Exhibit 4.1


 


INVESTMENT TECHNOLOGY GROUP, INC.


2007
OMNIBUS EQUITY COMPENSATION PLAN


 


Amended and Restated
Effective May 11, 2010


 

















 


INVESTMENT TECHNOLOGY GROUP, INC.


2007
OMNIBUS EQUITY COMPENSATION PLAN


 


1.     Purpose


 


The purpose of the Investment Technology Group, Inc. 2007 Omnibus
Equity Compensation Plan (the “Plan”) is to provide (i) designated
employees of Investment Technology Group, Inc. (the “Company”) and its
subsidiaries, and (ii) non-employee members of the board of directors of
the Company with the opportunity to receive grants of stock options, stock
units, stock awards, dividend equivalents and other stock-based awards. The
Company believes that the Plan will encourage the participants to contribute
materially to the growth of the Company, thereby benefiting the Company’s
stockholders, and will align the economic interests of the participants with
those of the stockholders. The Plan was originally effective on May 8,
2007 upon approval by the stockholders of the Company, and previously amended and
restated on May 12, 2009 upon approval by the stockholders of the Company
and on August 18, 2009. This amendment and restatement will be effective May 11,
2010, subject to approval by the stockholders of the Company.


 


The Investment Technology Group, Inc. Non-Employee Directors Stock
Option Plan (the “Director Plan”), the Investment Technology Group, Inc.
Amended and Restated 1994 Stock Option and Long-term Incentive Plan (the “1994
Plan”), the Amended and Restated Investment Technology Group, Inc. Stock
Unit Award Program Subplan (the “SUA Subplan”), the Amended and Restated
Investment Technology Group, Inc. Directors’ Retainer Fee Subplan (the “Directors’
Retainer Fee Subplan”), and the Amended and Restated Investment Technology
Group, Inc. Directors’ Equity Subplan (the “Directors’ Equity Subplan”,
and collectively with the SUA Subplan and the Directors’ Retainer Fee Subplan,
the “Subplans”) were merged with and into this Plan as of May 8, 2007. No
additional grants will be made thereafter under the Director Plan and the 1994
Plan. Outstanding grants under the Director Plan, the 1994 Plan and the
Subplans as of May 8, 2007 will continue in effect according to their
terms as in effect on May 8, 2007 (subject to such amendments as the
Committee (as defined below) determines appropriate, consistent with the terms
of the Director Plan, the 1994 Plan or the Subplans, as applicable), and the
shares with respect to such outstanding grants will be issued or transferred
under this Plan. After May 8, 2007, the Subplans shall continue in effect
as subplans of the Plan and grants and/or deferrals may continue to be made
under the Subplans with shares associated with such grants and/or deferrals
being issued under this Plan. Effective as of January 1, 2009, the Equity
Deferral Award Program Subplan was added as a subplan under the Plan.


 


2.     Definitions


 


Whenever used in this Plan,
the following terms will have the respective meanings set forth below:


 


(a)   “Board”
means the Company’s Board of Directors.


 


(b)   “Change in Control”
means and shall be deemed to have occurred:


 


(i)    if any person (within the meaning of the Exchange Act), other
than the Company or a Related Party, is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
Voting Securities representing 35% percent or more of the total voting power of
all the then-outstanding Voting Securities; or


 


(ii)   if the individuals who, as of the date hereof, constitute the
Board, together with those who first become directors subsequent to such date
and whose recommendation, election or nomination for election to the Board was
approved by a vote of at least a majority of the directors then still in office
who either were directors as of the date hereof or whose


 


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recommendation, election or nomination for election was previously so
approved, cease for any reason to constitute a majority of the members of the
Board; or


 


(iii)  upon consummation of a merger, consolidation, recapitalization or
reorganization of the Company, reverse split of any class of Voting Securities,
or an acquisition of securities or assets by the Company other than (i) any
such transaction in which the holders of outstanding Voting Securities immediately
prior to the transaction receive (or retain), with respect to such Voting
Securities, voting securities of the surviving or transferee entity
representing more than 50 percent of the total voting power outstanding
immediately after such transaction, with the voting power of each such
continuing holder relative to other such continuing holders not substantially
altered in the transaction, or (ii) any such transaction which would
result in a Related Party beneficially owning more than 50 percent of the voting
securities of the surviving or transferee entity outstanding immediately after
such transaction; or


 


(iv)  upon consummation of the sale or disposition by the Company of all
or substantially all of the Company’s assets, other than any such transaction
which would result in a Related Party owning or acquiring more than
50 percent of the assets owned by the Company immediately prior to the
transaction; or


 


(v)   if the stockholders of the Company approve a plan of complete
liquidation of the Company.


 


(c)   “Code”
means the Internal Revenue Code of 1986, as amended.


 


(d)   “Committee”
means (i) with respect to Grants to Employees, the Compensation Committee
of the Board or another committee appointed by the Board to administer the
Plan, (ii) with respect to Grants made to Non-Employee Directors, the
Board, and (iii) with respects to Grants that are intended to be “qualified
performance-based compensation” under section 162(m) of the Code, a
committee that consists of two or more persons appointed by the Board, all of
whom shall be “outside directors” as defined under section 162(m) of
the Code and related Treasury regulations.


 


(e)    “Company”
means Investment Technology Group, Inc. and any successor corporation.


