exhibit_10-7.htm


    


     

    Exhibit
10.7

     

    Third
Amended and Restated

     

    Thomas
Weisel Partners Group, Inc. Equity Incentive Plan

     

    Section
1. Purpose. The
purposes of this Equity Incentive Plan (the “PLAN”) are to attract, retain and
motivate key employees and directors of and consultants and advisors to Thomas
Weisel Partners Group, Inc. (the “COMPANY”) and its Subsidiaries and Affiliates
and to align the interests of key employees, directors, consultants and advisors
with shareholders with equity-based compensation and enhanced opportunities for
ownership of shares of the Company’s common stock.

     

    Section
2. Definitions. The
following terms used in the Plan and any agreement entered into pursuant to the
Plan shall have the meaning set forth below:

     

    “AFFILIATE”
means (i) any Person that directly, or through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Company or
(ii) any entity in which the Company has a significant equity interest, as
determined by the Committee.

     

    “AWARD”
means any Option, award of Restricted Stock or Restricted Stock units,
Performance Award, Other Stock-Based Award, or any other right, interest or
grant relating to Shares or other property granted pursuant to the
Plan.

     

    “AWARD
AGREEMENT” means any written agreement, contract or other instrument or document
evidencing any Award, which may, but need not be (as determined by the
Committee) executed or acknowledged by a Participant as a condition to receiving
an Award or the benefits under an Award.

     

    “BOARD”
or “BOARD OF DIRECTORS” means the Board of Directors of the
Company.

     

    “CHANGE
IN CONTROL” means

     

    (a) the
consummation of a merger, consolidation, statutory share exchange or similar
form of corporate transaction involving the Company or the sale or other
disposition of all or substantially all of the assets of the Company to an
entity that is not an affiliate that, in each case, requires shareholder
approval under the laws of the Company’s jurisdiction of organization, unless
immediately following such transaction: (i) more than 50% of the total voting
power of the surviving entity or the entity that directly or indirectly has
beneficial ownership of 95% of the voting securities eligible to elect directors
of the surviving entity (a “Parent Entity”), if applicable, is represented by
securities of the Company that were outstanding immediately prior to the
transaction (or securities into which the Company’s securities were converted or
exchanged in such transaction) and such voting power among the holders thereof
is in substantially the same proportion as the voting power of such securities
among the holders thereof immediately prior to such transaction; (ii) no person
(other than any employee benefit plan (or any related trust) sponsored or
maintained by the surviving entity or the Parent Entity), is or becomes the
beneficial owner, directly or indirectly, of securities of the Parent Entity
(or, if there is no Parent Entity, the surviving entity) representing 20% of the
total voting power of the securities then outstanding generally eligible to vote
for the election of directors of the Parent Entity (or, if there is no Parent
Entity, the surviving entity); and (iii) at least a majority of the members of
the board of directors (including directors whose election or nomination was
approved by at least two-thirds of the incumbent directors of the Board) of the
Parent Entity (or, if there is no Parent Entity, the surviving entity) were
members of the Board at the time of the Board’s approval of the execution of the
initial agreement providing for the transaction;

     

    (b) any
event that results in the directors of the Board as of the effective date of the
Plan (including directors whose election or nomination was approved by at least
two-thirds of the incumbent directors of the Board) failing to constitute at
least a majority of the Board; or

     

    (c) the
shareholders of the Company approve a plan of complete liquidation or
dissolution of the Company;

     

    provided, however, that for purposes of
(a)(iii) and (b) above no individual initially elected or nominated as a
director of the Board as a result of an actual or threatened election contest
with respect to directors or as a result of any other actual or
threatened solicitation of proxies or consents by or on behalf of any person
other than the Board shall be included in the calculation of
incumbency.

     

    Notwithstanding
(a)(ii) above, a Change in Control shall not be deemed to occur solely because
any person acquires beneficial ownership of more than 20% of the total voting
power of securities then outstanding generally eligible to vote for the election
of directors of the Parent Entity (or, if there is no Parent Entity, the
surviving entity) as a result of the acquisition of securities by the Company
which reduces the number of such securities outstanding; provided, that if after such
acquisition by the Company such person becomes the beneficial owner of
additional securities then outstanding generally eligible to vote for the
election of directors of the Parent Entity (or, if there is no Parent Entity,
the surviving entity) that increases the percentage of such securities
beneficially owned by such person, a Change in Control of the Company shall then
occur.

     

    “CODE”
means the Internal Revenue Code of 1986, as amended.

     

    “COMMITTEE”
means the Compensation Committee of the Board, or any successor to such
committee, or any other committee of our Board appointed or designated by the
Board, in each case, composed of no fewer than two directors each of whom is a
“non-employee director” within the meaning of Rule 16b-3 of the Securities
Exchange Act of 1934, as amended, and an “outside director” within the meaning
of Section 162(m) of the Code and the regulations promulgated
thereunder.

