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EXHIBIT 4.1 EPOCH HOLDING CORPORATION AMENDED AND RESTATED
2004 OMNIBUS LONG-TERM INCENTIVE COMPENSATION PLAN
1. Purpose. The purpose of the 2004 OMNIBUS LONG-TERM
INCENTIVE COMPENSATION PLAN, as amended and restated, (the
“Plan”) is to assist EPOCH HOLDING CORPORATION, a
public corporation (the “Company”) and its Related
Entities (as hereinafter defined) in attracting, motivating,
retaining and rewarding high-quality executives and other
employees, officers, directors, consultants and other persons who
provide services to the Company or its Related Entities by enabling
such persons to acquire or increase a proprietary interest in the
Company in order to strengthen the mutuality of interests between
such persons and the Company's shareholders, and providing such
persons with long term performance incentives to expend their
maximum efforts in the creation of shareholder value.
2. Definitions. For purposes of the Plan, the following
terms shall be defined as set forth below, in addition to such
terms defined in Section 1 hereof.
(a) “Award” means any Option, Restricted Stock Award,
Deferred Stock Award, Share granted as a bonus or in lieu of
another award, Dividend Equivalent, Other Stock-Based Award or
Performance Award, together with any other right or interest,
granted to a Participant under the Plan.
(b) “Award Agreement” means any written agreement,
contract or other instrument or document evidencing any Award
granted by the Committee hereunder.
(c) “Beneficiary” means the person, persons, trust or
trusts that have been designated by a Participant in his or her
most recent written beneficiary designation filed with the
Committee to receive the benefits specified under the Plan upon
such Participant's death or to which Awards or other rights are
transferred if and to the extent permitted under Section 10(b)
hereof. If, upon a Participant's death, there is no designated
Beneficiary or surviving designated Beneficiary, then the term
Beneficiary means the person, persons, trust or trusts entitled by
will or the laws of descent and distribution to receive such
benefits.
(d) “Beneficial Owner” shall have the meaning ascribed
to such term in Rule 13d-3 under the Exchange Act and any successor
to such Rule.
(e) “Board” means the Company's Board of Directors.
(f) “Cause” shall, with respect to any Participant have
the meaning specified in the Award Agreement. In the absence of any
definition in the Award Agreement, “Cause” shall have
the equivalent meaning or the same meaning as “cause”
or “for cause” set forth in any employment, consulting,
or other agreement for the performance of services between the
Participant and the Company or a Related Entity or, in the absence
of any such agreement or any such definition in such agreement,
such term shall mean (i) the failure by the Participant to perform,
in a reasonable manner, his or her duties as assigned by the
Company or a Related Entity, (ii) any violation or breach by the
Participant of his or her employment, consulting or other similar
agreement with the Company or a Related Entity, if any, (iii) any
violation or breach by the Participant of any non-competition,
non-solicitation, non-disclosure and/or other similar agreement
with the Company or a Related Entity, (iv) any act by the
Participant of dishonesty or bad faith with respect to the Company
(or a Related Entity), (v) use of alcohol, drugs or other similar
substances in a manner that adversely affects the
Participant’s work performance, or (vi) the commission by the
Participant of any act, misdemeanor, or crime reflecting
unfavorably upon the Participant or the Company or any Related
Entity. The good faith determination by the Committee of whether
the Participant’s Continuous Service was terminated by the
Company for “Cause” shall be final and binding for all
purposes hereunder.
(g) “Change in Control” means a Change in Control as
defined with related terms in Section 9(b) of the Plan.
(h) “Code” means the Internal Revenue Code of 1986, as
amended from time to time, including regulations thereunder and
successor provisions and regulations thereto. (i)
“Committee” means a committee designated by the Board
to administer the Plan; provided, however, that if the Board fails
to designate a committee or if there are no longer any members on
the committee so designated by the Board, then the Board shall
serve as the Committee. The Committee shall consist of at least two
directors, and each member of the Committee shall be (i) a
“non-employee director” within the meaning of Rule
16b-3 (or any successor rule) under the Exchange Act, unless
administration of the Plan by “non-employee directors”
is not then required in order for exemptions under Rule 16b-3 to
apply to transactions under the Plan, (ii) an “outside
director” within the meaning of Section 162(m) of the Code,
and (iii) “Independent”.
