exv4w5






Exhibit 4.5




PIPER JAFFRAY COMPANIES

2010 EMPLOYMENT INDUCEMENT AWARD PLAN




Section 1. Purpose




     The purpose of the Plan is to promote the interests of the Company and its stockholders by
giving the Company a competitive advantage in attracting personnel capable of assuring the future
success of the Company and to provide such personnel with an appropriate and material inducement to
become employees of the Company (including in connection with a corporate transaction). All Awards
under the Plan are intended to qualify as “employment inducement awards” within the meaning of
Section 303A.08, or any successor provision, of the New York Stock Exchange Listed Company Manual.



Section 2. Definitions




     As used in the Plan, the following terms shall have the meanings set forth below.



     (a) “Affiliate” means any entity in which the Company has, directly or indirectly through one
or more intermediaries, a controlling interest or which has, directly or indirectly through one or
more intermediaries, a controlling interest in the Company, within the meaning of Treasury
Regulation § 1.409A-1(b)(5)(iii)(E).



     (b) “Award” means any Stock Option, Stock Appreciation Right, Restricted Stock, Restricted
Stock Unit, Dividend Equivalent, Other Stock Grant, Other Stock-Based Award or Tax Offset Bonus
granted under the Plan. All Awards are intended to qualify as employment inducement awards within
the meaning of Section 303A.08, or any successor provision, of the New York Stock Exchange Listed
Company Manual.



     (c) “Award Agreement” means any written agreement, contract or other instrument or document
evidencing any Award granted under the Plan. Each Award Agreement shall be subject to the
applicable terms and conditions of the Plan and any other terms and conditions (not inconsistent
with the Plan) determined by the Committee.



     (d) “Board” means the Board of Directors of the Company.



     (e) “Code” means the Internal Revenue Code of 1986, as amended from time to time, and any
regulations promulgated thereunder.



     (f) “Change in Control” has the meaning set forth in Section 7.



     (g) “Committee” means a committee of Directors designated by the Board to administer the Plan,
which initially shall be the Compensation Committee of the Board. The Committee shall be comprised
of not less than such number of Directors as shall be required to permit Awards granted under the
Plan to qualify under Rule 16b-3 and each member of the Committee shall be an Outside Director.



     (h) “Company” means Piper Jaffray Companies, a Delaware corporation.



     (i) “Director” means a member of the Board, including any Outside Director.













 





     (j) “Dividend Equivalent” means any right granted under Section 6(e) of the Plan.



     (k) “Effective Date” means January 1, 2010.



     (l) “Eligible Individual” means any employee (including any officer) or prospective employee
of the Company or any Affiliate who is eligible to receive employment inducement awards within the
meaning of Section 303A.08, or any successor provision, of the New York Stock Exchange Listed
Company Manual.



     (m) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.



     (n) “Exercise Price” has the meaning set forth in Section 6(a) of the Plan.



     (o) “Fair Market Value” means, with respect to any property (including, without limitation,
any Shares or other securities), the fair market value of such property determined by such methods
or procedures as shall be established from time to time by the Committee in good faith and in a
manner consistent with Code Section 409A. Notwithstanding the foregoing and except as otherwise
provided by the Committee, the Fair Market Value of a Share as of a given date shall be the closing
sales price for one Share on the New York Stock Exchange or such other established securities
market as may at the time be the principal market for the Shares, or if the Shares were not traded
on such national securities market or exchange on such date, then on the next preceding date on
which the Shares are traded, all as reported by such source as the Committee may select.



     (p) “Non-Qualified Stock Option” means any Stock Option that is not designated as, or is not
intended to qualify as, an “incentive stock option” within the meaning of Section 422 of the Code.



     (q) “Outside Director” means any Director who qualifies as a “non-employee director” within
the meaning of Rule 16b-3 and as an “independent director” pursuant to the requirements of the New
York Stock Exchange.



     (r) “Participant” means an Eligible Individual designated to be granted an Award under the
Plan.



     (s) “Performance Award” means any right granted under Section 6(d) of the Plan.



     (t) “Performance Goals” means the performance goals established by the Committee in connection
with the grant of an Award.



     (u) “Plan” means this Piper Jaffray Companies 2010 Employment Inducement Award Plan, as set
forth herein and as hereinafter amended from time to time.



     (v) “Restricted Stock” means any Share granted under Section 6(c) of the Plan.



     (w) “Restricted Stock Unit” means any unit granted under Section 6(c) of the Plan evidencing
the right to receive a Share (or a cash payment equal to the Fair Market Value of a Share) at some
future date.



