Common use of Certain Plans Clause in Contracts

Certain Plans. (i) Effective as of the applicable Hire Date, Buyer shall, or shall cause an Affiliate of Buyer to, assume and maintain as plan sponsor and administrator and perform all obligations with respect to, the Seller's Executive Voluntary Deferred Compensation Plan (the "Deferred Compensation Plan"), as it applies to Transferred Employees. Between the date hereof and the applicable Hire Date, at Buyer's request, Seller shall provide a full and accurate report to Buyer as to the amounts accrued to date attributable to the Transferred Employees under the Deferred Compensation Plan. Seller shall transfer to Buyer, as of the close of business on the applicable Hire Date, securities attributable to each affected Transferred Employee's accounts under the Deferred Compensation Plan. (ii) Subject to the limitations and requirements of Seller's Stock Participation Plan and various stock option plans maintained by Seller (the "Seller Equity Plans"), Seller shall recognize service with Buyer for the purposes of vesting and dividend distributions under the Seller Equity Plans after the applicable Hire Date as if it were service with Seller; provided, however, that Transferred Employees shall not be entitled to any new award under any Seller Equity Plan after the applicable Hire Date and provided, further, that nothing in this Section 3.02(f)(ii) shall be construed to affect or in any way limit (A) the operation or application of any change in control provisions in any Seller Equity Plan; or (B) any right to a dividend distribution to which a Transferred Employee is otherwise entitled as a result of the transactions contemplated herein. (iii) As of the applicable Hire Date, Buyer shall allow Transferred Employees to participate in its flexible spending account program. At Buyer's request, Seller shall take such action as may be necessary to transfer to Fahnestock, subject to applicable law and those requirements ▇▇▇▇ ▇▇▇▇ be complied with to maintain favorable tax treatment, the positive net aggregate balances (i.e., actual salary reductions, less expenses incurred), if any, under Seller's Flexible Spending Account Program for each of the Transferred Employees. Each salary reduction election executed by a Transferred Employee for 2003 under Seller's Flexible Spending Account Program shall continue in effect for 2003 with respect to Buyer's flexible spending account program until such salary reduction election is revoked or amended by such Transferred Employee. Section 3.02(f)(iii) of the Seller Disclosure Schedule lists each Business Employee's flexible spending account salary reduction election made with respect to 2003.

Certain Plans. (ia) Effective as of the applicable Hire DateSeller RSA Plan Awards for Fiscal Years ending on or prior to October 31, Buyer shall2006. Seller, or shall cause an Affiliate of Buyer to, assume and maintain as plan sponsor and administrator and perform all obligations with respect to, the Seller's Executive Voluntary Deferred Compensation under its Restricted Share Award Plan (the "Deferred Compensation RSA Plan"), shall provide that Transferred C Employees may retain awards granted under the RSA Plan for fiscal years ending on or prior to October 31, 2006, and off-cycle awards granted under the RSA Plan during the fiscal-year ending October 31, 2007, and that such awards shall continue to vest on and after the Initial Closing Date in accordance with the terms of the RSA Plan based on treating employment with OIB Division as it applies employment with Seller and its Affiliates. The OIB Division shall reimburse the Company for the value of the shares (based on the “Average Cost” of each award as defined in the RSA Plan) comprising Transferred C Employees' RSA Plan awards described in this subsection (a) and outstanding as of the Initial Closing Date, to Transferred Employees. Between the extent such awards are not vested on the date hereof immediately prior to the Initial Closing Date, with such reimbursement to be provided from time to time as such awards vest and are paid or delivered to the Transferred C Employees or their beneficiaries. Notwithstanding the foregoing, in the event that a Transferred C Employee's employment with the OIB Division is terminated without cause by OIB during the first twelve (12) months following the Initial Closing Date, thereby causing an acceleration in the vesting of such Transferred C Employee's RSA Plan awards described in this subsection (a) (the shares comprising such awards so accelerated referred to as the "Accelerated Shares"), Buyer's obligation to reimburse Seller for the value of the Accelerated Shares shall be pro rated based upon the number of months that have elapsed since the Initial Closing Date until the effective date of termination of such Transferred C Employee's employment, as follows: Buyer's reimbursement obligation in respect of each such Accelerated Share shall equal the value of such Accelerated Share, determined in accordance with the foregoing, multiplied by a fraction, the numerator of which is the number of months having elapsed since the Initial Closing Date until the effective date of termination of such Transferred C Employee's employment, and the applicable Hire denominator of which shall be the number of full months between the Closing Date to the date the Accelerated Share would have become vested under the terms of the RSA Plan in the absence of any acceleration of vesting. Any forfeitures of RSA Plan awards shall revert to Seller in accordance with the RSA Plan. (b) Seller RSA Plan Awards for Fiscal year ending October 31, 2007 and periods thereafter. (i) Prior to the Closing Date, at Buyer's request, Seller shall provide a full for the fiscal