     

    “COVERED
EMPLOYEE” means an individual who is both (i) a “covered employee” within the
meaning of Section 162(m)(3) of the Code, or any successor provision thereto and
(ii) expected by the Committee to be the recipient of compensation (other than
“qualified performance based compensation” as defined in Section 162(m) of the
Code) in excess of $1,000,000 for the tax year of the Company with regard to
which a deduction in respect of such individual’s Award would be
allowed.

     

    “DISABILITY”
means the disability of a Participant (i) such that the Participant is
considered disabled under any long term disability plan of the Company, or
otherwise (ii) as determined by the Committee in its sole
discretion.

     

    “ELIGIBLE
PERSON” means any full time or part time employee (including an officer or
director who is also an employee), consultant or advisor of the Company or any
Affiliate selected by the Committee. Other than for awards of Incentive Stock
Options, “Eligible Person” shall also include any individual to whom an offer of
employment has been extended, a member of the Board or a member of the board of
directors of a Subsidiary. References to “employment” and related terms in the
Plan shall include the provision of services in any capacity.

     

    “FAIR
MARKET VALUE” means, with respect to a Share as of any date, (i) the closing
sale price per Share, as reported on NASDAQ, or, if different, the principal
securities exchange or market on which the Shares are then traded, on such date,
or, if no sale of Shares is reported for that date, on the last preceding date
on which there was a sale of Shares on NASDAQ or such principal securities
exchange or market and (ii), if the Shares are not then traded on any securities
exchange or market, the fair market value thereof as determined in good faith by
the Committee.

     

    “INCENTIVE
STOCK OPTION” means any Option that is intended to qualify for special federal
income tax treatment pursuant to Sections 421 and 422 of the Code (or a
successor provision thereof) and which is so designated in the applicable Award
Agreement. Under no circumstances shall any Option that is not specifically
designated as an Incentive Stock Option be considered an Incentive Stock
Option.

     

    “INITIAL
PUBLIC OFFERING” means the consummation of initial offering of Shares of the
Company to the public.

     

    “NON-QUALIFIED
STOCK OPTION” means an Option that is not an Incentive Stock
Option.

     

    “OPTION”
means an option to purchase a Share or Shares granted under the
Plan.

     

    “OTHER
STOCK-BASED AWARD” means an Award granted pursuant to Section 9 of the
Plan.

     

    “PARTICIPANT”
means a person who has been granted an Award under the Plan which remains
outstanding, including a person who is no longer an Eligible
Person.

     

     “PERFORMANCE
AWARD” means an Award granted pursuant to Section 10 of the Plan.

     

    “PERFORMANCE
PERIOD” means the period of at least nine months established by the Committee at
the time any Performance Award is granted or at any time thereafter during which
any performance goals specified by the Committee with respect to such Award are
measured.

     

    “PERSON”
means an individual, corporation, partnership, association, trust, limited
liability company or any other entity or organization, including a government or
political subdivision or an agency, unit or instrumentality
thereof.

     

    “RESTRICTED
STOCK” means an award of shares which are subject to certain
restrictions.

     

    “RETIREMENT”
means termination of employment on or after the date the Participant has (i)
attained age 65 and completed at least six years of service following the
Company’s Initial Public Offering or (ii) completed at least twenty years of
service with the Company or its predecessors; provided that with respect to
Awards granted prior to May 23, 2007 “Retirement” means termination of
employment on or after the date the Participant has (i) attained age 65 and
completed at least two years of service following the Company’s Initial Public
Offering or (ii) completed at least twelve years of service with the Company or
its predecessors.

     

    “SHARE”
means a share of common stock of the Company, par value $0.01.

     

    “SUBSIDIARY”
means a corporation, limited liability company, partnership or other entity
where 50% or more of its outstanding voting securities or other equity interests
is owned directly or indirectly by the Company at the time an Award is issued
under the Plan.

     

    “SUBSTITUTE
AWARD” means an Award granted in assumption of, or in substitution for, an
outstanding equity award previously granted by a business or entity all or a
portion of which is acquired by the Company or any Affiliate or with which the
Company or an Affiliate combines.

     

    Section
3. Administration. (a)
The Plan will be administered by the Committee. Subject to and consistent with
the provisions of the Plan, the Committee will have full power and authority, in
its discretion, and without limitation, to: (i) select Eligible Persons to
become Participants; (ii) determine the type and number of Awards to be granted
to each Participant; (iii) determine the number of Shares to be covered by each
Award; (iv) determine the dates on which Awards may be exercised and on which
the risk of forfeiture or deferral period relating to Awards shall lapse or
terminate, and the acceleration of any such dates; (v) determine the expiration
date of any Award; (vi) determine whether, to what extent, and under what
circumstances an Award may be settled, or the exercise price of an Award may be
paid, in cash, Shares, other Awards, or other property or canceled, forfeited or
suspended and the method or methods by which an Award may be settled, canceled,
forfeited or suspended; (vii) determine any other terms and conditions of, and
all other matters relating to, Awards; (viii) prescribe Award Agreements (such
Award Agreements need not be identical for each Participant) and amendments
thereto; (ix) construe, interpret and implement the Plan and the respective
Award Agreements entered into pursuant to the Plan; (x) correct any defect,
supply any omission and reconcile any inconsistency in the Plan; and (xi) make
all other determinations necessary or advisable for administering the Plan. All
decisions and determinations of the Committee with respect to the administration
and interpretation of the Plan shall be final, conclusive, and binding upon all
persons interested in the Plan, including Participants, beneficiaries, and other
persons claiming rights from or through a Participant, and
shareholders.