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     (x) “Rule 16b-3” means Rule 16b-3, as promulgated by the Securities and Exchange Commission
under Section 16(b) of the Exchange Act, as amended from time to time.



     (y) “Share” or “Shares” means a share or shares of common stock, par value $.01 per share, of
the Company.



     (z) “Stock Appreciation Right” means any right granted under Section 6(b) of the Plan.



     (aa) “Stock Option” means a Non-Qualified Stock Option granted under Section 6(a) of the Plan.



Section 3. Administration




     (a) Power and Authority of the Committee. The Plan shall be administered by the Committee.
Subject to the terms of the Plan and to applicable law, the Committee shall have full power and
authority to:



          (i) designate Participants;




          (ii) determine whether and to what extent any type (or types) of Award is to be granted
hereunder;




          (iii) determine the number of Shares to be covered by (or the method by which payments or
other rights are to be determined in connection with) each Award;




          (iv) determine the terms and conditions of any Award or Award Agreement;




          (v) subject to Section 9 hereof, amend the terms and conditions of any Award or Award
Agreement and accelerate the vesting and/or exercisability of any Stock Option or waive any
restrictions relating to any Award; provided, however, that except for adjustments
pursuant to Section 4(c) of the Plan, in no event may any Stock Option granted under this Plan be
(x) amended to decrease the Exercise Price thereof, (y) cancelled in conjunction with the grant of
any new Stock Option with a lower Exercise Price, or (z) otherwise subject to any action that would
be treated, for accounting purposes, as a “repricing” of such Stock Option, unless such amendment,
cancellation, or action is approved by the stockholders of the Company to the extent required by
applicable law and stock exchange rules.




          (vi) determine whether, to what extent and under what circumstances the exercise price of
Awards may be paid in cash, Shares, other securities, other Awards or other property, or canceled,
forfeited or suspended;




          (vii) determine whether, to what extent and under what circumstances cash, Shares, other
securities, other Awards, other property and other amounts payable with respect to an Award under
the Plan shall be deferred either automatically or at the election of the holder thereof or the
Committee;




          (viii) interpret and administer the Plan and any instrument or agreement, including an Award
Agreement, relating to the Plan;




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          (ix) adopt, alter, suspend, waive or repeal such rules, guidelines and practices and appoint
such agents as it shall deem advisable or appropriate for the proper administration of the Plan;
and




          (x) make any other determination and take any other action that the Committee deems necessary
or desirable for the administration of the Plan.



Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations
and other decisions under or with respect to the Plan or any Award or Award Agreement shall be
within the sole discretion of the Committee, may be made at any time and shall be final, conclusive
and binding upon all persons, including without limitation, the Company, its Affiliates,
subsidiaries, shareholders, Eligible Individuals and any holder or beneficiary of any Award.




     (b) Action by the Committee; Delegation. Except to the extent prohibited by applicable law or
the applicable rules of a stock exchange, the Committee may delegate all or any part of its duties
and powers under the Plan to one or more persons, including Directors or a committee of Directors,
subject to such terms, conditions and limitations as the Committee may establish in its sole
discretion; provided, however, that the Committee shall not delegate its powers and
duties under the Plan with regard to officers or directors of the Company or any Affiliate who are
subject to Section 16 of the Exchange Act and provided, further, that any such
delegation may be revoked by the Committee at any time.



     (c) Power and Authority of the Board. Notwithstanding anything to the contrary contained
herein, except to the extent that the grant or exercise of such authority would cause any Award or
transaction to become subject to (or lose an exemption under) the short-swing profit recovery
provisions of Section 16 of the Exchange Act, the Board may, at any time and from time to time,
without any further action of the Committee, exercise the powers and duties of the Committee under
the Plan. To the extent that any permitted action taken by the Board conflicts with action taken by
the Committee, the Board action shall control.



Section 4. Shares Available for Awards




     (a) Shares Available. Subject to adjustment as provided in Section 4(c) of the Plan, the
aggregate number of Shares that may be issued under the Plan shall be 400,000. Shares that may be
issued under the Plan may be authorized but unissued Shares or Shares re-acquired and held in
treasury.



     (b) Accounting for Awards. For purposes of this Section 4, if an Award entitles the holder
thereof to receive or purchase Shares, the number of Shares covered by such Award or to which such
Award relates shall be counted on the date of grant of such Award against the aggregate number of
Shares available for granting Awards under the Plan. Any Shares that are used by a Participant as
full or partial payment to the Company of the purchase price relating to an Award, including in
connection with the satisfaction of tax obligations relating to an Award, shall again be available
for granting Awards under the Plan. In addition, if any Shares covered by an Award or to which an
Award relates are not purchased or are forfeited, or if an Award otherwise
terminates without delivery of any Shares, then the number of Shares counted against the aggregate
number of Shares available under the Plan with respect to such Award, to the extent of any such
forfeiture or termination, shall again be available for granting Awards under the Plan.



