UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
(AMENDMENT NO. 8)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND
AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)*
BROADPOINT GLEACHER SECURITIES GROUP, INC.
(f/k/a Broadpoint Securities Group, Inc.)
--------------------------------------------------------
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
--------------------------------------------------------
(Title of Class of Securities)
318465101
--------------------------------------------------------
(CUSIP Number)
Robert H. Weiss
General Counsel
MatlinPatterson Global Advisers LLC
520 Madison Avenue
New York, New York 10022
Telephone: (212) 651-9525
--------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
July 28, 2009
--------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss.240.13d-l(e), 240.13d-l(f) or 240.13d-l(g), check the
following box [ ]
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7 for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Exchange Act") or otherwise subject to the liabilities of that section of
the Exchange Act but shall be subject to all other provisions of the Exchange
Act (however, see the Notes).
CUSIP NO. 318465101
SCHEDULE 13D
--------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S IDENTIFICATION NO. OF ABOVE PERSON
MatlinPatterson FA Acquisition LLC
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF, WC
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
------------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF
SHARES 37,093,261
BENEFICIALLY OWNED ------------------------------------------------------
BY EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
37,093,261
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
37,093,261
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.63%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
--------------------------------------------------------------------------------
2
CUSIP NO. 318465101
SCHEDULE 13D
--------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S IDENTIFICATION NO. OF ABOVE PERSON
MP II Preferred Partners L.P.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF, OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
------------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF
SHARES 37,093,261
BENEFICIALLY OWNED ------------------------------------------------------
BY EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
37,093,261
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
37,093,261
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.63%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
--------------------------------------------------------------------------------
3
CUSIP NO. 318465101
SCHEDULE 13D
--------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S IDENTIFICATION NO. OF ABOVE PERSON
MatlinPatterson Asset Management LLC
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF, WC
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
------------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF
SHARES 37,093,261
BENEFICIALLY OWNED ------------------------------------------------------
BY EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
37,093,261
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
37,093,261
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.63%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC
--------------------------------------------------------------------------------
4
CUSIP NO. 318465101
SCHEDULE 13D
--------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S IDENTIFICATION NO. OF ABOVE PERSON
MatlinPatterson LLC
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF, WC
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
------------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF
SHARES 37,093,261
BENEFICIALLY OWNED ------------------------------------------------------
BY EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
37,093,261
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
37,093,261
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.63%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC
--------------------------------------------------------------------------------
5
CUSIP NO. 318465101
SCHEDULE 13D
--------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S IDENTIFICATION NO. OF ABOVE PERSON
David J. Matlin
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF, WC
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
------------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF
SHARES 37,093,261
BENEFICIALLY OWNED ------------------------------------------------------
BY EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
37,093,261
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
37,093,261
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.63%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
6
CUSIP NO. 318465101
SCHEDULE 13D
--------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S IDENTIFICATION NO. OF ABOVE PERSON
Mark R. Patterson
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF, WC
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
------------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF
SHARES 37,093,261
BENEFICIALLY OWNED ------------------------------------------------------
BY EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
37,093,261
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
37,093,261
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.63%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
7
CUSIP NO. 318465101
SCHEDULE 13D
--------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S IDENTIFICATION NO. OF ABOVE PERSON
MP Preferred Partners GP LLC
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF, OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
------------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF
SHARES 37,093,261
BENEFICIALLY OWNED ------------------------------------------------------
BY EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
37,093,261
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
37,093,261
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.63%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC
--------------------------------------------------------------------------------
8
INTRODUCTION.
This amendment ("Amendment No.8") amends the Schedule 13D Statement,
dated May 14, 2007 (the "Statement", and as amended by Amendment No. 1 thereto,
dated July 24, 2007, Amendment No. 2 thereto, dated September 21, 2007,
Amendment No. 3 thereto, dated February 26, 2008, Amendment No. 4 thereto, dated
February 29, 2008, Amendment No. 5 thereto, dated June 4, 2008, Amendment No. 6
thereto, dated February 17, 2009, and Amendment No. 7 thereto, dated June 4,
2009 (the "Amended Statement") filed on behalf of (i) MatlinPatterson FA
Acquisition LLC ("Matlin FA"), a Delaware limited liability company, (ii)
MatlinPatterson Global Opportunities Partners II L.P. ("Matlin Partners
(Delaware)"), a Delaware limited partnership, (iii) MatlinPatterson Global
Opportunities Partners (Cayman) II L.P. ("Matlin Partners (Cayman)" and,
together with Matlin Partners (Delaware), the "Matlin Partners"), a Cayman
Islands limited partnership, (iv) MatlinPatterson Global Advisers LLC ("Matlin
Advisers"), a Delaware limited liability company, by virtue of its investment
authority over securities held by each of the Matlin Partners, (v)
MatlinPatterson Global Partners II LLC ("Matlin Global Partners"), a Delaware
limited liability company, as the general partner of each of the Matlin
Partners, (vi) MatlinPatterson Asset Management LLC ("Matlin Asset Management"),
a Delaware limited liability company, as the holder of all of the membership
interests in Matlin Global Partners and Matlin Advisers, (vii) MatlinPatterson
LLC ("MatlinPatterson"), a Delaware limited liability company, as the holder of
all of the membership interests in Matlin Asset Management, (viii) David J.
Matlin and Mark R. Patterson each, as a holder of 50% of the membership
interests in MatlinPatterson, (ix) Christopher Pechock and Frank Plimpton, each
an employee of Matlin Advisers, as the persons named in the Proxies described in
the Statement, (x) MPII Special Cayman Ltd. ("MPII Special"), an exempted
company incorporated in the Cayman Islands, MP II Preferred Partners L.P. ("MP
Preferred Partners"), a Cayman Islands limited partnership and MP Preferred
Partners GP LLC ("MP Preferred Partners GP"), a Delaware limited liability
company. Matlin FA, Matlin Asset Management, MatlinPatterson, David J. Matlin,
Mark R. Patterson, MP Preferred Partners and MP Preferred Partners GP are
collectively referred to in this Amendment No.8 as the "Reporting Persons" and
each is a "Reporting Person." Christopher Pechock and Frank Plimpton ceased to
hold any voting rights in the shares described in the Statement as of September
21, 2007 (as reflected in Amendment No. 2 to the Statement and Amendment No. 3
to the Statement), MP II Special ceased to be a member of Matlin FA (as
reflected in Amendment No. 6 to the Statement), and each of Matlin Partners,
Matlin Global Partners and Matlin Advisers ceased to be a member of Matlin FA as
of June 4, 2009 (as reflected in Amendment No. 7 to the Statement) and are no
longer Reporting Persons for the purpose hereof. The Statement, as previously
amended, disclosed the shared beneficial ownership by the Reporting Persons of
43,093,261 shares (the "Shares") of the common stock, par value $0.01 per share
("Common Stock"), of Broadpoint Gleacher Securities Group, Inc. (the "Issuer")
held by Matlin FA.
