efc8-0940_ex101.htm


    
    

    
      Exhibit 10.1

      KBW, INC. 2008 EMPLOYEE STOCK
PURCHASE PLAN 

      SECTION 1 

      PURPOSE 

           The purpose of the KBW, Inc. Employee
Stock Purchase Plan (the "Plan") is to encourage and facilitate stock ownership
by Employees by providing an opportunity to purchase Common Stock through
voluntary after-tax payroll deductions. The Plan is intended to be a qualified
employee stock purchase plan under Section 423 of the Code. 

      SECTION 2 

      DEFINITIONS

           2.1 Definitions. Whenever
used herein, the following terms shall have the respective meanings set forth
below. 

           "Applicable Exchange" means
the New York Stock Exchange or such other securities exchange as may at the
applicable time be the principal market for the Common Stock. 

           "Board" means the Board of
Directors of the Company. 

           "Code" means the Internal
Revenue Code of 1986, as amended, including, for these purposes, any regulations
promulgated by the Internal Revenue Service with respect to the provisions of
the Code ("Treasury Regulations"), and any successor thereto. 

           "Committee" means the
Compensation Committee of the Board or such other committee of the Board as the
Board shall designate. 

           "Common Stock" means the
common stock, par value $0.01 per share, of the Company. 

           "Company" means KBW, Inc., a
Delaware corporation, and any successor thereto. 

           "Compensation" means, for the
relevant period, (a) the total compensation paid in cash to an Employee by
an Employer, including salaries, wages, commissions, overtime pay, shift
premiums, bonuses, incentive compensation and commissions, plus (b) any
pre-tax contributions made by such Participant under Section 401(k) or 125 of
the Code. "Compensation" shall exclude non-cash items, moving or relocation
allowances, geographic hardship pay, car allowances, tuition reimbursements,
imputed income attributable to cars or life insurance, severance or notice pay,
fringe benefits, contributions (except as provided in clause (b) of the
immediately preceding sentence) or benefits received under employee benefit or
deferred compensation plans or arrangements, income attributable to stock
options and similar items. 

           "Continuous Service" means
the period of time, uninterrupted by a termination of employment, that an
Employee has been employed by an Employer immediately preceding an Offering
Date. Such period of time shall include any leave of absence approved by the
Plan Administrator or the Employee's supervisor. 

           "Custodian" means the bank,
trust company or other entity selected by the Plan Administrator to serve as the
custodian under the Plan. 

           "Disability" means permanent
and total disability as determined under an Employer's long-term disability plan
applicable to the Employee, or, if there is no such plan applicable to the
Employee, as determined by the Plan Administrator. 

           "Employee" means any
individual designated as an employee of an Employer on the payroll records
thereof. Employee status shall be determined consistent with Treasury Regulation
section 1.421-1(h), or its successor provision. 

       

      
        
          
          

        

        
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           "Employer" means the Company
and any Subsidiary whose employees are expressly permitted to participate in the
Plan by the Board pursuant to Section 9.6. 

           "Fair Market Value" means, if
the Common Stock is listed on a national securities exchange as of a given date,
the closing price for the Common Stock on such date on the Applicable Exchange,
or if shares of Common Stock were not traded on the Applicable Exchange on such
measurement date, then on the next preceding date on which such shares were
traded, all as reported by such source as the Committee may select. If the
Common Stock is not listed on a national securities exchange, Fair Market Value
shall be determined by the Committee in its good faith discretion. 

           "Individual Account" means a
separate account maintained by the Custodian for each Employee participating
under Section 5 hereof. 

           "Offering Date" has the
meaning given such term in Section 5.2. 

           "Offering Period" has the
meaning given such term in Section 5.2. 

           "Payroll Contributions" means
an Employee's after-tax contributions of Compensation by payroll deduction
pursuant to Section 5.4, and authorized by the Employee pursuant to
Sections 5.3. 

