EX-10.1 2008 EQUITY INCENTIVE PLAN






Exhibit 10.1




PRG-SCHULTZ INTERNATIONAL, INC.




2008 EQUITY INCENTIVE PLAN




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 	 	 
	Section	 	 	 	 	 	 	 	Page
	ARTICLE I DEFINITIONS	 	 	1	 
	 

	 	 	1.01

1.02

1.03

1.04

1.05

1.06

1.07

1.08

1.09

1.10

1.11

1.12

1.13

1.14

1.15

1.16

1.17

1.18

1.19

1.20

1.21

1.22

1.23

1.24

1.25

1.26	 	 	Affiliate

Agreement

Award

Board

Cause

Change in Control

Code

Committee

Common Stock

Company

Control Change Date

Corresponding SAR

Exchange Act

Fair Market Value

Incentive Award

Incumbent Board Member

Initial Value

Named Executive Officer

Option

Participant

Plan

Person

Restricted Stock Award

Restricted Stock Unit

SAR

Ten Percent Shareholder
	 	 	1

1

1

1

1

2

2

2

3

3

3

3

3

3

3

4

4

4

4

4

4

5

5

5

5

5	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE II PURPOSES	 	 	5	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE III ADMINISTRATION	 	 	6	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE IV ELIGIBILITY	 	 	7	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE V COMMON STOCK SUBJECT TO PLAN	 	 	7	 
	 

	 	 	5.01	 	 	Common Stock Issued
	 	 	7	 
	 

	 	 	5.02	 	 	Aggregate Limit
	 	 	7	 
	 

	 	 	5.03	 	 	Individual Limit
	 	 	8	 
	 

	 	 	5.04	 	 	Awards Settled in Cash; Reissue of Awards and Shares
	 	 	8	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE VI OPTIONS	 	 	9	 






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	 	 	6.01	 	 	Grant
	 	 	9	 
	 

	 	 	6.02	 	 	Option Price
	 	 	9	 
	 

	 	 	6.03	 	 	Maximum Option Period
	 	 	9	 
	 

	 	 	6.04	 	 	Exercise
	 	 	9	 
	 

	 	 	6.05	 	 	Payment
	 	 	10	 
	 

	 	 	6.06	 	 	Stockholder Rights
	 	 	10	 
	 

	 	 	6.07	 	 	Disposition of Shares
	 	 	10	 
	 

	 	 	6.08	 	 	No Liability of Company
	 	 	10	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE VII SARS	 	 	10	 
	 

	 	 	7.01

7.02

7.03

7.04

7.05	 	 	Grant

Maximum SAR Period

Exercise

Settlement

Stockholder Rights
	 	 	10

11

11

11

11	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE VIII RESTRICTED STOCK AWARDS	 	 	11	 
	 

	 	 	8.01

8.02

8.03

8.04

8.05	 	 	Award

Payment

Vesting

Maximum Restriction Period

Stockholder Rights
	 	 	11

12

12

12

13	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE IX RESTRICTED STOCK UNITS	 	 	13	 
	 

	 	 	9.01

9.02

9.03

9.04

9.05	 	 	Grant

Earning the Award

Maximum Restricted Stock Unit Award Period

Payment

Stockholder Rights
	 	 	13

13

14

14

14	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE X INCENTIVE AWARDS	 	 	14	 
	 

	 	 	10.01

10.02

10.03

10.04

10.05	 	 	Grant

Earning the Award

Maximum Incentive Award Period

Payment

Stockholder Rights
	 	 	15

15

15

15

15	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE XI TERMS APPLICABLE TO ALL AWARDS	 	 	15	 
	 

	 	 	11.01

11.02

11.03

11.04

11.05	 	 	Written Agreement

Nontransferability

Transferable Awards

Employee Status

Change in Control
	 	 	15

16

16

16

17	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE XII QUALIFIED PERFORMANCE-BASED COMPENSATION	 	 	18	 
	 

	 	 	12.01
	 	 	Performance Conditions

	 	 	18	 
	 

	 	 	12.02	 	 	Establishing the Amount of the Award	 	 	19	 






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	 	 	12.03	 	 	Earning the Award
	 	 	19	 
	 

	 	 	12.04	 	 	Definitions of Performance Criteria
	 	 	20	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE XIII ADJUSTMENT UPON CHANGE IN COMMON STOCK	 	 	20	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE XIV COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES	 	 	21	 
	 

	 	 	14.01	 	 	Compliance
	 	 	21	 
	 

	 	 	14.02	 	 	Postponement of Exercise or Payment
	 	 	21	 
	 

	 	 	14.03	 	 	Forfeiture of Payment
	 	 	22	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE XV LIMITATION ON BENEFITS	 	 	22	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE XVI GENERAL PROVISIONS	 	 	23	 
	 

	 	 	16.01	 	 	Effect on Employment and Service
	 	 	23	 
	 

	 	 	16.02	 	 	Unfunded Plan
	 	 	23	 
	 

	 	 	16.03	 	 	Rules of Construction
	 	 	24	 
	 

	 	 	16.04	 	 	Tax Withholding and Reporting
	 	 	24	 
	 

	 	 	16.05	 	 	Reservation of Shares
	 	 	24	 
	 

	 	 	16.06	 	 	Governing Law
	 	 	24	 
	 

	 	 	16.07	 	 	Other Actions
	 	 	25	 
	 

	 	 	16.08	 	 	Repurchase of Common Stock
	 	 	25	 
	 

	 	 	16.09	 	 	Other Conditions
	 	 	25	 
	 

	 	 	16.10	 	 	Forfeiture Provisions
	 	 	25	 
	 

	 	 	16.11	 	 	Repricing of Awards
	 	 	26	 
	 

	 	 	16.12	 	 	Legends; Payment of Expenses
	 	 	26	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE XVII CLAIMS PROCEDURES	 	 	26	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE XVIII AMENDMENT	 	 	27	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE XIX DURATION OF PLAN	 	 	27	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE XX EFFECTIVE DATE OF PLAN	 	 	27	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE XXI OMNIBUS SECTION 409A PROVISION	 	 	28	 






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ARTICLE I


DEFINITIONS





			
	1.01	 	Affiliate





     Affiliate, as it relates to any limitations or requirements with respect to incentive stock
options, means any “subsidiary” or “parent” corporation (as such terms are defined in Code Section
424) of the Company. Affiliate otherwise means any entity that is part of a controlled group of
corporations or is under common control with the Company within the meaning of Code Sections
1563(a), 414(b) or 414(c), except that, in making any such determination, 50 percent shall be
substituted for 80 percent under such Code Sections and the related regulations.




			
	1.02	 	Agreement





     Agreement means a written agreement (including any amendment or supplement thereto) between
the Company and a Participant specifying the terms and conditions of an Award granted to such
Participant.




			
	1.03	 	Award





     Award means an Incentive Award, Option, Restricted Stock Award, Restricted Stock Unit or SAR
granted under this Plan.




			
	1.04	 	Board





     Board means the Board of Directors of the Company.




			
	1.05	 	Cause





     Cause has the same definition as under any employment or service agreement between the Company
or any Affiliate and the Participant or, if no such employment or service agreement exists or if
such employment or service agreement does not contain any such definition, Cause means (i) the
Participant’s act or failure to act amounting to gross negligence or willful misconduct to the
detriment of the Company or any Affiliate; (ii) the Participant’s dishonesty, fraud, theft or
embezzlement of funds or properties in the course of Participant’s employment; (iii) the
Participant’s commission of or pleading guilty to or confessing to any felony; or (iv) the
Participant’s breach of any restrictive covenant agreement with the Company or any Affiliate,
including but not limited to, covenants not to compete, non-solicitation covenants and
non-disclosure covenants. For purposes of the Plan, the Participant’s resignation without the
Company’s or an Affiliate’s written consent prior to the expiration of a written employment
contract or in anticipation of termination of employment for Cause shall constitute a termination
of employment for Cause.



 









 









			
	1.06	 	Change in Control





     Change in Control means the occurrence of any of the following events:



     (a)     The accumulation in any number of related or unrelated transactions by any Person of
beneficial ownership (as such term is used in Rule 13d-3 promulgated under the Exchange Act) of
fifty percent (50%) or more of the combined voting power of the Company’s voting stock; provided
that for purposes of this subsection (a), a Change in Control will not be deemed to have occurred
if the accumulation of fifty percent (50%) or more of the voting power of the Company’s voting
stock results from any acquisition of voting stock (i) by the Company, (ii) by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any Affiliate, or (iii) by any
Person pursuant to a merger, consolidation or reorganization (a “Business Combination”) that would
not cause a Change in Control under subsection (b) below; or



     (b)     Consummation of a Business Combination, unless, immediately following that Business
Combination, all or substantially all of the Persons who were the beneficial owners of voting stock
of the Company immediately prior to that Business Combination beneficially own, directly or
indirectly, at least fifty percent (50%) of the combined voting power of the Company’s voting stock
resulting from that Business Combination (including, without limitation, an entity that as a result
of that transaction owns the Company or all or substantially all of the Company’s assets either
directly or through one or more subsidiaries) in substantially the same proportions relative to
each other as their ownership, immediately prior to that Business Combination, of the voting stock
of the Company; or



     (c)     Less than a majority of the members of the Board of Directors of the Company or any entity
resulting from a Business Combination are Incumbent Board Members; or



     (d)     A sale or other disposition of all or substantially all of the assets of the Company,
except pursuant to a Business Combination that would not cause a Change in Control under subsection
(b) above; or



     (e)     Approval by the shareholders of the Company of a complete liquidation or dissolution of
the Company, except pursuant to a Business Combination that would not cause a Change in Control
under subsection (b) above; or



     (f)     Any other transaction or event that the Board identifies as a Change in Control for
purposes of the Plan.




