendment in the absence of stockholder approval would cause the 2010 Long-Term
Incentive Plan to fail to comply with any applicable legal requirement or applicable exchange or similar rule.
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Certain U.S. Federal Income Tax Consequences
This tax discussion is a general description of certain expected federal income tax results under
current law, and all affected individuals should consult their own advisors if they wish any further details or have specific questions.
Non-Qualified Stock Options
No income will be recognized by an option holder at the time a non-qualified stock option is granted. Ordinary income will generally be
recognized by an option holder, however, at the time a non-qualified stock option is exercised in an amount equal to the excess of the Fair Market Value of the underlying common stock on the exercise
date over the exercise price. This amount of income will be subject to income tax withholding and employment taxes. The Company will generally be entitled to a deduction for U.S. federal income tax
purposes in the same amount as the amount included in ordinary income by the option holder with respect to his or her non-qualified stock option. Gain or loss on a subsequent sale or other disposition
of the shares acquired upon the exercise of a non-qualified stock option will be measured by the difference between the amount realized on the disposition and the tax basis of such shares, and will
generally be long-term or short-term capital gain depending on the holding period involved. The tax basis of the shares acquired upon the exercise of any non-qualified stock option will be equal to
the sum of the exercise price of the non-qualified stock option and the amount included in income with respect to the option. Notwithstanding the foregoing, in the event that exercise of the option is
permitted other than by cash payment of the exercise price, various special tax rules may apply.
Incentive Stock Options
In general, neither the grant nor the exercise of an incentive stock option will result in taxable income to an option holder or a deduction for
the Company. If an option holder disposes of the shares of common stock acquired upon the exercise of the incentive stock option on or after the later of (i) two years after the incentive stock
option is granted and (ii) one year after the transfer of the shares to the option holder pursuant to exercise of the option the difference between the amount realized on such disposition and
your basis in the shares will be taxed as capital gain or loss. The Company will not be entitled to a tax deduction. In addition, the option holder must be an employee of the Company or a qualified
subsidiary at all times between the date of grant and the date three months (one year in the case of disability) before exercise of the option. (Special rules apply in the case of the death of the
option holder). However, the exercise of an incentive stock option (if the holding period rules described in this paragraph are satisfied) may subject the optionee to the alternative minimum tax.
If
the holding period rules noted above are not satisfied, gain recognized on the disposition of the shares acquired upon the exercise of an incentive stock option will be characterized
as ordinary income. This gain will be equal to the difference between the exercise price and the Fair Market Value of the shares at the time of exercise (special rules may apply to disqualifying
dispositions where the amount realized is less than the value at exercise). The Company will generally be entitled to a deduction equal to the amount of such gain included by an option holder as
ordinary income. Any excess of the amount realized upon such disposition over the fair market value at exercise will generally be long-term or
short-term capital gain depending on the holding period involved. Notwithstanding the foregoing, if exercise of the option is permitted other than by cash payment of the exercise price, various
special tax rules may apply. The current position of the Internal Revenue Service is that income tax withholding and employment taxes do not apply upon the exercise of an incentive stock option or
upon any subsequent disposition, including a disqualifying disposition, of shares acquired pursuant to the exercise of the incentive stock option.
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Restricted Stock
Unless a holder of restricted stock makes an "83(b) election" (as discussed below), there generally will be no tax consequences as a result of
the grant of restricted stock until the restricted stock is no longer subject to a substantial risk of forfeiture or is transferable (free of the risk). Dividends paid on unvested shares, if retained
by the grantee, will generally be treated as compensation income for U.S. federal income tax purposes (unless an 83(b) election has been made, as discussed below). Generally, when the restrictions are
lifted, the holder will recognize ordinary income, and the Company will be entitled to a deduction equal to the difference between the fair market value of the stock at that time and the amount, if
any, paid by the holder for the restricted stock. This amount of income will be subject to income tax withholding and employment taxes. Subsequently realized changes in the value of the stock
generally will be treated as long-term or short-term capital gain or loss, depending on the length of time the shares are held prior to disposition of the shares. In general terms, if a holder makes
an 83(b) election (under Section 83(b) of the Code) upon the award of restricted stock, the holder will recognize ordinary income on the date of the award of restricted stock, and the Company
will be entitled to a deduction equal to (a) the fair market value of the restricted stock as though the stock were (1) not subject to a substantial risk of forfeiture or
(2) transferable, minus (b) the amount, if any, paid for the restricted stock. If an 83(b) election is made, there will generally be no tax consequences to the holder upon the lifting of
restrictions, and all subsequent appreciation in the restricted stock generally would be eligible for capital gains treatment. In the event of a forfeiture after an 83(b) election is made, no
deduction or loss will be available, other than with respect to amounts actually paid for the stock.
Restricted Stock Units
In general, a grantee of restricted stock units is not taxed at the time of the grant. Instead, the holder is taxed at the time in which there
is no longer a substantial risk of forfeiture (i.e., at the time the restricted stock units have vested). Generally, when the restrictions are lifted, the holder must recognize ordinary income,
and the Company will be entitled to a deduction equal to the difference between the fair market value of the grant at that time, minus the amount paid for the grant (if any). This amount of income
will be subject to income tax withholding and employment taxes. For grants that are settled in actual shares, the employee's tax holding period begins at the time of distribution (which may or may not
coincide with vesting), and the holder's tax basis is equal to the amount paid for the stock plus the amount included as ordinary income. Subsequently realized changes in the value of the stock
generally will be treated as long-term or short-term capital gain or loss, depending on the length of time the shares are held prior to disposition of the shares.
Dividend Equivalent Rights
There generally will be no tax consequences as a result of the award of a dividend equivalent right. When payment is made, the holder of the
dividend equivalent generally will recognize ordinary income, and the Company will be entitled to a deduction, equal to the amount received in respect of the dividend equivalent right. This amount of
income will be subject to income tax withholding and employment taxes.
Securities Exchange Act of 1934
Additional special tax rules may apply to those Award holders who are subject to the rules set forth in Section 16 of the Exchange Act.
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Deductibility of Executive Compensation Under Section 162(m) of the Internal Revenue Code
Section 162(m) of the Code sets limits on the deductibility of compensation in excess of $1,000,000 paid by publicly held companies to
certain employees (the "million dollar cap"). The Internal Revenue Service has also issued Treasury Regulations which provide rules for the application of the "million dollar cap" deduction
limitations. Income which is treated as "performance-based compensation" under these rules will not be subject to the limitation on deductibility imposed by Section 162(m) of the Code.
The
2010 Long-Term Incentive Plan has been designed to permit option grants to qualify under the performance-based compensation rules so that income of a grantee attributable to the
exercise of a nonqualified option may be exempt from the million dollar cap limits on deduction by us. The 2010 Long-Term Incentive Plan's provisions are consistent with the performance-based
compensation rules, so that if the Compensation Committee consists exclusively of members of the Board of Directors who qualify as "outside directors" as defined in the regulations promulgated under
Section 162(m), the compensation income arising on exercise of those options should qualify as performance-based compensation which is deductible by us even if that income would be in excess of
the otherwise applicable limits on deductible compensation income under Section 162(m).
The
2010 Long-Term Incentive Plan also permits, but does not require, the grant of performance-based restricted stock awards, which would be subject to performance-based vesting
provisions established by the Compensation Committee consistent with the terms of the 2010 Long-Term Incentive Plan. The compensation income recognized as a result of such grants by a grantee would
also qualify as performance-based compensation which may, therefore, be exempt from the million dollar cap limits on deductions we may take.
The
general federal income tax principles discussed above are highly complex and subject to changes which may be brought about by subsequent legislation or by regulations and
administrative rulings which may be applied on a retroactive basis. You may also be subject to state and local and/or foreign taxes with respect to option grants, option exercises and the subsequent
holding and disposition of shares you acquire on the exercise of an option or pursuant to a restricted award. Accordingly, you should refer to the applicable tax laws of the relevant jurisdictions to
determine the tax consequences of your receipt of awards under any applicable state, local or foreign law. You should consult your own tax advisor in connection with the tax consequences of the grant
and exercise of any option received under the 2010 Long-Term Incentive Plan, the receipt of a restricted stock or restricted stock unit award (or the receipt of shares pursuant to such awards), the
receipt of dividend equivalent rights, or other equity-based awards as well as the subsequent holding and disposition of shares received in connection with an award.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT YOU VOTE
FOR
THE PROPOSAL TO APPROVE AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED 2010 LONG-TERM INCENTIVE PLAN. IN THE ABSENCE OF INSTRUCTIONS TO THE CONTRARY, PROXIES SOLICITED IN CONNECTION WITH THIS PROXY STATEMENT WILL BE VOTED
FOR
APPROVAL OF AMENDMENT NO. 1 TO THE SECOND AMENDED AND RESTATED 2010 LONG-TERM INCENTIVE PLAN.
27
Table of Contents
INTEREST OF CERTAIN PERSONS IN MATTERS TO BE ACTED UPON
If Proposal Two (approval of Amendment No. 1 to the 2010 Long-Term Incentive Plan) is approved by our stockholders, then the number of
shares of the Company's common stock authorized for issuance under the 2010 Long-Term Incentive Plan will increase from 7,080,000 shares to 9,080,000 shares. Our directors and executive officers are
eligible to receive awards under the 2010 Long-Term Incentive Plan. Accordingly, our directors and executive officers may benefit from the payment of equity-based awards under the 2010 Long-Term
Incentive Plan. Members of our Board collectively own approximately 43.6% of the aggregate common stock and Series E Preferred Stock outstanding and will vote such shares in favor of Proposal
Two (see "Share Ownership of Certain Beneficial Owners and Management" below for additional details regarding the voting securities in the Company beneficially owned by our directors and executive
officers).
28
Table of Contents
PROPOSAL THREE—APPROVAL, ON AN ADVISORY BASIS, OF COMPENSATION
OF THE NAMED EXECUTIVE OFFICERS
The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, or the Dodd-Frank Act, enables our stockholders to vote to approve, on an
advisory (non-binding) basis, the compensation of our named executive officers as disclosed in accordance with Section 14A of the Exchange Act and the SEC's rules. Details regarding such
compensation may be found below under the heading "Executive Compensation" below.
Pursuant
to Section 14A of the Exchange Act, the Company is presenting the following "say on pay" proposal, which gives stockholders the opportunity to approve or not approve the
Company's compensation program for its named executive officers, as disclosed pursuant to Item 402 of Regulation S-K, by voting for or against the resolution set forth below. While our
Board of Directors
intends to carefully consider the stockholder vote resulting from this proposal, the final vote of our stockholders on this Proposal Three will not be binding on the Company or the Board of Directors
and is advisory in nature. The Company submits the following proposal:
"RESOLVED,
that the compensation paid to the Company's named executive officers, as disclosed pursuant to Item 402 of Regulation S-K, including the compensation tables and narrative
discussion is hereby APPROVED."
The
Company's executive compensation programs are designed to attract, motivate and retain talented executives. In addition, the programs are structured to create an alignment of
interests between the Company's executive officers and stockholders. The Board of Directors and the Compensation Committee monitor executive compensation programs and adopt changes to reflect the
competitive market in which the Company competes for talent, as well as general economic, regulatory and legislative developments affecting executive compensation. The Compensation Committee will
continue to emphasize compensation arrangements that align the financial interests of our executives with the interests of long-term stockholders. Accordingly, we believe that the Company's executive
compensation programs are appropriately designed and work to ensure that management's interests are closely aligned with stockholders' interests to create long-term value. Please refer to the section
entitled "Executive Compensation" of this proxy statement for additional detail regarding the Company's executive compensation.
Because
your vote on this Proposal Three is advisory, it will not bind the Company or our Board of Directors. However, the Board of Directors and the Compensation Committee will review
the voting results and take the results into consideration in making future determinations on executive compensation.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT YOU VOTE
FOR
THE APPROVAL OF THE COMPENSATION OF OUR NAMED
EXECUTIVE OFFICERS, AS DISCLOSED IN THIS PROXY STATEMENT PURSUANT TO SECTION 402 OF REGULATION S-K PROMULGATED UNDER THE EXCHANGE ACT. IN THE ABSENCE OF INSTRUCTIONS TO THE CONTRARY, PROXIES
SOLICITED IN CONNECTION WITH THIS PROXY STATEMENT WILL BE VOTED
FOR
SUCH NAMED EXECUTIVE OFFICER COMPENSATION.
29
Table of Contents
EXECUTIVE COMPENSATION
Compensation of Executive Officers
The following table summarizes the executive compensation earned by the Company's named executive officers in 2014 and 2015.
|
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Summary Compensation Table
|
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Name and Principal Position
|
|
Year
|
|
Salary
($)
|
|
Bonus
($)
|
|
Stock
Awards
($)(1)
|
|
Option
Awards
($)
|
|
Non-Equity
Incentive Plan
Compensation
($)
|
|
Non-Qualified
Deferred
Compensation
Earnings
($)
|
|
All Other
Compensation
($)(2)
|
|
Total
($)
|
|
|
Lester R. Brafman
|
|
|
2015
|
|
|
600,000
|
|
|
400,000
|
|
|
125,000
|
(6)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
875
|
|
|
1,125,875
|
|
|
Chief Executive Officer(3)
|
|
|
2014
|
|
|
600,000
|
|
|
400,000
|
|
|
125,001
|
(7)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
793
|
|
|
1,125,794
|
|
|
Daniel G. Cohen
|
|
|
2015
|
|
|
600,000
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
8,593
|
|
|
608,593
|
|
|
Vice Chairman(4)
|
|
|
2014
|
|
|
600,000
|
|
|
147,605
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
8,511
|
|
|
756,116
|
|
|
Joseph W. Pooler, Jr.
|
|
|
2015
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|
|
420,000
|
|
|
170,000
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|
|
75,000
|
(6)
|
|
—
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|
|
—
|
|
|
—
|
|
|
8,593
|
|
|
673,593
|
|
|
Executive Vice President, Chief Financial Officer & Treasurer(5)
|
|
|
2014
|
|
|
420,000
|
|
|
170,000
|
|
|
75,001
|
(7)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
8,511
|
|
|
673,512
|
|
-
(1)
-
Amounts
in this column represent the grant date fair value of the restricted stock award and stock option award, computed in accordance with Financial Accounting
Standards Board Accounting Standards Codification Topic 718, Compensation-Stock Compensation ("FASB ASC Topic 718"). The assumptions used in the calculations of these amounts are included in
note 20 to the Company's audited financial statements for the year ended December 31, 2015 attached to our Annual Report on Form 10-K for the year ended December 31, 2015,
as amended (the "2015 Form 10-K"). Amounts do not correspond to the actual value that may be recognized by the named executive officer.
-
(2)
-
Amounts
in this column represent 401(k) plan matching contributions made by the Company and life insurance premium payments paid by the Company on behalf of the
named executive officer.
-
(3)
-
Mr. Brafman
has served as the Chief Executive Officer of the Company since September 16, 2013. Mr. Brafman served as the President of the
Company and of IFMI, LLC from June 3, 2013 until September 16, 2013.
-
(4)
-
Mr. Cohen
has, since September 16, 2013, served as the Company's Vice Chairman of the Board of Directors and of the board of managers of
IFMI, LLC, President and Chief Executive of the Company's European Business, and President of CCFL. Mr. Cohen served as the Chief Executive Officer and Chief Investment Officer of the
Company from December 16, 2009 to September 16, 2013 and as the Chairman of the Board of Directors from October 6, 2006 to September 16, 2013. In addition, Mr. Cohen
served as the Chairman of the board of managers of IFMI, LLC from 2001 to September 16, 2013, as the Chief Investment Officer of IFMI, LLC from October 2008 to
September 16, 2013, and as Chief Executive Officer of IFMI, LLC from December 16, 2009 to September 16, 2013.
-
(5)
-
Mr. Pooler
has served as the Company's Executive Vice President and Chief Financial Officer and Treasurer since December 16, 2009.
-
(6)
-
Effective
February 12, 2016, 154,321 restricted shares of our common stock were awarded to Mr. Brafman, and 92,593 restricted shares of our common
stock were awarded to Mr. Pooler, in each case based on their respective performance in 2015 (as more fully discussed below). The grant date fair value per share of these restricted shares was
$0.81. These restricted shares were awarded under the Company's 2010 Long-Term Incentive Plan. With regard to both such awards, the restrictions expire with respect to one-half of these restricted
shares on January 31, 2017 and with respect to the remaining one-half of these restricted shares on January 31, 2018, in each case, so long as Mr. Brafman or Mr. Pooler, as
applicable, is then employed by the Company or any of its subsidiaries.
-
(7)
-
Effective
February 12, 2015, 75,758 restricted shares of our common stock were awarded to Mr. Brafman, and 45,455 restricted shares of our common stock
were awarded to Mr. Pooler, in each case based on their respective performance in 2014 (as more fully discussed below). The grant date fair value per share of these restricted shares was $1.65.
These restricted shares were awarded under the 2010 Long-Term Incentive Plan. With regard to both such awards, the restrictions expired with respect to one-half of these restricted shares on
January 31, 2016 and will expire with respect to the remaining one-half of these restricted shares on January 31, 2017, so long as Mr. Brafman or Mr. Pooler, as applicable,
is then employed by the Company or any of its subsidiaries.
In
June 2014, after consultation with Messrs. Brafman and Pooler, the Compensation Committee established performance targets for 2014 incentive plan compensation. The targeted
2014 cash bonuses for the Company's executives were set at 150% of base salary, while the targeted equity bonuses for such executives were set at 25% of salary. Subject to the Compensation Committee's
review and discretion, 50% of performance-based bonuses would be discretionary, based on each executive's respective performance and qualitative achievements in 2014, and the remaining 50% would be
based on a funds from operations metric, which is equivalent to operating income plus depreciation and amortization, plus equity based compensation expense, minus cash interest expense (this
performance-based bonus metric excluded consideration of the funds from operations from the Company's European operations in light of the pending sale of such business operations to C&Co Europe
Acquisition LLC, an entity controlled by Daniel G. Cohen (see "Certain Relationships and Related Party Transactions—
30
Table of Contents
Sale
of European Operations to C&Co Europe Acquisition LLC" below for additional information regarding the sale of the Company's European operations)). No executive officer other than
Messrs. Brafman and Pooler had any role in determining or recommending the amount or form of 2014 executive officer compensation.
As
reflected under "Non-Equity Incentive Plan Compensation" in the Summary Compensation Table above, Messrs. Brafman and Pooler were awarded performance-based bonus awards in the
amounts of $400,000 and $170,000, respectively, for their performance in 2014. The Compensation Committee limited Messrs. Brafman's and Pooler's respective performance-based bonuses to the
amounts paid based partially upon the Company's micro-market capitalization, despite the favorable 2014 results of operations for the funds from operations metric. In determining such
performance-based bonuses, the Compensation Committee considered the targeted performance metric that was achieved in 2014, as well as qualitative achievements such as Messrs. Brafman's and
Pooler's respective roles during 2014 in connection with the following:
-
•
-
The merger of the Company's two registered broker-dealer subsidiaries, C&Co/PrinceRidge LLC (formerly known as The PrinceRidge
Group LLC) and JVB, into a single broker-dealer subsidiary;
-
•
-
The closing in February 2014 of the sale of all of the Company's interests in the Star Asia Group (which included the Company's 28% interest in
Star Asia Finance, Limited; 100% interest in Star Asia Management Ltd.; 2.2% interest in Star Asia Japan Special Situations LP; 33.3% interest in Star Asia Advisors, Ltd.; 33.3%
interest in Star Asia Partners Ltd.; and 33.3% interest in Star Asia Capital Management, LLC).;
-
•
-
The negotiations regarding the pending sale of the Company's European operations;
-
•
-
The Company's continued focus on cost savings and the related results; and
-
•
-
Enhancements to the Company's broker-dealer operations.
As
reflected under "Non-Equity Incentive Plan Compensation" in the Summary Compensation Table above, Mr. Cohen was awarded a performance-based bonus award in the amount of
$147,605, which represents an amount equal to 25% of the aggregate net income of the European Business (as defined in the "Cohen Employment Agreement," which is described in greater detail below) in
2014. This amount was paid in accordance with the Cohen Allocations (as defined below) which Mr. Cohen is entitled to receive under the Cohen Employment Agreement.
In
February 2015, the Board of Directors, upon the Compensation Committee's recommendation, unanimously approved the compensation for each executive officer for 2014.