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     (c) Adjustments. In the event of any change in corporate capitalization (including, but not
limited to, a change in the number of Shares outstanding), such as a stock split or a corporate
transaction, such as any merger, consolidation, separation, including a spin-off, or other
distribution of stock or property of the Company (including any extraordinary cash or stock
dividend), any reorganization (whether or not such reorganization comes within the definition of
such term in Section 368 of the Code) or any partial or complete liquidation of the Company, the
Committee or Board may make such substitution or adjustments in the aggregate number and kind of
shares reserved for issuance under the Plan, and the maximum limitation upon Stock Options and
Stock Appreciation Rights and other Awards to be granted to any Participant, in the number, kind
and Exercise Price of shares subject to outstanding Stock Options and Stock Appreciation Rights, in
the number and kind of shares subject to other outstanding Awards granted under the Plan and/or
such other equitable substitution or adjustments as it may determine to be appropriate in its sole
discretion (including, without limitation, the provision of an amount in cash in consideration for
any such Awards); provided, however, that the number of shares subject to any Award
shall always be a whole number. Without limiting the generality of the foregoing, in connection
with any Disaffiliation of a subsidiary of the Company, the Committee shall have the authority to
arrange for the assumption or replacement of Awards with new awards based on shares of the affected
subsidiary or by an affiliate of an entity that controls the subsidiary following the
Disaffiliation. For purposes hereof, “Disaffiliation” of a subsidiary shall mean the subsidiary’s
ceasing to be a subsidiary of the Company for any reason (including, without limitation, as a
result of a public offering, spin-off, sale or other distribution or transfer by the Company of the
stock of the subsidiary). Notwithstanding the foregoing, to the extent that any Award is otherwise
considered to be deferred compensation under Section 409A of the Code, any adjustment to such Award
will comply with Section 409A of the Code (including current and future guidance issued by the
Department of Treasury and or the Internal Revenue Service).



Section 5. Eligibility



     Any Eligible Individual shall be eligible to be designated a Participant. In determining which
Eligible Individuals shall receive an Award and the terms of any Award, the Committee may take into
account the nature of the services to be rendered by the respective Eligible Individuals, their
potential contributions to the success of the Company or such other factors as the Committee, in
its discretion, shall deem relevant. Awards will only be granted to Eligible Individuals as a
material inducement to such Eligible Individual to become an employee of the Company or one of its
Affiliates (including in connection with a corporate transaction) or to be rehired by the Company
or one of its Affiliates following a bona fide interruption of employment. Any grant of an Award
shall not become effective unless and until the Eligible Individual actually becomes an employee of
the Company or one of its Affiliates.



Section 6. Awards




     (a) Stock Options. The Committee is hereby authorized to grant Stock Options (which may only
be Non-Qualified Stock Options) to Eligible Individuals with 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:



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          (i) Exercise Price. The purchase price per Share purchasable under a Stock Option (the
“Exercise Price”) shall be determined by the Committee; provided, however,
that such Exercise Price shall not be less than 100% of the Fair Market Value of a Share on the
date of grant of such Stock Option.




          (ii) Option Term. The term of each Stock Option shall be fixed by the Committee at the time of
grant, but in no event shall be more than 10 years from the date of grant.




          (iii) Time and Method of Exercise. The Committee shall determine the time or times at which a
Stock Option may be exercised in whole or in part and the method or methods by which, and the form
or forms (including, without limitation, cash, Shares, other securities, other Awards or other
property, or any combination thereof, having a Fair Market Value on the exercise date equal to the
applicable Exercise Price) in which, payment of the Exercise Price with respect thereto may be made
or deemed to have been made.




     (b) Stock Appreciation Rights. The Committee is hereby authorized to grant Stock Appreciation
Rights to Eligible Individuals subject to the terms of the Plan. Each Stock Appreciation Right
granted under the Plan shall confer on the holder upon exercise the right to receive, as determined
by the Committee, cash or a number of Shares whose Fair Market Value is equal to the excess of (A)
the Fair Market Value of one Share on the date of exercise (or, if the Committee shall so determine
in accordance with the requirements of Code Section 409A, at any time during a specified period not
more than 30 days before or after the date of exercise) over (B) the grant price of the Stock
Appreciation Right as determined by the Committee, which grant price shall not be less than 100% of
the Fair Market Value of one Share on the date of grant of the Stock Appreciation Right. Subject to
the terms of the Plan, the grant price, term, methods of exercise, dates of exercise, methods of
settlement and any other terms and conditions (including conditions or restrictions on the exercise
thereof) of any Stock Appreciation Right shall be as determined by the Committee, provided
that in no event shall the term of a Stock Appreciation Right be longer than ten years.



