Exhibit 4.4


 


LPL Investment Holdings Inc.


ADVISOR INCENTIVE PLAN


 


1.             DEFINED TERMS


 


Exhibit A, which is incorporated by reference, defines the terms
used in the Plan and sets forth certain operational rules related to those
terms.


 


2.             PURPOSE


 


The Plan has been established to advance the interests of the Company
by providing for the grant to Participants of Awards.


 


3.             ADMINISTRATION


 


The Administrator has discretionary authority, subject
only to the express provisions of the Plan, to interpret the Plan; determine
eligibility for and grant Awards; determine, modify or waive the terms and
conditions of any Award; prescribe forms, rules and procedures; and
otherwise do all things necessary to carry out the purposes of the Plan.  Determinations of the Administrator made
under the Plan will be conclusive and will bind all parties.


 


4.             LIMITS ON AWARDS UNDER THE PLAN


 


(a)           Number
of Shares.  At the Effective
Date, the maximum number of shares of Stock that may be delivered in
satisfaction of Awards under the Plan, taking into account the Stock Options
issued under the 2008 Stock Option Plan (the “Employee Plan”) and any Warrants
issued under the 2008 Financial Institution Incentive Plan (the “Financial
Institution Plan”), shall be two (2%) of the Stock (determined at such date on
a fully diluted basis).  On the first
anniversary of the Effective Date, such maximum number of shares of Stock
available to be delivered in satisfaction of Awards under the Plan, taking into
account the Stock Options issued under the Employee Plan and any Warrants
issued under the Financial Institution Plan, shall be increased by an
additional two (2%) percent of the Stock (determined at such date on a fully
diluted basis).  On each of the second
and third anniversaries of the Effective Date, the maximum number of Shares
available to be delivered in satisfaction of Awards under the Plan, taking into
account the Stock Options issued under the Employee Plan and the Warrants
issued under the Financial Institution Plan, shall be increased by an additional
two and one-half (2-1/2%) percent of the Stock, (determined on each such date
on a fully diluted basis).  Shares of
Stock that are subject to Awards that have been terminated, cancelled or
forfeited upon termination of Service under Section 6(a)(4) without
becoming exercisable shall be available again for future grant under the
Plan.  The number of shares of Stock
delivered in satisfaction of Awards shall, for purposes of the preceding
sentence, be determined net of shares of Stock withheld by the Company in
payment of the exercise price of the Award or in satisfaction of tax
withholding requirements with respect to the Award.  Stock issued under awards of an acquired
company that are converted, replaced or adjusted in connection with the
acquisition shall not reduce the 


 

















 


number of shares available for Awards under the Plan.  No Awards shall be granted under the Plan
following an IPO.


 


(b)           Type of Shares.  Stock delivered by the Company under the Plan
may be authorized but unissued Stock or previously issued Stock acquired by the
Company.  No fractional shares of Stock
will be delivered under the Plan.


 


5.             ELIGIBILITY AND
PARTICIPATION


 


The Administrator will select
Participants from among those persons who are advisors or registered
representatives of the Company or its Affiliates, or provide key services, who,
in the opinion of the Administrator, are in a position to make a significant
contribution to the success of the Company and its Affiliates.


 


6.             RULES APPLICABLE TO
AWARDS


 


(a)           All Awards


 


(1)  Provisions.  The Administrator will determine the terms of
all Awards, subject to the limitations provided herein.  By accepting (or, under such rules as
the Administrator may prescribe, being deemed to have accepted) an Award, the
Participant agrees to the terms of the Award and the Plan.  Notwithstanding any provision of this Plan to
the contrary, awards of an acquired company that are converted, replaced or
adjusted in connection with the acquisition may contain terms and conditions
that are inconsistent with the terms and conditions specified herein, as
determined by the Administrator.


 


(2)  Term of Plan.  No Awards may be made after January 1,
2018, but previously granted Awards may continue beyond that date in accordance
with their terms.