			
	1.07	 	Code





     Code means the Internal Revenue Code of 1986 and any amendments thereto.




			
	1.08	 	Committee





     Committee means the Compensation Committee of the Board, or the Board itself if no
Compensation Committee exists. If such Compensation Committee exists, if and to the extent deemed
necessary by the Board, such Compensation Committee shall consist of two or more



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directors, all of whom are “non-employee directors” within the meaning of Rule 16b-3 under the
Exchange Act and “outside directors” within the meaning of Code Section 162(m).




			
	1.09	 	Common Stock





     Common Stock means the common stock, no par value per share, of the Company.




			
	1.10	 	Company





     Company means PRG-Schultz International, Inc., a Georgia corporation, and any successor
thereto.




			
	1.11	 	Control Change Date





     Control Change Date means the date on which a Change in Control occurs. If a Change in Control
occurs on account of a series of transactions, the “Control Change Date” is the date of the last of
such transactions.




			
	1.12	 	Corresponding SAR





     Corresponding SAR means a SAR that is granted in relation to a particular Option and that can
be exercised only upon the surrender to the Company, unexercised, of that portion of the Option to
which the SAR relates.




			
	1.13	 	Exchange Act





     Exchange Act means the Securities Exchange Act of 1934, as amended.




			
	1.14	 	Fair Market Value





     Fair Market Value of a share of Common Stock means, on any given date, the fair market value
of a share of Common Stock as the Committee in its discretion shall determine; provided, however,
that the Committee shall determine Fair Market Value without regard to any restriction other than a
restriction which, by its terms, will never lapse and, if the shares of Common Stock are traded on
any national stock exchange or quotation system, the Fair Market Value of a share of Common Stock
shall be the closing price of a share of Common Stock as reported on such stock exchange or
quotation system on such date, or if the shares of Common Stock are not traded on such stock
exchange or quotation system on such date, then on the next preceding day that the shares of Common
Stock were traded on such stock exchange or quotation system, all as reported by such source as the
Committee shall select. The Fair Market Value that the Committee determines shall be final, binding
and conclusive on the Company, any Affiliate and each Participant.




			
	1.15	 	Incentive Award





     Incentive Award means an award stated with reference to a specified dollar amount or number of
shares of Common Stock which, subject to such terms and conditions as may be



3









 







prescribed by the Committee entitles the Participant to receive shares of Common Stock, cash
or a combination thereof from the Company or an Affiliate.




			
	1.16	 	Incumbent Board Member





     Incumbent Board Member means an individual who either is (a) a member of the Company’s Board
as of the effective date of the adoption of this Plan or (b) a member who becomes a member of the
Company’s Board subsequent to the date of the adoption of this Plan whose election, or nomination
for election by the Company’s shareholders, was approved by a vote of at least sixty percent (60%)
of the then Incumbent Board Members (either by a specific vote or by approval of the proxy
statement of the Company in which that person is named as a nominee for director, without objection
to that nomination), but excluding, for that purpose, any individual whose initial assumption of
office occurs as a result of an actual or threatened election contest (within the meaning of Rule
14a-11 of the Exchange Act) with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other than the Board of
Directors.




			
	1.17	 	Initial Value





     Initial Value means, with respect to a Corresponding SAR, the Option price per share of the
related Option and, with respect to a SAR granted independently of an Option, the amount determined
by the Committee on the date of grant which shall not be less than the Fair Market Value of one
share of Common Stock on the date of grant.




			
	1.18	 	Named Executive Officer





     Named Executive Officer means a Participant who, as of the last day of a taxable year, is the
Chief Executive Officer of the Company (or is acting in such capacity) or one of the four highest
compensated officers of the Company (other than the Chief Executive Officer) or is otherwise one of
the group of “covered employees,” all as defined in the regulations promulgated under Code Section
162(m).




			
	1.19	 	Option





     Option means a stock option that entitles the holder to purchase from the Company a stated
number of shares of Common Stock at the price set forth in an Agreement.




			
	1.20	 	Participant





     Participant means an employee of the Company or an Affiliate, a member of the Board or the
Board of Directors of an Affiliate (whether or not an employee), or a person or entity that
provides services to the Company or an Affiliate and who satisfies the requirements of Article IV
and is selected by the Committee to receive an Award.




			
	1.21	 	Plan





     Plan means this PRG-Schultz International, Inc. 2008 Equity Incentive Plan, in its current
form and as hereafter amended.



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	1.22	 	Person





     Person means any individual, corporation, partnership, limited liability company, joint
venture, incorporated or unincorporated association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof or any other entity of
any kind.




			
	1.23	 	Restricted Stock Award





     Restricted Stock Award means shares of Common Stock granted to a Participant under Article
VIII.




			
	1.24	 	Restricted Stock Unit





     Restricted Stock Unit means an award, stated with respect to a specified number of shares of
Common Stock, that entitles the Participant to receive one share of Common Stock with respect to
each Restricted Stock Unit that becomes payable under the terms and conditions of the Plan and the
applicable Agreement.




			
	1.25	 	SAR





     SAR means a stock appreciation right that in accordance with the terms of an Agreement
entitles the holder to receive cash or a number of shares of Common Stock based on the increase in
the Fair Market Value of the shares underlying the stock appreciation right during a stated period
specified by the Committee. References to “SARs” include both Corresponding SARs and SARs granted
independently of Options, unless the context requires otherwise.




			
	1.26	 	Ten Percent Shareholder 





     Ten Percent Shareholder means any individual who (considering the stock attribution rules
described in Code Section 424(d)) owns stock possessing more than 10 percent of the total combined
voting power of all classes of stock of the Company or any Affiliate.



ARTICLE II


PURPOSES




     The Plan is intended to assist the Company and its Affiliates in recruiting and retaining
individuals with ability and initiative by enabling such persons to participate in the future
success of the Company and its Affiliates by associating their interests with those of the Company
and its stockholders. The Plan is intended to permit the grant of Options qualifying under Code
Section 422 (“incentive stock options”) and Options not so qualifying, SARs, Restricted Stock
Awards, Restricted Stock Units and Incentive Awards in accordance with the Plan and procedures that
may be established by the Committee. No Option that is intended to be an incentive stock option
shall be invalid for failure to qualify as an incentive stock option. The proceeds received by the
Company from the sale of shares of Common Stock pursuant to this Plan may be used for general
corporate purposes.



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ARTICLE III


ADMINISTRATION




     The Plan shall be administered by the Committee. The Committee shall have authority to grant
Awards upon such terms (not inconsistent with the provisions of this Plan) as the Committee may
consider appropriate. Such terms may include conditions (in addition to those contained in this
Plan) on the exercisability, transferability, and forfeitability of all or any part of an Option or
SAR, the transferability or forfeitability of a Restricted Stock Award, or the grant, settlement,
forfeitability, or transferability of a Restricted Stock Unit or an Incentive Award, among other
terms. Notwithstanding any such conditions, the Committee may, in its discretion and whether or not
in connection with a Change in Control, accelerate the time at which any Option or SAR may be
exercised, or the time at which a Restricted Stock Award may become transferable or nonforfeitable
or the time at which an Incentive Award or award of Restricted Stock Units may be earned and
settled. In addition, the Committee shall have complete authority to interpret all provisions of
this Plan; to prescribe the form of Agreements; to adopt, amend, and rescind rules and regulations
pertaining to the administration of the Plan; and to make all other determinations necessary or
advisable for the administration of this Plan. The express grant in the Plan of any specific power
to the Committee shall not be construed as limiting any power or authority of the Committee. Any
decision made, or action taken, by the Committee in connection with the administration of this Plan
shall be final and conclusive. The members of the Committee shall not be liable for any act done in
good faith with respect to this Plan or any Agreement or Award. Unless otherwise provided by the
Bylaws of the Company, by resolution of the Board or applicable law, a majority of the members of
the Committee shall constitute a quorum, and acts of the majority of the members present at any
meeting at which a quorum is present, and any acts approved in writing by all members of the
Committee without a meeting, shall be the acts of the Committee.



     To the extent applicable law so permits, the Committee, in its discretion, may delegate to one
or more officers of the Company all or part of the Committee’s authority and duties with respect to
Awards to be granted to individuals who are not subject to the reporting and other provisions of
Section 16 of the Exchange Act. The Committee may revoke or amend the terms of any delegation at
any time but such action shall not invalidate any prior actions of the Committee’s delegate or
delegates that were consistent with the terms of the Plan and the Committee’s prior delegation. If
and to the extent deemed necessary by the Board, (i) all Awards granted to any individual who is
subject to the reporting and other provisions of Section 16 of the Exchange Act shall be made by a
Committee comprised solely of two or more directors, all of whom are “non-employee directors”
within the meaning of Rule 16b-3 under the Exchange Act, to the extent necessary to exempt the
Award from the short-swing profit rules of Section 16(b) of the Exchange Act and (ii) all Awards
granted to an individual who is a Named Executive Officer shall be made by a Committee comprised
solely of two or more directors, all of whom are “outside directors” within the meaning of Code
Section 162(m), to the extent necessary to preserve any deduction under Section 162(m) of the Code.
An Award granted to an individual who is a member of the Committee may be approved by the
Committee in accordance with the applicable committee charters then in effect and other applicable
law.



