EX-4.5






EXHIBIT
4.5




BROADPOINT GLEACHER SECURITIES GROUP, INC.




2003 NON-EMPLOYEE DIRECTORS STOCK PLAN

(As Amended and Restated Through June 16, 2009)




     1. Purpose. The purpose of the 2003 Non-Employee Directors’ Stock Plan (the “Plan”)
is to promote the interests of Broadpoint Gleacher Securities Group, Inc. (the “Company”), its
Subsidiaries and its shareholders by further aligning the intentions of directors with those of the
Company’s shareholders. To do this, the Plan offers equity-based opportunities providing directors
with a proprietary interest in maximizing the growth, profitability and overall success of the
Company and its Subsidiaries.



     2. Definitions. For purposes of the Plan, the following terms shall have the meanings
set forth below:



          2.1 “Award” means an award or grant made to a Non-Employee Director under Sections 6 and/or 7
of the Plan.




          2.2 “Award Agreement” means the agreement executed by a Non-Employee Director pursuant to
Sections 3.2 and 15.6 of the Plan in connection with the granting of an Award.




          2.3 “Board” means the Board of Directors of the Company, as constituted from time to time.




          2.4 “Code” means the Internal Revenue Code of 1986, as in effect and as amended from time to
time, or any successor statute thereto, together with any rules, regulations and interpretations
promulgated thereunder or with respect thereto.




          2.5 “Common Stock” means the Common Stock, par value $.01 per share, of the Company or any
security of the Company issued by the Company in substitution or exchange therefor.




          2.6 “Company” means Broadpoint Gleacher Securities Group, Inc., a New York corporation, or any
successor corporation to Broadpoint Gleacher Securities Group, Inc.




          2.7 “Disability” means disability as determined by the Board in accordance with standards and
procedures similar to those under the Company’s long-term disability plan, if any. At any time
that the Company does not maintain a long-term disability plan, “Disability” shall mean any
physical or mental disability which is determined to be total and permanent by a physician selected
in good faith by the Company.




          2.8 “Exchange Act” means the Securities Exchange Act of 1934, as in effect and as amended from
time to time, or any successor statute thereto, together with any rules, regulations and
interpretations promulgated thereunder or with respect thereto.




          2.9 “Fair Market Value” means on, or with respect to, any given date(s), the average of the
highest and lowest market prices of the Common Stock, as reported on the NASDAQ NMS for such
date(s) or, if the Common Stock was not traded on such date(s), on the next preceding day or days
on which the Common Stock was traded. If at any time the Common Stock is not traded on such



 









 






exchange, the Fair Market Value of a share of the Common Stock shall be determined in good faith by
the Board.




          2.10 “Non-Qualified Stock Option” means any stock option that is not an “incentive stock
option” within the meaning of Section 422 of the Code.




          2.11 “Plan” means the Broadpoint Gleacher Securities Group, Inc. 2003 Non-Employee Director
Stock Plan, as set forth herein and as in effect and as amended from time to time (together with
any rules and regulations promulgated by the Board with respect thereto).




          2.12 “Restricted Shares” means the restricted shares of Common Stock granted pursuant to the
provisions of Section 7 of the Plan and the relevant Award Agreement.




          2.13 “Service Year” means the approximately annual period commencing at an annual meeting of
the Company’s shareholders and ending at the next annual meeting of the Company’s shareholders.




          2.14 “Subsidiary(ies)” means any corporation (other than the Company) in an unbroken chain of
corporations, including and beginning with the Company, if each of such corporations, other than
the last corporation in the unbroken chain, owns, directly or indirectly, more than fifty percent
(50%) of the voting stock in one of the other corporations in such chain.




     3. Administration.



          3.1 Administrator of the Plan. The Plan shall be administered by the Board.




          3.2 Plan Rules. The Board shall have full power and authority to promulgate, amend
and rescind rules and regulations relating to the implementation, administration and maintenance of
the Plan. Subject to the terms and conditions of the Plan, the Board shall make all determinations
necessary or advisable for the implementation, administration and maintenance of the Plan
including, without limitation, (a) making Awards in such amounts and form as the Board shall
determine, (b) imposing such restrictions, terms and conditions upon such Awards as the Board shall
deem appropriate, and (c) correcting any technical defect(s) or technical omission(s), or
reconciling any technical inconsistency(ies), in the Plan and/or any Award Agreement. The Board
may designate persons other than members of the Board to carry out the day-to-day ministerial
administration of the Plan under such conditions and limitations as it may prescribe, except that
the Board shall not delegate its authority with regard to the granting of any Awards to
Non-Employee Directors. Any determination, decision or action of the Board in connection with the
construction, interpretation, administration, implementation or maintenance of the Plan shall be
final, conclusive and binding upon all Non-Employee Directors and any person(s) claiming under or
through any Non-Employee Directors. The Company shall effect the granting of Awards under the
Plan, in accordance with the determinations made by the Board, by execution of written agreements
and/or other instruments in such form as is approved by the Board.