           "Plan Administrator" means a
committee of at least three (3) members comprised solely of directors or
employees of the Company selected by the Committee. References to "Plan
Administrator" shall include the Plan Administrator's designees or delegees
(under a delegation authorized by Section 3), but solely to the extent of
the delegated authority and unless the context requires otherwise. 

           "Purchase Date" has the
meaning set forth in Section 5.6. 

           "Purchase Price" has the
meaning set forth in Section 5.7. 

           "Retirement" means retirement
from active employment with the Company or a Subsidiary at or after age
sixty-five (65). 

           "Subsidiary" means any
present or future corporation which is or would be a "subsidiary corporation" of
the Company as the term is defined in Section 424(f) of the Code. 

           "Terminating Event" means a
participating Employee's termination of employment with an Employer for any
reason or any other event that causes such Employee to no longer meet the
requirements of Section 4; provided, however, that, for purposes
of the Plan, an individual's employment relationship is still considered to be
continuing intact while such individual is on sick leave, or other leave of
absence approved by the Plan Administrator or the Employee's supervisor; provided further, however, that if such period
of leave of absence exceeds ninety (90) days, and the individual's right to
reemployment is not guaranteed either by statute or by contract, the employment
relationship shall be deemed to have terminated on the ninety-first (91st) day of such leave. A
transfer of an Employee's employment between or among the Company and any
Subsidiary or Subsidiaries shall not be considered a Terminating Event. 

      SECTION 3 

      ADMINISTRATION 

           The Plan shall be administered by the
Plan Administrator. The Plan Administrator shall have all authority that may be
necessary or helpful to enable it to discharge its responsibilities with respect
to the Plan. Without limiting the generality of the foregoing sentences of this
Section 3, subject to the express provisions of the Plan, the Plan
Administrator shall have full and exclusive discretionary authority to interpret
and construe any and all provisions of the Plan and any agreements, forms, and
instruments relating to the Plan; prescribe the forms of all agreements, forms,
and instruments relating to the Plan; determine eligibility to participate in
the Plan; adopt rules and regulations for administering the Plan; adjudicate and
determine all disputes arising under or in connection with the Plan; determine
whether a particular item is included in "Compensation;" and make all other
determinations deemed necessary or advisable for administering the Plan.
Decisions, actions and determinations by the Plan Administrator with respect to
the Plan or any agreement, form or instrument relating to the Plan shall be
final, conclusive and binding on all parties. Subject to applicable laws, rules,
and regulations, the Plan Administrator may, in its discretion, from time to
time, 

       

      
        
          
          

        

        
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      delegate all or any
part of its responsibilities and powers under the Plan to any employee or group
of employees of the Company, and revoke any such delegation. Notwithstanding the
foregoing, the Board or the Committee, in its absolute discretion, may at any
time and from time to time exercise any and all rights, duties and
responsibilities of the Plan Administrator under the Plan, including, but not
limited to, establishing procedures to be followed by the Plan Administrator.


      SECTION 4 

      ELIGIBILITY 

           Except as otherwise provided herein,
each Employee who on an Offering Date has completed at least one year of
Continuous Service may become a participant in the Plan, provided, however, that
no Employee may participate in the Plan if such Employee, immediately after an
Offering Date, would be deemed for purposes of Section 423(b)(3) of the
Code to possess five percent (5%) or more of the total combined voting power or
value of all classes of stock of the Company or of any Subsidiary. For the
avoidance of doubt, there shall also be excluded from participation hereunder
any employees of any Subsidiary which has not been designated by the Board as an
Employer hereunder. 

      SECTION 5 

      STOCK PURCHASES


           5.1 Stock to Be Issued.
Subject to the provisions of Section 9.5, the number of shares of Common
Stock that may be issued under the Plan shall not exceed 1,500,000 shares. The
shares to be delivered to Employees, or their beneficiaries, under the Plan may
consist, in whole or in part, of authorized but unissued shares, not reserved
for any other purpose, or shares acquired by the Custodian for purposes of the
Plan in the market or otherwise. 