     (c) Restricted Stock and Restricted Stock Units. The Committee is hereby authorized to grant
Restricted Stock and Restricted Stock Units to Eligible Individuals with 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:



          (i) Restrictions. Shares of Restricted Stock and Restricted Stock Units shall be subject to
such restrictions as the Committee may impose (including, without limitation, limitation on
transfer, forfeiture conditions, limitation on the right to vote a Share of Restricted Stock or the
right to receive any dividend or other right or property with respect thereto), which restrictions
may lapse separately or in combination at such time or times, in such installments or otherwise as
the Committee may deem appropriate.




          (ii) Stock Certificates; Delivery of Shares.




               (A) Any Restricted Stock granted under the Plan shall be evidenced in such manner as the
Committee may deem appropriate, including book-entry registration or
issuance of one or more stock certificates. Any certificate issued in respect of shares of
Restricted Stock shall be registered in the name of such Participant and shall bear an appropriate
legend referring to the applicable Award Agreement and possible forfeiture of such shares of
Restricted Stock. The Committee may require that the certificates evidencing such



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shares be held in
custody by the Company until the restrictions thereon shall have lapsed and that, as a condition of
any Award of Restricted Stock, the Participant shall have delivered a stock power, endorsed in
blank, relating to the Shares covered by such Award.



               (B) In the case of Restricted Stock Units, no Shares or other property shall be issued at the
time such Awards are granted. Upon the lapse or waiver of restrictions and the restricted period
relating to Restricted Stock Units (or at such later time as may be determined by the Committee),
Shares or other cash or property shall be issued to the holder of the Restricted Stock Units and
evidenced in such manner as the Committee may deem appropriate, including book-entry registration
or issuance of one or more stock certificates.



          (iii) Forfeiture. Except as otherwise determined by the Committee, upon a Participant’s
termination of employment (as determined under criteria established by the Committee) during the
applicable restriction period, all applicable Shares of Restricted Stock and Restricted Stock Units
at such time subject to restriction shall be forfeited and reacquired by the Company;
provided, however, that the Committee may, when it finds that a waiver would be in
the best interest of the Company, waive in whole or in part any or all remaining restrictions with
respect to Shares of Restricted Stock or Restricted Stock Units.




     (d) Performance Awards. The Committee is hereby authorized to grant Performance Awards to
Eligible Individuals subject to the terms of the Plan. A Performance Award granted under the Plan
(i) may be denominated or payable in cash, Shares (including, without limitation, Restricted Stock
and Restricted Stock Units), other securities, other Awards or other property and (ii) shall confer
on the holder thereof the right to receive payments, in whole or in part, upon the achievement of
such performance goals during such performance periods as the Committee shall establish. Subject to
the terms of the Plan, the performance goals to be achieved during any performance period, the
length of any performance period, the amount of any Performance Award granted, the amount of any
payment or transfer to be made pursuant to any Performance Award and any other terms and conditions
of any Performance Award shall be determined by the Committee.



     (e) Dividend Equivalents. The Committee is hereby authorized to grant Dividend Equivalents to
Eligible Individuals under which the Participant shall be entitled to receive payments (in cash,
Shares, other securities, other Awards or other property as determined in the discretion of the
Committee) equivalent in value to the amount of cash dividends paid by the Company to holders of
Shares with respect to a number of Shares determined by the Committee. Subject to the terms of the
Plan, such Dividend Equivalents may have such terms and conditions as the Committee shall
determine, but no right to a Dividend Equivalent shall be contingent, directly or indirectly, upon
the exercise of a Stock Option or Stock Appreciation Right.



     (f) Other Stock Grants. The Committee is hereby authorized, subject to the terms of the Plan,
to grant to Eligible Individuals Shares without restrictions thereon as are deemed by the Committee
to be consistent with the purpose of the Plan.