          3.3 Liability Limitation. Neither the Board nor any of its members shall be liable
for any act, omission, interpretation, construction or determination made in good faith in
connection with the Plan (or any Award Agreement), and the members of the Board shall be entitled
to indemnification and reimbursement by the Company in respect of any claim, loss, damage or
expense (including, without limitation, attorneys’ fees) arising or resulting therefrom to the
fullest extent permitted by law and/or under any directors and officers liability insurance
coverage which may be in effect from time to time.




2









 








     4. Term of Plan/Common Stock Subject to Plan.



          4.1 Term. The Plan shall terminate at such time as no shares of Common Stock remain
available for grant of Awards and no Awards remain outstanding. Outstanding Awards shall remain in
effect until they have been exercised, become vested or have terminated or expired.




          4.2 Common Stock. The maximum number of shares of Common Stock in respect of which
Awards may be granted or paid out under the Plan, subject to adjustment as provided in Section 12.2
of the Plan, shall not exceed 2,000,000 shares. In the event of a change in the Common Stock of
the Company that is limited to a change in the designation thereof to “Capital Stock” or other
similar designation, or to a change in the par value thereof, or from par value to no par value,
without increase or decrease in the number of issued shares, the shares resulting from any such
change shall be deemed to be the Common Stock for purposes of the Plan. Common Stock which may be
issued under the Plan may be either authorized and unissued shares or issued shares which have been
reacquired by the Company (in the open-market or in private transactions) and which are being held
as treasury shares. No fractional shares of Common Stock shall be issued under the Plan.




          4.3 Computation of Available Shares. For the purpose of computing the total number of
shares of Common Stock available for Awards under the Plan, there shall be counted against the
limitations set forth in Section 4.2 of the Plan the maximum number of shares of Common Stock
potentially subject to issuance upon exercise of Stock Options granted under Sections 6 of the Plan
and the number of shares of Common Stock issued under grants of Restricted Shares pursuant to
Section 7 of the Plan, in each case determined as of the date on which such Awards are granted. If
any Awards expire unexercised or are forfeited, surrendered, cancelled or terminated, the shares of
Common Stock which were theretofore subject to such Awards shall again be available for Awards
under the Plan to the extent of such expiration, forfeiture, surrender, cancellation or termination
of such Awards.




     5. Eligibility. Any member of the Board who is not an employee of the Company or any
Subsidiary (a “Non-Employee Director”) is eligible to participate in the Plan.



     6. Stock Options.



          6.1 Terms and Conditions. Stock options granted under the Plan shall be in respect of
Common Stock and shall be in the form of Non-Qualified Stock Options (“Stock Options”). Such Stock
Options shall be subject to the terms and conditions set forth in this Section 6 and any additional
terms and conditions, not inconsistent with the express terms and provisions of the Plan, as the
Board shall set forth in the relevant Award Agreement.




          6.2 Annual Stock Option Grant. Each person who is or becomes a Non-Employee Director
on the date of an annual meeting of the Company’s shareholders and whose service will continue
after such meeting shall be granted a Stock Option under the Plan to purchase a number of shares of
Common Stock, if any, determined annually by the Board; provided, however, that no Non-Employee
Director may receive Stock Options worth in the aggregate more than $100,000 (as determined by the Board)
in any Service Year (including Stock Options granted
pursuant to Section 6.3, but not including Stock Options granted
in lieu of a Non-Employee Director’s annual cash retainer pursuant to Section 6.8). Any Stock
Options granted pursuant to this Section 6.2 shall be granted as of the date of the annual meeting.




          6.3 Discretionary Stock Option Grant. In addition to any Stock Options granted
pursuant to Section 6.2, the Board may from time to time grant Stock Options to Non-Employee
Directors to purchase a number of shares of Common Stock determined by the Board; provided,
however, that no



3









 






Non-Employee Director may receive Stock Options worth in the aggregate more than $100,000
(as determined by the Board) in any Service Year (including Stock
Options granted pursuant to Section 6.2, but not including Stock
Options granted in lieu of a Non-Employee Director’s annual cash retainer pursuant to Section 6.8).




          6.4 Exercise Price. The exercise price of a Stock Option shall not be less than one
hundred percent (100%) of the Fair Market Value of the Common Stock on the date of the grant of
such Stock Option.