 


(3)  Transferability.  Awards, except as the Administrator otherwise
expressly provides in accordance with the second sentence of this Section 6(a)(3),
may be transferred only by will or by the laws of descent and distribution, and
during a Participant’s lifetime, except as the Administrator otherwise
expressly provides in accordance with the second sentence of this Section 6(a)(3),
may be exercised only by the Participant. 
The Administrator may permit Awards to be transferred by gift, subject
to such limitations as the Administrator may impose.


 


(4)  Vesting, Etc.   The Administrator may determine the time or
times at which an Award will vest or become exercisable and the terms on which
an Award will remain exercisable. 
Without limiting the foregoing, the Administrator may at any time
accelerate the vesting or exercisability of an Award, regardless of any adverse
or potentially adverse tax consequences resulting from such acceleration.  Unless the Administrator expressly provides
otherwise, however, the following rules will apply: immediately upon the
termination of the Participant’s Service, each Award that is then held by the
Participant or by the Participant’s permitted transferees, if any, will cease
to be exercisable and will terminate, except that:


 


(A)  subject to (B), (C), and (D) below, all Awards held by
the Participant or the Participant’s permitted transferees, if any, immediately
prior to the termination of the 


 


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Participant’s
Service, to the extent then exercisable, will remain exercisable for the lesser
of (i) a period of 90 days or (ii) the period ending on the latest date on
which such Award could have been exercised without regard to this Section 6(a)(4),
and will thereupon terminate;


 


(B)  all Stock
Options held by a Participant or the Participant’s permitted transferees, if
any, immediately prior to the Participant’s death or total and permanent
disability (as determined by the Administrator in its sole discretion), to the
extent then exercisable, will remain exercisable for the lesser of (i) the
one-year period ending with the first anniversary of the Participant’s death or
the date on which the Participant becomes so disabled or (ii) the period
ending on the latest date on which such Award could have been exercised without
regard to this Section 6(a)(4), and will thereupon terminate


 


(C)  all Stock Options held by a Participant or
the Participant’s permitted transferees, if any, immediately prior to the
termination of the Participant’s Service by reason of Retirement, to the extent
then vested and exercisable, will remain exercisable for the shorter of (i) the
two-year period ending with the second anniversary of the Participant’s
Retirement or (ii) the period ending on the Final Exercise Date, and will
thereupon terminate; provided that all Stock Options will terminate immediately
in the even the Board determines that the Participant is no longer Retired and
is conducting broker-dealer or investment advisory activities for any fee,
commission, or other consideration without the Company’s consent; and


 


(D)  all Awards held
by a Participant or the Participant’s permitted transferees, if any,
immediately prior to the termination of the Participant’s Service will
immediately terminate upon such termination if the Administrator in its sole
discretion determines that such termination of Service is for Cause or that the
Participant is not in compliance with any non-competition or non-solicitation
or non-disclosure agreement with the Company.


 


(5)  Taxes.  The Administrator will make such provision
for the withholding and payment of taxes as it deems necessary.  Such taxes shall be remitted to the Company
by cash or check acceptable to the Administrator or by other means acceptable
to the Administrator.


 


(6)  Dividend
Equivalents, Etc. 
The Administrator may in its sole discretion provide for the payment of
amounts in lieu of cash dividends or other cash distributions with respect to
Stock subject to an Award.  Any payment
of dividend equivalents or similar payments shall be established and
administered consistent either with exemption from, or compliance with, the
requirements of Section 409A.


 


(7)  Rights Limited.  Nothing in the Plan will be construed as
giving any person the right to continued employment or service with the Company
or its Affiliates, or any rights as a stockholder except as to shares of Stock
actually issued under the Plan.  The loss
of existing or potential profit in Awards will not constitute an element of
damages in the event of termination of Service for any reason, even if the
termination is in violation of an obligation of the Company or any Affiliate to
the Participant.


 


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(8)  Coordination with
Other Plans.  Award
under the Plan may be granted in tandem with, or in satisfaction of or
substitution for, other awards made under other compensatory plans or programs
of the Company or its Affiliates.  For
example, but without limiting the generality of the foregoing, awards under
other compensatory plans or programs of the Company or its Affiliates may be
settled in Stock if the Administrator so determines, in which case the shares
delivered shall be treated as awarded under the Plan (and shall reduce the
number of shares thereafter available under the Plan in accordance with the rules set
forth in Section 4).


