Exhibit 10.1
PENSON WORLDWIDE, INC.
2008 RESTRICTED STOCK BONUS INCENTIVE PLAN
I.
PURPOSE OF THE PLAN
This
2008 Restricted Stock Bonus Incentive Plan is intended to promote
the interests of Penson Worldwide, Inc., a Delaware corporation,
and provide further incentive to Plan Participants by giving such
persons the option to elect to receive a portion of any
discretionary bonus payment that they may be entitled to receive
during the term hereof in the form of RSUs instead of cash, subject
to the restrictions set forth herein.
Capitalized
terms shall have the meanings assigned to such terms in the
attached Appendix I.
II.
ADMINISTRATION OF THE PLAN
The
Plan shall be administered by the Compensation Committee, which
shall have full power and authority, subject to the provisions of
the Plan, to establish such rules as it may deem appropriate for
proper administration of the Plan, to make all factual
determinations (including the validity of any Participation
Election Form), to construe and interpret the provisions of the
Plan and to resolve any and all ambiguities hereunder. Subject to
the foregoing, the Chief Executive Officer of the Corporation and
his designee(s) shall be responsible for the day-to-day management
of the Plan.
III.
PARTICIPATION AND TERMS OF AWARDS
A. Eligibility.
The
Compensation Committee shall determine, in its sole discretion, the
persons eligible to become Plan Participants, and may also, in its
sole discretion, remove Plan Participants from eligibility to
participate in the Plan.
B. Participation Election.
At any
time up to 5:00 p.m., Central Time, on an Election Date, any Plan
Participant may, but shall not be required to, elect to participate
in the Plan by completing, executing and delivering to the Chief
Executive Officer of the Corporation or his designee(s) a
Participation Election Form, a form of which is attached hereto as
Appendix II. Each submitted Participation Election Form, or a
summary of the election set forth thereon, will then be provided to
the Compensation Committee.
The
Participation Election Form shall state the percentage of each
applicable bonus payment that the Plan Participant elects to
receive in the form of an RSU grant, pursuant to the terms of this
Plan, to be received under the Corporation’s current policies
for discretionary bonuses on the next succeeding Bonus Payment
Date; provided , that in no event shall the RSU component of
any such payment be in excess of
fifty
percent (50%) of the Bonus Amount. Any discretionary bonuses will
be awarded, if at all, only in accordance with the then current
policies of the Corporation with respect thereto, and nothing
herein or in any Participation Election Form shall confer upon any
Plan Participant the right to receive a bonus payment on a Bonus
Payment Date.
C. Grant of RSUs.
For
each Plan Participant who executes and delivers a Participation
Election Form, the Compensation Committee will grant an award of
RSUs to be calculated as follows:
1. The Bonus
Amount for that discretionary payment will be multiplied by the RSU
Bonus Percentage, resulting in the RSU Bonus Amount.
2. The RSU
Bonus Amount will be multiplied by one-hundred thirty percent
(130%), resulting in the RSU Value.
3. The RSU
Value will be divided by the Common Stock Fair Market Value,
resulting in the RSU Share Grant Amount.
Under
no circumstances shall any such award include units representing
fractional shares of Common Stock, and in lieu of any such
fractional shares the Plan Participant shall receive the cash value
thereof together with the payment of the cash portion of his or her
discretionary bonus payment.
Upon
the grant of an RSU award to a Plan Participant in accordance with
the preceding paragraph, the cash component of such Plan
Participant’s discretionary bonus payment on the Bonus
Payment Date shall equal the balance of the Bonus Amount not
allocated to the RSU Bonus Amount, plus the cash value of any
fractional share, as described above.
D. RSU Vestng.
All
RSUs awarded by the Compensation Committee in accordance with
Section III.C. above shall vest in sixteen
(16) successive equal quarterly installments over the
forty-eight (48) months beginning on the Bonus Payment Date.
In addition, all unvested RSUs of a Plan Participant shall
immediately vest in full upon the termination of such Plan
Participant’s employment by the Corporation (or any
Subsidiary employing such person) for any reason other than Cause
as well as termination as a result of death or disability
(“disability” meaning the inability of a Plan
Participant to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment as
determined by the Compensation Committee on the basis of such
medical evidence as the Compensation Committee deems warranted
under the circumstances). Except as set forth in the immediately
preceding sentence, the vesting and forfeiture of all RSU awards in
connection herewith shall be as set forth in the Stock Incentive
Plan. Nothing herein shall be deemed an amendment to any term or
provision of the Stock Incentive Plan, and in the case of any
inconsistency or disagreement between any term or
terms of
this Section and any term or terms of the Stock Incentive Plan, the
term or terms of the Stock Incentive Plan shall control. Each
agreement evidencing an award of RSUs as contemplated hereby shall
be in substantially the form attached hereto as Appendix III
(with such changes to thereto as the Compensation Committee may be
necessary or appropriate).
E. Revocation
Once a
Participation Election Form has been completed and submitted, the
election set forth therein shall become binding and may not be
revoked by the Plan Participant.
IV.
MISCELLANEOUS
A. Effective Date and Term of
the Plan.
The
Plan shall become effective on June 17, 2008, and shall
terminate on the first anniversary thereof unless terminated
earlier by the Compensation Committee or the Board.
B. Amendment of the Plan.
The
Compensation Committee or the Board shall have complete and
exclusive power to amend or modify the Plan in any and all
respects; provided , that in no event may the Board or the
Compensation Committee amend or modify the Plan in a manner
requiring approval by the stockholders of the Corporation without
obtaining stockholders’ approval.
