Commitments and Contingencies | 3 Months Ended |
Mar. 31, 2014 |
Commitments and Contingencies | ' |
Commitments and Contingencies | ' |
11. Commitments and Contingencies |
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Litigations and Arbitrations |
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Arbitration — Thomas J. Hughes (former Chief Executive Officer) and John Griff (former Chief Operating Officer) |
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In August 2012, the Company adopted the Senior Management Compensation and Retention Plan (“Retention Plan”) and entered into related agreements with Thomas J. Hughes, our former Chief Executive Officer, and John Griff, our former Chief Operating Officer. Under the Retention Plan, termination of employment under certain circumstances in connection with the occurrence of a Change in Control, as defined by the Retention Plan, could trigger payments to the covered executive officers. In general, a cash payment would be required following an involuntary termination of employment by the Company (or a resignation by the covered executive officer for good reason, as defined) within six months before or two years after a Change in Control. |
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Effective May 24, 2013, the employment of each of Thomas J. Hughes and John Griff was terminated by the Company. Messrs. Hughes and Griff each participated in the Retention Plan and had entered into a related retention plan agreement with the Company. To the extent a Change in Control had occurred by November 24, 2013 (six months after the applicable dates of termination), cash payments totaling approximately $7.0 million (and other incidental benefits) would have become payable to these former employees (subject to satisfaction by the former employees of certain conditions). |
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Subsequent to the Company’s termination of these former officers, Messrs. Hughes and Griff made a demand to the Company for benefits under the Retention Plan and their related agreements, and following the Company’s rejection of their demand, commenced an arbitration proceeding on September 17, 2013 before the Financial Industry Regulatory Authority (“FINRA”) seeking money damages in an approximate amount of $7.9 million, vesting of unvested equity awards and other relief, all of which they claim are due as a result of their respective terminations. Messrs. Hughes and Griff also seek reimbursement for their legal fees, which could be significant, incurred in connection with bringing this action against the Company. The Company has determined that no severance payments or other benefits based upon a “Change in Control” (as defined in the applicable agreements) are due to these former officers inasmuch as the Company has concluded that no “Change in Control” has occurred. We believe that these individuals’ claims that a Change in Control has occurred are without merit. A FINRA hearing of the matter is currently expected to occur in the summer of 2014. The Company has incurred, and may continue to incur, substantial expenses, including legal fees in connection with this matter. In addition, there can be no assurance that the Company will not incur losses in connection with this matter that are material to the Company’s financial statements. |
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Pursuant to his employment agreement, in the absence of a “Change in Control,” Mr. Hughes would have been entitled to a severance payment of $750,000 (not accrued at March 31, 2014), and pursuant to his Restricted Stock Award Agreement, Mr. Griff would have been entitled to vesting of 20,833 unvested shares of restricted stock, subject in each case to the execution and delivery within a specified time period (and non-revocation) of a release of claims against the Company and continued compliance with certain restrictive covenants. These conditions were not satisfied. |
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No amounts in respect of Messrs. Hughes’ and Griff’s claims have been accrued as of March 31, 2014, and we consider all unvested equity awards previously held by them to have been forfeited. |
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Contingent Gains |
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The Company has made claims against certain third parties for monetary damages. Recoveries, if any, made as a result of these claims could be material, although there can be no assurance that the Company will prevail in its claims or that any recoveries will be made. The Company would not recognize any such recoveries unless and until realized. In pursuing these claims, the Company has incurred, and may continue to incur, substantial expenses, including legal fees. |
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General |
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Due to the nature of the Company’s prior business activities and ongoing operations, the Company and its subsidiaries have been exposed to risks associated with a variety of legal proceedings and claims. These include litigations, arbitrations and other proceedings initiated by private parties and arising from underwriting, financial advisory, securities trading or other transactional activities, client account activities, mortgage lending and employment matters, and stockholder claims. Third parties who assert claims may do so for monetary damages that are substantial, particularly relative to the Company’s financial position. These proceedings and claims typically involve legal costs which could be significant, incurred by the Company defending against these matters. The Company has been in the past, and currently is, subject to a variety of claims and litigations arising from its former business activities and its ongoing operations. |