     

    (b) To the fullest extent permitted by
law, each member and former member of the Committee and each person to whom the
Committee delegates or has delegated authority under this Plan shall have no
liability to any Person for any action taken, failure to act or determination
made in good faith with respect to this Plan or an Award and shall be entitled
to indemnification by the Company against and from any loss, liability,
judgment, damage, cost (including attorneys’ fees) and reasonable expense
incurred by such member, former member or other person by reason of any action
taken, failure to act or determination made in good faith under or with respect
to this Plan or an Award. The foregoing right of indemnification shall not be
available to such Committee member or delegate to the extent that a court of
competent jurisdiction in a final judgment or other final adjudication, in
either case, not subject to further appeal, determines that the acts or
omissions of him or her giving rise to the indemnification claim resulted from
such person’s bad faith, fraud or willful criminal act or omission. The
foregoing right of indemnification shall not be exclusive of any other rights
of indemnification to
which such Committee member or delegate may be entitled under the Company’s
Certificate of Incorporation or By-laws, as a matter of law, or otherwise, or
any other power that the Company may have to indemnify such persons or hold them
harmless.

     

    Section
4. Shares Subject to the
Plan. (a) Shares to be issued under the Plan may consist, in whole or in
part, of authorized and unissued Shares, treasury Shares, Shares purchased by
the Company in the open market, Shares purchased in the open market by one or
more trusts established for the benefit of Participants or otherwise. Subject to
adjustment made in accordance with Section 12 of the Plan, the maximum number of
Shares that may be issued under the Plan will not exceed 17,150,000 Shares.
Notwithstanding the foregoing and subject to adjustment as provided in Section
12 of the Plan, no Covered Employee may be granted Awards under the Plan in any
calendar year that relate to more than 1,000,000 Shares. The Committee may
direct that any stock certificate evidencing Shares issued pursuant to the Plan
shall bear a legend setting forth such restrictions on transferability as may
apply to such Shares pursuant to the Plan.

     

    (b)
Shares subject to an Award (other than a Substitute Award) that is canceled,
expired, forfeited, settled in cash or otherwise terminated without a delivery
of Shares to the Participant will again be available for Awards, and Shares
withheld in payment of the exercise price or taxes relating to an Award and
Shares equal to the number surrendered in payment of any exercise price or taxes
relating to an Award shall be deemed to constitute Shares not delivered to the
Participant and shall be deemed to again be available for Awards under the Plan.
Shares underlying Substitute Awards shall not reduce the number of Shares
available for delivery under the Plan.

     

    Section
5. Eligibility. Awards
may be granted only to Eligible Persons who are selected to be Participants by
the Committee in accordance with the provisions of the Plan. Holders of
equity-based awards granted by a business or entity all or a portion of which is
acquired by the Company or any Affiliate or with which the Company or an
Affiliate combines are eligible to receive Substitute Awards
hereunder.

     

    Section
6. Options. The
Committee is authorized to grant Options to Participants on the following terms
and conditions and with such additional terms and conditions, not inconsistent
with the provisions of the Plan, as the Committee shall determine in its sole
discretion.

     

    (a) Exercise Price. The exercise
price of each Option granted under the Plan shall be determined by the Committee
and shall not be less than the Fair Market Value of a Share on the date of grant
of such Option and, once determined and established, shall not be changed or
reset by the Committee, except as provided in Section 12 of this
Plan.

     

    (b) Term and Termination of
Options. The term of each Option, together with the effect of termination
of employment or service by a Participant on such term, will be determined by
the Committee, but in no event will an Option be exercisable, either in whole or
in part, after the expiration of ten years from the date of grant of such
Option.

     

    (c) Exercise of Option. Each
Option shall be exercisable at such times and subject to such terms and
conditions as the Committee may, in its discretion, specify in the applicable
Award Agreement or thereafter (subject to the rights of a Participant provided
under Section 17 hereof); provided that each Option granted after the date of
the Initial Public Offering to any Participant (i) that is not a non-employee
director of the Company shall become exercisable and vested ratably (on a
monthly, quarterly, annual or other basis as (as the Committee may determine))
over no less than a period of three years and (ii) that is a non-employee
director of the Company shall become exercisable and vested ratably (on a
monthly, quarterly, annual or other basis as (as the Committee may determine))
over no less than a period of three years, unless such Option is granted as part
of such non-employee director’s regular annual compensation paid in accordance
with the Company’s director compensation policy. Unless the applicable Award
Agreement otherwise provides, an Option may be exercised from time to time as to
all or part of the shares as to which such Award is then exercisable (but, in
any event, only for whole shares).

