Exhibit 10.1


 


LPL
INVESTMENT HOLDINGS INC.


2008
NONQUALIFIED DEFERRED COMPENSATION PLAN


 


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LPL
INVESTMENT HOLDINGS INC.


2008
NONQUALIFIED DEFERRED COMPENSATION PLAN


 


1.             Purpose.  The purpose of the LPL Investment Holdings
Inc. 2008 Nonqualified Deferred Compensation Plan is to permit employees and
former employees of LPL Investment Holdings Inc. and its subsidiaries holding
stock options expiring in 2009 or 2010 issued under the Company’s 1999 Stock
Option Plan, as amended, to accumulate capital through the deferral of certain
compensation paid to them for their services.


 


2.             Definitions.


 


(a)           “Account” means the deferred compensation bookkeeping account
established for the Participant pursuant to Section 5(a).


 


(b)           “Administrator” means the Board or, if one or more has been
appointed, a committee of the Board.  The
Administrator may delegate ministerial tasks to such persons as it deems
appropriate.


 


(c)           “Aggregate Dividend Amount” has the meaning in Section 5(b).


 


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


 


(e)           “Cause” has the meaning ascribed to such term in any
employment agreement other similar agreement between the Participant and the
Company, or, if no such agreement exists or the provisions of such agreements
conflict, a termination by the Company of the Participant’s employment or a
termination by the Participant of the Participant’s employment, in either case
following the occurrence of any of the following events: (i) the
Participant’s willful and continued failure to perform, or gross negligence or
willful misconduct in the performance of, his or her material duties with
respect to the Company which, if curable, continues beyond ten business days
after a written demand for substantial performance is delivered to the
Participant by the Company; or (ii) Participant’s conviction of, or a plea
of nolo contendere to, a crime constituting a felony under the laws of the
United States or any state thereof; (iii) the Participant’s committing or
engaging in any act of fraud, embezzlement, theft or other act of dishonesty
against the Company or its subsidiaries that causes material injury, monetarily
or otherwise, to the Company; or (iv) the Participant’s breach of his or
her non-competition or non-solicitation obligations in any agreement with the
Company that causes material injury, monetarily or otherwise, to the Company.


 


(f)            “Change
in Control” means  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 


 


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does not directly, or
indirectly through one or more entities, have the power to elect a majority of
the entire board of directors or other similar governing body of the Company or
other surviving entity immediately after such consolidation, merger,
reorganization or transaction, (ii) any transaction or series of related
transactions, whether or not the Company is party thereto, after giving effect
to which in excess of fifty percent (50%) of the Company’s voting power is
owned directly, or indirectly through one or more entities, by any person and
its “affiliates” or “associates” (as such terms are defined in the Exchange Act
Rules) or any “group” (as defined in the Exchange Act Rules) other than, in
each case, the Company or an affiliate of the Company immediately following the
Closing, or (iii) a sale or other disposition of all or substantially all
of the consolidated assets of the Company (each of the foregoing, a “Business Combination”), provided
that, notwithstanding the foregoing, the following transactions shall in no event constitute a Change in Control: (A) a
Business Combination following which the individuals or entities who were
beneficial owners of the outstanding securities entitled to vote generally in
the election of directors of the Company immediately prior to such Business
Combination beneficially own, directly or indirectly, fifty percent (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;
provided, however, that in all events a change in control shall comply with the
requirements of Treasury Regulations Section 1.409A-3.


 


(g)           “Common Stock” means the common stock of the Company, $0.001
par value per share.


 


(h)           “Company” means LPL Investment Holdings Inc. and its
subsidiaries.


 


(i)            “Disability” means that the Company determines in its sole
discretion that the Participant has been terminated as a result of the employee
having become totally and permanently disabled. For this purpose, totally and
permanently disabled means that the Participant is unable to engage in any
substantial gainful activity by reason of any medically determinable physical
or mental impairment that can be expected to result in death or can be expected
to last for a continuous period of not less than 12 months.


 


(j)            “Distribution Event” means earliest to occur of: (a) death,
(b) Disability, (c) Change in Control, or (d) a date in 2012 to
be determined by the Board.  For the
avoidance of doubt, termination of employment is not a Distribution Event.


 


(k)           “Effective Date” means December 31, 2008.


 


(l)            “Elected Options” means stock options of the Company for
which a Participant has submitted a written election to defer the stock option
no later than the Effective Date.


 


(m)          “Exchange Act Rules” means the rules and regulations
promulgated pursuant to the Securities Exchange Act of 1934, as amended, or any
successor regulation.


 


(n)           “Fair Market Value” means the fair market value of the Common
Stock on any given date as determined by the Board in good faith.


 


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(o)           “Initial Balance” means an amount equal to the aggregate fair
market value of the shares underlying the Elected Options on the Effective Date
less the aggregate exercise price of the Elected Options.


 


(p)           “Participant” means an employee or former employee of the
Company who has elected to defer the Elected Options as provided in Section 4.


 


(q)           “Plan” means the LPL Investment Holdings Inc. 2008
Nonqualified Deferred Compensation Plan as set forth herein, as amended from
time to time.


 


(r)            “Payment Date” means a date determined by the Board in its
sole discretion that is within ninety (90) days of the occurrence of a
Distribution Event, subject to adjustment pursuant to Section 6(b);
provided that, in any event, the Payment Date for a Distribution Event pursuant
to Section 2(j)(d) shall occur no later than December 31, 2012.