     The Company shall bear all expenses of administering this Plan. The Company shall indemnify
and hold harmless each person who is or shall have been a member of the Committee



6









 







acting as administrator of the Plan, or any delegate of such, against and from any cost,
liability, loss or expense that may be imposed upon or reasonably incurred by such person in
connection with or resulting from any action, claim, suit, or proceeding to which such person may
be a party or in which such person may be involved by reason of any action taken or not taken under
the Plan and against and from any and all amounts paid by such person in settlement thereof, with
the Company’s approval, or paid by such person in satisfaction of any judgment in any such action,
suit, or proceeding against such person, provided he or she shall give the Company an opportunity,
at its own expense, to handle and defend the same before he or she undertakes to handle and defend
it on his or her own behalf. Notwithstanding the foregoing, the Company shall not indemnify and
hold harmless any such person if (i) applicable law or the Company’s Articles of Incorporation or
Bylaws prohibit such indemnification or (ii) such person did not act in good faith and in a manner
that such person believed to be consistent with the Plan or (iii) such person’s conduct constituted
gross negligence or willful misconduct. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such persons may be entitled under the
Company’s Articles of Incorporation or Bylaws, as a matter of law or otherwise, or under any other
power that the Company may have to indemnify such person or hold him or her harmless. The
provisions of the foregoing indemnity shall survive indefinitely the term of this Plan.



ARTICLE IV


ELIGIBILITY




     Any employee of the Company or an Affiliate (including an entity that becomes an Affiliate
after the adoption of this Plan), a member of the Board or the Board of Directors of an Affiliate
(including an entity that becomes an Affiliate after the adoption of the Plan) (whether or not such
board member is an employee) and any other person or entity that provides services to the Company
or an Affiliate (including an entity that becomes an Affiliate after the adoption of the Plan) is
eligible to participate in this Plan if the Committee, in its sole discretion, determines that such
person or entity has contributed significantly or can be expected to contribute significantly to
the profits or growth of the Company or any Affiliate or if it is otherwise in the best interest of
the Company or any Affiliate for such person or entity to participate in this Plan.



ARTICLE V


COMMON STOCK SUBJECT TO PLAN





			
	5.01	 	Common Stock Issued





     Upon the issuance of shares of Common Stock pursuant to an Award, the Company may deliver to
the Participant (or the Participant’s broker if the Participant so directs) shares of Common Stock
from its authorized but unissued Common Stock, treasury shares or reacquired shares, whether
reacquired on the open market or otherwise.




			
	5.02	 	Aggregate Limit





     The maximum aggregate number of shares of Common Stock that may be issued under this Plan and
to which Awards may relate is 2,000,000 shares. One hundred percent (100%) of such shares may be
issued pursuant to Options. Alternatively, one hundred percent (100%) of



7









 







such shares may be issued pursuant to SARs, Restricted Stock Awards, Restricted Stock Units or
Incentive Awards. The maximum number of shares of Common Stock that may be issued in each instance
shall be subject to adjustment as provided in Article XII.




			
	5.03	 	Individual Limit





     In any calendar year, no Participant may be granted Options, SARs, Restricted Stock Awards,
Restricted Stock Units or any combination thereof that relate to more than 500,000 shares of Common
Stock. For purposes of the foregoing limit, an Option and its Corresponding SAR shall be treated as
a single Award. In any calendar year, no Participant may be granted an Incentive Award (i) with
reference to a specified dollar limit for more than $1,500,000 and (ii) with reference to a
specified number of shares of Common Stock for more than 500,000 shares of Common Stock. If an
Award that a Participant holds is cancelled or subject to a repricing within the meaning of the
regulations under Code Section 162(m) (after shareholder approval as required herein), the
cancelled Award shall continue to be counted against the maximum number of shares of Common Stock
for which Awards may be granted to the Participant in any calendar year as required under Code
Section 162(m). The maximum number of shares that may be granted in any calendar year to any
Participant shall be subject to adjustment as provided in Article XII.




			
	5.04	 	Awards Settled in Cash; Reissue of Awards and Shares





     To the extent that an Award is settled in cash or a form other than shares of Common Stock,
the number of underlying shares of Common Stock with respect to which the Award related shall be
counted against the applicable Common Stock limit under Section 5.02 above as opposed to counting
the number of shares of Common Stock that could have been delivered in lieu of such cash or other
form of settlement. To the extent that any shares of Common Stock are issued pursuant to an Award,
the number of shares of Common Stock that shall be counted against the applicable Common Stock
limit under Section 5.02 above shall be the greater of (i) the number of underlying shares of
Common Stock with respect to which the Award related or (ii) the number of shares of Common Stock
actually issued in settlement of such Award. Shares of Common Stock that are subject to or underlie
Awards that expire, or for any reason are cancelled, terminated or forfeited, fail to vest, or for
any other reason are not paid or delivered under the Plan, shall again be available for issuance
pursuant to subsequent Awards under the Plan. Such shares of Common Stock, with respect to the
portion of that Award that is cancelled, terminated, forfeited, fails to vest or is otherwise not
paid or delivered, will be treated for purposes of Section 5.02 above as if they had never been
issued. Shares of Common Stock that are otherwise reacquired from the Participant or the
Participant’s transferee to pay the exercise or purchase price of an Award or to satisfy the
minimum applicable tax withholding obligation of the Company or an Affiliate with respect to an
Award shall not be treated, for purposes of Section 5.02 above, as shares of Common Stock available
for issuance under the Plan and shall not be so available.



8









 








ARTICLE VI


OPTIONS 





			
	6.01	 	Grant





     Subject to the eligibility provisions of Article IV, the Committee will designate each
individual or entity to whom an Option is to be granted and will specify the number of shares of
Common Stock covered by such grant and whether the Option is an incentive stock option or a
nonqualified stock option. Notwithstanding any other provision of the Plan or any Agreement, the
Committee may only grant an incentive stock option to an individual who is an employee of the
Company or an Affiliate. An Option may be granted with or without a Corresponding SAR.




			
	6.02	 	Option Price 





     The price per share of Common Stock purchased on the exercise of an Option shall be determined
by the Committee on the date of grant, but shall not be less than the Fair Market Value of a share
of Common Stock on the date the Option is granted. However, if at the time of grant of an Option
that is intended to be an incentive stock option, the Participant is a Ten Percent Shareholder, the
price per share of Common Stock purchased on the exercise of such Option shall not be less than
110% of the Fair Market Value of a share of Common Stock on the date the Option is granted.




			
	6.03	 	Maximum Option Period 





     The maximum period in which an Option may be exercised shall be determined by the Committee on
the date of grant, except that no Option shall be exercisable after the expiration of ten years
from the date such Option was granted (five years from the date such Option was granted in the
event of an incentive stock option granted to a Ten Percent Shareholder).




			
	6.04	 	Exercise





     Subject to the provisions of this Plan and the applicable Agreement, an Option may be
exercised in whole at any time or in part from time to time at such times and in compliance with
such requirements as the Committee shall determine; provided, however, that incentive stock options
(granted under the Plan and all plans of the Company and its Affiliates) may not be first
exercisable in a calendar year for shares of Common Stock having a Fair Market Value (determined as
of the date the Option is granted) exceeding $100,000. If the limitation is exceeded, the Options
that cause the limitation to be exceeded shall be treated as nonqualified stock options. An Option
granted under this Plan may be exercised with respect to any number of whole shares less than the
full number for which the Option could be exercised. A partial exercise of an Option shall not
affect the right to exercise the Option from time to time in accordance with this Plan and the
applicable Agreement with respect to the remaining shares subject to the Option. The exercise of an
Option shall result in the termination of the Corresponding SAR to the extent of the number of
shares with respect to which the Option is exercised.



9









 









			
	6.05	 	Payment





     Subject to rules established by the Committee and unless otherwise provided in an Agreement,
payment of all or part of the Option price shall be made in cash or cash equivalent acceptable to
the Committee. If the Agreement so provides, the Committee, in its discretion and provided
applicable law so permits, may allow a Participant to pay all or part of the Option price (i) by
surrendering (actually or by attestation) shares of Common Stock to the Company that the
Participant already owns and, if necessary to avoid adverse accounting consequences, has held for
at least six months; (ii) by a cashless exercise through a broker; (iii) by means of a “net
exercise” procedure, (iv) by such other medium of payment as the Administrator in its discretion
shall authorize or (v) by any combination of the aforementioned methods of payment. If shares of
Common Stock are used to pay all or part of the Option price, the sum of the cash and cash
equivalent and the Fair Market Value (determined as of the day preceding the date of exercise) of
the shares surrendered must not be less than the Option price of the shares for which the Option is
being exercised.




			
	6.06	 	Stockholder Rights





     No Participant shall have any rights as a stockholder with respect to shares subject to his or
her Option until the date of exercise of such Option and the issuance of the shares of Common
Stock.




			
	6.07	 	Disposition of Shares





     A Participant shall notify the Company of any sale or other disposition of shares of Common
Stock acquired pursuant to an Option that was designated an incentive stock option if such sale or
disposition occurs (i) within two years of the grant of an Option or (ii) within one year of the
issuance of shares of Common Stock to the Participant. Such notice shall be in writing and directed
to the Secretary of the Company.




