Exhibit 10.3


 


SCIENTIFIC
GAMES CORPORATION


 


2003 Incentive
Compensation Plan


As Amended and
Restated


 


1.  Purpose.  The purpose of this 2003 Incentive
Compensation Plan, as amended and restated (the “Plan”), is to assist
Scientific Games Corporation, a Delaware corporation (the “Company”), and its
subsidiaries in attracting, retaining, motivating and rewarding executives,
directors, employees, and other persons who provide services to the Company
and/or its subsidiaries, to provide for equitable and competitive compensation
opportunities, to encourage long-term service, to recognize individual
contributions and reward achievement of Company goals, and promote the creation
of long-term value for stockholders by closely aligning the interests of
participants with those of stockholders. The Plan authorizes stock-based and
cash-based performance incentives for participants, to encourage such persons
to expend their maximum efforts in the creation of stockholder value. The Plan
is also intended to qualify certain compensation awarded under the Plan for tax
deductibility under Section 162(m) of the Internal Revenue Code to
the extent deemed appropriate by the Committee which administers the Plan.


 


2.  Definitions.  For purposes of the Plan, the following terms
shall be defined as set forth below, in addition to such terms defined in Section 1
hereof:


 


(a) “Additional Shares” has the meaning
ascribed to such term in Section 4(a) of the Plan.


 


(b) “Annual Incentive Award” means a
type of Performance Award granted to a Participant under Section 7(c) representing
a conditional right to receive cash, Stock or other Awards or payments, as
determined by the Committee, based on performance in a performance period of
one fiscal year or a portion thereof.


 


(c) “Award” means any award of an
Option, SAR (including Limited SAR), Restricted Stock, Deferred Stock, Stock
granted as a bonus or in lieu of another award, Dividend Equivalent, Other
Stock-Based Award, or Performance Award (including an Annual Incentive Award)
together with any other right or interest granted to a Participant under the
Plan.


 


(d) “Beneficiary” means the person,
persons, trust, or trusts which have been designated by a Participant in his or
her most recent written beneficiary designation filed with the Committee to
receive the benefits specified under the Plan upon such Participant’s death or
to which Awards or other rights are transferred if and to the extent permitted
under Section 10(b) hereof. If, upon a Participant’s death, there is
no designated Beneficiary or surviving designated Beneficiary, then the term
Beneficiary means person, persons, trust, or trusts entitled by will or the
laws of descent and distribution to receive such benefits.


 


(e) “Beneficial Owner” shall have the
meaning ascribed to such term in Rule 13d-3 under the Exchange Act and any
successor to such Rule.


 


(f) “Board” means the Company’s Board of
Directors.


 


(g) “Change in Control” means Change in
Control as defined with related terms in Section 9 of the Plan.


 


(h) “Change in Control Price” means the
amount calculated in accordance with Section 9(c) of the Plan.


 


(i) “Code” means the Internal Revenue
Code of 1986, as amended from time to time, including regulations thereunder
and successor provisions and regulations, proposed regulations and other
applicable guidance or pronouncement of the Department of the Treasury and
Internal Revenue Service.


 

















 


(j) “Committee” means the Compensation
Committee of the Board of Directors, the composition and governance of which is
established in the Committee’s Charter as approved from time to time by the
Board and other corporate governance documents of the Company. No action of the
Committee shall be void or deemed to be without authority due to the failure of
any member, at the time the action was taken, to meet any qualification
standard set forth in the Committee Charter or this Plan.


 


(k) “Covered Employee” means a person
designated by the Committee as likely to be a “covered employee,” as defined
under Code Section 162(m), with respect to a specified fiscal year or
other performance period.


 


(l) “Deferred Stock” means a conditional
right, granted to a Participant under Section 6(e) hereof, to receive
Stock, at the end of a specified deferral period.


 


(m) “Dividend Equivalent” means a
conditional right, granted to a Participant under Section 6(g), to receive
cash, Stock, other Awards, or other property equal in value to dividends paid
with respect to a specified number of shares of Stock, or other periodic
payments.


 


(n) “Effective Date” means June 23,
2003.


 


(o) “Eligible Person” means each
executive officer and other officer or full-time employee of the Company or of
any subsidiary, including each such person who may also be a director of the
Company, each non-employee director of the Company, each other person who
provides substantial services to the Company and/or its subsidiaries and who is
designated as eligible by the Committee, and any person who has been offered
employment by the Company or a subsidiary or affiliate, provided that such
prospective employee may not receive any payment or exercise any right relating
to an Award until such person has commenced employment with the Company or a
subsidiary. An employee on leave of absence may be considered as still in the
employ of the Company or a subsidiary for purposes of eligibility for
participation in the Plan.