 


(f)    “Company
Stock” means the common stock of the Company.


 


(g)   “Dividend
Equivalent” means an amount determined by multiplying the number of
shares of Company Stock subject to a Grant by the per-share cash dividend, or
the per-share fair market value (as determined by the Committee) of any
dividend in consideration other than cash, paid by the Company on its Company
Stock.


 


(h)   “Employee”
means a person classified as an employee of the Employer (including an officer
or director who is also an employee) for payroll purposes, as determined in the
sole discretion of the Employer. Notwithstanding the foregoing, if a person is
engaged in a non-employee status (including, but not limited to, as an
independent contractor, an individual being paid through an employee leasing
company or other third party agency) and is subsequently reclassified by the
Company, the Internal Revenue Service, or a court as an employee for payroll
purposes, such person, for purposes of this Plan, shall be deemed an Employee
from the actual (and not the effective) date of such reclassification, unless
expressly provided otherwise by the Company.


 


(i)    “Employer”
means the Company and its subsidiaries.


 


(j)    “Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


(k)    “Exercise
Price” means the per share price at which shares of Company Stock
may be purchased under an Option, as designated by the Committee.


 


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(l)     “Fair
Market Value,” unless otherwise required by an applicable provision
of the Code, as of any date, means the closing sales price of the Common Stock
as reported on the New York Stock Exchange on the date of grant; provided,
however, that at any time that the Common Stock is not quoted on the New York
Stock Exchange on such trading days, Fair Market Value shall be determined by
the Committee in its discretion.


 


(m)   “Grant”
means an Option, Stock Unit, Stock Award, SAR, Dividend Equivalent or Other
Stock-Based Award granted under the Plan.


 


(n)   “Grant
Agreement” means the written instrument that sets forth the terms
and conditions of a Grant, including all amendments thereto.


 


(o)   “Incentive
Stock Option” means an Option that is intended to meet the
requirements of an incentive stock option under section 422 of the Code.


 


(p)   “Non-Employee
Director” means a member of the Board who is not an employee of the
Employer.


 


(q)   “Nonqualified
Stock Option” means an Option that is not intended to be taxed as an
incentive stock option under section 422 of the Code.


 


(r)    “Option”
means an option to purchase shares of Company Stock, as described in Section 7.


 


(s)    “Other Stock-Based
Award” means any Grant based on, measured by or payable in, Company
Stock (other than a Grant described in Sections 7, 8, 9 or 10(a) of
the Plan), as described in Section 10(b).


 


(t)    “Participant”
means an Employee or Non-Employee Director designated by the Committee to
participate in the Plan.


 


(u)   “Person”
means an individual, a partnership, a corporation, a limited liability company,
an association, a joint stock company, an estate, a trust, a joint venture, an
unincorporated organization or a governmental entity or any department, agency
or political subdivision thereof.


 


(v)   “Plan”
means this Investment Technology Group, Inc. 2007 Omnibus Equity
Compensation Plan, as in effect from time to time.


 


(w)   “Related
Party” means (a) a Subsidiary of the Company; (b) an
employee or group of employees of the Company or any Subsidiary of the Company;
(c) a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any majority-owned Subsidiary of the Company; or
(d) a corporation owned directly or indirectly by the stockholders of the
Company in substantially the same proportion as their ownership of Voting
Securities.


 


(x)    “SAR”
means a stock appreciation right as described in Section 10(a).


 


(y)   “Stock Award”
means an award of Company Stock as described in Section 9.


 


(z)    “Stock Unit”
means an award of a phantom unit representing a share of Company Stock, as
described in Section 8.


 


(aa)  “Subsidiary”
or “Subsidiaries” means, with respect to any Person, any
corporation, partnership, limited liability company, association or other
business entity of which (a) if a corporation, fifty (50) percent or
more of the total voting power of shares of stock entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or combination thereof; or (b) if a partnership, limited liability
company, association or other business entity, fifty (50) percent or


 


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more of the partnership or other similar ownership interest thereof is
at the time owned or controlled, directly or indirectly, by any Person or one
or more Subsidiaries of that Person or a combination thereof. For purposes of
this definition, a Person or Persons will be deemed to have a fifty
(50) percent or more ownership interest in a partnership, limited
liability company, association or other business entity if such Person or
Persons are allocated fifty (50) percent or more of partnership, limited
liability company, association or other business entity gains or losses or
control the managing director or member or general partner of such partnership,
limited liability company, association or other business entity.


 


(bb) “Voting
Securities or Security” means any securities of the Company which
carry the right to vote generally in the election of directors.


 


3.     Administration


 


(a)  Committee.  The Plan shall be administered and
interpreted by the Compensation Committee of the Board or another committee
appointed by the Board to administer the Plan with respect to grants to
Employees. The Plan shall be administered and interpreted by the Board with
respect to grants to Non-Employee Directors. The Board or committee, as
applicable, that has authority with respect to a specific Grant shall be
referred to as the “Committee” with respect to that Grant. Ministerial
functions may be performed by an administrative committee comprised of Company
employees appointed by the Committee.


