Exhibit
4.1


 


INVESTMENT
TECHNOLOGY GROUP, INC.


 


AMENDED
AND RESTATED EMPLOYEE STOCK PURCHASE PLAN


 


1.                                       Purpose.  The purpose
of this Amended and Restated Employee Stock Purchase Plan (the “Plan”) of
Investment Technology Group, Inc. (the “Company”) is to encourage stock
ownership by employees of the Company and its Subsidiaries (as defined below)
and thereby provide employees with an incentive to contribute to the
profitability and success of the Company, and to provide a benefit that will
assist the Company in competing to attract and retain employees of high
quality.  The Plan, which is intended to
qualify as an “employee stock purchase plan” meeting the requirements of Section 423
of the Code, is for the exclusive benefit of eligible employees of the Company
and its Subsidiaries.


 


2.                                       Definitions. 
For purposes of the Plan, in addition to the terms defined in Section 1,
terms are defined as set forth below:


 


(a)                                  “Account” means the account maintained on
behalf of the Participant by the Custodian for the purpose of investing in
Stock and engaging in other transactions permitted under the Plan.


 


(b)                                 “Administrator” means the person or
persons designated to administer the Plan under Section 3(a).


 


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


 


(d)                                 “Code” means the Internal Revenue Code of
1986, as amended from time to time. 
References to any provision of the Code will be deemed to include
successor provisions thereto and regulations thereunder.


 


(e)                                  “Custodian” means Computershare, or such
successor thereto as may be appointed by the Board.


 


(f)                                    “Earnings” means that portion of a
Participant’s compensation which constitutes salary, bonus or overtime pay
under the payroll system of the Company and its Subsidiaries and payable to a
Participant during a given pay period.


 


(g)                                 “Enrollment Date” means the first day of
each Offering Period.


 


(h)                                 “Fair Market Value,” unless
otherwise required by an applicable provision of the Code, as of any date,
means the closing sales price of the Stock as reported on the New York Stock
Exchange on the date as of which the valuation is made.


 


(i)                                     “Offering Period” means the approximately
six-month period beginning on February 1 and ending on the last trading
day of July or beginning August 1 and ending on the last trading day
of January.  The first Offering Period
began on February 1, 1998.


 


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(j)                                     “Participant” means an employee of the
Company or a Subsidiary who is participating in the Plan.


 


(k)                                  “Purchase Date” means the last trading
day of each Offering Period.


 


(l)                                     “Purchase Right” means a Participant’s
option to purchase shares, which is deemed to be outstanding and exercisable
during an Offering Period in accordance with the Plan.  A Purchase Right represents an “option” as
such term is used under Section 423 of the Code.


 


(m)                               “Stock” means the common stock, par value
$.01 per share, of the Company, and such other securities as may be substituted
or resubstituted for Stock under Section 4.


 


(n)                                 “Subsidiary” means any corporation (other
than the Company) in an unbroken chain of corporations beginning with the
Company if each of the corporations (other than the last corporation in the
unbroken chain) owns stock possessing more than 50% of the total combined
voting power of all classes of stock in one of the other corporations in the
chain, including a corporation that becomes a Subsidiary during the term of the
Plan.


 


3.                                       Administration.


 


(a)                                  Administrator. 
The Plan will be administered by an Administrator, which shall be the Board
or such Board committee, officer, or committee of officers and employees to
which the Board may delegate administrative duties and authority (other than
authority to amend the Plan).  The
Administrator will have full authority to adopt, amend, suspend, waive, and
rescind such rules and regulations and appoint such agents as it may deem
necessary or advisable to administer the Plan, to correct any defect or supply
any omission or reconcile any inconsistency in the Plan and to construe and
interpret the Plan and rules and regulations thereunder, to furnish to the
Custodian such information as the Custodian may require, and to make all other
decisions and determinations under the Plan (including determinations relating
to eligibility).  No person acting in
connection with the administration of the Plan will, in that capacity,
participate in deciding any matter relating to his or her participation in the
Plan.


 


(b)                                 The Custodian. 
The Custodian will act as custodian under the Plan, and will perform
such duties as are set forth in the Plan and in any agreement between the
Company and the Custodian.  The Custodian
will establish and maintain, as agent for each Participant, an Account and any
subaccounts as may be necessary or desirable for the administration of the
Plan.