(j) “Consultant” means any person
(other than an Employee or a Director, solely with respect to
rendering services in such person’s capacity as a director)
who is engaged by the Company or any Related Entity to render
consulting or advisory services to the Company or such Related
Entity. (k) “Continuous Service” means the
uninterrupted provision of services to the Company or any Related
Entity in any capacity of Employee, Director, Consultant or other
service provider. Continuous Service shall not be considered to be
interrupted in the case of (i) any approved leave of absence, (ii)
transfers among the Company, any Related Entities, or any successor
entities, in any capacity of Employee Director, Consultant or other
service provider, or (iii) any change in status as long as the
individual remains in the service of the Company or a Related
Entity in any capacity of Employee, Director, Consultant or other
service provider (except as otherwise provided in the Award
Agreement). An approved leave of absence shall include sick leave,
military leave, or any other authorized personal leave.
(l) “Covered Employee” means an Eligible Person who is
a “covered employee” within the meaning of Section
162(m)(3) of the Code, or any successor provision thereto.
(m) “Deferred Stock” means a right to receive Shares,
including Restricted Stock, cash or a combination thereof, at the
end of a specified deferral period.
(n) “Deferred Stock Award” means an Award of Deferred
Stock granted to a Participant under Section 6(e) hereof.
(o) “Director” means a member of the Board or the board
of directors of any Related Entity.
(p) “Disability” means a permanent and total disability
(within the meaning of Section 22(e) of the Code), as determined by
a medical doctor satisfactory to the Committee.
(q) “Discounted Option” means any Option awarded under
Section 6(b) hereof with an exercise price that is less than the
Fair Market Value of a Share on the date of grant.
(r) “Dividend Equivalent” means a right, granted to a
Participant under Section 6(g) hereof, to receive cash, Shares,
other Awards or other property equal in value to regular dividends
paid with respect to a specified number of Shares, or other
periodic payments.
(s) “Effective Date” means the effective date of the
Plan, which is July 20, 2004.
(t) “Eligible Person” means each officer, Director,
Employee, Consultant and other person who provides services to the
Company or any Related Entity. The foregoing notwithstanding, only
employees of the Company, or any parent corporation or subsidiary
corporation of the Company (as those terms are defined in Code
Sections 424(e) and (f), respectively), shall be Eligible Persons
for purposes of receiving any Incentive Stock Options. An Employee
on leave of absence may be considered as still in the employ of the
Company or a Related Entity for purposes of eligibility for
participation in the Plan.
(u) “Employee” means any person, including an officer
or Director, who is an employee of the Company or any Related
Entity. The payment of a director’s fee by the Company or a
Related Entity shall not be sufficient to constitute
“employment” by the Company.
(v) “Exchange Act” means the Securities Exchange Act of
1934, as amended from time to time, including rules thereunder and
successor provisions and rules thereto.
(w) “Fair Market Value” means the fair market value of
Shares, Awards or other property as determined by the Committee, or
under procedures established by the Committee. Unless otherwise
determined by the Committee, the Fair Market Value of a Share as of
any given date shall be the closing sale price per Share reported
on a consolidated basis for stock listed on the principal stock
exchange or market on which Shares are traded on the date as of
which such value is being determined or, if there is no sale on
that date, then on the last previous day on which a sale was
reported.
(x) “Good Reason” shall, with respect to any
Participant, have the meaning specified in the Award Agreement. In
the absence of any definition in the Award Agreement, “Good
Reason” shall have the equivalent meaning or the same meaning
as “good reason” or “for good reason” set
forth in any employment, consulting or other agreement for the
performance of services between the Participant and the Company or
a Related Entity or, in the absence of any such agreement or any
such definition in such agreement, such term shall mean (i) the
assignment to the Participant of any duties inconsistent in any
material respect with the Participant's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as assigned by the Company or a Related Entity, or
any other action by the Company or a Related Entity which results
in a material diminution in such position, authority, duties or
responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and
which is remedied by the Company or a Related Entity promptly after
receipt of notice thereof given by the Participant; or (ii) any
material failure by the Company or a Related Entity to comply with
its obligations to the Participant as agreed upon, other than an
isolated, insubstantial and inadvertent failure not occurring in
bad faith and which is remedied by the Company or a Related Entity
promptly after receipt of notice thereof given by the
Participant.
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(y) “Incentive Stock Option” means any Option intended
to be designated as an incentive stock option within the meaning of
Section 422 of the Code or any successor provision thereto.
(z) “Independent,” when referring to either the Board
or members of the Committee, shall have the same meaning as used in
the rules of the NASDAQ Stock Market or any national securities
exchange on which any securities of the Company are listed or
quoted for trading, and if not listed or quoted for trading, by the
rules of the NASDAQ Stock Market.
(aa) “Incumbent Board” means the Incumbent Board as
defined in Section 9(b)(ii) of the Plan.