     

    Section 7. Incentive Stock
Options. In accordance
with rules and procedures established by the Committee, the aggregate Fair
Market Value (determined as of the time of grant) of the Shares with respect to
which Incentive Stock Options held by any Participant which are exercisable for
the first time by such Participant during any calendar year under the Plan
(and under any other benefit plans of the Company or any Subsidiary) shall not
exceed $100,000 or, if different, the maximum limitation in effect at the time
of grant under Section 422 of the Code, or any successor provision, and any
regulations promulgated thereunder. Incentive Stock Options shall be granted
only to participants who are employees of the Company or a Subsidiary of the
Company, but, to the extent required under Section 422 of the Code, an Incentive
Stock Option may not be granted under the Plan to an employee who, at the time
the option is granted, owns stock possessing more than 10% of the total combined
voting power of all classes of stock of his or her employer corporation or of
its parent or subsidiary corporations (as such ownership may be determined for
purposes of Section 422(b)(6) of the Code) unless (i) at the time such Incentive
Stock Option is granted the option exercise price is at least 110% of the Fair
Market Value of the shares subject thereto and (ii) the Incentive Stock Option
by its terms is not exercisable after the expiration of five (5) years from the
date granted.

     

    Section
8. Restricted Stock and
Restricted Stock Unit Awards. The Committee is authorized to grant
Restricted Stock and/or Restricted Stock units to Participants.

     

    (a) The
Awards granted under this Section 8 shall be subject to such restrictions as the
Committee may impose (including, without limitation, any limitation on the right
to vote Shares underlying Restricted Stock and Restricted Stock units or the
right to receive any dividend, other right or property), which restrictions may
lapse separately or in combination at such time or times, in such installments
or otherwise, as the Committee may deem appropriate; provided that each Award
granted after the date of the Initial Public Offering to any Participant (i)
that is not a non-employee director of the Company shall vest and be settled
ratably (on a monthly, quarterly, annual or other basis as (as the Committee may
determine)) over no less than a period of three years and (ii) that is a
non-employee director of the Company shall vest and be settled ratably (on a
monthly, quarterly, annual or other basis as (as the Committee may determine))
over no less than a period of three years, unless such Award is granted as part
of such non-employee director’s regular annual compensation paid in accordance
with the Company’s director compensation policy. Shares of Restricted Stock may
not be sold, assigned, transferred, pledged or otherwise encumbered or disposed
of except as specifically provided in this Plan or the applicable Award
Agreement. Unless the applicable Award Agreement provides otherwise, additional
shares of common stock or other property distributed to the Participant in
respect of shares of Restricted Stock or Restricted Stock units, as dividends or
otherwise, shall be subject to the same restrictions applicable to such
Restricted Stock or Restricted Stock units.

     

    (b) Any
Award of Restricted Stock or Restricted Stock units may be evidenced in such
manner as the Committee may deem appropriate, including, without limitation,
book-entry registration or issuance of a stock certificate or certificates. In
the event any stock certificate is issued in respect of Shares underlying a
Restricted Stock Award, such certificate shall be registered in the name of the
Participant.

     

    (c)
Unless the Committee shall otherwise determine, any certificate issued
evidencing shares of Restricted Stock shall remain in the possession of the
Company until such shares are free of any restrictions specified in the
applicable Award Agreement.

     

    Section
9. Other Stock-Based
Awards. The Committee is authorized, subject to limitations under
applicable law, to grant to Participants such other Awards that may be
denominated or payable in, valued in whole or in part by reference to, or
otherwise based on, or related to, Shares or factors that may influence the
value of Shares, including, without limitation, convertible or exchangeable debt
securities, other rights convertible or exchangeable into Shares, purchase
rights for Shares, Awards with value and payment contingent upon performance of
the Company or business units thereof or any other factors designated by the
Committee. The Committee shall determine the terms and conditions of such
Awards. Shares delivered pursuant to an Award in the nature of a purchase right
granted under this Section 9 shall be purchased for such consideration, paid for
at such times, by such methods, and in such forms, including, without
limitation, cash, Shares, other Awards, notes, or other property, as the
Committee shall determine. Cash awards, as an element of or supplement to any
other Award under the Plan, may also be granted pursuant to this Section 9.
Other than Awards which are granted in lieu of cash consideration, (i) Awards
granted pursuant to this Section 9 that are in the nature of a Performance Award
are subject to the requirement set forth in Section 2 that the related
Performance Period be
a period of at least nine months and (ii) Awards granted pursuant to this
Section 9 that are not in the nature of a Performance Award are subject to the
minimum vesting and settlement terms set forth in Section 6(c) and
8(a).