 


(c)                                  Other Administrative Provisions. 
The Company will furnish information to the Custodian from its records
as directed by the Administrator, and such records, including as to a
Participant’s Earnings, will be conclusive on all persons unless determined by
the Administrator to be incorrect.  Each
Participant and other person claiming benefits under the Plan must furnish to
the Company in writing an up-to-date mailing address and any other information
as the Administrator or Custodian may reasonably request.  Any communication, 


 


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statement, or
notice mailed with postage prepaid to any such Participant or other person at
the last mailing address filed with the Company will be deemed sufficiently given
when mailed and will be binding upon the named recipient.  The Plan will be administered on a reasonable
and nondiscriminatory basis, and Plan provisions and rules thereunder will
apply in a uniform manner to all persons similarly situated.  All Participants will have equal rights and
privileges (subject to the terms of the Plan) with respect to Purchase Rights
outstanding during any given Offering Period.


 


4.                                       Stock Subject to Plan. 
Subject to adjustment as hereinafter provided, the total number of shares
of Stock reserved and available for issuance upon exercise of Purchase Rights
or otherwise under the Plan will be 1,198,313. 
Any shares of Stock delivered by the Company under the Plan may consist,
in whole or in part, of authorized and unissued shares or treasury shares.  Shares acquired in the open market through
dividend reinvestment will not count against this limit.  The number and kind of such shares of Stock
subject to the Plan will be proportionately adjusted, as determined by the
Board, in the event of any extraordinary dividend or other distribution,
recapitalization, forward or reverse split, reorganization, merger,
consolidation, spin-off, combination, repurchase, or share exchange, or other
similar corporate transaction or event affecting the Stock.


 


5.                                       Enrollment and Contributions.


 


(a)                                  Eligibility. 
An employee of the Company or a Subsidiary may enroll in the Plan for
any Offering Period if such employee is employed at the Enrollment Date and was
continuously so employed during the 15 days preceding the Enrollment Date,
unless:


 


(i)                                     At the time of enrollment, the employee’s
customary employment is 20 hours or less per week or the employee’s customary
employment is for not more than five months in any calendar year, or the
employee cannot legally enter into the obligations of a Participant;


 


(ii)                                  Such person would upon enrollment be
deemed to own, for purposes of Section 423(b)(3) of the Code, an
aggregate of five percent or more of the total combined voting power or value
of all outstanding shares of all classes of the Company or of any parent or
Subsidiary (including in such person’s ownership the maximum number of shares
that he or she could acquire under Section 6(c)); or


 


(iii)                               Such person is disqualified from
participation in such Offering Period under Section 7(b).


 


The Company will notify
an employee of the date as of which he or she is eligible to initially enroll
in the Plan, and will make available to each eligible employee the necessary
enrollment forms.


 


(b)                                 Initial Enrollment. 
An employee who is or who will become eligible on or before a given
Enrollment Date under Section 5(a) may, after receiving current
information about 


 


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the Plan,
initially enroll in the Plan by executing and filing with the Administrator a
properly completed enrollment form, including thereon the employee’s election
as to the rate of payroll contributions for the Offering Period.  To be effective for any Offering Period, such
enrollment form must be filed at least 15 days before the Enrollment Date for
the Offering Period.


 


(c)                                  Reenrollment for Subsequent Offering
Periods.  A Participant whose enrollment in and payroll
contributions under the Plan continue throughout an Offering Period will
automatically be reenrolled in the Plan for the next Offering Period unless (i) the
Participant terminates enrollment before the Enrollment Date for the next
Offering Period in accordance with Section 7(a) or (ii) on such
Enrollment Date he or she is ineligible to participate under Section 5(a) (including
due to disqualification under Section 7(b)).  The rate of payroll contributions for a
Participant who is automatically reenrolled for an Offering Period will be the
same as the rate of payroll contributions in effect at the end of the preceding
Offering Period, unless the Participant files a new enrollment form at least 15
days before the Enrollment Date for the Offering Period designating a different
rate of payroll contributions.