The
Compensation Committee did not establish performance targets for 2015 incentive plan compensation. Rather, in February 2016, Mr. Brafman recommended to the Compensation
Committee the amount and form of the cash bonuses and equity compensation for himself and Mr. Pooler with respect to 2015 performance.
As
reflected under "Bonus" in the Summary Compensation Table above, Messrs. Brafman and Pooler were awarded discretionary cash bonus awards in the amounts of $400,000 and
$170,000, respectively, for their performance in 2015. As reflected under "Stock Awards" in the Summary Compensation Table above, Messrs. Brafman and Pooler were awarded discretionary
restricted stock awards with grant date
fair values equal to $125,000 and $75,000, respectively, for their performance in 2015. In determining such amounts and awards, the Compensation Committee considered Messrs. Brafman's and
Pooler's respective roles during 2015 in connection with the following:
-
•
-
The growth and profitability of the Company's US Capital Markets segment as a whole;
31
Table of Contents
-
•
-
The growth and profitability of the Mortgage Group within the Company's US Capital Markets segment;
-
•
-
A year over year reduction in non-compensation operating expenses (excluding depreciation and amortization) of $2.8 million or 12%; and
-
•
-
Significant support provided to the special committee of the Board of Directors, and the full Board of Directors in connection with several
strategic matters considered during 2015.
Also
in determining such amounts the Compensation Committee considered certain unusual and nonrecurring unfavorable impacts on the Company's operating results during the year.
In
light of the contractual incentive compensation provisions (as described below) under the Cohen Employment Agreement, the Compensation Committee determined not to award any
discretionary cash bonus or equity compensation to Mr. Cohen with respect to his 2015 performance. No executive officer other than Mr. Brafman had any role in determining or recommending
the amount or form of 2015 executive officer or director compensation.
In
February 2016, the Board of Directors, upon the Compensation Committee's recommendation, unanimously approved the compensation for each executive officer for 2015.
Outstanding Equity Awards at Fiscal Year-End 2015
The following table summarizes the equity awards the Company has made to each of the named executive officers that were outstanding as of
December 31, 2015.
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|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
Stock Awards
|
|
|
Name
|
|
Number of
Securities
Underlying
Unexercised
Options
(#)
Exercisable
|
|
Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable
|
|
Equity
Incentive
Plan Awards;
Number of
Securities
Underlying
Unexercised
Unearned
Options (#)
|
|
Option
Exercise
Price ($)
|
|
Option
Expiration
Date
|
|
Number of
Shares or
Units of
Stock That
Have Not
Vested (#)
|
|
Market
Value of
Shares or
Units of
Stock That
Have Not
Vested ($)(1)
|
|
Equity
Incentive
Plan Awards;
Number of
Unearned
Shares,
Units or
Other Rights
That Have
Not Vested
(#)
|
|
Equity
Incentive
Plan Awards:
Market or
Payout Value
of Unearned
Shares,
Units or
Other Rights
That Have
Not Vested
($)
|
|
|
Lester R. Brafman
|
|
|
—
|
|
|
500,000
|
(3)
|
|
—
|
|
|
3.00
|
|
|
11/30/2018
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
|
|
—
|
|
|
500,000
|
(4)
|
|
—
|
|
|
3.00
|
|
|
11/30/2018
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
|
|
666,666
|
|
|
333,334
|
(4)
|
|
—
|
|
|
4.00
|
|
|
11/30/2018
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
|
|
666,666
|
|
|
333,334
|
(4)
|
|
—
|
|
|
5.00
|
|
|
11/30/2018
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
75,758
|
|
|
87,879
|
|
|
—
|
|
|
—
|
|
|
Joseph W. Pooler, Jr.
|
|
|
107,143
|
(2)
|
|
—
|
|
|
—
|
|
|
4.00
|
|
|
02/13/2019
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
45,455
|
|
|
52,728
|
|
|
—
|
|
|
—
|
|
-
(1)
-
The
amounts set forth in this column equal the number of restricted shares of common stock indicated multiplied by the closing price of the Company's common stock
($1.16) as reported by the NYSE MKT on December 31, 2015.
-
(2)
-
Effective
February 13, 2014 (the "Pooler Grant Date"), the Company granted to Mr. Pooler a Non-Qualified Stock Option Award (the "Pooler Award").
Details regarding the option granted to Mr. Pooler (the "Pooler Option") pursuant to the Pooler Award are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
Number of Underlying Shares
|
|
Vesting Schedule
|
|
Exercise Price
|
|
Grant Date Fair
Value Per
Underlying Share
|
|
|
107,143
|
|
Option vested with respect to 53,571 shares on December 31, 2014 and with respect to the remaining 53,572 shares on December 31, 2015.
|
|
$
|
4.00
|
|
$
|
0.70
|
|
-
-
The
grant date fair value was determined using the following assumptions in the Black Scholes valuation model: (i) expected
volatility—68.1%; (ii) expected dividends—3.29%; (iii) expected life—3.5 years; and (iv) risk free interest rate—0.74%.
-
-
The
Pooler Option was awarded under the 2010 Long-Term Incentive Plan and expires on the fifth anniversary of the Pooler Grant Date, subject to earlier
expiration or termination of the options as provided under the Pooler Award and the 2010 Long-Term Incentive Plan.
-
-
The
Pooler Option was granted to Mr. Pooler based on his performance in 2013.
32
Table of Contents
-
(3)
-
Effective
November 30, 2013 (the "Brafman Grant Date"), the Company granted to Mr. Brafman a Non-Qualified Stock Option Award (the "Initial Award"),
the details of which are as follows:
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|
|
|
|
|
|
|
|
|
Number of Underlying Shares
|
|
Vesting Schedule
|
|
Exercise Price
|
|
Grant Date
Fair Value
Per Underlying
Share
|
|
|
500,000
|
|
Option vests on November 30, 2016.
|
|
$
|
3.00
|
|
$
|
0.83
|
|
-
-
The
grant date fair values were determined using the following assumptions in the Black Scholes valuation model: (i) expected
volatility—68.5%; (ii) expected dividends—3.49%; (iii) expected life—4.0 years; and (iv) risk free interest rate—0.96%.
-
-
All
of the options granted to Mr. Brafman pursuant to the Initial Award were granted under the 2010 Long-Term Incentive Plan.
-
-
The
options granted under the Initial Award expire on the fifth anniversary of the Brafman Grant Date, subject to earlier expiration or termination of
the options as provided under the Initial Award and the 2010 Long-Term Incentive Plan.
-
(4)
-
Effective
on the Brafman Grant Date, the Company granted to Mr. Brafman a second Non-Qualified Stock Option Award (the "Second Award" and, together with the
Initial Award, the "Brafman Options"). Details regarding the three options granted to Mr. Brafman pursuant to the Second Award are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
Number of Underlying Shares
|
|
Vesting Schedule
|
|
Exercise Price
|
|
Grant Date
Fair Value
Per Underlying
Share
|
|
|
500,000
|
|
Option vests on November 30, 2016.
|
|
$
|
3.00
|
|
$
|
0.83
|
|
|
1,000,000
|
|
Option vested with respect to 333,333 shares on November 30, 2014 and with respect to 333,333 shares on November 30, 2015 and will vest with respect to 333,334 shares on November 30, 2016.
|
|
$
|
4.00
|
|
$
|
0.69
|
|
|
1,000,000
|
|
Option vested with respect to 333,333 shares on November 30, 2014 and with respect to 333,333 shares on November 30, 2015 and will vest with respect to 333,334 shares on November 30, 2016.
|
|
$
|
5.00
|
|
$
|
0.59
|
|
-
-
The
grant date fair values were determined using the following assumptions in the Black Scholes valuation model: (i) expected
volatility—68.5%; (ii) expected dividends—3.49%; (iii) expected life—4.0 years; and (iv) risk free interest rate—0.96%.
-
-
All
of the options granted to Mr. Brafman pursuant to the Second Award were granted under the 2010 Long-Term Incentive Plan.
-
-
The
options granted under the Second Award expire on the fifth anniversary of the Brafman Grant Date, subject to earlier expiration or termination of the
options as provided under the Second Award and the 2010 Long-Term Incentive Plan.
Employment Agreements with Named Executive Officers
Lester R. Brafman, Chief Executive Officer
On September 16, 2013, the Company and IFMI, LLC entered into an Employment Agreement with Mr. Brafman (the "Brafman
Employment Agreement"). The Brafman Employment Agreement expired pursuant to its own terms on December 31, 2014. Mr. Brafman does not currently have an employment agreement with the
Company.
Under
the Brafman Employment Agreement, Mr. Brafman served as the Chief Executive Officer of both the Company and IFMI, LLC.
The
Brafman Employment Agreement provided that Mr. Brafman's minimum base salary was $600,000 per annum. In addition, the Compensation Committee could periodically review
Mr. Brafman's base salary and provide for such increases as it deemed appropriate, in its discretion.
Under
the Brafman Employment Agreement, in addition to base salary, for each fiscal year of IFMI, LLC ending during the term, Mr. Brafman had the opportunity to receive an
annual bonus in an amount and on such terms as were to be determined by the Compensation Committee. The Compensation Committee also had the discretion to grant Mr. Brafman other bonuses in such
amounts and on such terms as it determined, in its discretion. The foregoing did not limit Mr. Brafman's eligibility to receive any other bonus under any other bonus plan, stock option or
equity-based plan, or other policy or program of the Company or IFMI, LLC.
33
Table of Contents
Under
the Brafman Employment Agreement, Mr. Brafman was entitled to participate in any equity compensation plan of the Company or IFMI, LLC in which he was eligible to
participate, and could be
granted, in accordance with any such plan, options to purchase units of membership interest of IFMI, LLC, options to purchase shares of the Company's common stock, shares of restricted stock,
and/or other equity awards in the discretion of the Compensation Committee. The Brafman Employment Agreement also provided that Mr. Brafman was entitled to participate in any group life,
hospitalization or disability insurance plans, health programs, retirement plans, fringe benefit programs and other benefits and perquisites that were available to other senior executives of
IFMI, LLC generally, in each case to the extent that Mr. Brafman was eligible under the terms of such plans or programs.
Daniel G. Cohen, Vice Chairman of the Board of Directors and of the Board of Managers of
IFMI, LLC, President and Chief Executive of the Company's European Business, and President of CCFL
On
May 9, 2013, in connection with the CBF Purchase Agreement, Mr. Cohen entered into an Amended and Restated Employment Agreement (the "Cohen Employment
Agreement") with the Company and IFMI, LLC, and, solely for purposes of Sections 6.4 and 7.5 thereof, JVB and J.V.B. Financial Group Holdings (formerly known as C&Co/PrinceRidge
Holdings LP and as PrinceRidge Holdings LP).
The
Cohen Employment Agreement became effective on September 16, 2013. Under the Cohen Employment Agreement, Mr. Cohen serves as Vice Chairman of the Board of Directors,
Vice Chairman of the board of managers of IFMI, LLC, President and Chief Executive of the "European Business" (as defined in the Cohen Employment Agreement), and President of CCFL.
The
initial term of the Cohen Employment Agreement ended on December 31, 2014, however, pursuant to the terms of the Cohen Employment Agreement, the term renewed automatically for
an additional one year period at such time and will continue to be renewed for additional one year periods at the end of any renewed term unless terminated by the parties in accordance with the terms
of the Cohen Employment Agreement.
Pursuant
to the Cohen Employment Agreement, Mr. Cohen will receive, during the term thereof, a guaranteed payment from IFMI, LLC of at least $600,000 annually (the "Current
Guaranteed Payment"), and will be entitled to receive the following allocations (collectively, "Cohen Allocations") from the Company: (a) a payment equal to 25% of the aggregate net income, if
any, of the European Business in each calendar year as determined in accordance with GAAP, subject to an off-set equal to 25% of the aggregate net losses, if any, in prior periods until such net
losses have been fully off-set by net income in future periods, and (b) a payment equal to 20% of the gross revenues generated on transactions that Mr. Cohen is responsible for
generating for the Company's non-European broker-dealers during each semi-annual calendar period as determined in accordance with GAAP.
In
the event that the annual allocations would result in allocations earned for that calendar year related to the European Business to exceed $5,000,000 (the "European Business Annual
Allocation Cap"), the Compensation Committee may, in its sole discretion and at any time prior to the payment of such allocation, reduce the amount of or totally eliminate any such allocation to the
extent such allocation is in excess of the European Business Annual Allocation Cap.
During
the term of the Cohen Employment Agreement, the Compensation Committee may, in its sole discretion, award Mr. Cohen additional allocations in amounts and on such terms to
be determined by the Compensation Committee.
The
Cohen Employment Agreement provides that Mr. Cohen may participate in any group life, hospitalization or disability insurance plans, health programs, retirement plans, fringe
benefit programs and other benefits that may be available to other senior executives of the Company generally, in each
34
Table of Contents
case
to the extent that Mr. Cohen is eligible under the terms of such plans or programs. Mr. Cohen is entitled to participate in any equity compensation plan of the Company or
IFMI, LLC in which he is eligible to participate, and may, without limitation, be granted in accordance with any such plan options to purchase units of membership interests in IFMI, LLC,
shares of common stock and other equity awards in the discretion of the Compensation Committee.
Pursuant
to the Cohen Employment Agreement, in the event Mr. Cohen is terminated by the Company due to his death or disability, Mr. Cohen (or his estate or beneficiaries,
as applicable) will be entitled to receive (a) any Current Guaranteed Payment and other benefits (including any Cohen Allocations for any period completed before termination of the Cohen
Employment Agreement (the "Prior Period Allocations")) earned and accrued, but not yet paid, under the Cohen Employment Agreement prior to the date of termination; (b) a single-sum payment
equal to the Current Guaranteed Payment that would have been paid to him for the remainder of the year in which the termination occurs; (c) a single-sum payment equal to (x) the
allocations for the period in which the termination occurs to which he would have been entitled if a termination had not occurred in such period, multiplied by (y) a fraction (1) the
numerator of which is the number of days in such period preceding the termination and (2) the denominator of which is the total number of days in such period. In addition, in the event
Mr. Cohen is terminated by the Company due to his death or disability, all outstanding unvested equity based awards (including, without limitation, stock options and restricted stock) held by
Mr. Cohen will fully vest and become immediately exercisable, as applicable, subject to the terms of such awards.
If
Mr. Cohen terminates his employment without "Good Reason" (as defined in the Cohen Employment Agreement) or the Company terminates his employment for "Cause" (as defined in the
Cohen Employment Agreement), Mr. Cohen will only be entitled to any Current Guaranteed Payment and other benefits earned and accrued, but unpaid, prior to the date of termination.
If
Mr. Cohen terminates his employment with Good Reason, or the Company terminates his employment without Cause, or the Company or IFMI, LLC terminates the Cohen Employment
Agreement by not renewing the term of the Cohen Employment Agreement as provided therein, then Mr. Cohen will be entitled to receive (a) a single-sum payment equal to accrued but unpaid
Current Guaranteed Payment and other benefits (including any Prior Period Allocations earned by Mr. Cohen), (b) a single-sum payment of an amount equal to three times (1) the
average of the Current Guaranteed Payment amounts paid to Mr. Cohen over the three calendar years prior to the date of termination, (2) if less than three years have elapsed between the
date of the Cohen Employment Agreement and the date of termination, the highest Current Guaranteed Payment paid to Mr. Cohen in any calendar year prior to the date of termination, or
(3) if less than twelve months have elapsed from the date of the Cohen Employment Agreement to the date of termination, the highest Current Guaranteed Payment received in any month times
twelve; provided that if the applicable calculation under (1), (2) or (3) yields less than $3,000,000, then Mr. Cohen will receive a single-sum payment of $3,000,000 in lieu of
such amount (the "Minimum Severance Amount"); and (c) a single-sum payment equal to the allocations for the period in which the termination occurs to which he would have been entitled if a
termination had not occurred in such period, multiplied by a fraction (x) the numerator of which is the number of days in such period preceding the termination and (y) the denominator of
which is the total number of days in such period. In addition, if Mr. Cohen terminates his employment with Good Reason, or the Company terminates his employment without Cause, or the Company or
IFMI, LLC terminates the Cohen Employment Agreement by not renewing the term of the Cohen Employment Agreement as provided therein, then all outstanding unvested equity based awards (including,
without limitation, stock options and restricted stock) held by Mr. Cohen will fully vest and become immediately exercisable, as applicable, subject to the terms of such awards.
35
Table of Contents
In the event of a "Change of Control" (as defined in the Cohen Employment Agreement) of the Company, all of Mr. Cohen's outstanding unvested equity-based
awards become fully vested and immediately exercisable, as applicable. With respect to a Change of Control transaction, if Mr. Cohen remains with the Company through the first anniversary of a
Change of Control, but leaves the Company within six months thereafter, such termination will be treated as a termination for Good Reason, and Mr. Cohen will be entitled to the compensation set
forth in the preceding paragraph.
Pursuant
to the Cohen Employment Agreement, if any amount payable to or other benefit to which Mr. Cohen is entitled would be deemed to constitute a "parachute payment" (as
defined in Section 280G of the Code), alone or when added to any other amount payable or paid to or other benefit receivable or received by Mr. Cohen, which is deemed to constitute a
parachute payment and would result in the imposition of an excise tax under Section 4999 of the Code, then the parachute payments shall be reduced (but not below zero) so that the maximum
amount is $1.00 less than the amount which would cause the parachute payments to be subject to the excise tax. However, if the reduction of the parachute payments is equal to or greater than $50,000,
then there will not be any reduction and the full amount of the parachute payment will be payable to Mr. Cohen.
All
termination payments, other than for death or disability, are subject to Mr. Cohen signing a general release.
In
the event Mr. Cohen's employment is terminated by the Company for Cause, by Mr. Cohen without Good Reason, or by Mr. Cohen as a result of not renewing the Cohen
Employment Agreement, Mr. Cohen will be restricted for a period of six months after the end of the term of the Cohen Employment Agreement in his ability to engage in certain activities that are
competitive with the Company's sales and trading of fixed income securities or investment banking activities in any European country in which the Company or any of its controlled affiliates operates
(each a "Competing Business"), provided, however, Mr. Cohen may serve as a member of the board of directors or equivalent position of any corporation or other company that is a Competing
Business, provided, further, that Mr. Cohen is obligated to recuse himself from any discussion in such position if it raises a conflict of interest with respect to Mr. Cohen's duties to
the Company or adversely affects the Company. In addition for a period of six months following the end of the term of the Cohen Employment Agreement, regardless of the reason the term of the Cohen
Employment Agreement ends, Mr. Cohen is prohibited under certain circumstances from soliciting the Company's employees, customers and clients.
As
described in greater detail below, on August 19, 2014, the Company entered into a definitive agreement (the "European Sale Agreement") to sell the Company's European operations
to C&Co Europe Acquisition LLC, an entity controlled by Mr. Cohen (see "Certain Relationships and Related Party Transactions—Sale of European Operations to C&Co Europe
Acquisition LLC" below for additional information regarding the sale of the Company's European operations). On June 30, 2015, the parties to the European Sale Agreement agreed, among
other things, that if the transaction contemplated thereby was terminated in accordance with its terms prior to the closing, then the Cohen Employment Agreement would be automatically amended (the
"Employment Agreement Amendment") to provide that if Mr. Cohen's employment was terminated by IFMI, LLC without "Cause" or by Mr. Cohen with "Good Reason" (as such terms are
defined in the Cohen Employment Agreement), the Minimum Severance Amount would be reduced from $3,000,000 to $1,000,000.
Joseph W. Pooler, Jr., Chief Financial Officer
Mr. Pooler's Employment Agreement, dated May 7, 2008 and amended on February 20, 2009 and February 18, 2010
(collectively, the "Pooler Agreement"), provides for a minimum salary of $400,000 per annum through December 31, 2010. Mr. Pooler's base salary for fiscal years after 2010 will be
36
Table of Contents
determined
by the Compensation Committee. On January 15, 2013, the Compensation Committee increased Mr. Pooler's salary to $420,000 per year.
The
initial term of the Pooler Agreement ended on December 31, 2012, however, pursuant to the terms of the Pooler Agreement, the term renewed automatically for an additional
one-year period at such time and will continue to be renewed for additional one-year periods at the end of any renewed term unless terminated by either of the parties in accordance with the terms of
the Pooler Agreement.