 


(s)           “Stock Unit” means a bookkeeping entry of which one Stock
Unit is the equivalent of one share of Common Stock.


 


3.             Administration.  The Administrator has discretionary
authority, subject only to the express provisions of the Plan, to interpret the
Plan; determine eligibility for the Plan; determine, modify or waive the terms
and conditions of any Account; 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.             Participation.


 


a.             An employee or former
employee of the Company holding stock options expiring in 2009 or 2010 that
were issued under the Company’s 1999 Stock Option Plan who submits to the
Administrator a completed written election to defer the Elected Options shall
participate in the Plan on the terms and conditions set forth herein.  Such election shall be made at the time and
in the manner determined by the Administrator, to become effective on the
Effective Date.


 


b.             A Participant’s
participation in the Plan shall continue until the entire balance in the
Participant’s Account has been paid in full.


 


5.             Accounts.


 


(a)           The
Administrator shall establish an Account for each Participant on its books to
which there shall be credited the Initial Balance with respect to the Participant.  The Account shall be represented by Stock
Units.  The initial number of Stock Units
in the Participant’s Account shall be equal to the Initial Balance divided by
the Fair Market Value of the Common Stock on the Effective Date.


 


(b)           In
the event a cash dividend is paid on the Common Stock while a Participant is
currently employed by the Company, each Participant’s Account will be adjusted
by crediting an amount equal to the amount of the cash dividend paid multiplied
by the number of Stock Units in the Participant’s Account on the day the cash
dividend is paid (the “Aggregate Dividend 


 


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Amount”) to the Participant’s
Account.  The amount credited to a
Participant’s Account will then be converted into Stock Units, calculated by
dividing the Aggregate Dividend Amount by the Fair Market Value of the Common
Stock on the date such cash dividend is paid.


 


(c)           In
the event of any stock split, reverse stock split, stock dividend,
recapitalization or similar change affecting the Common Stock, the
Administrator shall make such adjustment as it deems appropriate in the number
of Stock Units then credited to an Account of the Participant in order to
maintain the proportional interests of the Participant and to preserve the
value of the Account in light of such change affecting the Common Stock.


 


(d)           The
Participant’s Stock Units do not carry voting rights and the Participant has no
rights as a stockholder of the Company or equity interest or ownership in the
Company by virtue of participation in the Plan.


 


(e)           The
Participant’s Account shall be nonforfeitable, except as otherwise provided
herein.


 


(f)            Not
less frequently than annually, the Administrator will furnish the Participant
with a statement setting forth the number of Stock Units credited to the
Participant’s Account.


 


6.             Distribution.


 


(a)           On
the Payment Date, subject to Section 6(b) herein, the Administrator
shall pay to a Participant an amount equal to the number of Stock Units in the
Participant’s Account multiplied by the Fair Market Value on the day preceding
the Payment Date, such amount being payable in Common Stock.


 


(b)           In
the event that the Company terminates a Participant’s employment for Cause, the
Participant’s entire Account balance shall be forfeited and the Participant
shall have no rights with respect thereto.


 


7.             Designation
of Beneficiary. A Participant may designate or change the designation of a
beneficiary or beneficiaries to receive any payment due hereunder upon the
Participant’s death by filing a written designation with the
Administrator.  The Administrator shall
be bound by the last designation filed with it by the Participant.  In the absence of such designation of a
beneficiary by the Participant, or if no beneficiary so designated shall
survive the Participant, the Participant’s beneficiary shall be the Participant’s
estate.  Any amounts due hereunder
payable to the beneficiary or beneficiaries shall be made on the same terms and
shall be subject to the same conditions as if such amounts were paid to the
Participant.


 


8.             Employment
Rights.  Participation in the Plan
shall not create any right of the Participant to continued employment with the
Company or limit the right of Company to terminate the Participant’s employment
at any time.  Except to the extent
required by applicable law that cannot be waived, the loss of the Account shall
not constitute an element of damages in the event of termination of the
Participant’s employment even if the termination is determined to be in violation
of an obligation of the Company to the Participant by contract or otherwise.


 


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9.             Contractual
Obligation.  The obligations of the
Company hereunder shall be contractual only. The Participant shall rely solely
on the unsecured promise of the Company and nothing herein shall be construed
to give the Participant or any other person or persons any right, title,
interest or claim in or to any specific asset, fund, reserve, account or
property of any kind whatsoever owned by the Company.


 


10.           No
Assignment. No right or benefit or payment under the Plan shall be subject
to assignment or other transfer nor shall it be liable or subject in any manner
to attachment, garnishment or execution.


 


11.           Withholding.  The distribution of a Participant’s Account
balance is conditioned upon full satisfaction by the Participant of all tax
withholding requirements with respect to the Account balance.  Payment of applicable withholding taxes is
the obligation of the Participant; provided, however that a Participant may not
satisfy tax withholding obligations through the redemption by the Company of
Stock Units or Common Stock under the Plan. 
The Administrator will prescribe such rules for the withholding of
taxes as it deems necessary.


 


12.           Amendment
or Termination. The Administrator may at any time or times amend the Plan
for any purpose which may at the time be permitted by law, and may at any time
terminate the Plan; provided, that
except as otherwise expressly provided in the Plan the Administrator may not,
without the Participant’s consent, amend the Plan so as to affect materially
and adversely the Participant’s rights under the Plan.


 


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