           5.2 Offering Periods. The
Plan shall be implemented by offerings (individually, an "Offering") of six
(6) months' duration (the "Offering Period"). The first
Offering shall commence on July 1, 2008, and subsequent Offerings shall
commence each January 1 and July 1 thereafter until the Plan terminates. The
first day of an Offering Period shall be the "Offering Date" for such
Offering Period. In the event the Offering Date is not a trading day, the
Offering Date shall instead be the first trading day after such day. The
foregoing provisions of this Section 5.2 to the contrary notwithstanding,
prior to the commencement of an Offering, the Plan Administrator may establish
an Offering Date and/or Offering Period duration of such Offering that differs
from those set forth above in this Section 5.2, provided that the duration of
an Offering Period may not exceed five (5) years from the Offering Date (or
the expiration of such other applicable period specified under
Section 423(b)(7) of the Code (or any successor provision of the Code
thereto)). 

           5.3 Participation. An
Employee who meets the requirements of Section 4 may participate in an
Offering by completing enrollment in the form or manner prescribed by the Plan
Administrator not later than the close of business for the Company on the last
business day before the Offering Date of such Offering, or such earlier time as
the Plan Administrator may prescribe with respect to Employees generally, and by
satisfying such other conditions or restrictions as the Plan Administrator shall
establish in accordance with the Plan. The Employees who elect to participate in
the Plan shall at the time of such election authorize a payroll deduction from
the Employee's Compensation to be made as of any future payroll period, in
accordance with Section 5.4. Any such election to authorize payroll
deductions shall be effective commencing on the first Offering Date immediately
following completion of enrollment in the manner prescribed by the Plan
Administrator. 

           5.4 Employee
Contributions. An Individual Account shall be established for each
participating Employee to which shall be credited the amount of any Payroll
Contributions, and (ii) the number of full shares of Common Stock that are
purchased by such Employee pursuant to the terms of the Plan. An Employee may
authorize Payroll Contributions of at least one percent (1%) but not more than
ten percent (10%) of Compensation. Except as provided in Section 5.8, if an
Employee has a Terminating Event, (i) such Employee may not make further
Payroll Contributions, and (ii) his or her right to purchase shares of
Common Stock in the then-current Offering Period shall terminate, and any amount
of cash then credited to his or her Individual Account shall be returned to the
Employee or his or her designated beneficiary pursuant to the Plan, as
applicable. No interest shall accrue on amounts credited to any Individual
Account or distributed to any Employee or designated beneficiary pursuant to the
Plan. 

           5.5 Limitations on
Purchase. Notwithstanding any provisions of the Plan to the contrary:


       

      
        
          
          

        

        
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           (a) an Employee shall not be permitted
to purchase during any one calendar year Common Stock pursuant to the Plan and
under any other employee stock purchase plan of the Company or any Subsidiary
which is intended to qualify under Section 423 of the Code, at a rate which
exceeds $25,000 in Fair Market Value, determined as of the applicable Offering
Dates (or such other amount as may be adjusted from time to time under
applicable provisions of the Code), and 

           (b) the maximum number of shares of
Common Stock purchasable by any Employee during any one Offering Period shall
not exceed 2,000 shares. 

           5.6 Purchase of Shares.
Unless a participating Employee requests a withdrawal of the cash balance in the
Employee's Individual Account prior to the last trading day of an Offering
Period (the "Purchase
Date"), on such Purchase Date, the cash balance in such Individual
Account on such Purchase Date shall be used to purchase the maximum number of
whole shares of Common Stock that may be purchased using such cash balance at
the Purchase Price. Any Payroll Contributions accumulated in an Employee's
Individual Account that are not sufficient to purchase a full share shall be
retained in such account for any subsequent Offering Period, subject to earlier
withdrawal by the Employee as provided in Section 6. Any other monies
remaining in an Employee's Individual Account after the Purchase Date shall be
returned to the Employee or his or her beneficiary (as applicable) in cash,
without interest. If the number of shares of Common Stock that Plan participants
become entitled to purchase under the Plan is greater than the shares of Common
Stock remaining available under the Plan, the available shares of Common Stock
shall be allocated by the Plan Administrator among such participants in such
manner as the Plan Administrator determines is fair and equitable. 