 


(p) “Exchange Act” means the Securities
Exchange Act of 1934, as amended from time to time, including rules thereunder
and successor provisions and rules thereto.


 


(q) “Fair Market Value” means the fair
market value of Stock, Awards, or other property as determined in good faith by
the Committee or under procedures established by the Committee. Unless
otherwise determined by the Committee, the Fair Market Value of Stock shall be
the average of the high and low sales prices of Stock on a given date or, if
there are no sales on that date, on the latest previous date on which there
were sales, reported for composite transactions in securities listed on the
principal trading market on which Stock is then listed. Fair Market Value
relating to the exercise price or grant price of any Non-409A Option or SAR
shall conform to requirements under Code Section 409A.


 


(r) “409A Awards” means Awards that
constitute a deferral of compensation under Code Section 409A and
regulations thereunder. “Non-409A Awards” means Awards other than 409A Awards;
an Award granted before January 1, 2005 which is eligible for “grandfathering”
under Code Section 409A (generally such an Award must be vested before January 1,
2005 in order to be grandfathered) constitutes a Non-409A Award unless the
Committee instead designates it as a 409A Award. Although the Committee retains
authority under the Plan to grant Options, SARs and Restricted Stock on terms
that will qualify those Awards as 409A Awards, Options, SARs exercisable for
Stock, and Restricted Stock will be Non-409A Awards (with conforming terms, as
provided in Section 10(h)) unless otherwise expressly specified by the
Committee.


 


(s) “Full-Value Awards” has the meaning ascribed
to such term in Section 4(a) of the Plan.


 


(t) “Incentive Stock Option” or “ISO”
means any Option intended to be and designated as an incentive stock option
within the meaning of Code Section 422 or any successor provision thereto
that may be granted to Eligible Persons who are employees.


 

















 


(u) “Initial Shares” has the meaning
ascribed to such term in Section 4(a) of the Plan.


 


(v) “Limited SAR” means a conditional
right granted to a Participant under Section 6(c) hereof.


 


(w) “Option” means a conditional right,
granted to a Participant under Section 6(b) hereof, to purchase Stock
or other Awards at a specified price during specified time periods.


 


(x) “Other Stock-Based Awards” means
Awards granted to a Participant under Section 6(h) hereof.


 


(y) “Participant” means a person who has
been granted an Award under the Plan which remains outstanding, including a
person who is no longer an Eligible Person.


 


(z) “Performance Award” means a
conditional right, granted to a Participant under Section 7, to receive
cash, Stock or other Awards or payments, as determined by the Committee, based
upon performance criteria specified by the Committee.


 


(aa) “Preexisting Plan” mean the Company’s
1997 Incentive Compensation Plan, as amended and restated.


 


(bb) “Restricted Stock” means Stock
granted to a Participant under Section 6(d) hereof, that is subject
to certain restrictions and to a risk of forfeiture.


 


(cc) “Rule 16b-3” means Rule 16b-3,
as from time to time in effect and applicable to the Plan and Participants,
promulgated by the Securities and Exchange Commission under Section 16 of
the Exchange Act.


 


(dd) “Stock” means the Company’s Class A
Common Stock, $.01 par value, and such other securities as may be substituted
(or resubstituted) for Stock pursuant to Section 10(c) hereof.


 


(ee) “Stock Appreciation Rights” or “SAR”
means a conditional right granted to a Participant under Section 6(c) hereof.


 


3.  Administration.


 


(a) Authority of the Committee.  Except as otherwise provided below, the Plan
shall be administered by the Committee. The Committee shall have full and final
authority, in each case subject to and consistent with the provisions of the
Plan, to select Eligible Persons to become Participants, grant Awards,
determine the type, number, and other terms and conditions of, and all other
matters relating to, Awards, prescribe Award agreements (which need not be
identical for each Participant) and rules and regulations for the
administration of the Plan, construe and interpret the Plan and Award
agreements and correct defects, supply omissions, or reconcile inconsistencies
therein, and to make all other decisions and determinations as the Committee
may deem necessary or advisable for the administration of the Plan. The
foregoing notwithstanding, the Board shall perform the functions of the
Committee for purposes of granting Awards under the Plan to non-employee
directors, and may perform any function of the Committee under the Plan for any
other purpose (subject to Nasdaq Marketplace Rule 4350(c)(3)), including
for the purpose of ensuring that transactions under the Plan by Participants
who are then subject to Section 16 of the Exchange Act in respect of the
Company are exempt under Rule 16b-3. In any case in which the Board is
performing a function of the Committee under the Plan, each reference to the
Committee herein shall be deemed to refer to the Board, except where the
context otherwise requires. Any action of the Committee shall be final,
conclusive and binding on all persons, including the Company, its subsidiaries,
Participants, Beneficiaries, transferees under Section 10(b) hereof,
or other persons claiming rights from or through a Participant, and
stockholders.