     

    Section
10. Performance
Awards.

     

    (a) General . Performance Awards
may be denominated as a cash amount, number of Shares, number of Share units
having a value equal to an identical number of Shares, or a combination thereof
and are awards which may be earned upon achievement or satisfaction of
performance conditions specified by the Committee. In addition, the Committee
may specify that any other Award shall constitute a Performance Award by
conditioning the right of a Participant to exercise the Award or have it
settled, and the timing thereof, upon achievement or satisfaction of such
performance conditions as may be specified by the Committee. The Committee may
use such business criteria and other measures of performance as it may deem
appropriate in establishing any performance conditions. In the event that a
stock certificate is issued in respect of Performance Awards, such certificates
shall be registered in the name of the Participant but shall be held by the
Company until the time the performance shares are earned.

     

    (b) Performance Goals Generally.
The performance goals for such Performance Awards shall consist of one or more
business criteria and a targeted level or levels of performance with respect to
each of such criteria, as specified by the Committee consistent with this
Section 10. The Committee may determine that such Performance Awards shall be
granted, exercised and/or settled upon achievement of any one performance goal
or that two or more of the performance goals must be achieved as a condition to
grant, exercise and/or settlement of such Performance Awards. Performance goals
may differ for Performance Awards granted to any one Participant or to different
Participants.

     

    (c) Business Criteria. Without
limitation of the use of other criteria, one or more of the following business
criteria for the Company, on a consolidated basis, and/or for specified
subsidiaries or affiliates or other business units of the Company may be used by
the Committee in establishing performance goals for such Performance Awards: (i)
earnings per share, (ii) return on average common equity, (iii) pre-tax income,
(iv) pre-tax operating income, (v) net revenues, (vi) net income, (vii) profits
before taxes, (viii) book value per share, (ix) stock price, (x) earnings
available to common shareholders, (xi) ratio of compensation and benefits to net
revenues and (xii) execution and origination of assignments directly related to
the individual covered employee. Such targets may relate to the Company as a
whole, or to one or more units thereof, and may be measured over such periods of
at least nine months, as the Committee shall determine. The targeted level or
levels of performance with respect to such business criteria may be established
at such levels and in such terms as the Committee may determine, in its
discretion, including in absolute terms, as a goal relative to performance in
prior periods, or as a goal compared to the performance of one or more
comparable companies or an index covering multiple companies.

     

    (d) Settlement of Performance Awards;
Other Terms. Settlement of Performance Awards shall be in cash, Shares,
other Awards or other property, in the discretion of the Committee. Performance
Awards will be distributed only after the end of the relevant Performance
Period. The Committee may, in its discretion, increase or reduce (subject to the
rights of a Participant provided under Section 17 hereof) the amount of a
settlement otherwise to be made in connection with such Performance Awards, but
may not exercise discretion to increase any such amount payable to a Covered
Employee in respect of a Performance Award subject to Paragraph (b) above. The
Committee shall specify the circumstances in which such Performance Awards shall
be paid or forfeited in the event of termination of employment by the
Participant.

     

    Section
11. Termination of
Employment. Unless otherwise determined by the Committee or provided by
the Committee in the applicable Award Agreement, the following provisions shall
apply:

     

    (a) Upon
a termination of employment as a result of death, Disability or
Retirement:

     

    (i) any
Award (other than Options) then held by the Participant will be immediately
accelerated and become fully vested, exercisable and payable, and

     

     (ii)
any Option then held by the Participant will be immediately accelerated and
become fully vested and exercisable and will expire on the earlier of (A) the
date the option would have expired had the Participant continued in such
employment and (B) one (1) year after the date such Participant’s service
ceases.

     

    (b) Upon
termination of employment by the Company for cause (as determined by the
Committee in its sole discretion):

     

    (i) any
Award then held by the Participant whose restrictions have not lapsed, which is
not exercisable or which is not payable will automatically be forfeited in full
and canceled by the Company upon such termination of employment,
and

     

    (ii) any
Option then held by the Participant, to the extent exercisable, will
automatically be forfeited in full and canceled by the Company upon such
termination of employment.

     

    (c) Upon
a termination of employment by the Company without cause (as determined by the
Committee in its sole discretion) within two years following the occurrence of a
Change in Control or (ii) upon a termination of employment by the Company
without cause (as determined by the Committee in its sole discretion) six months
prior to the occurrence of a Change in Control if, in the case of (ii), the
Committee reasonably determines in its sole discretion that such termination was
at the behest of the acquiring entity (each such termination of employment
deemed to be a termination of employment “in connection with” the occurrence of
a Change in Control):

     

    (i) any
Award (other than Options) then held by the Participant will be immediately
accelerated and become fully vested, exercisable and payable, and

     

    (ii) any
Option then held by the Participant will be immediately accelerated and become
fully vested, exercisable and payable and shall automatically expire on the
earlier of (A) the date the Option would have expired had the Participant
continued in such employment and (B) one year after the date such Participant’s
service ceases, or, in the case of clause (B), in the event the Committee
determines the termination was without cause at the behest of the acquiring
entity, one (1) year after the date of such determination.