     (g) Other Stock-Based Awards. The Committee is hereby authorized to grant to Eligible
Individuals, subject to the terms of the Plan, such other Awards that are denominated or payable
in, valued in whole or in part by reference to, or otherwise based on or related to, Shares
(including, without limitation, securities convertible into Shares), as are deemed by the



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Committee
to be consistent with the purpose of the Plan. Shares or other securities delivered pursuant to a
purchase right granted under this Section 6(g) shall be purchased for such consideration, which may
be paid by such method or methods and in such form or forms (including, without limitation, cash,
Shares, other securities, other Awards or other property or any combination thereof), as the
Committee shall determine, the value of which consideration, as established by the Committee, shall
not be less than 100% of the Fair Market Value of such Shares or other securities as of the date
such purchase right is granted.



     (h) General.



          (i) Consideration for Awards. Awards may be granted for no cash consideration or for any cash
or other consideration as determined by the Committee and required by applicable law.




          (ii) Awards May Be Granted Separately or Together. Awards may, in the discretion of the
Committee, be granted either alone or in addition to, in tandem with or in substitution for any
other Award or any award granted under any plan of the Company or any Affiliate. Awards granted in
addition to or in tandem with other Awards or in addition to or in tandem with awards granted under
any such other plan of the Company or any Affiliate may be granted either at the same time as or at
a different time from the grant of such other Awards or awards.




          (iii) Forms of Payment Under Awards. Subject to the terms of the Plan, payments or transfers
to be made by the Company or an Affiliate upon the grant, exercise or settlement of an Award may be
made in such form or forms as the Committee shall determine (including cash, Shares, other
securities, other Awards or other property or any combination thereof); provided,
however, that such payments or transfers shall not be in the form of promissory notes. Such
payments or transfers may be made in a single payment or transfer, in installments or on a deferred
basis, in each case in accordance with rules and procedures established by the Committee. Such
rules and procedures may include, without limitation, provisions for the payment or crediting of
reasonable interest on installment or deferred payments or the grant or crediting of Dividend
Equivalents with respect to installment or deferred payments.




          (iv) Limits on Transfer of Awards. No Award (other than Other Stock Grants) and no right under
any such Award shall be transferable by a Participant otherwise than by will or by the laws of
descent and distribution and the Company shall not be required to recognize any attempted
assignment of such rights by any Participant; provided, however, that, if so
determined by the Committee, a Participant may, in the manner established by the Committee,
designate a beneficiary or beneficiaries to exercise the rights of the Participant and receive any
property distributable with respect to any Award upon the death of the Participant; and
provided, further, that, if so determined by the Committee, a Participant may
transfer a Non-Qualified Stock Option to any Family Member (as such term is defined in the General
Instructions to Form S-8 (or successor to such Instructions or such Form)) at any time that such
Participant holds such Stock Option, whether directly or indirectly or by means of a trust or
partnership or otherwise,
provided that the Participant may not receive any consideration for such transfer, the
Family Member may not make any subsequent transfers other than by will or by the laws of descent
and distribution and the Company receives written notice of such transfer. Except as otherwise
determined by the Committee, each Award or right under any such Award shall be exercisable during
the Participant’s lifetime only by the Participant or, if




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permissible under applicable law, by the
Participant’s guardian or legal representative. Except as otherwise determined by the Committee, no
Award or right under any such Award may be pledged, alienated, attached or otherwise encumbered,
and any purported pledge, alienation, attachment or other encumbrance thereof shall be void and
unenforceable against the Company or any Affiliate.




          (v) Term of Awards. Subject to Section 6(a)(ii) of the Plan, the term of each Award shall be
for such period as may be determined by the Committee.




          (vi) Restrictions. All Shares or other securities delivered under the Plan pursuant to any
Award or the exercise thereof shall be subject to such stop transfer orders and other restrictions
as the Committee may deem advisable under the Plan, applicable federal or state securities laws and
regulatory requirements, and the Committee may direct appropriate stop transfer orders and cause
other legends to be placed on the certificates for such Shares or other securities to reflect such
restrictions.




Section 7. Change in Control




     (a) Impact of Event. Notwithstanding any other provision of the Plan to the contrary, unless
otherwise provided by the Committee in any Award Agreement, in the event of a Change in Control:



          (i) Any Stock Options and Stock Appreciation Rights outstanding as of the date of such Change
in Control, and which are not then exercisable and vested, shall become fully exercisable and
vested.




          (ii) The restrictions applicable to any Restricted Stock and Restricted Stock Units shall
lapse, and such Restricted Stock and Restricted Stock Units shall become free of all restrictions
and become fully vested.




          (iii) All restrictions on other Awards shall lapse and such Awards shall become free of all
restrictions and become fully vested.