Pursuant
to the Pooler Agreement, if Mr. Pooler terminates his employment with "Good Reason" (as defined in the Pooler Agreement), the Company terminates his employment without
"Cause" (as defined in the Pooler Agreement), or the Company chooses not to renew the Pooler Agreement at its expiration, Mr. Pooler will be entitled to (a) any base salary and other
benefits earned and accrued prior to the date of termination; (b) a single-sum payment equal to three times (x) the average of the base salary amounts paid to Mr. Pooler over the
three calendar years prior to the date of termination, (y) if less than three years have elapsed between the date of the Pooler Agreement and the date of termination, the highest base salary
paid to Mr. Pooler in any calendar year prior to the date of termination, or (z) if less than 12 months have elapsed from the date of the Pooler Agreement to the date of
termination, the highest base salary received in any month times 12; (c) all of his outstanding unvested equity-based awards becoming fully vested and immediately exercisable, as applicable,
subject to the terms of such awards; (d) payment for outplacement assistance appropriate for Mr. Pooler's position for a period of one year following termination, such services not to
exceed $25,000; and (e) continued family coverage, without incremental cost, in Company sponsored health and dental plans at then-current cost for a period of nine months.
In
the event of a "Change of Control" (as defined in the Pooler Agreement), all of Mr. Pooler's outstanding unvested equity-based awards become fully vested and immediately
exercisable, as applicable, subject to the terms of such awards. If Mr. Pooler terminates his employment within the twelve-month period following a Change of Control, such termination will be
treated as a termination for "Good Reason" so long as Mr. Pooler makes himself available to provide transition services to the Company, at the request of the Company, for up to twelve months
following the Change of Control.
Pursuant
to the Pooler Agreement, if any amount payable to or other benefit to which Mr. Pooler is entitled would be deemed to constitute a "parachute payment" (as defined in
Section 280G of the Code), alone or when added to any other amount payable or paid to or other benefit receivable or received by Mr. Pooler, which is deemed to constitute a parachute
payment and would result in the imposition of an excise tax under Section 4999 of the Code, then the parachute payments shall be reduced (but not below zero) so that the maximum amount is $1.00
less than the amount which would cause the parachute payments to be subject to the excise tax. However, if the reduction of the parachute payments is equal to or greater than $50,000, then there will
not be any reduction and the full amount of the parachute payment will be payable to Mr. Pooler.
The
Pooler Agreement contains a waiver of any "Good Reason" termination that was available to Mr. Pooler pursuant to the terms of his original employment agreement as a result of
the closing of a transaction pursuant to which IFMI, LLC became a majority owned subsidiary of the Company. The Pooler Agreement also acknowledges that Mr. Pooler's equity-based awards
in IFMI, LLC became fully vested and immediately exercisable as of December 16, 2009, the date of the closing of the transaction pursuant to which IFMI, LLC became a majority
owned subsidiary of the Company.
During
the period of Mr. Pooler's employment with IFMI, LLC, and the period ending one year following the termination of his employment with IFMI, LLC,
Mr. Pooler may not, directly or indirectly through another entity, (a) induce or attempt to induce any employee of IFMI, LLC or its affiliates to leave the employ of
IFMI, LLC or such affiliates, or in any way interfere with the relationship between IFMI, LLC and any of its affiliates and any employee thereof, or (b) hire any person who was an
37
Table of Contents
employee
of IFMI, LLC or any of its affiliates or subsidiaries within 180 days after such person ceased to be an employee of IFMI, LLC or any of its affiliates.
Potential Payments upon Termination or Change in Control
As described above, Messrs. Cohen and Pooler have provisions in their respective employment agreements providing for certain benefits
upon the occurrence of certain events, including terminations of their respective employment without cause or for good reason, upon a change of control, or upon their death or disability. As a part of
the negotiations of each employment agreement, the Board of Directors believed that circumstances giving rise to the payments set forth above were appropriate.
Other Compensation Plans
The Company does not generally provide its executive officers with payments or other benefits at, following, or in connection with retirement.
The Company does not generally have a
nonqualified deferred compensation plan that provides for deferral of compensation on a basis that is not tax-qualified for its executive officers.
Cash and Equity Plan Compensation
The Company's Cash Bonus Plan
In August 2009, our Board of Directors adopted the Institutional Financial Markets, Inc. (formerly Alesco Financial Inc.) Cash
Bonus Plan (the "Company's Cash Bonus Plan"), which was approved by stockholders on December 15, 2009. The purpose of the Company's Cash Bonus Plan is to provide performance-based cash bonus
compensation for participants based on the attainment of one or more performance goals or targets that are related to the financial success of the Company, and that are established from time to time
by the Compensation Committee, as part of an integrated compensation program.
As
reflected under "Non-Equity Incentive Plan Compensation" in the Summary Compensation Table above, Messrs. Brafman and Pooler were awarded performance-based bonus awards in the
amounts of $400,000 and $170,000, respectively, for their performance in 2015 and 2014. These awards were granted under the Company's Cash Bonus Plan.
The 2010 Long-Term Incentive Plan
The 2010 Long-Term Incentive Plan, as amended from time to time, is administered by the Compensation Committee, except that, in certain
circumstances the Board of Directors may act in its place. The purpose of the 2010 Long-Term Incentive Plan is to induce key employees, directors, officers, advisors and consultants to continue
providing services to the Company and its subsidiaries and to encourage them to increase their efforts to make the Company's business more successful, whether directly or through its subsidiaries or
other affiliates. In furtherance of these objectives, the 2010 Long-Term Incentive Plan is designed to provide equity-based incentives to such persons in the form of options (including stock
appreciation rights), restricted shares, phantom shares,
dividend equivalent rights and other forms of equity based awards as contemplated by the 2010 Long-Term Incentive Plan, with eligibility for such awards determined by the Compensation Committee. The
Compensation Committee and Board of Directors believe that awards of restricted shares, typically vesting over a multi-year periods, are the most effective of the equity-based incentives available
under the 2010 Long-Term Incentive Plan in accomplishing its compensation goals.
Equity-based
awards to key personnel are generally subject to vesting periods in order to support the achievement of the Company's performance goals over the long-term and to help retain
key personnel. The Compensation Committee determines the number and type of equity-based incentives
38
Table of Contents
that
should be awarded from time to time to key personnel in light of the Company's compensation goals and objectives.
Effective
February 12, 2015, the Compensation Committee, under the 2010 Long-Term Incentive Plan, awarded 75,758 and 45,455 restricted shares of our common stock to
Mr. Brafman and Mr. Pooler, respectively, based on their respective performance in 2014. The closing price of our common stock on February 12, 2015 was $1.65. With regard to both
such awards, the restrictions expired with respect to one-half of these restricted shares on January 31, 2016 and will expire with respect to the remaining one-half of these restricted shares
on January 31, 2017 so long as Mr. Brafman or Mr. Pooler, as applicable, is then employed by the Company or any of its subsidiaries.
Effective
February 12, 2016, the Compensation Committee, under the 2010 Long-Term Incentive Plan, awarded 154,321 and 95,593 restricted shares of our common stock to
Mr. Brafman and Mr. Pooler, respectively, based on their respective performance in 2015. The closing price of our common stock on February 11, 2016 was $0.81. With regard to both
such awards, the restrictions expire with respect to one-half of these restricted shares on January 31, 2017 and with respect to the remaining one-half of these restricted shares on
January 31, 2018, in each case, so long as Mr. Brafman or Mr. Pooler, as applicable, is then employed by the Company or any of its subsidiaries.
Perquisites
Perquisites did not constitute a material portion of the compensation paid to the executive officers for fiscal year 2014 or 2015. Executive
officers are eligible to participate in all of the Company's employee benefit plans, such as medical, dental, group life, disability, accidental death and
dismemberment insurance and our 401(k) plan, in each case on the same basis as other employees, subject to applicable law.
Equity Compensation Plan Information
The Company's 2006 Long-Term Incentive Plan was approved by our stockholders at the special meeting held on October 6, 2006. The 2006
Long-Term Incentive Plan was amended on April 26, 2007 and June 18, 2008.
Following
the merger in December 2009 of IFMI, LLC (formerly Cohen Brothers, LLC) with and into a subsidiary of the Company, our Board assumed the Cohen
Brothers, LLC 2009 Equity Award Plan (the "2009 Equity Award Plan") from IFMI, LLC on December 16, 2009. The 2009 Equity Award Plan expired upon the vesting of restricted units of
IFMI, LLC on December 16, 2012. Mr. Cohen transferred to the Company 116,595 restricted shares of the Company's Common Stock to the Company in order to satisfy his obligation to
fund the equity vesting under the 2009 Equity Award Plan pursuant to the Equity Plan Funding Agreement by and between Mr. Cohen and IFMI, LLC.
The
Company's 2010 Long-Term Incentive Plan was approved by our stockholders at the annual meeting held on December 10, 2010. The 2010 Long-Term Incentive Plan was amended on
April 18, 2011 and amended and restated on March 8, 2012 and November 30, 2013.
39
Table of Contents
The
following table provides information regarding the 2006 Long-Term Incentive Plan and the 2010 Long-Term Incentive Plan as of December 31, 2015.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(a)
|
|
(b)
|
|
(c)
|
|
|
|
Number of securities
to be issued upon
the exercise of
outstanding options,
warrants and rights(1)
|
|
Weighted-average
exercise price of
outstanding
options,
warrants,
and rights
|
|
Number of securities
remaining available
for future issuance
under equity
compensation plans
(excluding securities
reflected in
column (a))
|
|
|
Equity compensation plans approved by security holders
|
|
|
1,526,189
|
|
$
|
4.44
|
|
|
906,154
|
|
|
Equity compensation plans not approved by security holders
|
|
|
—
|
|
|
—
|
|
|
—
|
|
-
(1)
-
See
note 20 to our consolidated financial statements included in the Company's Annual Report on Form 10-K for the year ended December 31, 2015,
filed with the SEC on March 9, 2016, for further information regarding the 2006 Long-Term Incentive Plan, the 2009 Equity Award Plan and the Equity Plan Funding Agreement, and the 2010
Long-Term Incentive Plan.
40
Table of Contents
COMPENSATION OF DIRECTORS
The Company uses a combination of cash and stock-based compensation to attract and retain qualified candidates to serve on the Board of
Directors. In accordance with the Company's compensation policy, for serving as a director for the fiscal year ended December 31, 2015, non-employee directors each received an annual cash fee
of $32,000 and $50,000 in restricted shares of common stock in the Company. The Chairman of the Audit Committee, the Chairman of the Compensation Committee, the Chairman of the Investment Committee
and the Chairman of the Nominating and Corporate Governance Committee received additional annual cash fees of $20,000, $3,750, $10,000 and $3,750, respectively.
The
table below summarizes the compensation information for the Company's non-employee directors for the fiscal year ended December 31, 2015. Daniel G. Cohen, Vice Chairman of the
Board of Directors and of the board of managers of IFMI, LLC, President and Chief Executive of the Company's
European Business, and President of CCFL, is not included in the table below as he is deemed a "named executive officer" of the Company. Compensation for Mr. Cohen is shown on the Summary
Compensation Table above.
|
|
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|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
Name
|
|
Fees
Earned
or Paid in
Cash ($)(1)
|
|
Stock
Awards
($)(2)
|
|
Option
Awards
($)
|
|
Non-Equity
Incentive Plan
Compensation
($)
|
|
Nonqualified
Deferred
Compensation
Earnings
($)
|
|
All Other
Compensation
($)
|
|
Total
($)
|
|
|
Thomas P. Costello
|
|
|
52,000
|
|
|
50,000
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
102,000
|
|
|
G. Steven Dawson
|
|
|
35,750
|
|
|
50,000
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
85,750
|
|
|
Jack DiMaio
|
|
|
32,000
|
|
|
50,000
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
82,000
|
|
|
Jack Haraburda
|
|
|
35,750
|
|
|
50,000
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
85,750
|
|
|
Diana Louise Liberto
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
James J. McEntee, III
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
Neil Subin
|
|
|
32,000
|
|
|
50,000
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
82,000
|
|
|
Joseph M. Donovan(3)
|
|
|
42,000
|
|
|
50,000
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
92,000
|
|
|
Christopher Ricciardi(4)
|
|
|
32,000
|
|
|
50,000
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
82,000
|
|
-
(1)
-
Amounts
in this column represent annual Board fees and annual chair fees earned by non-employee directors for service in 2015.
-
(2)
-
Amounts
in this column represent the grant date fair value of the restricted stock award, computed in accordance with FASB ASC Topic 718. The grant date fair value
per share for these restricted shares was $1.65 and each director, as indicated, was granted 30,303 restricted shares of Company's common stock. The assumptions used in the calculations of these
amounts were included in Note 20 to the Company's audited financial statements for the year ended December 31, 2015 in the 2015 Form 10-K. Amounts do not correspond to the actual
value that may be recognized by the director. As of December 31, 2015, the aggregate number of restricted stock awards outstanding at December 31, 2015 for each director was as follows:
(i) Mr. Costello—30,303 shares; (ii) Mr. Dawson—30,303 shares; (iii) Mr. DiMaio—30,303 shares;
(iv) Mr. Haraburda—30,303 shares; (v) Ms. Liberto—0 shares; (vi) Mr. McEntee—0 shares; and
(vii) Mr. Subin—30,303 shares. The restrictions on the foregoing shares expired on February 4, 2016.
-
(3)
-
Mr. Donovan
served as a director of the Company from December 16, 2009 until December 21, 2015.
-
(4)
-
Mr. Ricciardi
served as a director of the Company from September 24, 2013 until December 21, 2015.
The
Company reimburses all non-employee directors for travel and other reasonable expenses incurred in connection with attending its Board of Directors, committee and annual meetings.
41
Table of Contents
PROPOSAL FOUR—RATIFICATION OF THE APPOINTMENT OF
THE INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Audit Committee has appointed Grant Thornton LLP to be the Company's independent registered public accounting firm for the fiscal
year ending December 31, 2016.
Stockholder
ratification of the selection of Grant Thornton LLP as our independent registered public accounting firm is not required under the laws of the State of Maryland, by
our Bylaws or otherwise. However, our Board of Directors believes that it is good corporate practice to seek stockholder ratification of the selection of our independent registered public accounting
firm. If the appointment of Grant Thornton LLP is not ratified, the Audit Committee will reconsider the appointment. Even if the appointment is ratified, the Audit Committee in its discretion
may direct the appointment of a different independent registered public accounting firm during the year if it determines that such a change would be in our best interests and those of our
stockholders.
Representatives
of Grant Thornton LLP are expected to be present at the Company's 2016 Annual Meeting of Stockholders, will have the opportunity to make a statement if they desire
to do so and are expected to be available to respond to appropriate questions from our stockholders.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT YOU VOTE
FOR
THE RATIFICATION OF THE APPOINTMENT OF GRANT
THORNTON LLP AS THE COMPANY'S INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE FISCAL YEAR ENDING DECEMBER 31, 2016. IN THE ABSENCE OF INSTRUCTIONS TO THE CONTRARY, PROXIES SOLICITED IN
CONNECTION WITH THIS PROXY STATEMENT WILL BE VOTED
FOR
SUCH RATIFICATION.
42
Table of Contents
PRINCIPAL ACCOUNTING FIRM FEES
During the years ended December 31, 2015 and December 31, 2014, Grant Thornton LLP provided various audit and non-audit
services to the Company and its subsidiaries. The aggregate fees billed by Grant Thornton LLP to the Company and its subsidiaries for the years ended December 31, 2015 and 2014 were as
follows:
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|
|
|
|
|
|
|
|
|
|
Year Ended
December 31,
2015
|
|
Year Ended
December 31,
2014
|
|
|
Audit Fees(1)
|
|
$
|
523,622
|
|
$
|
626,732
|
|
|
Audit-Related Fees(2)
|
|
$
|
18,113
|
|
$
|
26,686
|
|
|
Tax Fees
|
|
$
|
—
|
|
$
|
—
|
|
|
All Other Fees
|
|
$
|
—
|
|
$
|
—
|
|
|
Total Principal Accounting Firm Fees
|
|
$
|
541,735
|
|
$
|
653,418
|
|
-
(1)
-
Audit
fees relate to services rendered by Grant Thornton LLP in connection with: (a) the audits of the annual financial statements included in our
Annual Reports on Form 10-K and services attendant to, or required by, statute or regulation; (b) the reviews of the financial statements included in our Quarterly Reports on
Form 10-Q; (c) other services related to SEC and other regulatory filings, including providing consents; (d) services provided in connection with the statutory audits of our U.S.
broker-dealer and United Kingdom and French subsidiaries; and (e) accounting and financial consultation attendant to the audit.
-
(2)
-
Audit-related
fees include fees related to the Company's 401(k) savings plan.
The
Audit Committee must pre-approve all audit services and non-audit services provided to the Company or our subsidiaries by our independent registered public accounting firm, except
for non-audit services covered by the
de minimis
exception in Section 10A of the Exchange Act. All of the audit and audit-related fees described
above for which Grant Thornton LLP billed for the fiscal years ended December 31, 2015 and December 31, 2014 were pre-approved by the Audit Committee.
The
Audit Committee considers and pre-approves any audit and non-audit services to be performed by our independent registered public accounting firm at our Audit Committee's regularly
scheduled and special meetings. The Audit Committee has delegated to its Chairman, an independent member of our Board of Directors, the authority to grant pre-approvals of all audit, review and attest
services and non-attest services other than the fees and terms for our annual audit, provided that any such pre-approval by the Chairman shall be reported to our Audit Committee at its next scheduled
meeting.
The
Audit Committee has considered whether the provision of these services is compatible with maintaining the independent registered public accounting firm's independence and has
determined that such services have not adversely affected the independence of our independent registered public accounting firm.
43
Table of Contents
REPORT OF THE AUDIT COMMITTEE OF THE BOARD OF DIRECTORS
The following is a report by the Audit Committee regarding the responsibilities and functions of the Audit Committee. This report does not
constitute soliciting material and shall not be deemed filed or incorporated by reference into any other Company filing under the Exchange Act, except to the extent the Company specifically
incorporates this report of the Audit Committee by reference therein.
The
Audit Committee oversees our financial reporting process on behalf of the Board of Directors in accordance with the Audit Committee charter. Management is responsible for the
financial reporting process, including the system of internal controls, and for the preparation of consolidated financial statements in accordance with GAAP. Our independent registered public
accounting firm is responsible for performing an audit of the consolidated financial statements and, if required by applicable law, an audit of the effective operation of the Company's internal
control over financial reporting. The Audit Committee's responsibility is to oversee and review these processes. In fulfilling its oversight responsibilities, the Audit Committee reviewed and
discussed with management and the independent registered public accounting firm the audited financial statements in the 2015 Form 10-K, including discussions regarding critical accounting
policies, other financial accounting and reporting principles and practices appropriate for the Company, the quality of such principles and practices, the reasonableness of significant judgments and
the clarity of disclosures in the financial statements. The Audit Committee also reviewed and discussed with management and the independent registered public accounting firm the Company's internal
controls over financial reporting, including a review of management's and the independent registered public accounting firm's assessments of and reports on the effectiveness of internal controls over
financial reporting and any significant deficiencies or material weaknesses and discussed with management and the independent registered public accounting firm, as applicable, the process used to
support certifications by our Chief Executive Officer and Chief Financial Officer that are required by the SEC and the Sarbanes-Oxley Act of 2002, as amended, to accompany the Company's periodic
filings with the SEC.
In
addition, the Audit Committee obtained from the independent registered public accounting firm a formal written statement describing all relationships between the independent
registered public accounting firm and the Company that might bear on their independence consistent with Independence Standards Board Standard No. 1, "Independence Discussions with Audit
Committees," as currently in effect, discussed with the independent registered public accounting firm any relationships that may impact their objectivity and independence, and satisfied itself as to
their independence. When considering the independence of the independent registered public accounting firm, the Audit Committee considered whether their provision of services to the Company beyond
those rendered in connection with their audit of the Company's consolidated financial statements and reviews of its consolidated financial statements, including in its Quarterly Reports on
Form 10-Q, was compatible with maintaining their independence. The Audit Committee also reviewed, among other things, the audit and non-audit services performed by, and the amount of fees paid
for such services to, the independent registered public accounting firm. The Audit Committee also discussed with the independent registered public accounting firm the matters required to be discussed
by generally accepted auditing standards, including those described in Statement on Auditing Standards (SAS) No. 61, as amended (AICPA, Professional Standards, Vol. 1, AU Section 380),
as adopted by the Public Company Accounting Oversight Board in Rule 3200T.