			
	6.08	 	No Liability of Company





     The Company shall not be liable to any Participant or any other person if the Internal Revenue
Service or any court or other authority having jurisdiction over such matter determines for any
reason that an Option intended to be an incentive stock option and granted hereunder does not
qualify as an incentive stock option.



ARTICLE VII


SARS





			
	7.01	 	Grant





     Subject to the eligibility provisions of Article IV, the Committee will designate each
individual or entity to whom SARs are to be granted and will specify the number of shares of Common
Stock covered by such grant. In addition, no Participant may be granted Corresponding SARs (under
this Plan and all other incentive stock option plans of the Company and its Affiliates) that are
related to incentive stock options which are first exercisable in any calendar



10









 







year for shares of Common Stock having an aggregate Fair Market Value (determined as of the
date the related Option is granted) that exceeds $100,000.




			
	7.02	 	Maximum SAR Period





     The term of each SAR shall be determined by the Committee on the date of grant, except that no
SAR shall have a term of more than ten years from the date such SAR was granted (five years for a
Corresponding SAR that is related to an incentive stock option and that is granted to a Ten Percent
Shareholder). No Corresponding SAR shall be exercisable or continue in existence after the
expiration of the Option to which the Corresponding SAR relates.




			
	7.03	 	Exercise





     Subject to the provisions of this Plan and the applicable Agreement, a SAR may be exercised in
whole at any time or in part from time to time at such times and in compliance with such
requirements as the Committee shall determine; provided, however, that a SAR may be exercised only
when the Fair Market Value of the Common Stock that is subject to the exercise exceeds the Initial
Value of the SAR and a Corresponding SAR may be exercised only to the extent that the related
Option is exercisable. A SAR granted under this Plan may be exercised with respect to any number of
whole shares less than the full number for which the SAR could be exercised. A partial exercise of
a SAR shall not affect the right to exercise the SAR from time to time in accordance with this Plan
and the applicable Agreement with respect to the remaining shares subject to the SAR. The exercise
of a Corresponding SAR shall result in the termination of the related Option to the extent of the
number of shares with respect to which the SAR is exercised.




			
	7.04	 	Settlement





     The amount payable to the Participant by the Company as a result of the exercise of a SAR
shall be settled in cash, by the issuance of shares of Common Stock or by a combination thereof, as
the Committee in its sole discretion determines and sets forth in the applicable Agreement. No
fractional share will be deliverable upon the exercise of a SAR but a cash payment will be made in
lieu thereof.




			
	7.05	 	Stockholder Rights





     No Participant shall, as a result of receiving a SAR, have any rights as a stockholder of the
Company or any Affiliate until the date that the SAR is exercised and then only to the extent that
the SAR is settled by the issuance of Common Stock.



ARTICLE VIII


RESTRICTED STOCK AWARDS





			
	8.01	 	Award





     Subject to the eligibility provisions of Article IV, the Committee will designate each
individual or entity to whom a Restricted Stock Award is to be granted, will specify the number



11









 







of shares of Common Stock covered by such grant and the price, if any, to be paid for each
share of Common Stock covered by the grant.




			
	8.02	 	Payment.





     Unless the Agreement provides otherwise, if the Participant must pay for a Restricted Stock
Award, payment of the Award shall be made in cash or cash equivalent acceptable to the Committee.
If the Agreement so provides, the Committee, in its discretion and provided applicable law so
permits, may allow a Participant to pay all or part of the purchase price (i) by surrendering
(actually or by attestation) shares of Common Stock to the Company the Participant already owns
and, if necessary to avoid adverse accounting consequences, has held for at least six months, (ii)
by such other medium of payment as the Committee in its discretion shall authorize or (iii) by any
combination of the foregoing methods of payment. If Common Stock is used to pay all or part of the
purchase price, the sum of cash and cash equivalent and other payments and the Fair Market Value
(determined as of the day preceding the date of purchase) of the Common Stock surrendered must not
be less than the purchase price of the Restricted Stock Award.




			
	8.03	 	Vesting





     The Committee, on the date of grant may, but need not, prescribe that a Participant’s rights
in the Restricted Stock Award shall be forfeitable and nontransferable for a period of time or
subject to such conditions as may be set forth in the Agreement. Notwithstanding any provision
herein to the contrary, the Committee, in its sole discretion may grant Restricted Stock Awards
that are nonforfeitable and transferable immediately upon grant. By way of example and not of
limitation, the Committee may prescribe that a Participant’s rights in a Restricted Stock Award
shall be forfeitable and nontransferable subject to (a) the attainment of objectively determinable
performance conditions based on the criteria described in Article XII, (b) the Participant’s
completion of a specified period of employment or service with the Company or an Affiliate, (c) the
Participant’s death, disability or retirement or (d) satisfaction of a combination of any of the
foregoing factors. A Participant’s rights in a Restricted Stock Award may be subject to repurchase
upon specified events as determined by the Committee and set forth in the Agreement.
Notwithstanding the preceding sentences, if and to the extent deemed necessary by the Committee,
Restricted Stock Awards granted to Named Executive Officers shall be forfeitable and
nontransferable subject to attainment of objectively determinable performance conditions based on
the criteria described in Article XII and shall be subject to the other requirements set forth in
Article XII so as to enable such Restricted Stock Award to qualify as “qualified performance-based
compensation” under the regulations promulgated under Code Section 162(m). A Restricted Stock Award
can only become nonforfeitable and transferable during the Participant’s lifetime in the hands of
the Participant.




			
	8.04	 	Maximum Restriction Period





     To the extent the Participant’s rights in a Restricted Stock Award are forfeitable and
nontransferable for a period of time, the Committee on the date of grant shall determine the
maximum period over which the rights may become nonforfeitable and transferable, except that such
period shall not exceed ten years from the date of grant.



12









 









			
	8.05	 	Stockholder Rights





     Prior to their forfeiture (in accordance with the applicable Agreement and while the shares of
Common Stock granted pursuant to the Restricted Stock Award may be forfeited and are
nontransferable), a Participant will have all rights of a stockholder with respect to a Restricted
Stock Award, including the right to receive dividends and vote the shares; provided, however, that
during such period (i) a Participant may not sell, transfer, pledge, exchange, hypothecate, or
otherwise dispose of shares granted pursuant to a Restricted Stock Award, (ii) the Company shall
retain custody of the certificates evidencing shares granted pursuant to a Restricted Stock Award,
and (iii) the Participant will deliver to the Company a stock power, endorsed in blank, with
respect to each Restricted Stock Award. In lieu of retaining custody of the certificates evidencing
shares granted pursuant to a Restricted Stock Award, the shares of Common Stock granted pursuant to
the Restricted Stock Award may, in the Committee’s discretion, be held in escrow by the Company
until the Participant’s interest in such shares of Common Stock vest. Notwithstanding the
preceding sentences, if and to the extent deemed necessary by the Committee, dividends payable with
respect to Restricted Stock Awards may accumulate (without interest) and become payable to the
Participant at the time, and only to the extent that, the portion of the Restricted Stock Award to
which the dividends relate has become transferable and nonforfeitable. The limitations set forth in
the preceding sentences shall not apply after the shares granted under the Restricted Stock Award
are transferable and are no longer forfeitable.



ARTICLE IX


RESTRICTED STOCK UNITS





			
	9.01	 	Grant





     Subject to the eligibility provisions of Article IV, the Committee will designate each
individual or entity to whom a grant of Restricted Stock Units is to be made and will specify the
number of shares covered by such grant.




			
	9.02	 	Earning the Award





     The Committee, on the date of grant of the Restricted Stock Units, shall prescribe that the
Restricted Stock Units will be earned and become payable subject to such conditions as are set
forth in the Agreement. By way of example and not of limitation, the Committee may prescribe that
the Restricted Stock Units will be earned and become payable upon (a) the satisfaction of
objectively determinable performance conditions based on the criteria described in Article XI, (b)
the Participant’s completion of a specified period of employment or service with the Company or an
Affiliate, (c) the Participant’s death, disability or retirement or (d) satisfaction of a
combination of any of the foregoing factors. If and to the extent deemed necessary by the
Committee, Restricted Stock Units granted to Named Executive Officers shall become payable upon the
satisfaction of objectively determinable performance conditions based on the criteria described in
Article XI and shall be subject to the other requirements set forth in Article XI so as to enable
such Restricted Stock Units to qualify as “qualified performance-based compensation” under the
regulations promulgated under Code Section 162(m).




13











 






			
	9.03	 	Maximum Restricted Stock Unit Award Period





     The Committee, on the date of grant, shall determine the maximum period over which Restricted
Stock Units may be earned, except that such period shall not exceed ten years from the date of
grant.




			
	9.04	 	Payment





     The amount payable to the Participant by the Company when an award of Restricted Stock Units
is earned shall be settled by the issuance of one share of Common Stock for each Restricted Stock
Unit that is earned. A fractional share of Common Stock shall not be deliverable when an award of
Restricted Stock Units is earned, but a cash payment will be made in lieu thereof.