On July 28, 2009, Matlin FA entered into a purchase agreement (the
"Purchase Agreement") with the Issuer, Merrill Lynch, Pierce, Fenner & Smith
Incorporated and each of the other Underwriters named in Schedule A thereto
(collectively, the "Underwriters") and the other selling shareholder named
therein (the "Other Selling Shareholder") pursuant to which Matlin FA agreed to
(i) sell an aggregate of 6,000,000 Shares (the "Initial Shares") and (ii) grant
to the Underwriters an option (the "Overallotment Option") to purchase up to an
additional 1,525,000 Shares (the "Overallotment Shares") at a price of $6.25 per
Share to cover overallotments, subject to the terms and conditions of the
Purchase Agreement, for a price of $6.25 per Share (the "Underwritten Sale").
The Underwritten Sale with respect to the Initial Shares was completed on August
3, 2009 (the "Sale Date").
This Amendment No. 8 is being filed on behalf of the Reporting Persons
to report the execution of the Purchase Agreement and the completion of the
Underwritten Sale of the Initial Shares. Capitalized terms used and not defined
in this Amendment No. 8 shall have the meanings set forth in the Amended
Statement. Except as specifically provided herein, this Amendment No. 8 does not
modify any of the information previously reported on the Amended Statement.
9
ITEM 4. PURPOSE OF TRANSACTION
Item 4 is amended and supplemented by adding the following:
On July 28, 2009, Matlin FA entered into the Purchase Agreement with the Issuer,
the Other Selling Shareholder and the Underwriters pursuant to which Matlin FA
agreed to sell an aggregate of 6,000,000 Shares, subject to the terms and
conditions of the Purchase Agreement, for a price of $6.25 per Share. The
Purchase Agreement contains customary representations, warranties and
indemnities. Matlin FA agreed pursuant to the terms of a lock up agreement in
the form set forth in the Purchase Agreement that, for a period of 90 days
following the date of the Purchase Agreement, it would not offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant for the sale of, or
otherwise dispose of or transfer any shares of the Issuer's Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock
(except with the consent of the Underwriters). The Underwritten Sale of the
Initial Shares was completed on August 3, 2009. In connection with the Purchase
Agreement, Matlin FA granted the Underwriters an option to purchase up to an
additional 1,525,000 Shares at a price of $6.25 per Share to cover
overallotments, if any, which expires 30 days after the date of the Purchase
Agreement. In addition, Matlin FA entered into an Irrevocable Power of Attorney
and Custody Agreement dated July 28, 2009 (the "Power of Attorney and Custody
Agreement") in favor of Lee Fensterstock and Patricia Arciero-Craig, as
attorneys-in-fact, American Stock Transfer and Trust Company, LLC, as custodian
and the Issuer to effectuate the sale and transfer of the Initial Shares and, if
the Overallotment Option is exercised, the sale of the Overallotment Shares.
The Issuer filed a registration statement on Form S-3, as amended
(Registration No. 333-159254) (the "S-3") pursuant to which the Initial Shares
were sold and the Overallotment Shares may be sold. Except for the S-3 and as
described in this Amendment No. 8, none of the Reporting Persons has formulated
any plans or proposals which relate to or would result in any matter required to
be disclosed in response to paragraphs (a) through (j) of Item 4 of Schedule
13D. Notwithstanding the foregoing, each of the Reporting Persons intends
continuously to review its investment in the Issuer, and may in the future
determine, either alone or as part of a group, (i) to dispose of all or a
portion of the securities of the Issuer owned by it in the open market, in
privately negotiated transactions or otherwise or (ii) to take any other
available course of action, which could involve one or more of the types of
transactions or have one or more of the results which require disclosure in
response to paragraphs (a) through (j) of Item 4 of Schedule 13D.
Notwithstanding anything contained herein, each of the Reporting Persons
specifically reserves the right to change its intention with respect to any or
all of such matters. In reaching any decision as to its course of action (as
well as to the specific elements thereof), each of the Reporting Persons
currently expects that it would take into consideration a variety of factors,
including, but not limited to, the following: the Issuer's business and
prospects; other developments concerning the Issuer and its businesses
generally; other business opportunities available to the Reporting Persons;
developments with respect to the businesses of the Reporting Persons; changes in
law and government regulations; general economic conditions; and money and stock
market conditions, including the market price of the securities of the Issuer.
The foregoing discussion is qualified in its entirety by reference to
the Purchase Agreement and the Power of Attorney and Custody Agreement, the
terms of each of which are incorporated herein by reference to Exhibits 17 and
18 hereto.
10
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
Item 5 is amended and supplemented by adding the following:
(a)-(b) As of the filing date of this Amendment No. 8, Matlin FA, MP Preferred
Partners, MP Preferred Partners GP, Matlin Asset Management, MatlinPatterson,
David J. Matlin and Mark R. Patterson are each the beneficial owner of
37,093,261 shares of Common Stock, which represents approximately 31.63% of the
shares of Common Stock based on 117,275,164 shares of Common Stock outstanding
(which represents 103,275,164 shares outstanding as of June 30, 2009 as
disclosed by the Issuer in its 424(b) prospectus filed with the Securities and
Exchange Commission on July 30, 2009 (the "424 Prospectus") plus 14,000,000
newly issued shares of Common Stock that were sold by the Issuer as described in
the 424 Prospectus). Except as disclosed in this Amendment No. 8, none of the
Reporting Persons has (i) sole or shared power to vote or direct the vote of or
(ii) sole or shared power to dispose or direct the disposition of Common Stock.
(c) Except for the Underwritten Sale and the other transactions described in
this Amendment No. 8, none of the Reporting Persons has effected any transaction
in Common Stock during the past 60 days, or since the filing of Amendment No. 7,
whichever is less.
(d) Not applicable.
(e) Not applicable.
The filing of this Amendment No. 8 shall not be construed as an admission by any
of the Reporting Persons that it is, for purposes of Section 13(d) of the
Exchange Act, the beneficial owner of shares of Common Stock owned by other
Reporting Persons or parties.
11
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 is amended and supplemented by adding the following:
16 Joint Filing Agreement dated as of August 3, 2009 among the Reporting
Persons.
17 Purchase Agreement dated as of July 28, 2009 among Merrill Lynch,
Pierce, Fenner & Smith Incorporated and each of the other Underwriters
named in Schedule A thereto and the Selling Shareholder named therein.