In
reliance on the reviews and discussions referred to above, but subject to the limitations on the role and responsibilities of the Audit Committee referred to below and in the Audit
Committee charter, the Audit Committee recommended to the Board of Directors (and the Board approved) that the audited financial statements for the year ended December 31, 2015 be included in
the Annual Report on Form 10-K.
44
Table of Contents
The
Audit Committee is composed of three independent non-employee directors and operates under a written charter adopted by the Board of Directors (which is available on our website at
http://www.ifmi.com
).
The Audit Committee consists of Messrs. Dawson, Subin and Costello, who serves as the Audit Committee Chairman. The Board
of Directors, in its judgment, has determined that each committee member meets the independence requirements of the SEC and the NYSE MKT. The Board of Directors has also determined that each member of
our Audit Committee is financially literate and has accounting or related financial management expertise, as such qualifications are defined under the applicable NYSE MKT listing standards currently
in effect, and that Mr. Costello is an "audit committee financial expert," as defined under Item 407(d)(5) of Regulation S-K.
The
Audit Committee held five meetings during fiscal year 2015. The meetings were designed, among other things, to facilitate and encourage communication among the Audit Committee,
management, and the independent registered public accounting firm. The members of the Audit Committee are not professionally engaged in the practice of accounting or auditing. Committee members rely,
without independent investigation or verification, on the information provided to them and on the representations made by management and the independent registered public accounting firm. Accordingly,
the Audit Committee's oversight does not provide an independent basis to determine that management has maintained appropriate accounting and financial reporting principles or appropriate internal
controls and procedures designed to assure compliance with accounting standards and applicable laws and regulations. Furthermore, the Audit Committee's considerations and discussions referred to above
do not assure that the audit of the financial statements has been carried out in accordance with the standards of the Public Company Accounting Oversight Board (United States), that the financial
statements are presented in accordance with GAAP or that Grant Thornton LLP is in fact "independent."
Respectfully
Submitted,
Audit Committee
Thomas P. Costello, Chairman
Steve Dawson
Neil Subin
45
Table of Contents
SHARE OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information known to us regarding the beneficial ownership of our common stock and Series E
Preferred Stock as of October 26, 2016 by (1) each person known by us to own beneficially more than 5% of our outstanding common stock or Series E Preferred Stock, as applicable,
(2) each current director, (3) each named executive officer, and (4) all current directors and executive officers as a group. The number of shares of our stock beneficially owned
by each entity, person, director, executive officer or named executive officer is determined under the rules of the SEC, and the information is not necessarily indicative of beneficial ownership for
any other purpose. Under such rules, beneficial ownership includes any stock as to which the individual has the sole or shared voting power or investment power and also any stock that the individual
has a right to acquire within 60 days from October 26, 2016 through the exercise of any share option or other right. Unless otherwise indicated, each person has sole voting and
investment power with respect to the stock set forth in the following table.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name
|
|
Series E
Preferred
Stock
Beneficially
Owned
|
|
Percent of
Class(1)
|
|
Common
Stock
Beneficially
Owned
|
|
Percent of
Class(2)
|
|
|
Greater than 5% percent owner:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Betsy Zubrow Cohen(3)
|
|
|
—
|
|
|
—
|
|
|
835,950
|
|
|
6.9
|
%
|
|
Edward E. Cohen(4)
|
|
|
—
|
|
|
—
|
|
|
2,516,717
|
|
|
18.6
|
%
|
|
EBC 2013 Family Trust(5)
|
|
|
—
|
|
|
—
|
|
|
1,600,000
|
|
|
12.4
|
%
|
|
Christopher Ricciardi(6)
|
|
|
—
|
|
|
—
|
|
|
1,018,139
|
|
|
7.9
|
%
|
|
Directors and Named Executive Officers:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lester R. Brafman(7)
|
|
|
—
|
|
|
—
|
|
|
3,213,402
|
|
|
21.3
|
%
|
|
Daniel G. Cohen(8)
|
|
|
4,983,557
|
|
|
100
|
%
|
|
1,998,039
|
|
|
15.5
|
%
|
|
Thomas P. Costello(9)
|
|
|
—
|
|
|
—
|
|
|
196,818
|
|
|
1.6
|
%
|
|
G. Steven Dawson(10)
|
|
|
—
|
|
|
—
|
|
|
210,827
|
|
|
1.7
|
%
|
|
Jack J. DiMaio, Jr.(11)
|
|
|
—
|
|
|
—
|
|
|
114,665
|
|
|
*
|
|
|
Jack Haraburda(12)
|
|
|
—
|
|
|
—
|
|
|
196,618
|
|
|
1.6
|
%
|
|
Diana Louise Liberto(13)
|
|
|
—
|
|
|
—
|
|
|
61,728
|
|
|
*
|
|
|
James J. McEntee, III(14)
|
|
|
—
|
|
|
—
|
|
|
231,794
|
|
|
1.9
|
%
|
|
Joseph W. Pooler, Jr.(15)
|
|
|
—
|
|
|
—
|
|
|
386,855
|
|
|
3.2
|
%
|
|
Neil S. Subin(16)
|
|
|
—
|
|
|
—
|
|
|
257,523
|
|
|
2.1
|
%
|
|
All current executive officers and directors as a group (10 persons)(17)
|
|
|
4,983,557
|
|
|
100
|
%
|
|
6,868,269
|
|
|
42.9
|
%
|
-
*
-
Beneficial
ownership of less than 1% of the class is omitted.
-
(1)
-
Based
on 4,983,557 shares of the Series E Preferred Stock issued and outstanding on October 26 2016.
-
(2)
-
Based
on 12,090,382 shares of the Company's common stock issued and outstanding on October 26, 2016.
-
(3)
-
The
common stock includes 88,365 shares held by Solomon Investment Partnership, L.P. (the "Solomon Investment Partnership Shares"). Betsy Zubrow Cohen and
Edward E. Cohen, her spouse, are the sole shareholders, officers and directors of the corporate general partner of Solomon Investment Partnership, L.P. and are the sole partners of the
partnership. Betsy Zubrow Cohen and Edward E. Cohen share voting and dispositive power over the Solomon Investment Partnership Shares. Betsy Zubrow Cohen is the mother of Daniel G. Cohen, Vice
Chairman of the
46
Table of Contents
Board
of Directors and of the Board of Managers of IFMI, LLC, President and Chief Executive of the Company's European Business, and President of CCFL.
The
number of shares of common stock beneficially owned by Betsy Zubrow Cohen and set forth in the table above is based on the Schedule 13D filed by Betsy Zubrow Cohen with the SEC on
September 8, 2015.
The
address for this stockholder is 1240 North Casey Key Road, Osprey, Florida 34229.
-
(4)
-
The
common stock includes the Solomon Investment Partnership Shares, over which Edward E. Cohen and Betsy Zubrow Cohen, his spouse, share voting and dispositive
power. The common stock also includes 1,461,876 shares of common stock (the "Edward E. Cohen Conversion Shares") into which certain 8% convertible senior promissory notes (in the aggregate principal
amount of $4,385,628) (the "Cohen MP Notes") that were issued to Mead Park Capital Partners LLC ("Mead Park") on September 25, 2013 in connection with the Securities Purchase Agreement,
dated as of May 9, 2013, by and among the Company, Mead Park and, solely for purposes of Section 6.3 thereof, Mead Park Holdings LP (the "Mead Park Purchase Agreement"), and which
were purchased by Edward E. Cohen from Mead Park on August 28, 2015, may be converted, subject to certain customary anti-dilution adjustments. The Cohen MP Notes may be converted by the holder
thereof at any time prior to September 25, 2018, in such holder's sole discretion. Under the Cohen MP Notes, the outstanding principal amount is due and payable to the holder thereof, in full,
on September 25, 2018. The common stock does not include the 248,737 additional shares of common stock into which the Cohen MP Notes may be converted in the event that, pursuant to the terms
and conditions of the Cohen MP Notes, the Company elects to pay interest on the Cohen MP Notes by increasing the principal amount thereof. Edward E. Cohen is the father of Daniel G. Cohen, Vice
Chairman of the Board of Directors and of the Board of Managers of IFMI, LLC, President and Chief Executive of the Company's European Business, and President of CCFL.
The
number of shares of common stock beneficially owned by Edward E. Cohen and set forth in the table above is based on the Schedule 13D filed by Edward E. Cohen with the SEC on
September 8, 2015.
The
address for this stockholder is 1240 North Casey Key Road, Osprey, Florida 34229.
-
(5)
-
The
common stock includes 800,000 shares of common stock (the "EBC Shares") issued to the EBC 2013 Family Trust ("EBC Trust"), as assignee of CBF, on
September 25, 2013 at $2.00 per share (for an aggregate amount of $1,600,000) in connection with the CBF Purchase Agreement. The common stock also includes 800,000 shares of common stock (the
"EBC Conversion Shares") into which the convertible senior promissory note (in the aggregate principal amount of $2,400,000) (the "EBC Note") that was issued to EBC Trust on September 25, 2013
in connection with the CBF Purchase Agreement may be converted, subject to certain customary anti-dilution adjustments. The EBC Note may be converted by EBC Trust at any time prior to
September 25, 2018, in EBC Trust's sole discretion. Under the EBC Note, the outstanding principal amount is due and payable to the holder thereof, in full, on September 25, 2018. The
common stock does not include the 136,119 additional shares of common stock (the "Additional EBC Conversion Shares") into which the EBC Note may be converted in the event that, pursuant to the terms
and conditions of the EBC Note, the Company elects to pay interest on the EBC Note by increasing the principal amount thereof. All of the common stock is pledged as security.
The
number of shares of common stock beneficially owned by EBC Trust and set forth in the table above is based on the Schedule 13D filed by EBC Trust with the SEC on September 30, 2013.
The
address for this stockholder is c/o Institutional Financial Markets, Inc., Cira Centre, 2929 Arch Street, 17th Floor, Philadelphia, Pennsylvania 19104.
47
Table of Contents
-
(6)
-
Mr. Ricciardi
served as a director of the Company from September 24, 2013 until December 21, 2015. The common stock includes 487,291 shares of
common stock into which a convertible senior promissory note (in the aggregate principal amount of $1,461,873) that was issued to Mead Park in connection with the Mead Park Purchase Agreement on
September 25, 2013 may be converted, subject to certain customary anti-dilution adjustments, which may be issued to Mr. Ricciardi upon the exchange of Mr. Ricciardi's membership
units of Mead Park and of which Mr. Ricciardi may be deemed the beneficial owner. The common stock also includes 268,445 units of membership interests in IFMI, LLC (223,520 of which are
owned by Mr. Ricciardi and 44,925 of which are owned by Stephanie Ricciardi, Mr. Ricciardi's spouse) which Mr. Ricciardi may cause the Company to redeem into, at the Company's
option, shares of common stock or cash.
The
number of shares of common stock beneficially owned by Mr. Ricciardi and set forth in the table above is based on the Schedule 13D filed by Mr. Ricciardi with the SEC on
July 2, 2009, as amended on December 21, 2009, December 24, 2009, April 25, 2011, July 17, 2011, May 15, 2013, September 30, 2013, September 1,
2015, October 19, 2015 and November 6, 2015.
The
address for this stockholder is 51 Shellbark Lane, Briarcliff Manor, New York 10510.
-
(7)
-
Mr. Brafman
is the Chief Executive Officer of the Company and of IFMI, LLC. The common stock includes 37,879 restricted shares granted on
February 12, 2015, which will vest January 31, 2017, and 154,321 restricted shares granted on February 12, 2016, half of which will vest on January 31, 2017 and the
remaining half will vest on January 31, 2018, in each case, so long as Mr. Brafman is then employed by the Company or any of its subsidiaries. The common stock includes 3,000,000 shares
(the "Brafman Option Shares") which are currently exercisable or exercisable within 60 days from October 26, 2016 under the Brafman Options, of which Mr. Brafman may be deemed a
beneficial owner.
-
(8)
-
Mr. Cohen
is the Vice Chairman of the Board of Directors and of the board of managers of IFMI, LLC, President and Chief Executive of the Company's
European Business, and as President, a director and the Chief Investment Officer of CCFL. Of the common stock, 1,603,250 shares are pledged as security. The common stock includes 398,039 held directly
by Mr. Cohen. The common stock also includes the EBC Shares and the EBC Conversion Shares, of which Mr. Cohen may be deemed a beneficial owner as the result of his being a trustee of EBC
Trust and because Mr. Cohen has sole voting power with respect to all shares held by the EBC Trust. The common stock does not include any portion of the Additional EBC Conversion Shares.
The
address for this stockholder is c/o Institutional Financial Markets, Inc., Cira Centre, 2929 Arch Street, 17th Floor, Philadelphia, Pennsylvania 19104.
-
(9)
-
Mr. Costello
is a director of the Company. The common stock includes 61,728 restricted shares that will vest on February 12, 2017.
-
(10)
-
Mr. Dawson
is a director of the Company. Of the common stock, 149,099 shares are held by Corriente Private Trust. Mr. Dawson is the primary trustee
and sole beneficiary of Corriente Private Trust and, through Corriente Private Trust, he has voting and investment control with respect to the securities held therein. The common stock includes 61,728
restricted shares that will vest on February 12, 2017.
-
(11)
-
Mr. DiMaio
is a director of the Company. The common stock includes 61,728 restricted shares that will vest on February 12, 2017.
-
(12)
-
Mr. Haraburda
is a director of the Company. The common stock includes 61,728 restricted shares that will vest on February 12, 2017.
-
(13)
-
Ms. Liberto
is a director of the Company. All of the common stock is restricted that will vest on February 12, 2017.
48
Table of Contents
-
(14)
-
Mr. McEntee
is a director of the Company. The common stock includes 61,728 restricted shares that will vest on February 12, 2017.
-
(15)
-
Mr. Pooler
is the Executive Vice President, Chief Financial Officer and Treasurer of the Company. The common stock includes 22,727 restricted shares granted
on February 12, 2015, which will vest January 31, 2017, and 92,593 restricted shares granted on February 12, 2016, half of which will vest on January 31, 2017 and the
remaining half will vest on January 31, 2018, in each case, so long as Mr. Pooler is then employed by the Company or any of its subsidiaries. The common stock includes 107,143 (the
"Pooler Option Exercise Shares") shares which are exercisable under the Pooler Option, of which Mr. Pooler may be deemed a beneficial owner.
-
(16)
-
Mr. Subin
is a director of the Company. The common stock includes 61,728 restricted shares that will vest on February 12, 2017.
-
(17)
-
The
common stock includes (i) the EBC Shares and the EBC Conversion Shares, of which Daniel G. Cohen may be deemed to be a beneficial owner,
(ii) the Brafman Option Shares, of which Lester R. Brafman may be deemed to be a beneficial owner, and (iii) the Pooler Option Award Exercise Shares, of which Joseph W. Pooler, Jr. may
be deemed to be a beneficial owner, as described in notes (5), (7) and (15) above, respectively.
49
Table of Contents
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires our directors and executive officers and persons who own more than 10% of our common stock,
which are referred to in this report as "reporting persons," to file reports of ownership and changes in ownership with the SEC. Reporting persons are also required by SEC regulations to furnish us
with copies of all Section 16(a) forms filed by them with the SEC. To our knowledge, based solely on our review of the copies of the Section 16(a) forms furnished to us or upon written
representations from certain of these reporting persons that no other reports were required, all Section 16(a) filing requirements applicable to the reporting persons were timely filed during
our 2015 fiscal year except that, following their elections to the Board on December 21, 2015, Mr. McEntee and Ms. Liberto did not file a Form 3 until
February 5, 2016 and February 10, 2016, respectively.
50
Table of Contents
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
The Company has identified the following related party transactions since January 1, 2014. Unless indicated otherwise, all dollar amounts
(except share and per share data) in the section below are in thousands. Each of the transactions below were approved or ratified in accordance with our policies regarding related party transactions,
which are described in greater details below.
A.
CBF and EBC Trust
CBF
has been identified as a related party because it is wholly owned by Daniel G. Cohen, the Company's Vice Chairman of the Board of Directors and of the board of managers of
IFMI, LLC, President and Chief Executive of the Company's European Business, and President of CCFL. The EBC Trust has been identified as a related party because Mr. Cohen is a trustee of
the EBC Trust and has sole voting power with respect to all shares of the Company held by the EBC Trust.
On
September 25, 2013, in connection with the CBF Purchase Agreement, the Company issued to the EBC Trust, as assignee of CBF, the EBC Shares for an aggregate amount of $1,600 and
the EBC Note in the aggregate principal amount of $2,400. The Company incurred interest expenses relating to the EBC Note in the amounts of $173 in 2016, $228 in 2015 and $224 in 2014.
Additional
information regarding EBC's September 2013 investment in the Company is included in Notes 4 and 17 to the Company's audited financial statements for the year ended
December 31, 2015 in the 2015 Form 10-K.
B.
Mead Park, Mead Park Advisors LLC ("Mead Park Advisors"), Mr. Ricciardi, Mr. DiMaio and
Mr. Edward E. Cohen
Investment in IFMI by Mead Park
In connection with the Mead Park Purchase Agreement, on September 25, 2013, the Company issued to Mead Park $3,898 of the Company's
common stock and certain 8% convertible senior promissory notes in the aggregate principal amount of $5,848 (the "Mead Park Notes"). In connection with the Mead Park Notes, the Company paid to Mead
Park amounts of interest equal to $340 in 2015 and $547 in 2014. At the time of such issuance on September 25, 2013, Jack DiMaio, Jr. was the chief executive officer and founder of Mead Park
and Christopher Ricciardi, the Company's former president and a former director on the Board, was a member of Mead Park.
On
August 28, 2015, Mead Park sold $4,386 of the Mead Park Notes (the "Cohen MP Notes") and 1,461,876 shares of the Company's common stock to the Edward E. Cohen IRA, of which
Edward E. Cohen is the benefactor. Edward E. Cohen is the father of Daniel G. Cohen. The Company's common stock and the Mead Park Notes sold in this transaction represented substantially all of the
amounts beneficially owned by Mr. DiMaio at the time. Also as a result of this transaction, Mr. DiMaio was no longer a member of Mead Park and Mr. Ricciardi remained a member and
sole manager of Mead Park. Mr. DiMaio remains the Chairman of the Board of Directors. The Company incurred interest expenses relating to the Cohen MP Notes in the amounts of $317 in 2016 and
$210 in 2015.
On
October 16, 2015, the Company entered into the Termination Agreement, by and among the Company; Christopher Ricciardi, a member of the Board of Directors at the time; Stephanie
Ricciardi, Mr. Ricciardi's spouse; and the Ricciardi Family Foundation, a New York charitable not-for-profit corporation of which Mr. and Mrs. Ricciardi serve as directors
(together with Stephanie Ricciardi and Christopher Ricciardi, the "Ricciardi Parties"); and Mead Park. Pursuant to the Termination Agreement, in connection with the termination of the Mead Park
Purchase Agreement and all rights and obligations thereunder and the mutual release of claims set forth in the Termination Agreement, on October 16, 2015: (i) Mead Park transferred to
the Company 487,291 shares of the Company's common stock; (ii) the Ricciardi Parties transferred to the Company 1,512,709 shares of the Company's
51
Table of Contents
common
stock; (iii) the Company and Mead Park terminated the Mead Park Purchase Agreement in its entirety; and (iv) the Company transferred $4,000 in cash to accounts designated by
Mr. Ricciardi for the benefit of the Ricciardi Parties and Mead Park.
During
2015, Mead Park transferred the remaining Mead Park Notes it held, in the amount of $1,462 of the aggregated principal amount, to Mr. Ricciardi. The Company incurred
interest expenses relating to such notes held by Mr. Ricciardi in the amounts of $106 in 2016 and $3 in 2015.
At
the Company's annual meeting held on December 21, 2015, Mr. Ricciardi was not reelected to the Board of Directors. Subsequent to this date, Mr. Ricciardi is no
longer considered a related party.
CDO Sub-Advisory Agreement with Mead Park Advisors
In July 2014, the Company's majority owned subsidiaries, Cohen & Company Financial Management LLC ("CCFM") and Dekania Capital
Management, LLC ("DCM"), entered into a collateralized debt obligation ("CDO") sub-advisory agreement with Mead Park Advisors, whereby Mead Park Advisors will render investment advice and
provide assistance to CCFM and DCM with respect to their management of certain CDOs. The Company incurred consulting fee expense related to this agreement in the amount of $150 in 2016 and $200 in
2015. As a result of Mr. DiMaio's ownership in Mead Park Advisors, Mead Park has been identified as a related party of the Company.
