exv10w1






 Exhibit 10.1




Second Amended and Restated

Thomas Weisel Partners Group, Inc. Equity Incentive Plan




     Section 1. Purpose. The purposes of this Equity Incentive Plan (the “PLAN”) are to
attract, retain and motivate key employees and directors of and consultants and advisors to
Thomas Weisel Partners Group, Inc. (the “COMPANY”) and its Subsidiaries and Affiliates and
to align the interests of key employees, directors, consultants and advisors with
shareholders with equity-based compensation and enhanced opportunities for ownership of shares of the Company’s common stock.



     Section 2. Definitions. The following terms used in the Plan and any agreement entered
into pursuant to the Plan shall have the meaning set forth below:



     “AFFILIATE” means (i) any Person that directly, or through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Company or (ii) any
entity in which the Company has a significant equity interest, as determined by the
Committee.



     “AWARD” means any Option, award of Restricted Stock or Restricted Stock units,
Performance Award, Other Stock-Based Award, or any other right, interest or grant relating
to Shares or other property granted pursuant to the Plan.



     “AWARD AGREEMENT” means any written agreement, contract or other instrument or
document evidencing any Award, which may, but need not be (as determined by the Committee)
executed or acknowledged by a Participant as a condition to receiving an Award or the
benefits under an Award.



     “BOARD” or “BOARD OF DIRECTORS” means the Board of Directors of the Company.



     “CHANGE IN CONTROL” means



     (a) the consummation of a merger, consolidation, statutory share exchange or similar
form of corporate transaction involving the Company or the sale or other disposition of all
or substantially all of the assets of the Company to an entity that is not an affiliate
that, in each case, requires shareholder approval under the laws of the Company’s
jurisdiction of organization, unless immediately following such transaction: (i) more than
50% of the total voting power of the surviving entity or the entity that directly or
indirectly has beneficial ownership of 95% of the voting securities eligible to elect
directors of the surviving entity (a “Parent Entity”), if applicable, is represented by
securities of the Company that were outstanding immediately prior to the transaction (or
securities into which the Company’s securities were converted or exchanged in such
transaction) and such voting power among the holders thereof is in substantially the same
proportion as the voting power of such securities among the holders thereof immediately
prior to such transaction; (ii) no person (other than any employee benefit plan (or any
related trust) sponsored or maintained by the surviving entity or the Parent Entity), is or
becomes the beneficial owner, directly or indirectly, of securities of the Parent Entity
(or, if there is no Parent Entity, the surviving entity) representing 20% of the total
voting power of the securities then outstanding generally eligible to vote for the election
of directors of the Parent Entity (or, if there is no Parent Entity, the surviving entity);
and (iii) at least a majority of the members of the board of directors (including directors
whose election or nomination was approved by at least two-thirds of the incumbent directors
of the Board) of the Parent Entity (or, if there is no Parent Entity, the surviving entity)
were members of the Board at the time of the Board’s approval of the execution of the
initial agreement providing for the transaction;



     (b) any event that results in the directors of the Board as of the effective date of
the Plan (including directors whose election or nomination was approved by at least
two-thirds of the incumbent directors of the Board) failing to constitute at least a
majority of the Board; or



     (c) the shareholders of the Company approve a plan of complete liquidation or
dissolution of the Company;



     provided, however, that for purposes of (a)(iii) and (b) above no individual initially
elected or nominated as a director of the Board as a result of an actual or threatened
election contest with respect to directors or as a result of any other actual or threatened
solicitation of proxies or consents by or on behalf of any person other than the Board
shall be included in the calculation of incumbency.



     Notwithstanding (a)(ii) above, a Change in Control shall not be deemed to occur solely
because any person acquires beneficial ownership of more than 20% of the total voting power
of securities then outstanding generally eligible to votefor the election of directors of
the Parent Entity (or, if there is no Parent Entity, the surviving entity) as a result of
the acquisition of securities by the Company which reduces the number of such securities
outstanding; provided, that if after such acquisition by the Company such person becomes
the beneficial owner of additional securities then outstanding generally eligible to vote
for the election of directors of the Parent Entity (or, if there is no Parent Entity, the
surviving entity) that increases the percentage of such securities beneficially owned by
such person, a Change in Control of the Company shall then occur.



     “CODE” means the Internal Revenue Code of 1986, as amended.



     “COMMITTEE” means the Compensation Committee of the Board, or any successor to such
committee, or any other committee of our Board appointed or designated by the Board, in
each case, composed of no fewer than two directors each of whom is a “non-employee
director” within the meaning of Rule 16b-3 of the Securities Exchange Act of 1934, as
amended, and an “outside director” within the meaning of Section 162(m) of the Code and the
regulations promulgated thereunder.



