exv10w16






EXHIBIT 10.16




LPL Investment Holdings Inc.

FINANCIAL INSTITUTION 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 the 2008 Advisor Incentive Plan (the
“Advisor 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 the Advisor 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 Advisor 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 key financial institutions 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 may be transferred only as the Administrator expressly provides in
writing and may be exercised only by the Participant or such authorized transferee.



          (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 all Awards held by the Participant or the Participant’s
permitted transferees, if any, immediately prior to the termination of the 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.



          (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.



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          (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 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.



          (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.



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          (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 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



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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.



     (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



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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 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.



     (c) Warrants under Applicable Law. If the Administrator determines that a transfer of Warrants
or Shares deliverable pursuant to the exercise of a Warrant to a financial institution is void or
voidable, the Warrant and any Shares deliverable thereunder will be automatically forfeited and the
Participant will have no right to consideration or compensation



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with respect of the forfeited Warrant or Shares.




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”: Warrants.



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



     “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) 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




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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. Financial Institution Incentive Plan as from time to
time amended and in effect.



     “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.



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



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



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     “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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