(incorporated by reference to Exhibit 1.1 of the Issuer's Registration
Statement on Form S-3, as amended (Registration No. 333-159254).
18. Irrevocable Power of Attorney and Custody Agreement dated as of July
28, 2009 executed by MatlinFA in favor of Lee Fensterstock and Patricia
Arciero-Craig, as attorneys-in-fact, American Stock Transfer and
Trust Company, LLC, as custodian and the Issuer.
12
SIGNATURES
After reasonable inquiry and to the best of our knowledge and belief, we certify
that the information set forth in this Statement is true, complete and correct.
Dated: August 3, 2009
MATLINPATTERSON FA ACQUISITION LLC
By: /s/ Robert H. Weiss
-------------------------------------
Name: Robert H. Weiss
Title: Vice President
MP PREFERRED PARTNERS GP LLC
By: /s/ Robert H. Weiss
-------------------------------------
Name: Robert H. Weiss
Title: General Counsel
MATLINPATTERSON LLC
By: /s/ Mark R. Patterson
-------------------------------------
Name: Mark R. Patterson
Title: Member
MATLINPATTERSON ASSET MANAGEMENT LLC
By: /s/ Robert H. Weiss
-------------------------------------
Name: Robert H. Weiss
Title: General Counsel
MP II PREFERRED PARTNERS L.P.
By: MP Preferred Partners GP LLC,
its general partner
By: /s/ Robert H. Weiss
---------------------------------
Name: Robert H. Weiss
Title: General Counsel
DAVID J. MATLIN
By: /s/ David J. Matlin
-------------------------------------
Name: David J. Matlin
MARK R. PATTERSON
By: /s/ Mark R. Patterson
-------------------------------------
Name: Mark R. Patterson
13
EXHIBIT INDEX
-------------
16 Joint Filing Agreement dated as of August 3, 2009 among the Reporting
Persons.
17 Purchase Agreement dated as of July 28, 2009 among Merrill Lynch,
Pierce, Fenner & Smith Incorporated and each of the other Underwriters
named in Schedule A thereto and the Selling Shareholder named therein.
(incorporated by reference to Exhibit 1.1 of the Issuer's Registration
Statement on Form S-3, as amended (Registration No. 333-159254).
18. Irrevocable Power of Attorney and Custody Agreement dated as of July
28, 2009 executed by MatlinFA in favor of Lee Fensterstock and Patricia
Arciero-Craig, as attorneys-in-fact, American Stock Transfer and
Trust Company, LLC, as custodian and the Issuer.
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k)(1) under the Securities Exchange Act
of 1934, as amended, the undersigned hereby agree to the joint filing of
MatlinPatterson FA Acquisition LLC, MatlinPatterson LLC, MatlinPatterson Asset
Management LLC, MP II Preferred Partners L.P., MP Preferred Partners GP LLC,
David J. Matlin and Mark R. Patterson, on behalf of each of them a statement on
Schedule 13D (including amendments thereto) with respect to shares of common
stock, par value $0.01 per share, of Broadpoint Gleacher Securities Group, Inc.,
formerly known as Broadpoint Securities Group, Inc., a New York corporation, and
that this Agreement be included as an Exhibit to such joint filing. This
Agreement may be executed in any number of counterparts all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned hereby execute this Agreement this
3rd day of August 2009.
MATLINPATTERSON FA ACQUISITION LLC
By: /s/ Robert H. Weiss
-------------------------------------
Name: Robert H. Weiss
Title: Vice President
MATLINPATTERSON LLC
By: /s/ Mark R. Patterson
-------------------------------------
Name: Mark R. Patterson
Title: Member
MATLINPATTERSON ASSET MANAGEMENT LLC
By: /s/ Robert H. Weiss
-------------------------------------
Name: Robert H. Weiss
Title: General Counsel
MP II PREFERRED PARTNERS L.P.
By: MP Preferred Partners GP LLC,
its general partner
By: /s/ Robert H. Weiss
---------------------------------
Name: Robert H. Weiss
Title: General Counsel
MP PREFERRED PARTNERS GP LLC
By: /s/ Robert H. Weiss
-------------------------------------
Name: Robert H. Weiss
Title: General Counsel
DAVID J. MATLIN
By: /s/ David J. Matlin
------------------------------------
Name: David J. Matlin
MARK R. PATTERSON
By: /s/ Mark R. Patterson
-------------------------------------
Name: Mark R. Patterson
Exhibit 18
================================================================================
IRREVOCABLE POWER OF ATTORNEY
-----------------------------
AND CUSTODY AGREEMENT
---------------------
by and among
The Shareholders of Broadpoint Gleacher Securities Group, Inc.
listed on Schedule I hereto,
American Stock Transfer & Trust Company, LLC
as Custodian,
Lee Fensterstock and Patricia Arciero-Craig,
as Attorneys-in-Fact,
and
Broadpoint Gleacher Securities Group, Inc.
Dated: July 28, 2009
================================================================================
IRREVOCABLE POWER OF ATTORNEY
AND CUSTODY AGREEMENT
MAST CREDIT OPPORTUNITIES I MASTER FUND LIMITED
c/o Mast Capital Management, LLC
200 Clarendon St.
51st Floor
Boston, MA 12116
MATLINPATTERSON FA ACQUISITION LLC
c/o MatlinPatterson Global Advisers LLC
520 Madison Ave.
35th Floor
New York, NY 10022
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BROADPOINT CAPITAL, INC.
SANDLER O'NEILL & PARTNERS, L.P.
as Representatives of the several Underwriters
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, New York 10036
Ladies and Gentlemen:
The undersigned shareholder (the "undersigned") of Broadpoint Gleacher
Securities Group, Inc., a New York corporation (the "Company"), and the other
shareholders of the Company listed in Schedule I attached hereto (the
undersigned and such other shareholders being hereinafter collectively referred
to as the "Selling Shareholders") have entered into a Purchase Agreement
attached hereto as Exhibit I (the "Purchase Agreement"), among the Company, the
Selling Shareholders and Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Broadpoint Capital, Inc. and Sandler O'Neill & Partners, L.P. (the
"Representatives"), acting as representatives of the several underwriters named
in Schedule A to the Purchase Agreement (collectively, the "Underwriters"),
pursuant to which the Underwriters will purchase the number of shares of common
stock, par value $0.01 per share (the "Common Stock"), of the Company set forth
opposite such Selling Shareholder's name in Schedule B to the Purchase Agreement
(the "Shares"). Capitalized terms used herein but not otherwise defined herein
have the meanings ascribed thereto in the Purchase Agreement.