          6.5 Term. The term of each Stock Option shall be not more than ten (10) years after the date
immediately preceding the date on which the Stock Option is granted, as determined by the Board in its sole discretion.




          6.6 Method of Exercise. A Stock Option may be exercised, in whole or in part, by
giving written notice of exercise to the Secretary of the Company, or the Secretary’s designee,
specifying the number of shares to be purchased. Such notice shall be accompanied by payment in
full of the exercise price in cash, by certified check, bank draft, or money order payable to the
order of the Company, by delivery of shares of Common Stock already owned by the Non-Employee
Director for at least six (6) months, or, if permitted by the Board (in its sole discretion) and
applicable law, by delivery of, alone or in conjunction with a partial cash or instrument payment,
some other form of payment acceptable to the Board. Payment instruments shall be received by the
Company subject to collection. The proceeds received by the Company upon exercise of any Stock
Option may be used by the Company for general corporate purposes. Any portion of a Stock Option
that is exercised may not be exercised again.




          6.7 Exercisability. In respect of any Stock Option granted under the Plan, unless
otherwise determined by the Board (in its sole discretion) at any time and from time to time, such
Stock Option shall become exercisable as to the aggregate number of shares of Common Stock
underlying such Stock Option, as determined on the date of grant, as follows:





	 	•	 	One third (1/3), on the first anniversary of the date of
grant of the Stock Option, provided the Non-Employee Director
continuously remains a director of the Company;
	 
	 	•	 	Two thirds (2/3), on the second anniversary of the date of
grant of the Stock Option, provided the Non-Employee Director
continuously remains a director or consultant of the Company;
	 
	 	•	 	100%, on the third anniversary of the date of grant of the
Stock Option, provided the Non-Employee Director continuously
remains a director or consultant of the Company.




Notwithstanding anything to the contrary contained in this Section 6.7, such Stock Option shall
become one hundred percent (100%) exercisable as to the aggregate number of shares of Common Stock
underlying such Stock Option upon the death or Disability of the Non-Employee Director.




          6.8 Election to Receive Stock Options in Lieu of Annual Cash Retainer. In addition to
any Awards granted pursuant to Sections 6.2, 6.3, 7.2 and 7.3, the Board, in its discretion, may
permit a Non-Employee Director to elect to receive Stock Options in lieu of all or a portion of his
or her annual cash retainer. If the Board permits such an election, it, in its discretion, shall
determine the appropriate terms of such Stock Options. Any such election, if permitted by the
Board, shall be made in accordance with such procedures as are adopted from time to time by the
Board.




4









 








          6.9 Election of Form of Grant. The Board, in its discretion, may permit a
Non-Employee Director to elect whether an annual grant (in the amount determined by the Board) is
made to such Non-Employee Director in the form of Stock Options pursuant to Section 6.2 or
Restricted Shares pursuant to Section 7.2, provided that such election is made prior to the date of
the applicable annual meeting and otherwise is made in accordance with such procedures as are
adopted from time to time by the Board.




     7. Restricted Shares.



          7.1 Terms and Conditions; Annual Grant of Restricted Shares. Grants of Restricted
Shares shall be subject to the terms and conditions set forth in this Section 7 and any additional
terms and conditions, not inconsistent with the express terms and provisions of the Plan, as the
Board shall set forth in the relevant Award Agreement.




          7.2 Annual Grant of Restricted Shares. Restricted Shares may be granted alone or in
addition to Stock Options. Each person who is or becomes a Non-Employee Director on the date of an
annual meeting of the Company’s shareholders and whose service will continue after such meeting
shall be granted a number of Restricted Shares, if any, determined annually by the Board; provided,
however, that no Non-Employee Director may receive Restricted Shares worth more than $100,000 (as determined by the Board) in any
Service Year (including Restricted Shares granted pursuant to Section 7.3, but not including
Restricted Shares granted in lieu of a Non-Employee Director’s annual cash retainer pursuant to
Section 7.4). Any Restricted Shares granted pursuant to this Section 7.2 shall be granted as of
the date of the annual meeting.




          7.3 Discretionary Grant of Restricted Shares. In addition to any Restricted Shares
granted pursuant to Section 7.2, the Board may from time to time grant a number of Restricted
Shares to Non-Employee Directors determined by the Board; provided, however, that no Non-Employee
Director may receive Restricted Shares worth more than $100,000 (as determined by the Board) in any Service Year (including
Restricted Shares granted pursuant to Section 7.2, but not including Restricted Shares granted in
lieu of a Non-Employee Director’s annual cash retainer pursuant to Section 7.4).