 


(b)  Committee Authority.  The Committee shall have the sole authority
to (i) determine the Participants to whom Grants shall be made under the
Plan, (ii) determine the type, size and terms and conditions of the Grants
to be made to each such Participant, (iii) determine the time when the
grants will be made and the duration of any applicable exercise or restriction
period, including the criteria for exercisability and the acceleration of
exercisability, (iv) amend the terms and conditions of any previously
issued Grant, subject to the provisions of Section 18 below, and (v) deal
with any other matters arising under the Plan.


 


(c)  Committee Determinations.  The Committee shall have full power and
express discretionary authority to administer and interpret the Plan, to make
factual determinations and to adopt or amend such rules, regulations,
agreements and instruments for implementing the Plan and for the conduct of its
business as it deems necessary or advisable, in its sole discretion. The
Committee’s interpretations of the Plan and all determinations made by the
Committee pursuant to the powers vested in it hereunder shall be conclusive and
binding on all persons having any interest in the Plan or in any awards granted
hereunder. All powers of the Committee shall be executed in its sole
discretion, in the best interest of the Company, not as a fiduciary, and in
keeping with the objectives of the Plan and need not be uniform as to similarly
situated Participants.


 


4.     Grants


 


(a)   Grants under the Plan may
consist of Options as described in Section 7, Stock Units as described in Section 8,
Stock Awards as described in Section 9, and SARs or Other Stock-Based
Awards as described in Section 10. All Grants shall be subject to such
terms and conditions as the Committee deems appropriate and as are specified in
writing by the Committee to the Participant in the Grant Agreement.


 


(b)   All Grants shall be made
conditional upon the Participant’s acknowledgement, in writing or by acceptance
of the Grant, that all decisions and determinations of the Committee shall be
final and binding on the Participant, his or her beneficiaries and any other
person having or claiming an interest under such Grant. Grants under a
particular Section of the Plan need not be uniform as among the
Participants.


 


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5.     Shares Subject to the Plan


 


(a)  Shares Authorized.  The total aggregate number of shares of
Company Stock that may be issued under the Plan is the sum of the following (i) 1,900,000
new shares of Company Stock plus (ii) that number of shares of Company
Stock subject to outstanding grants under the Plan as of May 11, 2010 plus
(iii) that number of shares remaining available for issuance under the
Plan but not subject to previously exercised, vested or paid grants as of May 11,
2010; subject to the limitation that of the 1,300,000 shares added to the
number of shares of Company Stock authorized for issuance under the Plan on May 12,
2009, 50,000 shares shall be used solely to grant Options.


 


(b)  Source of Shares; Share
Counting.  Shares issued under
the Plan may be authorized but unissued shares of Company Stock or reacquired
shares of Company Stock, including shares purchased by the Company on the open
market for purposes of the Plan. If and to the extent Options or SARs granted
under the Plan (including options granted under the Director Plan, the 1994
Plan and the Subplans) terminate, expire, or are canceled, forfeited, exchanged
or surrendered without having been exercised, and if and to the extent that any
Stock Awards, Stock Units, or Other Stock-Based Awards (including any stock
awards, stock units or other-stock based awards granted under the Director
Plan, the 1994 Plan and the Subplans) are forfeited or terminated, or otherwise
are not paid in full, the shares reserved for such Grants shall again be
available for purposes of the Plan. Shares of Company Stock surrendered in
payment of the Exercise Price of an Option shall again be available for
purposes of the Plan. To the extent any Grants are paid in cash, and not in
shares of Company Stock, any shares previously subject to such Grants shall
again be available for issuance or transfer under the Plan.


 


(c)  Individual Limits.  All Grants under the Plan shall be expressed
in shares of Company Stock. The maximum aggregate number of shares of Company
Stock with respect to which all Grants may be made under the Plan to any
individual during any calendar year shall be 1,000,000 shares, subject to
adjustment as described in subsection (d) below. A Participant may
not accrue Dividend Equivalents during any calendar year in excess of
$1,000,000. The individual limits of this subsection (c) shall apply
without regard to whether the Grants are to be paid in Company Stock or cash.
All cash payments (other than with respect to Dividend Equivalents) shall equal
the Fair Market Value of the shares of Company Stock to which the cash payments
relate.


 


(d)  Adjustments.  If there is any change in the number or kind
of shares of Company Stock outstanding by reason of a stock dividend, spinoff,
stock split or reverse stock split, or by reason of a combination,
reorganization, recapitalization or reclassification affecting the outstanding
Company Stock as a class without the Company’s receipt of consideration, the
maximum number of shares of Company Stock available for Grants, the maximum
number of shares of Company Stock that any individual participating in the Plan
may be granted in any year, the number of shares covered by outstanding Grants,
the kind of shares issued under the Plan and outstanding Grants, and the price
per share of outstanding Grants shall be equitably adjusted by the Committee,
as the Committee deems appropriate, to reflect any increase or decrease in the
number of, or change in the kind or value of, issued shares of Company Stock to
preclude, to the extent practicable, the enlargement or dilution of rights and
benefits under Grants; provided, however, that any fractional shares resulting
from such adjustment shall be eliminated. In addition, the Committee shall have
discretion to make the foregoing equitable adjustments in any circumstances in
which an adjustment is not mandated by this subsection (d) or
applicable law, including in the event of a Change in Control. Any adjustments
to outstanding Grants shall be consistent with section 409A or 422 of the
Code, to the extent applicable. Any adjustments determined by the Committee
shall be final, binding and conclusive.