 


(d)                                 Payroll Contributions. 
An enrolled Participant will make contributions under the Plan by means
of payroll deductions from each payroll period which ends during the Offering
Period, at the rate elected by the Participant in his or her enrollment form
filed nearest to, but not later than, 15 days before the Enrollment Date for
the Offering Period.  The rate of payroll
contributions elected by a Participant may not be more than ten percent of the
Participant’s Earnings for each payroll period; provided, however,
that the Board may specify a higher maximum rate, subject to Section 8(c) hereof.  The Administrator may specify, on the
enrollment form, whether payroll contributions shall be a percentage of
Earnings or a fixed dollar amount.  The
foregoing and any election of a Participant notwithstanding, a Participant’s
rate of payroll contributions will be adjusted downward by the Company at any
time or from time to time as necessary to ensure that the limit on the amount
of Stock purchased with respect to an Offering Period set forth in Section 6(c) is
not exceeded.  A Participant may elect to
increase, decrease, or discontinue payroll contributions for future Offering
Periods by filing a new enrollment form at least 15 days before the Enrollment
Date for the Offering Period.  A
Participant may not elect to increase or decrease payroll contributions during
an Offering Period, except that a Participant’s payroll contributions will be
automatically discontinued upon the filing of an election to withdraw payroll
contributions prior to a Purchase Date or the filing of an election to withdraw
or transfer shares if such filing occurs less than one year after the Purchase
Date on which such shares were purchased, as specified in Sections 5(f), 7(a) and
7(b).


 


(e)                                  Holding of Payroll Contributions. 
All payroll contributions by a Participant under the Plan will be
received and held by the Company until the end of the Offering Period, and will
represent unfunded obligations of the Company. 
Such amounts are not required to be segregated and may be used by the
Company for any corporate purpose.


 


(f)                                    Withdrawal of Payroll Contributions;
Refund of Payroll Contributions Upon Termination of Employment. 
A Participant may elect to withdraw all (but not less than all) of his
or her payroll contributions for a given Offering Period by filing a notice of
withdrawal with the Administrator not later than the close of business the
business day prior to the Purchase 


 


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Date for such
Offering Period.  In addition, if the
Participant ceases to be employed by the Company and its Subsidiaries prior to
the Purchase Date, his or her payroll contributions for that Offering Period
shall be refunded.  In either case, the
Company shall promptly pay to the Participant (or his or her estate, in the
event of death) the amount of such payroll contributions.  No further payroll contributions shall be
made by the Participant in that Offering Period.  In addition, in the case of withdrawal the
Participant shall be subject to possible disqualification from participation in
the next Offering Period under Section 7(b).


 


(g)                                 Refund of Unused Payroll Contributions. 
If any of a Participant’s payroll contributions are not applied to the
purchase of shares on the Purchase Date (for example, if the number of shares
purchased is limited under Section 6(c)), the portion of such payroll
contributions not applied to the purchase of shares shall be promptly refunded
to the Participant.


 


(h)                                 No Interest Payable on Payroll
Contributions.  No amounts of interest will be credited or
payable by the Company on payroll contributions pending investment in Stock,
withdrawal, refund upon termination, or refund of any unused portion, or in any
other circumstance under the Plan.


 


6.                                       Purchases of Stock.


 


(a)                                  Purchase Rights.  Enrollment
in the Plan for any Offering Period by a Participant will constitute a grant by
the Company of a Purchase Right to such Participant for such Offering
Period.  Each Purchase Right will be
subject to the terms set forth in this Section 6.


 


(b)                                 Purchase Price.  The purchase price at which each share of
Stock will be purchased under a Purchase Right will equal 85% of the lesser of (i) Fair
Market Value of a share of Stock on the first trading day in the Offering
Period and (ii) Fair Market Value of a share of Stock on the last trading
day in the Offering Period.


 


(c)                                  Number of
Shares Purchased.  The number
of shares of Stock that will be purchased upon exercise of a Participant’s
Purchase Right for an Offering Period will equal the number of shares (including fractional
shares) that can be purchased at the purchase price specified in Section 6(b) with
the aggregate amount of the Participant’s payroll contributions during the
Offering Period; provided, however, that the number of shares of
Stock subject to a Participant’s Purchase Right and purchasable in any Offering
Period will not exceed the lesser of (i) the number derived by dividing
$12,500 by 100% of the Fair Market Value of one share of Stock determined as of
the first trading day in the Offering Period or (ii) the number of shares
such that the Participant’s rights to purchase shares under all employee stock
purchase plans qualifying under Section 423 of the Code of the Company and
any parent or Subsidiary shall accrue at a rate which does not exceed $25,000
of the Fair Market Value of the Stock (determined at the time each such option
is granted) as required under Section 423(b)(8) of the Code.


 


(d)                                 Automatic Exercise and Purchase. 
The Purchase Right will be automatically exercised on the Purchase Date
for the Offering Period.  At or as
promptly as 


 


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practicable after
the Purchase Date for an Offering Period, the aggregate amount of the
Participant’s payroll contributions for the Offering Period will be applied by
the Company to the purchase of shares of Stock, in accordance with the terms of
the Plan.  Thereupon, the Company will
deliver the shares of Stock purchased to the Custodian for deposit into the Participant’s
Account.  Payment for Stock purchased
upon exercise of a Purchase Right will be made only through payroll
contributions in accordance with Section 5; no optional payments will be
permitted.