The undersigned understands that the Company has filed with the
Securities and Exchange Commission (the "Commission") a Registration Statement
on Form S-3 (File No. 333-159254) (the "Registration Statement") in connection
with the offering (the "Offering") of shares of its Common Stock. The
undersigned and each of the other Selling Shareholders have elected to sell
their respective Shares in the Offering. Accordingly, the Offering will be
registered under the Securities Act of 1933, as amended (the "1933 Act"),
covering the Shares to be sold by each of the Selling Shareholders.
The undersigned, by executing and delivering this Irrevocable Power of
Attorney and Custody Agreement (the "Agreement"), confirms the undersigned's
willingness and intent to sell its Shares to the Underwriters pursuant to the
Purchase Agreement, and agrees, simultaneously with the execution and delivery
hereof, to cause the deposit of such Shares with American Stock Transfer & Trust
Company, LLC, acting in its capacity as custodian hereunder (solely in such
capacity, the "Custodian"), all as hereinafter provided.
The undersigned hereby acknowledges receipt of (i) the Purchase
Agreement (a copy of which is attached hereto as Exhibit I) (the "Purchase
Agreement") and (ii) the Registration Statement as originally filed and all
amendments thereto, including a copy of the Prospectus.
To secure the performance of the Underwriters and the Company pursuant
to the Purchase Agreement, the undersigned agrees as follows:
1. Appointment of Attorneys-in-Fact; Grant of Authority. For
purposes of effecting the sale of the undersigned's Shares pursuant to the
Purchase Agreement, the undersigned irrevocably makes, constitutes and appoints
Lee Fensterstock and Patricia Arciero-Craig, and each of them, true and lawful
agents and attorneys-in-fact of the undersigned (each, an "Attorney-in-Fact"
and, collectively, the "Attorneys-in-Fact"), each with full power and authority,
subject to the terms and provisions hereof, to act hereunder, individually,
collectively, or through duly appointed successor attorneys-in-fact, in his or
their sole discretion (it being understood and agreed that the Attorneys-in-Fact
may, unless otherwise specified herein, act individually), all as hereinafter
provided, in the name of and for and on behalf of the undersigned, as fully as
could the undersigned if present and acting in person, with respect to the
following matters in connection with and necessary and incident to the
registration and sale of the undersigned's Shares in the Offering pursuant to
the Purchase Agreement:
(a) to authorize and direct the Custodian and any other
person or entity to take any and all actions as may be necessary or
deemed to be advisable by the Attorneys-in-Fact or any of them to
effect the sale, transfer and disposition of the Maximum Number of
Shares of undersigned's Shares (as set forth in Schedule I hereto) in
the Offering as the Attorneys-in-Fact or any of them may, in their sole
discretion, determine, including to direct the Custodian with respect
to (i) the transfer on the stock record books of the Company of the
Shares in order to effect such sale (including the names in which new
certificates for the Shares are to be issued and the denominations
thereof), (ii) the delivery to or for the account of the Underwriters
of the certificates evidencing any or all of the Shares with
appropriate stock powers or other instruments of transfer duly endorsed
or in blank against receipt by the Custodian of the purchase price to
be paid therefor, (iii) the payment by the Custodian (which payment may
be made out of the proceeds of any sale of Shares by the undersigned to
the Underwriters) of the expenses, if any, to be borne by the
undersigned pursuant to the Purchase Agreement and such other costs and
expenses as are agreed upon by such Attorney-in-Fact to be borne by the
undersigned to the extent set forth in the Purchase Agreement (any
expenses incurred on behalf of two or more Selling Shareholders shall
be apportioned among them on the basis of the respective number of
Shares to be sold by them pursuant to the Purchase Agreement), (iv) the
remittance to the undersigned of the balance of the proceeds from any
sale of the Shares, and (v) the return to the undersigned of new
certificates representing the number of Shares, if any, deposited with
the Custodian which are in excess of the number of Shares sold by the
undersigned to the Underwriters (the "Excess Shares");
(b) to take any and all actions that may be necessary or
deemed to be advisable by the Attorneys-in-Fact, or any of them, in
their sole discretion, with respect to the Registration Statement,
including, without limitation, approval of amendments to the
Registration Statement or the Prospectus or any preliminary prospectus,
the execution, acknowledgment and delivery of any certificates,
documents and consents, which may be required by the Commission,
appropriate authorities of states or other jurisdictions, the
Underwriters or legal counsel or such certificates, documents and
consents as may otherwise be necessary or appropriate in connection
with the registration of the Shares under the 1933 Act or the
securities or blue sky laws of the various states and foreign
jurisdictions or necessary to facilitate sales of the Shares;
(c) to take or cause to be taken any and all further
actions, and to execute and deliver, or cause to be executed and
delivered, any and all such certificates, instruments, contracts,
orders, receipts, notices, requests, consents, instructions,
certificates, letters, documents, stock certificates and share powers
and other instruments of transfer and closing as may be required by the
Purchase Agreement or as may otherwise be necessary or deemed to be
advisable by the Attorneys-in-Fact, or any of them, in connection
therewith, with such changes or amendments thereto as the
Attorneys-in-Fact or any of them may, in their reasonable discretion,
approve (such approval to be evidenced by their signature thereof), as
may be necessary or desirable by the Attorneys-in-Fact or any of them
to effectuate, implement and otherwise carry out the transactions
contemplated by the Purchase Agreement and this Agreement, or as may be
necessary or deemed to be desirable by the Attorneys-in-Fact, or any of
them, in connection with the registration of the Shares, pursuant to
the 1933 Act or the securities or blue sky laws of the various states
and foreign jurisdictions, or the sale of the Shares to the
Underwriters; and
(d) without limiting the foregoing authority, to request
on behalf of the undersigned acceleration of the effectiveness of the
Registration Statement and advise the Commission of the reason the
undersigned is selling the Shares.
provided, however, that in no event shall the Custodian or the Attorneys-in-Fact
have the power or authority to alter or amend the public offering price per
share of the Common Stock or the purchase price per share of the Common Stock to
be paid by the Underwriters to the Selling Shareholders, each as set forth in
the Purchase Agreement.
2. Terms of Sale. The undersigned agrees that the
Attorneys-in-Fact, or any of them, acting individually shall be irrevocably
directed and obligated to:
(a) authorize and direct the Custodian and any other
person or entity to take any and all actions as may be necessary or
deemed to be advisable by the Attorneys-in-Fact or any of them, in
their reasonable discretion, to effect the sale, transfer and
disposition of the undersigned's Shares in the Offering and to deliver,
or cause to be delivered, certificates representing the undersigned's
Shares so sold, transferred and disposed of to the Representatives at
the Closing Time or any Date of Delivery all in accordance with the
terms and conditions of the Purchase Agreement; and
(b) authorize and direct the Custodian to return to the
undersigned any of the undersigned's Shares not sold in the Offering.