 


(9) 
Section 409A. 
Each Award shall contain such terms as the Administrator determines, and
shall be construed and administered, such that the Award either (i) qualifies
for an exemption from the requirements of Section 409A to the extent
applicable, or (ii) satisfies such requirements.


 


(10)  Certain
Requirements of Corporate Law.  Awards shall be granted and administered
consistent with the requirements of applicable Delaware law relating to the
issuance of stock and the consideration to be received therefor, and with the
applicable requirements of the stock exchanges or other trading systems on
which the Stock is listed or entered for trading, in each case as determined by
the Administrator.


 


(11)  Stockholders Agreement.  Unless otherwise specifically provided, all Awards issued
under the Plan and all Stock issued thereunder will be subject to the
Stockholders Agreement.


 


(b)           Award
Exercise.


 


(1)  Time And Manner Of
Exercise.  Unless the
Administrator expressly provides otherwise, an Award will not be deemed to
have been exercised until the Administrator receives a notice of exercise (in
form acceptable to the Administrator) signed by the appropriate person and
accompanied by any payment required under the Award.  If the Award is exercised by any person other
than the Participant, the Administrator may require satisfactory evidence that
the person exercising the Award has the right to do so.


 


(2)  Exercise Price.  The exercise price of each Award requiring
exercise shall be 100% of the Fair Market Value of the Stock subject to the
Award, determined as of the date of grant, or such other amount as the
Administrator may determine in connection with the grant.


 


(3)  Payment Of Exercise
Price.  Where the
exercise of an Award is to be accompanied by payment, payment of the exercise
price shall be by cash or check acceptable to the Administrator, or, if so
permitted by the Administrator and if legally permissible, (i) through the
delivery of shares of Stock that have been outstanding for at least six months
(unless the Administrator approves a shorter period) and that have a Fair
Market Value equal to the exercise price, (ii) through the withholding of
shares of Stock otherwise to be delivered upon exercise of the Award whose Fair
Market Value is equal to the aggregate exercise price of the Award being
exercised, (iii) by other means acceptable to the Administrator, or (iv) by
any combination of the foregoing permissible forms of payment.  The delivery of shares in payment of the
exercise price 


 


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under clause (i) above may be accomplished either by actual
delivery or by constructive delivery through attestation of ownership, subject
to such rules as the Administrator may prescribe.


 


(4)  Maximum Term.  Awards will have a maximum term not to exceed
ten (10) years from the date of grant.


 


7.             EFFECT OF CERTAIN
TRANSACTIONS


 


(a)           Mergers, etc.  Except
as otherwise provided in an Award, the following provisions shall apply in the
event of a Change in Control:


 


(1)   Assumption or Substitution.  If the Change in Control is one in which
there is an acquiring or surviving entity, the Administrator may provide for
the assumption of some or all outstanding Awards or for the grant of new stock
options in substitution therefor by the acquiror or survivor or an affiliate of
the acquiror or survivor.


 


(2)   Cash-Out of Awards.  If the Change in Control is one in which
holders of Stock will receive upon consummation a payment (whether cash,
non-cash or a combination of the foregoing), the Administrator may provide for
payment (a “cash-out”), with respect to some or all Awards or any portion
thereof, equal in the case of each affected Award or portion thereof to the excess,
if any, of (A) the Fair Market Value of one share of Stock times the
number of shares of Stock subject to the Award or such portion, over (B) the
aggregate exercise or purchase price, if any, under the Award or such portion,
in each case on such payment terms (which need not be the same as the terms of
payment to holders of Stock) and other terms, and subject to such conditions,
as the Administrator determines; provided, that
the Administrator shall not exercise its discretion under this Section 7(a)(2) with
respect to an Award or portion thereof providing for “nonqualified deferred
compensation” subject to Section 409A in a manner that would constitute an
extension or acceleration of, or other change in, payment terms if such change
would be inconsistent with the applicable requirements of Section 409A.