 


(e)                                  Expiration.  A Participant’s
Purchase Right will expire on the earlier of the Purchase Date for the Offering
Period (if not exercised) or the date on which the Participant’s enrollment in
the Plan terminates.


 


(f)                                    Dividend Reinvestment; Other
Distributions.  Cash dividends on any Stock credited to a
Participant’s Account will be automatically reinvested in additional shares of
Stock; such amounts will not be available in the form of cash to
Participants.  All cash dividends paid on
Stock credited to Participants’ Accounts will be paid over by the Company to
the Custodian at the dividend payment date. 
The Custodian will aggregate all purchases of Stock in connection with
the Plan for a given dividend payment date. 
Purchases of Stock for purposes of dividend reinvestment will be made as
promptly as practicable (but not more than 30 days) after a dividend payment
date.  The Custodian will make such
purchases, as directed by the Administrator, either (i) in transactions on
any securities exchange upon which Stock is traded, otherwise in the
over-the-counter market, or in negotiated transactions, or (ii) directly
from the Company at 100% of the Fair Market Value of a share of Stock on the
dividend payment date.  Any shares of
Stock distributed as a dividend or distribution in respect of shares of Stock
or in connection with a split of the Stock credited to a Participant’s Account
will be credited to such Account.  In the
event of any other non-cash dividend or distribution in respect of Stock
credited to a Participant’s Account, the Custodian will, if reasonably
practicable and at the direction of the Administrator, sell any property
received in such dividend or distribution as promptly as practicable and use
the proceeds to purchase additional shares of Stock in the same manner as cash
paid over to the Custodian for purposes of dividend reinvestment.  Shares of Stock acquired under this Section 6(f) shall
be subject to section 7(a) and 7(b) and, for such purposes, shall be
deemed to be acquired by a Participant at the same time as the Participant
acquired the underlying shares in respect of which the shares were distributed
under this Section 6(f).


 


(e)                                  Voting Rights. 
Each Participant will be entitled to vote the number of shares of Stock
credited to his or her Account (including any fractional shares credited to
such account) on any matter as to which the approval of the Company’s
stockholders is sought.  If a Participant
does not vote or grant a valid proxy with respect to shares credited to his or
her Account, such shares will be voted by the Custodian in accordance with any
stock exchange or other rules governing the Custodian in the voting of
shares held for customer accounts. 
Similar procedures will apply in the case of any consent solicitation of
Company stockholders.


 


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7.                                       Withdrawal or Transfer of Shares,
Disqualification, and Account Distribution Upon Termination.


 


(a)                                  Stock Withdrawals and Transfers. 
A Participant may elect to withdraw shares of Stock from his or her
Account in certificated form or to transfer such shares from his or her Account
to an account of the Participant maintained with a broker-dealer or financial
institution; provided, however, that an election to withdraw or
transfer shares filed less than one year after the Purchase Date on which such
shares were purchased shall be deemed an election to withdraw payroll
contributions under Section 5(f) for the current Offering Period and
shall result in disqualification from participation in the next Offering Period
to the extent provided under Section 7(b). 
If a Participant elects to withdraw shares, one or more certificates for
whole shares shall be issued in the name of, and delivered to, the Participant,
with such Participant receiving cash in lieu of fractional shares based on the
Fair Market Value of a share of Stock on the date of withdrawal.  If shares of Stock are transferred from a
Participant’s Account to a broker-dealer or financial institution that
maintains an account for the Participant, only whole shares shall be
transferred and cash in lieu of any fractional share shall be paid over for the
account of Participant based on the Fair Market Value of a share of Stock on
the date of transfer, unless otherwise determined by the Administrator based on
the Administrator’s determination that such broker-dealer or financial institution
is capable of crediting fractional shares. 
Other provisions of this Plan notwithstanding, if the Participant is
then an employee of the Company or its subsidiaries, transfers will be made
only to a broker-dealer or financial institution through which employees are
then permitted to sell Stock under the Company’s policies governing employee
trading in Company securities. 
Participants may not designate any other person to receive directly
shares of Stock withdrawn or transferred under the Plan, although no
restrictions apply under this Plan to shares that have been withdrawn or
transferred.  A Participant seeking to
withdraw or transfer shares of Stock must give instructions to the Custodian in
such manner and form as may be prescribed by the Administrator and the
Custodian, which instructions will be acted upon as promptly as
practicable.  Withdrawals and transfers
will be subject to any fees imposed in accordance with Section 8(a) hereof.


