Exhibit 10.2
INVESTMENT TECHNOLOGY GROUP,
INC.
Amended and Restated 1994
Stock Option and Long-term Incentive Plan
1.
Purposes
The
purposes of the Amended and Restated Investment Technology Group,
Inc. Stock Option and Long-term Incentive Plan (the
“Plan”) are to advance the interests of the Company, to
increase stockholder value by providing its directors, officers and
other key employees with a proprietary interest in the growth and
performance of the Company and with incentives for continued
service with rewards for outstanding service to the Company and its
subsidiaries, and to provide the Company with an additional means
to attract and retain qualified officers and other key employees.
To this end, the Committee, as hereinafter designated, may grant
stock options, stock appreciation rights, performance units,
dividend equivalents and/or other incentive awards to directors,
officers and other key employees of the Company and its
subsidiaries, on the terms and subject to the conditions set forth
in this Plan. The Plan was merged with and into the Investment
Technology Group, Inc. 2007 Omnibus Equity Compensation Plan (the
“2007 Plan”) effective as of May 8, 2007 (the
“Effective Date”). No new grants will be made under the
Plan after the Effective Date and any Shares issued pursuant to
outstanding Awards under this Plan after the Effective Date shall
be issued under the 2007 Plan.
2.
Definitions
As used in the Plan,
the following terms shall have the meanings set forth
below:
2.1 “Award” means
any form of stock option, stock appreciation right, performance
unit, dividend equivalent or other incentive award granted under
the Plan, whether singly, in combination, or in tandem, to a
Participant by the Committee pursuant to such terms, conditions,
restrictions, and/or limitations, if any, as the Committee may
establish.
2.2 “Award
Agreement” means a written agreement setting forth the terms
of an Award.
2.3 “Base Price Per
Share” means a price per share fixed by the Committee at the
time of grant of a Stock Appreciation Right that may be equal to,
greater than, or less than the Fair Market Value of the shares of
Common Stock covered thereby, but not less than the amount required
by such laws, rules or regulations as may be applicable.
2.4 “Board” means
the Board of Directors of the Company.
2.5 “Code” means the
Internal Revenue Code of 1986, as amended. References to any
provision of the Code shall be deemed to include successor
provisions thereto and rules and regulations thereunder.
2.6 “Committee”
means the Compensation Committee of the Board, or such other Board
committee as may be designated by the Board to administer the Plan;
provided, however, that Committee action shall be taken by act of
such members specified in, and otherwise in accordance with,
Section 3.3. The Committee shall consist solely of two or more
directors of the Company. In appointing members of the Committee,
the Board will consider whether a member is or will be a Qualified
Member, but such members are not required to be Qualified Members
at the time of appointment or during their term of service on the
Committee.
2.7 “Common Stock”
means the Common Stock of the Company.
2.8 “Company” means
Investment Technology Group, Inc., and successors thereto.
2.9 “Dividend
Equivalent” means a right granted to a Participant to receive
cash, shares of Common Stock, other Awards, or other property equal
in value to dividends paid with respect to a specified number of
shares of Common Stock, or other periodic payments. Dividend
Equivalents may be awarded on a free-standing basis or in
connection with another Award, and may be paid currently or on a
deferred basis.
2.10 “Exchange Act” means
the Securities Exchange Act of 1934, as amended from time to time.
References to any provision of the Exchange Act shall be deemed to
include successor provisions thereto and rules and regulations
thereunder.
2.11 “Fair Market Value,”
unless otherwise required by an applicable provision of the Code,
as of any date, means the mean of the high and low regular way
sales prices of the Common Stock as reported on the New York Stock
Exchange as determined on the date as of which the valuation is to
be made; provided, however, that at any time that the Common Stock
is not quoted on the New York Stock Exchange on such trading days,
Fair Market Value shall be determined by the Committee in its
discretion.
2.12 “Incentive Stock
Option” (“ISO”) means any Stock Option intended
to be, and designated and qualifying as, an “incentive stock
option” within the meaning of Section 422 of the Code.
2.13 “Non-Qualified Stock
Option” means any Stock Option awarded under this Plan that
is not intended to be an Incentive Stock Option or that fails to
meet the requirements applicable to an Incentive Stock Option.