 


6.     Eligibility for Participation


 


(a)  Eligible Persons.  All Employees, including Employees who are
officers or members of the Board, and all Non-Employee Directors shall be
eligible to participate in the Plan.


 


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(b)  Selection of Participants.  The Committee shall select the Employees and
Non-Employee Directors to receive Grants and shall determine the number of
shares of Company Stock subject to each Grant.


 


7.     Options


 


(a)  General Requirements.  The Committee may grant Options to an
Employee or Non-Employee Director upon such terms and conditions as the
Committee deems appropriate under this Section 7. The Committee shall
determine the number of shares of Company Stock that will be subject to each
Grant of Options to Employees and Non-Employee Directors.


 


(b)  Type of Option, Price and
Term.


 


(i)     The Committee may grant Incentive Stock Options or Nonqualified
Stock Options or any combination of the two, all in accordance with the terms
and conditions set forth herein. Incentive Stock Options may be granted only to
Employees of the Company or its parents or subsidiaries, as defined in
section 424 of the Code. Nonqualified Stock Options may be granted to Employees
or Non-Employee Directors.


 


(ii)    The Exercise Price of Company Stock subject to an Option shall be
determined by the Committee and may be equal to or greater than the Fair Market
Value of a share of Company Stock on the date the Option is granted. However,
an Incentive Stock Option may not be granted to an Employee who, at the time of
grant, owns stock possessing more than 10% of the total combined voting power
of all classes of stock of the Company or any parent or subsidiary, as defined
in section 424 of the Code, unless the Exercise Price per share is not
less than 110% of the Fair Market Value of the Company Stock on the date of
grant.


 


(iii)   The Committee shall determine the term of each Option, which shall
not exceed ten years from the date of grant. However, an Incentive Stock Option
that is granted to an Employee who, at the time of grant, owns stock possessing
more than 10% of the total combined voting power of all classes of stock of the
Company or any parent or subsidiary, as defined in section 424 of the
Code, may not have a term that exceeds five years from the date of grant.


 


(c)  Exercisability of Options.


 


(i)     Options shall become exercisable in accordance with such terms
and conditions as may be determined by the Committee and specified in the Grant
Agreement. The Committee may accelerate the exercisability of any or all
outstanding Options at any time for any reason.


 


(ii)    The Committee may provide in a Grant Agreement that the
Participant may elect to exercise part or all of an Option before it otherwise
has become exercisable. Any shares so purchased shall be restricted shares and
shall be subject to a repurchase right in favor of the Company during a
specified restriction period, with the repurchase price equal to the lesser of (A) the
Exercise Price or (B) the Fair Market Value of such shares at the time of
repurchase, or such other restrictions as the Committee deems appropriate.


 


(iii)   Options granted to persons who are non-exempt employees under the
Fair Labor Standards Act of 1938, as amended, may not be exercisable for at
least six months after the date of grant (except that such Options may become
exercisable, as determined by the Committee, upon the Participant’s death,
Disability or retirement, or upon a Change in Control or other circumstances
permitted by applicable regulations).


 


(d)  Termination of Employment
or Service.  Except as
provided in the Grant Agreement, an Option may only be exercised while the
Participant is employed by the Employer, or providing service as a Non-Employee
Director. The Committee shall determine in the Grant Agreement under what


 


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circumstances
and during what time periods a Participant may exercise an Option after
termination of employment or service.


 


(e)  Exercise of Options.  A Participant may exercise an Option that has
become exercisable, in whole or in part, by delivering a notice of exercise to
the Company. The Participant shall pay the Exercise Price for the Option (i) in
cash, (ii) if permitted by the Committee, by delivering shares of Company
Stock owned by the Participant and having a Fair Market Value on the date of
exercise equal to the Exercise Price or by attestation to ownership of shares
of Company Stock having an aggregate Fair Market Value on the date of exercise
equal to the Exercise Price, (iii) by payment through a broker in
accordance with procedures permitted by Regulation T of the Federal
Reserve Board, or (iv) by such other method as the Committee may approve.
Shares of Company Stock used to exercise an Option shall have been held by the
Participant for the requisite period of time to avoid adverse accounting
consequences to the Company with respect to the Option. Payment for the shares
pursuant to the Option, and any required withholding taxes, must be received by
the time specified by the Committee depending on the type of payment being
made, but in all cases prior to the issuance of the Company Stock.


 


(f)  Limits on Incentive Stock
Options.  Each Incentive Stock
Option shall provide that, if the aggregate Fair Market Value of the stock on
the date of the grant with respect to which Incentive Stock Options are
exercisable for the first time by a Participant during any calendar year, under
the Plan or any other stock option plan of the Company or a parent or
subsidiary, as defined in section 424 of the Code, exceeds $100,000, then
the Option, as to the excess, shall be treated as a Nonqualified Stock Option.
An Incentive Stock Option shall not be granted to any person who is not an
Employee of the Company or a parent or subsidiary, as defined in
section 424 of the Code.


 


8.     Stock Units


 


(a)  General Requirements.  The Committee may grant Stock Units to an
Employee or Non-Employee Director, upon such terms and conditions as the
Committee deems appropriate under this Section 8. Each Stock Unit shall
represent the right of the Participant to receive a share of Company Stock or
an amount based on the value of a share of Company Stock. All Stock Units shall
be credited to bookkeeping accounts on the Company’s records for purposes of
the Plan.