C. No Employment/Service
Rights.
Nothing
in the Plan or any Participation Election Form shall confer upon
any Plan Participant any right to continue in employment for any
period of specific duration or interfere or otherwise restrict in
any way the rights of the Corporation (or any Subsidiary employing
such person) or of the Plan Participant, which rights are hereby
expressly reserved by each, to terminate such person’s
employment at any time for any reason, with or without cause.
APPENDIX I
DEFINITIONS
The following
definitions shall be in effect under the Plan:
A. Bonus
Amount means the total dollar amount of a discretionary bonus
determined by the Compensation Committee, if any, on each Bonus
Payment Date.
B. Bonus
Payment Date means each of the applicable dates on which the
Compensation Committee determines discretionary bonus payments in
accordance with the Corporation’s then current policies for
discretionary bonuses, which will be the date on which awards of
RSUs may be granted as contemplated in Section III.C. above.
Bonus Payment Dates will be established by the Compensation
Committee following June 30, 2008, for the period from
January 1, 2008 to June 30, 2008, and following
December 31, 2008, for the period ending on December 31,
2008.
C. Board
means the board of directors of the Corporation, as such shall be
constituted from time to time.
D. Business
Day means a day other than Saturday, Sunday or other day on
which the NASDAQ Stock Market is authorized or required by law to
close.
E. Cash
Bonus Reduction Amount means the value, in U.S. dollars, by
which the Plan Participant’s discretionary bonus is reduced
as a result of the election made by such Plan Participant on the
Participation Election Form. For bonuses that are paid in a
currency other than the U.S. dollar, the dollar value thereof shall
be determined using the conversion rate set forth in the Wall
Street Journal on the date five Business Days immediately preceding
the Bonus Payment Date.
F. Cause
means (in addition to any definition given such term in any
employment agreement between the Corporation or a Subsidiary, on
the one hand, and the Plan Participant, on the other hand, which
definition is incorporated herein by reference with respect to such
Plan Participant): (i) a conviction or plea of nolo
contendre by the Plan Participant to a felony offense or any
crime that could have an adverse effect on the Corporation or a
Subsidiary or on the Plan Participant’s job performance; or
(ii) the Corporation’s good faith determination that
(a) the Plan Participant has engaged in theft, fraud,
embezzlement or dishonest conduct with respect to any property or
funds of the Corporation or a Subsidiary, or of any vendor,
partner, employee or customer of the Corporation or a Subsidiary,
or (b) the Plan Participant has engaged in a significant act
of misconduct which has had an adverse effect on the business,
operations, reputation or business prospects of the Corporation or
any Subsidiary.
G. Common
Stock means the common stock, par value $0.01 per share, of the
Corporation.
H. Common
Stock Fair Market Value shall mean the closing sales price of
a
share of the
Corporation’s Common Stock on the Stock Exchange on which
such stock is traded on the trading date immediately preceding the
Bonus Payment Date.
I.
Compensation Committee means the compensation committee of
the Board, as such shall be constituted from time to time.
J.
Corporation means Penson Worldwide, Inc., a Delaware
corporation.
K. Election
Date means the last date on which a Participant may elect to
participate in the Plan, which shall be June 17, 2008, with
respect to the Bonus Payment Date during the summer of 2008, and
December 14, 2008, with respect to the Bonus Payment Date
during the winter of 2008/2009.
L.
Participation Election Form means the document to be
completed and signed by any Plan Participant choosing to
participate in the Plan, a form of which is attached hereto as
Appendix II.
M. Plan
means the Corporation’s 2008 Restricted Stock Bonus Incentive
Plan.
N. Plan
Participant means any employee of the Corporation or any
Subsidiary that the Compensation Committee determines, in its sole
and absolute discretion, should be permitted to participate in the
Plan.
O. RSU
means restricted stock units awarded pursuant to the
Corporation’s Stock Incentive Plan.
P. RSU Bonus
Amount means the dollar amount resulting from multiplying the
Bonus Amount by the RSU Bonus Percentage.
Q. RSU Bonus
Percentage means the percentage selected by a Plan Participant
as the portion of a discretionary bonus to be paid in RSUs, as set
forth on such Plan Participant’s Participation Election
Form.
R. RSU Share
Grant Amount means the number of shares of the
Corporation’s Common Stock to be covered by an RSU grant as
part of a discretionary bonus.
S. RSU
Value means the dollar amount derived by multiplying the RSU
Bonus Amount by one-hundred thirty percent (130%).
T. Stock
Exchange means the NASDAQ Stock Market, the American Stock
Exchange or the New York Stock Exchange.
U. Stock
Incentive Plan means the Corporation’s Amended and
Restated 2000 Stock Incentive Plan.
V.
Subsidiary means any corporation (other than the
Corporation), limited liability company, partnership or other
entity in an unbroken chain of such entities beginning with the
Corporation, provided each such entity (other than the last in such
chain) in the unbroken chain owns, at the time of the
determination, stock or
other equity
interests possessing fifty (50) percent or more of the total
combined voting power of all classes of equity interests in one of
the other entities in such chain.
APPENDIX II
U.S. EMPLOYEE PARTICIPATION ELECTION FORM
This
Participation Election Form is being submitted by the undersigned
in accordance with the 2008 Restricted Stock Bonus Incentive Plan
(the “Plan”) of Penson Worldwide, Inc. (the
“Corporation”).
Capitalized terms used but not defined herein shall have the
meaning set forth in the Plan, a copy of which has been provided to
each Plan Participant. In case of any inconsis
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