			
	9.05	 	Stockholder Rights





     No Participant shall, as a result of receiving a grant of Restricted Stock Units, have any
rights as a stockholder until and then only to the extent that the Restricted Stock Units are
earned and settled in shares of Common Stock. However, notwithstanding the foregoing, the Committee
in its sole discretion may set forth in the Agreement that, for so long as the Participant holds
any Restricted Stock Units, if the Company pays any cash dividends on its Common Stock, then (a)
the Company may pay the Participant in cash for each outstanding Restricted Stock Unit covered by
the Agreement as of the record date of such dividend, less than any required withholdings, the per
share amount of such dividend or (b) the number of outstanding Restricted Stock Units covered by
the Agreement may be increased by the number of Restricted Stock Units, rounded down to the nearest
whole number, equal to (i) the product of the number of the Participant’s outstanding Restricted
Stock Units as of the record date for such dividend multiplied by the per share amount of the
dividend divided by (ii) the fair market value of a share of Common Stock on the payment date of
such dividend. In the event additional Restricted Stock Units are awarded, such Restricted Stock
Units shall be subject to the same terms and conditions set forth in the Plan and the Agreement as
the outstanding Restricted Stock Units with respect to which they were granted. Notwithstanding the
preceding sentences, if and to the extent deemed necessary to the Committee, dividends payable with
respect to Restricted Stock Units may accumulate (without interest) and become payable to the
Participant at the time, and only to the extent that, the portion of the Restricted Stock Units to
which the dividends relate has become earned and payable. The limitations set forth in the
preceding sentences shall not apply after the Restricted Stock Units become earned and payable and
shares are issued thereunder.



ARTICLE X

INCENTIVE AWARDS 





			
	10.01	 	Grant





     Subject to the eligibility provisions of Article IV, the Committee will designate each
individual or entity to whom Incentive Awards are to be granted. All Incentive Awards shall be
determined exclusively by the Committee under the procedures established by the Committee.



14









 









			
	10.02	 	Earning the Award 





     The Committee, on the date of grant of an Incentive Award, shall specify in the applicable
Agreement the terms and conditions which govern the grant, including without limitation, whether
the Participant, to be entitled to payment, must be employed or providing services to the Company
or an Affiliate at the time the Incentive Award is to be paid. By way of example and not of
limitation, the Committee may prescribe that the Incentive Award shall be earned and payable upon
(a) the satisfaction of objectively determinable performance conditions based on the criteria
described in Article XII, (b) the Participant’s completion of a specified period of employment or
service with the Company or an Affiliate, (c) the Participant’s death, disability or retirement or
(d) satisfaction of a combination of any of the foregoing factors. If and to the extent deemed
necessary by the Committee, Incentive Awards granted to Named Executive Officers shall be earned
and become payable upon the satisfaction of objectively determinable performance conditions based
on the criteria described in Article XII and shall be subject to the other requirements set forth
in Article XII so as to enable the Incentive Awards to qualify as “qualified performance-based
compensation” under the regulations promulgated under Code Section 162(m).




			
	10.03	 	Maximum Incentive Award Period





     The Committee, at the time an Incentive Award is made, shall determine the maximum period over
which the Incentive Award may be earned, except that such period shall not exceed ten years from
the date of grant.




			
	10.04	 	Payment





     The amount payable to the Participant by the Company when an Incentive Award is earned may be
settled in cash, by the issuance of shares of Common Stock or by a combination thereof, as the
Committee, in its sole discretion determines and sets forth in the applicable Agreement. A
fractional share of Common Stock shall not be deliverable when an Incentive Award is earned, but a
cash payment will be made in lieu thereof.




			
	10.05	 	Stockholder Rights





     No Participant shall, as a result of receiving an Incentive Award, have any rights as a
stockholder of the Company or any Affiliate on account of such Incentive Award, unless and then
only to the extent that the Incentive Award is earned and settled in shares of Common Stock.



ARTICLE XI

TERMS APPLICABLE TO ALL AWARDS





			
	11.01	 	Written Agreement





     Each Award shall be evidenced by a written Agreement (including any amendment or supplement
thereto) between the Company and the Participant specifying the terms and conditions of the Award
granted to such Participant.



15









 









			
	11.02	 	Nontransferability





     Except as provided in Section 11.03, each Award granted under this Plan shall be
nontransferable except by will or by the laws of descent and distribution. In the event of any
transfer of an Option or Corresponding SAR (by the Participant or his transferee), the Option and
Corresponding SAR that relates to such Option must be transferred to the same person or persons or
entity or entities. Except as provided in Section 11.02, during the lifetime of the Participant to
whom the Option or SAR is granted, the Option or SAR may be exercised only by the Participant. No
right or interest of a Participant in any Award shall be liable for, or subject to, any lien,
obligation, or liability of such Participant or his transferee.




			
	11.03	 	Transferable Awards





     Section 11.02 to the contrary notwithstanding, if the Agreement so provides, an Award that is
not an incentive stock option or a Corresponding SAR that relates to an incentive stock option may
be transferred by a Participant to any of such class of transferees who can be included in the
class of transferees who may rely on a Form S-8 Registration Statement under the Securities Act of
1933 to sell shares issuable upon exercise or payment of such Awards granted under the Plan. Any
such transfer will be permitted only if (i) the Participant does not receive any consideration for
the transfer, (ii) the Committee expressly approves the transfer and (iii) the transfer is on such
terms and conditions as are appropriate for the class of transferees who may rely on the Form S-8
Registration Statement. The holder of the Aware transferred pursuant to this Section shall be
bound by the same terms and conditions that governed the Award during the period that it was held
by the Participant; provided, however, that such transferee may not transfer the Award except by
will or the laws of descent and distribution. In the event of any transfer of an Option that is
not an incentive stock option or a Corresponding SAR that relates to an incentive stock option (by
the Participant or his transferee), the Option and Corresponding SAR that relates to such Option
must be transferred to the same person or persons or entity or entities. Unless transferred as
provided in Section 8.05, a Restricted Stock Award may not be transferred prior to becoming
non-forfeitable and transferable.




			
	11.04	 	Employee Status





     If the terms of any Award provide that it may be exercised or paid only during employment or
continued service or within a specified period of time after termination of employment or continued
service, the Committee may decide to what extent leaves of absence for governmental or military
service, illness, temporary disability, or other reasons shall not be deemed interruptions of
continuous employment or service. For purposes of the Plan, employment and continued service shall
be deemed to exist between the Participant and the Company and/or an Affiliate if, at the time of
the determination, the Participant is a director, officer, employee, consultant or advisor of the
Company or an Affiliate. A Participant on military leave, sick leave or other bona fide leave of
absence shall continue to be considered an employee for purposes of the Plan during such leave if
the period of leave does not exceed three months, or, if longer, so long as the individual’s right
to re-employment with the Company or any of its Affiliates is guaranteed either by statute or by
contract. If the period of leave exceeds three months, and the individual’s right to re-employment
is not guaranteed by statute or by contract, the employment shall be deemed to be terminated on the
first day after the end of such three-



16









 







month period. Except as may otherwise be expressly provided in an Agreement, Awards granted
to a director, officer, employee, consultant or adviser shall not be affected by any change in the
status of the Participant so long as the Participant continues to be a director, officer, employee,
consultant or advisor to the Company or any of its Affiliates (regardless of having changed from
one to the other or having been transferred from one entity to another). The Participant’s
employment or continued service shall not be considered interrupted in the event the Committee, in
its discretion and as specified at or prior to such occurrence, determines there is no interruption
in the case of a spin-off, sale or disposition of the Participant’s employer from the Company or an
Affiliate, except that if the Committee does not otherwise specify such at or such prior to such
occurrence, the Participant will be deemed to have a termination of employment or continuous
service to the extent the Affiliate that employs the Participant is no longer the Company or an
entity that qualifies as an Affiliate.




			
	11.05	 	Change in Control





     Notwithstanding any provision of any Agreement to the contrary, in the event of or in
anticipation of a Change in Control, the Committee in its discretion may (i) declare that some or
all outstanding Awards previously granted under the Plan, whether or not then exercisable or
payable, shall terminate as of a date before or on the Change in Control without any payment to the
holder of the Award, provided the Committee gives prior written notice to the Participants of such
termination and gives such Participants the right to exercise their outstanding Awards for a
reasonable time before such date to the extent then exercisable (or to the extent such Awards would
be exercisable as of the Control Change Date), (ii) terminate before or on the Control Change Date
some or all outstanding Awards previously granted under the Plan, whether or not then exercisable
or payable, in consideration of payment to the holder of the Award, with respect to each share of
Common Stock for which the Award is then exercisable or payable (or for which the Award would have
been exercisable or payable as of the Control Change Date), of the excess, if any, of the Fair
Market Value on such date of the Common Stock subject to such portion of the Award over the Option
price or Initial Value (if applicable) (provided that outstanding Awards that are not then
exercisable or payable and that would not become exercisable or payable on the Control Change Date,
and Options and SARs with respect to which the Fair Market Value of the Common Stock subject to the
Options or SARs does not exceed the Option price or Initial Value, shall be cancelled without any
payment therefor) or (iii) take such other action as the Committee determines to be reasonable
under the circumstances to permit the Participant to realize the value of the Award (which value
for purposes of Awards that are not then exercisable or payable and that would not become
exercisable or payable as of the Control Change Date, and Options and SARs with respect to which
the Fair Market Value of the Common Stock subject to the Award does not exceed the Option price or
Initial Value, shall be deemed to be zero). The payment described in (ii) above may be made in any
manner the Committee determines, including cash, stock or other property. The Committee may take
the actions described in (i), (ii) or (iii) above with respect to Awards that are not then
exercisable or payable whether or not the Participant will receive any payment therefor. The
Committee in its discretion may take any of the actions described in this Section contingent on
consummation of the Change in Control and with respect to some or all outstanding Awards, whether
or not then exercisable or payable, or on an Award-by-Award basis, which actions need not be
uniform with respect to all outstanding Awards. However, Awards shall not be terminated to the
extent that written provision is made for their continuance, assumption or substitution by the
Company or a



17









 







successor employer or its parent or subsidiary in connection with the Change in Control. The
Committee may provide in an applicable Agreement that a Participant’s outstanding Awards shall be
fully exercisable or payable on and after a Control Change Date or immediately before the date the
Awards will be terminated in connection with the Change in Control, as described herein.