 


(b)  Terms of Stock Units.  The Committee may grant Stock Units that are
payable on terms and conditions determined by the Committee, which may include
payment based on achievement of performance goals. Stock Units may be paid at
the end of a specified vesting or performance period, or payment may be
deferred to a date authorized by the Committee. The Committee shall determine
the number of Stock Units to be granted and the requirements applicable to such
Stock Units.


 


(c)  Payment With Respect to
Stock Units.  Payment with
respect to Stock Units shall be made in cash, in Company Stock, or in a
combination of the two, as determined by the Committee. The Grant Agreement
shall specify the maximum number of shares that can be issued under the Stock
Units.


 


(d)  Requirement of Employment
or Service.  The Committee
shall determine in the Grant Agreement under what circumstances a Participant
may retain Stock Units after termination of the Participant’s employment or
service, and the circumstances under which Stock Units may be forfeited.


 


9.     Stock Awards


 


(a)  General Requirements.  The Committee may issue shares of Company
Stock to an Employee or Non-Employee Director under a Stock Award, upon such
terms and conditions as the Committee deems appropriate under this Section 9.
Shares of Company Stock issued pursuant to Stock Awards may be issued for cash
consideration or for no cash consideration, and subject to restrictions or no
restrictions, as determined by the Committee. The Committee may establish
conditions under which


 


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restrictions
on Stock Awards shall lapse over a period of time or according to such other
criteria as the Committee deems appropriate, including restrictions based upon
the achievement of specific performance goals. The Committee shall determine
the number of shares of Company Stock to be issued pursuant to a Stock Award.


 


(b)  Requirement of Employment
or Service.  The Committee
shall determine in the Grant Agreement under what circumstances a Participant
may retain Stock Awards after termination of the Participant’s employment or
service, and the circumstances under which Stock Awards may be forfeited.


 


(c)  Restrictions on Transfer.  While Stock Awards are subject to
restrictions, a Participant may not sell, assign, transfer, pledge or otherwise
dispose of the shares of a Stock Award except upon death as described in Section 15(a).
Each certificate for a share of a Stock Award shall contain a legend giving
appropriate notice of the restrictions in the Grant. The Participant shall be
entitled to have the legend removed when all restrictions on such shares have
lapsed. The Company may retain possession of any certificates for Stock Awards
until all restrictions on such shares have lapsed.


 


(d)  Right to Vote and to
Receive Dividends.  The
Committee shall determine to what extent, and under what conditions, the
Participant shall have the right to vote shares of Stock Awards and to receive
any dividends or other distributions paid on such shares during the restriction
period.


 


10.   Stock Appreciation Rights and
Other Stock-Based Awards


 


(a)  SARs.  The Committee may grant SARs to an Employee
or Non-Employee Director separately or in tandem with an Option. The following
provisions are applicable to SARs:


 


(i)  Base Amount.  The Committee shall establish the base amount
of the SAR at the time the SAR is granted. The base amount of each SAR shall be
equal to the per share Exercise Price of the related Option or, if there is no
related Option, an amount that is at least equal to the Fair Market Value of a
share of Company Stock as of the date of Grant of the SAR.


 


(ii)  Tandem SARs.  The Committee may grant tandem SARs either at
the time the Option is granted or at any time thereafter while the Option
remains outstanding; provided, however, that, in the case of an Incentive Stock
Option, SARs may be granted only at the date of the grant of the Incentive
Stock Option. In the case of tandem SARs, the number of SARs granted to a
Participant that shall be exercisable during a specified period shall not
exceed the number of shares of Company Stock that the Participant may purchase
upon the exercise of the related Option during such period. Upon the exercise
of an Option, the SARs relating to the Company Stock covered by such Option
shall terminate. Upon the exercise of SARs, the related Option shall terminate
to the extent of an equal number of shares of Company Stock.


 


(iii)  Exercisability.  An SAR shall be exercisable during the period
specified by the Committee in the Grant Agreement and shall be subject to such
vesting and other restrictions as may be specified in the Grant Agreement. The
Committee may grant SARs the exercise of which is subject to achievement of
performance goals or other conditions. The Committee may accelerate the
exercisability of any or all outstanding SARs at any time for any reason. The
Committee shall determine in the Grant Agreement under what circumstances and
during what periods a Participant may exercise an SAR after termination of
employment or service. A tandem SAR shall be exercisable only while the Option
to which it is related is exercisable.


 


(iv)  Grants to Non-Exempt Employees.  SARs granted to persons who are non-exempt
employees under the Fair Labor Standards Act of 1938, as amended, may not be
exercisable for at least six months after the date of grant (except that such
SARs may become exercisable, as determined by the Committee, upon the
Participant’s death, Disability or retirement, or upon a Change in Control or
other circumstances permitted by applicable regulations).


 


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(v)  Value of SARs.  When a Participant exercises SARs, the
Participant shall receive in settlement of such SARs an amount equal to the
value of the stock appreciation for the number of SARs exercised. The stock
appreciation for an SAR is the amount by which the Fair Market Value of the
underlying Company Stock on the date of exercise of the SAR exceeds the base
amount of the SAR as described in subsection (i).