(bb) “Option” means a right granted to a Participant
under Section 6(b) hereof, to purchase Shares or other Awards at a
specified price during specified time periods.
(cc) “Optionee” means a person to whom an Option is
granted under this Plan or any person who succeeds to the rights of
such person under this Plan.
(dd) “Option Proceeds” shall mean the cash actually
received by the Company for the exercise price in connection with
the exercise of Options that are exercised after the Effective Date
of the Plan, plus the maximum tax benefit that could be realized by
the Company as a result of the exercise of such Options, which tax
benefit shall be determined by multiplying (i) the amount that is
deductible for Federal income tax purposes as a result of any such
option exercise (currently, equal to the amount upon which the
Participant's withholding tax obligation is calculated), times (ii)
the maximum Federal corporate income tax rate for the year of
exercise. With respect to Options, to the extent that a Participant
pays the exercise price and/or withholding taxes with Shares,
Option Proceeds shall not be calculated with respect to the amounts
so paid in Shares.
(ee) “Other Stock-Based Awards” means Awards granted to
a Participant under Section 6(h) hereof.
(ff) “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.
(gg) “Performance Award” shall mean any Award of
Performance Shares or Performance Units granted pursuant to Section
6(g).
(hh) “Performance Period” means that period 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 to be measured.
(ii) “Performance Share” means any grant pursuant to
Section 8 of a unit valued by reference to a designated number of
Shares, which value may be paid to the Participant by delivery of
such property as the Committee shall determine, including cash,
Shares, other property, or any combination thereof, upon
achievement of such performance goals during the Performance Period
as the Committee shall establish at the time of such grant or
thereafter.
(jj) “Performance Unit” means any grant pursuant to
Section 8 of a unit valued by reference to a designated amount of
property (including cash) other than Shares, which value may be
paid to the Participant by delivery of such property as the
Committee shall determine, including cash, Shares, other property,
or any combination thereof, upon achievement of such performance
goals during the Performance Period as the Committee shall
establish at the time of such grant or thereafter.
(kk) “Person” shall have the meaning ascribed to such
term in Section 3(a)(9) of the Exchange Act and used in Sections
13(d) and 14(d) thereof, and shall include a “group” as
defined in Section 13(d) thereof.
(ll) “Related Entity” means any Subsidiary, and any
business, corporation, partnership, limited liability company or
other entity designated by Board in which the Company or a
Subsidiary holds a substantial ownership interest, directly or
indirectly.
(mm) “Restricted Stock” means any Share issued with the
restriction that the holder may not sell, transfer, pledge or
assign such Share and with such other restrictions as the
Committee, in its sole discretion, may impose (including any
restriction on the right to vote such Share and the right to
receive any dividends), which restrictions may lapse separately or
in combination at such time or times, in installments or otherwise,
as the Committee may deem appropriate.
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(nn) “Restricted Stock Award” means an Award granted to
a Participant under Section 6(c) hereof.
(oo) “Rule 16b-3” means Rule 16b-3, as from time to
time in effect and applicable to the Plan and Participants,
promulgated by the Securities and Exchange Commission under Section
16 of the Exchange Act.
(pp) “Shares” means the shares of Common Stock of the
Company, par value $0.01 per share, and such other securities as
may be substituted (or resubstituted) for Shares pursuant to
Section 10(c) hereof.
(qq) “Subsidiary” means any corporation or other entity
in which the Company has a direct or indirect ownership interest of
50% or more of the total combined voting power of the then
outstanding securities or interests of such corporation or other
entity entitled to vote generally in the election of directors or
in which the Company has the right to receive 50% or more of the
distribution of profits or 50% or more of the assets on liquidation
or dissolution.
(rr) “Substitute Awards” shall mean Awards granted or
Shares issued by the Company in assumption of, or in substitution
or exchange for, awards previously granted, or the right or
obligation to make future awards, by a company acquired by the
Company or any Related Entity or with which the Company or any
Related Entity combines.
3. Administration.
(a) Authority of the Committee. The Plan shall be
administered by the Committee, except to the extent the Board
elects to administer the Plan, in which case the Plan shall be
administered by only those directors who are Independent Directors,
in which case references herein to the “Committee”
shall be deemed to include references to the Independent members of
the Board. The Committee shall have full and final authority,
subject to and consistent with the provisions of the Plan, to
select Eligible Persons to become Participants, grant Awards,
determine the type, number and other terms and conditions of, and
all other matters relating to, Awards, prescribe Award Agreements
(which need not be identical for each Participant) and rules and
regulations for the administration of the Plan, construe and
interpret the Plan and Award Agreements and correct defects, supply
omissions or reconcile inconsistencies therein, and to make all
other decisions and determinations as the Committee may deem
necessary or advisable for the administration of the Plan. In
exercising any discretion granted to the Committee under the Plan
or pursuant to any Award, the Committee shall not be required to
follow past practices, act in a manner consistent with past
practices, or treat any Eligible Person in a manner consistent with
the treatment of other Eligible Persons.