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As a result of their prior business activities and ongoing operations, the Company and its subsidiaries are also subject to both routine and unscheduled regulatory examinations of their prior business activities and investigations of securities industry practices by governmental agencies and self-regulatory organizations. In recent years, securities and mortgage lending firms have been subject to increased scrutiny and regulatory enforcement activity. Regulatory investigations can result in substantial fines being imposed on the Company and/or its subsidiaries. As a result of prior business activities, the Company and its subsidiaries have received, and may in the future receive, inquiries and subpoenas from the SEC, FINRA, state regulators and other regulatory organizations. The Company does not always know the purpose behind these communications or the status or target of any related investigation. Some of these communications have, in the past, resulted in disciplinary actions which have sometimes included monetary sanctions and citations for regulatory deficiencies. To date, none of these communications have had a material adverse effect on the Company nor does the Company believe that any pending communications are likely to have such an effect. Nevertheless, there can be no assurance that any pending or future communications will not have a material adverse effect on the Company. In addition, the Company is at risk for employment-based claims alleging discrimination, harassment, wrongful discharge or breach of an employment agreement or other contractual arrangement, among other things. Employees could seek recoupment of compensation claimed to be owed (whether for cash or forfeited equity awards), severance payments, vesting of equity awards and other damages. These claims could involve significant amounts. |
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The Company recognizes a liability in its financial statements with respect to legal proceedings or claims when incurrence of a loss is probable and the amount of loss is reasonably estimable. However, accurately predicting the timing and outcome of legal proceedings and claims, including the amounts of any settlements, judgments or fines, is inherently difficult insofar as it depends on obtaining all of the relevant facts (which is sometimes not feasible) and applying to them often-complex legal principles. It is reasonably possible that the Company incurs losses pertaining to these matters in the form of settlements and/or adverse judgments and incurs legal and other expenses in defending against these matters. In either case, losses and/or expenses could be different in character or amount than anticipated by management when preparing the accompanying financial statements. Based on currently available information, other than with respect to associated legal fees, the Company does not believe that any current litigation, proceeding, claim or other matter to which it is a party or otherwise involved will have a material adverse effect on its financial statements. However, there can be no assurance that the Company will not incur losses in connection with these matters that are material to the Company’s financial statements. |
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Employment Agreements — Company’s General Counsel and Secretary and its Controller |
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On October 18, 2013, the Company entered into key employee retention agreements (each an “Employment Agreement”) with each of its General Counsel and Secretary and its Controller. These Employment Agreements supersede all prior agreements relating to matters covered in the Employment Agreements, including each of these executive’s participation agreements under the Retention Plan. |
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The Employment Agreements cover the period beginning on January 1, 2013 and ending on November 30, 2014 and provide for guaranteed bonus compensation in the aggregate of $3,550,000 (and other incidental benefits) to these executives, subject to continuing employment and payable in accordance with a fixed schedule, which may be accelerated in certain circumstances. During the three months ended March 31, 2014, the Company recognized compensation expense of approximately $0.5 million in connection with these Employment Agreements. A liability of approximately $1.4 million and $0.9 million at March 31, 2014 and December 31, 2013, respectively (which has been reduced by approximately $1.0 million of payments to date), is included within Accrued compensation within the Consolidated Statements of Financial Condition. |
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Other Compensation Matters |
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As a result of the Company’s restructuring in the second quarter of 2013, the Company entered into agreements with the majority of its remaining employees (excluding the Company’s General Counsel and its Controller, discussed above) designed to retain these employees through specified dates. The agreements provide payment of guaranteed bonus compensation contingent upon continued service through such specified dates. These bonus obligations totaled approximately $0.9 million in the aggregate (of which approximately $0.8 million has been paid). The Company’s liability accrued at March 31, 2014 and December 31, 2013 is less than $0.1 million as substantially all compensation recognized to date has been paid. |
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During the three months ended March 31, 2014, the Company recognized compensation expense of $0.1 million related to these agreements. |
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Guarantees and Other Indemnifications Relating to Certain Contractual Obligations of ClearPoint |
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On February 14, 2013, the Company and certain of its affiliates, including ClearPoint, entered into an Asset Purchase Agreement (“Purchase Agreement”) in connection with the Homeward Transaction. The Purchase Agreement, among other things, provides for customary indemnification provisions. Pursuant to these provisions, ClearPoint established an escrow account of $5.0 million and is required to maintain such account until February 22, 2016 (the third anniversary of the closing date). The Parent has also provided for a guaranty of ClearPoint’s indemnification obligations to Homeward, up to a maximum of $7.5 million, of which $5.0 million is payable by the Parent under the guaranty only in limited circumstances in which, during the three-year period following the closing date, the sums held in the escrow account are not available to satisfy indemnification claims. Any amounts paid under the guaranty will be released to the Company from the escrow account on a dollar-for-dollar basis (assuming funds are available). Indemnity claims of Homeward, if any, will be paid first from the escrow account, and then, to the extent necessary, drawn upon the guaranty. |