 


(b) Manner of Exercise of Committee
Authority.  The Committee may act through
subcommittees, including for purposes of perfecting exemptions under Rule 16b-3
or qualifying Awards under Code Section 162(m) as performance-based
compensation, in which case the subcommittee shall be subject to and have
authority under the charter applicable to the Committee, and the acts of the
subcommittee shall


 

















 


be deemed to be acts of the Committee hereunder. The express grant of
any specific power to the Committee, and the taking of any action by the
Committee, shall not be construed as limiting any power or authority of the
Committee. The Committee may delegate to officers or managers of the Company or
any subsidiary or affiliate, or committees thereof, the authority, subject to
such terms as the Committee shall determine, to perform such functions, including
administrative functions, as the Committee may determine, to the fullest extent
permitted under Section 157 and other applicable provisions of the
Delaware General Corporation Law. The Committee may appoint agents to assist it
in administering the Plan.


 


(c) Limitation of Liability.  The Committee and each member thereof, and
any person acting pursuant to authority delegated by the Committee, shall be
entitled, in good faith, to rely or act upon any report or other information
furnished by any executive officer, other officer or employee of the Company or
a subsidiary or affiliate, the Company’s independent auditors, consultants or
any other agents assisting in the administration of the Plan. Members of the
Committee, any person acting pursuant to authority delegated by the Committee,
and any officer or employee of the Company or a subsidiary or affiliate acting
at the direction or on behalf of the Committee or a delegee shall not be
personally liable for any action or determination taken or made in good faith
with respect to the Plan, and shall, to the extent permitted by law, be fully
indemnified and protected by the Company with respect to any such action or
determination.


 


4.  Shares Available Under the Plan.


 


(a) Number of Shares Available for
Delivery.  Subject to adjustment as
provided in Section 10(c) hereof, the total number of shares of Stock
reserved and available for delivery in connection with Awards under the Plan
shall be (i) 8,500,000 plus the number of shares that, under the
Preexisting Plan, were available at the Effective Date or thereafter have or
will become available (the “Initial Shares”), provided that the maximum number
of Initial Shares available for delivery in connection with Awards other than
Options, SARs and Dividend Equivalents paid in cash (collectively, “Full-Value
Awards”) that were outstanding on April 24, 2008 or thereafter become
outstanding shall be 2,000,000, plus (ii) 3,000,000 (the “Additional
Shares”), provided that the maximum number of Additional Shares available for
delivery in connection with Full-Value Awards under the Plan shall be
1,250,000. Any shares of Stock delivered under the Plan shall consist of
authorized and unissued shares or treasury shares.


 


(b) Share Counting Rules.  Subject to the provisions of this Section 4(b),
the Committee may adopt reasonable counting procedures to ensure appropriate
counting, avoid double counting (as, for example, in the case of tandem or
substitute awards) and make adjustments if the number of shares of Stock
actually delivered differs from the number of shares previously counted in
connection with an Award. Any shares which are (i) underlying an Option or
SAR which is cancelled or terminated without having been exercised, including
due to expiration or forfeiture, (ii) subject to Full-Value Awards which
are cancelled, terminated or forfeited, (iii) not delivered to a
Participant because all or a portion of the Full-Value Awards is settled in
cash or (iv) withheld in connection with a Full-Value Award to satisfy tax
withholding obligations, shall in each case again be available for Awards under
the Plan (with shares subject to Full-Value Awards again available for those
types of Awards); provided, however, that shares shall not become available
under this Section 4(b) in an event that would constitute a “material
amendment” of the Plan subject to shareholder approval under Marketplace Rule 4350(i) and
other applicable rules of the


 

















 


Nasdaq National Market. Notwithstanding the foregoing, any shares
subject to an Option or SAR shall be deemed to be delivered upon exercise with
respect to the underlying shares even if the net number of shares delivered to
the Participant is less than the number of shares underlying the Award (as
would occur, for example, upon a net exercise of Options, upon a settlement of
SARs in cash or for a net number of shares, upon a stock-for-stock exercise of
Options or upon share withholding to satisfy tax obligations upon exercise of
Options or SARs). Shares repurchased on the open market with the proceeds from
the exercise of an Option may not again be made available for Awards under the
Plan. For purposes of determining the number of Shares that become available
under the Preexisting Plan, the share counting rules of this Plan shall
apply. The payment of cash dividends and Dividend Equivalents in conjunction
with outstanding Awards shall not be counted against the shares available for
Awards under the Plan. In addition, in the case of any Award granted in
substitution for an award of a company or business acquired by the Company or a
subsidiary or affiliate, shares issued or issuable in connection with such
substitute Award shall not be counted against the number of shares reserved
under the Plan, but shall be available under the Plan by virtue of the Company’s
assumption of the plan or arrangement of the acquired company or business. This
Section 4(b) shall apply to the number of shares reserved and
available for ISOs only to the extent consistent with applicable regulations
relating to ISOs under the Code. Because shares will count against the number
reserved in Section 4(a) upon delivery (or later vesting) and subject
to the share counting rules under this Section 4(b), the Committee
may determine that Awards may be outstanding that relate to more shares than
the aggregate remaining available under the Plan, so long as Awards will not
result in delivery and vesting of shares in excess of the number then available
under the Plan.