          7.4 Election to Receive Restricted Shares in Lieu of Annual Cash Retainer. In
addition to any Awards granted pursuant to Sections 6.2, 6.3, 7.2 and 7.3, the Board, in its
discretion, may permit a Non-Employee Director to elect to receive Restricted Shares in lieu of all
or a portion of his or her annual cash retainer. If the Board permits such an election, it, in its
discretion, shall determine the appropriate terms of such Restricted Shares. Any such election, if
permitted by the Board, shall be made in accordance with such procedures as are adopted from time
to time by the Board.




          7.5 Restrictive Legend. With respect to each Non-Employee Director receiving an Award
of Restricted Shares, there shall be issued a stock certificate (or certificates) in respect of
such Restricted Shares. Such stock certificate(s) shall be registered in the name of such
Non-Employee Director, shall be accompanied by a stock power duly executed by such Non-Employee
Director, and shall bear, among other required legends, the following legend:





“The transferability of this certificate and the shares of
stock represented hereby are subject to the terms and
conditions (including, without limitation, forfeiture
events) contained in the Broadpoint Gleacher Securities
Group, Inc. 2003 Non-Employee Directors Stock Plan and an
Award Agreement entered into between the registered owner
hereof and Broadpoint Gleacher Securities Group, Inc.
Copies of such Plan and Award



5









 







Agreement are on file in the office of the Secretary of
Broadpoint Gleacher Securities Group, Inc., 12 East
49th Street, 31st Floor, New York, NY
10017. Broadpoint Gleacher Securities Group, Inc. will
furnish to the recordholder of the certificate, without
charge and upon written request at its principal place of
business, a copy of such Plan and Award Agreement.
Broadpoint Gleacher Securities Group, Inc. reserves the
right to refuse to record the transfer of this certificate
until all such restrictions are satisfied, all such terms
are complied with and all such conditions are satisfied.”


Such stock certificate evidencing such shares shall, in the sole discretion of the Board, be
deposited with and held in custody by the Company until the restrictions thereon shall have lapsed
and all of the terms and conditions applicable to such grant shall have been satisfied.




     7.6 Nature of Restricted Shares. A grant of Restricted Shares is an Award of shares
of Common Stock granted to a Non-Employee Director, subject to such restrictions, terms and
conditions as the Board deems appropriate, including, without limitation, (a) restrictions on the
sale, assignment, transfer, hypothecation or other disposition of such shares, (b) the requirement
that the Non-Employee Director deposit such shares with the Company while such shares are subject
to such restrictions, and (c) the requirement that such shares be forfeited if the Non-Employee
Director ceases to be a director for specified reasons within a specified period of time or for
other reasons.



     7.7 Restriction Period. In accordance with this Section 7 of the Plan and unless
otherwise determined by the Board (in its sole discretion) at any time and from time to time,
Restricted Shares shall only become unrestricted and vested in the Non-Employee Director in
accordance with such vesting schedule relating to such Restricted Shares, if any, as the Board may
establish in the relevant Award Agreement (the “Restriction Period”). Notwithstanding the
preceding sentence, in no event shall the Restriction Period be less than six (6) months after the
date of grant. During the Restriction Period, such stock shall be and remain unvested and a
Non-Employee Director may not sell, assign, transfer, pledge, encumber or otherwise dispose of or
hypothecate such Award. Upon satisfaction of the vesting schedule and any other applicable
restrictions, terms and conditions, the Non-Employee Director shall be entitled to receive payment
of the Restricted Shares or a portion thereof, as the case may be, as provided in Section 7.8 of
the Plan.



     7.8 Payment of Restricted Share Grants. After the satisfaction and/or lapse of the
restrictions, terms and conditions established by the Board in respect of a grant of Restricted
Shares, a new certificate, without the legend set forth in Section 7.5 of the Plan, for the number
of shares of Common Stock which are no longer subject to such restrictions, terms and conditions
shall, as soon as practicable thereafter, be delivered to the Non-Employee Director.



     7.9 Shareholder Rights. A Non-Employee Director shall have, with respect to the
shares of Common Stock underlying a grant of Restricted Shares, all of the rights of a shareholder
of such stock (except as such rights are limited or restricted under the Plan or in the relevant
Award Agreement). Any stock dividends paid in respect of unvested Restricted Shares shall be
treated as additional Restricted Shares and shall be subject to the same restrictions and other
terms and conditions that apply to the unvested Restricted Shares in respect of which such stock
dividends are issued.