           5.7 Purchase Price. The
purchase price per share of Common Stock (the "Purchase Price") to be paid
by each participating Employee in a given Offering shall be an amount equal to
ninety-five percent (95%) of the Fair Market Value of a share of Common Stock on
the Purchase Date of such Offering. 

           5.8 Change in Employment Status
Due to Death, Disability or Retirement. Upon a Terminating Event
resulting from the participating Employee's death, Disability or Retirement, the
Employee, or, in the case of death, the Employee's beneficiary (as defined in
Section 9.4) shall have the right to elect, by written notice given to the
Plan Administrator prior to the next following Purchase Date: 

           (a) to withdraw all of the cash
(without interest) and Common Stock credited to such Employee's Individual
Account under the Plan, or 

           (b) to purchase the number of full
shares of Common Stock which the balance in the Employee's Individual Account
will purchase at the Purchase Date next following the date of such Employee's
Terminating Event. 

      In the event that no
written notice of election pursuant to this Section 5.8 shall be received
by the Plan Administrator at least ten (10) days prior to the first
Purchase Date following the Employee's Terminating Event, the Employee or
beneficiary, as the case may be, shall be deemed to have elected to withdraw the
amount credited to the Employee's Individual Account. 

      SECTION 6 

      DEDUCTION CHANGES;
PLAN WITHDRAWALS 

      6.1 Deduction Changes.
Once an Employee has authorized Payroll Contributions for an Offering Period,
the Employee may change the selected rate of Payroll Contributions by written
notice to the Plan Administrator; provided, however, that the Plan
Administrator may provide that an Employee's increase, during an Offering
Period, in the level of Payroll Contributions authorized shall not take effect
until commencement of the immediately following Offering Period. Any such change
shall be given effect as soon as administratively practicable after the date
such notice is received by the Plan Administrator. Any such election by an
Employee to change his or her rate of Payroll Contributions shall only be
permitted once during each calendar quarter included in an Offering Period. The
Plan Administrator may, in its discretion, in a fair and equitable manner, limit
the number of Employees who change their selected rate of Payroll Contributions
during any Offering Period. Unless the Plan Administrator otherwise determines,
if an Employee ceases to make Payroll Contributions during an Offering Period at
any time prior to a Terminating Event, any cash balance then held in the
Employee's Individual Account shall automatically be distributed to such
Employee as soon as practical after the effective date of such cessation. The
Plan Administrator may decrease an Employee's rate of Payroll Contributions, but
not below zero percent, at any time during an Offering Period to the extent
necessary to comply with Section 423(b)(8) of the Code or Section 5.5
of the Plan. 

       

      
        
          
          

        

        
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           6.2 Withdrawals During
Employment. An Employee may at any time (subject to such notice
requirements as the Plan Administrator may prescribe), and for any reason, cease
participation in the Plan and withdraw all or any portion of the Common Stock
and cash, if any, in his or her Individual Account pursuant to Section 8.
The Employee may thereafter recommence participation in any succeeding Offering
Period following completion of a new enrollment pursuant to Section 5.3.


      SECTION 7 

      EVIDENCE OF SHARE
OWNERSHIP 

           Unless and until distributed to an
Employee (i) at the Employee's request, (ii) at the discretion of the
Plan Administrator or (iii) in connection with the Employee's Terminating
Event, all shares of Common Stock acquired pursuant to the Plan shall be held by
the Custodian. While maintained by the Custodian, all shares of Common Stock
shall be registered in book entry form and/or held in the name of the Custodian
or its nominee, or in street name. The Company shall cause shares of Common
Stock to be registered in the name of an Employee who is to receive a
distribution of shares pursuant to Section 8 as soon as practical following
the event giving rise to such distribution under such Section 8. Unless,
and solely to the extent that, the Plan Administrator shall adopt procedures to
permit exceptions to this requirement, such shares of Common Stock issued under
the Plan may be registered only in the name of the Employee. 