 


(vi)  Form of Payment.  The Committee shall determine whether the stock
appreciation for an SAR shall be paid in the form of shares of Company Stock,
cash or a combination of the two. For purposes of calculating the number of
shares of Company Stock to be received, shares of Company Stock shall be valued
at their Fair Market Value on the date of exercise of the SAR. If shares of
Company Stock are to be received upon exercise of an SAR, cash shall be
delivered in lieu of any fractional share.


 


(b)  Other Stock-Based Awards.  The Committee may grant other awards not
specified in Sections 7, 8 or 9 or subsection (a) above that are
based on or measured by Company Stock to Employees and Non-Employee Directors,
on such terms and conditions as the Committee deems appropriate. Other Stock-Based
Awards may be granted subject to achievement of performance goals or other
conditions and may be payable in Company Stock or cash, or in a combination of
the two, as determined by the Committee in the Grant Agreement.


 


11.   Dividend Equivalents.


 


(a)  General Requirements.  When the Committee makes a Grant under the
Plan, the Committee may grant Dividend Equivalents in connection with the
Grant, under such terms and conditions as the Committee deems appropriate under
this Section 11. Dividend Equivalents may be paid to Participants
currently or may be deferred, as determined by the Committee. All Dividend
Equivalents that are not paid currently shall be credited to bookkeeping
accounts on the Company’s records for purposes of the Plan. Dividend
Equivalents may be accrued as a cash obligation, or may be converted to Stock
Units for the Participant, and deferred Dividend Equivalents may accrue
interest, all as determined by the Committee. The Committee may provide that
Dividend Equivalents shall be payable based on the achievement of specific performance
goals.


 


(b)  Payment with Respect to
Dividend Equivalents. 
Dividend Equivalents may be payable in cash or shares of Company Stock
or in a combination of the two, as determined by the Committee.


 


12.   Qualified Performance-Based
Compensation


 


(a)  Designation as Qualified
Performance-Based Compensation. 
The Committee may determine that Stock Units, Stock Awards, Dividend
Equivalents or Other Stock-Based Awards granted to an Employee shall be
considered “qualified performance-based compensation” under section 162(m) of
the Code, in which case the provisions of this Section 12 shall apply. The
Committee may also grant Options or SARs under which the exercisability of the
Options is subject to achievement of performance goals as described in this Section 12
or otherwise.


 


(b)  Performance Goals.  When Grants are made under this Section 12,
the Committee shall establish in writing (i) the objective performance
goals that must be met, (ii) the period during which performance will be
measured, (iii) the maximum amounts that may be paid if the performance
goals are met, and (iv) any other conditions that the Committee deems
appropriate and consistent with the requirements of section 162(m) of
the Code for “qualified performance-based compensation.” The performance goals
shall satisfy the requirements for “qualified performance-based compensation,”
including the requirement that the achievement of the goals be substantially
uncertain at the time they are established and that the performance goals be
established in such a way that a third party with knowledge of the relevant
facts could determine whether and to what extent the performance goals have
been met. The Committee shall not have discretion to increase the amount of
compensation that


 


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is
payable, but may reduce the amount of compensation that is payable, pursuant to
Grants identified by the Committee as “qualified performance-based
compensation.”


 


(c)  Criteria Used for
Objective Performance Goals. 
The Committee shall use objectively determinable performance goals based
on one or more of the following criteria: stock price, earnings per share,
price-earnings multiples, net earnings, operating earnings, revenue, number of
days sales outstanding in accounts receivable, productivity, margin, EBITDA
(earnings before interest, taxes, depreciation and amortization), net capital
employed, return on assets, shareholder return, return on equity, return on
capital employed, growth in assets, unit volume, sales, cash flow, market
share, relative performance to a comparison group designated by the Committee,
or strategic business criteria consisting of one or more objectives based on
meeting specified revenue goals, market penetration goals, customer growth,
geographic business expansion goals, cost targets or goals relating to
acquisitions or divestitures. The performance goals may relate to one or more
business units or the performance of the Company as a whole, or any combination
of the foregoing. Performance goals need not be uniform as among Participants.


 


(d)  Timing of Establishment of
Goals.  The Committee shall
establish the performance goals in writing either before the beginning of the
performance period or during a period ending no later than the earlier of (i) 90 days
after the beginning of the performance period or (ii) the date on which
25% of the performance period has been completed, or such other date as may be
required or permitted under applicable regulations under section 162(m) of
the Code.


 


(e)  Certification of Results.  The Committee shall certify the performance
results for the performance period specified in the Grant Agreement after the
performance period ends. The Committee shall determine the amount, if any, to
be paid pursuant to each Grant based on the achievement of the performance
goals and the satisfaction of all other terms of the Grant Agreement.


 


(f)  Death, Disability or Other
Circumstances.  The Committee
may provide in the Grant Agreement that Grants under this Section 12 shall
be payable, in whole or in part, in the event of the Participant’s death or
disability, a Change in Control or under other circumstances consistent with
the Treasury regulations and rulings under section 162(m) of the
Code.


 


13.   Deferrals


 


The Committee may permit or require a Participant to defer receipt of
the payment of cash (including dividend equivalents) or the delivery of shares
that would otherwise be due to the Participant in connection with any Grant.
The Committee shall establish rules and procedures for any such deferrals,
consistent with applicable requirements of section 409A of the Code.