     (b) Definition of Change in Control. For purposes of the Plan, and unless otherwise provided
in an applicable Award Agreement, a “Change in Control” shall mean the happening of any of the
following events:



          (i) An acquisition by any individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act) (a “Person”) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (1) the then outstanding
shares of common stock of the Company (the “Outstanding Company Common Stock”) or (2) the
combined voting power of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the “Outstanding Company Voting Securities”);
excluding, however, the following: (1) Any acquisition directly from the Company, other than an
acquisition by virtue of the exercise of a conversion privilege unless the
security being so converted was itself acquired directly from the Company, (2) Any acquisition by
the Company, (3) Any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any entity controlled by the Company, or (4) Any acquisition pursuant
to a transaction which complies with clauses (1), (2) and (3) of subsection (iii) of this Section
7(b); or





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          (ii) A change in the composition of the Board such that the individuals who, as of the
Effective Date, constitute the Board (such Board shall be hereinafter referred to as the
“Incumbent Board”) cease for any reason to constitute at least a majority of the Board;
provided, however, for purposes of this Section 7(b), that any individual who
becomes a member of the Board subsequent to the Effective Date, whose election, or nomination for
election by the Company’s shareholders, was approved by a vote of at least a majority of those
individuals who are members of the Board and who were also members of the Incumbent Board (or
deemed to be such pursuant to this proviso) shall be considered as though such individual were a
member of the Incumbent Board; but, provided, further, that any such individual
whose initial assumption of office occurs as a result of an actual or threatened election contest
with respect to the election or removal of directors or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board shall not be so considered as
a member of the Incumbent Board; or




          (iii) Consummation of a reorganization, merger or consolidation or sale or other disposition
of all or substantially all of the assets of the Company (“Corporate Transaction”);
excluding, however, such a Corporate Transaction pursuant to which (1) all or substantially all of
the individuals and entities who are the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities immediately prior to such Corporate
Transaction will beneficially own, directly or indirectly, more than 50% of, respectively, the
outstanding shares of common stock, and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the case may be, of the
corporation resulting from such Corporate Transaction (including, without limitation, a corporation
which as a result of such transaction owns the Company or all or substantially all of the Company’s
assets either directly or through one or more subsidiaries) in substantially the same proportions
as their ownership, immediately prior to such Corporate Transaction, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, as the case may be, (2) no Person (other
than the Company, any employee benefit plan (or related trust) of the Company or such corporation
resulting from such Corporate Transaction) will beneficially own, directly or indirectly, 20% or
more of, respectively, the outstanding shares of common stock of the corporation resulting from
such Corporate Transaction or the combined voting power of the outstanding voting securities of
such corporation entitled to vote generally in the election of directors except to the extent that
such ownership existed prior to the Corporate Transaction, and (3) individuals who were members of
the Incumbent Board will constitute at least a majority of the members of the board of directors of
the corporation resulting from such Corporate Transaction; or




          (iv) The approval by the shareholders of the Company of a complete liquidation or dissolution
of the Company.




Section 8. Income Tax Withholding




     No later than the date as of which an amount first becomes includible in the gross income of a
Participant for federal or foreign income tax purposes with respect to any Award under the Plan,
the Participant shall pay to the Company, or make arrangements satisfactory to the Company
regarding the payment of, any federal, state, local or foreign taxes of any kind required by law to
be withheld with respect to such amount. The obligations of the Company under the Plan shall be
conditional on such payment or arrangements, and the Company and its Affiliates shall, to the
extent permitted by law, be entitled to take such action and establish such



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procedures as it deems
appropriate to withhold or collect all applicable payroll, withholding, income or other taxes from
such Participant, including without limitation withholding applicable tax from Participant’s cash
compensation paid by the Company or an Affiliate. In order to assist a Participant in paying all or
a portion of the federal, state, local and foreign taxes to be withheld or collected upon exercise
or receipt of (or the lapse of restrictions relating to) an Award, the Committee, in its discretion
and subject to such additional terms and conditions as it may adopt, may permit the Participant to
satisfy such tax obligation by (i) electing to have the Company withhold a portion of the Shares or
other property otherwise to be delivered upon exercise or receipt of (or the lapse of restrictions
relating to) such Award with a Fair Market Value equal to the amount of such taxes or (ii)
delivering to the Company Shares or other property other than Shares issuable upon exercise or
receipt of (or the lapse of restrictions relating to) such Award with a Fair Market Value equal to
the amount of such taxes, provided that, in either case, not more than the legally required
minimum withholding may be settled with Shares. Any such election must be made on or before the
date that the amount of tax to be withheld is determined.