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Outstanding claims which are expected to be paid from the escrow account in satisfaction of certain claims made by Homeward include (i) losses incurred during the year ended December 31, 2013, in connection with two loan repurchase requests (currently estimated to be less than $0.1 million and not yet paid) and (ii) reimbursements of premiums received in connection with certain loans that refinanced within 180 days following the date of purchase by Homeward during the year ended December 31, 2013 (approximately $0.1 million and not yet paid). No additional obligations were incurred by ClearPoint during the three months ended March 31, 2014. |
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ClearPoint Loan Repurchases |
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In addition to the indemnification provisions related to the Homeward Transaction, in the ordinary course of business, ClearPoint also indemnified its other counterparties, against potential losses incurred by such parties including under its warehouse line agreements and loan sale agreements related to originated mortgage loans since inception (June 2008). Subsequent to the Homeward Transaction, ClearPoint paid approximately $0.1 million during the year ended December 31, 2013 in satisfaction of its indemnification obligations under loan sale agreements related to losses incurred in connection with two repurchase requests from counterparties other than Homeward. No such obligations were incurred by ClearPoint during the three months ended March 31, 2014. |
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ClearPoint maintains a reserve for the previously discussed loan repurchase and indemnification claims. At March 31, 2014 and December 31, 2013 this reserve was approximately $0.4 million and $0.4 million, respectively, and is included within Payable to others in the Consolidated Statements of Financial Condition. |
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Leases |
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The Company currently operates from three office locations within approximately 6,000 square feet of space. In addition, the Company has remaining lease commitments for office space no longer in use, which was abandoned in connection with the Company’s previously disclosed restructurings. Future minimum annual lease payments for the Company’s remaining lease commitments, and sublease rental income as of March 31, 2014, are disclosed within the table below. These leases expire at various times through 2015. |
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(In thousands of dollars) | | Future | | Sublease Rental | | Net Lease | |
Minimum | Income | Payments |
Lease | | |
Payments | | |
2014 (remaining) | | $ | 1,026 | | $ | 730 | | $ | 296 | |
2015 | | 712 | | 530 | | 182 | |
Total | | $ | 1,738 | | $ | 1,260 | | $ | 478 | |
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One of the Company’s three office locations is space currently being sublet from Capstone. This arrangement commenced on November 15, 2013 and currently provides for monthly base rental payments of approximately $7,600, based upon the Company’s current space needs. This arrangement provides the Company with flexibility and at a cost that is below other market comparable alternatives. This sublease was evaluated by the Company’s Audit Committee and approved on October 10, 2013, since this is a related-party transaction. The sublease continues on a month-to-month basis and provides the Company with the ability to reduce its occupied space upon not less than 30 days notice to Capstone (and as a result, is not included within the table above). Any such reduction would reduce the monthly base rental payments based upon pre-determined rates. |
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The Company recognizes rent expense over the entire lease term on a straight-line basis. To the extent the Company is provided tenant improvement allowances funded by the lessor, they are amortized over the initial lease period and serve to reduce rent expense. Rental expense from continuing operations, net of sublease rental income, for the three months ended March 31, 2014 and March 31, 2013 was approximately $65,000 and $141,000, respectively. |
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Other |
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In the normal course of its prior business activities, the Company provided guarantees to third parties with respect to the obligations of certain of its subsidiaries. The majority of these arrangements, discussed below, are connected to the sales and trading activities of the Company’s prior MBS & Rates and Credit Products divisions, the activities of which were discontinued in the second quarter of 2013. |
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In the normal course of business, Gleacher Securities indemnified certain service providers, such as clearing and custody agents, trustees, and administrators, against specified potential losses in connection with their acting as an agent of, or providing services to, the Company or its affiliates. Gleacher Securities also indemnified some clients against potential losses incurred in the event of non-performance by specified third-party service providers, including sub-custodians. The maximum potential amount of future payments that Gleacher Securities could be required to make under these indemnifications cannot be estimated. However, Gleacher Securities has historically made no material payments under these arrangements and believes that it is unlikely it will have to make material payments in the future. Therefore, the Company has not recorded any contingent liability in the consolidated financial statements for these indemnifications. |
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The Company provided representations and warranties to counterparties in connection with a variety of transactions and occasionally agreed to indemnify them against potential losses caused by the breach of those representations and warranties and occasionally other liabilities. The maximum potential amount of future payments that the Company could be required to make under these indemnifications cannot be estimated. However, the Company has historically made no material payments under these agreements and believes that it is unlikely it will have to make material payments in the future; therefore it has not recorded any contingent liability in the consolidated financial statements for these indemnifications. |