     8. Deferral Elections. The Board may permit a Non-Employee Director to elect to defer
receipt of any payment of cash or any delivery of shares of Common Stock that would otherwise be
due to such Non-Employee Director by virtue of the exercise or settlement of any Award made under
the



6









 







Plan. If any such election is permitted, the Board shall establish rules and procedures for such
deferrals, including, without limitation, the payment or crediting of reasonable interest on such
deferred amounts credited in cash, and the payment or crediting of dividend equivalents in respect
of deferrals credited in units of Common Stock. The Board may also provide in the relevant Award
Agreement for a tax reimbursement cash payment to be made by the Company in favor of any
Non-Employee Director in connection with the tax consequences resulting from the grant, exercise or
settlement of any Award made under the Plan.



     9. Dividend Equivalents. In addition to the provisions of Section 7.9 of the Plan,
Awards of Stock Options may, in the sole discretion of the Board and if provided for in the
relevant Award Agreement, earn dividend equivalents. In respect of any such Award which is
outstanding on a dividend record date for Common Stock, the Non-Employee Director shall be credited
with an amount equal to the amount of cash or stock dividends that would have been paid on the
shares of Common Stock covered by such Award had such covered shares been issued and outstanding on
such dividend record date. The Board shall establish such rules and procedures governing the
crediting of such dividend equivalents, including, without limitation, the amount, the timing, form
of payment and payment contingencies and/or restrictions of such dividend equivalents, as it deems
appropriate or necessary.



     10. Termination of Service.



          10.1 Options. If a Non-Employee Director ceases to be a member of the Board for any
reason, any then unexercisable Stock Options shall be forfeited and cancelled by the Company.
Except as otherwise provided in this Section 10.1, if a Non Employee Director ceases to be a member
of the Board for any reason, such Non-Employee Director’s rights, if any, to exercise any then
exercisable Stock Options, if any, shall terminate ninety (90) days after the date of such
termination of service (but not beyond the stated term of any such Stock Option as determined under
Sections 6.5) and thereafter such Stock Options shall be forfeited and cancelled by the Company.
If a Non-Employee Director ceases to be a member of the Board due to death or Disability, a
Non-Employee Director (and such Non-Employee Director’s estate, designated beneficiary or other
legal representative, as the case may be and as determined by the Board) shall have the right, to
the extent exercisable immediately prior to any such termination of service, to exercise such Stock
Options, if any, at any time within the one (1) year period following such termination due to death
or Disability (but not beyond the term of any such Stock Option as determined under Sections 6.5).




          10.2 Restricted Shares. If a Non-Employee Director ceases to be a member of the Board
for any reason (other than due to Disability or death) prior to the satisfaction and/or lapse of
the restrictions, terms and conditions applicable to a grant of Restricted Shares, such Restricted
Shares shall immediately be cancelled and the Non-Employee Director (and such Non-Employee
Director’s estate, designated beneficiary or other legal representative) shall forfeit any rights
or interests in and with respect to any such Restricted Shares. If the Non-Employee Director
ceases to be a member of the Board due to death or Disability, the Non-Employee Director shall
become 100% vested in any such Non-Employee Director’s Restricted Shares as of the date of any such
termination.




     11. Non-transferability of Awards. No Award under the Plan or any Award Agreement,
and no rights or interests herein or therein, shall or may be assigned, transferred, sold,
exchanged, encumbered, pledged, or otherwise hypothecated or disposed of by a Non-Employee Director
or any beneficiary(ies) of any Non-Employee Director, except by testamentary disposition by the
Non-Employee Director or the laws of intestate succession; provided, however, that an Award may be
transferred to a Non-Employee Director’s family members or to one or more trusts established in
whole or in part for the benefit of one or more of such family members. No such interest shall be
subject to execution, attachment or similar legal process, including, without limitation, seizure
for the payment of the Non-



7









 







Employee Director’s debts, judgments, alimony, or separate maintenance. During the lifetime of a
Non-Employee Director, Stock Options are exercisable only by the Non-Employee Director.



     12. Changes in Capitalization and Other Matters.



          12.1 No Corporate Action Restriction. The existence of the Plan, any Award Agreement
and/or the Awards granted hereunder shall not limit, affect or restrict in any way the right or
power of the Board or the shareholders of the Company to make or authorize (a) any adjustment,
recapitalization, reorganization or other change in the Company’s or any Subsidiary’s capital
structure or its business, (b) any merger, consolidation or change in the ownership of the Company
or any Subsidiary, (c) any issue of bonds, debentures, capital, preferred or prior preference
stocks ahead of or affecting the Company’s or any Subsidiary’s capital stock or the rights thereof,
(d) any dissolution or liquidation of the Company or any Subsidiary, (e) any sale or transfer of
all or any part of the Company’s or any Subsidiary’s assets or business, or (f) any other corporate
act or proceeding by the Company or any Subsidiary. No Non-Employee Director, beneficiary or any
other person shall have any claim against any member of the Board, the Company or any Subsidiary,
or any employees, officers or agents of the Company or any Subsidiary, as a result of any such
action.