ARTICLE XII

QUALIFIED PERFORMANCE-BASED COMPENSATION





			
	12.01	 	Performance Conditions





     In accordance with the Plan, the Committee may prescribe that Awards will become exercisable,
nonforfeitable and transferable, and earned and payable, based on objectively determinable
performance conditions. Objectively determinable performance conditions are performance conditions
(i) that are established in writing (a) at the time of grant or (b) no later than the earlier of
(x) 90 days after the beginning of the period of service to which they relate and (y) before the
lapse of 25% of the period of service to which they relate; (ii) that are uncertain of achievement
at the time they are established and (iii) the achievement of which is determinable by a third
party with knowledge of the relevant facts. The performance conditions may include any or any
combination of the following (a) gross, operating or net earnings (income) before or after taxes;
(b) return on equity; (c) return on capital; (d) return on sales; (e) return on investments; (f)
return on assets or net assets; (g) earnings per share; (h) cash flow per share; (i) book value per
share; (j) gross margin; (k) customers; (l) cash flow or cash flow from operations; (m) Fair Market
Value of the Company or any Affiliate or shares of Common Stock; (n) share price or total
shareholder return; (o) market share; (p) level of expenses or other costs; (q) gross, operating or
net revenue; (r) EBIT; (s) Adjusted EBIT; (t) profitability; (u) EBITDA; (v) Adjusted EBIDTA; (w)
Free Cash Flow; or (x) peer group comparisons of any of the aforementioned performance conditions.
Performance conditions may be related to a specific customer or group of customers or geographic
region. The form of the performance conditions may be measured on a Company, Affiliate, division,
business unit, service line, segment or geographic basis or any combination thereof. Performance
goals may reflect absolute entity performance or a relative comparison of entity performance to the
performance of a peer group of entities or other external measure of the selected performance
conditions. Profits, earnings and revenues used for any performance condition measurement may
exclude any extraordinary or non-recurring items. The performance conditions may, but need not, be
based upon an increase or positive result under the aforementioned business criteria and could
include, for example and not by way of limitation, maintaining the status quo or limiting the
economic losses (measured, in each case, by reference to the specific business criteria). The
performance conditions may not include solely the mere continued employment of the Participant.
However, the Award may become exercisable, nonforfeitable and transferable or earned and payable
contingent on the Participant’s continued employment or service, and/or employment or service at
the time the Award becomes exercisable, nonforfeitable and transferable or earned and payable, in
addition to the performance conditions described above.



18









 









			
	12.02	 	Establishing the Amount of the Award





     The amount of the Award that will become exercisable, nonforfeitable and transferable or
earned and payable if the performance conditions are obtained (or an objective formula for, or
method of, computing such amount) also must be established at the time set forth in Section 12.01
above. Notwithstanding the preceding sentence, the Committee may, in its sole discretion, reduce
the amount of the Award that will become exercisable, nonforfeitable and transferable or earned and
payable, as applicable, if the Committee determines that such reduction is appropriate under the
facts and circumstances. In no event shall the Committee have the discretion to increase the amount
of the Award that will become exercisable, nonforfeitable and transferable or earned and payable.




			
	12.03	 	Earning the Award





     If the Committee, on the date of grant, prescribes that an Award shall become exercisable,
nonforfeitable and transferable or earned and payable only upon the attainment of any of the above
performance conditions, the Award shall become exercisable, nonforfeitable and transferable or
earned and payable only to the extent that the Committee certifies in writing that such conditions
have been achieved. An Award will not satisfy the requirements of this Article XII to constitute
“qualified performance-based compensation” if the facts and circumstances indicate the Award will
become exercisable, nonforfeitable and transferable or earned and payable regardless of whether the
performance conditions are attained. However, an Award does not fail to meet the requirements of
this Article XII merely because the Award would become exercisable, nonforfeitable and transferable
or earned and payable upon the Participant’s death or disability or upon a Change in Control,
although an Award that actually becomes exercisable, nonforfeitable and transferable or earned and
payable on account of those events prior to the attainment of the performance conditions would not
constitute “qualified performance-based compensation” under Code Section 162(m). In determining if
the performance conditions have been achieved, the Committee may adjust the performance targets in
the event of any unbudgeted acquisition, divestiture or other unexpected fundamental change in the
business of the Company, an Affiliate or business unit or in any product that is material taken as
a whole as appropriate to fairly and equitably determine if the Award is to become exercisable,
nonforfeitable and transferable or earned and payable pursuant to the conditions set forth in the
Award. Additionally, in determining if such performance conditions have been achieved, the
Committee also may adjust the performance targets in the event of any (i) unanticipated asset
write-downs or impairment charges, (ii) litigation or claim judgments or settlements thereof, (iii)
changes in tax laws, accounting principles or other laws or provisions affecting reported results,
(iv) accruals for reorganization or restructuring programs, or extraordinary non-reoccurring items
as described in Accounting Principles Board Opinion No. 30 or as described in management’s
discussion and analysis of the financial condition and results of operations appearing in the
Company’s Annual Report on Form 10-K for the applicable year, (v) acquisitions or dispositions or
(vi) foreign exchange gains or losses. To the extent any such adjustments affect Awards, the
intent is that they shall be in a form that allows the Award to continue to meet the requirements
of Section 162(m) of the Code for deductibility.



19









 









			
	12.04	 	Definitions of Performance Criteria 





     “Adjusted EBITDA” means EBITDA excluding charges associated with restructuring and exit
activities, stock-based compensation, intangible asset impairment, material severance obligations
and other unusual or extraordinary events.



     “Adjusted EBIT” means EBIT excluding charges associated with restructuring and exit
activities, stock-based compensation, intangible asset impairment, material severance obligations
and other unusual or extraordinary events.



     “EBIT” means earnings from continuing operations before interest and taxes.



     “EBITDA” means earnings from continuing operations before interest, taxes, depreciation and
amortization.



     “Free Cash Flow” means Adjusted EBITDA less capital expenditures.



ARTICLE XIII

ADJUSTMENT UPON CHANGE IN COMMON STOCK




     The maximum number of shares of Common Stock that may be issued pursuant to Awards, the terms
of outstanding Awards, and the per individual limitations on the number of shares of Common Stock
that may be issued pursuant to Awards shall be adjusted as the Committee shall determine to be
equitably required in the event (i) there occurs a reorganization, recapitalization, stock split,
spin-off, split-off, stock dividend, issuance of stock rights, combination of shares, merger,
consolidation, or distribution to stockholders other than a cash dividend; (ii) the Company engages
in a transaction Code Section 424 describes or (iii) there occurs any other transaction or event
which, in the judgment of the Board necessitates such action. In that respect, the Committee shall
make such adjustments as are necessary in the number or kind of shares of Common Stock or
securities which are subject to the Award, the exercise price or Initial Value of the Award, and
such other adjustments as are appropriate in the discretion of the Committee. Such adjustments may
provide for the elimination of fractional shares that might otherwise be subject to Awards without
any payment therefor. Notwithstanding the foregoing, the conversion of one or more outstanding
shares of preferred stock or convertible debentures that the Company may issue from time to time
into Common Stock shall not in and of itself require any adjustment under this Article XIII. In
addition, the Committee may make such other adjustments to the terms of any Awards to the extent
equitable and necessary to prevent an enlargement or dilution of the Participant’s rights
thereunder as a result of any such event or similar transaction. Any determination made under this
Article XIII by the Board shall be final and conclusive.



     The issuance by the Company of stock of any class, or securities convertible into stock of any
class, for cash or property, or for labor or services, either upon direct sale or upon the exercise
of rights or warrants to subscribe therefor, or upon conversion of stock or obligations of the
Company convertible into such stock or other securities, shall not affect, and no adjustment by
reason thereof shall be made with respect to, the maximum number of shares that may be



20









 







issued pursuant to Awards, the per individual limitations on the number of shares that may be
issued pursuant to Awards or the terms of outstanding Awards.



     The Committee may grant Awards in substitution for stock options, stock appreciation rights,
restricted stock, restricted stock units, incentive awards, or similar awards held by an individual
who becomes an employee of the Company or an Affiliate in connection with a transaction described
in the first paragraph of this Article XIII. Notwithstanding any provision of the Plan (other than
the limitation of Section 5.02), the terms of such substituted Awards shall be as the Committee, in
its discretion, determines is appropriate.