(b) Manner of Exercise of Committee Authority. The
Committee, and not the Board, shall exercise sole and exclusive
discretion on any matter relating to a Participant then subject to
Section 16 of the Exchange Act with respect to the Company to the
extent necessary in order that transactions by such Participant
shall be exempt under Rule 16b-3 under the Exchange Act. Any action
of the Committee shall be final, conclusive and binding on all
persons, including the Company, its Related Entities, Participants,
Beneficiaries, transferees under Section 10(b) hereof or other
persons claiming rights from or through a Participant, and
shareholders. The express grant of any specific power to the
Committee, and the taking of any action by the Committee, shall not
be construed as limiting any power or authority of the Committee.
The Committee may delegate to officers or managers of the Company
or any Related Entity, or committees thereof, the authority,
subject to such terms as the Committee shall determine to perform
such functions, including administrative functions as the Committee
may determine to the extent that such delegation will not result in
the loss of an exemption under Rule 16b-3(d)(1) for Awards granted
to Participants subject to Section 16 of the Exchange Act in
respect of the Company and will not cause Awards intended to
qualify as “performance-based compensation” under Code
Section 162(m) to fail to so qualify. The Committee may appoint
agents to assist it in administering the Plan.
(c) Limitation of Liability. The Committee and the
Board, and each member thereof, shall be entitled to, in good
faith, rely or act upon any report or other information furnished
to him or her by any officer or Employee, the Company's independent
auditors, Consultants or any other agents assisting in the
administration of the Plan. Members of the Committee and the Board,
and any officer or Employee acting at the direction or on behalf of
the Committee or the Board, shall not be personally liable for any
action or determination taken or made in good faith with respect to
the Plan, and shall, to the extent permitted by law, be fully
indemnified and protected by the Company with respect to any such
action or determination.
4. Shares Subject to Plan.
(a) Limitation on Overall Number of Shares Subject to
Awards. Subject to adjustment as provided in Section
10(c) hereof, the maximum aggregate number of Shares that may be
(i) issued under the Plan pursuant to the exercise of Options, (ii)
issued pursuant to Restricted Stock Awards, Deferred Shares and
performance Shares is 5,500,000 Shares. No Participant may receive
Awards representing more than 400,000 shares in any one calendar
year. In addition, the maximum number of Performance Units that may
be granted to a Participant in any one calendar year is 400,000 for
each full or fractional year included in the Performance Period for
the grant of Performance Units during such calendar year. This
limitation shall be applied as of any date by taking into account
the number of shares available to be made the subject of new Awards
as of such date, plus the number of shares previously issued under
the Plan and the number of share subject to outstanding Awards as
of such date. Any share delivered under the Plan may consist, in
whole or in part, of authorized and unissued shares or treasury
shares.
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(b) Application of Limitation to Grants of Awards. No
Award may be granted if the number of Shares to be delivered in
connection with such an Award or, in the case of an Award relating
to Shares but settled only in cash, the number of Shares to which
such Award relates, exceeds the number of Shares remaining
available under the Plan, minus the number of Shares deliverable in
settlement of or relating to then outstanding Awards. The Committee
may adopt reasonable counting procedures to ensure appropriate
counting, avoid double counting (as, for example, in the case of
tandem or substitute awards) and make adjustments if the number of
Shares actually delivered differs from the number of Shares
previously counted in connection with an Award.
(c) Availability of Shares Not Delivered Under Awards.
(i) If any Shares subject to an Award are forfeited, expire or
otherwise terminate without issuance of such Shares, or any Award
is settled for cash or otherwise does not result in the issuance of
all or a portion of the Shares subject to such Award or award, the
Shares shall, to the extent of such forfeiture, expiration,
termination, cash settlement or non-issuance, again be available
for Awards under the Plan, subject to Section 4(c)(v) below.
(ii) In the event that any Option or other Award granted hereunder
is exercised through the tendering of Shares (either actually or by
attestation) or by the withholding of Shares by the Company, or
withholding tax liabilities arising from such Option or other Award
are satisfied by the tendering of Shares (either actually or by
attestation) or by the withholding of Shares by the Company, then
only the number of Shares issued net of the Shares tendered or
withheld shall be counted for purposes of determining the maximum
number of Shares available for grant under the Plan.