3. Termination of Offering. The undersigned agrees that the
termination of the Offering by any party will be governed by the terms and
conditions of the Purchase Agreement.
4. Irrevocability. The undersigned has conferred and granted the
power of attorney and all other authority contained herein for the purpose of
completing the Offering and in consideration of the actions of the Company and
the Underwriters in connection therewith. Therefore, the undersigned hereby
agrees that all power and authority hereby conferred is coupled with an interest
and, in the case of MAST, given to secure a proprietary interest, and is
irrevocable and, to the fullest extent not prohibited by law, shall not be
terminated by any act of the undersigned or by operation of law or by the
occurrence of any event whatsoever, including, without limitation, the death,
incapacity, bankruptcy, dissolution of marital relationship or insolvency of the
undersigned (or if more than one, either or any of them) or any similar event
(including, without limiting the foregoing, the termination of any trust or
estate for which the undersigned is acting as a fiduciary or fiduciaries, the
death or incapacity of one or more trustees, guardians, executors or
administrators under such trust or estate, or the dissolution or liquidation of
any corporation, partnership or other entity). If, after the execution of this
Agreement, any such event shall occur before the completion of the transactions
contemplated by the Purchase Agreement and/or this Agreement, the
Attorneys-in-Fact and the Custodian are nevertheless authorized and directed to
complete all of such transactions, including the delivery of the certificates
for the undersigned's Shares to be sold to the Underwriters, as if such event
had not occurred and regardless of notice thereof.
5. Deposit and Delivery of Shares. The undersigned hereby
appoints American Stock Transfer & Trust Company, LLC, as Custodian (in such
capacity, the "Custodian") to hold the undersigned's Shares and to deliver or to
dispose of them in accordance with the instructions of the Attorneys-in-Fact or
any of them as set forth herein, with full power in the name of, and for and on
behalf of, the undersigned and:
(a) If stock certificates with respect to the
undersigned's Shares are in the undersigned's possession, the
undersigned hereby acknowledges that such certificates have been
delivered to and deposited with the Custodian upon execution of this
Agreement, duly endorsed (with signatures guaranteed as described on
the signature page hereto) to the Company or in blank, or accompanied
by proper instruments of transfer to the Company or in blank.
(b) If certificates for any of the undersigned's Shares
are to be delivered to the Custodian by someone other than the
undersigned, the undersigned hereby acknowledges that an irrevocable
stock power duly executed in blank has been delivered to and deposited
with the Custodian.
(c) The undersigned authorizes and directs the Custodian
to hold the deposited certificates representing the undersigned's
Shares and, upon appropriate instructions from the Attorneys-in-Fact,
to deliver, or to instruct the Company's transfer agent to deliver, to
the Underwriters such of the undersigned's Shares as are to be
purchased by the Underwriters under the Purchase Agreement and to
deliver, or cause to be delivered, Shares in accordance with the
instructions of the Representatives at the Closing Time or any Date of
Delivery against receipt of payment therefor.
(d) The undersigned hereby authorizes and directs the
Attorneys-in-Fact and the Custodian to issue appropriate receipts to
the Underwriters in the name of the undersigned as payee. If any Shares
are sold pursuant to the Purchase Agreement, then the undersigned also
authorizes and directs the Attorneys-in-Fact and the Custodian to
acknowledge on behalf of the undersigned receipt of the Shares by the
Underwriters.
(e) The undersigned authorizes the Custodian to
determine, in the Custodian's sole and absolute discretion, whether and
the time and times when, the purpose for, and the manner in which, any
power conferred herein to the Custodian shall be exercised, and the
conditions, provisions and covenants of any instrument or document
which may be executed by the Custodian pursuant hereto.
(f) The undersigned authorizes and directs the Custodian
to do all things and perform all acts pursuant to the terms of this
Agreement as the Custodian may in such Custodian's sole and absolute
discretion deem appropriate, including, without limitation, the
execution and delivery of all certificates, receipts, instruments,
letters of transmittal and other documents and papers required,
contemplated by, or deemed by the Custodian appropriate in connection
with this Agreement to the Representatives, the Company's transfer
agent or any other person.
6. The Custodian. The Custodian's execution of this Agreement
shall constitute the acceptance by the Custodian of the agency herein conferred,
and shall evidence its agreement to carry out and perform its duties under this
Agreement in accordance with the provisions hereof; subject, however, to the
following terms and conditions, which all signatories hereto agree shall govern
and control the rights, duties and immunities of the Custodian:
(a) The Custodian, in its capacity as Custodian, shall
have no duties to the undersigned hereunder except those expressly set
forth herein and shall not be liable in such regard except for the
performance of such duties as are specifically set out herein, subject
to Section 10 hereof. The Custodian shall not be responsible for the
performance of the powers of attorney contained herein by any signatory
hereto, or for the interpretation of any of the provisions of such
powers of attorney. The Custodian shall be entitled to act and rely
upon any resolution, certificate, statement, report, request, notice,
order, letter, telegram, cablegram, facsimile, instruction or other
paper or document respecting this Agreement believed by the Custodian
to be genuine and to have been signed by the proper parties, not only
as to the authorization, validity and effectiveness thereof, but also
as to the truth and acceptability of any information therein contained;
provided, however, that the Custodian shall not be entitled to act on
any document or notice with respect to the time of delivery under the
Purchase Agreement or with respect to the non-effectiveness or
termination of the Purchase Agreement unless such document or notice
shall have been confirmed in writing to the Custodian by the
Representatives.
(b) If a controversy arises between two or more of the
Selling Shareholders, or between any of the Selling Shareholders and
any other person, as to whether or not or to whom the Custodian shall
deliver the certificates for the Shares or any funds held by it, or as
to any other matter arising out of or relating hereto or to the
property held by the Custodian hereunder or as to the interpretation of
this Agreement regarding the duties or obligations of the Custodian
hereunder, the Custodian shall not be required to determine the same
until the rights of the parties to the dispute shall have finally been
determined by agreement or by final order of a court of competent
jurisdiction; provided, however, that the time for appeal for any such
final order shall have expired without an appeal having been made. The
Custodian shall deliver the property, or any portion thereof, within 15
days after it has received written notice of any such agreement or
final order (accompanied by an affidavit that the time for appeal has
expired without an appeal having been made) in accordance with the
terms of the final agreement or order. The Custodian shall be entitled
to assume that no such controversy has arisen unless it has received a
written notice that such a controversy has arisen which refers
specifically to this Agreement and identifies by name and address the
adverse claimants to the controversy. Notwithstanding the foregoing,
if, after the execution of this Agreement, any such controversy shall
occur before the completion of the transactions contemplated by the
Purchase Agreement and/or this Agreement, the Attorneys-in-Fact and the
Custodian are nevertheless authorized and directed to complete all of
such transactions, including the delivery of the certificates for the
undersigned's Shares to be sold to the Underwriters, as if such
controversy had not occurred and regardless of notice thereof.