2.14 “Officer” means a
person who is considered to be an officer of the Company under
Exchange Act Rule 16a-1(f).
2.15 “162(m) Award” means an
Award intended by the Committee to constitute “qualified
performance-based compensation” within the meaning of Code
Section 162(m) and regulations thereunder. Such Awards would
include Options or SARs granted with an exercise price or base
price per share equal to or greater than 100% of the Fair Market
Value of a share of Common Stock, or Awards granted in accordance
with Section 7.
2.16 “Option” or
“Stock Option” means a right granted pursuant to the
Plan to purchase shares of Common Stock, and includes both
Incentive Stock Options and Non-Qualified Stock Options.
2.17 “Option Price” or
“Exercise Price” means the price per share at which
Common Stock may be purchased upon the exercise of an Option.
2.18 “Participant” means any
individual to whom an Award has been granted under this Plan.
2.19 “Performance Award”
means the right to receive either (i) shares of Common Stock or
cash in an amount determined with reference to Common Stock value
(performance shares), or (ii) a fixed dollar amount payable in cash
or shares (performance units), or a combination of both, at the end
of a specified Performance Period.
2.20 “Performance Period”
means a period of not less than one nor more than ten years during
which corporate, division, subsidiary, group or other performance
objectives shall be utilized for purposes of determining the amount
of a Performance Award.
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2.21 “Qualified Member”
means a member of the Committee who is a “Non-Employee
Director” within the meaning of Rule 16b-3(b)(3) under the
Exchange Act and an “outside director” within the
meaning of Treasury Regulation 1.162-27(e)(3) under Code Section
162(m).
2.22 “Stock Appreciation
Right” or “SAR” means the right to receive, for
each unit of the SAR, cash or shares of Common Stock equal in value
to the excess of the Fair Market Value of one share on the date of
exercise of the SAR over the Base Price Per Share established on
the date the SAR was granted.
3.
Administration
3.1 The Plan shall be
administered and interpreted by the Committee. The foregoing and
other provisions of the Plan notwithstanding, the Board may perform
any function of the Committee under the Plan, including for the
purpose of ensuring that transactions under the Plan by
Participants who are then subject to Section 16 of the Exchange Act
in respect of the Company are exempt under Rule 16b-3. In any case
in which the Board is performing a function of the Committee under
the Plan, each reference to the Committee herein shall be deemed to
refer to the Board, except where the context otherwise
requires.
3.2 The Committee shall have the
authority to (a) establish such rules and regulations as it deems
necessary for the proper operation and administration of the Plan;
(b) select the Officers and other key employees of the Company and
its subsidiaries to receive Awards under the Plan; (c) determine
the form of an Award, or combinations thereof, and whether such
Awards are to operate on a tandem basis and/or in conjunction with
or apart from other awards made by the Company, either within or
outside of this Plan; (d) determine the number of shares of Common
Stock or units or rights to be covered by each such Award granted
hereunder; (e) determine the terms and conditions, not inconsistent
with the terms of this Plan, of any Award granted hereunder
(including, but not limited to, any restriction or limitation on
transfer, any vesting schedule or acceleration thereof, and any
forfeiture provisions or waiver thereof), regarding any Award and
the shares of Common Stock relating thereto, based on such factors
as the Committee shall determine, in its sole discretion; (f)
determine whether Common Stock to be issued and other amounts
payable with respect to an Award under this Plan shall be deferred,
either automatically or at the election of the Participant; and (g)
make any other determination or take any other action that the
Committee deems necessary or desirable for the administration of
the Plan.
3.3 At any time that a member of
the Committee is not a Qualified Member, any action of the
Committee relating to an Award granted or to be granted to a
Participant who is then subject to Section 16 of the Exchange Act
in respect of the Company, or relating to a 162(m) Award, may be
taken either (i) by a subcommittee, designated by the Committee,
composed solely of two or more Qualified Members, or (ii) by the
Committee, but with each such member who is not a Qualified Member
abstaining or recusing himself or herself from such action;
provided, however, that, upon such abstention or recusal, the
Committee remains composed solely of two or more Qualified Members.