 









 





     “COVERED EMPLOYEE” means an individual who is both (i) a “covered employee” within the
meaning of Section 162(m)(3) of the Code, or any successor provision thereto and (ii)
expected by the Committee to be the recipient of compensation (other than “qualified
performance based compensation” as defined in Section 162(m) of the Code) in excess of
$1,000,000 for the tax year of the Company with regard to which a deduction in respect of
such individual’s Award would be allowed.



     “DISABILITY” means the disability of a Participant (i) such that the Participant is
considered disabled under any long term disability plan of the Company, or otherwise (ii)
as determined by the Committee in its sole discretion.



     “ELIGIBLE PERSON” means any full time or part time employee (including an officer or
director who is also an employee), consultant or advisor of the Company or any Affiliate
selected by the Committee. Other than for awards of Incentive Stock Options, “Eligible
Person” shall also include any individual to whom an offer of employment has been extended,
a member of the Board or a member of the board of directors of a Subsidiary. References to
“employment” and related terms in the Plan shall include the provision of services in any
capacity.



     “FAIR MARKET VALUE” means, with respect to a Share as of any date, (i) the closing
sale price per Share, as reported on NASDAQ, or, if different, the principal securities
exchange or market on which the Shares are then traded, on such date, or, if no sale of
Shares is reported for that date, on the last preceding date on which there was a sale of
Shares on NASDAQ or such principal securities exchange or market and (ii), if the Shares
are not then traded on any securities exchange or market, the fair market value thereof as
determined in good faith by the Committee.



     “INCENTIVE STOCK OPTION” means any Option that is intended to qualify for special
federal income tax treatment pursuant to Sections 421 and 422 of the Code (or a successor
provision thereof) and which is so designated in the applicable Award Agreement. Under no
circumstances shall any Option that is not specifically designated as an Incentive Stock
Option be considered an Incentive Stock Option.



     “INITIAL PUBLIC OFFERING” means the consummation of initial offering of Shares of the
Company to the public.



     “NON-QUALIFIED STOCK OPTION” means an Option that is not an Incentive Stock Option.



     “OPTION” means an option to purchase a Share or Shares granted under the Plan.



     “OTHER STOCK-BASED AWARD” means an Award granted pursuant to Section 9 of the Plan.



     “PARTICIPANT” means a person who has been granted an Award under the Plan which
remains outstanding, including a person who is no longer an Eligible Person.



     “PERFORMANCE AWARD” means an Award granted pursuant to Section 10 of the Plan.



     “PERFORMANCE PERIOD” means the period of at least nine months established by the
Committee at the time any Performance Award is granted or at any time thereafter during
which any performance goals specified by the Committee with respect to such Award are
measured.



     “PERSON” means an individual, corporation, partnership, association, trust, limited
liability company or any other entity or organization, including a government or political
subdivision or an agency, unit or instrumentality thereof.



     “RESTRICTED STOCK” means an award of shares which are subject to certain restrictions.



     “RETIREMENT” means termination of employment on or after the date the Participant has
(i) attained age 65 and completed at least six years of service following the Company’s
Initial Public Offering or (ii) completed at least twenty years of service with the Company
or its predecessors; provided that with respect to Awards granted prior to May 23, 2007
“Retirement” means termination of employment on or after the date the Participant has (i)
attained age 65 and completed at least two years of service following the Company’s Initial
Public Offering or (ii) completed at least twelve years of service with the Company or its
predecessors.



     “SHARE” means a share of common stock of the Company, par value $0.01.



     “SUBSIDIARY” means a corporation, limited liability company, partnership or other
entity where 50% or more of its outstanding voting securities or other equity interests is
owned directly or indirectly by the Company at the time an Award is issued under the Plan.



     “SUBSTITUTE AWARD” means an Award granted in assumption of, or in substitution for, an
outstanding equity award previously granted by a business or entity all or a portion of
which is acquired by the Company or any Affiliate or with which the Company or an Affiliate
combines.



     Section 3. Administration. (a) The Plan will be administered by the Committee. Subject
to and consistent with the provisions of the Plan, the Committee will have full power and
authority, in its discretion, and without limitation, to: (i) select Eligible Persons to
become Participants; (ii) determine the type and number of Awards to be granted to each
Participant; (iii) determine the number of Shares to be covered by each Award; (iv)
determine the dates on which Awards may be exercised and on which the risk of forfeiture or
deferral period relating to Awards shall lapse or terminate, and the acceleration of any
such dates; (v) determine the expiration date of any Award; (vi) determine whether, to what
extent, and under what circumstances an Award may be settled, or the exercise price of an
Award may be paid, in cash, Shares, other Awards, or other property or canceled, forfeited
or suspended and the method or methods by which an Award may be settled, canceled,
forfeited or suspended; (vii) determine any other terms and conditions of, and all other
matters relating to, Awards; (viii) prescribe Award Agreements (such Award Agreements need
not be identical for each Participant) and amendments thereto; (ix) construe, interpret and
implement the Plan and the respective Award Agreements entered into pursuant to the Plan;
(x) correct any defect, supply any omission and reconcile any inconsistency in the Plan;
and (xi) make all other determinations necessary or advisable for administering the Plan.
All decisions and determinations of the Committee with respect to the administration and
interpretation of the Plan shall be final, conclusive, and binding upon all



 









 







persons interested in the Plan, including Participants, beneficiaries, and other
persons claiming rights from or through a Participant, and shareholders.



