Exhibit 10.1
THINKORSWIM GROUP
INC.
SECOND AMENDED AND RESTATED 2001
STOCK OPTION PLAN
1.
Purpose . The purpose of this Stock Option Plan
(“the Plan”) is to further the interests of the
Company, its subsidiaries and its stockholders by providing
incentives in the form of stock options to key employees,
directors, or consultants who contribute materially to the success
and profitability of the Company and its subsidiaries. The
grants will recognize and reward outstanding individual
performances and contributions and will give such persons a
proprietary interest in the Company, thus enhancing the personal
interest in the Company’s continued success and
progress. This Plan will also assist the Company and its
subsidiaries in attracting and retaining key employees, directors,
and consultants. The options granted under this Plan may be
either Incentive Stock Options, as that term is defined in
Section 422 of the Internal Revenue Code of 1986, as amended,
or nonstatutory options.
2.
Definitions
. The following definitions
shall apply to this Plan:
(a)
“Board” means the board
of directors of the Company.
(b)
“Cause” means
“cause” as defined in any employment or consulting
agreement then in effect between the Optionee and the Company or
any Subsidiary or if not defined therein, or if there shall be no
such agreement, (i) the Optionee’s embezzlement,
misappropriation of corporate funds, or other material acts of
dishonesty, (ii) the Optionee’s commission or conviction
of any felony, or of any misdemeanor involving moral turpitude, or
entry of a plea of guilty or nolo contendere to any felony or
misdemeanor, (iii) engagement in any activity that the
Optionee knows or should know could harm the business or reputation
of the Company or a Subsidiary, (iv) the Optionee’s
material failure to adhere to the Company’s or a
Subsidiary’s corporate codes, policies or procedures as in
effect from time to time, (v) the Optionee’s continued
failure to meet performance standards as determined by the Company
or a Subsidiary, (vi) the Optionee’s violation of any
statutory, contractual, or common law duty or obligation to the
Company or a Subsidiary, including, without limitation, the duty of
loyalty, or (vii) the Optionee’s material breach of any
confidentiality or non-competition covenant entered into between
the Optionee and the Company or a Subsidiary. The
determination of the existence of Cause shall be made by the
Committee in good faith, which determination shall be conclusive
for purposes of this Plan.
(c)
“Change of Control”
means any of the following events:
(i)
The acquisition by any individual,
entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act (a
“Person”), of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 50% or
more of either (A) the then outstanding shares of Common Stock
of the Company or (B) the combined voting power of the then
outstanding voting securities of the Company entitled to vote
generally in the election of directors; provided, however, that the
following acquisitions shall not constitute a Change of
Control: (I) any acquisition by the Company or
(II) any acquisition by any
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employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation
controlled by the Company; or
(ii)
Individuals who, as of the effective
date hereof, constitute the Board (the “Incumbent
Board”) cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual
becoming a director subsequent to the effective date of the Plan
whose election, or nomination for election by the Company’s
stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered
as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board;
or
(iii)
Approval by the stockholders of the
Company of a complete liquidation or dissolution of the Company or
the sale or other disposition of all or substantially all of the
assets of the Company.
(d)
“Code” means the
Internal Revenue Code of 1986, as amended.
(e)
“Committee” means the
Compensation Committee of the Board which shall consist of two or
more directors of the Company appointed by the Board.
(f)
“Common Stock” means the
Common Stock, par value $0.01 per share, of the Company or such
other class of shares or securities as to which the Plan may be
applicable, pursuant to Section 13 herein.
(g)
“Company” means
thinkorswim Group Inc., a Delaware Corporation, formerly known as
Investools Inc.
(h)
“Continuous Service”
means the absence of any interruption or termination of employment
with or service to the Company or any parent or subsidiary of the
Company that now exists or hereafter is organized or acquired by or
acquires the Company. Continuous Service shall not be
considered interrupted in the case of sick leave, military leave,
or any other leave of absence approved by the Company or in the
case of transfers between locations of the Company or between the
Company, its parent, its subsidiaries or its successors.
(i)
“Date of Grant” means
the date on which the Committee grants an Option.
(j)
“ERISA” means the
Employee Retirement Income Security Act of 1974, as
amended.
(k)
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
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(l)
“Employee” means any
person employed on an hourly or salaried basis by the Company or
any parent or subsidiary of the Company that now exists or
hereafter is organized or acquired by or acquires the
Company.