Section 9. Amendment and Termination




     (a) Amendments to the Plan. The Board may amend, alter, suspend, discontinue or terminate the
Plan at any time; provided, however, that, notwithstanding any other provision of
the Plan or any Award Agreement, without the approval of the stockholders of the Company, no
amendment, alteration, suspension, discontinuation or termination shall be made that requires
stockholder approval under the rules or regulations of the New York Stock Exchange, any other
securities exchange or the Financial Industry Regulatory Authority, Inc. that are applicable to the
Company.



     (b) Amendments to Awards. The Committee may waive any conditions of or rights of the Company
under any outstanding Award, prospectively or retroactively. The Committee may unilaterally amend
any Award, and it will be conclusively presumed that such action will not adversely affect the
rights of the holder of such Award, if such amendment is determined by the Committee to be
necessary to cause the Award to be exempt from the application of, or to comply with, Code Section
409A.



     (c) Correction of Defects, Omissions and Inconsistencies. The Committee may correct any
defect, supply any omission or reconcile any inconsistency in the Plan or any Award in the manner
and to the extent it shall deem desirable to carry the Plan into effect.



Section 10. General Provisions



     (a) No Rights to Uniform Treatment. There is no obligation for uniformity of treatment of
Eligible Individuals or holders or beneficiaries of Awards under the Plan. The terms and
conditions of Awards need not be the same with respect to any Participant or with respect to
different Participants.



     (b) Award Agreements. No Participant will have rights under an Award granted to such
Participant unless and until an Award Agreement shall have been duly executed on behalf of the
Company and, if requested by the Company, signed by the Participant. In the event that any
provision of an Award Agreement conflicts with or is inconsistent in any respect with the terms of
the Plan as set forth herein or subsequently amended, the terms of the Plan shall control.



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     (c) No Rights of Stockholders. Except with respect to Shares of Restricted Stock as to which
the Participant has been granted the right to vote, neither a Participant nor the Participant’s
legal representative shall be, or have any of the rights and privileges of, a stockholder of the
Company with respect to any Shares issuable to such Participant upon the exercise or payment of any
Award, in whole or in part, unless and until such Shares have been issued in the name of such
Participant or such Participant’s legal representative without restrictions thereto.



     (d) No Limit on Other Compensation Plans or Arrangements. Nothing contained in the Plan shall
prevent the Company or any Affiliate from adopting or continuing in effect other or additional
compensation arrangements, and such arrangements may be either generally applicable or applicable
only in specific cases.



     (e) No Right to Employment. The Plan shall not constitute a contract of employment, and
adoption of the Plan or the grant of an Award shall not be construed as giving a Participant the
right to be retained as an employee of the Company or an Affiliate, nor shall it affect in any way
the right of the Company or an Affiliate to terminate such employment at any time, with or without
cause. In addition, the Company or an Affiliate may at any time dismiss a Participant from
employment free from any liability or any claim under the Plan or any Award, unless otherwise
expressly provided in the Plan or in any Award Agreement.



     (f) Governing Law. The Plan and all Awards granted and actions taken thereunder shall be
governed by and construed in accordance with the laws of the State of Delaware, without reference
to principles of conflict of laws thereof.



     (g) Severability. If any provision of the Plan or any Award is or becomes or is deemed to be
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 conform to applicable laws, or if it cannot be so construed or deemed amended without,
in the determination of the Committee, materially altering the purpose or intent of the Plan or the
Award, such provision shall be stricken as to such jurisdiction or Award, and the remainder of the
Plan or any such Award shall remain in full force and effect.



     (h) Application to Participants Outside the United States. In the event an Award is granted
to a Participant who is employed or providing services outside the United States and who is not
compensated from a payroll maintained in the United States, the Committee may, in its sole
discretion, modify the provisions of the Plan as they pertain to such individual to comply with
applicable foreign law.



     (i) No Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to
create a trust or separate fund of any kind or a fiduciary relationship between the
Company or any Affiliate and an Eligible Individual or any other person. To the extent that any
person acquires a right to receive payments from the Company or any Affiliate pursuant to an Award,
such right shall be no greater than the right of any unsecured general creditor of the Company or
any Affiliate.



     (j) Other Benefits. No compensation or benefit awarded to or realized by any Participant
under the Plan shall be included for the purpose of computing such Participant’s compensation under
any compensation-based retirement, disability, or similar plan of the Company unless required by
law or otherwise provided by such other plan.



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     (k) No Fractional Shares. No fractional Shares shall be issued or delivered pursuant to the
Plan or any Award, and the Committee shall determine whether cash shall be paid in lieu of any
fractional Shares or whether such fractional Shares or any rights thereto shall be canceled,
terminated or otherwise eliminated.