(c) The Custodian will acknowledge in writing to each of
the Selling Shareholders receipt by physical delivery of any
certificates representing the undersigned's Shares when such
certificates are received.
(d) The Custodian will deliver any certificates for any
Excess Shares as soon as possible following the consummation of the
Offering (including the exercise of any Option Securities) but in no
event later than 10 days following such consummation date.
7. Representations, Warranties and Agreements. The undersigned
severally and not jointly with the other Selling Shareholder represents,
warrants and agrees that:
(a) All authorizations and consents, including, but not
limited to, any releases necessary for the execution and delivery by
the undersigned of this Agreement and for the sale and delivery of the
undersigned's Shares to the Underwriters as contemplated hereby and in
the Purchase Agreement have been obtained and are in full force and
effect; and the undersigned has full right, power and authority to
enter into the Purchase Agreement and this Agreement and to sell,
transfer and deliver the undersigned's Shares to the Underwriters as
contemplated hereby and in the Purchase Agreement.
(b) The undersigned has read and understands the Purchase
Agreement including, without limitation, the representations and
warranties of the respective Selling Shareholder contained in Section
1(b) thereof (the "Section 1(b) Representations and Warranties"), and
confirms that such representations and the information contained in the
undersigned's responses to any questionnaires (each, a "Questionnaire")
completed by the undersigned in connection with the Offering is as of
the date hereof, and at the date of the Purchase Agreement, at the
Closing Time and at the Date of Delivery, if any, will be, true,
correct and complete and does not and will not omit any fact necessary
to make such information not misleading; the undersigned will promptly,
after becoming aware thereof, notify the Attorneys-in-Fact and the
Company (i) if any Section 1(b) Representation and Warranty of the
undersigned ceases to be true and correct at any time after the date
hereof , (ii) if any change in the responses to any Questionnaire
should be made as a result of developments occurring after the date
hereof and prior to the Closing Time or the Date of Delivery, as the
case may be, or (iii) if any representation and warranty of the
undersigned contained in this Agreement is not true and correct; the
undersigned authorizes the Attorney-in-Fact, acting on behalf of the
undersigned, to make the Section 1(b) Representations and Warranties;
the Attorneys-in-Fact (in such capacity) make no representations with
respect to and shall have no responsibility for the Registration
Statement or the Prospectus or, except as herein expressly provided,
for any aspect of the Offering, and the Attorneys-in-Fact shall not be
liable for any error of judgement or for any act done or omitted or for
any mistake of fact or law except for the Attorneys' own willful
conduct.
(c) The undersigned has not taken and will not take,
directly or indirectly, any action intended to constitute, or which has
constituted, or which might reasonably be expected to cause or result
in, stabilization or manipulation of the price of the Common Stock; and
to assure compliance with Regulation M under the Securities Exchange
Act of 1934, as amended (the "1934 Act"), the undersigned will not make
bids for or purchases of, or induce bids for or purchases of, directly
or indirectly, any shares of Common Stock until the distribution of all
shares being sold in the Offering has been completed; the undersigned
has not distributed and will not distribute any prospectus or other
offering material in connection with the Offering and sale of the
Shares other than the prospectuses filed with the Commission in
connection with the Registration Statement.
The foregoing representations, warranties and agreements are for the
benefit of and may be relied upon by the Attorneys-in-Fact, the Company, the
other Selling Shareholders, the Underwriters, the Custodian and their respective
legal counsel. The undersigned agrees, if so requested in writing by the
Attorneys-in-Fact or by the Company, the Underwriters or their respective legal
counsel, to provide one or more certificates setting forth such matters as to
which Dewey & LeBoeuf LLP, as counsel for the Company, Sidley Austin LLP, as
counsel for the Underwriters, and Whalen LLP, counsel for MatlinPatterson FA
Acquisition LLC, and Foley Hoag LLP and Walkers, counsel for MAST Credit
Opportunities I Master Fund Limited, are entitled to rely in rendering their
opinions pursuant to the Purchase Agreement.
8. Payment. The undersigned hereby authorizes and directs the
Attorneys-in-Fact or any of them to take such action as may be required to
provide for the distribution or delivery to the undersigned as promptly as
practicable of the undersigned's portion of the wire transfer of immediately
available funds described in Section 2(c) of the Purchase Agreement, which wire
transfer to the bank account designated by the Custodian will constitute all of
the proceeds of the Offering owing to the undersigned for his Shares purchased
at the Closing Time or on the relevant Date of Delivery. The undersigned agrees
that the Attorneys-in-Fact may deposit any amounts owing to the undersigned by
wire transfer of funds or by deposit pursuant to the instructions attached as
Annex I hereto the signature of the undersigned. Subject to the provisions of
Section 4 of the Purchase Agreement, the undersigned hereby authorizes and
directs the Attorneys-in-Fact to pay on behalf of the undersigned all expenses
and taxes incident to the sale and delivery of the Shares that may be sold by
the undersigned to the Underwriters and the undersigned will advance to the
Attorneys-in-Fact or reimburse them in the full amount of any such expenses,
taxes or reimbursements; provided, however, that in connection with the payment
by the undersigned of the New York State stock transfer tax, the
Attorneys-in-Fact will be required to use their best efforts to obtain a rebate
of such tax before seeking reimbursement from the undersigned.
9. Ownership of Stock. Subject to the terms hereof, until payment
of the purchase price for the Shares being sold by the undersigned pursuant to
the Purchase Agreement has been made by or for the account of the Underwriters,
each of the Selling Shareholders shall remain the owner of all of its respective
Shares and shall have the right to vote such Shares and all other shares of
Common Stock, if any, represented by the certificates deposited with the
Custodian hereunder and to receive all dividends and distributions thereon.
However, until such payment in full has been made or until the Purchase
Agreement has been terminated, the undersigned agrees that the undersigned will
not give, sell, pledge, hypothecate, grant any lien on or security interest in,
transfer, deal with or contract with respect to the undersigned's Shares set
forth on Schedule I or any interest therein, except (i) to the Underwriters
pursuant to the Purchase Agreement and (ii) to the Custodian as provided herein.
10. Release. Subject to the provisions of Section 11 hereof, the
undersigned hereby agrees to release and does release the Attorneys-in-Fact and
each of them and the Custodian from any and all liabilities, joint or several,
to which they may become subject insofar as such liabilities (or action in
respect thereof) arise out of or are based upon any action taken or omitted to
be taken, including, but not limited to, not executing the Purchase Agreement or
not proceeding with the Offering for any reason whatsoever, by the
Attorneys-in-Fact or the Custodian pursuant hereto, except for their gross
negligence, willful misconduct or bad faith.