     (b) To the fullest extent permitted by law, each member and former member of the
Committee and each person to whom the Committee delegates or has delegated authority under
this Plan shall have no liability to any Person for any action taken, failure to act or
determination made in good faith with respect to this Plan or an Award and shall be
entitled to indemnification by the Company against and from any loss, liability, judgment,
damage, cost (including attorneys’ fees) and reasonable expense incurred by such member,
former member or other person by reason of any action taken, failure to act or
determination made in good faith under or with respect to this Plan or an Award. The
foregoing right of indemnification shall not be available to such Committee member or
delegate to the extent that a court of competent jurisdiction in a final judgment or other
final adjudication, in either case, not subject to further appeal, determines that the acts
or omissions of him or her giving rise to the indemnification claim resulted from such
person’s bad faith, fraud or willful criminal act or omission. The foregoing right of
indemnification shall not be exclusive of any other rights of indemnification to which such
Committee member or delegate may be entitled under the Company’s Certificate of
Incorporation or By-laws, as a matter of law, or otherwise, or any other power that the
Company may have to indemnify such persons or hold them harmless.



     Section 4. Shares Subject to the Plan. (a) Shares to be issued under the Plan may
consist, in whole or in part, of authorized and unissued Shares, treasury Shares, Shares
purchased by the Company in the open market, Shares purchased in the open market by one or
more trusts established for the benefit of Participants or otherwise. Subject to adjustment
made in accordance with Section 12 of the Plan, the maximum number of Shares that may be
issued under the Plan will not exceed 11,150,000 Shares. Notwithstanding the foregoing and
subject to adjustment asprovided in Section 12 of the Plan, no Covered Employee may be
granted Awards under the Plan in any calendar year that relate to more than 1,000,000
Shares. The Committee may direct that any stock certificate evidencing Shares issued
pursuant to the Plan shall bear a legend setting forth such restrictions on transferability
as may apply to such Shares pursuant to the Plan.



     (b) Shares subject to an Award (other than a Substitute Award) that is canceled,
expired, forfeited, settled in cash or otherwise terminated without a delivery of Shares to
the Participant will again be available for Awards, and Shares withheld in payment of the
exercise price or taxes relating to an Award and Shares equal to the number surrendered in
payment of any exercise price or taxes relating to an Award shall be deemed to constitute
Shares not delivered to the Participant and shall be deemed to again be available for
Awards under the Plan. Shares underlying Substitute Awards shall not reduce the number of
Shares available for delivery under the Plan.



     Section 5. Eligibility. Awards may be granted only to Eligible Persons who are
selected to be Participants by the Committee in accordance with the provisions of the Plan.
Holders of equity-based awards granted by a business or entity all or a portion of which is
acquired by the Company or any Affiliate or with which the Company or an Affiliate combines
are eligible to receive Substitute Awards hereunder.



     Section 6. Options. The Committee is authorized to grant Options to Participants on
the following terms and conditions and with such additional terms and conditions, not
inconsistent with the provisions of the Plan, as the Committee shall determine in its sole
discretion.



     (a) Exercise Price. The exercise price of each Option granted under the Plan shall be
determined by the Committee and shall not be less than the Fair Market Value of a Share on
the date of grant of such Option and, once determined and established, shall not be changed
or reset by the Committee, except as provided in Section 12 of this Plan.



     (b) Term and Termination of Options. The term of each Option, together with the effect
of termination of employment or service by a Participant on such term, will be determined
by the Committee, but in no event will an Option be exercisable, either in whole or in
part, after the expiration of ten years from the date of grant of such Option.



     (c) Exercise of Option. Each Option shall be exercisable at such times and subject to
such terms and conditions as the Committee may, in its discretion, specify in the
applicable Award Agreement or thereafter (subject to the rights of a Participant provided
under Section 17 hereof); provided that each Option granted after the date of the Initial
Public Offering to any Participant (i) that is not a non-employee director of the Company
shall become exercisable and vested ratably (on a monthly, quarterly, annual or other basis
as (as the Committee may determine)) over no less than a period of three years and (ii)
that is a non-employee director of the Company shall become exercisable and vested ratably
(on a monthly, quarterly, annual or other basis as (as the Committee may determine)) over
no less than a period of three years, unless such Option is granted as part of such
non-employee director’s regular annual compensation paid in accordance with the Company’s
director compensation policy. Unless the applicable Award Agreement otherwise provides, an
Option may be exercised from time to time as to all or part of the shares as to which such
Award is then exercisable (but, in any event, only for whole shares).