(m)
“Fair Market Value”
means (i) if the Common Stock is not listed or admitted to
trade on a national securities exchange and if bid and ask prices
for the Common Stock are not furnished through NASDAQ or a similar
organization, the value established by the Committee, in its sole
discretion, for purposes of the Plan; (ii) if the Common Stock
is listed or admitted to trade on a national securities exchange or
a national market system, the closing price of the Common Stock, as
published in the Wall Street Journal , so listed or admitted
to trade on such day or, if there is no trading of the Common Stock
on such date, then the closing price of the Common Stock on the
next preceding date on which there was trading in such shares; or
(iii) if the Common Stock is not listed or admitted to trade
on a national securities exchange or a national market system, the
mean between the bid and ask price for the Common Stock on such
date, as furnished by the National Association of Securities
Dealers, Inc. through NASDAQ or a similar organization if
NASDAQ is no longer reporting such information.
(n)
“Incentive Stock Option”
means a stock option, granted pursuant to either this Plan or any
other plan of the Company, that satisfies the requirements of
Section 422 of the Code and that entitles the Optionee to
purchase stock of the Company or in a corporation that at the time
of grant of the option was a parent or subsidiary of the Company or
a predecessor corporation of any such corporation.
(o)
“Non-Employee Director”
means any member of the Board who is not an Employee.
(p)
“Nonstatutory Option”
shall have the meaning as used in Section 9 herein.
(q)
“Option” means a stock
option granted pursuant to the Plan.
(r)
“Option Period” means
the period beginning on the Date of Grant and ending on the day
prior to the tenth anniversary of the Date of Grant or such shorter
termination date as set by the Committee.
(s)
“Optionee” means an
Employee, Non-Employee Director, or consultant who receives an
option.
(t)
“Outside Director” means
a member of the Board serving on the Committee who satisfies the
requirements of Section 162(m) of the Code.
(u)
“Parent” means any
corporation which owns 50% or more of the voting securities of the
Company.
(v)
“Plan” means this
Amended and Restated 2001 Stock Option Plan.
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(w)
“Share” means the Common
Stock, as adjusted in accordance with Section 13 of the
Plan.
(x)
“Subsidiary” means any
corporation 50% or more of the voting securities of which are owned
directly or indirectly by the Company at any time during the
existence of this Plan.
3.
Administration
. This Plan will be
administered by the Committee. Each member of the Committee
must be an Outside Director. A majority of the full Committee
constitutes a quorum for purposes of administering the Plan, and
all determinations of the Committee shall be made by a majority of
the members present at a meeting at which a quorum is present or by
the unanimous, written consent of the Committee.
The Committee has the exclusive
power to select the Employees, Non-Employee Directors, or
consultants who shall receive an award under this Plan, to
establish the terms of the Options granted to each Employee,
Non-Employee Director, or consultant, and to make all other
determinations necessary or advisable under the Plan. The
Committee has the sole and absolute discretion to determine whether
the performance of an eligible Employee, Non-Employee Director, or
consultant warrants an award under this Plan, and to determine the
amount of the award. The Committee has full and exclusive
power to construe and interpret this Plan, to prescribe and rescind
rules and regulations relating to this Plan, and take all
actions necessary or advisable for the Plan’s
administration. Any such determination made by the Committee
will be final and binding on all persons. A member of the
Committee will not be liable for performing any act or making any
determination in good faith.
4.
Shares Subject to
Option . Subject to
the provisions of Section 13 of the Plan, the maximum
aggregate number of Shares that may be optioned and sold under the
Plan shall be 12,000,000. Such Shares may be authorized but
unissued, or may be treasury Shares. If an Option shall
expire or become unexercisable for any reason without having been
exercised in full, the unpurchased Shares that were subject to the
Option shall, unless the Plan has then terminated, be available for
other Options under the Plan. The maximum number of Shares
with respect to which Options may be granted each calendar year to
an Employee shall be 2,000,000, subject to adjustment in accordance
with Section 13 hereof.
5.
Employee Participation
.
(a)
Eligible Employees
. Every Employee, as the
Committee in its sole discretion designates, is eligible to
participate in this Plan. The Committee’s award of an
Option to an Employee in any year does not require the Committee to
award an Option to that Employee in any other year.
Furthermore, the Committee may award different Options to different
Employees. The Committee may consider such fac