 


(b)                                 Disqualification. 
If a Participant elects to withdraw payroll contributions at any time
under Section 5(f) or elects to withdraw or transfer shares that were
purchased at a Purchase Date less than one year before the date of filing the
election to withdraw or transfer under Section 7(a) (which is also
deemed to constitute an election to withdraw payroll contributions), the
Participant’s enrollment for the Offering Period in effect at the date of such
withdrawal or transfer shall cease and the Participant shall be disqualified
from participating in the next Offering Period beginning after the filing of
such election to withdraw payroll contributions or withdraw or transfer
shares.  The foregoing notwithstanding,
the Administrator may permit a Participant to reenroll in the next Offering
Period if the Participant demonstrates and the Administrator finds that the
withdrawal of payroll contributions and/or the withdrawal or transfer of shares
was necessary due to an unforeseeable financial emergency or hardship of the
Participant.  For purposes of the Plan, a
Participant shall be deemed to withdraw or transfer shares from his or her
Account in the order in which the shares were acquired (i.e., first in-first
out).


 


(c)                                  Distribution of Account Upon Termination. 
Upon termination of employment of a Participant, the Custodian will
continue to maintain the Participant’s Account until the earlier of such time
as the Participant withdraws or transfers all Stock in the Account or


 


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one year after the
Participant ceases to be employed by the Company and its Subsidiaries.  At the expiration of such one year period,
the assets in Participant’s account shall be withdrawn or transferred as
elected by the Participant or, in the absence of such election, as determined
by the Administrator.  If a Participant
dies while assets remain credited to his or her Account, all amounts payable to
the Participant will be paid to his or her estate as promptly as practicable.


 


8.                                       General.


 


(a)                                  Costs.  Costs and
expenses incurred in the administration of the Plan and maintenance of Accounts
will be paid by the Company, including annual fees of the Custodian and any
brokerage fees and commissions for the purchase of Stock upon reinvestment of
dividends and distributions.  The
foregoing notwithstanding, the Custodian may impose or pass through a
reasonable fee for the withdrawal of Stock in the form of stock certificates
(as permitted under Section 6(f)), and reasonable fees for other services
unrelated to the purchase of Stock under the Plan, to the extent approved in
writing by the Company and communicated to Participants.  In no circumstance shall the Company pay any
brokerage fees and commissions for the sale of Stock acquired under the Plan by
a Participant.


 


(b)                                 Statements to Participants. 
The Custodian will reflect payroll contributions, purchases, dividends
and distributions and reinvestment thereof, withdrawals and transfers of shares
of Stock and other Plan transactions by appropriate adjustments to the
Participant’s Account.  The Custodian
will, not less frequently than semi-annually, provide or cause to be provided a
written statement to the Participant showing the transactions in his or her
Account and the date thereof, the number of shares of Stock purchased, the
aggregate purchase price paid, the purchase price per share, the brokerage fees
and commissions paid (if any), the total shares of Stock held for the
Participant’s Account (computed to at least three decimal places), and other
information.


 


(c)                                  Compliance with Section 423. 
It is the intent of the Company that this Plan comply in all respects
with applicable requirements of Section 423 of the Code and regulations
thereunder.  Accordingly, if any
provision of this Plan does not comply with such requirements, such provision
will be construed or deemed amended to the extent necessary to conform to such
requirements.


 


9.  General Provisions.


 


(a)                                  Compliance With Legal and Other
Requirements.  The Plan, the granting and exercising of
Purchase Rights hereunder, and the other obligations of the Company and the
Custodian under the Plan will be subject to all applicable federal and state
laws, rules, and regulations, and to such approvals by any regulatory or
governmental agency as may be required. 
The Company may, in its discretion, postpone the issuance or delivery of
Stock upon exercise of Purchase Rights until completion of such registration or
qualification of such Stock or other required action under any federal or state
law, rule, or regulation, listing or other required action with respect to any
automated quotation system or stock exchange upon which the Stock or other
Company securities are designated or listed, or compliance with any other
contractual obligation


 


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of the Company, as
the Company may consider appropriate, and may require any Participant to make
such representations and furnish such information as it may consider
appropriate in connection with the issuance or delivery of Stock in compliance
with applicable laws, rules, and regulations, designation or listing
requirements, or other contractual obligations.