      SECTION 8 

      WITHDRAWALS AND
DISTRIBUTIONS 

           All or a portion of the Common Stock
allocated to an Employee's Individual Account may be withdrawn by such Employee
or his or her beneficiary under Section 9.4 at any time. Upon a Terminating
Event or termination of the Plan under Section 9.6, all monies remaining in
the Employee's Individual Account shall be distributed to the Employee or his or
her beneficiary (as applicable) in cash (without interest), and all shares of
Common Stock held in the Employee's Individual Account shall be distributed to
the Employee or his or her beneficiary (as applicable). All fractional shares
shall be paid in cash based on the average sale price of such shares sold on
behalf of Employees and their beneficiaries on the day of such sales. 

      SECTION 9 

      MISCELLANEOUS
PROVISIONS 

           9.1 Withholding. The
Company or a Subsidiary shall have the right and power to deduct from all
payments or distributions hereunder, or require an Employee or beneficiary to
remit promptly upon notification of the amount due, an amount (which may, if
permitted by the Plan Administrator, include shares of Common Stock) to satisfy
any federal, state, local or non-United States taxes or other obligations
required by law to be withheld with respect thereto with respect to any purchase
of shares of Common Stock hereunder or any disposition of such shares. The
Company may defer delivery of Common Stock until such withholding requirements
are satisfied. The Plan Administrator may, in its discretion, permit an Employee
or beneficiary to elect, subject to such conditions as the Plan Administrator
shall impose, to have a number of whole (or, at the discretion of the Plan
Administrator, whole and fractional) shares of Common Stock otherwise issuable
under the Plan withheld that, based on their Fair Market Value on the date
immediately preceding the date of exercise, is a sufficient number, but not more
than is required, to satisfy the withholding tax obligations. 

           9.2 Rights Not
Transferable. No rights under the Plan may be alienated, including but
not limited to sold, transferred, pledged, assigned, or otherwise hypothecated,
other than by will or by the laws of descent and distribution, and any attempt
to alienate in violation of this Section 9.2 shall be null and void. Rights
under the Plan are exercisable during an Employee's lifetime only by such
Employee. 

           9.3 Employee Interest. An
Employee shall have no interest as a stockholder of the Company, including
voting or dividend rights, by virtue of the Employee's participation in the Plan
until the date shares of Common Stock are purchased by such Employee in
accordance with the Plan. 

           9.4 Designation of
Beneficiary. Each participating Employee may file a written designation
of a beneficiary who is to receive any shares of Common Stock and/or cash under
the Plan following the Employee's death. Each designation made hereunder 

       

      
        
          
          

        

        
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      shall revoke all prior
designations by the same Employee with respect to all of the Employee's unpaid
benefits under the Plan (including, solely for purposes of the Plan, any deemed
designation prescribed by rules established by the Plan Administrator), shall be
in a form and submitted in a manner prescribed by the Plan Administrator, and
shall be effective only when received by the Plan Administrator in writing (or
electronic equivalent recognized by the Plan Administrator) during the
Employee's lifetime. In the absence of any such effective designation (including
a deemed designation), benefits remaining unpaid at the Employee's death shall
be paid to or exercised by the Employee's surviving spouse, if any, or otherwise
to or by the Employee's estate. Upon the death of a participating Employee and
upon receipt by the Plan Administrator of proof of identity and existence at the
participating Employee's death of a beneficiary validly designated by the
Employee under the Plan, the Plan Administrator shall deliver to such
beneficiary any shares of Common Stock and/or cash credited to the deceased
Employee's Individual Account. No beneficiary shall, prior to the death of a
participating Employee by whom the beneficiary has been designated, acquire any
interest in any Common Stock or cash credited to a participating Employee under
the Plan. 