     

    (d) Upon
termination of employment for any reason other than those specified in (a), (b)
or (c) above:

     

    (i) any
Award (other than Performance Awards) then held by the Participant whose
restrictions have not lapsed, which is not vested, which is not exercisable or
which is not payable will automatically be forfeited in full and canceled by the
Company upon such termination of employment,

     

    (ii) any
Option then held by the Participant, to the extent exercisable, shall
automatically expire on the earlier of (A) the date the Option would have
expired had the Participant continued in such employment and (B) one hundred and
eighty (180) days (or ninety (90) days in the case of an Option that is intended
to qualify as an Incentive Stock Option) after the date the such Participant’s
service ceases, and

     

    (iii) any
Performance Award then held by the Participant which is not then payable will be
paid in accordance with its terms, which terms may provide that the Performance
Award be forfeited.

     

    (e)
Unless the Committee determines at any time in its sole discretion that this
Section 11(e) shall not apply, in the event the Company sells or spins off a
portion of its assets or one of its Affiliates and a Participant is determined
by the Committee to have a termination of employment as a result of such sale or
spin-off, then the Participant shall be permitted to exercise Participant’s
Options that are vested and outstanding on the effective date of such
termination until the earlier of one (1) year after such termination of
employment or the expiration of the Award.

     

    Section 12. Adjustment. In the event of any extraordinary
dividend or other extraordinary distribution (whether in the form of cash,
Shares, other securities, or other property), recapitalization, forward or
reverse split, reorganization, merger, consolidation, spin-off, combination,
repurchase, share exchange, liquidation, dissolution or other similar corporate
transaction or event, then the Committee shall, in such manner as it shall deem
equitable, adjust any or all of (i) the maximum number of Shares that may be
issued under the Plan as set forth in Section 4(a) or the number and kind of
Shares which may be delivered in connection with Awards granted thereafter, (ii) the number and
kind of Shares by which annual per person Award limitations are measured under
Section 4(a), (iii) the number and kind of Shares subject to or deliverable in
respect of outstanding Awards and (iv) the exercise price, grant price or
purchase price relating to any Award. In addition, the Committee shall, in such
manner as it shall deem equitable, make adjustments in the terms and conditions
of, and the criteria included in, Awards (including Performance Awards and
performance goals) in recognition of unusual or nonrecurring events (including,
without limitation, events described in the preceding sentence, as well as
acquisitions and dispositions of businesses and assets) affecting the Company,
any Subsidiary or Affiliate or other business unit, or the financial statements
of the Company or any Subsidiary or Affiliate, or in response to changes in
applicable laws, regulations, accounting principles, tax rates and regulations
or business conditions or in view of the Committee’s assessment of the business
strategy of the Company, any Subsidiary or Affiliate or business unit thereof,
performance of comparable organizations, economic and business conditions,
personal performance of a Participant, and any other circumstances deemed
relevant. After any adjustment made pursuant to this paragraph, the number of
shares subject to each outstanding Award shall be rounded to the nearest whole
number.

     

    Section
13. Change in Control.
Subject to Section 11 of the Plan and except as otherwise provided in the
applicable Award Agreement, upon the occurrence of a Change in Control, the
Committee shall determine whether outstanding but unvested or unexercisable
Options under the Plan shall become fully vested and exercisable and whether
outstanding but unvested, unexercisable or not yet payable Awards (other than
Options) under the Plan shall become fully vested, exercisable and payable;
provided that all Awards consisting of Restricted Stock units granted in
February 2006 in connection with the Initial Public Offering shall become fully
vested upon a Change in Control. In addition, upon a Change in Control, the
Committee may determine that any or all outstanding Awards granted under the
Plan shall be canceled and terminated; provided that, in connection with such
cancellation and termination of any Award which is then vested, exercisable or
payable, the holder of such Award receives for each Share subject to such Awards
a cash payment (or the delivery of Shares, other securities or a combination of
cash, stock and securities equivalent to such cash payment) equal to the
difference, if any, between the consideration received by shareholders of the
Company in respect of a Share in connection with such transaction and the
purchase price per share, if any, under the Award multiplied by the number of
Shares subject to such Award; provided further that if such product is zero or
less, the Awards will be canceled and terminated without payment
therefor.