year ending Ocotber 31, 2007, in accordance with the terms of the applicable bonus plan and accurate report Seller past practice and policies, determine the portion of each Transferred C Employee’s annual bonus payment to Buyer be paid in the form of RSA Plan awards under the RSA Plan (referred to herein as to the amounts accrued to date attributable “Tranche 1 awards”) and shall grant such Tranche 1 awards to the Transferred C Employees under prior to the Deferred Compensation Plan. Seller shall transfer to Buyer, as of the close of business on the applicable Hire Initial Closing Date, securities attributable to each affected Transferred Employee's accounts under the Deferred Compensation Plan. (ii) Subject In addition to the limitations and requirements of Seller's Stock Participation Plan and various stock option plans maintained by Tranche 1 awards, Seller shall set aside an amount not to exceed $20,000,000 to be used as retention bonuses (the "Seller Equity PlansRetention Pool"), to be paid, in the form of RSA Awards (referred to as "Tranche 2 awards") and shall grant such Tranche 2 awards to the Transferred C Employees prior to the Initial Closing Date. (iii) Tranche 1 awards shall vest as to one-third of the total award on each of the first three anniversaries of the date of grant, subject to and in accordance with the vesting provisions of the RSA Plan. Seller shall recognize service provide that Transferred C Employees may retain the Tranche 1 awards granted under the RSA Plan following the Initial Closing Date and that Tranche 1 awards shall continue to vest in accordance with Buyer the terms of the RSA Plan based on treating employment with OIB Division as employment with Seller and its Affiliates. (iv) Seller Parent shall provide that Tranche 2 awards shall become 100% vested on the third anniversary of the grant date, provided that the individual remains employed by OIB Division or an Affiliate from the Closing Date to such third anniversary, but shall otherwise be subject to the vesting provisions of the RSA Plan (treating employment with OIB Division as employment with Seller and its Affiliates). (v) The OIB Division shall reimburse the Company for the purposes value of vesting and dividend distributions the shares (based on the “Average Cost” of each award as defined in the RSA Plan) comprising Transferred C Employees' awards under the RSA Plan described in this subsection (b) and outstanding as of the Initial Closing Date, to the extent such awards are not vested as of the Initial Closing Date, with such reimbursement to be provided from time to time as such awards vest and are paid or delivered to the Transferred C Employees or their beneficiaries. Notwithstanding the foregoing, in the event that a Transferred C Employee's employment with the OIB Division is terminated without cause by OIB during the first twelve (12) months following the Initial Closing, thereby causing, an acceleration in the vesting of such Transferred C Employee's RSA awards described in this subsection (b) (the shares comprising such awards so accelerated referred to as the "Accelerated Shares"), Buyer's obligation to reimburse Seller Equity Plans after for value of the applicable Hire such Accelerated Shares shall be pro rated based upon the number of months that have elapsed since the Initial Closing Date until the effective date of termination of such Transferred C Employee's employment, as if it were service follows: Buyer's reimbursement obligation in respect of such Accelerated Shares shall equal the value of such Accelerated Shares, determined in accordance with Sellerthe foregoing, multiplied by a fraction, the numerator of which is the number of months having elapsed since the Initial Closing Date until the effective date of termination of such Transferred C Employee's employment and the denominator of which shall be twelve (12) for Tranche 1 awards scheduled to vest in 2008, eighteen (18) for Tranche 1 awards scheduled to vest in 2009, and thirty-six (36) for Tranche 1 awards scheduled to vest in 2010 and for Tranche 2 awards. Any forfeitures of RSA Plan awards shall revert to Seller in accordance with the RSA Plan. (vi) Subsequent to Closing, Buyer may, subject to the conditions described herein, implement a program (the "Program") pursuant to which Transferred C Employees may elect to participate in the OIB Incentive Plan (subject to the limits set forth in Section 4.10(c)) or the Wealth Accumulation Plan (each as defined below) in lieu of retaining some or all of their Tranche 2 awards. To the extent a Transferred C Employee elects to invest some or all of the value of his Tranche 2 award (value determined based on the “Average Cost” of each award as defined in the RSA Plan) in the OIB Incentive Plan or the Wealth Accumulation Plan, (1) the Transferred Employee's Tranche 2 award under the RSA Plan shall be correspondingly forfeited, and (2) the Seller shall pay to Buyer, within ten (10) days following the deadline for making such election or notice from Buyer, whichever is later, an amount equal to that which the Transferred C Employees elect to invest in the OIB Incentive Plan or the Wealth Accumulation Plan (referred to as the "OIB Deferral"); provided, however, (1) to the extent the Transferred Employee becomes vested in all or a portion of such OIB Deferral, Buyer shall reimburse Seller for the value of such vested amount (based on the Average Cost of the RSA award to which the OIB Deferral is attributable), within thirty (30) days of the date of such vesting; and (2) to the extent that the Transferred Employee subsequently forfeits all or a portion of such OIB Deferral, the Buyer shall reimburse the Seller for the forfeited amount (based on the Average Cost of the RSA award to which