    

    
           9.5 Adjustments Due to Change in
Capitalization. In the event of a stock dividend, stock split, reverse
stock split, share combination, or recapitalization or similar event affecting
the capital structure of the Company, or a merger, amalgamation, consolidation,
acquisition of property or shares, separation, spinoff, other distribution of
stock or property (including any extraordinary cash or stock dividend),
reorganization, stock rights offering, or liquidation or similar event affecting
the Company or any Subsidiary, (i) Common Stock credited to each Employee's
Individual Account shall be adjusted by the Committee in the same manner as all
other outstanding shares of Common Stock in connection with such event,
(ii) the Committee shall determine the kind of shares which may be acquired
under the Plan after such event, and (iii) the aggregate number of shares
of Common Stock available for grant under Section 5.1 or subject to
outstanding Common Stock purchase rights under the Plan, the maximum number of
shares of Common Stock that an Employee may purchase during an Offering Period
as set forth in Section 5.5(b) and the respective Purchase Prices
applicable to outstanding Offerings shall be appropriately adjusted by the
Committee, in its discretion, and the determination of the Committee shall be
conclusive. Except as otherwise determined by the Committee, a merger or a
similar reorganization in which the Company does not survive, a liquidation or
distribution of all or substantially all of the assets of the Company, or a sale
of all or substantially all of the assets of the Company, shall cause the Plan
to terminate and all Common Stock and cash, if any, in the Individual Accounts
of participating Employees shall be distributed to each Employee pursuant to
Section 8 as soon as practical unless any surviving entity agrees to assume
the obligations hereunder. 

           9.6 Amendment or Termination of
the Plan. The Board may, at any time, amend, modify, suspend, or
terminate the Plan, in whole or in part, without notice to or the consent of any
Plan participant or Employee to the extent permissible under applicable law;
provided, however, that any amendment
which would (i) increase the number of shares available for issuance under
the Plan; (ii) lower the minimum Purchase Price under the Plan;
(iii) change the individual award limits; (iv) change the class of
employees eligible to participate in the Plan; or (v) otherwise require
stockholder action under any applicable law, regulation or rule, shall be
subject to the approval of the Company's stockholders; provided, however, that the Board shall
have discretionary authority to designate, from time to time, without approval
of the Company's stockholders, those Subsidiaries that shall constitute an
Employer, the employees of which are eligible to participate in the Plan. No
amendment, modification, or termination of the Plan shall materially adversely
affect the previously accrued rights of any Employee under the Plan with respect
to any Offering Period then in progress or previously completed without the
consent of the Employee, except that upon a termination of the Plan the Offering
Period may be ended and unexercised Common Stock purchase rights under the Plan
may be cancelled or exercised, in the Committee's discretion. Upon termination
of the Plan, all Common Stock and cash, if any, in the Individual Accounts of
participating Employees shall be distributed to each Employee pursuant to
Section 8 as soon as practical thereafter. The Board may at any time
terminate an Offering Period then in progress and provide, in its discretion,
that Employees' then outstanding Individual Account cash balances shall be used
to purchase shares of Common Stock pursuant to Section 5 or distributed to
the applicable Employees pursuant to Section 8. 

           9.7 Custodial
Arrangement. All cash and Common Stock allocated to an Employee's
Individual Account under the Plan shall be held by the Custodian in its capacity
as a custodian for the Employee with respect to such cash and Common Stock.
Nothing contained in the Plan, and no action taken pursuant to the Plan, shall
create or be construed to create a trust of any kind, or a fiduciary
relationship between the Company and its officers or the Committee or the Plan
Administrator or the Custodian, on the one hand, and any Employee, the Company
or any other person or entity, on the other hand. 