 


(b)                                 Limits on Encumbering Rights. 
No right or interest of a Participant under the Plan, including any
Purchase Right, may be pledged, encumbered, or hypothecated to or in favor of
any party, subject to any lien, obligation, or liability of such Participant,
or otherwise assigned, transferred, or disposed of except pursuant to the laws
of descent or distribution, and any right of a Participant under the Plan will
be exercisable during the Participant’s lifetime only by the Participant.


 


(c)                                  No Right to Continued Employment. 
Neither the Plan nor any action taken hereunder, including the grant of
a Purchase Right, will be construed as giving any employee the right to be
retained in the employ of the Company or any of its Subsidiaries, nor will it
interfere in any way with the right of the Company or any of its Subsidiaries
to terminate any employee’s employment at any time.


 


(d)                                 Taxes.  The Company
or any Subsidiary is authorized to withhold from any payment to be made to a
Participant, including any payroll and other payments not related to the Plan,
amounts of withholding and other taxes due in connection with any transaction
under the Plan, and a Participant’s enrollment in the Plan will be deemed to
constitute his or her consent to such withholding.  In addition, Participants are required to
advise the Company of sales and other dispositions of Stock acquired under the
Plan in order to permit the Company to comply with tax laws and to claim any
tax deductions to which the Company may be entitled with respect to the Plan.


 


(e)                                  Changes to the Plan. 
The Board may amend, alter, suspend, discontinue, or terminate the Plan
without the consent of stockholders or Participants, provided, however,  that any such action will be subject to the
approval of the Company’s stockholders within one year after such Board action
if such stockholder approval is required by any federal or state law or
regulation or the rules of any automated quotation system or stock
exchange on which the Stock may then be quoted or listed, or if such
stockholder approval is necessary in order for the Plan to continue to meet the
requirements of Section 423 of the Code, and the Board may otherwise, in
its discretion, determine to submit other such actions to stockholders for
approval.  Upon termination of the Plan,
the Board may elect to terminate all outstanding Purchase Rights at such time
as the Board may designate; if such termination results in termination of any Purchase
Right prior to its exercise, all of a Participant’s payroll contributions not
invested in Stock will be returned to the Participant (without interest) as
promptly as practicable.


 


(f)                                    No Rights to Participate; No Stockholder
Rights.  No Participant or employee will have any
claim to participate in the Plan with respect to Offering Periods that have not
commenced, and the Company will have no obligation to continue the Plan.  No Purchase Right will confer on any
Participant any of the rights of a stockholder of the Company unless and 


 


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until Stock is
duly issued or transferred to the Custodian and credited to the Participant’s
Account.


 


(g)                                 Fractional Shares. 
Unless otherwise determined by the Administrator, purchases of Stock
under the Plan executed by the Custodian may result in the crediting of
fractional shares of Stock to the Participant’s Stock Account.  Such fractional shares will be computed to at
least three decimal places.  Fractional
shares will not, however, be issued by the Company, and certificates
representing fractional shares will not be delivered to Participants under any
circumstances.  If at any time fractional
shares will not be credited to Participants’ Accounts, the Administrator shall
determine whether a Participant’s payroll contributions remaining after the
purchase of the greatest possible number of whole shares on a given Purchase
Date will be refunded or will be retained and applied to purchases in the next
Offering Period.


 


(h)                                 Nonexclusivity of the Plan. 
Neither the adoption of the Plan by the Board nor its submission to the
stockholders of the Company for approval will be construed as creating any
limitations on the power of the Board to adopt such other compensatory arrangements
as it may deem desirable, including, without limitation, the granting of stock
options otherwise than under the Plan, and such arrangements may be either
applicable generally or only in specific cases.


 


(i)                                     Governing Law. 
The Plan and all related documents shall be governed by, and construed
in accordance with, the laws of the State of New York (except to the extent the
Delaware General Corporation Law and provisions of federal law may be
applicable), without reference to principles of conflict of laws.  If any provision hereof shall be held by a
court of competent jurisdiction to be invalid and unenforceable, the remaining
provisions of the Plan shall continue to be fully effective.


 


(k)                                  Effective Date. 
The Plan was originally effective February 1, 1998.  The Plan as amended and restated herein shall
be effective as of the date of the Annual Meeting of the Company’s stockholders
in May 2009, subject to approval by the Company’s stockholders at such
Annual Meeting.


 


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