     

    Section
14. Compliance with Laws;
Transferability. (a) The Company may, to the extent deemed necessary or
advisable by the Committee, postpone the issuance or delivery of Shares or
payment of other benefits under any Award until completion of such registration
or qualification of such Shares or other required action under any applicable
law, rule or regulation, listing or other required action with respect to any
stock exchange or automated quotation system upon which the Shares or other
securities of the Company are listed or quoted, or compliance with any other
obligation or policy of the Company, as the Committee may consider

     

    appropriate,
and may require any Participant to make such representations, furnish such
information and comply with or be subject to such other conditions as it may
consider appropriate in connection with the issuance or delivery of Shares or
payment of other benefits in compliance with applicable laws, rules, and
regulations, listing requirements, or other obligations or policies of the
Company. Nothing herein shall require the Company to list, register or qualify
the shares of common stock on any securities exchange.

     

    (b)
Except as the Committee may otherwise determine from time to time, (i) no Award
and no right under any Award shall be assignable, alienable, saleable or
transferable by a Participant otherwise than by will or by the laws of descent
and distribution; (ii) each Award, and each right under any Award, shall be
exercisable during the Participant’s lifetime only by the Participant or, if
permissible under applicable law, by the Participant’s guardian or legal
representative; and (iii) no Award and no right under any such Award, may be
pledged, alienated, attached, or otherwise encumbered, and any purported pledge,
alienation, attachment or encumbrance thereof shall be void and unenforceable
against the Company. The provisions of this Section 14(b) shall not apply to any
Award which has been fully exercised, earned or paid, as the case may be, and
shall not preclude forfeiture of an Award in accordance with the terms
thereof.

     

    Section 15. Certain Tax
Provisions. (a) The
Company and any Subsidiary or Affiliate is authorized to withhold from any Award
granted, any payment relating to an Award under the Plan, including from a
distribution of Shares, or any payroll or other payment to a Participant,
amounts of withholding and other taxes due or potentially payable in connection
with any transaction involving an Award (including, without limitation, FICA
tax), and to take such other action as the Committee may deem advisable to
enable the Company and Participants to satisfy obligations for the payment of
withholding taxes and other tax obligations relating to any Award. This
authority shall include authority to withhold or receive Shares or other
property and to make cash payments in respect thereof in satisfaction of a
Participant’s withholding obligations, either on a mandatory or elective basis
in the discretion of the Committee. Notwithstanding any other provision of the
Plan, only the minimum amount of Shares deliverable in connection with an Award
necessary to satisfy statutory withholding requirements will be withheld. For
this purpose, Fair Market Value shall be determined as of the date on which the
amount of tax to be withheld is determined (and any fractional share amount
shall be settled in cash).

     

    (b) If
any Participant shall make any disposition of Shares delivered pursuant to the
exercise of an Incentive Stock Option under the circumstances described in
Section 421(b) of the Code, such Participant shall notify the Company of such
disposition within ten days thereof.

     

    (c) If a
Participant, in connection with the acquisition of Shares under the Plan, is
permitted under the terms of the Award Agreement to make the election permitted
under Section 83(b) of the Code (i.e., an election to include in gross income in
the year of transfer the amounts specified in Section 83(b) of the Code
notwithstanding the continuing transfer restrictions) and the Participant makes
such an election, the Participant shall notify the Company of such election
within ten (10) days of filing notice of the election with the Internal Revenue
Service, in addition to any filing and notification required pursuant to
regulations issued under Section 83(b) of the Code.

     

    Section
16. General Provisions.
(a) Neither the Plan nor any action taken hereunder shall be construed as (i)
giving any Eligible Person or Participant the right to continue as an Eligible
Person or Participant or in the employ or service of the Company or a Subsidiary
or Affiliate, (ii) interfering in any way with the right of the Company or a
Subsidiary or Affiliate to terminate any Eligible Person’s or Participant’s
employment or service at any time (subject to the terms and provisions of any
separate written agreements), (iii) giving an Eligible Person or Participant any
claim to be granted any Award under the Plan or to be treated uniformly with
other Participants and employees, or (iv) conferring on a Participant any of the
rights of a shareholder of the Company unless and until the Participant is duly
issued or transferred Shares in accordance with the terms of an Award. Except as
expressly provided in the Plan and an Award Agreement, neither the Plan nor any
Award Agreement shall confer on any person other than the Company and the
Participant any rights or remedies thereunder.

     

    (b) The
prospective recipient of any Award under the Plan shall not, with respect to
such Award, be deemed to have become a Participant, or to have any rights with
respect to such Award, until and unless such recipient shall have received or
executed (if execution is required) an Award Agreement or other instrument
evidencing the Award and delivered a copy thereof to the Company, and otherwise
complied with the then applicable terms and conditions.

     

    (c) The
Committee shall have full power and authority to determine whether, to what
extent and under what circumstances any Award shall be canceled or suspended.
These powers may include cancellation or forfeiture if a Participant establishes
a relationship with a competitor of the Company or engages in activity which is
in conflict with or adverse to the interest of the Company, as determined under
the Company’s non-competition policy, as in effect from time to
time.