     Section 7. Incentive Stock Options. In accordance with rules and procedures
established by the Committee, the aggregate Fair Market Value (determined as of the time of
grant) of the Shares with respect to which Incentive Stock Options held by any Participant
which are exercisable for the first time by such Participant during any calendar year under
the Plan (and under any other benefit plans of the Company or any Subsidiary) shall not
exceed $100,000 or, if different, the maximum limitation in effect at the time of grant
under Section 422 of the Code, or any successor provision, and any regulations promulgated
thereunder. Incentive Stock Options shall be granted only to participants who are employees
of the Company or a Subsidiary of the Company, but, to the extent required under Section
422 of the Code, an Incentive Stock Option may not be granted under the Plan to an employee
who, at the time the option is granted, owns stock possessing more than 10% of the total
combined voting power of all classes of stock of his or her employer corporation or of its
parent or subsidiary corporations (as such ownership may be determined for purposes of



 









 







Section 422(b)(6) of the Code) unless (i) at the time such Incentive Stock Option is
granted the option exercise price is at least 110% of the Fair Market Value of the shares
subject thereto and (ii) the Incentive Stock Option by its terms is not exercisable after
the expiration of five (5) years from the date granted.



     Section 8. Restricted Stock and Restricted Stock Unit Awards. The Committee is
authorized to grant Restricted Stock and/or Restricted Stock units to Participants.



     (a) The Awards granted under this Section 8 shall be subject to such restrictions as
the Committee may impose (including, without limitation, any limitation on the right to
vote Shares underlying Restricted Stock and Restricted Stock units or the right to receive
any dividend, other right or property), which restrictions may lapse separately or in
combination at such time or times, in such installments or otherwise, as the Committee may
deem appropriate; provided that each Award granted after the date of the Initial Public
Offering to any Participant (i) that is not a non-employee director of the Company shall
vest and be settled ratably (on a monthly, quarterly, annual or other basis as (as the
Committee may determine)) over no less than a period of three years and (ii) that is a
non-employee director of the Company shall vest and be settled ratably (on a monthly,
quarterly, annual or other basis as (as the Committee may determine)) over no less than a
period of three years, unless such Award is granted as part of such non-employee director’s
regular annual compensation paid in accordance with the Company’s director compensation
policy. Shares of Restricted Stock may not be sold, assigned, transferred, pledged or
otherwise encumbered or disposed of except as specifically provided in this Plan or the
applicable Award Agreement. Unless the applicable Award Agreement provides otherwise,
additional shares of Common Stock or other property distributed to the Participant in
respect of shares of Restricted Stock or Restricted Stock units, as dividends or otherwise,
shall be subject to the same restrictions applicable to such Restricted Stock or Restricted
Stock units.



     (b) Any Award of Restricted Stock or Restricted Stock units may be evidenced in such
manner as the Committee may deem appropriate, including, without limitation, book-entry
registration or issuance of a stock certificate or certificates. In the event any stock
certificate is issued in respect of Shares underlying a Restricted Stock Award, such
certificate shall be registered in the name of the Participant.



     (c) Unless the Committee shall otherwise determine, any certificate issued evidencing
Shares of Restricted Stock shall remain in the possession of the Company until such shares
are free of any restrictions specified in the applicable Award Agreement.



     Section 9. Other Stock-Based Awards. The Committee is authorized, subject to
limitations under applicable law, to grant to Participants such other Awards that may be
denominated or payable in, valued in whole or in part by reference to, or otherwise based
on, or related to, Shares or factors that may influence the value of Shares, including,
without limitation, convertible or exchangeable debt securities, other rights convertible
or exchangeable into Shares, purchase rights for Shares, Awards with value and payment
contingent upon performance of the Company or business units thereof or any other factors
designated by the Committee. The Committee shall determine the terms and conditions of such
Awards. Shares delivered pursuant to an Award in the nature of a purchase right granted
under this Section 9 shall be purchased for such consideration, paid for at such times, by
such methods, and in such forms, including, without limitation, cash, Shares, other Awards,
notes, or other property, as the Committee shall determine. Cash awards, as an element of
or supplement to any other Award under the Plan, may also be granted pursuant to this
Section 9. Other than Awards which are granted in lieu of cash consideration, (i) Awards
granted pursuant to this Section 9 that are in the nature of a Performance Award are
subject to the requirement set forth in Section 2 that the related Performance Period be a
period of at least nine months and (ii) Awards granted pursuant to this Section 9 that are
not in the nature of a Performance Award are subject to the minimum vesting and settlement
terms set forth in Section 6(c) and 8(a).