 


5.  Eligibility; Per-Person Award
Limitations.


 


(a) Grants to Eligible Persons.  Awards may be granted under the Plan only to
Eligible Persons.


 


(b) Annual Per-Person Award
Limitations.  In each calendar year
during any part of which the Plan is in effect, an Eligible Person may be
granted Awards under each of Sections 6(b), 6(c), 6(d), 6(e), 6(f), 6(g),
and 6(h) (including Performance Awards under Section 7 based on
Awards authorized by each referenced subsection) relating to a number of shares
of Stock up to his or her Annual Limit. A Participant’s Annual Limit, in any
year during any part of which the Participant is then eligible under the Plan,
shall equal 1,500,000 shares plus the amount of the Participant’s unused Annual
Limit relating to the same type of Award as of the close of the previous year,
subject to adjustment as provided in Section 10(c). In the case of a
cash-denominated Award for which the limitation set forth in the preceding
sentence would not operate as an effective limitation satisfying Treasury
Regulation 1.162-27(e)(4) (including a cash Performance Award under Section 7),
an Eligible Person may not be granted Awards authorizing the earning during any
calendar year of an amount that exceeds the Participant’s Annual Limit, which
for this purpose shall equal $3,000,000 plus the amount of the Participant’s
unused cash Annual Limit as of the close of the previous year (this limitation
is separate and not affected by the number of Awards granted during such
calendar year subject to the limitation in the preceding sentence). For this
purpose, (i) “earning” means satisfying performance conditions so that an
amount becomes payable, without regard to whether it is to be paid currently or
on a deferred basis or continues to be subject to any service requirement or
other non-performance condition, and (ii) a Participant’s Annual Limit is
used to the extent a cash amount or number of shares may be potentially earned
or paid under an Award, regardless of whether such amount or shares are in fact
earned or paid.


 

















 


6.  Specific Terms of Awards.


 


(a) General.  Awards may be granted on the terms and
conditions set forth in this Section 6. In addition, the Committee may
impose on any Award or the exercise thereof, at the date of grant or thereafter
(subject to Sections 10(e) and 10(h)), such additional terms and
conditions, not inconsistent with the provisions of the Plan, as the Committee
shall determine, including terms requiring forfeiture of Awards in the event of
termination of employment by the Participant and terms permitting a Participant
to make elections relating to his or her Award. The Committee shall retain full
power and discretion to accelerate, waive or modify, at any time, any term or
condition of an Award that is not mandatory under the Plan. The Committee shall
require the payment of lawful consideration for an Award to the extent
necessary to satisfy the requirements of the Delaware General Corporation Law,
and may otherwise require payment of consideration for an Award except as
limited by the Plan.


 


(b) Options.  The Committee is authorized to grant Options
to Participants on the following terms and conditions:


 


(i) Exercise Price.  The exercise price per share of Stock
purchasable under an Option shall be determined by the Committee, provided that
such exercise price shall be not less than the Fair Market Value of a share of
Stock on the date of grant of such Option except as provided under Section 8(a) hereof.
In addition, in connection with a merger, consolidation or reorganization of
the Company or any of its subsidiaries, the Committee may grant Options with an
exercise price per share less than the market value of the Common Stock on the
date of grant if such Options are granted in exchange for, or upon conversion
of, options to purchase capital stock of any other entity which is a party to
such merger, consolidation or reorganization.


 


(ii) Time and Method of
Exercise.  The Committee shall determine
the time or times at which or the circumstances under which an Option may be
exercised in whole or in part (including based on achievement of performance goals
and/or future service requirements), the methods by which such exercise price
may be paid or deemed to be paid, the form of such payment (subject to Section 10(h) and
(i)), including, without limitation, cash, Stock (including Stock deliverable
upon exercise, if such withholding will not result in additional accounting
expense to the Company), other Awards or awards granted under other plans of
the Company or any subsidiary or affiliate, or other property (including
through broker-assisted “cashless exercise” arrangements, to the extent
permitted by applicable law), and the methods by or forms in which Stock will
be delivered or deemed to be delivered in satisfaction of Options to
Participants (including, to the extent permitted under Code Section 409A,
deferred delivery of shares as mandated by the Committee, with such deferred
shares subject to any vesting, forfeiture or other terms as the Committee may
specify).