           9.8 No Constraint on Corporate
Action. Nothing contained in the Plan shall be construed to prevent the
Company, any Subsidiary or any other affiliate, from taking any corporate action
(including, but not limited to, the Company's right or power to make
adjustments, reclassifications, reorganizations or changes of its capital or
business structure, or to merge or consolidate, or dissolve, liquidate, sell, or
transfer all or any part of its business or assets) which is deemed by it to be
appropriate, or in its best interest, whether or not such action would have an
adverse effect on this Plan, or any rights awarded Employees under the Plan. No
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      beneficiary, or other
person, shall have any claim against the Company, any Subsidiary, or any of its
other affiliates, as a result of any such action. 

           9.9 Conditions Upon Issuance of
Shares. 

                (a) The
granting of rights to Employees under the Plan and the issuance of shares of
Common Stock under the Plan shall be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or national
securities exchanges as may be required. 

                (b) If
at any time the Plan Administrator shall determine, in its discretion, that the
listing, registration and/or qualification of shares of Common Stock upon any
securities exchange or under any state, Federal or non-United States law, or the
consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the sale or purchase of such
shares hereunder, the Company shall have no obligation to allow the purchase of
shares of Common Stock, or to issue or deliver evidence of title for shares
issued under the Plan, in whole or in part, unless and until such listing,
registration, qualification, consent and/or approval shall have been effected or
obtained, or otherwise provided for, free of any conditions not acceptable to
the Plan Administrator. 

                (c) If
at any time counsel to the Company shall be of the opinion that any sale or
delivery of shares of Common Stock pursuant to the Plan is or may be in the
circumstances unlawful or result in the imposition of excise taxes on the
Company or any Subsidiary under the statutes, rules or regulations of any
applicable jurisdiction, the Company shall have no obligation to make such sale
or delivery, or to make any application or to effect or to maintain any
qualification or registration under the Securities Act of 1933, as amended, or
otherwise with respect to shares of Common Stock or Common Stock purchase rights
under the Plan, and the right to exercise any such purchase right shall be
suspended until, in the opinion of such counsel, such sale or delivery shall be
lawful or will not result in the imposition of excise taxes on the Company or
any Subsidiary. 

                (d) The
Plan Administrator may require each person receiving shares of Common Stock in
connection with any purchase under the Plan to represent and agree with the
Company in writing that such person is acquiring such shares for investment
without a view to the distribution thereof, and/or provide such other
representations and agreements as the Plan Administrator may prescribe. The Plan
Administrator, in its absolute discretion, may impose such restrictions on the
ownership and transferability of the shares of Common Stock purchasable or
otherwise receivable by any person under the Plan as it deems appropriate. Any
certificates evidencing such shares may include any legend that the Plan
Administrator deems appropriate to reflect any such restrictions. 

           9.10 Participants Deemed to
Accept Plan. By accepting any benefit under the Plan, each Employee and
each person claiming under or through any such Employee shall be conclusively
deemed to have indicated their acceptance and ratification of, and consent to,
all of the terms and conditions of the Plan and any action taken under the Plan
by the Board, the Committee, the Plan Administrator or the Company, in any case
in accordance with the terms and conditions of the Plan. 

           9.11 Rights of
Participants. 

                (a) Rights or Claims. No
person shall have any rights or claims under the Plan except in accordance with
the provisions of the Plan and any applicable agreement thereunder. The
liability of the Company and any Subsidiary under the Plan is limited to the
obligations expressly set forth in the Plan, and no term or provision of the
Plan may be construed to impose any further or additional duties, obligations,
or costs on the Company, any Subsidiary or any other affiliate thereof or the
Board, the Committee or the Plan Administrator not expressly set forth in the
Plan. The grant of any Common Stock purchase right under the Plan shall not
confer any rights upon the Employee holding such right other than such terms,
and subject to such conditions, as are specified in the Plan as being applicable
to such purchase right, or to all purchase rights. Without limiting the
generality of the foregoing, neither the existence of the Plan nor anything
contained in the Plan or in any agreement thereunder shall be deemed to: 

                (i) Give
any Employee the right to be retained in the service of an Employer, whether in
any particular position, at any particular rate of compensation, for any
particular period of time or otherwise; 