     Section 10. Performance Awards.



     (a) General. Performance Awards may be denominated as a cash amount, number of Shares,
number of Share units having a value equal to an identical number of Shares, or a
combination thereof and are awards which may be earned upon achievement or satisfaction of
performance conditions specified by the Committee. In addition, the Committee may specify
that any other Award shall constitute a Performance Award by conditioning the right of a
Participant to exercise the Award or have it settled, and the timing thereof, upon
achievement or satisfaction of such performance conditions as may be specified by the
Committee. The Committee may use such business criteria and other measures of performance
as it may deem appropriate in establishing any performance conditions. In the event that a
stock certificate is issued in respect of Performance Awards, such certificates shall be
registered in the name of the Participant but shall be held by the Company until the time
the performance shares are earned.



     (b) Performance Goals Generally. The performance goals for such Performance Awards
shall consist of one or more business criteria and a targeted level or levels of
performance with respect to each of such criteria, as specified by the Committee consistent
with this Section 10. The Committee may determine that such Performance Awards shall be
granted, exercised and/or settled upon achievement of any one performance goal or that two
or more of the performance goals must be achieved as a condition to grant, exercise and/or
settlement of such Performance Awards. Performance goals may differ for Performance Awards
granted to any one Participant or to different Participants.



     (c) Business Criteria. Without limitation of the use of other criteria, one or more of
the following business criteria for the Company, on a consolidated basis, and/or for
specified subsidiaries or affiliates or other business units of the Company may be used by
the Committee inestablishing performance goals for such Performance Awards: (i) earnings
per share, (ii) return on average common equity, (iii) pre-tax income, (iv) pre-tax
operating income, (v) net revenues, (vi) net income, (vii) profits before taxes, (viii)
book value per share, (ix) stock price, (x) earnings available to common shareholders, (xi)
ratio of compensation and benefits to net revenues and (xii) execution and origination of
assignments directly related to the individual covered employee. Such targets may relate to
the Company as a whole, or to one or more units thereof, and may be measured over such
periods of at



 









 




least nine months, as the Committee shall determine. The targeted level or levels of
performance with respect to such business criteria may be established at such levels and in
such terms as the Committee may determine, in its discretion, including in absolute terms,
as a goal relative to performance in prior periods, or as a goal compared to the
performance of one or more comparable companies or an index covering multiple companies.




     (d) Settlement of Performance Awards; Other Terms. Settlement of Performance Awards
shall be in cash, Shares, other Awards or other property, in the discretion of the
Committee. Performance Awards will be distributed only after the end of the relevant
Performance Period. The Committee may, in its discretion, increase or reduce (subject to
the rights of a Participant provided under Section 17 hereof) the amount of a settlement
otherwise to be made in connection with such Performance Awards, but may not exercise
discretion to increase any such amount payable to a Covered Employee in respect of a
Performance Award subject to Paragraph (b) above. The Committee shall specify the
circumstances in which such Performance Awards shall be paid or forfeited in the event of
termination of employment by the Participant.



     Section 11. Termination of Employment. Unless otherwise determined by the Committee or
provided by the Committee in the applicable Award Agreement, the following provisions shall
apply:



     (a) Upon a termination of employment as a result of death, Disability or Retirement:




     (i) any Award (other than Options) then held by the Participant will be immediately
accelerated and become fully vested, exercisable and payable, and




     (ii) any Option then held by the Participant will be immediately accelerated and
become fully vested and exercisable and will expire on the earlier of (A) the date the
option would have expired had the Participant continued in such employment and (B) one
(1) year after the date such Participant’s service ceases.



     (b) Upon termination of employment by the Company for cause (as determined by the
Committee in its sole discretion):




     (i) any Award then held by the Participant whose restrictions have not lapsed,
which is not exercisable or which is not payable will automatically be forfeited in full
and canceled by the Company upon such termination of employment, and




     (ii) any Option then held by the Participant, to the extent exercisable, will
automatically be forfeited in full and canceled by the Company upon such termination of
employment.



     (c) Upon a termination of employment by the Company without cause (as determined by
the Committee in its sole discretion) within two years following the occurrence of a Change
in Control or (ii) upon a termination of employment by the Company without cause (as
determined by the Committee in its sole discretion) six months prior to the occurrence of a
Change in Control if, in the case of (ii), the Committee reasonably determines in its sole
discretion that such termination was at the behest of the acquiring entity (each such
termination of employment deemed to be a termination of employment “in connection with” the
occurrence of a Change in Control):




     (i) any Award (other than Options) then held by the Participant will be immediately
accelerated and become fully vested, exercisable and payable, and




     (ii) any Option then held by the Participant will be immediately accelerated and
become fully vested, exercisable and payable and shall automatically expire on the
earlier of (A) the date the Option would have expired had the Participant continued in
such employment and (B) one year after the date such Participant’s service ceases, or,
in the case of clause (B), in the event the Committee determines the termination was
without cause at the behest of the acquiring entity, one (1) year after the date of such
determination.