C.
Directors and Employees
In
addition to the employment agreements the Company has entered into with Daniel G. Cohen, Vice Chairman of the Board of Directors and of the board of managers of IFMI, LLC,
President and Chief Executive of the Company's European Business, and President of CCFL, and Joseph W. Pooler, Jr., the Company's Chief Financial Officer, the Company has entered into its
standard indemnification agreement with each of its directors and executive officers.
The
Company maintains a 401(k) savings plan covering substantially all of its employees. The Company matches 50% of employee contributions for all participants not to exceed 3% of their
salary. Contributions made to the plan on behalf of the Company were $214 and $261 for the years ended December 31, 2015 and 2014, respectively.
D.
The Bancorp, Inc.
The
Bancorp, Inc. ("TBBK") is identified as a related party because Daniel G. Cohen is TBBK's Chairman. TBBK maintained deposits for the Company in the amount of $43 and $86 as of
December 31, 2015 and 2014, respectively.
As
part of the Company's broker-dealer operations, the Company from time to time purchases securities from third parties and sells those securities to TBBK. The Company may purchase
securities from TBBK and ultimately sell those securities to third parties.
From
time to time, the Company will enter into repurchase agreements with TBBK as its counterparty. As of December 31, 2015 and 2014, the Company had repurchase agreements with
TBBK as the counterparty in the amount of $0 and $46,275, respectively. The fair value of the collateral provided to TBBK by the Company relating to these repurchase agreements was $0 and $48,482 at
December 31, 2015 and 2014, respectively. The Company incurred interest expense related to repurchase agreements with TBBK as its counterparty in the amounts of $541 and $461 for the years
ended December 31, 2015 and 2014, respectively.
52
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E.
Purchase of IFMI Common Stock from Daniel G. Cohen
During
the third quarter of 2014, the Company repurchased 100,000 shares of the Company's common stock from Daniel G. Cohen at $2.07 per share. The Company retired these shares.
During
the fourth quarter of 2014, the Company repurchased 100,000 shares of the Company's common stock from Daniel G. Cohen at $1.77 per share. The Company retired these shares.
F.
Sale of European Operations to C&Co Europe Acquisition LLC
C&Co
Europe Acquisition LLC has been identified as a related party because Daniel G. Cohen is the entity's sole member. On August 19, 2014, the Company entered into the
European Sale Agreement to sell the Company's European operations to C&Co Europe Acquisition LLC for approximately $8,700. The transaction was subject to customary closing conditions and
regulatory approval from the United Kingdom Financial Conduct Authority ("FCA").
On
March 26, 2015, the parties to the European Sale Agreement agreed to extend the deadline for the closing of the transactions contemplated by the European Sale Agreement from
March 31, 2015 to June 30, 2015. In addition, the parties to the European Sale Agreement amended the date on which C&Co Europe Acquisition LLC was obligated to cause the
settlement of intercompany accounts of CCFL and the Company's subsidiaries, Cohen & Compagnie, SAS and Unicum Capital, S.L., owed to the IFMI, LLC (the "Intercompany Payables") from
March 31, 2015 to June 30, 2015.
On
June 30, 2015, the parties to the European Sale Agreement agreed to extend the deadline for the closing from June 30, 2015 to December 31, 2015 and the settlement
date of the Intercompany Payables from June 30, 2015 to December 31, 2015 (the "Second Extension"). In connection with the Second Extension, the parties to the European Sale Agreement
agreed that, if the transaction was terminated in accordance with its terms prior to the closing, then (i) Mr. Cohen would pay $600 in respect of a portion of the legal and financial
advisory fees and expenses incurred by us and the special committee of our Board of Directors in connection with the transaction since April 1, 2014 and (ii) the Employment Agreement
Amendment would be executed and would provide that, if Mr. Cohen's employment was terminated by IFMI, LLC without "Cause" or by Mr. Cohen with "Good Reason" (as such terms are
defined in the Cohen Employment Agreement), the Minimum Severance Amount would be reduced from $3,000 to $1,000.
The
European Sale Agreement provides that either party may terminate the agreement after December 31, 2015. On February 18, 2016, C&Co Europe Acquisition LLC
provided notice to IFMI, LLC that it continues to evaluate the transaction. Although the Company believes that, given the passage of time, there is a very low probability of this transaction
closing in the future, given the potential value to the Company of the proposed transaction if it were to close and based on C&Co Europe Acquisition LLC's indication that it continues to
evaluate its options, to date, the Company has not terminated the European Sale Agreement and the Company and IFMI, LLC continue to evaluate the transaction.
Policies Regarding Related Party Transactions
Pursuant to the Company's Code of Conduct (the "Code of Conduct"), unless approved or ratified by the Audit Committee, the Nominating and
Corporate Governance Committee, or a majority of the directors of the Company not having an interest in a Related Party Transaction (as defined below) (each an "Authorizing Body"), no
(a) employee, officer or director of the Company, (b) member of the immediate family of any employee, officer or director of the Company, (c) entity in which an employee, officer
or director of the Company has an economic interest of more than 5% or a controlling interest, or (d) affiliate of any of the foregoing (each a "Related Party") may (i) enter into any
transaction with the Company or any of its subsidiaries involving the acquisition or sale of any of the Company's or any
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of
its subsidiaries' assets or other property; (ii) enter into any transaction involving a loan to or from the Company or any of its subsidiaries; or (iii) enter into any other
transaction with the Company or any of its subsidiaries (each a "Related Party Transaction").
A
Related Party Transaction entered into without pre-approval of an Authorizing Body will not be deemed to violate the Code of Conduct, or be invalid or unenforceable, so long as the
Related Party Transaction is, as promptly as reasonably practical after it is entered into, brought to and ratified by an Authorizing Body. Every Related Party Transaction to which the Company is a
party will be deemed to include as a condition that it be approved in accordance with the Code of Conduct.
A
Related Party Transaction or categories of Related Party Transactions may be reviewed in advance and pre-approved in advance by an Authorizing Body. If a Related Party Transaction or a
series of Related Party Transactions will be ongoing, an Authorizing Body may establish guidelines for the Company's management to follow in its ongoing dealings with the Related Party. Thereafter, an
Authorizing Body will periodically review and assess the ongoing relationships with the Related Party. Any material amendment, renewal or extension of a Related Party Transaction which has been
previously reviewed and/or approved under the Code of Conduct will be subject to subsequent review and/or approval under the Code of Conduct.
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OTHER MATTERS
As of the mailing date of this proxy statement, our Board of Directors knows of no matters to be presented at the annual meeting other than
those set forth in the Notice and described in this proxy statement. Should any other matter requiring a vote of the stockholders arise at the annual meeting, the persons named in the attached proxy
will vote on such matter in their discretion.
STOCKHOLDER PROPOSALS
Stockholder proposals intended to be presented at the 2017 annual meeting of stockholders must be received by our Secretary at our principal
executive offices no later than July 14, 2017, unless the date of the meeting is changed by more than 30 calendar days from the one year anniversary date of this annual meeting, and must
satisfy the requirements of Rule 14a-8 under the Exchange Act.
Other
than a stockholder proposal included in the proxy statement pursuant to Rule 14a-8, in order to be presented at the 2017 annual meeting of stockholders, a proposal of a
stockholder, including any proposed director nominations, must be received by our Secretary at our principal executive offices in the timeframe as provided in our Bylaws. To be timely, our Bylaws
currently require that such a stockholder's notice set forth all information required under Section 1.11 of our Bylaws and be delivered to our Secretary at our principal executive office not
earlier than the 150th day nor later than 5:00 p.m., Eastern Time, on the 120th day prior to the first anniversary of the date of mailing of the notice for the preceding year's
annual meeting; provided, however, in the event that the date of the annual meeting is advanced or delayed by more than 30 days from the first anniversary of the date of the preceding year's
annual meeting, notice by the stockholder to be timely must be delivered to our Secretary at our principal executive office not earlier than the 150th day prior to the date of such annual
meeting and not later than 5:00 p.m., Eastern Time, on the later of the 120th day prior to the date of such annual meeting or the tenth day following the day on which public announcement
of the date of such meeting is first made. Our Bylaws also currently provide that, in the event that our Board of Directors increases or decreases the maximum or minimum number of directors in
accordance with our Bylaws, and there is no public announcement of such action at least 130 days prior to the first anniversary of the date of mailing of the notice of the preceding year's
annual meeting, a stockholder's notice shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to our Secretary at
our principal executive office not later than 5:00 p.m., Eastern Time, on the tenth day following the day on which such public announcement is first made by the Company.
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ANNUAL REPORT ON FORM 10-K
Our Annual Report on Form 10-K for the year ended December 31, 2015, as amended, accompanies this proxy statement.
The Company will furnish a copy of
its Annual Report on Form 10-K for the year ended December 31, 2015, as amended, free of charge to each stockholder who
forwards a written request to our Secretary, at Institutional Financial Markets, Inc., Cira Centre, 2929 Arch Street, 17
th
Floor, Philadelphia, Pennsylvania 19104.
You also may access the EDGAR version of our Annual Report on Form 10-K (with exhibits) on our website at
http://www.ifmi.com
and on the SEC's
website at
http://www.sec.gov
.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy these reports,
statements or other information filed by us at the SEC's Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on
the public reference rooms. Our SEC filings are also available to the public from commercial document retrieval services and at the website maintained by the SEC at
http://www.sec.gov
.
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APPENDIX A
AMENDMENT NO. 1 TO THE
INSTITUTIONAL FINANCIAL MARKETS, INC.
SECOND AMENDED AND RESTATED 2010 LONG-TERM INCENTIVE PLAN
This AMENDMENT NO. 1 TO THE INSTITUTIONAL FINANCIAL MARKETS, INC. SECOND AMENDED AND RESTATED 2010 LONG-TERM INCENTIVE PLAN
(this "
Amendment
") by Institutional Financial Markets, Inc., a Maryland corporation (the
"
Company
"), is dated as of October 27, 2016 (the "
Effective Date
").
WHEREAS,
the Company maintains the Institutional Financial Markets, Inc. Second Amended and Restated 2010 Long-Term Incentive Plan (the
"
Plan
");
WHEREAS,
the Board deems it in the best interests of the Company to amend the Plan, pursuant to Section 13 of the Plan, to increase the number of shares of the Company's common
stock, par value $0.001 per share, available for Awards under the Plan from 7,080,000 shares to 9,080,000 shares, subject to Stockholder Approval (as defined below); and
WHEREAS,
in accordance with the requirements of the NYSE MKT LLC, the Company intends to submit this Amendment to the stockholders of the Company for approval
("
Stockholder Approval
") at the Company's 2016 annual meeting of stockholders; and
WHEREAS,
capitalized terms used but not defined herein shall have the respective meanings ascribed thereto in the Plan.
AMENDMENT
1.
Amendment of Section 4.1(a).
Upon Stockholder Approval of the Amendment, Section 4.1(a) is
hereby stricken in its entirety and replaced with the following:
"(a) Subject
to adjustments as provided in Section 14, the total number of Shares subject to Awards granted under the Plan (including securities convertible into or
exchangeable for Shares), in the aggregate, may not exceed 9,080,000. Shares distributed under the Plan may be treasury Shares or authorized but unissued Shares. Any Shares that have been granted as
Restricted Stock or that have been reserved for distribution in payment for Options, RSUs or other equity-based Awards but are later forfeited or for any other reason are not payable under the Plan
may again be made the subject of Awards under the Plan."
2.
Amendment of Section 4.2.
Upon Stockholder Approval of the Amendment, Section 4.2 is hereby
stricken in its entirety and replaced with the following:
"4.2
Options. Subject to adjustments pursuant to Section 14, and subject to the last sentence of
Section 4.1(a), Options with respect to an aggregate of no more than 9,080,000 Shares may be granted under the Plan."
3.
Other Matters.
Except as amended hereby, the Plan is hereby ratified and confirmed in all respects. As so
amended, the Plan shall remain in full force and effect. In the event of any conflict between this Amendment and the Plan, the terms of this Amendment shall prevail. If it is determined that any of
the provisions of this Amendment is invalid or unenforceable, the remainder of the provisions of this Amendment shall not thereby be affected and shall be given full effect, without regard to the
invalid portions.
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SECOND AMENDED AND RESTATED
INSTITUTIONAL FINANCIAL MARKETS, INC.
2010 LONG-TERM INCENTIVE PLAN
Institutional Financial Markets, Inc., a Maryland corporation, wishes to attract key employees, Directors, officers, advisors and
consultants to the Company and Subsidiaries, and induce key employees, Directors, officers, advisors, consultants and other personnel to remain with the Company and Subsidiaries and encourage them to
increase their efforts to make the Company's business more successful whether directly or through Subsidiaries or other Affiliates. In furtherance thereof, the Second Amended and Restated
Institutional Financial Markets, Inc. 2010 Long-Term Incentive Plan (this "Second Amended and Restated Plan") is designed to provide equity-based incentives to certain Eligible Persons. Awards
under the Plan may be made to Eligible Persons in the form of Options (including Stock Appreciation Rights), Restricted Stock, Restricted Stock Units, Dividend Equivalent Rights and other forms of
equity based Awards as contemplated herein.
WHEREAS,
effective April 22, 2010, the Company adopted the 2010 Long-Term Incentive Plan (the "Original Plan");
WHEREAS,
effective February 3, 2011, the Board amended the Original Plan (the "February 2011 Amendment") to reflect the change in the Company's name to "Institutional Financial
Markets, Inc."
and to increase the number of Shares available for Awards under the Original Plan from 1,580,000 Shares to 3,580,000 Shares;
WHEREAS,
effective April 18, 2011, the Board amended the Original Plan (together with the February 2011 Amendment, the "Amendment") to increase the number of Shares available for
Awards under the Original Plan from 3,580,000 Shares to 4,580,000 Shares;
WHEREAS,
the stockholders of the Company approved the Amendment on June 7, 2011;
WHEREAS,
effective March 8, 2012, the Board amended and restated the Original Plan (as amended by the Amendment) in its entirety (as so amended and restated, the "Amended and
Restated Plan") to reflect the amendments made by the Amendment to the Original Plan; and
WHEREAS,
the Board desires to amend and restate the Amended and Restated Plan in its entirety to, among other things and subject to approval by stockholders of the Company of this Second
Amended and Restated Plan, increase the number of Shares (i) available for Awards under the Plan from 4,580,000 Shares to 7,080,000 Shares; (ii) that may underlie Options granted under
the Plan in any calendar year to any Eligible Person from 500,000 Shares to 3,000,000 Shares; and (iii) that may underlie Awards, other than Options, granted under the Plan in any calendar year
to any Eligible Person from 500,000 Shares to 3,000,000 Shares.
1. DEFINITIONS.
Whenever used herein, the following terms shall have the meanings set forth below:
"Affiliate"
means any entity other than a Subsidiary that is controlled by or under common control with the Company that is designated as an "Affiliate" by the Committee in its
discretion.
"Award"
except where referring to a particular category of grant under the Plan, shall include Options, Restricted Stock, RSUs, Dividend Equivalent Rights and other equity-based Awards
as contemplated herein.
"Award
Agreement" means a written agreement in a form approved by the Committee, as provided in Section 3. An Award Agreement may be, without limitation, an employment or other
similar agreement
containing provisions governing grants hereunder, if approved by the Committee for use under the Plan.
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"Board"
means the Board of Directors of the Company.
"Cause"
means, unless otherwise provided in the Participant's Award Agreement (i) engaging in (A) willful or gross misconduct or (B) willful or gross neglect;
(ii) repeatedly failing to adhere to the directions of superiors or the Board or the written policies and practices of the Company, Subsidiaries or Affiliates; (iii) the commission of a
felony or a crime of moral turpitude, dishonesty, breach of trust or unethical business conduct, or any crime involving the Company, Subsidiaries, or Affiliates; (iv) fraud, misappropriation or
embezzlement; (v) acts or omissions constituting a material failure to perform substantially and adequately the duties assigned to the Participant; (vi) any illegal act detrimental to
the Company, Subsidiaries or Affiliates; (vii) repeated failure to devote substantially all of the Participant's business time and efforts to the Company, Subsidiaries, or Affiliates if
required by the Participant's employment agreement; or (viii) the Participant's failure to competently perform his duties after receiving notice from the Company, a Subsidiary, or Affiliate,
specifically identifying the manner in which the Participant has failed to perform; provided, however, that, if at any particular time the Participant is subject to an effective employment agreement
with the Company, a Subsidiary or Affiliate, then, in lieu of the foregoing definition, "Cause" shall at that time have such meaning as may be specified in such employment agreement.
"Change
in Control" means the happening of any of the following:
(i) any
"person," including a "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
but excluding Daniel G. Cohen, Christopher Ricciardi, the Company, IFMI, LLC, any entity or person controlling, controlled by or under common control with Daniel G. Cohen, Christopher
Ricciardi, the Company, IFMI, LLC, any employee benefit plan of the Company, IFMI, LLC or any such entity, and any "group" (as such term is used in Section 13(d)(3) of the
Exchange Act) of which the any of the foregoing persons or entities is a member), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Company representing 50% or more of either (A) the combined voting power of the Company's then outstanding securities or (B) the then outstanding Common Stock (in
either such case other than as a result of an acquisition of securities directly from the Company, IFMI, LLC or any of their respective subsidiaries); provided, however, that, in no event shall
a Change in Control be deemed to have occurred upon an initial public offering or a subsequent public offering of the Common Stock under the Securities Act of 1933, as amended; or
(ii) any
consolidation or merger of the Company where the stockholders of the Company, immediately prior to the consolidation or merger, would not, immediately after the
consolidation or merger, beneficially own (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, shares representing in the aggregate 50% or more of the
combined voting power of the securities of the corporation issuing cash or securities in the consolidation or merger (or of its ultimate parent corporation, if any);
(iii) there
shall occur (A) any sale, lease, exchange or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a
single plan) of all or substantially all of the assets of the Company, other than a sale or disposition by the Company of all or substantially all of the Company's assets to an entity, at least 50% of
the combined voting power of the voting securities of which are owned by "persons" (as defined above) in substantially the same proportion as their ownership of the Company immediately prior to such
sale or (B) the approval by stockholders of the Company of any plan or proposal for the liquidation or dissolution of the Company; or
(iv) the
members of the Board of Directors of the Company at the beginning of any consecutive 24-calendar-month period (the "Incumbent Directors") cease for any reason other
than due to death to constitute at least a majority of the members of the Board of Directors of the
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Company;
provided that any director whose election, or nomination for election by the Company's stockholders, was approved by a vote of at least a majority of the members of the Board of Directors of
the Company then still in office who were members of the Board of Directors of the Company at the beginning of such 24-calendar-month period, shall be deemed to be an Incumbent Director.
Notwithstanding
the foregoing provisions of this definition of Change in Control, if at any time the Participant is subject to an effective employment agreement with the Company, a
Subsidiary or Affiliate which expressly provides for the definition of a change in control of the Company, then, in lieu of the foregoing definition, "Change in Control" shall at that time have such
meaning as may be specified, in such employment agreement, with respect to the Company.
Notwithstanding
the foregoing, if an event constitutes a Change in Control as described above but does not constitute a "change in the ownership", "change in effective control" or
"change in the ownership of a substantial portion of the assets" of the Company, as such terms are defined in Treasury Regulations § 1.409A-3 (or other applicable guidance issued
under Section 409A of the
Code) then such event shall not be deemed a Change in Control to the extent that it would result in the imposition of the 20% excise tax as set forth in Section 409A(a)(1)(B). Such event may
however, continue to constitute a Change in Control to the extent possible (e.g., vesting without an acceleration of distribution) without causing the imposition of such 20% tax.
"Code"
means the Internal Revenue Code of 1986, as amended.
"Committee"
means the Compensation Committee of the Board.
"Common
Stock" means the Company's Common Stock, par value $.001 per share, either currently existing or authorized hereafter.
"Company"
means Institutional Financial Markets, Inc., a Maryland corporation.
"Director"
means a non-employee director of the Company or Subsidiary that is not an employee of the Company or a Subsidiary.