          12.2 Recapitalization Adjustments. In the event of any change in capitalization
affecting the Common Stock of the Company, including, without limitation, a distribution, stock
split, reverse stock split, recapitalization, consolidation, subdivision, split-up, spin-off,
split-off, combination or exchange of shares or other form of reorganization or recapitalization,
or any other change affecting the Common Stock, the Board shall authorize and make such
proportionate adjustments, if any, as the Board deems appropriate to reflect such change,
including, without limitation, with respect to the aggregate number of shares of the Common Stock
for which Awards in respect thereof may be granted under the Plan, the maximum number of shares of
the Common Stock which may be granted or awarded to any Non-Employee Director, the number of shares
of the Common Stock covered by each outstanding Award, and the exercise price or other price per
share of Common Stock in respect of outstanding Awards. Notwithstanding the foregoing, in the
event of a stock dividend, the proportionate adjustments described in this Section 12.2 shall occur
automatically, without any Board action being required.




          12.3 Certain Mergers.





               12.3.1 If the Company enters into or is involved in any merger, reorganization or other
business combination with any person or entity (such merger, reorganization or other
business combination to be referred to herein as a “Merger Event”) and as a result of any
such Merger Event the Company will be or is the surviving corporation, a Non-Employee
Director shall be entitled, as of the date of the execution of the agreement evidencing the
Merger Event (the “Execution Date”) and with respect to both exercisable and unexercisable
Stock Options (but only to the extent not previously exercised), to receive substitute stock
options in respect of the shares of the surviving corporation on such terms and conditions,
as to the number of shares, pricing and otherwise, which shall substantially preserve the
value, rights and benefits of any affected Stock Options granted hereunder as of the date of
the consummation of the Merger Event. Notwithstanding anything to the contrary in this
Section 12.3, if any Merger Event occurs, the Company shall have the right, but not the
obligation, to pay to each affected Non-Employee Director an amount in cash or certified
check equal to the excess of the Fair Market Value of the Common Stock underlying any
affected unexercised Stock Options or as of the Execution Date (whether then exercisable or
not) over the aggregate exercise price of such unexercised Stock Options, as the case may
be.



8









 






               12.3.2 If, in the case of a Merger Event in which the Company will not be, or is not,
the surviving corporation, and the Company determines not to make the cash or certified
check payment described in Section 12.3.1 of the Plan, the Company shall compel and
obligate, as a condition of the consummation of the Merger Event, the surviving or resulting
corporation and/or the other party to the Merger Event, as necessary, or any parent,
subsidiary or acquiring corporation thereof, to grant, with respect to both exercisable and
unexercisable Stock Options (but only to the extent not previously exercised), substitute
stock options in respect of the shares of common or other capital stock of such surviving or
resulting corporation on such terms and conditions, as to the number of shares, pricing and
otherwise, which shall substantially preserve the value, rights and benefits of any affected
Stock Options previously granted hereunder as of the date of the consummation of the Merger
Event.




               12.3.3 Upon receipt by any affected Non-Employee Director of any such cash, certified
check, or substitute stock options as a result of any such Merger Event, such Non-Employee
Director’s affected Stock Options for which such cash, certified check or substitute awards
was received shall be thereupon cancelled without the need for obtaining the consent of any
such affected Non-Employee Director.




               12.3.4 The foregoing adjustments and the manner of application of the foregoing
provisions, including, without limitation, the issuance of any substitute stock options,
shall be determined in good faith by the Board in its sole discretion. Any such adjustment
may provide for the elimination of fractional shares.



     13. Change of Control.



          13.1 Acceleration of Awards Vesting. Anything in the Plan to the contrary
notwithstanding, if a Change of Control of the Company occurs (a) all Stock Options then
unexercised and outstanding shall become fully vested and exercisable as of the date of the Change
of Control and (b) all restrictions, terms and conditions applicable to all Restricted Shares then
outstanding shall be deemed lapsed and satisfied as of the date of the Change of Control. The
immediately preceding sentence shall apply to only those Non-Employee Directors (i) who are serving
on the Board as of the date of the Change of Control or (ii) to whom Section 13.3 below is
applicable.