     (d) Upon termination of employment for any reason other than those specified in (a),
(b) or (c) above:




     (i) any Award (other than Performance Awards) then held by the Participant whose
restrictions have not lapsed, which is not vested, which is not exercisable or which is
not payable will automatically be forfeited in full and canceled by the Company upon
such termination of employment,




     (ii) any Option then held by the Participant, to the extent exercisable, shall
automatically expire on the earlier of (A) the date the Option would have expired had
the Participant continued in such employment and (B) one hundred and eighty (180) days
(or ninety (90) days in the case of an Option that is intended to qualify as an
Incentive Stock Option) after the date the such Participant’s service ceases, and




     (iii) any Performance Award then held by the Participant which is not then payable
will be paid in accordance with its terms, which terms may provide that the Performance
Award be forfeited.



     (e) Unless the Committee determines at any time in its sole discretion that this
Section 11(e) shall not apply, in the event the Company sells or spins off a portion of its
assets or one of its Affiliates and a Participant is determined by the Committee to have a
termination of employment as a result of such sale or spin-off, then the Participant shall
be permitted to exercise Participant’s Options that are vested and outstanding on the
effective date of such termination until the earlier of one (1) year after such termination
of employment or the expiration of the Award.



     Section 12. Adjustment. In the event of any extraordinary dividend or other
extraordinary distribution (whether in the form of cash, Shares, other securities, or other
property), recapitalization, forward or reverse split, reorganization, merger,
consolidation, spin-off, combination, repurchase, share exchange, liquidation, dissolution
or other similar corporate transaction or event, then the Committee shall, in such manner
as it shall deem equitable, adjust any or all of (i) the maximum number of Shares that may
be issued under the Plan as set forth in Section 4(a) or the number and kind of Shares
which may be delivered in connection with Awards granted thereafter, (ii) the number and
kind of Shares by which annual per person Award limitations are measured under



 









 




Section 4(a), (iii) the number and kind of Shares subject to or deliverable in respect
of outstanding Awards and (iv) the exercise price, grant price or purchase price relating
to any Award. In addition, the Committee shall, in such manner as it shall deem equitable,
make adjustments in the terms and conditions of, and the criteria included in, Awards
(including Performance Awards and performance goals) in recognition of unusual or
nonrecurring events (including, without limitation, events described in the preceding
sentence, as well as acquisitions and dispositions of businesses and assets) affecting the
Company, any Subsidiary or Affiliate or other business unit, or the financial statements of
the Company or any Subsidiary or Affiliate, or in response to changes in applicable laws,
regulations, accounting principles, tax rates and regulations or business conditions or in
view of the Committee’s assessment of the business strategy of the Company, any Subsidiary
or Affiliate or business unit thereof, performance of comparable organizations, economic
and business conditions, personal performance of a Participant, and any other circumstances
deemed relevant. After any adjustment made pursuant to this paragraph, the number of shares
subject to each outstanding Award shall be rounded to the nearest whole number.




     Section 13. Change in Control. Subject to Section 11 of the Plan and except as
otherwise provided in the applicable Award Agreement, upon the occurrence of a Change in
Control, the Committee shall determine whether outstanding but unvested or unexercisable
Options under the Plan shall become fully vested and exercisable and whether outstanding
but unvested, unexercisable or not yet payable Awards (other than Options) under the Plan
shall become fully vested, exercisable and payable; provided that all Awards consisting of
Restricted Stock units granted in February 2006 in connection with the Initial Public
Offering shall become fully vested upon a Change in Control. In addition, upon a Change in
Control, the Committee may determine that any or all outstanding Awards granted under the
Plan shall be canceled and terminated; provided that, in connection with such cancellation
and termination of any Award which is then vested, exercisable or payable, the holder of
such Award receives for each Share subject to such Awards a cash payment (or the delivery
of Shares, other securities or a combination of cash, stock and securities equivalent to
such cash payment) equal to the difference, if any, between the consideration received by
shareholders of the Company in respect of a Share in connection with such transaction and
the purchase price per share, if any, under the Award multiplied by the number of Shares
subject to such Award; provided further that if such product is zero or less, the Awards
will be canceled and terminated without payment therefor.