 


(3) 
Acceleration of Certain Awards.  If the Change in Control (whether or not
there is an acquiring or surviving entity) is one in which there is no
assumption, substitution or cash-out, each Award will become fully exercisable
and such shares will be delivered, prior to the Change in Control, in each case
on a basis that gives the holder of the Award a reasonable opportunity, as
determined by the Administrator, following exercise of the Award or the delivery
of the shares, as the case may be, to participate as a stockholder in the
Change in Control; provided, that
to the extent acceleration pursuant to this Section 7(a)(3) of an
Award subject to Section 409A would cause the Award to fail to satisfy the
requirements of Section 409A, the Award shall not be accelerated and the
Administrator in lieu thereof shall take such steps as are necessary to ensure
that payment of the Award is made in a medium other than Stock and on terms
that as nearly as possible, but taking into account adjustments required or
permitted by this Section 7, replicate the prior terms of the Award.


 


(4)  Termination of Awards Upon
Consummation of Change in Control.  Each Award will terminate upon consummation
of the Change in Control, other than the following:  (i) Awards assumed pursuant to Section 7(a)(1) above;
and (ii) Awards converted pursuant to the proviso in Section 7(a)(3) above
into an ongoing right to receive payment other than Stock.


 


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(b)           Changes in and
Distributions With Respect to Stock


 


(1) 
Basic Adjustment Provisions.  In the event of a stock dividend, stock split
or combination of shares (including a reverse stock split), recapitalization or
other change in the Company’s capital structure, the Administrator shall make
appropriate adjustments to the maximum number of shares specified in Section 4(a) that
may be delivered under the Plan and will also make appropriate adjustments to
the number and kind of shares of stock or securities subject to Awards then
outstanding or subsequently granted, any exercise prices relating to Awards and
any other provision of Awards affected by such change.


 


(2) 
Certain Other Adjustments.  The Administrator may also make adjustments
of the type described in Section 7(b)(1) above to take into account
distributions to stockholders other than those provided for in Section 7(a) and
7(b)(1), or any other event, if the Administrator determines that adjustments
are appropriate to avoid distortion in the operation of the Plan and to
preserve the value of Awards made hereunder, having due regard for the
requirements of Section 409A, where applicable.


 


(3) 
Continuing Application of Plan Terms.  References in the Plan to shares of Stock
will be construed to include any stock or securities resulting from an
adjustment pursuant to this Section 7.


 


8.             LEGAL CONDITIONS ON
DELIVERY OF STOCK


 


The Company will use
reasonable best efforts to satisfy applicable legal requirements for the
issuance of shares of Stock pursuant to the exercise of any Award.  The Company will not be obligated to deliver
any shares of Stock pursuant to the Plan or to remove any restriction from
shares of Stock previously delivered under the Plan until: (i) the Company
is satisfied that all legal matters in connection with the issuance and
delivery of such shares have been addressed and resolved; (ii) if the
outstanding Stock is at the time of delivery listed on any stock exchange or
national market system, the shares to be delivered have been listed or
authorized to be listed on such exchange or system upon official notice of
issuance; and (iii) all conditions of the Award have been satisfied or
waived.  If the sale of Stock has not
been registered under the Securities Act of 1933, as amended, the Company may
require, as a condition to exercise of the Award, such representations or
agreements as counsel for the Company may consider appropriate to avoid
violation of such Act.  The Company may
require that certificates evidencing Stock issued under the Plan bear an
appropriate legend reflecting any restriction on transfer applicable to such
Stock, and the Company may hold the certificates pending lapse of the
applicable restrictions.


 


9.             AMENDMENT AND
TERMINATION


 


The Administrator may at
any time or times amend the Plan or any outstanding Award for any purpose which
may at the time be permitted by law, and may at any time terminate the Plan as
to any future grants of Awards; provided, that
except as otherwise expressly provided in the Plan the Administrator may not,
without the Participant’s consent, alter the terms of an Award so as to affect
materially and adversely the Participant’s rights under the Award, unless 


 


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the Administrator expressly
reserved the right to do so at the time of the Award.  Any amendments to the Plan shall be
conditioned upon stockholder approval only to the extent, if any, such approval
is required by law (including the Code), as determined by the Administrator.