          13.2 Payment After Change of Control. Notwithstanding anything to the contrary in the
Plan, within thirty (30) days after a Change of Control occurs, (a) the holder of an Award of
Restricted Shares vested under Section 13.1(b) above shall receive a new certificate for such
shares without the legend set forth in Section 7 of the Plan (and, in the case only of a Change of
Control under Section 13.3.1 of the Plan, such holder shall have the right, but not the obligation,
to elect, within ten (10) business days after the Non-Employee Director has actual or constructive
knowledge of the occurrence of such Change of Control, to require the Company to purchase such
shares from the Non-Employee Director at their then Fair Market Value and (b) in the case only of a
Change of Control under Section 13.3.1 of the Plan, the holders of any Stock Options shall have the
right, but not the obligation, to elect, within ten (10) business days after the Non-Employee
Director has actual or constructive knowledge of the occurrence of such Change of Control, to
require the Company to purchase such Stock Options from the Non-Employee Director for an aggregate
amount equal to the then aggregate Fair Market Value of the Common Stock underlying such Stock
Option tendered, less the aggregate exercise price of such tendered Stock Option.




          13.3 Change of Control. For the purpose of this Agreement, “Change of Control” shall
mean:




9









 









               13.3.1 The acquisition, after the effective date of the Plan, by an individual, entity
or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 30% or more of either (a) the shares of the Common Stock, or (b) the combined voting
power of the voting securities of the Company entitled to vote generally in the election of
directors (the “Voting Securities”); provided, however, that the following
acquisitions shall not constitute a Change of Control: (i) any acquisition by any individual
who, on the effective date of the Plan, beneficially owned 10% or more of the Common Stock,
(ii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained
by the Company or any Subsidiary, (iii) any acquisition by any underwriter in connection
with any firm commitment underwriting of securities to be issued by the Company, or (iv) any
acquisition by any corporation if, immediately following such acquisition, more than 70% of
the then outstanding shares of common stock of such corporation and the combined voting
power of the then outstanding voting securities of such corporation (entitled to vote
generally in the election of directors), is beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who, immediately prior to such
acquisition, were the beneficial owners of the Common Stock and the Voting Securities in
substantially the same proportions, respectively, as their ownership, immediately prior to
such acquisition, of the Common Stock and Voting Securities; or




               13.3.2 Individuals who, as of the effective date of the Plan, constitute the Board (the
“Incumbent Board”) cease thereafter for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent
to the effective date of the Plan whose election, or nomination for election by the
Company’s shareholders, was approved by at least a majority of the directors then serving
and comprising the Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of either an actual or threatened election
contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents; or




               13.3.3 Approval by the shareholders of the Company of a reorganization, merger or
consolidation, other than a reorganization, merger or consolidation with respect to which
all or substantially all of the individuals and entities who were the beneficial owners,
immediately prior to such reorganization, merger or consolidation, of the Common Stock and
Voting Securities beneficially own, directly or indirectly, immediately after such
reorganization, merger or consolidation more than 70% of the then outstanding common stock
and voting securities (entitled to vote generally in the election of directors) of the
corporation resulting from such reorganization, merger or consolidation in substantially the
same proportions as their respective ownership, immediately prior to such reorganization,
merger or consolidation, of the Common Stock and the Voting Securities; or




               13.3.4 Approval by the shareholders of the Company of (a) a complete liquidation or
substantial dissolution of the Company, or (b) the sale or other disposition of all or
substantially all of the assets of the Company, other than to a Subsidiary, wholly-owned,
directly or indirectly, by the Company.



     14. Amendment, Suspension and Termination.



          14.1 In General. The Board may suspend or terminate the Plan (or any portion thereof)
at any time and may amend the Plan at any time and from time to time in such respects as the Board
may deem advisable to ensure that any and all Awards conform to or otherwise reflect any change



10









 






in applicable laws or regulations, or to permit the Company or the Non-Employee Directors to
benefit from any change in applicable laws or regulations, or in any other respect the Board may
deem to be in the best interests of the Company or any Subsidiary. No such amendment, suspension
or termination shall (x) materially adversely effect the rights of any Non-Employee Director under
any outstanding Stock Options or Restricted Share grants, without the consent of such Non-Employee
Director or (y) be effective without shareholder approval if such approval is required to comply
with any applicable law or stock exchange rule.




          14.2 Award Agreement Modifications. No modification, extension, renewal or other
change in any Award granted under the Plan shall be made after grant, unless the same is consistent
with the provisions of the Plan.




     15. Miscellaneous.



          15.1 No Right to Reelection. Neither the adoption of the Plan, the granting of any
Award, nor the execution of any Award Agreement, shall confer upon any Non-Employee Director any
right to remain a member of the Board for any period of time, nor shall it create any obligation on
the part of the Board to nominate any of its members for reelection by the Company’s shareholders.