     Section 14. Compliance with Laws; Transferability. (a) The Company may, to the extent
deemed necessary or advisable by the Committee, postpone the issuance or delivery of Shares
or payment of other benefits under any Award until completion of such registration or
qualification of such Shares or other required action under any applicable law, rule or
regulation, listing or other required action with respect to any stock exchange or
automated quotation system upon which the Shares or other securities of the Company are
listed or quoted, or compliance with any other obligationor policy of the Company, as the
Committee may consider appropriate, and may require any Participant to make such
representations, furnish such information and comply with or be subject to such other
conditions as it may consider appropriate in connection with the issuance or delivery of
Shares or payment of other benefits in compliance with applicable laws, rules, and
regulations, listing requirements, or other obligations or policies of the Company. Nothing
herein shall require the Company to list, register or qualify the shares of Common Stock on
any securities exchange.



     (b) Except as the Committee may otherwise determine from time to time, (i) no Award
and no right under any Award shall be assignable, alienable, saleable or transferable by a
Participant otherwise than by will or by the laws of descent and distribution; (ii) each
Award, and each right under any Award, shall be exercisable during the Participant’s
lifetime only by the Participant or, if permissible under applicable law, by the
Participant’s guardian or legal representative; and (iii) no Award and no right under any
such Award, may be pledged, alienated, attached, or otherwise encumbered, and any purported
pledge, alienation, attachment or encumbrance thereof shall be void and unenforceable
against the Company. The provisions of this Section 14(b) shall not apply to any Award
which has been fully exercised, earned or paid, as the case may be, and shall not preclude
forfeiture of an Award in accordance with the terms thereof.



     Section 15. Certain Tax Provisions. (a) The Company and any Subsidiary or Affiliate is
authorized to withhold from any Award granted, any payment relating to an Award under the
Plan, including from a distribution of Shares, or any payroll or other payment to a
Participant, amounts of withholding and other taxes due or potentially payable in
connection with any transaction involving an Award (including, without limitation, FICA
tax), and to take such other action as the Committee may deem advisable to enable the
Company and Participants to satisfy obligations for the payment of withholding taxes and
other tax obligations relating to any Award. This authority shall include authority to
withhold or receive Shares or other property and to make cash payments in respect thereof
in satisfaction of a Participant’s withholding obligations, either on a mandatory or
elective basis in the discretion of the Committee. Notwithstanding any other provision of
the Plan, only the minimum amount of Shares deliverable in connection with an Award
necessary to satisfy statutory withholding requirements will be withheld. For this purpose,
Fair Market Value shall be determined as of the date on which the amount of tax to be
withheld is determined (and any fractional share amount shall be settled in cash).



     (b) If any Participant shall make any disposition of Shares delivered pursuant to the
exercise of an Incentive Stock Option under the circumstances described in Section 421(b)
of the Code, such Participant shall notify the Company of such disposition within ten days
thereof.



     (c) If a Participant, in connection with the acquisition of Shares under the Plan, is
permitted under the terms of the Award Agreement to make the election permitted under
Section 83(b) of the Code (i.e., an election to include in gross income in the year of
transfer the amounts specified in Section 83(b) of the Code notwithstanding the continuing
transfer restrictions) and the Participant makes such an election, the Participant shall
notify the Company of such election within ten (10) days of filing notice of



 









 







the election with the Internal Revenue Service, in addition to any filing and
notification required pursuant to regulations issued under Section 83(b) of the Code.



     Section 16. General Provisions. (a) Neither the Plan nor any action taken hereunder
shall be construed as (i) giving any Eligible Person or Participant the right to continue
as an Eligible Person or Participant or in the employ or service of the Company or a
Subsidiary or Affiliate, (ii) interfering in any way with the right of the Company or a
Subsidiary or Affiliate to terminate any Eligible Person’s or Participant’s employment or
service at any time (subject to the terms and provisions of any separate written
agreements), (iii) giving an Eligible Person or Participant any claim to be granted any
Award under the Plan or to be treated uniformly with other Participants and employees, or
(iv) conferring on a Participant any of the rights of a shareholder of the Company unless
and until the Participant is duly issued or transferred Shares in accordance with the terms
of an Award. Except as expressly provided in the Plan and an Award Agreement, neither the
Plan nor any Award Agreement shall confer on any person other than the Company and the
Participant any rights or remedies thereunder.



     (b) The prospective recipient of any Award under the Plan shall not, with respect to
such Award, be deemed to have become a Participant, or to have any rights with respect to
such Award, until and unless such recipient shall have received or executed (if execution
is required) an Award Agreement or other instrument evidencing the Award and delivered a
copy thereof to the Company, and otherwise complied with the then applicable terms and
conditions.



     (c) The Committee shall have full power and authority to determine whether, to what
extent and under what circumstances any Award shall be canceled or suspended. These powers
may include cancellation or forfeiture if a Participant establishes a relationship with a
competitor of the Company or engages in activity which is in conflict with or adverse to
the interest of the Company, as determined under the Company’s non-competition policy, as
in effect from time to time.