 


(iii) ISOs.  The terms of any ISO granted under the Plan
shall comply in all respects with the provisions of Code Section 422.
Anything in the Plan to the contrary notwithstanding, no term of the Plan
relating to ISOs (including any SAR in tandem therewith) shall be interpreted,
amended or altered, nor shall any discretion or authority granted under the
Plan be exercised, so as to disqualify either the Plan or any ISO under Code Section 422,
unless the Participant has first consented to the change that will result in
such disqualification. ISOs may be granted only to employees of the Company or
any of its subsidiaries. To the extent that the aggregate Fair Market Value
(determined as of the time the Option is granted) of the Stock with respect to
which ISOs granted under this Plan and all other plans of the Company and any
subsidiary are first exercisable by any employee during any calendar year shall
exceed the maximum limit (currently, $100,000), if any, imposed from time to
time under Code Section 422, such Options shall be treated as Options that
are not ISOs.


 

















 


(c) Stock Appreciation Rights.  The Committee is authorized to grant SARs to
Participants on the following terms and conditions:


 


(i) Right to Payment.  A SAR shall confer on the Participant to whom
it is granted a right to receive, upon exercise thereof, the excess of (A) the
Fair Market Value of one share of Stock on the date of exercise (or, in the
case of a “Limited SAR,” the Fair Market Value determined by reference to the
Change in Control Price, as defined under Section 9(c) hereof) over (B) the
grant price of the SAR as determined by the Committee, which grant price shall
be not less than the Fair Market Value of a share of Stock on the date of grant
of such SAR.


 


(ii) Other Terms.  The Committee shall determine, at the date of
grant or thereafter, the term of each SAR, provided that in no event shall the
term of an SAR exceed a period of ten years from the date of grant, the time or
times at which and the circumstances under which an SAR may be exercised in
whole or in part (including based on achievement of performance goals and/or future
service requirements), the method of exercise, method of settlement, form of
consideration payable in settlement, method by or forms in which Stock will be
delivered or deemed to be delivered to Participants, whether or not an SAR
shall be in tandem or in combination with any other Award, whether or not the
SAR will be a 409A Award or Non-409A Award (cash SARs will in all cases be 409A
Awards), and any other terms and conditions of any SAR. Limited SARs that may
only be exercised in connection with a Change in Control, termination of
service following a Change in Control, or other event as specified by the
Committee may be granted on such terms, not inconsistent with this Section 6(c),
as the Committee may determine. SARs and Limited SARs may be either freestanding
or in tandem with other Awards. The Committee may require that an outstanding
Option be exchanged for an SAR exercisable for Stock having vesting,
expiration, and other terms substantially the same as the Option, so long as
such exchange will not result in additional accounting expense to the Company.


 


(d) Restricted Stock.  The Committee is authorized to grant
Restricted Stock to Participants on the following terms and conditions:


 


(i) Grant and
Restrictions.  Restricted Stock shall be
subject to such restrictions on transferability, risk of forfeiture and other
restrictions, if any, as the Committee may impose, which restrictions may lapse
separately or in combination at such times, under such circumstances (including
based on achievement of performance goals and/or future service requirements),
in such installments or otherwise, as the Committee may determine at the date
of grant or thereafter. Except to the extent restricted under the terms of the
Plan and any Award agreement relating to the Restricted Stock, a Participant
granted Restricted Stock shall have all of the rights of a stockholder,
including the right to vote the Restricted Stock and the right to receive
dividends thereon (subject to any mandatory reinvestment or other requirement imposed
by the Committee). During the restricted period applicable to the Restricted
Stock, subject to Section 10(b) below, the Restricted Stock may not
be sold, transferred, pledged, hypothecated, margined, or otherwise encumbered
by the Participant.


 


(ii) Forfeiture.  Except as otherwise determined by the
Committee, upon termination of employment during the applicable restriction
period, Restricted Stock that is at that time subject to restrictions shall be
forfeited and reacquired by the Company; provided that the Committee may
provide, by rule or regulation or in any Award agreement, or may determine
in any individual case, that restrictions or forfeiture conditions relating to
Restricted Stock shall be waived in whole or in part in the event of terminations
resulting from specified causes, and the Committee may in other cases waive in
whole or in part the forfeiture of Restricted Stock.