          15.2 Unfunded Plan. The Plan shall be unfunded and the Company shall not be required
to segregate any assets in connection with any Awards under the Plan. Any liability of the Company
to any person with respect to any Award under the Plan or any Award Agreement shall be based solely
upon the contractual obligations that may be created as a result of the Plan or any such award or
agreement. No such obligation of the Company shall be deemed to be secured by any pledge of,
encumbrance on, or other interest in, any property or asset of the Company or any Subsidiary.
Nothing contained in the Plan or any Award Agreement shall be construed as creating in respect of
any Non-Employee Director (or beneficiary thereof or any other person) any equity or other interest
of any kind in any assets of the Company or any Subsidiary or creating a trust of any kind or a
fiduciary relationship of any kind between the Company, any Subsidiary and/or any such Non-Employee
Director, any beneficiary thereof or any other person.




          15.3 Payments to a Trust. The Board is authorized to cause to be established a trust
agreement or several trust agreements or similar arrangements from which the Board may make
payments of amounts due or to become due to any Non-Employee Directors under the Plan.




          15.4 Other Company Benefit and Compensation Programs. Awards under the Plan may be
made in addition to, in combination with, or as alternatives to, grants, awards or payments under
any other plans or arrangements of the Company or its Subsidiaries. The existence of the Plan
notwithstanding, the Company or any Subsidiary may adopt such other compensation plans or programs
and additional compensation arrangements as it deems necessary to attract, retain and motivate
directors.




          15.5 Listing, Registration and Other Legal Compliance. No Awards or shares of the
Common Stock shall be required to be issued or granted under the Plan unless legal counsel for the
Company shall be satisfied that such issuance or grant will be in compliance with all applicable
federal and state securities laws and regulations and any other applicable laws or regulations.
The Board may require, as a condition of any payment or share issuance, that certain agreements,
undertakings, representations, certificates, and/or information, as the Board may deem necessary or
advisable, be executed or provided to the Company to assure compliance with all such applicable
laws or regulations. Certificates for shares of the Restricted Shares and/or Common Stock
delivered under the Plan may be subject to such stock-transfer orders and such other restrictions
as the Board may deem advisable under the rules, regulations, or other requirements of the
Securities and Exchange Commission, any stock



11









 






exchange upon which the Common Stock is then listed, and any applicable federal or state securities
law. In addition, if, at any time specified herein (or in any Award Agreement or otherwise) for
(a) the making of any Award, or the making of any determination, (b) the issuance or other
distribution of Restricted Shares and/or Common Stock, or (c) the payment of amounts to or through
a Non-Employee Director with respect to any Award, any law, rule, regulation or other requirement
of any governmental authority or agency shall require either the Company, any Subsidiary or any
Non-Employee Director (or any estate, designated beneficiary or other legal representative thereof)
to take any action in connection with any such determination, any such shares to be issued or
distributed, any such payment, or the making of any such determination, as the case may be, shall
be deferred until such required action is taken. Transactions under the Plan are intended to
comply with all applicable conditions of SEC Rule 16b-3. To the extent any provision of the Plan
or any action by the administrators of the Plan fails to so comply with such rule, it shall be
deemed null and void, to the extent permitted by law and deemed advisable by the Board.




          15.6 Award Agreements. Each Non-Employee Director receiving an Award under the Plan
shall enter into an Award Agreement with the Company in a form specified by the Board. Each such
Non-Employee Director shall agree to the restrictions, terms and conditions of the Award set forth
therein and in the Plan.




          15.7 Designation of Beneficiary. Each Non-Employee Director to whom an Award has been
made under the Plan may designate a beneficiary or beneficiaries to exercise any option or to
receive any payment which under the terms of the Plan and the relevant Award Agreement may become
exercisable or payable on or after the Non-Employee Director’s death. At any time, and from time
to time, any such designation may be changed or cancelled by the Non-Employee Director without the
consent of any such beneficiary. Any such designation, change or cancellation must be on a form
provided for that purpose by the Board and shall not be effective until received by the Board. If
no beneficiary has been designated by a deceased Non-Employee Director, or if the designated
beneficiaries have predeceased the Non-Employee Director, the beneficiary shall be the Non-Employee
Director’s estate. If the Non-Employee Director designates more than one beneficiary, any payments
under the Plan to such beneficiaries shall be made in equal shares unless the Non-Employee Director
has expressly designated otherwise, in which case the payments shall be made in the shares
designated by the Non-Employee Director.




          15.8 Governing Law. The Plan and all actions taken thereunder shall be governed by
and construed in accordance with the laws of the State of New York, without reference to the
principles of conflict of laws thereof. Any titles and headings herein are for reference purposes
only, and shall in no way limit, define or otherwise affect the meaning, construction or
interpretation of any provisions of the Plan.




          15.9 Effective Date. The Plan as amended and restated shall be effective upon its
approval by the Board and by the Company’s shareholders.





12