11. Indemnification. (a) Each Selling Shareholder, severally and
not jointly, agrees to indemnify and hold harmless the Company and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act, against any and all loss, liability, claim,
damage and expense as and to the extent described in the indemnity agreement of
such Selling Shareholder contained in subsection (a) of Section 6 of the
Purchase Agreement (except that the references therein to the Underwriters as
indemnified parties shall be to the Company), as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), including the
Rule 430A Information (as defined in the Purchase Agreement), the General
Disclosure Package or any or preliminary prospectuses or the Prospectus or any
amendment or supplement thereto (or any prospectus wrapper) in reliance upon and
in conformity with written information furnished to the Company by such Selling
Shareholder expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information, the General Disclosure Package or
such preliminary prospectuses or Prospectus or any amendment or supplement
thereto (or any prospectus wrapper), it being agreed that such written
information is limited solely to any statements regarding each Selling
Shareholder set forth under the caption "Principal and Selling Shareholders"
(consisting of the name and address, number of shares and related footnotes to
the table contained in such section with respect to such Selling Shareholder);
provided, however, that the liability of such Selling Shareholder under this
indemnity agreement shall not exceed the net proceeds received by such Selling
Shareholder from the sale of his Shares pursuant to the Purchase Agreement.
(b) Each Selling Shareholder, severally and not jointly, agrees to
indemnify and hold harmless the Attorneys-in-Fact, the Custodian or any of them
and each person, if any, who controls the Custodian or within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all
loss, liability, claim, damage and expense for their actions or omissions as
Attorney in Fact or Custodian, as incurred, and will reimburse such
Attorney-in-Fact or Custodian for any and all expense whatsoever (including the
fees and disbursements of up to one counsel chosen by the Attorney-in-Fact or
Custodian, as the case may be), reasonably incurred by such Attorney-in-Fact or
Custodian, as the case may be, in investigating, preparing or defending against
any such litigation, investigation, proceeding or claim as such expenses are
incurred.
(c) The Company agrees to indemnify and hold harmless each Selling
Shareholder against any and all loss, liability, claim, damage and expense as
and to the extent described in the indemnity agreement of the Company contained
in subsection (a) of Section 6 of the Purchase Agreement (except that the
references therein to the Underwriters as indemnified parties shall be to the
Selling Shareholders), as incurred, and will reimburse such Selling Shareholder
for any and all expense whatsoever (including the fees and disbursements of up
to one counsel chosen by the Selling Shareholders), reasonably incurred by such
Selling Shareholder in investigating, preparing or defending against any such
litigation, investigation, proceeding or claim as such expenses are incurred.
(d) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability that it may have otherwise
than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification could be sought under this
Section 11 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(e) Other Provisions. The provisions of this Section 11 will be in
addition to any liability which the Company or any Selling Shareholder may
otherwise have, including, but not limited to, Sections 7 and 8 of the Purchase
Agreement.
12. Termination. This Agreement shall terminate upon the earliest
to occur of (i) the date, if any, on which the Registration Statement is
withdrawn from the Commission, (ii) the date on which the sale of the Shares to
be sold in the Offering is consummated and the proceeds have been distributed to
the Selling Shareholders, whether or not all the Shares owned by the Selling
Shareholders are sold in the Offering and (iii) upon written notice by any
Selling Shareholder to the Attorney-in-Fact and the Custodian, five days after
the date of such notice. Notwithstanding any such termination, the provisions of
Sections 10, 11 and 12 hereof shall survive termination of this Agreement and
remain in full force and effect. Following any termination of this Agreement,
the Attorneys-in-Fact and the Custodian shall have no further responsibilities
or liabilities to the undersigned hereunder except to redeliver to the
undersigned its Shares not sold in the Offering and to deliver to the
undersigned its stock powers described in Section 4 hereof held in custody and
to distribute to the undersigned its portion of the net proceeds of the
Offering, if any.
13. Notices. Any notice required to be given pursuant to this
Agreement shall be deemed given if in writing and delivered in person, or if
given by telephone or telegraph if subsequently confirmed by letter, (i) to Lee
Fensterstock, as Attorney-in-Fact, c/o Broadpoint Gleacher Securities Group,
Inc., 12 East 49th Street, 31st Floor, New York, NY 10017 or Patricia
Arciero-Craig as Attorney-in-Fact, c/o Broadpoint Gleacher Securities Group,
Inc., 12 East 49th Street, 31st Floor, New York, NY 10017 (ii) to Broadpoint
Gleacher Securities Group, Inc., for the Company and Custodian at c/o Broadpoint
Gleacher Securities Group, Inc., 12 East 49th Street, 31st Floor, New York, NY
10017, Attention: Patricia Arciero-Craig, General Counsel and (iii) to the
Selling Shareholders at the addresses set forth in Schedule I attached hereto.
14. Applicable Law. The validity, enforceability, interpretation
and construction of this Agreement shall be determined in accordance with the
substantive laws of the State of New York.
15. Counterparts. This Agreement may be signed in any number of
counterparts, each of which constituting an original but all of which together
constituting one instrument.
--------------------------------
This Irrevocable Power of Attorney and Custody Agreement [is executed
as a Deed and] has been entered into on this 28th day of July, 2009.
SELLING SECURITYHOLDER
Very truly yours,
(Print Name)
By: _____________________________________
Name:
Title:
Address:
Taxpayer I.D. #:
Telephone No.:
(____)
Fax No.:
(____)
Email address:
CUSTODIAN
---------
American Stock Transfer & Trust Company, LLC hereby accepts the
appointment as Custodian pursuant to the foregoing Irrevocable Power of Attorney
and Custody Agreement, and agrees to abide by and act in accordance with the
terms of said Agreement.
Dated: July 28, 2009
AMERICAN STOCK TRANSFER & TRUST
COMPANY, LLC
By:______________________________________
Name:
Title:
(Signatures continued on next page)
ATTORNEYS-IN-FACT
-----------------
Lee Fensterstock hereby accepts the appointment as Attorney-in-Fact
pursuant to the foregoing Irrevocable Power of Attorney and Custody Agreement,
and agrees to abide by and act in accordance with the terms of said Agreement.
Dated: July 28, 2009 _________________________________________
Name:
____________________________________
Patricia Arciero-Craig hereby accepts the appointment as
Attorney-in-Fact pursuant to the foregoing Irrevocable Power of Attorney and
Custody Agreement, and agrees to abide by and act in accordance with the terms
of said Agreement.
Dated: July 28, 2009 _________________________________________
Name:
BROADPOINT GLEACHER SECURITIES GROUP, INC.