     (l) Headings. Headings are given to the Sections and subsections of the Plan solely as a
convenience to facilitate reference. Such headings shall not be deemed in any way material or
relevant to the construction or interpretation of the Plan or any provision thereof.



     (m) Section 16 Compliance. The Plan is intended to comply in all respects with Rule 16b-3 or
any successor provision, as in effect from time to time, and in all events the Plan shall be
construed in accordance with the requirements of Rule 16b-3. If any Plan provision does not comply
with Rule 16b-3 as hereafter amended or interpreted, the provision shall be deemed inoperative. The
Board, in its absolute discretion, may bifurcate the Plan so as to restrict, limit or condition the
use of any provision of the Plan with respect to persons who are officers or directors subject to
Section 16 of the Exchange Act without so restricting, limiting or conditioning the Plan with
respect to other Eligible Individuals.



     (n) Conditions Precedent to Issuance of Shares. Shares shall not be issued pursuant to the
exercise or payment of the Exercise Price or purchase price relating to an Award unless such
exercise or payment and the issuance and delivery of such Shares pursuant thereto shall comply with
all relevant provisions of law, including, without limitation, the Securities Act of 1933, as
amended from time to time, the Exchange Act, the rules and regulations promulgated thereunder, the
requirements of any applicable stock exchange and the Delaware General Corporation Law. As a
condition to the exercise or payment of the Exercise Price or purchase price relating to such
Award, the Company may require that the person exercising or paying the Exercise Price or purchase
price represent and warrant that the Shares are being purchased only for investment and without any
present intention to sell or distribute such Shares if, in the opinion of counsel for the Company,
such a representation and warranty is required by law.



     (o) Conformance to Section 409A of the Code. To the extent that any Award constitutes a
deferral of compensation subject to Section 409A of the Code, the following provisions shall apply
notwithstanding any other provision of the Plan:



          (i) If such Award provides for a change in the time or form of payment of such Award upon a
Change in Control of the Company, no Change in Control shall be deemed to have occurred upon an
event described in Section 7(b) of the Plan unless such event would also
constitute a change in ownership or effective control of, or a change in the ownership of a
substantial portion of the assets of, the Company under Section 409A of the Code.




          (ii) If any amount is payable under such Award upon a termination of employment or other
service, a termination of employment or other service will be deemed to have occurred only at such
time as the Participant has experienced a “separation from service” as such term is defined for
purposes of Code Section 409A.




          (iii) If any amount shall be payable with respect to any such Award as a result of a
Participant’s “separation from service” at such time as the Participant is a “specified employee,”
then no payment shall be made, except as permitted under Code Section 409A, prior to the first day
of the seventh (7th) calendar month beginning after the Participant’s separation from service (or
the date of his or her earlier death). The Company may adopt a “specified




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employee identification
policy” which specifies the identification date, the effective date of any change in the key
employee group, compensation definition and other variables that are relevant in identifying
specified employees, and which may include an alternative method of identifying specified employees
consistent with the regulations under Code Section 409A. In the absence of any such policy or
policy provision, for purposes of the above, the “identification date” is each December 31st, and
an employee who satisfies the above conditions will be considered to be a “specified employee” from
April 1st following the identification date to March 31st of the following year, and the
compensation and other variables, and special rules for corporate events and special rules relating
to nonresident aliens, that is necessary in identifying specified employees will be determined and
applied in accordance with the defaults specified in the regulations under Code Section 409A. Any
Specified Employee Identification Policy will apply uniformly to all nonqualified deferred
compensation plans subject to Code Section 409A that are maintained by the Company or an Affiliate.



To the extent the Committee elects to exercise its discretion to permit or require a
Participant to defer receipt of cash or Shares that would otherwise be due to him or her under the
Plan upon the vesting or settlement of any Award, such deferral shall occur in accordance with a
written plan, rules or procedures adopted for that purpose by the Committee. Any such plan, rules
or procedures shall comply with the requirements of Code Section 409A, including those with respect
to the time when a deferral election may be made, the period of the deferral and the events that
would result in the payment of the deferred amount.




Section 11. Term of the Plan




     The Plan will terminate on the tenth anniversary of the Effective Date or any earlier date of
discontinuation or termination established pursuant to Section 9 of the Plan. However, unless
otherwise expressly provided in the Plan or in an applicable Award Agreement, any Award theretofore
granted may extend beyond such date, and the authority of the Committee provided for hereunder with
respect to the Plan and any Awards, and the authority of the Board to amend the Plan, shall extend
beyond the termination of the Plan.





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