 


10.          OTHER COMPENSATION
ARRANGEMENTS


 


The
existence of the Plan or the grant of any Award will not in any way affect the
Company’s right to award a person bonuses or other compensation in addition to
Awards under the Plan.


 


11.          MISCELLANEOUS


 


(a)           Waiver of Jury Trial.  By accepting an Award under the Plan, each
Participant waives any right to a trial by jury in any action, proceeding or
counterclaim concerning any rights under the Plan and any Award, or under any
amendment, waiver, consent, instrument, document or other agreement delivered
or which in the future may be delivered in connection therewith, and agrees
that any such action, proceedings or counterclaim shall be tried before a court
and not before a jury.  By accepting an
Award under the Plan, each Participant certifies that no officer,
representative, or attorney of the Company has represented, expressly or
otherwise, that the Company would not, in the event of any action, proceeding
or counterclaim, seek to enforce the foregoing waivers.


 


(b)           Limitation of
Liability.  Notwithstanding
anything to the contrary in the Plan, neither the Company, nor any Affiliate,
nor the Administrator, nor any person acting on behalf of the Company, any
Affiliate, or the Administrator, shall be liable to any Participant or to the
estate or beneficiary of any Participant or to any other holder of an Award by
reason of any acceleration of income, or any additional tax, asserted by reason
of the failure of an Award to satisfy the requirements of Section 409A or
by reason of Section 4999 of the Code.


 


12.          ESTABLISHMENT OF SUB-PLANS


 


The Board may from time
to time establish one or more sub-plans under the Plan for purposes of
satisfying applicable blue sky, securities or tax laws of various
jurisdictions.  The Board shall establish
such sub-plans by adopting supplements to the Plan setting forth (i) such
limitations on the Administrator’s discretion under the Plan as the Board deems
necessary or desirable and (ii) such additional terms and conditions not
otherwise inconsistent with the Plan as the Board shall deem necessary or
desirable.  All supplements adopted by
the Board shall be deemed to be part of the Plan, but each supplement shall
apply only to Participants within the affected jurisdiction and the Company
shall not be required to provide copies of any supplement to Participants in
any jurisdiction that is not affected.


 


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EXHIBIT A


Definition of Terms


 


The following terms, when used in the Plan, will have the meanings and be
subject to the provisions set forth below:


 


“Administrator”:  The Board, except that the Board may delegate
its authority under the Plan to a committee of the Board, in which case
references herein to the Board shall refer to such committee.  The Board may delegate (i) to one or
more of its members such of its duties, powers and responsibilities as it may
determine; and (ii) to such Employees or other persons as it determines
such ministerial tasks as it deems appropriate. 
In the event of any delegation described in the preceding sentence, the
term “Administrator” shall include the person or persons so delegated to the
extent of such delegation.


 


“Affiliate”:  Any corporation or other entity that stands
in a relationship to the Company that would result in the Company and such
corporation or other entity being treated as one employer under Section 414(b) and
Section 414(c) of the Code, except that in determining eligibility
for the grant of an Award by reason of service for an Affiliate, Sections 414(b) and
414(c) of the Code shall be applied by substituting “at least 50%” for “at
least 80%” under Section 1563(a)(1), (2) and (3) of the Code and
Treas. Regs. 

§ 1.414(c)-2; provided, that
to the extent permitted under Section 409A, “at least 20%” shall be used
in lieu of “at least 50%”; and further provided,
that the lower ownership threshold described in this definition (50% or 20% as
the case may be) shall apply only if the same definition of affiliation is used
consistently with respect to all compensatory stock options or stock awards
(whether under the Plan or another plan). The Company may at any time by
amendment provide that different ownership thresholds (consistent with Section 409A)
apply but any such change shall not be effective for twelve (12) months.


 


“Award”:  Stock Option.