 


14.   Withholding of Taxes


 


(a)  Required Withholding.  All Grants under the Plan shall be subject to
applicable federal (including FICA), state and local tax withholding
requirements. The Company may require that the Participant or other person
receiving or exercising Grants pay to the Company the amount of any federal,
state or local taxes that the Company is required to withhold with respect to
such Grants, or the Company may deduct from other wages paid by the Company the
amount of any withholding taxes due with respect to such Grants.


 


(b)  Election to Withhold
Shares.  If the Committee so
permits, a Participant may elect to satisfy the Company’s tax withholding obligation
with respect to Grants paid in Company Stock by having shares withheld, at the
time such Grants become taxable, up to an amount that does not exceed the
minimum applicable withholding tax rate for federal (including FICA), state and
local tax liabilities. The election must be in a form and manner prescribed by
the Committee.


 


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15.   Transferability of Grants


 


(a)  Restrictions on Transfer.  Except as described in subsection (b) below,
only the Participant may exercise rights under a Grant during the Participant’s
lifetime, and a Participant may not transfer those rights except by will or by
the laws of descent and distribution. When a Participant dies, the personal
representative or other person entitled to succeed to the rights of the
Participant may exercise such rights. Any such successor must furnish proof
satisfactory to the Company of his or her right to receive the Grant under the
Participant’s will or under the applicable laws of descent and distribution.


 


(b)  Transfer of Nonqualified
Stock Options to or for Family Members.  Notwithstanding subsection (a) above,
the Committee may provide, in a Grant Agreement, that a Participant may
transfer Nonqualified Stock Options to family members, or one or more trusts or
other entities for the benefit of or owned by family members, consistent with
the applicable securities laws, according to such terms as the Committee may
determine; provided that the Participant receives no consideration for the
transfer of an Option and the transferred Option shall continue to be subject
to the same terms and conditions as were applicable to the Option immediately
before the transfer.


 


16.   Consequences of a Change in
Control


 


(a)   In the event of a Change in
Control, the Committee may take any one or more of the following actions with
respect to some or all outstanding Grants, without the consent of any
Participant: (i) the Committee may determine that outstanding Options and
SARs shall be fully exercisable, and restrictions on outstanding Stock Awards
and Stock Units shall lapse, as of the date of the Change in Control or at such
other time as the Committee determines, (ii) the Committee may require
that Participants surrender their outstanding Options and SARs in exchange for
one or more payments by the Company, in cash or Company Stock as determined by
the Committee, in an amount equal to the amount by which the then Fair Market
Value of the shares of Company Stock subject to the Participant’s unexercised
Options and SARs exceeds the Exercise Price, or Base Amount, as applicable, if
any, and on such terms as the Committee determines, (iii) after giving
Participants an opportunity to exercise their outstanding Options and SARs, the
Committee may terminate any or all unexercised Options and SARs at such time as
the Committee deems appropriate, (iv) with respect to Participants holding
Stock Units, Other Stock-Based Awards or Dividend Equivalents, the Committee
may determine that such Participants shall receive one or more payments in
settlement of such Stock Units, Other Stock-Based Awards or Dividend
Equivalents, in such amount and form and on such terms as may be determined by
the Committee, (v) if the Company is the surviving corporation, the
Committee may determine that Grants will remain outstanding after the Change in
Control, or (vi) if the Company is not the surviving corporation, the
Committee may determine that Grants that remain outstanding after the Change in
Control shall be converted to similar grants of the surviving corporation (or a
parent or subsidiary of the surviving corporation). Such acceleration,
surrender, termination, settlement or conversion shall take place as of the
date of the Change in Control or such other date as the Committee may specify.


 


(b)  Other Transactions.  The Committee may provide in a Grant
Agreement that a sale or other transaction involving a subsidiary or other
business unit of the Company shall be considered a Change in Control for
purposes of a Grant, or the Committee may establish other provisions that shall
be applicable in the event of a specified transaction.


 


17.   Requirements for Issuance of
Shares


 


No Company Stock shall be issued in connection with any Grant hereunder
unless and until all legal requirements applicable to the issuance of such
Company Stock have been complied with to the satisfaction of the Committee. The
Committee shall have the right to condition any Grant made to any Participant
hereunder on such Participant’s undertaking in writing to comply with such
restrictions on


 


11

















 


his
or her subsequent disposition of such shares of Company Stock as the Committee
shall deem necessary or advisable, and certificates representing such shares
may be legended to reflect any such restrictions. Certificates representing
shares of Company Stock issued under the Plan will be subject to such
stop-transfer orders and other restrictions as may be required by applicable
laws, regulations and interpretations, including any requirement that a legend
be placed thereon. Except as determined under Section 9(a), no Participant
shall have any right as a shareholder with respect to Company Stock covered by
a Grant until shares have been issued to the Participant.


 


18.   Amendment and Termination of
the Plan


 


(a)  Amendment.  The Board may amend or terminate the Plan at
any time; provided, however, that the Board shall not amend the Plan without
approval of the stockholders of the Company if such approval is required in
order to comply with the Code or applicable laws, or to comply with applicable
stock exchange requirements. No amendment or termination of this Plan shall,
without the consent of the Participant, materially impair any rights or
obligations under any Grant previously made to the Participant under the Plan,
unless such right has been reserved in the Plan or the Grant Agreement, or
except as provided in Section 19(b) below. Notwithstanding anything
in the Plan to the contrary, the Board may amend the Plan in such manner as it
deems appropriate in the event of a change in applicable law or regulations.