"Disability"
means, unless otherwise provided by the Committee in the Participant's Award Agreement, a disability which renders the Participant incapable of performing all of his or her
duties for a period of at least 180 consecutive or non-consecutive days during any consecutive twelve-month period. Notwithstanding the foregoing, no circumstances or condition shall constitute a
Disability to the extent that, if it were, a 20% tax would be imposed under Section 409A of the Code; provided that, in such a case, the event or condition shall continue to constitute a
Disability to the maximum extent possible (e.g., if applicable, in respect of vesting without an acceleration of distribution) without causing the imposition of such 20% tax.
"Dividend
Equivalent Right" means a right awarded under Section 8 to receive (or have credited) the equivalent value of dividends paid on Common Stock.
"Eligible
Person" means (i) a key employee, Director, officer, advisor, consultant or other personnel of the Company or Subsidiaries or other person expected to provide
significant services (of a type expressly approved by the Committee as covered services for these purposes) to the Company or Subsidiaries or (ii) joint venture affiliates of the Company or
other entities designated in the discretion of the Committee, or officers, directors, employees, members, or managers of the foregoing. In the case of grants directly or indirectly to employees of
entities described in clause (ii) of the foregoing sentence, the Committee may make arrangements with such entities as it may consider appropriate in its discretion, in light of tax and other
considerations.
"Exchange
Act" means the Securities Exchange Act of 1934, as amended.
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"Fair
Market Value" per Share as of a particular date means (i) if Shares are then listed on a national securities exchange, the closing sales price per Share on the exchange for
the last preceding date on which there was a sale of Shares on such exchange, as determined by the Committee, (ii) if Shares are not then listed on a national securities exchange but are then
traded on an over-the-counter market, the average of the closing bid and asked prices for the Shares in such over-the-counter market for the last preceding date on which there was a sale of such
Shares in such market, as determined by the Committee, or (iii) if Shares are not then listed on a national securities exchange or traded on an over-the-counter market, such value as the
Committee in its discretion may in good faith determine; provided that, where the Shares are so listed or traded, the Committee may make such discretionary determinations where the Shares have not
been traded for 10 consecutive trading days.
"Grantee"
means an Eligible Person granted Restricted Stock, RSUs, Dividend Equivalent Rights or such other equity-based Awards (other than an Option) as may be granted pursuant to
Section 9.
"Incentive
Stock Option" means an "incentive stock option" within the meaning of Section 422(b) of the Code.
"Non-Qualified
Stock Option" means an Option which is not an Incentive Stock Option.
"Option"
means the right to purchase, at a price and for the term fixed by the Committee in accordance with the Plan, and subject to such other limitations and restrictions in the Plan
and the applicable Award Agreement, a number of Shares determined by the Committee.
"Optionee"
means an Eligible Person to whom an Option is granted, or the Successors of the Optionee, as the context so requires.
"Option
Price" means the price per Share, determined by the Board or the Committee, at which an Option may be exercised.
"Participant"
means a Grantee or Optionee.
"Performance
Goals" has the meaning set forth in Section 10.
"Plan"
means the Company's 2010 Long-Term Incentive Plan, as set forth herein and as the same may from time to time be amended.
"Restricted
Stock" means an award of Shares that are subject to restrictions hereunder.
"Restricted
Stock Unit" or "RSU" means a right, pursuant to the Plan, of the Grantee to payment of the RSU Value.
"RSU
Value," per RSU, means the Fair Market Value of a Share or, if so provided by the Committee, such Fair Market Value to the extent in excess of a base value established by the
Committee at the time of grant.
"Retirement"
means, unless otherwise provided by the Committee in the Participant's Award Agreement, the Termination of Service (other than for Cause) of a Participant on or after the
Participant's attainment of age 65 or on or after the Participant's attainment of age 55 with five consecutive years of service with the Company, Subsidiaries or Affiliates.
"Securities
Act" means the Securities Act of 1933, as amended.
"Settlement
Date" means the date determined under Section 7.4(c).
"Shares"
means shares of Common Stock of the Company.
"Stock
Appreciation Right" means an Option described in Section 5.7.
"Subsidiary"
means any corporation, partnership or other entity of which at least 50% of the economic interest in the equity is owned (directly or indirectly) by the Company or by
another
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subsidiary.
In the event the Company becomes such a subsidiary of another company (directly or indirectly), the provisions hereof applicable to subsidiaries shall, unless otherwise determined by the
Committee, also be applicable to such parent company.
"Successor
of the Optionee" means the legal representative of the estate of a deceased Optionee or the person or persons who shall acquire the right to exercise an Option by bequest or
inheritance or by reason of the death of the Optionee.
"Termination
Event" means a Change in Control.
"Termination
of Service" means a Participant's termination of employment or other service (as a consultant or otherwise), as applicable, with the Company, Subsidiaries and Affiliates.
2. EFFECTIVE DATE AND TERMINATION OF PLAN.
The effective date of the Plan is April 22, 2010. The Plan shall terminate on, and no Award shall be granted hereunder on or after, the 10-year anniversary
of the earlier of the approval of the Plan by (i) the Board or (ii) the stockholders of the Company; provided, however, that the Board may at any time prior to that date terminate the
Plan.
3. ADMINISTRATION OF PLAN.
(a) The
Plan shall be administered by the Committee. The Committee, upon and after such time as it is subject to Section 16 of the Exchange Act, shall consist of at
least two individuals each of whom shall be a "nonemployee director" as defined in Rule 16b-3 as promulgated by the Securities and Exchange Commission ("Rule 16b-3") under the Exchange
Act and shall, at such times as the Company is subject to Section 162(m) of the Code (to the extent relief from the limitation of Section 162(m) of the Code is sought with respect to
Awards), qualify as "outside directors" for purposes of Section 162(m) of the Code; provided that no action taken by the Committee (including, without limitation, grants) shall be invalidated
because any or all of the members of the Committee fails to satisfy the foregoing requirements of this sentence. The acts of a majority of the members present at any meeting of the Committee at which
a quorum is present, or acts approved in writing by a majority of the entire Committee, shall be the acts of the Committee for purposes of the Plan. If and to the extent applicable, no member of the
Committee may act as to matters under the Plan specifically relating to such member. Notwithstanding the other foregoing provisions of this Section 3(a), any Award under the Plan to a person
who is a member of the Committee shall be made and administered by the Board. If no Committee is designated by the Board to act for these purposes, the Board shall have the rights and responsibilities
of the Committee hereunder and under the Award Agreements.
(b) Subject
to the provisions of the Plan, the Committee shall in its discretion as reflected by the terms of the Award Agreements (i) authorize the granting of
Awards to Eligible Persons and (ii) determine the eligibility of Eligible Persons to receive an Award, as well as determine the number of Shares to be covered under any Award Agreement,
considering the position and responsibilities of the Eligible Persons, the nature and value to the Company of the Eligible Person's present and potential contribution to the success of the Company
whether directly or through Subsidiaries or Affiliates and such other factors as the Committee may deem relevant.
(c) The
Award Agreement shall contain such other terms, provisions and conditions not inconsistent herewith as shall be determined by the Committee. In the event that any
Award Agreement or other agreement hereunder provides (without regard to this sentence) for the obligation of the Company, Subsidiaries or Affiliates to purchase or repurchase Shares from a
Participant or any other person, then, notwithstanding the provisions of the Award Agreement or such other agreement, such obligation shall not apply to the extent that the purchase or repurchase
would not be permitted under governing state law. The Participant shall take whatever additional actions and execute whatever
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additional
documents the Committee may in its reasonable judgment deem necessary or advisable in order to carry out or effect one or more of the obligations or restrictions imposed on the Participant
pursuant to the express provisions of the Plan and the Award Agreement.
4. SHARES AND UNITS SUBJECT TO THE PLAN.
(a) Subject
to adjustments as provided in Section 14, the total number of Shares subject to Awards granted under the Plan (including securities convertible into or
exchangeable for Shares), in the aggregate, may not exceed 4,580,000 Shares; provided, that this amount shall automatically, with no further action, increase to 7,080,000 Shares effective upon
approval of this Second Amended and Restated Plan by the Company's stockholders. The maximum number of Shares that may underlie Options granted in any calendar year to any Eligible Person, shall not
exceed 500,000 Shares; provided, that this amount shall automatically, with no further action, increase to 3,000,000 Shares effective upon approval of this Second Amended and Restated Plan by the
Company's stockholders. The maximum number of Shares that may underlie Awards, other than Options, granted in any calendar year to any Eligible Person, shall not exceed 500,000 Shares; provided, that
this amount shall automatically, with no further action, increase to 3,000,000 Shares effective upon approval of this Second Amended and Restated Plan by the Company's stockholders. Shares distributed
under the Plan may be treasury Shares or authorized but unissued Shares. Any Shares that have been granted as Restricted Stock or that have been reserved for distribution in payment for Options, RSUs
or other equity-based Awards but are later forfeited or for any other reason are not payable under the Plan may again be made the subject of Awards under the Plan.
(b) Shares
subject to Dividend Equivalent Rights, other than Dividend Equivalent Rights based directly on the dividends payable with respect to Shares subject to Options or
the dividends payable on a number of Shares corresponding to the number of RSUs awarded, shall be subject to the limitation of Section 4.1(a). Notwithstanding Section 4.1(a), except in
the case of Awards intended to qualify for relief from the limitations of Section 162(m) of the Code, there shall be no limit on the number of RSUs or Dividend Equivalent Rights to the extent
they are paid out in cash that may be granted under the Plan. If any RSUs, Dividend Equivalent Rights or other equity-based Awards under Section 9 are paid out in cash, then, notwithstanding
the first sentence of Section 4.1(a) above (but subject to the second sentence thereof) the underlying Shares may again be made the subject of Awards under the Plan.
(c) The
certificates for Shares issued hereunder may include any legend which the Committee deems appropriate to reflect any rights of first refusal or restrictions on
transfer hereunder or under the Award Agreement, or as the Committee may otherwise deem appropriate.
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4.2
-
Options
.
Subject
to adjustments pursuant to Section 14, and subject to the last sentence of Section 4.1(a), Options with respect to an aggregate of no more than 4,580,000 Shares may
be granted under the Plan; provided, that this amount shall automatically, with no further action, increase to 7,080,000 Shares effective upon approval of this Second Amended and Restated Plan by the
Company's stockholders.
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5. PROVISIONS APPLICABLE TO STOCK OPTIONS
.
Subject
to the other terms of the Plan, the Committee shall, in its discretion as reflected by the terms of the applicable Award Agreement: (i) determine and designate from time
to time those Eligible Persons to whom Options are to be granted and the number of Shares to be optioned to each Eligible Person; (ii) determine whether to grant Options intended to be
Incentive Stock Options, or to grant Non-Qualified Stock Options, or both (to the extent that any Option does not qualify as an Incentive Stock Option, it shall constitute a separate Non-Qualified
Stock Option); provided that Incentive Stock
Options may only be granted to employees of the Company, Subsidiaries or Affiliates; (iii) determine the time or times when and the manner and condition in which each Option shall be
exercisable and the duration of the exercise period; (iv) designate each Option as one intended to be an Incentive Stock Option or as a Non-Qualified Stock Option; and (v) determine or
impose other conditions to the grant or exercise of Options under the Plan as it may deem appropriate.
The
Option Price shall be determined by the Committee on the date the Option is granted and reflected in the Award Agreement, as the same may be amended from time to time. Any particular
Award Agreement may provide for different Option Prices for specified amounts of Shares subject to the Option; provided that the Option Price shall not be less than 100% of the Fair Market Value of a
Share on the day the Option is granted.
-
5.3
-
Period of Option and Vesting
.
(a) Unless
earlier expired, forfeited or otherwise terminated, each Option shall expire in its entirety upon the 10th anniversary of the date of grant or shall have
such other term as is set forth in the applicable Award Agreement. The Option shall also expire, be forfeited and terminate at such times and in such circumstances as otherwise provided hereunder or
under the Award Agreement.
(b) Each
Option, to the extent that the Optionee has not had a Termination of Service and the Option has not otherwise lapsed, expired, terminated or been forfeited, shall
first become exercisable according to the terms and conditions set forth in the Award Agreement, as determined by the Committee at the time of grant. Unless otherwise provided in the Plan or the Award
Agreement, no Option (or portion thereof) shall ever be exercisable if the Optionee has a Termination of Service before the time at which such Option (or portion thereof) would otherwise have become
exercisable, and any Option that would otherwise become exercisable after such Termination of Service shall not become exercisable and shall be forfeited upon such termination. Notwithstanding the
foregoing provisions of this Section 5.3(b), Options exercisable pursuant to the schedule set forth by the Committee at the time of the grant may be fully or more rapidly exercisable or
otherwise vested at any time in the discretion of the Committee. Upon and after the death of an Optionee, such Optionee's Options, if and to the extent otherwise exercisable hereunder or under the
applicable Award Agreement after the Optionee's death, may be exercised by the Successors of the Optionee.
-
5.4
-
Exercisability Upon and After Termination of Optionee
.
(a) Subject
to provisions of the Award Agreement, if an Optionee has a Termination of Service other than by the Company or Subsidiaries for Cause, or other than by reason of
death, Retirement or Disability, then no exercise of an Option may occur after the expiration of the three-month period to follow the termination, or if earlier, the expiration of the term of the
Option as provided under Section 5.3(a); provided that, if the Optionee should die after the
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Termination
of Service, but while the Option is still in effect, the Option (if and to the extent otherwise exercisable by the Optionee at the time of death) may be exercised until the earlier of
(i) one year from the date of the Termination of Service of the Optionee, or (ii) the date on which the term of the Option expires in accordance with Section 5.3(a).
(b) Subject
to provisions of the Award Agreement, in the event the Optionee has a Termination of Service on account of death, Disability or Retirement, the Option (whether
or not otherwise exercisable) may be exercised until the earlier of (i) one year from the date of the Termination of Service of the Optionee, or (ii) the date on which the term of the
Option expires in accordance with Section 5.3.
(c) Notwithstanding
any other provision hereof, unless otherwise provided in the Award Agreement, if the Optionee has a Termination of Service for Cause, the Optionee's
Options, to the extent then unexercised, shall thereupon cease to be exercisable and shall be forfeited forthwith.
-
5.5
-
Exercise of Options
.
(a) Subject
to vesting, restrictions on exercisability and other restrictions provided for hereunder or otherwise imposed in accordance herewith, an Option may be exercised,
and payment in full of the aggregate Option Price made, by an Optionee only by written notice (in the form prescribed by the Committee) to the Company or its designee specifying the number of Shares
to be purchased.
(b) Without
limiting the scope of the Committee's discretion hereunder, the Committee may impose such other restrictions on the exercise of Options (whether or not in the
nature of the foregoing restrictions) as it may deem necessary or appropriate.
-
5.6
-
Payment
.
(a) The
aggregate Option Price shall be paid in full upon the exercise of the Option. Payment must be made by one of the following methods:
(i) certified
or bank cashier's check;
(ii) subject
to Section 12(e), the proceeds of a Company loan program or third-party sale program or a notice acceptable to the Committee given as consideration under
such a program, in each case if permitted by the Committee in its discretion, if such a program has been established and the Optionee is eligible to participate therein;
(iii) if
approved by the Committee in its discretion, Shares of previously owned Common Stock, which have been previously owned for more than six months, having an aggregate
Fair Market Value on the date of exercise equal to the aggregate Option Price; or
(iv) if
approved by the Committee in its discretion, through the written election of the Optionee to have Shares withheld by the Company from the Shares otherwise to be
received, with such withheld Shares having an aggregate Fair Market Value on the date of exercise equal to the aggregate Option Price; or
(v) by
any combination of such methods of payment or any other method acceptable to the Committee in its discretion.
(b) Except
in the case of Options exercised by certified or bank cashier's check, the Committee may impose limitations and prohibitions on the exercise of Options as it
deems appropriate, including, without limitation, any limitation or prohibition designed to avoid accounting consequences which may result from the use of Common Stock as payment upon exercise of an
Option.
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(c) The
Committee may provide that no Option may be exercised with respect to any fractional Share. Any fractional Shares resulting from an Optionee's exercise that is
accepted by the Company shall in the discretion of the Committee be paid in cash.
-
5.7
-
Stock Appreciation Rights
.
(a) The
Committee, in its discretion, may also permit (taking into account, without limitation, the application of Section 409A of the Code, as the Committee may deem
appropriate) the Optionee to elect to receive upon the exercise of an Option a combination of Shares and cash, or, in the discretion of the Committee, either Shares or solely in cash, with an
aggregate Fair Market Value (or, to the extent of payment in cash, in an amount) equal to the excess of the Fair Market Value of the Shares with respect to which the Option is being exercised over the
aggregate Option Price, as determined as of the day the Option is exercised.
(b) Upon
the exercise of any Stock Appreciation Rights, the greater of (i) the number of shares subject to the Stock Appreciation Rights so exercised, and
(ii) the number of Shares, if any, that are issued in connection with such exercise, shall be deducted from the number of Shares available for issuance under the Plan.
(c) In
no event may a Stock Appreciation Right be transferred by a holder thereof for consideration without the prior approval of the Company's stockholders.
-
5.8
-
Exercise by Successors
.
An
Option may be exercised, and payment in full of the aggregate Option Price made, by the Successors of the Optionee only by written notice (in the form prescribed by the Committee) to
the Company specifying the number of Shares to be purchased. Such notice shall state that the aggregate Option Price will be paid in full, or that the Option will be exercised as otherwise provided
hereunder, in the discretion of the Company or the Committee, if and as applicable.
-
5.9
-
Nontransferability of Option
.
Each
Option granted under the Plan shall be nontransferable by the Optionee except by will or the laws of descent and distribution of the state wherein the Optionee is domiciled at the
time of his death; provided, however, that the Committee may (but need not) permit other transfers, where the Committee concludes that such transferability (i) does not result in accelerated
U.S. federal income taxation, (ii) does not cause any Option intended to be an Incentive Stock Option to fail to be described in Section 422(b) of the Code, (iii) complies with
applicable law, including securities laws, and (iv) is otherwise appropriate and desirable. In no event may an Option be transferred by an Optionee for consideration without the prior approval
of the Company's stockholders.
The
Committee (taking into account, without limitation, the possible application of Section 409A of the Code, as the Committee may deem appropriate) may establish a program under
which Participants will have RSUs subject to Section 7 credited upon their exercise of Options, rather than receiving Shares at that time.
-
5.11
-
Certain Incentive Stock Option Provisions
.
(a) In
no event may an Incentive Stock Option be granted other than to employees of the Company or a "subsidiary corporation" or a "parent corporation," as each is defined
in Section 424(f) of the Code, with respect to the Company. The aggregate Fair Market Value, determined as of the date an Option is granted, of the Common Stock for which any Optionee
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may
be awarded Incentive Stock Options which are first exercisable by the Optionee during any calendar year under the Plan (or any other stock option plan required to be taken into account under
Section 422(d) of the Code) shall not exceed $100,000. To the extent the $100,000 limit referred to in the preceding sentence is exceeded, an Option will be treated as a Non-Qualified Stock
Option.
(b) If
Shares acquired upon exercise of an Incentive Stock Option are disposed of in a disqualifying disposition within the meaning of Section 422 of the Code by an
Optionee prior to the expiration of either two years from the date of grant of such Option or one year from the transfer of Shares to the Optionee pursuant to the exercise of such Option, or in any
other disqualifying disposition within the meaning of Section 422 of the Code, such Optionee shall notify the Company in writing as soon as practicable thereafter of the date and terms of such
disposition and, if the Company (or an Affiliate) thereupon has a tax-withholding obligation, shall pay to the Company (or such Affiliate) an amount equal to any withholding tax the Company (or
Affiliate) is required to pay as a result of the disqualifying disposition.
(c) The
Option Price with respect to each Incentive Stock Option shall not be less than 100%, or 110% in the case of an individual described in Section 422(b)(6) of
the Code (relating to certain 10% owners), of the Fair Market Value of a Share on the day the Option is granted. Also, in the case of such an individual who is granted an Incentive Stock Option, the
term of such Option shall be no more than five years from the date of grant.
6. PROVISIONS APPLICABLE TO RESTRICTED STOCK
.
-
6.1
-
Grant of Restricted Stock
.
(a) In
connection with the grant of Restricted Stock, whether or not performance goals (as provided for under Section 10) apply thereto, the Committee shall establish
one or more vesting periods with respect to the shares of Restricted Stock granted, the length of which shall be determined in the discretion of the Committee. Subject to the provisions of this
Section 6, the applicable Award Agreement and the
other provisions of the Plan, restrictions on Restricted Stock shall lapse if the Grantee satisfies all applicable employment or other service requirements through the end of the applicable vesting
period.