Such action, authorized by such a subcommittee or by the Committee
upon the abstention or recusal of such Non-Qualified Member(s),
shall be the action of the Committee for purposes of the Plan. The
Committee may delegate to officers or managers of the Company or
any subsidiary 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) 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 be 162(m) Awards to fail to
so qualify. Any decision, interpretation or other action made or
taken in good faith by or at the direction of the Company, the
Board, or the Committee (or any of its members pursuant to any
authority duly delegated to any such member) arising out
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of or in connection
with the Plan shall be within the absolute discretion of all or any
of them, as the case may be, and shall be final, binding and
conclusive on the Company and its subsidiaries, all employees and
Participants and their respective beneficiaries, transferees,
heirs, executors, administrators, successors and
assigns.
4.
Eligibility
Officers and other key employees of the Company
and its present and future subsidiaries (including those who may
also be directors of the Company) and non-employee directors of the
Company, who are responsible for or contribute to the management,
growth and profitability of the business of the Company and its
subsidiaries, are eligible to receive Awards under this
Plan.
5.
Shares Available for Awards
5.1 The maximum number of shares
of Common Stock of the Company that may be used in conjunction with
the grant of Incentive Stock Options under the Plan is 500,000.
5.2 Except as provided in
Section 5.1 above, the maximum number of shares of Common Stock of
the Company with respect to which any Awards may be made in any
calendar year during the term of this Plan shall not exceed twenty
percent (20%) of the number of shares of Common Stock issued and
outstanding as of the first day of the calendar year in which
Awards are made, less the number of shares of Common Stock reserved
for issuance with respect to, or underlying, any Award made and
outstanding pursuant to this Plan as do such date. In addition, in
each fiscal year during any part of which the Plan is in effect, a
Participant may be granted (i) Options and SARs under Section 6.1
and 6.2 relating to no more than 1,000,000 shares of Common Stock
and (ii) Performance Awards pursuant to Section 7 relating to no
more than 100,000 shares of Common Stock, subject in each case to
adjustment as provided in Section 5.5. With respect to Performance
Awards pursuant to Section 7 not valued by reference to Common
Stock at the date of grant, the maximum amount payable to a
Participant in settlement of such an Award in any fiscal year shall
be the Fair Market Value of the number of shares of Common Stock
specified in the preceding sentence (subject to adjustment) to
which Performance Awards may relate valued at the date of grant or
at the date of settlement of the Award whichever is greater (this
limitation is separate and not affected by the limitation on shares
of Common Stock set forth in clause (ii) of the preceding
sentence).
5.3 Shares of Common Stock which
are attributable to Awards which expire or are otherwise
terminated, cancelled, surrendered or forfeited are available for
issuance or use in connection with future Incentive Stock Option
grants, and future Awards during the calendar year in which they
expire or otherwise become available.
5.4 Shares of Common Stock to be
issued under the Plan may be authorized and unissued shares of
Common Stock, treasury stock or a combination thereof.
5.5 In the event of a merger,
consolidation, reorganization, recapitalization, stock split, stock
dividend, other extraordinary dividend or other changes in
corporate structure or capitalization affecting the Common Stock,
the Committee may make appropriate adjustments in the number or
kind of shares subject to options, rights and other Awards granted
under the Plan, and other terms and conditions of Awards and/or the
exercise price of Awards in the event of any stock dividend, stock
split, spin-off or recapitalization in the form of large, special
and non-recurring dividends, appropriate provision for supplemental
payments of cash, other Awards, or other property, or appropriate
adjustment in the maximum number of shares referred to in Section 5
of the Plan (including the number of shares specified in Section
5.1 and in each of clauses (i) and (ii) of the second sentence of
Section 5.2), as the Committee may determine to be necessary or
appropriate in order to prevent dilution or enlargement of the
rights of Participants. In the event that the Company declares a
cash dividend (other than
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one constituting a
large, special and non-recurring dividend), the Committee may make
appropriate adjustment to the number of shares subject to options,
rights and other Awards granted under the Plan or make appropriate
provision for supplemental payments of cash, other Awards or other
property, but shall not make any adjustment to the exercise price
of the Awards.
6.
Awards Under the Plan
6.1 Stock Options. The
Committee may grant Incentive Stock O
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