 


(b)  No Repricing Without
Stockholder Approval.  Except
as otherwise provided in Section 5(d), the terms of outstanding Grants may
not be amended to reduce the exercise price of outstanding Options or the base
amount of outstanding SARs or to cancel outstanding Options or SARs in exchange
for cash, other awards, Options with an exercise price that is less than the
exercise price of the original Options or SARs with a base amount that is less than
the base amount for the original SARs, without stockholder approval.


 


(c)   Stockholder
Approval for “Qualified Performance-Based Compensation.” If Grants
are made under Section 12 above, the Plan must be reapproved by the
Company’s stockholders no later than the first stockholders meeting that occurs
in the fifth year following the year in which the stockholders previously
approved the provisions of Section 12, if additional Grants are to be made
under Section 12 and if required by section 162(m) of the Code
or the regulations thereunder.


 


(d)  Termination of Plan.  The Plan shall terminate on May 7, 2017,
unless the Plan is terminated earlier by the Board or is extended by the Board
with the approval of the stockholders. The termination of the Plan shall not
impair the power and authority of the Committee with respect to an outstanding
Grant.


 


19.   Miscellaneous


 


(a)  Grants in Connection with
Corporate Transactions and Otherwise.  Nothing contained in this Plan shall be
construed to (i) limit the right of the Committee to make Grants under
this Plan in connection with the acquisition, by purchase, lease, merger,
consolidation or otherwise, of the business or assets of any corporation, firm
or association, including Grants to employees thereof who become Employees, or
for other proper corporate purposes, or (ii) limit the right of the
Company to grant stock options or make other stock-based awards outside of this
Plan. Without limiting the foregoing, the Committee may make a Grant to an
employee of another corporation who becomes an Employee by reason of a
corporate merger, consolidation, acquisition of stock or property,
reorganization or liquidation involving the Company in substitution for a grant
made by such corporation. The terms and conditions of the Grants may vary from
the terms and conditions required by the Plan and from those of the substituted
stock incentives, as determined by the Committee.


 


(b)  Compliance with Law.  The Plan, the exercise of Options and the
obligations of the Company to issue or transfer shares of Company Stock under
Grants shall be subject to all applicable laws and to approvals by any
governmental or regulatory agency as may be required. With respect to persons


 


12

















 


subject
to section 16 of the Exchange Act, it is the intent of the Company that
the Plan and all transactions under the Plan comply with all applicable
provisions of Rule 16b-3 or its successors under the Exchange Act. In
addition, it is the intent of the Company that Incentive Stock Options comply
with the applicable provisions of section 422 of the Code, that Grants of “qualified
performance-based compensation” comply with the applicable provisions of
section 162(m) of the Code and that, to the extent applicable, Grants
are either exempt from, or comply with, the requirements of section 409A
of the Code. To the extent that any legal requirement of section 16 of the
Exchange Act or section 422, 162(m) or 409A of the Code as set forth
in the Plan ceases to be required under section 16 of the Exchange Act or
section 422, 162(m) or 409A of the Code, that Plan provision shall
cease to apply. The Committee may revoke any Grant if it is contrary to law or
modify a Grant to bring it into compliance with any valid and mandatory
government regulation. The Committee may also adopt rules regarding the
withholding of taxes on payments to Participants.


 


(c)  Enforceability.  The Plan shall be binding upon and
enforceable against the Company and its successors and assigns.


 


(d)  Funding of the Plan;
Limitation on Rights.  This
Plan shall be unfunded. The Company shall not be required to establish any
special or separate fund or to make any other segregation of assets to assure
the payment of any Grants under this Plan. Nothing contained in the Plan and no
action taken pursuant hereto shall create or be construed to create a fiduciary
relationship between the Company and any Participant or any other person. No
Participant or any other person shall under any circumstances acquire any property
interest in any specific assets of the Company. To the extent that any person
acquires a right to receive payment from the Company hereunder, such right
shall be no greater than the right of any unsecured general creditor of the
Company.


 


(e)  Rights of Participants.  Nothing in this Plan shall entitle any
Employee, Non-Employee Director or other person to any claim or right to
receive a Grant under this Plan. Neither this Plan nor any action taken
hereunder shall be construed as giving any individual any rights to be retained
by or in the employment or service of the Employer.


 


(f)  No Fractional Shares.  No fractional shares of Company Stock shall
be issued or delivered pursuant to the Plan or any Grant. The Committee shall
determine whether cash, other awards or other property shall be issued or paid
in lieu of such fractional shares or whether such fractional shares or any
rights thereto shall be forfeited or otherwise eliminated.


 


(g)  Employees Subject to
Taxation Outside the United States. 
With respect to Participants who are subject to taxation in countries
other than the United States, the Committee may make Grants on such terms and
conditions as the Committee deems appropriate to comply with the laws of the
applicable countries, and the Committee may create such procedures, addenda and
subplans and make such modifications as may be necessary or advisable to comply
with such laws.


 


(h)  Governing Law.  The validity, construction, interpretation
and effect of the Plan and Grant Agreements issued under the Plan shall be
governed and construed by and determined in accordance with the laws of the
State of New York, without giving effect to the conflict of laws provisions
thereof.


 


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