(b) Subject
to the other terms of the Plan, the Committee may, in its discretion as reflected by the terms of the applicable Award Agreement: (i) authorize the
granting of Restricted Stock to Eligible Persons; (ii) provide a specified purchase price for the Restricted Stock (whether or not the payment of a purchase price is required by any state law
applicable to the Company); (iii) determine the restrictions applicable to Restricted Stock and (iv) determine or impose other conditions, including any applicable Performance Goals, to
the grant of Restricted Stock under the Plan as it may deem appropriate.
-
6.2
-
Certificates/Book Entry
.
(a) Unless
otherwise provided by the Committee, a "book entry" (by computerized or manual entry) shall be made in the records of the Company (or, if applicable, the
Company's transfer agent) to evidence an award of Shares of Restricted Stock.
(b) If
the Shares of Restricted Stock are not evidenced in "book entry" form in accordance with Section 6.2(a), each Grantee of Restricted Stock shall be issued a
stock certificate in respect of Shares of Restricted Stock awarded under the Plan. Each such certificate shall be registered in the name of the Grantee. Without limiting the generality of
Section 4.1(c), the certificates for Shares of Restricted Stock issued hereunder may include any legend which the Committee deems appropriate to reflect any restrictions on transfer hereunder
or under the Award Agreement, or as
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the
Committee may otherwise deem appropriate, and, without limiting the generality of the foregoing, shall bear a legend referring to the terms, conditions, and restrictions applicable to such Award,
substantially in the following form:
THE
TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES OF STOCK REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND CONDITIONS (INCLUDING
FORFEITURE) OF THE INSTITUTIONAL FINANCIAL MARKETS, INC. 2010 LONG-TERM INCENTIVE PLAN AND AN AWARD AGREEMENT ENTERED INTO BETWEEN THE REGISTERED OWNER AND INSTITUTIONAL FINANCIAL
MARKETS, INC. COPIES OF SUCH PLAN AND AWARD AGREEMENT ARE ON FILE IN THE OFFICES OF INSTITUTIONAL FINANCIAL MARKETS, INC. AT CIRA CENTRE, 2929 ARCH STREET, 17th FLOOR,
PHILADELPHIA, PENNSYLVANIA 19104.
(c) The
Committee shall require that any stock certificates evidencing such Shares be held in custody by the Company or its designee until the restrictions hereunder shall
have lapsed, and that, as a condition of any Award of Restricted Stock, the Grantee shall have delivered to the Company or its designee a stock power, endorsed in blank, relating to the stock covered
by such Award. If and when such restrictions so lapse, the stock certificates shall be delivered by the Company to the Grantee or his or her designee as provided in Section 6.3 (and the stock
power shall cease to be of effect).
-
6.3
-
Restrictions and Conditions
.
Unless
otherwise provided by the Committee, the Shares of Restricted Stock awarded pursuant to the Plan shall be subject to the following restrictions and conditions:
(i) Subject
to the provisions of the Plan and the Award Agreements, during a period commencing with the date of such Award and ending on the date the period of forfeiture
with respect to such Shares lapses, the Grantee shall not be permitted voluntarily or involuntarily to sell, transfer, pledge, anticipate, alienate, encumber or assign Shares of Restricted Stock
awarded under the Plan (or have such Shares attached or garnished). Subject to the provisions of the Award Agreements and clause (iii) below, the period of forfeiture with respect to Shares
granted hereunder shall lapse as provided in the applicable Award Agreement. Notwithstanding the foregoing, unless otherwise expressly provided by the Committee, the period of forfeiture with respect
to such Shares shall only lapse as to whole Shares.
(ii) Except
as provided in the foregoing clause (i), below in this clause (ii), or as otherwise provided in the applicable Award Agreement, the Grantee shall
have, in respect of the Shares of Restricted Stock, all of the rights of a shareholder of the Company, including the right to vote the Shares and the right to receive any cash dividends as and when
such dividends are declared and paid by the Company (or as soon as practicable thereafter); provided, however, that cash dividends on such Shares shall, unless otherwise provided by the Committee, be
held by the Company (unsegregated as a part of its general assets) until the period of forfeiture lapses (and forfeited if the underlying Shares are forfeited), and paid over to the Grantee (without
interest) as soon as practicable after such period lapses (if not forfeited). Certificates for Shares (not subject to restrictions) shall be delivered to the Grantee or his or her designee promptly
after, and only after, the period of forfeiture shall lapse without forfeiture in respect of such Shares of Restricted Stock.
(iii) Except
as otherwise provided in the applicable Award Agreement, and subject to clause (iv) below, if the Grantee has a Termination of Service by the Company and
Subsidiaries (or, if applicable, Affiliates) for Cause, or by the Grantee for any reason during the applicable period of forfeiture, then (A) all Shares still subject to restriction shall
thereupon, and with no further action, be forfeited by the Grantee, and (B) the Company shall pay to the Grantee as soon as practicable (and in no event more than 30 days) after such
termination an amount, equal to the
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lesser
of (x) the amount paid by the Grantee for such forfeited Restricted Stock as contemplated by Section 6.1, and (y) the Fair Market Value on the date of termination of the
forfeited Restricted Stock.
(iv) Subject
to the provisions of the Award Agreement, in the event the Grantee has a Termination of Service on account of death, Disability or Retirement, or the Grantee
has a Termination of Service by the Company and Subsidiaries for any reason other than Cause, or in the event of a Termination Event (regardless of whether a termination follows thereafter), during
the applicable period of forfeiture, then restrictions under the Plan will immediately lapse on all Restricted Stock granted to the applicable Grantee.
7. PROVISIONS APPLICABLE TO RESTRICTED STOCK UNITS
.
Subject
to the other terms of the Plan, the Committee shall, in its discretion as reflected by the terms of the applicable Award Agreement: (i) authorize the granting of RSUs to
Eligible Persons and (ii) determine or impose other conditions to the grant of RSUs under the Plan as it may deem appropriate.
The
Committee may provide in an Award Agreement that any particular RSU shall expire at the end of a specified term.
RSUs
shall vest as provided in the applicable Award Agreement.
-
7.4
-
Settlement of RSUs
.
(a) Each
vested and outstanding RSU shall be settled by the transfer to the Grantee of one Share; provided that, the Committee at the time of grant (or, in the appropriate
case, as determined by the Committee, thereafter) may provide that, after consideration of possible accounting issues, an RSU may be settled (i) in cash at the applicable RSU Value,
(ii) in cash or by transfer of Shares as elected by the Grantee in accordance with procedures established by the Committee or (iii) in cash or by transfer of Shares as elected by the
Company.
(b) Payment
(whether of cash or Shares) in respect of RSUs shall be made in a single sum by the Company; provided that, with respect to RSUs of a Grantee which have a common
Settlement Date, the Committee may permit the Grantee to elect in accordance with procedures established by the Committee (taking into account, without limitation, Section 409A of the Code, as
the Committee may deem appropriate) to receive installment payments over a period not to exceed 10 years, rather than a single-sum payment.
(c) Unless
otherwise provided in the applicable Award Agreement, the "Settlement Date" with respect to an RSU is the first day of the month to follow the date on which the
RSU vests; provided that a Grantee may elect, in accordance with procedures to be established by the Committee, that such Settlement Date will be deferred as elected by the Grantee to the first day of
the month to follow the Grantee's Termination of Service, or such other time as may be permitted by the Committee. Unless otherwise determined by the Committee, elections under this
Section 7.4(c) must, except as may otherwise be permitted under the rules applicable under Section 409A of the Code, (A) be effective at least one year after they are made, or, in
the case of payments to commence at a specific time, be
made at least one year before the first scheduled payment and (B) defer the commencement of distributions (and each affected distribution) for at least five years.
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(i) Notwithstanding
Section 7.4(c), the Committee may provide that distributions of RSUs can be elected at any time in those cases in which the RSU Value is
determined by reference to Fair Market Value to the extent in excess of a base value, rather than by reference to unreduced Fair Market Value.
(ii) Notwithstanding
the foregoing, and unless otherwise provided in the applicable Award Agreement, the Settlement Date, if not earlier pursuant to this
Section 7.4(c), is the date of the Grantee's death.
(d) Notwithstanding
the other provisions of this Section 7, and unless otherwise provided in the applicable Award Agreement, in the event of a Termination Event, the
Settlement Date shall be the date of such Termination Event and all amounts due with respect to RSUs to a Grantee hereunder shall be paid as soon as practicable (but in no event more than
30 days) after such Termination Event, unless such Grantee elects otherwise in accordance with procedures established by the Committee.
(e) Notwithstanding
any other provision of the Plan, a Grantee may receive any amounts to be paid in installments as provided in Section 7.4(b) or deferred by the
Grantee as provided in Section 7.4(c) in the event of an "Unforeseeable Emergency." For these purposes, an "Unforeseeable Emergency," as determined by the Committee in its sole discretion, is a
severe financial hardship to the Grantee resulting from a sudden and unexpected illness or accident of the Grantee or "dependent," as defined in Section 152(a) of the Code, of the Grantee, loss
of the Grantee's property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Grantee. The circumstances that will
constitute an Unforeseeable Emergency will depend upon the facts of each case, but, in any case, payment may not be made to the extent that such hardship is or may be relieved:
(i) through
reimbursement or compensation by insurance or otherwise,
(ii) by
liquidation of the Grantee's assets, to the extent the liquidation of such assets would not itself cause severe financial hardship, or
(iii) by
future cessation of the making of additional deferrals under Section 7.4(b) and (c).
Without limitation, the need to send a Grantee's child to college or the desire to purchase a home shall not constitute an Unforeseeable Emergency. Distributions
of amounts because of an Unforeseeable Emergency shall be permitted to the extent reasonably needed to satisfy the emergency need.
-
7.5
-
Other RSUs Provisions
.
(a) Rights
to payments with respect to RSUs granted under the Plan shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, garnishment, levy, execution, or other legal or equitable process, either voluntary or involuntary; and any attempt to anticipate, alienate, sell, transfer, assign, pledge,
encumber, attach or garnish, or levy or execute on any right to payments or other benefits payable hereunder, shall be void.
(b) (b)
A Grantee may designate in writing, on forms to be prescribed by the Committee, a beneficiary or beneficiaries to receive any payments payable after his or her death
and may amend or revoke such designation at any time. If no beneficiary designation is in effect at the time of a Grantee's death, payments hereunder (if any) shall be made to the Grantee's estate. If
a Grantee with a vested RSU dies, such RSU shall be settled and the RSU Value in respect of such RSUs paid, and any payments deferred pursuant to an election under Section 7.4(c) shall be
accelerated
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and
paid, as soon as practicable (but no later than 60 days) after the date of death to such Grantee's beneficiary or estate, as applicable.
(c) The
Committee may establish a program under which distributions with respect to RSUs may be deferred for periods in addition to those otherwise contemplated by foregoing
provisions of this Section 7. Such program may include, without limitation, provisions for the crediting of earnings and losses on unpaid amounts, and, if permitted by the Committee, provisions
under which Participants may select from among hypothetical investment alternatives for such deferred amounts in accordance with procedures established by the Committee.
(d) Notwithstanding
any other provision of this Section 7, any fractional RSU will be paid out in cash at the RSU Value as of the Settlement Date.
(e) No
RSU shall be construed to give any Grantee any rights with respect to Shares or any ownership interest in the Company. Except as may be provided in accordance with
Section 8, no provision of the Plan shall be interpreted to confer upon any Grantee any voting, dividend or derivative or other similar rights with respect to any RSU.
8. PROVISIONS APPLICABLE TO DIVIDEND EQUIVALENT RIGHTS
.
-
8.1
-
Grant of Dividend Equivalent Rights
.
Subject
to the other terms of the Plan, the Committee shall, in its discretion as reflected by the terms of the Award Agreements, authorize the granting of Dividend Equivalent Rights to
Eligible Persons
based on the regular cash dividends declared on Common Stock, to be credited as of the dividend payment dates, during the period between the date an Award is granted, and the date such Award is
exercised, vests or expires, as determined by the Committee. Such Dividend Equivalent Rights shall be converted to cash or additional Shares by such formula and at such time and subject to such
limitation as may be determined by the Committee. With respect to Dividend Equivalent Rights granted with respect to Options intended to be qualified performance-based compensation for purposes of
Section 162(m) of the Code, such Dividend Equivalent Rights shall be payable regardless of whether such Option is exercised. If a Dividend Equivalent Right is granted in respect of another
Award hereunder, then, unless otherwise stated in the Award Agreement, in no event shall the Dividend Equivalent Right be in effect for a period beyond the time during which the applicable portion of
the underlying Award is in effect.
(a) The
term of a Dividend Equivalent Right shall be set by the Committee in its discretion.
(b) Unless
otherwise determined by the Committee, except as contemplated by Section 8.4, a Dividend Equivalent Right is exercisable or payable only while the
Participant is an Eligible Person.
(c) Payment
of the amount determined in accordance with Section 8.1 shall be in cash, in Common Stock or a combination of the two, as determined by the Committee.
(d) The
Committee may impose such employment-related conditions on the grant of a Dividend Equivalent Right as it deems appropriate in its discretion.
-
8.3
-
Other Types of Dividend Equivalent Rights
.
The
Committee may establish a program under which Dividend Equivalent Rights of a type whether or not described in the foregoing provisions of this Section 8 may be granted to
Participants. For example, and without limitation, the Committee may grant a dividend equivalent right in respect of each Share subject to an Option or with respect to an RSU, which right would
consist of the right
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(subject
to Section 8.4) to receive a cash payment in an amount equal to the dividend distributions paid on a Share from time to time.
The
Committee may establish a program (taking into account, without limitation, the possible application of Section 409A of the Code, as the Committee may deem appropriate) under
which Participants (i) will have RSUs credited, subject to the terms of Sections 7.4 and 7.5 as though directly applicable with respect thereto, upon the granting of Dividend Equivalent
Rights, or (ii) will have payments with respect to Dividend Equivalent Rights deferred. In the case of the foregoing clause (ii), such program may include, without limitation, provisions
for the crediting of earnings and losses on unpaid amounts, and, if permitted by the Committee, provisions under which Participants may select from among hypothetical investment alternatives for such
deferred amounts in accordance with procedures established by the Committee.
9. OTHER EQUITY-BASED AWARDS
.
The
Committee shall have the right to grant (i) other Awards based upon the Common Stock having such terms and conditions as the Committee may determine, including, without
limitation, the grant of Shares based upon certain conditions, the grant of securities convertible into Common Stock and the grant of Stock Appreciation Rights and (ii) interests (which may be
expressed as units or otherwise) in Subsidiaries, as applicable.
10. PERFORMANCE GOALS
.
The
Committee, in its discretion, may in the case of Awards (including, in particular, Awards other than Options) intended to qualify for an exception from the limitation imposed by
Section 162(m) of the Code ("Performance-Based Awards"), (i) establish one or more performance goals ("Performance Goals") as a precondition to the issuance or vesting of Awards, and
(ii) provide, in connection with the establishment of the Performance Goals, for predetermined Awards to those Participants (who continue to meet all applicable eligibility requirements) with
respect to whom the applicable Performance Goals are satisfied. The Performance Goals shall be based upon the criteria set forth in Exhibit A hereto which is hereby incorporated herein by
reference as though set forth in full. The Performance Goals
shall be established in a timely fashion such that they are considered preestablished for purposes of the rules governing performance-based compensation under Section 162(m) of the Code. Prior
to the award or vesting, as applicable, of affected Awards hereunder, the Committee shall have certified that any applicable Performance Goals, and other material terms of the Award, have been
satisfied. Performance Goals which do not satisfy the foregoing provisions of this Section 10 may be established by the Committee with respect to Awards not intended to qualify for an exception
from the limitations imposed by Section 162(m) of the Code.
11. TAX WITHHOLDING
.
The
Company shall be entitled to withhold from any payments or deemed payments any amount of tax withholding determined by the Committee to be required by law. Without limiting the
generality of the foregoing, the Committee may, in its discretion, require the Participant to pay to the Company at such time as the Committee determines the amount that the Committee deems necessary
to satisfy the Company's obligation to withhold federal, state or local income or other taxes incurred by reason of (i) the exercise of any Option, (ii) the lapsing of any restrictions
applicable to any Restricted Stock, (iii) the receipt of a distribution in respect of RSUs or Dividend Equivalent Rights or (iv) any other applicable income-recognition event (for
example, an election under Section 83(b) of the Code).
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-
11.2
-
Share Withholding
.
(a) Upon
exercise of an Option, the Optionee may, if approved by the Company in its discretion, make a written election to have Shares then issued withheld by the Company
from the Shares otherwise to be received, or to deliver previously owned Shares, in order to satisfy the liability for such withholding taxes. In the event that the Optionee makes, and the Company
permits, such an election, the number of Shares so withheld or delivered shall have an aggregate Fair Market Value on the date of exercise
sufficient to satisfy the applicable withholding taxes. Where the exercise of an Option does not give rise to an obligation by the Company to withhold federal, state or local income or other taxes on
the date of exercise, but may give rise to such an obligation in the future, the Company may, in its discretion, make such arrangements and impose such requirements as it deems necessary or
appropriate.
(b) Upon
lapsing of restrictions on Restricted Stock (or other income-recognition event), the Grantee may, if approved by the Company in its discretion, make a written
election to have Shares withheld by the Company from the Shares otherwise to be released from restriction, or to deliver previously owned Shares (not subject to restrictions hereunder), in order to
satisfy the liability for such withholding taxes. In the event that the Grantee makes, and the Company permits, such an election, the number of Shares so withheld or delivered shall have an aggregate
Fair Market Value on the date of exercise sufficient to satisfy the applicable withholding taxes.
(c) Upon
the making of a distribution in respect of RSUs or Dividend Equivalent Rights, the Grantee may, if approved by the Company in its discretion, make a written
election to have amounts (which may include Shares) withheld by the Company from the distribution otherwise to be made, or to deliver previously owned Shares (not subject to restrictions hereunder),
in order to satisfy the liability for such withholding taxes. In the event that the Grantee makes, and the Company permits, such an election, any Shares so withheld or delivered shall have an
aggregate Fair Market Value on the date of exercise sufficient to satisfy the applicable withholding taxes.
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11.3
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Withholding Required
.
Notwithstanding
anything contained in the Plan or the Award Agreement to the contrary, the Participant's satisfaction of any tax-withholding requirements imposed by the Committee shall
be a condition precedent to the Company's obligation as may otherwise be provided hereunder to provide Shares to the Participant and to the release of any restrictions as may otherwise be provided
hereunder, as applicable; and the applicable Option, Restricted Stock, RSUs or Dividend Equivalent Rights shall be forfeited upon the failure of the Participant to satisfy such requirements with
respect to, as applicable, (i) the exercise of the Option, (ii) the lapsing of restrictions on the Restricted Stock (or other income-recognition event) or (iii) distributions in
respect of any RSU or Dividend Equivalent Right.
12. REGULATIONS AND APPROVALS
.
(a) The
obligation of the Company to sell Shares with respect to an Award granted under the Plan shall be subject to all applicable laws, rules and regulations, including
all applicable federal and state
securities laws, and the obtaining of all such approvals by governmental agencies as may be deemed necessary or appropriate by the Committee.
(b) The
Committee may make such changes to the Plan as may be necessary or appropriate to comply with the rules and regulations of any government authority or to obtain tax
benefits applicable to an Award.
(c) Each
grant of Options, Restricted Stock, RSU (or issuance of Shares in respect thereof) or Dividend Equivalent Rights (or issuance of Shares in respect thereof), or
other Award under
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Section 9
(or issuance of Shares in respect thereof), is subject to the requirement that, if at any time the Committee determines, in its discretion, that the listing, registration or
qualification of Shares issuable pursuant to the Plan is required by any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body is
necessary or desirable as a condition of, or in connection with, the issuance of Options, Shares of Restricted Stock, RSUs, Dividend Equivalent Rights, other Awards or other Shares, no payment shall
be made, or RSUs or Shares issued or grant of Restricted Stock or other Award made, in whole or in part, unless listing, registration, qualification, consent or approval has been effected or obtained
free of any conditions in a manner acceptable to the Committee.