                (ii)
Restrict in any way the right of an Employer to terminate, change or modify any
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                (iii)
Constitute a contract of employment between an Employer and any Employee, nor
shall it constitute a right to remain in the employ of an Employer; 

                (iv) Give
any Employee the right to receive any bonus, whether payable in cash or in
shares of Common Stock, or in any combination thereof, from the Company and/or a
Subsidiary, nor be construed as limiting in any way the right of the Company
and/or a Subsidiary to determine, in its sole discretion, whether or not it
shall pay any Employee bonuses, and, if so paid, the amount thereof and the
manner of such payment; or 

                (v) Give
any Employee any rights whatsoever with respect to any Common Stock purchase
rights except as specifically provided in the Plan and any applicable agreement
thereunder. 

                (b) Purchase Rights.
Notwithstanding any other provision of the Plan, an Employee's right or
entitlement to purchase any shares of Common Stock under the Plan shall only
result from continued employment with an Employer. 

                (c) No Effects on
Benefits. Compensation received by an Employee under the Plan is not part
of such Employee's normal or expected compensation or salary for any purpose,
including calculating termination, indemnity, severance, resignation,
redundancy, end of service payments, bonuses, long-service awards, pension or
retirement benefits or similar payments under any laws, plans, policies,
programs, contracts, arrangements or otherwise. No claim or entitlement to
compensation or damages arises from the termination of the Plan or diminution in
value of any shares of Common Stock that may be or are purchased or otherwise
received under the Plan. 

                (d) No Effect on Other
Plans. Neither the adoption of the Plan nor anything contained herein
shall affect any other compensation or incentive plans or arrangements of the
Company or any Subsidiary, or prevent or limit the right of the Company or any
Subsidiary to establish any other forms of incentives or compensation for their
employees or grant or assume options or other rights otherwise than under the
Plan. 

           9.12 Term of Plan.
Following adoption of the Plan by the Board, the Plan shall become effective on
the date on which the Plan is approved by the stockholders of the Company who
are present and represented at a special or annual meeting of stockholders where
a quorum is present, which approval occurs not earlier than one (1) year
before, and not later than one (1) year after, the date the Plan is adopted
by the Board. The Plan shall terminate on the earlier of (i) the
termination of the Plan pursuant to Section 9.6, and (ii) when no more
shares are available for issuance pursuant to the Plan. 

           9.13 Governing Law. Except
as to matters concerning the issuance of shares of Common Stock or other matters
of corporate governance, which shall be determined, and related Plan provisions,
which shall be construed, under the laws of the State of Delaware, the Plan
shall be governed by the laws of the State of New York, excluding any conflicts
or choice of law rule or principle that might otherwise refer construction or
interpretation of the Plan to the substantive law of another jurisdiction.
Employees who participate in the Plan are deemed to submit to the exclusive
jurisdiction and venue of the federal or state courts of the State of New York,
to resolve any and all issues that may arise out of or relate to the Plan or any
related agreement. 

           9.14 Administration Costs.
The Company shall bear all costs and expenses incurred in administering the
Plan, including expenses of issuing shares of Common Stock pursuant to the Plan.


           9.15 Severability. In the
event any provision of the Plan shall be held illegal or invalid for any reason,
the illegality or invalidity shall not affect the remaining parts of the Plan,
and the Plan shall be construed and enforced as if the illegal or invalid
provision had not been included. 

           9.16 Drafting Context;
Captions. Except where otherwise indicated by the context, words in the
masculine gender used in the Plan shall also include the feminine gender; the
plural shall include the singular and the singular shall include the plural. The
words "Section" and "paragraph" herein shall refer to provisions of the Plan,
unless expressly indicated otherwise. The words "include," "includes," and
"including" herein shall be deemed to be followed by "without limitation"
whether or not they are in fact followed by such words or words of similar
import, unless the context otherwise requires. The headings and captions
appearing herein are inserted only as a matter of convenience. They do not
define, limit, construe, or describe the scope or intent of the provisions of
the Plan. 

       

       

       

       

       


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