 


(iii) Certificates for
Stock.  Restricted Stock granted under
the Plan may be evidenced in such manner as the Committee shall determine. If
certificates representing Restricted Stock are registered in the name of the
Participant, the Committee may require that such certificates bear an
appropriate legend referring to the terms, conditions and restrictions
applicable to such Restricted Stock, that the 


 

















 


Company retain physical possession of the
certificates, and/or that the Participant deliver a stock power to the Company,
endorsed in blank, relating to the Restricted Stock.


 


(iv) Dividends and
Splits.  As a condition to the grant of
an Award of Restricted Stock, the Committee may require that any cash dividends
paid on a share of Restricted Stock be automatically reinvested in additional
shares of Restricted Stock or applied to the purchase of additional Awards
under the Plan. Unless otherwise determined by the Committee, Stock distributed
in connection with a Stock split or Stock dividend, and other property
distributed as a dividend, shall be subject to restrictions and a risk of
forfeiture to the same extent as the Restricted Stock with respect to which
such Stock or other property has been distributed.


 


(e) Deferred Stock.  The Committee is authorized to grant Deferred
Stock to Participants, which are rights to receive Stock at the end of a
specified deferral period, subject to the following terms and conditions:


 


(i) Award and
Restrictions.  Settlement of an Award of
Deferred Stock shall occur upon expiration of the deferral period specified for
such Deferred Stock by the Committee (or, if permitted by the Committee, as
elected by the Participant). In addition, Deferred Stock shall be subject to
such restrictions (which may include a risk of forfeiture) as the Committee may
impose, if any, which restrictions may lapse at the expiration of the deferral
period or at earlier specified times (including based on achievement of
performance goals and/or future service requirements), separately or in
combination, in installments or otherwise, as the Committee may determine.


 


(ii) Forfeiture.  Except as otherwise determined by the
Committee, upon termination of employment during the applicable deferral period
or portion thereof to which forfeiture conditions apply (as provided in the
Award agreement evidencing the Deferred Stock), all Deferred Stock that is at
that time subject to deferral (other than a deferral at the election of the
Participant) shall be forfeited; provided that the Committee may provide, by rule or
regulation or in any Award agreement, or may determine in any individual case,
that restrictions or forfeiture conditions relating to Deferred Stock shall be
waived in whole or in part in the event of terminations resulting from
specified causes, and the Committee may in other cases waive in whole or in
part the forfeiture of Deferred Stock. Deferred Stock subject to a risk of
forfeiture may be called “restricted stock units” or otherwise designated by
the Committee.


 


(iii) Dividend
Equivalents.  Unless otherwise determined
by the Committee at date of grant, Dividend Equivalents on the specified number
of shares of Stock covered by an Award of Deferred Stock shall be either (A) paid
with respect to such Deferred Stock at the dividend payment date in cash or in
shares of unrestricted Stock having a Fair Market Value equal to the amount of
such dividends, or (B) deferred with respect to such Deferred Stock and
the amount or value thereof automatically deemed reinvested in additional
Deferred Stock, other Awards or other investment vehicles, as the Committee
shall determine or permit the Participant to elect.


 


(f) Bonus Stock and Awards in Lieu of
Obligations.  The Committee is authorized
to grant Stock as a bonus, or to grant Stock or other Awards in lieu of
obligations of the Company or a subsidiary or affiliate to pay cash or deliver other
property under the Plan or under other plans or compensatory arrangements,
subject to such terms as shall be determined by the Committee.


 


(g) Dividend Equivalents.  The Committee is authorized to grant Dividend
Equivalents to a Participant, entitling the Participant to receive cash, Stock,
other Awards, or other property equivalent to all or a portion of the dividends
paid with respect to a specified number of shares of Stock. Dividend
Equivalents may be awarded on a free-standing basis or in connection with
another Award. The Committee may provide that Dividend Equivalents shall be
paid or distributed when accrued or shall be deemed to have been reinvested in
additional Stock, Awards, or other investment vehicles, and subject to
restrictions on transferability, risks of forfeiture and such other terms as
the Committee may specify.


 

















 


(h) Other Stock-Based Awards.  The Committee is authorized, subject to
limitations under applicable law, to grant to Participants such other Awards
that may be denominated or payable in, valued in whole or in part by reference
to, or otherwise based on, or related to, Stock, as deemed by the Committee to
be consistent with the purposes of the Plan, including, without limitation,
convertible or exchangeable debt securities, other rights convertible or
exchangeable into Stock, purchase rights for Stock, Awards with value and
payment contingent upon performance of the Company or any other factors
designated by the Committee, and Awards valued by reference to the book value
of Stock or the value of securities of or the performance of specified
subsidiaries. The Committee shall determine the terms and conditions of such
Awards. Stock delivered pursuant to an Award in the nature of a purchase right
granted under this Section 6(h) shall be purchased for such
consideration, paid for at such times, by such methods, and in such forms,
including, without limitation, cash, Stock, other Awards, or other property, as
the Committee shall determine.


