NEGATIVE DISCRETION. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THE PLAN, THE COMMITTEE MAY, IN ITS SOLE DISCRETION, REDUCE OR ELIMINATE THE
BONUS AMOUNT OTHERWISE PAYABLE TO ANY PARTICIPANT FOR A PARTICULAR PERFORMANCE
PERIOD AT ANY TIME PRIOR TO THE PAYMENT OF BONUSES TO PARTICIPANTS FOR SUCH
PERFORMANCE PERIOD PURSUANT TO SECTION 8 HEREOF.
(D)
DEFINITION OF PRE-TAX INCOME. "PRE-TAX INCOME" SHALL MEAN THE
COMPANY'S "INCOME BEFORE PROVISION FOR INCOME TAXES" AS REPORTED ON THE
COMPANY'S CONSOLIDATED FINANCIAL STATEMENTS FOR THE RELEVANT PERFORMANCE PERIOD,
BUT ADJUSTED BY DISREGARDING: (I) AMOUNTS EXPENSED AS A RESULT OF THE
AMORTIZATION OF EQUITY-BASED AWARDS GRANTED TO ANY INDIVIDUAL AT ANY TIME,
(II) AMOUNTS EXPENSED AS A RESULT OF THE AMORTIZATION OF GRANTS OF EQUITY-BASED
AWARDS GRANTED IN CONNECTION WITH ANY ACQUISITION, (III) LOSSES RELATED TO THE
IMPAIRMENT OF GOODWILL, OTHER INTANGIBLE ASSETS AND EXCHANGE MEMBERSHIPS,
(IV) RESTRUCTURING EXPENSES, (V) GAINS OR LOSSES ON THE EXTINGUISHMENT OF
COMPANY DEBT, (VI)
2
GAINS OR LOSSES ON THE RESTRUCTURING OF COMPANY DEBT OR OTHER LIABILITIES,
(VII) GAINS OR LOSSES THAT ARE THE DIRECT RESULT OF MAJOR CASUALTIES OR NATURAL
DISASTER, (VIII) NON-CASH GAINS OR LOSSES WITH RESPECT TO THE SHARES OF NYSE
GROUP STOCK ACQUIRED, AND CONTINUED TO BE HELD, BY THE COMPANY IN CONNECTION
WITH THE CONSUMMATED MERGER BETWEEN THE NYSE AND ARCHIPELAGO HOLDINGS, INC., AND
(IX) ANY OTHER EXPENSES, LOSSES, INCOME OR GAINS THAT ARE SEPARATELY DISCLOSED
AND ARE UNUSUAL IN NATURE OR INFREQUENT IN OCCURRENCE.
6.
TERMINATION OF EMPLOYMENT. IF A PARTICIPANT'S EMPLOYMENT WITH THE
FIRM TERMINATES FOR ANY REASON BEFORE THE END OF A PERFORMANCE PERIOD, THE
COMMITTEE SHALL HAVE THE DISCRETION TO DETERMINE WHETHER SUCH PARTICIPANT'S
BONUS FOR SUCH PERFORMANCE PERIOD SHALL BE FORFEITED OR REDUCED ON A PRO-RATA
BASIS TO REFLECT THE PORTION OF SUCH PERFORMANCE PERIOD DURING WHICH THE
PARTICIPANT WAS EMPLOYED BY THE FIRM, AND WHETHER TO MAKE SUCH OTHER
ARRANGEMENTS AS THE COMMITTEE DEEMS APPROPRIATE IN CONNECTION WITH THE
TERMINATION OF SUCH PARTICIPANT'S EMPLOYMENT.
7.
CERTIFICATION OF PERFORMANCE GOALS AND DETERMINATION OF BONUS
AMOUNTS. FOLLOWING THE COMPLETION OF EACH PERFORMANCE PERIOD, BUT PRIOR TO THE
PAYMENT OF BONUSES WITH RESPECT TO SUCH PERFORMANCE PERIOD PURSUANT TO SECTION 8
HEREOF, THE COMMITTEE SHALL CERTIFY THE ATTAINMENT OF THE PERFORMANCE GOALS
HEREUNDER AND DETERMINE THE AMOUNT OF EACH PARTICIPANT'S BONUS (IF ANY) FOR SUCH
PERFORMANCE PERIOD AND THE METHOD AND TIMING OF ITS PAYMENT, WHICH CERTIFICATION
AND DETERMINATIONS SHALL BE SET FORTH IN THE WRITTEN RECORD OF THE PROCEEDINGS
IN WHICH SUCH DETERMINATIONS OCCUR. NO PARTICIPANT SHALL HAVE ANY RIGHTS TO
PAYMENT OF ANY BONUS UNDER THE PLAN FOR ANY PERFORMANCE PERIOD UNLESS AND UNTIL
THE COMMITTEE CERTIFIES THE ATTAINMENT OF THE PERFORMANCE GOALS HEREUNDER AND
DETERMINES SUCH PARTICIPANT'S BONUS (IF ANY) FOR SUCH PERFORMANCE PERIOD.
8.
PAYMENT OF BONUS AMOUNT; DEFERRAL. EACH PARTICIPANT'S BONUS SHALL
BE PAYABLE BY SUCH PARTICIPANT'S PARTICIPATING EMPLOYER (AS DEFINED IN
SECTION 10(J) HEREOF), OR IN THE CASE OF A PARTICIPANT EMPLOYED BY MORE THAN ONE
PARTICIPATING EMPLOYER, BY EACH SUCH EMPLOYER AS DETERMINED BY