(d) In
the event that the disposition of stock acquired pursuant to the Plan is not covered by a then current registration statement under the Securities Act, and is not
otherwise exempt from such registration, such Shares shall be restricted against transfer to the extent required under the Securities Act, and the Committee may require any individual receiving Shares
pursuant to the Plan, as a condition precedent to receipt of such Shares, to represent to the Company in writing that such Shares are acquired for investment only and not with a view to distribution
and that such Shares will be disposed of only if registered for sale under the Securities Act or if there is an available exemption for such disposition.
(e) Notwithstanding
any other provision of the Plan, the Company shall not be required to take or permit any action under the Plan or any Award Agreement which, in the
good-faith determination of the Company, would result in a material risk of a violation by the Company of Section 13(k) of the Exchange Act.
13. INTERPRETATION AND AMENDMENTS; OTHER RULES
.
The
Committee may make such rules and regulations and establish such procedures for the administration of the Plan as it deems appropriate. Without limiting the generality of the
foregoing, the Committee may (i) determine the extent, if any, to which Options, RSUs or Shares (whether or not Shares of Restricted Stock) or Dividend Equivalent Rights shall be forfeited
(whether or not such forfeiture is expressly contemplated hereunder); (ii) interpret the Plan and the Award Agreements hereunder, with such interpretations to be conclusive and binding on all
persons and otherwise accorded the maximum deference permitted by law, provided that the Committee's interpretation shall not be entitled to deference on and after a Termination Event except to the
extent that such interpretations are made exclusively by members of the Committee who are individuals who served as Committee members before the Termination Event; and (iii) take any other
actions and make any other determinations or decisions that it deems necessary or appropriate in connection with the Plan or the administration or interpretation thereof. In the event of any dispute
or disagreement as to the interpretation of the Plan or of any rule, regulation or procedure, or as to any question, right or obligation arising from or related to the Plan, the decision of the
Committee, except as provided in clause (ii) of the foregoing sentence, shall be final and binding upon all persons. Unless otherwise expressly provided hereunder, the Committee, with respect
to any grant, may exercise its discretion hereunder at the time of the Award or thereafter. The Board may amend the Plan as it shall deem advisable, except that no amendment may adversely affect a
Participant with respect to an Award previously granted without such Participant's written consent unless such amendments are required in order to comply with applicable laws; provided, however, that
the Plan may not be amended without stockholder approval in any case in which amendment in the absence of stockholder approval would cause the Plan to fail to comply with any applicable legal
requirement or applicable exchange or similar rule.
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14. CHANGES IN CAPITAL STRUCTURE
.
(a) If
(i) the Company or Subsidiaries shall at any time be involved in a merger, consolidation, dissolution, liquidation, reorganization, exchange of shares, sale of
all or substantially all of the assets or stock of the Company or Subsidiaries or a transaction similar thereto, (ii) any stock dividend, stock split, reverse stock split, stock combination,
reclassification, recapitalization or other similar change in the capital structure of the Company or Subsidiaries, or any distribution to holders of Common Stock
other than cash dividends, shall occur or (iii) any other event shall occur which in the judgment of the Committee necessitates action by way of adjusting the terms of the outstanding Awards,
then:
(i) the
maximum aggregate number and kind of Shares which may be made subject to Options and Dividend Equivalent Rights under the Plan, the maximum aggregate number and
kind of Shares of Restricted Stock that may be granted under the Plan, the maximum aggregate number of RSUs and other Awards which may be granted under the Plan may be appropriately adjusted by the
Committee in its discretion; and
(b) the
Committee may take any such action as in its discretion shall be necessary to maintain each Participants' rights hereunder (including under their Award Agreements)
so that they are substantially in their respective Options, RSUs and Dividend Equivalent Rights substantially proportionate to the rights existing in such Options, RSUs and Dividend Equivalent Rights
prior to such event, including, without limitation, adjustments in (A) the number of Options, RSUs and Dividend Equivalent Rights (and other Awards under Section 9) granted,
(B) the number and kind of shares or other property to be distributed in respect of Options, RSUs and Dividend Equivalent Rights (and other Awards under Section 9 as applicable),
(C) the Option Price and RSU Value, and (D) performance-based criteria established in connection with Awards (to the extent consistent with Section 162(m) of the Code, as
applicable); provided that, in the discretion of the Committee, the foregoing clause (D) may also be applied in the case of any event relating to a Subsidiary if the event would have been
covered under this Section 14(a) had the event related to the Company.
To
the extent that such action shall include an increase or decrease in the number of Shares (or units of other property then available) subject to all outstanding Awards, the number of
Shares (or units) available under Section 4 shall be increased or decreased, as the case may be, proportionately, as may be determined by the Committee in its discretion.
(c) Any
Shares or other securities distributed to a Grantee with respect to Restricted Stock or otherwise issued in substitution of Restricted Stock shall be subject to the
restrictions and requirements imposed by Section 6, including depositing the certificates therefor with the Company together with a stock power and bearing a legend as provided in
Section 6.2(c).
(d) If
the Company shall be consolidated or merged with another corporation or other entity, each Grantee who has received Restricted Stock that is then subject to
restrictions imposed by Section 6.3 may be required to deposit with the successor corporation the certificates, if any, for the stock or securities, or the other property, that the Grantee is
entitled to receive by reason of ownership of Restricted Stock in a manner consistent with Section 6.2(c), and such stock, securities or other property shall become subject to the restrictions
and requirements imposed by Section 6.3, and the certificates therefor or other evidence thereof shall bear a legend similar in form and substance to the legend set forth in
Section 6.2(c).
(e) If
a Termination Event shall occur, then the Committee, as constituted immediately before the Termination Event, may make such adjustments as it, in its discretion,
determines are necessary or appropriate in light of the Termination Event, provided that the Committee
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determines
that such adjustments do not have an adverse economic impact on the Participant as determined at the time of the adjustments.
(f) The
judgment of the Committee with respect to any matter referred to in this Section 14 shall be conclusive and binding upon each Participant without the need for
any amendment to the Plan.
(g) Other
than as otherwise permitted under this Section 14, without the prior approval of the Company's stockholders: (i) the Option Price, with respect to an
Option, or grant price, with respect to a Stock Appreciation Right, may not be reduced below the price established at the time of grant thereof and (ii) an outstanding Option or Stock
Appreciation Right may not be cancelled and replaced with a new Award with a lower exercise or grant price.
15. MISCELLANEOUS
.
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15.1
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No Rights to Employment or Other Service
.
Nothing
in the Plan or in any grant made pursuant to the Plan shall confer on any individual any right to continue in the employ or other service of the Company, the Subsidiaries or
Affiliates or interfere in any way with the right of the Company, the Subsidiaries or Affiliates and their stockholders to terminate the individual's employment or other service at any time.
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15.2
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Right of First Refusal; Right of Repurchase
.
At
the time of grant, the Committee may provide in connection with any grant made under the Plan that Shares received hereunder shall be subject to a right of first refusal pursuant to
which the Company shall be entitled to purchase such Shares in the event of a prospective sale of the Shares, subject to such terms and conditions as the Committee may specify at the time of grant or
(if permitted by the Award Agreement) thereafter, and to a right of repurchase, pursuant to which the Company shall be entitled to purchase such Shares at a price determined by, or under a formula set
by, the Committee at the time of grant or (if permitted by the Award Agreement) thereafter.
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15.3
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No Fiduciary Relationship
.
Nothing
contained in the Plan (including without limitation Sections 7.5(c) and 8.4), and no action taken pursuant to the provisions of the Plan, shall create or shall be
construed to create a trust of any kind, or a fiduciary relationship between the Company or Subsidiaries, or their, officers or the Committee, on the one hand, and the Participant, the Company,
Subsidiaries or any other person or entity, on the other.
This
Plan is intended to comply and shall be administered in a manner that is intended to comply with the requirement of Section 409A of the Code (including the Treasury
Department guidance and regulations issued thereunder), and shall be construed and interpreted in accordance with such intent. If the Committee determines that an Award, Award document, payment,
transaction or any other action or arrangement contemplated by the provisions of this Plan would, if undertaken, cause a Participant to become subject to any additional taxes or other penalties under
Section 409A of the Code, then unless the Committee specifically provides otherwise, such Award, Award document, payment, transaction or other Award documents will be deemed modified or, if
necessary, suspended in order to comply with the requirements of Section 409A of the Code to the extent determined appropriate by the Committee, in each case without the consent of the
Participant.
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(a) To
the extent that the Plan is determined by the Committee to be subject to the Employee Retirement Income Security Act of 1974, as amended, the Grantee, or his
beneficiary hereunder or authorized representative, may file a claim for payments with respect to RSUs under the Plan by written communication to the Committee or its designee. A claim is not
considered filed until such communication is actually received. Within 90 days (or, if special circumstances require an extension of time for processing, 180 days, in which case notice
of such special circumstances should be provided within the initial 90-day period) after the filing of the claim, the Committee will either:
(i) approve
the claim and take appropriate steps for satisfaction of the claim; or
(ii) if
the claim is wholly or partially denied, advise the claimant of such denial by furnishing to him a written notice of such denial setting forth (A) the
specific reason or reasons for the denial; (B) specific reference to pertinent provisions of the Plan on which the denial is based and, if the denial is based in whole or in part on any rule of
construction or interpretation adopted by the Committee, a reference to such rule, a copy of which shall be provided to the claimant; (C) a description of any additional material or information
necessary for the claimant to perfect the claim and an explanation of the reasons why such material or information is necessary; and (D) a reference to this Section 15.5 as the provision
setting forth the claims procedure under the Plan.
(b) The
claimant may request a review of any denial of such claim by written application to the Committee within 60 days after receipt of the notice of denial of such
claim. Within 60 days (or, if special circumstances require an extension of time for processing, 120 days, in which case notice of such special circumstances should be provided within
the initial 60-day period) after receipt of written application for review, the Committee will provide the claimant with its decision in writing, including, if the claimant's claim is not approved,
specific reasons for the decision and specific references to the Plan provisions on which the decision is based.
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15.6
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No Fund Created
.
Any
and all payments hereunder to any Grantee shall be made from the general funds of the Company, no special or separate fund shall be established or other segregation of assets made to
assure such payments, and the RSUs (including for purposes of this Section 15.6 any accounts established to facilitate the implementation of Section 7.4(c)) and any other similar devices
issued hereunder to account for Plan obligations do not constitute Common Stock and shall not be treated as (or as giving rise to) property or as a trust fund of any kind; provided, however, that the
Company may establish a mere bookkeeping reserve to meet its obligations hereunder or a trust or other funding vehicle that would not cause the Plan to be deemed to be funded for tax purposes or for
purposes of Title I of the Employee Retirement Income Security Act of 1974, as amended. The obligations of the Company under the Plan are unsecured and constitute a mere promise by the Company to make
benefit payments in the future and, to the extent that any person acquires a right to receive payments under the Plan from the Company, such right shall be no greater than the right of a general
unsecured creditor of the Company. (If any Affiliate is or is made responsible with respect to any Awards, the foregoing sentence shall apply with respect to such Affiliate.) Without limiting the
foregoing, RSUs and any other similar devices issued hereunder to account for Plan obligations are solely a device for the measurement and determination of the amounts to be paid to a Grantee under
the Plan, and each Grantee's right in the RSUs and any such other devices is limited to the right to receive payment, if any, as may herein be provided.
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All
notices under the Plan shall be in writing, and if to the Company, shall be delivered to the Board or mailed to its principal office, addressed to the attention of the Board; and if
to the Participant, shall be delivered personally, sent by facsimile transmission or mailed to the Participant at the address appearing in the records of the Company. Such addresses may be changed at
any time by written notice to the other party given in accordance with this Section 15.7.
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15.8
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Exculpation and Indemnification
.
The
Company shall indemnify and hold harmless the members of the Board and the members of the Committee from and against any and all liabilities, costs and expenses incurred by such
persons as a result of any act or omission to act in connection with the performance of such person's duties, responsibilities and obligations under the Plan, to the maximum extent permitted by law,
other than
such liabilities, costs and expenses as may result from the gross negligence, bad faith, willful misconduct or criminal acts of such persons.
The
use of captions in this Plan is for convenience. The captions are not intended to provide substantive rights.
THE
PLAN SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND WITHOUT REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAW WHICH COULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF MARYLAND.
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EXHIBIT A
PERFORMANCE CRITERIA
Performance-Based Awards intended to qualify as "performance based" compensation under Section 162(m) of the Code, may be payable upon
the attainment of objective performance goals that are established by the Committee and relate to one or more Performance Criteria, in each case on specified date or over any period, up to
10 years, as determined by the Committee. Performance Criteria may (but need not) be based on the achievement of the specified levels of performance under one or more of the measures set out
below relative to the performance of one or more other corporations or indices.
Performance
Goals shall be based on one or more of the following business criteria (which may be determined for these purposes either by reference to the Company as a whole or by
reference to any one or more of its subsidiaries, operating divisions or other operating units): stock price, revenues, pretax income, operating income, cash flow, earnings per share, return on
equity, return on invested capital or assets, cost reductions and savings, return on revenues, productivity, level of managed assets and near or long-term earnings potential, or any variation or
combination of the preceding business criteria.
The
foregoing Performance Goals may be stated in absolute terms or may be expressed relative to performance in a specified prior period or to the performance of other specified
enterprises. In addition, the Committee may utilize as an additional performance measure (to the extent consistent with the Performance-Based Compensation Rules (as defined below)) the attainment by a
Participant of one or more personal objectives and/or goals that the Committee deems appropriate, including, but not limited to, implementation of Company policies, negotiation of significant
corporate transactions, development of long-term business goals or strategic plans for the Company, or the exercise of specific areas of managerial responsibility. "Performance-Based Compensation
Rules" shall mean those provisions of Section 162(m) of the Code and regulations promulgated thereunder that provide the rules pursuant to which compensation that is paid to executives on the
basis of performance is exempt from the limitations on deductibility applicable to certain compensation paid to executives in excess of $1,000,000. The measurement of the Company's or a Participant's
achievement of any of such goals must be objectively determinable and shall be determined, to the extent applicable, according to generally accepted accounting principles as in existence on the date
on which the Performance Goals for the performance period is established. In all cases, the Committee shall establish the Performance Goal for each performance period no later than 90 days
after the beginning of the performance period (or no later than the end of the first 25% of the performance period if the performance period is less than a full year), and shall establish such
Performance Goals in a manner that is consistent with the Performance-Based Compensation Rules. In the event a Performance Goal is not established for a performance period for a Participant for whom a
Performance Goal was in effect for the preceding performance period, the Performance Goal for such Participant for the preceding performance period shall be treated as the Performance Goal for such
Participant for the current performance period. The use of a performance period that is less than a full year shall not require any reduction to the limitations on maximum permitted bonus payments
under the Plan or require that less than a Participant's full annual base salary be taken into account in determining bonuses payable or limits on payments. To the extent specified by the Committee in
an Award or by other action taken by the Committee at the time Performance Goals for a performance period are established, the measurement of specified performance goals may be subject to adjustment
to exclude items of gain, loss or expense that are determined to be extraordinary or unusual in nature, infrequent in occurrence, related to a corporate transaction (including, without limitation, a
disposition or acquisition) or related to a change in accounting principles, all as determined in accordance with standards published by the Financial Accounting Standards Board (or any predecessor or
successor body) from time to time. In addition, equitable adjustments will be made to any performance goal related to Company stock (e.g., earnings per share) to reflect changes in corporate
capitalization, including, without limitation, stock splits and reorganizations.
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TABLE OF CONTENTS
A-24
Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting:
The Notice & Proxy Statement and The Annual Report on Form 10-K are available at www.proxyvote.com.
M97050-P70292
INSTITUTIONAL FINANCIAL MARKETS, INC.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS FOR
THE 2016 ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON
DECEMBER 21, 2016 AT 10:00 A.M., LOCAL TIME
The undersigned stockholder of INSTITUTIONAL FINANCIAL MARKETS, INC., a Maryland corporation (the “Company”), hereby appoints Joseph W. Pooler, Jr. and Douglas Listman, and each of them, as proxies for the undersigned with full power of substitution in each of them, to attend the 2016 Annual Meeting of Stockholders to be held on December 21, 2016 at 10:00 a.m., local time, at the offices of Duane Morris LLP, located at 1540 Broadway, New York, New York 10036, and any adjournments or postponements thereof, to cast on behalf of the undersigned all votes which the undersigned would be entitled to cast at the meeting and otherwise to represent the undersigned at the meeting with all powers possessed by the undersigned if personally present at the meeting.
Whether or not you expect to attend in person, we urge you to authorize your proxy by phone, via the Internet, or by signing, dating, and returning this proxy card at your earliest convenience. This will help to ensure the presence of a quorum at the meeting. Promptly authorizing your proxy will save the Company the expense and extra work of additional solicitation. An addressed envelope, for which no postage is required if mailed in the United States, is enclosed if you wish to authorize your proxy by mail. Submitting your proxy now will not prevent you from voting the shares at the meeting if you desire to do so, as your vote by proxy is revocable at your option.
Address Changes/Comments:
(If you noted any Address Changes/Comments above, please mark corresponding box on the reverse side.)
Continued and to be signed on reverse side
INSTITUTIONAL FINANCIAL MARKETS, INC.
CIRA CENTRE
2929 ARCH STREET - 17TH FLOOR
PHILADELPHIA, PA 19104
VOTE BY INTERNET - www.proxyvote.com
Use the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 P.M. Eastern Standard Time the day before the cut-off date or meeting date. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form.
ELECTRONIC DELIVERY OF FUTURE PROXY MATERIALS
If you would like to reduce the costs incurred by our company in mailing proxy materials, you can consent to receiving all future proxy statements, proxy cards and annual reports electronically via e-mail or the Internet. To sign up for electronic delivery, please follow the instructions above to vote using the Internet and, when prompted, indicate that you agree to receive or access proxy materials electronically in future years.
VOTE BY PHONE - 1-800-690-6903
Use any touch-tone telephone to transmit your voting instructions up until 11:59 P.M. Eastern Standard Time the day before the cut-off date or meeting date. Have your proxy card in hand when you call and then follow the instructions.
VOTE BY MAIL
Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717.
TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
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M97049-P70292
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KEEP THIS PORTION FOR YOUR RECORDS
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DETACH AND RETURN THIS PORTION ONLY
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THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
INSTITUTIONAL FINANCIAL MARKETS, INC.
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For
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Withhold
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For All
Except
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The Board of Directors recommends you vote FOR the following:
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1.
Election of Directors
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To withhold authority to vote for any individual nominee(s), mark “For All Except” and write the number(s) of the nominee(s) on the line below.
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Nominees:
01)
Daniel G. Cohen
02)
Thomas P. Costello
03)
G. Steven Dawson
04)
Jack J. DiMaio, Jr.
05)
Jack Haraburda
06)
Diana Louise Liberto
07)
James J. McEntee, III
08)
Neil S. Subin
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The Board of Directors recommends you vote FOR the following proposals:
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For
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Against
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Abstain
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2.
To approve Amendment No. 1 to the Company’s Second Amended and Restated 2010 Long-Term Incentive Plan to increase the number of shares of the Company’s common stock authorized for issuance thereunder from 7,080,000 shares to 9,080,000 shares.
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To approve, on an advisory basis, the compensation of the named executive officers of the Company, as disclosed in the proxy statement.
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To ratify the appointment of Grant Thornton LLP as the Company’s independent registered public accounting firm for the year ending December 31, 2016.
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NOTE:
In their discretion, the proxies are authorized to vote upon such other matters which may properly come before the annual meeting or any adjournments or postponements thereof.
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THE VOTES ENTITLED TO BE CAST BY THE UNDERSIGNED WILL BE CAST AS DIRECTED.
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IF THIS PROXY IS EXECUTED BUT NO DIRECTION IS INDICATED, THE VOTES ENTITLED TO BE CAST BY THE UNDERSIGNED WILL BE CAST “
FOR
” THE ELECTION OF MESSRS. COHEN, COSTELLO, DAWSON, DIMAIO, HARABURDA, MCENTEE AND SUBIN AND MS. LIBERTO, “
FOR
” PROPOSAL 2, “
FOR
” PROPOSAL 3 AND “
FOR
” PROPOSAL 4.
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For address changes and/or comments, please check this box and write them on the back where indicated.
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Please indicate if you plan to attend this meeting.
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Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary, please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name by authorized officer.
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Signature [PLEASE SIGN WITHIN BOX]
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Signature (Joint Owners)
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Institutional Financial Markets, Inc. (delisted) (AMEX:IFMI)
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