 


“Board”:  The Board of Directors of the Company.


 


“Cause”:  In the case of any
Participant, unless otherwise set forth in a Participant’s Award or service
agreement, a termination of service for cause as determined by the Administrator
after consultation with the principal compliance officer.


 


“Code”:  The U.S. Internal Revenue Code of 1986 as
from time to time amended and in effect, or any successor statute as from time
to time in effect.


 


“Company”:  LPL Investment Holdings Inc.


 


“Change in Control”:  The consummation of (i) any consolidation or merger of the Company
with or into any other Person, or any other corporate reorganization,
transaction or transfer of securities of the Company by its stockholders, or
series of related transactions (including the acquisition of capital stock of
the Company), whether or not the Company is a party thereto, in which the
stockholders of the Company immediately prior to such consolidation, merger,
reorganization or transaction, own, directly or indirectly, capital stock
either (A) 


 


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representing directly or indirectly through one
or more entities, less than fifty percent (50%) of the equity economic
interests in or voting power of the Company or other surviving entity
immediately after such consolidation, merger, reorganization or transaction or (B) that
does not directly, or indirectly through one or more entities, have the power
to elect a majority of the entire board of directors or other similar governing
body of the Company or other surviving entity immediately after such
consolidation, merger, reorganization or transaction, (ii) any transaction
or series of related transactions, whether or not the Company is party thereto,
after giving effect to which in excess of fifty percent (50%) of the Company’s
voting power is owned directly, or indirectly through one or more entities, by
any person and its “affiliates” or “associates” (as such terms are defined in
the Exchange Act Rules) or any “group” (as defined in the Exchange Act Rules)
other than, in each case, the Company or an affiliate of the Company
immediately following the Closing, or (iii) a sale or other disposition of
all or substantially all of the consolidated assets of the Company (each of the
foregoing, a “Business Combination”), provided that, notwithstanding the
foregoing, the following transactions shall in no event constitute a Change in
Control: (A) a Business Combination following which the individuals or
entities who were beneficial owners of the outstanding securities entitled to
vote generally in the election of directors of the Company immediately prior to
such Business Combination beneficially own, directly or indirectly, 50% or more
of the outstanding securities entitled to vote generally in the election of
directors of the resulting, surviving or acquiring corporation in such
transaction or (B) an IPO.


 


“Effective Date”: January 1,
2008.


 


“Fair Market Value”: As defined
in the Stockholders Agreement consistent with the applicable requirements of Section 409A.


 


“IPO”: An underwritten public
offering and sale of Stock for cash pursuant to an effective registration
statement filed by the Company.


 


“Participant”:  A person who is granted an Award under the
Plan.


 


“Plan”:  The LPL Investment Holdings Inc. Advisor
Incentive Plan as from time to time amended and in effect.


 


“Retirement”:
Retirement from the securities industry upon attainment of age sixty-five (65)
and completion of five (5) years of continuous Service with the Company.


 


“Section 409A”:  Section 409A of the Code.


 


“Service”:  A
Participant’s service relationship with the Company and its Affiliates.  Service will be deemed to continue, unless
the Administrator expressly provides otherwise, so long as the Participant is
providing services in a capacity described in Section 5 to the Company or
its Affiliates.  If a Participant’s
service relationship is with an Affiliate and that entity ceases to be an
Affiliate, the Participant’s Service will be deemed to have terminated when the
entity ceases to be an Affiliate unless the Participant transfers Service to
the Company or its remaining Affiliates.


 


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“Sponsors”:
Shall have the meaning set
forth in the Stockholders Agreement.


 


“Stock”:  Common Stock of the Company, par value $0.001
per share.


 


“Stock Option”: A nonstatutory
stock option entitling the holder to acquire shares of Stock upon payment of
the exercise price.


 


“Stockholders
Agreement”: Stockholders
Agreement, dated as of December 28, 2005 among the Company and certain
Affiliates, stockholders and certain Participants, as amended from time to
time.


 


“Warrant”: A subscription
warrant entitling the holder to acquire shares of Stock upon payment of the
exercise price.


 


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