(iii) Shares reacquired by the Company on the open market using
Option Proceeds shall be available for Awards under the Plan. The
increase in Shares available pursuant to the repurchase of Shares
with Option Proceeds shall not be greater than the amount of such
proceeds divided by the Fair Market Value of a Share on the date of
exercise of the Option giving rise to such Option Proceeds.
(iv) Substitute Awards shall not reduce the Shares authorized for
grant under the Plan or authorized for grant to a Participant in
any period. Additionally, in the event that a company acquired by
the Company or any Related Entity or with which the Company or any
Related Entity combines has shares available under a pre-existing
plan approved by shareholders and not adopted in contemplation of
such acquisition or combination, the shares available for grant
pursuant to the terms of such pre-existing plan (as adjusted, to
the extent appropriate, using the exchange ratio or other
adjustment or valuation ratio or formula used in such acquisition
or combination to determine the consideration payable to the
holders of Common Stock of the entities party to such acquisition
or combination) may be used for Awards under the Plan and shall not
reduce the Shares authorized for grant under the Plan; provided
that Awards using such available shares shall not be made after the
date awards or grants could have been made under the terms of the
pre-existing plan, absent the acquisition or combination, and shall
only be made to individuals who were not Employees or Directors
prior to such acquisition or combination.
(v) Any Shares that again become available for grant pursuant to
this Section 4(c) shall be added back as one (1) Share if such
Shares were granted under the Plan.
(vi) Notwithstanding anything in this Section 4(c) to the contrary
and solely for purposes of determining whether Shares are available
for the grant of Incentive Stock Options, the maximum aggregate
number of shares that may be granted under this Plan shall be
determined without regard to any Shares restored pursuant to this
Section 4(c) that, if taken into account, would cause the Plan to
fail the requirement under Code Section 422 that the Plan designate
a maximum aggregate number of shares that may be issued.
(d) No Further Awards Under Prior Plan. In light of the
adoption of this Plan, no further awards shall be made under any
prior plans after the Effective Date.
5. Eligibility; Per-Person Award Limitations. Awards may
be granted under the Plan only to Eligible Persons. Subject to
adjustment as provided in Section 10(c), in each fiscal year during
any part of which the Plan is in effect, no Participant may be
granted (i) Options with respect to more than 400,000 Shares or
(ii) Restricted Stock, Performance Shares and/or Other Stock-Based
Awards with respect to more than 400,000 Shares.
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6. Specific Terms of Awards.
(a) General. Awards may be granted on the terms and
conditions set forth in this Section 6. In addition, the Committee
may impose on any Award or the exercise thereof, at the date of
grant or thereafter (subject to Section 10(e)), such additional
terms and conditions, not inconsistent with the provisions of the
Plan, as the Committee shall determine, including terms requiring
forfeiture of Awards in the event of termination of Continuous
Service by the Participant and terms permitting a Participant to
make elections relating to his or her Award. The Committee shall
retain full power and discretion to accelerate, waive or modify, at
any time, any term or condition of an Award that is not mandatory
under the Plan. Except in cases in which the Committee is
authorized to require other forms of consideration under the Plan,
no consideration other than services may be required for the grant
(but not the exercise) of any Award.
(b) Options. The Committee is authorized to grant
Options to any Eligible Person on the following terms and
conditions:
(i) Exercise Price. Other than in connection with
Substitute Awards, the exercise price per Share purchasable under
an Option shall be determined by the Committee, provided that such
exercise price shall not be less than 100% of the Fair Market Value
of a Share on the date of grant of the Option and shall not, in any
event, be less than the par value of a Share on the date of grant
of the Option. If an Employee owns or is deemed to own (by reason
of the attribution rules applicable under Section 424(d) of the
Code) more than 10% of the combined voting power of all classes of
stock of the Company (or any parent corporation or subsidiary
corporation of the Company, as those terms are defined in Sections
424(e) and (f) of the Code, respectively) and an Incentive Stock
Option is granted to such employee, the exercise price of such
Incentive Stock Option (to the extent required by the Code at the
time of grant) shall be no less than 110% of the Fair Market Value
a Share on the date such Incentive Stock Option is granted.
(ii) Time and Method of Exercise. The Committee shall
determine the time or times at which or the circumstances under
which an Option may be exercised in whole or in part (including
based on achievement of performance goals and/or future service
requirements), the time or times at which Options shall cease to be
or become exercisable following termination of Continuous Service
or upon other conditions, the methods by which the exercise price
may be paid or deemed to be paid (including in the discretion of
the Committee a cashless exercise procedure), the form of such
payment, including, without limitation, cash, Shares, other
Awards
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