     

    (d) The
Committee shall be authorized to establish procedures pursuant to which the
payment of any Award may be deferred, either automatically, or at the election
of the Committee or a Participant. Subject to the provisions of the Plan and any
Award Agreement, the recipient of the Award (including, without limitation, any
deferred Award) may, if so determined by the Committee, be entitled to receive,
currently or on a deferred basis, cash dividends, or cash payments in amounts
equivalent to cash

     

    dividends
on Shares, with respect to the number of Shares covered by the Award, as
determined by the Committee, in its sole discretion, and the Committee may
provide that such amounts (if any) shall be deemed to have been reinvested in
additional Shares or otherwise reinvested. This Section 16(d) shall not apply to
any Award granted to any resident of Canada if the result of any such deferral
would be to postpone payment of such Award to a time later than the third
anniversary of the end of the calendar year in which the Award was
granted.

     

     (e)
If any provision of this Plan is or becomes or is deemed invalid, illegal or
unenforceable in any jurisdiction, or would disqualify the Plan or any Award
under any law deemed applicable by the Committee, such provision shall be
construed or deemed amended to the extent, but only to the extent, necessary to
conform to applicable laws or if it cannot be construed or deemed amended
without, in the determination of the Committee, materially altering the intent
of the Plan, it shall be stricken and the remainder of the Plan shall remain in
full force and effect.

     

    (f)
Awards may be granted to employees of the Company or any Subsidiary or Affiliate
who are foreign nationals or employed outside the United States, or both, on
such terms and conditions different from those applicable to Awards to those
employees employed in the United States as may, in the judgment of the
Committee, be necessary or desirable in order to recognize differences in local
law or tax policy. The Committee also may impose conditions on the exercise or
vesting of Awards in order to minimize the Company’s obligation with respect to
tax equalization for employees of the Company or any Subsidiary or Affiliate on
assignments outside their home country.

     

    (g) Any
and all grants of Awards and issuances of Shares under the Plan shall constitute
a special incentive payment to the Participant and shall not be taken into
account in computing the amount of salary or compensation of the Participant for
the purpose of determining any benefits under any pension, retirement,
profit-sharing, bonus, life insurance or other benefit plan of the Company or
under any agreement with the Participant, unless such plan or agreement
specifically provides otherwise. Nothing contained in the Plan shall be deemed
in any way to limit or restrict the Company from making any Award or payment to
any person under any other plan, arrangement or understanding, whether now
existing or hereafter in effect.

     

    (h) The
section headings contained herein are for the purpose of convenience only and
are not intended to define or limit the contents of the sections.

     

    (i)
Except as expressly provided therein, neither the Plan nor any Award Agreement
shall confer on any person other than the Company and the Participant any rights
or remedies hereunder or thereunder.

     

    (j) The
terms of the Plan shall be binding upon and inure to the benefit of the Company
and its successors and assigns.

     

    (k) Each
grantee of an Award recognizes and agrees that prior to being selected by the
Committee to receive an Award he or she has no right to any benefits hereunder.
Accordingly, in consideration of the grantee’s receipt of any Award hereunder,
he or she expressly waives any right to contest the amount of any Award, the
terms of any Award Agreement, any determination, action or omission hereunder or
under any Award Agreement by the Committee, the Company or the Board, or any
amendment to the Plan or any Award Agreement (other than an amendment to this
Plan or an Award Agreement to which his or her consent is expressly required by
the express terms of the Plan or an Award Agreement).

     

    Section
17. Effective Date; Amendment
and Termination. (a) This Second Amended and Restated Equity Incentive
Plan shall become effective upon its approval by the shareholders of the Company
on May 19, 2008.

     

    (b)
Unless the Plan will have been previously terminated by the Board, the Plan will
terminate ten years from the date set forth in Section 17(a). All Awards made
under the Plan prior to its termination shall remain in effect until such Awards
have been satisfied or terminated in accordance with the terms and provisions of
the Plan and the applicable Award Agreements. The Board will have the right, at
any time to suspend, amend, alter, discontinue or terminate the Plan, provided,
however that no such action shall be made without shareholder approval if such
approval is required under tax or stock exchange rules and regulations. No
termination of the Plan or action by the Board in amending or suspending the
Plan may materially impair the rights of a Participant under any outstanding
Award, without the consent of the affected Participant, except any such
amendment made to cause the Plan to comply with applicable law, stock exchange
rules and regulations or accounting or tax rules and regulations (including but
not limited to Section 409A of the Code).

     

    (c) The Committee may waive any
conditions or rights under, amend any terms of, or amend, alter, suspend,
discontinue or terminate, any Award theretofore granted, prospectively or
retroactively, without the consent of any Participant or holder or beneficiary
of any Award; provided, however, that, notwithstanding the foregoing in this Section 17(c), no
such action shall impair the rights of a Participant or holder or beneficiary
under any Award theretofore granted under the Plan.

     

    Section
18. Governing Law. The
Plan will be governed by and construed in accordance with the law of the State
of New York, without giving effect to principles of conflict of
laws.