 


7.  Performance Awards, Including
Annual Incentive Awards


 


(a) Performance Awards Generally.  The Committee is authorized to grant
Performance Awards on the terms and conditions specified in this Section 7.
Performance Awards may be denominated as a cash amount, number of shares of
Stock, or specified number of other Awards (or a combination) which may be
earned upon achievement or satisfaction of performance conditions specified by
the Committee. In addition, the Committee may specify that any other Award
shall constitute a Performance Award by conditioning the right of a Participant
to exercise the Award or have it settled, or the timing thereof, upon
achievement or satisfaction of such performance conditions as may be specified
by the Committee. The Committee may use such business criteria and other
measures of performance as it may deem appropriate in establishing any
performance conditions, and may exercise its discretion to reduce or increase
the amounts payable under any Award subject to performance conditions, except
as limited under Sections 7(b) and 7(c) in the case of a Performance
Award intended to qualify as “performance-based compensation” under Code Section 162(m).


 


(b) Performance Awards Granted to
Covered Employees.  If the Committee
determines that a Performance Award to be granted to an Eligible Person who is
designated by the Committee as a Covered Employee should qualify as “performance-based
compensation” for purposes of Code Section 162(m), the grant, exercise
and/or settlement of such Performance Award shall be contingent upon
achievement of a preestablished performance goal and other terms set forth in
this Section 7(b).


 


(i) Performance Goals
Generally.  The performance goal for such
Performance Awards shall consist of one or more business criteria and a
targeted level or levels of performance with respect to each of such criteria,
as specified by the Committee consistent with this Section 7(b). The
performance goal shall be objective and shall otherwise meet the requirements
of Code Section 162(m) and regulations thereunder (including Treasury
Regulation 1.162-27 and successor regulations thereto), including the
requirement that the level or levels of performance targeted by the Committee
result in the achievement of performance goals being “substantially uncertain.”
The Committee may determine that such Performance Awards shall be granted,
exercised and/or settled upon achievement of any one performance goal or that
two or more of the performance goals must be achieved as a condition to grant,
exercise and/or settlement of such Performance Awards. Performance goals may
differ for Performance Awards granted to any one Participant or to different
Participants.


 


(ii) Business
Criteria.  One or more of the following
business criteria for the Company, on a consolidated basis, and/or for
specified subsidiaries or affiliates or other business units or lines of
business of the Company shall be used by the Committee in establishing
performance goals for such Performance Awards: (1) earnings per share
(basic or fully diluted); (2) revenues; (3) earnings, before or after
taxes, from operations (generally or specified operations), before or after
interest expense, depreciation, amortization, incentives, or extraordinary or
special items; (4) cash flow, free cash flow, cash flow return on
investment (discounted or otherwise), net cash provided by operations, or cash
flow 


 

















 


in excess of cost of capital; (5) return
on net assets, return on assets, return on investment, return on capital,
return on equity; (6) economic value created; (7) operating margin or
operating expense; (8) net income; (9) Stock price or total
stockholder return; and (10) strategic business criteria, consisting of
one or more objectives based on meeting specified market penetration,
geographic business expansion goals, new products, ventures or facilities, cost
targets, internal controls, compliance, customer satisfaction and services,
human resources management, supervision of litigation and information
technology, and goals relating to acquisitions or divestitures of subsidiaries,
affiliates, joint ventures or facilities. The targeted level or levels of
performance with respect to such business criteria may be established at such
levels and in such terms as the Committee may determine, in its discretion,
including in absolute terms, as a goal relative to performance in prior
periods, or as a goal compared to the performance of one or more comparable
companies or an index covering multiple companies.


 


(iii)  Performance  Period;  Timing  for  Establishing  Performance  Goals;  Per-Person  Limit.  Achievement  of  performance  goals  in  respect  of  such  Performance  Awards  shall  be  measured  over  a  performance  period  of  up  to  one  year  or  more  than  one  year,  as  specified  by  the  Committee.  A  performance  goal  shall  be  established  not  later  than  the  earlier  of  (A)  90  days  after  the  beginning  of  any  performance  period  applicable  to  such  Performance  Award  or  (B)  the  time  25%  of  such  performance  period  has  elapsed.  In  all  cases,  the  maximum  Performance  Award  of  any  Participant  shall  be  subject  to  the  limitation  set  forth  in  Section  5(b).