     (d) The Committee shall be authorized to establish procedures pursuant to which the
payment of any Award may be deferred, either automatically, or at the election of the
Committee or a Participant. Subject to the provisions of the Plan and any Award Agreement,
the recipient of the Award (including, without limitation, any deferred Award) may, if so
determined by the Committee, be entitled to receive, currently or on a deferred basis, cash
dividends, or cash payments in amounts equivalent to cash dividends on Shares, with respect
to the number of Shares covered by the Award, as determined by the Committee, in its sole
discretion, and the Committee may provide that such amounts (if any) shall be deemed to
have been reinvested in additional Shares or otherwise reinvested. This Section 16(d) shall
not apply to any Award granted to any resident of Canada if the result of any such deferral
would be to postpone payment of such Award to a time later than the third anniversary of
the end of the calendar year in which the Award was granted.



     (e) If any provision of this Plan is or becomes or is deemed invalid, illegal or
unenforceable in any jurisdiction, or would disqualify the Plan or any Award under any law
deemed applicable by the Committee, such provision shall be construed or deemed amended to
the extent, but only to the extent, necessary to conform to applicable laws or if it cannot
be construed or deemed amended without, in the determination of the Committee, materially
altering the intent of the Plan, it shall be stricken and the remainder of the Plan shall
remain in full force and effect.



     (f) Awards may be granted to employees of the Company or any Subsidiary or Affiliate
who are foreign nationals or employed outside the United States, or both, on such terms and
conditions different from those applicable to Awards to those employees employed in the
United States as may, in the judgment of the Committee, be necessary or desirable in order
to recognize differences in local law or tax policy. The Committee also may impose
conditions on the exercise or vesting of Awards in order to minimize the Company’s
obligation with respect to tax equalization for employees of the Company or any Subsidiary
or Affiliate on assignments outside their home country.



     (g) Any and all grants of Awards and issuances of Shares under the Plan shall
constitute a special incentive payment to the Participant and shall not be taken into
account in computing the amount of salary or compensation of the Participant for the
purpose of determining any benefits under any pension, retirement, profit-sharing, bonus,
life insurance or other benefit plan of the Company or under any agreement with the
Participant, unless such plan or agreement specifically provides otherwise. Nothing
contained in the Plan shall be deemed in any way to limit or restrict the Company from
making any Award or payment to any person under any other plan, arrangement or
understanding, whether now existing or hereafter in effect.



     (h) The section headings contained herein are for the purpose of convenience only and
are not intended to define or limit the contents of the sections.



     (i) Except as expressly provided therein, neither the Plan nor any Award Agreement
shall confer on any person other than the Company and the Participant any rights or
remedies hereunder or thereunder.



     (j) The terms of the Plan shall be binding upon and inure to the benefit of the
Company and its successors and assigns.



     (k) Each grantee of an Award recognizes and agrees that prior to being selected by the
Committee to receive an Award he or she has no right to any benefits hereunder.
Accordingly, in consideration of the grantee’s receipt of any Award hereunder, he or she
expressly waives any right to contest the amount of any Award, the terms of any Award
Agreement, any determination, action or omission hereunder or under any Award Agreement by
the Committee, the Company or the Board, or any amendment to the Plan or any Award
Agreement (other than an amendment to this Plan or an Award Agreement to which his or her
consent is expressly required by the express terms of the Plan or an Award Agreement).



     Section 17. Effective Date; Amendment and Termination. (a) This Second Amended and
Restated Equity Incentive Plan shall become effective upon its approval by the shareholders
of the Company on May 19, 2008.



 









 





     (b) Unless the Plan will have been previously terminated by the Board, the Plan will
terminate ten years from the date set forth in Section 17(a). All Awards made under the
Plan prior to its termination shall remain in effect until such Awards have been satisfied
or terminated in accordance with the terms and provisions of the Plan and the applicable
Award Agreements. The Board will have the right, at any time to suspend, amend, alter,
discontinue or terminate thePlan, provided, however that no such action shall be made
without shareholder approval if such approval is required under tax or stock exchange rules
and regulations. No termination of the Plan or action by the Board in amending or
suspending the Plan may materially impair the rights of a Participant under any outstanding
Award, without the consent of the affected Participant, except any such amendment made to
cause the Plan to comply with applicable law, stock exchange rules and regulations or
accounting or tax rules and regulations (including but not limited to Section 409A of the
Code).



     (c) The Committee may waive any conditions or rights under, amend any terms of, or
amend, alter, suspend, discontinue or terminate, any Award theretofore granted,
prospectively or retroactively, without the consent of any Participant or holder or
beneficiary of any Award; provided, however, that, notwithstanding the foregoing in this
Section 17(c), no such action shall impair the rights of a Participant or holder or
beneficiary under any Award theretofore granted under the Plan.



     Section 18. Governing Law. The Plan will be governed by and construed in accordance
with the law of the State of New York, without giving effect to principles of conflict of
laws.