ARTICLE XIV

COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES





			
	14.01	 	Compliance





     No Option or SAR shall be exercisable, no Restricted Stock Award or Restricted Stock Unit
shall be granted, no shares of Common Stock shall be issued, no certificates for shares of Common
Stock shall be delivered, and no payment shall be made under this Plan except in compliance with
all applicable federal and state laws and regulations (including, without limitation, withholding
tax requirements), any listing agreement to which the Company is a party, and the rules of all
domestic stock exchanges on which the Company’s shares may be listed. The Company shall have the
right to rely on an opinion of its counsel as to such compliance. Any stock certificate evidencing
shares of Common Stock issued pursuant to an Award may bear such legends and statements as the
Committee may deem advisable to assure compliance with federal and state laws and regulations and
to reflect any other restrictions applicable to such shares as the Committee otherwise deems
appropriate. No Option or SAR shall be exercisable, no Restricted Stock Award or Restricted Stock
Unit shall be granted, no shares of Common Stock shall be issued, no certificate for shares of
Common Stock shall be delivered, and no payment shall be made under this Plan until the Company has
obtained such consent or approval as the Committee may deem advisable from regulatory bodies having
jurisdiction over such matters.




			
	14.02	 	Postponement of Exercise or Payment





     The Committee may postpone any grant, exercise, vesting or payment of an Award for such time
as the Committee in its sole discretion may deem necessary in order to permit the Company (i) to
effect, amend or maintain any necessary registration of the Plan or the shares of Common Stock
issuable pursuant to the Award under the securities laws; (ii) to take any action in order to (A)
list such shares of Common Stock or other shares of stock of the Company on a stock exchange if
shares of Common Stock or other shares of stock of the Company are not then listed on such exchange
or (B) comply with restrictions or regulations incident to the maintenance of a public market for
its shares of Common Stock or other shares of stock of the Company, including any rules or
regulations of any stock exchange on which the shares of Common Stock or other shares of stock of
the Company are listed; (iii) to determine that such shares of Common Stock in the Plan are exempt
from such registration or that no action of the kind referred to in (ii)(B) above needs to be
taken; (iv) to comply with any other applicable law, including without limitation, securities laws;
(v) to comply with any legal or contractual



21









 







requirements during any such time the Company or any Affiliate is prohibited from doing any of
such acts under applicable law, including without limitation, during the course of an investigation
of the Company or any Affiliate, or under any contract, loan agreement or covenant or other
agreement to which the Company or any Affiliate is a party or (vi) to otherwise comply with any
prohibition on such acts or payments during any applicable blackout period; and the Company shall
not be obligated by virtue of any terms and conditions of any Agreement or any provision of the
Plan to recognize the grant, exercise, vesting or payment of an Award or to grant, sell or issue
shares of Common Stock or make any such payments in violation of the securities laws or the laws of
any government having jurisdiction thereof or any of the provisions hereof. Any such postponement
shall not extend the term of the Award and neither the Company nor its directors and officers nor
the Committee shall have any obligation or liability to any Participant or to any other person with
respect to shares of Common Stock or payments as to which the Award shall lapse because of such
postponement.



     Additionally, the Committee may postpone any grant, exercise vesting or payment of an Award if
the Company reasonably believes the Company’s or any applicable Affiliate’s deduction with respect
to such Award would be limited or eliminated by application of Code Section 162(m) to the extent
permitted by Section 409A of the Code; provided, however, such delay will last only until the
earliest date at which the Company reasonably anticipates that the deduction with respect to the
Award will not be limited or eliminated by the application of Code Section 162(m) or the calendar
year in which the Participant separates from service.




			
	14.03	 	Forfeiture of Payment





     A Participant shall be required to forfeit any and all rights under Awards or to reimburse the
Company for any payment under any Award (with interest as necessary to avoid imputed interest or
original issue discount under the Code or as otherwise required by applicable law) to the extent
applicable law requires such forfeiture or reimbursement.



ARTICLE XV

LIMITATION ON BENEFITS




     Despite any other provisions of this Plan to the contrary, if the receipt of any payments or
benefits under this Plan would subject a Participant to tax under Code Section 4999, the Committee
may determine whether some amount of payments or benefits would meet the definition of a “Reduced
Amount.” If the Committee determines that there is a Reduced Amount, the total payments or benefits
to the Participant under all Awards must be reduced to such Reduced Amount, but not below zero. If
the Committee determines that the benefits and payments must be reduced to the Reduced Amount, the
Company must promptly notify the Participant of that determination, with a copy of the detailed
calculations by the Committee. All determinations of the Committee under this Article XV are final,
conclusive and binding upon the Company and the Participant. It is the intention of the Company and
the Participant to reduce the payments under this Plan only if the aggregate Net After Tax Receipts
to the Participant would thereby be increased. As result of the uncertainty in the application of
Code Section 4999 at the time of the initial determination by the Committee under this Article XV,
however, it is possible that amounts will have been paid under the Plan to or for the benefit of a
Participant which should not have been so paid (“Overpayment”) or that additional amounts which
will not



22









 







have been paid under the Plan to or for the benefit of a Participant could have been so paid
(“Underpayment”), in each case consistent with the calculation of the Reduced Amount. If the
Committee, based either upon the assertion of a deficiency by the Internal Revenue Service against
the Company or the Participant, which the Committee believes has a high probability of success, or
controlling precedent or other substantial authority, determines that an Overpayment has been made,
any such Overpayment must be treated for all purposes as a loan, to the extent permitted by
applicable law, which the Participant must repay to the Company together with interest at the
applicable federal rate under Code Section 7872(f)(2); provided, however, that no such loan may be
deemed to have been made and no amount shall be payable by the Participant to the Company if and to
the extent such deemed loan and payment would not either reduce the amount on which the Participant
is subject to tax under Code Section 1, 3101 or 4999 or generate a refund of such taxes. If the
Committee, based upon controlling precedent or other substantial authority, determines that an
Underpayment has occurred, the Committee must promptly notify the Company of the amount of the
Underpayment, which then shall be paid promptly to the Participant but no later than the end of the
Participant’s taxable year next following the Participant’s taxable year in which the determination
is made that the underpayment has occurred. For purposes of this Section, (i) “Net After Tax
Receipt” means the Present Value of a payment under this Plan net of all taxes imposed on
Participant with respect thereto under Code Sections 1, 3101 and 4999, determined by applying the
highest marginal rate under Code Section 1 which applies to the Participant’s taxable income for
the applicable taxable year; (ii) “Present Value” means the value determined in accordance with
Code Section 280G(d)(4) and (iii) “Reduced Amount” means the smallest aggregate amount of all
payments and benefits under this Plan which (a) is less than the sum of all payments and benefits
under this Plan and (b) results in aggregate Net After Tax Receipts which are equal to or greater
than the Net After Tax Receipts which would result if the aggregate payments and benefits under
this Plan were any other amount less than the sum of all payments and benefits to be made under
this Plan.



ARTICLE XVI

GENERAL PROVISIONS





			
	16.01	 	Effect on Employment and Service 





     Neither the adoption of this Plan, its operation, nor any documents describing or referring to
this Plan (or any part thereof), shall confer upon any individual or entity any right to continue
in the employ or service of the Company or an Affiliate or in any way affect any right and power of
the Company or an Affiliate to terminate the employment or service of any individual or entity at
any time with or without assigning a reason therefor.




			
	16.02	 	Unfunded Plan





     This Plan, insofar as it provides for Awards, shall be unfunded, and the Company shall not be
required to segregate any assets that may at any time be represented by Awards under this Plan. Any
liability of the Company to any person with respect to any Award under this Plan shall be based
solely upon any contractual obligations that may be created pursuant to this Plan. No such
obligation of the Company shall be deemed to be secured by any pledge of, or other encumbrance on,
any property of the Company.



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	16.03	 	Rules of Construction 





     Headings are given to the articles and sections of this Plan solely as a convenience to
facilitate reference. The reference to any statute, regulation, or other provision of law shall be
construed to refer to any amendment to or successor of such provision of law.




			
	16.04	 	Tax Withholding and Reporting





     Unless an Agreement provides otherwise, each Participant shall be responsible for satisfying
in cash or cash equivalent acceptable to the Committee any income and employment (including without
limitation Social Security and Medicare) tax withholding obligations attributable to participation
in the Plan and the grant, exercise, vesting or payment of Awards granted thereunder (including the
making of a Code Section 83(b) election with respect to an Award). In accordance with procedures
that the Committee establishes, the Committee, to the extent applicable law permits, may allow a
Participant to pay such amounts (i) by surrendering (actually or by attestation) shares of Common
Stock that the Participant already owns and, if necessary to avoid adverse accounting consequences,
has held for at least six months (but only for the minimum required withholding); (ii) by a
cashless exercise through a broker; (iii) by means of a “net exercise” procedure, (iv) by such
other medium of payment as the Committee in its discretion shall authorize or (v) by any
combination of the aforementioned methods of payment. The Company shall comply with all such
reporting and other requirements relating to the administration of this Plan and the grant,
exercise, vesting or payment of any Award hereunder as applicable law requires. Nevertheless,
shares of Common Stock that the Company reacquires in connection with any tax withholding will
still be deemed issued and will not be available for issuance pursuant to future Awards under the
Plan.




			
	16.05	 	Reservation of Shares.





     The Company, during the term of this Plan, shall at all times reserve and keep available such
number of shares of Common Stock as shall be sufficient to satisfy the requirements of the Plan.
Additionally, the Company, during the term of this Plan, shall use its best efforts to seek to
obtain from appropriate regulatory agencies any requisite authorizations needed in order to issue
and to sell such number of shares of Common Stock as shall be sufficient to satisfy the
requirements of the Plan. However, the inability of the Company to obtain from any such regulatory
agency the requisite authorizations the Company’s counsel deems to be necessary for the lawful
issuance and sale of any shares of Common Stock hereunder, or the inability of the Company to
confirm to its satisfaction that any issuance and sale of any shares of Common Stock hereunder will
meet applicable legal requirements, shall relieve the Company of any liability in respect to the
failure to issue or to sell such shares of Common Stock as to which such requisite authority shall
not have been obtained.