------------------------------------------
This Irrevocable Power of Attorney and Custody Agreement has been entered into
on this 28th day of July, 2009.
BROADPOINT GLEACHER SECURITIES GROUP,
INC.
By:______________________________________
Name:
Title:
____________________________________
EXHIBIT I
PURCHASE AGREEMENT
SCHEDULE I
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Name and Address Maximum Number
of Selling Shareholder of Shares
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Mast Credit Opportunities I Master 3,500,000
Fund Limited
c/o Mast Capital Management, LLC
200 Clarendon St.
51st Floor
Boston, MA 12116
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Matlin Patterson FA Acquisition LLC 7,525,000
c/o MatlinPatterson Global
Advisers LLC
520 Madison Ave.
35th Floor
New York, NY 10022
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ANNEX I
INSTRUCTIONS
(For completing the Irrevocable Power of Attorney and Custody Agreement)
A. You have been sent five copies of the Irrevocable Power of Attorney and
Custody Agreement, dated July 28, 2009, by and among the Shareholders
of Broadpoint Gleacher Securities Group, Inc. listed on Schedule I
thereto, American Stock Transfer & Trust Company, LLC as Custodian, Lee
Fensterstock and Patricia Arciero-Craig as Attorneys-in-Fact, and
Broadpoint Gleacher Securities Group, Inc. (the "Agreement").
Capitalized terms used herein but not otherwise defined herein have the
meanings ascribed thereto in the Agreement. Please complete and return
four copies of the Agreement and stock certificate(s) as set forth in
paragraph D below. A fully executed copy of the Agreement will be
returned to you; a fully executed copy of the Agreement and your stock
certificate(s) will be retained by the Custodian; and a fully executed
copy of the Agreement will be delivered to the Attorneys-in-Fact and to
the Representatives.
B. Complete Schedule A and Schedule B attached hereto.
C. Each copy of the Agreement and each stock certificate or stock power
deposited hereunder must be executed by you with your signature on the
Agreement and the stock certificate(s) or the accompanying stock power,
guaranteed as described on the signature page to the Agreement. Please
sign the stock certificate(s) or stock power and the Agreement exactly
as your name appears on your stock certificate(s).
D. Endorsed stock certificate(s) or stock certificate(s) with stock powers
attached along with one executed copy of the completed Agreement should
be promptly returned by hand delivery or by certified mail
appropriately insured to:
American Stock Transfer & Trust Company, LLC
c/o Dewey & LeBeouf
1301 Avenue of the Americas
New York, NY 10019
If sent through the mail, it is recommended that the certificate(s) not
be endorsed, but an executed stock power be sent under separate cover
from the certificate(s).
E. If any certificate that you submit represents a greater number of
Shares than the aggregate number of shares of Shares which you agree to
sell pursuant to the Purchase Agreement, the Custodian will cause to be
delivered to you in due course, but no more than ten days after the
closing for the purchase of Shares by the Underwriters, a certificate
representing the number of Excess Shares.
F. For purposes of discharging your obligations under the Purchase
Agreement, please contact Lee Fensterstock or Patricia Arciero-Craig if
any information or representation included in the foregoing Agreement
or the Purchase Agreement should change, or if you become aware of any
new information, at any time prior to termination of the period
referred to in Section 12 of the Agreement.
G. If a stock power is required, a form is attached hereto as Annex A.
SCHEDULE A TO INSTRUCTIONS
MATLIN PATTERSON FA ACQUISITION LLC
(Name of Selling Shareholder)
Certificate(s) for Shares of Common Stock of
Broadpoint Gleacher Securities Group, Inc.
Deposited under the Agreement
------------------ ------------------------------ ------------------------------
Number of Shares Number of Shares From
Certificate Number Represented by Certificate* This Certificate to Be Sold**
------------------ ------------------------------ ------------------------------
FA 11189 37,909,383 6,000,000
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------------------ ------------------------------ ------------------------------
------------------ ------------------------------ ------------------------------
Total:
------------------ ------------------------------ ------------------------------
* If adjustmnts are necessary because of a stock split that is not reflected
in the relevant certificates, please add an explanatory note below.
** If fewer than all Shares represented by a certificate are to be sold,
indicate below, if desired for income tax purposes, the date of purchase or
purchase price of the particular Shares to be sold. If no indication is
made as to the certificates from which Shares to be sold shall be
allocated, the selection will be made at the Custodian's discretion.
Date of purchase will be August 3, 2009 and the purchase price will be $5.9063
per share.
DO NOT DETACH THIS PAGE FROM AGREEMENT.
SCHEDULE B TO INSTRUCTIONS
Manner of Payment
INSTRUCTION: Indicate how you wish to receive payment for the Shares sold
pursuant to the Purchase Agreement. Please note that if you are selling Shares
held by a corporation, partnership or other entity or in the name of a trust,
payment will be made only to the corporation, partnership or other entity or
trust. A wire transfer can be made only to an account standing in exactly the
same name as the person, trust, corporation, partnership or other entity holding
the Shares being sold.
The undersigned requests that payment of the net proceeds from the sale of the
Shares by the undersigned pursuant to the Purchase Agreement be made in the
following manner (CHECK ONE):
[ ] CHECK made payable to:
_______________________________________________________________________
(Name)
to be sent to the following address:
phone: (___)
Please send by (check one):
[___] First Class Mail
[___] Federal Express
Federal Express Account Number:
[ ] WIRE TRANSFER to the following account:
Account No.:
ABA No.:
Bank:
Swift Code:
(Name):
(Address):
Name and Telephone No. of Contact
at Bank:
DO NOT DETACH THIS PAGE FROM AGREEMENT.
ANNEX A TO INSTRUCTIONS
STOCK POWER
-----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
___________________________________ __________________________________________
(Insert Social Security or Identifying
No. of Assignee)
(____________________) shares of Common Stock of Broadpoint Gleacher Securities
Group, Inc., a New York corporation, standing in the name of the undersigned on
the books of said Company represented by Certificate No(s). ___________________,
hereby irrevocably constituting and appointing _________________________________
attorney to transfer said shares on the books of said Company with full power of
substitution in the premises.
Dated __________, _____.
Signature(s) guaranteed by:*
(Print Name)**
By _______________________________ By: _____________________________________
Name: Name:***
Title: Title:
* The signature(s) must be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee "medallion" program),
pursuant to Rule 17Ad-15 under the Exchange Act.
** To be signed in exactly the same manner as the name(s) appearing on the
certificate(s) deposited herewith.
*** Trustees, officers, fiduciaries and other agents signing on behalf of the
Selling Shareholder should print their name, title and, if applicable, the
capacity in which they are acting underneath their signature.