the OIB Deferral is attributable)within thirty (30) days following such forfeiture. (vii) In order to implement such Program, Buyer must deliver to the Seller in advance of implementation, all relevant plan documents and election and employee communication materials embodying the Program, and thereafter all completed employee elections relating to the Program. Prior to implementing the Program, the Buyer and Seller shall use reasonable best efforts to ensure that the Program does not have an adverse tax effect on any Transferred C Employee who elects to participate in the Program. (viii) Transferred C Employees shall not be entitled to any eligible for new award awards under any Seller Equity the RSA Plan after the applicable Hire Date and provided, further, that nothing in this Section 3.02(f)(ii) shall be construed to affect or in any way limit (A) the operation or application of any change in control provisions in any Seller Equity Plan; or (B) any right to a dividend distribution to which a Transferred Employee is otherwise entitled as a result of the transactions contemplated herein. (iii) As of the applicable Hire Initial Closing Date, Buyer and the Company shall allow Transferred Employees to participate in its flexible spending account program. At Buyer's request, Seller shall take not make any such action as may be necessary to transfer to Fahnestock, subject to applicable law and those requirements ▇▇▇▇ ▇▇▇▇ be complied with to maintain favorable tax treatment, the positive net aggregate balances (i.e., actual salary reductions, less expenses incurred), if any, under Seller's Flexible Spending Account Program for each of the Transferred Employees. Each salary reduction election executed by a Transferred Employee for 2003 under Seller's Flexible Spending Account Program shall continue in effect for 2003 with respect to Buyer's flexible spending account program until such salary reduction election is revoked or amended by such Transferred Employee. Section 3.02(f)(iii) of the Seller Disclosure Schedule lists each Business Employee's flexible spending account salary reduction election made with respect to 2003awards.

Certain Plans. (i) Effective as of the applicable Hire Brokerage Closing Date, Buyer shall, or shall cause an Affiliate of Buyer to, assume and maintain as plan sponsor and administrator and perform all obligations with respect to, the Seller's Wealth Plus Plan and Executive Voluntary Deferred Compensation Plan (the "Deferred Compensation PlanTransferred Plans"), as it applies they apply to Transferred Employees. Seller shall transfer to Buyer at the Brokerage Closing Date the cash amount necessary to support the liabilities under the Seller's Wealth Plus Plan attributable to the Transferred Employees accrued to date for accounting purposes using a straight-line expense accounting method. Between the date hereof and the applicable Hire Brokerage Closing Date, at Buyer's request, Seller shall provide a full and accurate report to Buyer as to the amounts accrued to date attributable to the Transferred Employees under the Deferred Compensation Transferred Plans. Buyer shall notify Seller of the termination date of each Transferred Employee covered by the Wealth Plus Plan. Seller shall transfer to Buyer, within two business days after the Brokerage Closing Date, an amount in cash equal to aggregate notional value, determined as of the close of business on the applicable Hire Brokerage Closing Date, securities attributable to each affected of Transferred Employee's Employees' accounts under the Seller's Executive Voluntary Deferred Compensation Plan. (ii) Subject to the limitations and requirements of Seller's Stock Participation Plan and various stock option plans maintained by Seller (the "Seller Equity Plans"), Seller shall recognize service with Buyer for the purposes of vesting and dividend distributions under the Seller Equity Plans after the applicable Hire Brokerage Closing Date as if it were service with Seller; provided, however, that Transferred Employees shall not be entitled to any new award under any Seller Equity Plan after the applicable Hire Brokerage Closing Date and provided, further, that nothing in this Section 3.02(f)(ii3.04(f)(ii) shall be construed to affect or in any way limit (A) the operation or application of any change in control provisions in any Seller Equity Plan; or (B) any right to a dividend distribution to which a Transferred Employee is otherwise entitled as a result of the transactions contemplated herein. (iii) As At Buyer's choice, effective as of the applicable Hire Dateend of the Transition Period, Buyer shall (x) assume the Seller's Flexible Spending Account Program insofar as it applies to the Transferred Employees, or (y) allow Transferred Employees to participate in its a similar or like flexible spending account programprogram maintained by Buyer. At Buyer's requestIn either case, Seller shall take such action as may be necessary to transfer to FahnestockBuyer, subject to applicable law and those requirements ▇▇▇▇ ▇▇▇▇ that must be complied with to maintain favorable tax treatment, the positive net aggregate balances (i.e., actual salary reductions, less expenses incurred), if any, under Seller's Flexible Spending Account Program for each of the Transferred Employees. Each salary reduction election executed by a Transferred Employee for 2003 under Seller's Flexible Spending Account Program shall continue in effect for 2003 with respect to Buyer's flexible spending account program until such salary reduction election is revoked or amended by such Transferred Employee. Section 3.02(f)(iii) of the Seller Disclosure Schedule lists each Business Employee's flexible spending account salary reduction election made with respect to 2003.