			
	16.06	 	Governing Law.





     This Plan and all Awards granted hereunder shall be governed by the laws of the State of
Georgia, except to the extent federal law applies.



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	16.07	 	Other Actions





     Nothing in the Plan shall be construed to limit the authority of the Company to exercise its
corporate rights and powers, including, by way of illustration and not by way of limitation, the
right to grant options, stock appreciation rights, restricted stock awards, incentive awards or
restricted stock units for proper corporate purposes otherwise than under the Plan to any employee
or to any other person, firm, corporation, association or other entity, or to grant options, stock
appreciation rights, restricted stock awards, incentive awards or restricted stock units to, or
assume such awards of any person in connection with, the acquisition, purchase, lease, merger,
consolidation, reorganization or otherwise, of all or any part of the business and assets of any
person, firm, corporation, association or other entity.




			
	16.08	 	Repurchase of Common Stock





     The Company or its designee may have the option and right to purchase any Award or any shares
of Common Stock issued pursuant to any Award in accordance with the terms and conditions set forth
in the applicable Agreement. However, shares of Common Stock repurchased pursuant to an Agreement
will still be deemed issued pursuant to the Plan and will not be available for issuance pursuant to
future Awards under the Plan.




			
	16.09	 	Other Conditions





     The Committee, in its discretion, may, as a condition to the grant, exercise, payment or
settlement of an Award, require the Participant on or before the date of grant, exercise, payment
or settlement of the Award to enter into (i) a covenant not to compete (including a
confidentiality, non-solicitation, non-competition or other similar agreement) with the Company or
any Affiliate, which may become effective on the date of termination of employment or service of
the Participant with the Company or any Affiliate or any other date the Committee may specify and
shall contain such terms and conditions as the Committee shall otherwise specify, (ii) an agreement
to cancel any other employment agreement, service agreement, fringe benefit or compensation
arrangement in effect between the Company or any Affiliate and such Participant and/or (iii) a
shareholders’ agreement with respect to shares of Common Stock to be issued pursuant to the Award.
If the Participant shall fail to enter into any such agreement at the Committee’s request, then no
Award shall be granted, exercised, paid or settled and the number of shares of Common Stock that
would have been subject to such Award, if any, shall be added to the remaining shares of Common
Stock available under the Plan.




			
	16.10	 	Forfeiture Provisions





     Notwithstanding any other provisions of the Plan or any Agreement, all rights to any Award
that a Participant has will be immediately discontinued and forfeited, and the Company shall not
have any further obligation hereunder to the Participant with respect to any Award and the Award
will not be exercisable (whether or not previously exercisable) or become vested or payable on and
after the time the Participant is discharged from employment or service with the Company or any
Affiliate for Cause.



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	16.11	 	Repricing of Awards





     Notwithstanding any other provisions of this Plan, this Plan does not permit (i) any decrease
in the exercise price or base value of any outstanding Awards, (ii) the issuance of any replacement
Options or SARs, which shall be deemed to occur if a Participant agrees to forfeit an existing
Option or SAR in exchange for a new Option or SAR with a lower exercise price or base value, or
(iii) the Company to repurchase underwater or out-of-the-money Options or SARs, which shall be
deemed to be those Options or SARs with exercise prices or base values in excess of the current
Fair Market Value of the shares of Common Stock underlying the Option or SAR.




			
	16.12	 	Legends; Payment of Expenses





     The Company may endorse such legend or legends upon the certificates for shares of Common
Stock issued upon the grant or exercise of an Award and may issue such “stop transfer” instructions
to its transfer agent in respect of such shares as it determines, in its sole discretion, to be
necessary or appropriate to (i) prevent a violation of, or to perfect an exemption from, the
registration requirements under the Exchange Act, applicable state securities laws or other
requirements, (b) implement the provisions of the Plan or any Agreement between the Company and the
Participant with respect to such shares of Common Stock, (c) permit the Company to determine the
occurrence of a “disqualifying disposition” as described in Section 421(b) of the Code of the
shares of Common Stock transferred upon the exercise of an incentive stock option granted under the
Plan or (d) as may be appropriate to continue an Award’s exemption or compliance with Section 409A
of the Code. The Company shall pay all issuance taxes with respect to the issuance of shares of
Common Stock upon the grant or exercise of the Award, as well as all fees and expenses incurred by
the Company in connection with such issuance.



ARTICLE XVII

CLAIMS PROCEDURES 




     If a Participant has exercised an Option or a SAR or if shares of Restricted Stock have become
vested or Restricted Stock Units or Incentive Awards have become payable, and the Participant has
not received the benefits to which the Participant believes he or she is entitled under such Award,
then the Participant must submit a written claim for such benefits to the Committee within 90 days
of the date the Participant tried to exercise the Option or SAR, the date the Participant contends
the Restricted Stock vested or the date the Participant contends the Restricted Stock Units or
Incentive Awards became payable or the claim will be forever barred.



     If a claim of a Participant is wholly or partially denied, the Participant or his duly
authorized representative may appeal the denial of the claim to the Committee. Such appeal must be
made at any time within 30 days after the Participant receives written notice from the Company of
the denial of the claim. In connection therewith, the Participant or his duly authorized
representative may request a review of the denied claim, may review pertinent documents, and may
submit issues and comments in writing. Upon receipt of an appeal, the Committee shall make a
decision with respect to the appeal and, not later than 60 days after receipt of such request for
review, shall furnish the Participant with the decision on review in writing, including the
specific reasons for the decision written in a manner calculated to be



26









 







understood by the Participant, as well as specific references to the pertinent provisions of
the Plan upon which the decision is based.



     The Committee has the discretionary and final authority under the Plan to determine the
validity of a claim. Accordingly, any decision the Committee makes on a Participant’s appeal will
be administratively final. If a Participant disagrees with the Committee’s final decision, the
Participant may sue, but only after the claim on appeal has been denied. Any lawsuit must be filed
within 90 days of receipt of the Committee’s final written denial of the Participant’s claim or the
claim will be forever barred.



ARTICLE XVIII

AMENDMENT




     The Board may amend or terminate this Plan at any time; provided, however, that no amendment
to the Plan may adversely impair the rights of a Participant with respect to outstanding Awards
without the Participant’s consent. In addition, an amendment will be contingent on approval of the
Company’s stockholders, to the extent required by law or by the rules of any stock exchange on
which the Company’s securities are traded or if the amendment would (i) increase the benefits
accruing to Participants under the Plan, including without limitation, any amendment to the Plan or
any Agreement to permit a repricing or decrease in the exercise price of any outstanding Awards,
(ii) increase the aggregate number of shares of Common Stock that may be issued under the Plan,
(iii) modify the requirements as to eligibility for participation in the Plan or, (iv) change the
performance conditions set forth in Article XII. Additionally, to the extent the Board deems
necessary to continue to comply with the performance-based exception to the deduction limits of
Code Section 162(m), the Board will submit the material terms of the performance conditions set
forth in Article XII to the Company’s stockholders for approval no later than the first stockholder
meeting that occurs in the fifth year following the year in which the stockholders previously
approved the performance objectives.



     The Committee may amend any outstanding Awards to the extent it deems appropriate; provided,
however, that no amendment to an outstanding Award may adversely impair the rights of a Participant
without the Participant’s consent.



ARTICLE XIX

DURATION OF PLAN




     No Award may be granted under this Plan on and after March 24, 2018 (10 years following the
effective date of the Plan). Awards granted before that date shall remain valid in accordance with
their terms.



ARTICLE XX

EFFECTIVE DATE OF PLAN




     The Plan is effective on March 25, 2008, the date of adoption by the Board, contingent,
however, on approval of the Plan by the Company’s stockholders within 12 months of such date.
Awards, other than Restricted Stock, may be granted under this Plan as of the effective date,
provided that no Award shall be effective, exercisable, vested, earned or payable unless the



27









 







Company’s stockholders approve the Plan within 12 months of the Board’s adoption of the Plan.
Restricted Stock may only be granted after the Company’s stockholders approve the Plan.



ARTICLE XXI

OMNIBUS SECTION 409A PROVISION




     It is intended that Awards that are granted under the Plan shall either be exempt from
treatment as “deferred compensation” subject to Section 409A of the Code. Towards that end, all
Awards under the Plan are intended to contain such terms as will qualify the Awards for an
exemption from Section 409A of the Code. The terms of the Plan and all Awards granted hereunder
shall be construed consistent with the foregoing intent. Notwithstanding any other provision
hereof, the Committee may amend any outstanding Award without Participant’s consent if, as
determined by the Committee in its sole discretion, such amendment is required either to (i)
confirm exemption under Section 409A of the Code, (ii) comply with Section 409A of the Code or
(iii) prevent the Participant from being subject to any tax or penalty under Section 409A of the
Code. Notwithstanding the foregoing, however, neither the Company nor any of its Affiliates nor
the Committee shall be liable to a Participant or any other Person if an Award is subject to
Section 409A of the Code or the Participant or any other Person is otherwise subject to any
additional tax or penalty under Section 409A of the Code. Each Participant is solely responsible
for the payment of any tax liability (including any taxes and penalties that may arise under
Section 409A of the Code) that may result from an Award.




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