 


(iv) Performance Award
Pool.  The Committee may establish a
Performance Award pool, which shall be an unfunded pool, for purposes of
measuring performance of the Company or a business unit in connection with
Performance Awards. The amount of such Performance Award pool shall be based
upon the achievement of a performance goal or goals based on one or more of the
business criteria set forth in Section 7(b)(ii) during the given
performance period, as specified by the Committee in accordance with Section 7(b)(i).
The Committee may specify the amount of the Performance Award pool as a
percentage of any of such business criteria, a percentage thereof in excess of
a threshold amount, or as another amount which need not bear a strictly
mathematical relationship to such business criteria.


 


(v) Settlement of
Performance Awards; Other Terms. 
Settlement of such Performance Awards shall be in cash, Stock, other
Awards or other property, in the discretion of the Committee. The Committee
may, in its discretion, increase or reduce the amount of a settlement otherwise
to be made in connection with such Performance Awards, but may not exercise
discretion to increase any such amount payable to a Covered Employee in respect
of a Performance Award subject to this Section 7(b). Any settlement which
changes the form of payment from that originally specified shall be implemented
in a manner such that the Performance Award and other related Awards do not,
solely for that reason, fail to qualify as “performance-based compensation” for
purposes of Code Section 162(m). The Committee shall specify the
circumstances in which such Performance Awards shall be paid or forfeited in
the event of termination of employment by the Participant or other event
(including a Change in Control) prior to the end of a performance period or
settlement of such Performance Awards; any resulting payments need not qualify
as performance-based compensation under Section 162(m) if the
authorization of such non-qualifying payments would not otherwise disqualify the
Performance Award apart from the termination or change in control.


 


(c) Annual Incentive Awards Granted to
Designated Covered Employees.  The
Committee may grant a Performance Award in the form of an Annual Incentive
Award to an Eligible Person who is designated by the Committee as likely to be
a Covered Employee. Such Annual Incentive Award will be intended to qualify as “performance-based
compensation” for purposes of Code Section 162(m), and therefore its
grant, exercise and/or settlement shall be contingent upon achievement of
preestablished performance goals and shall comply with the other requirements
set forth in Section 7(b).


 
















 


(d) Written Determinations.  Determinations by the Committee as to the
establishment of performance goals, the amount potentially payable in respect
of Performance Awards, the level of actual achievement of the specified
performance goals relating to Performance Awards and the amount of any final
Performance Award shall be recorded in writing in the case of Performance
Awards intended to qualify under Section 162(m). Specifically, the
Committee shall certify in writing, in a manner conforming to applicable
regulations under Section 162(m), prior to settlement of each such Award
granted to a Covered Employee, that the performance objective relating to the
Performance Award and other material terms of the Award upon which settlement
of the Award was conditioned have been satisfied.


 


8.  Certain Provisions Applicable to
Awards.


 


(a) Stand-Alone, Additional, Tandem, and
Substitute Awards.  Subject to the
restrictions on “repricing” set forth in Section 10(e), Awards granted
under the Plan may, in the discretion of the Committee, be granted either alone
or in addition to, in tandem with, or in substitution or exchange for, any
other Award or any award granted under another plan of the Company, any
subsidiary or affiliate, or any business entity to be acquired by the Company
or a subsidiary or affiliate, or any other right of a Participant to receive
payment from the Company or any subsidiary or affiliate; provided, however,
that a 409A Award may not be granted in tandem with a Non-409A Award. Awards
granted in addition to or in tandem with other Awards or awards may be granted
either as of the same time as or a different time from the grant of such other
Awards or awards.


 


(b) Term of Awards.  The term of each Award shall be for such
period as may be determined by the Committee; provided that in no event shall
the term of any Option or SAR exceed a period of ten years (or, in the case of
an ISO, such shorter term as may be required under Code Section 422).


 


(c) Form and  Timing  of  Payment  under  Awards;  Deferrals.  Subject  to  the  terms  of  the  Plan  (including  Sections 10(h) and  (i))  and  any  applicable  Award  agreement,  payments  to  be  made  by  the  Company  or  a  subsidiary  upon  the  exercise  of  an  Option  or  other  Award  or  settlement  of  an  Award  may  be  made  in  cash,  Stock,  other  Awards,  or  other  property,  and  may  be  made  in  a  single  payment  or  transfer,  in  installments,  or  on  a  deferred  basis.  The  settlement  of  any  Award  may  be  accelerated  in  the  discretion  of  the  Committee  or  upon  occurrence  of  one  or  more  specified  events  (in  addition  to  a  Change  in  Control,  subject  to  Sections 10(h) and  (i)).  Installment  or  deferred  payments  may  be  required  by  the  Committee  (subject  to  Section 10(e) of  the  Plan,  including  the  consent  provisions  thereof  in  the  case  of  any  deferral  of  an  outstanding  Award  not  provided  for  in  the  original  Award  agreement)  or  permitted  at  the  election  of  the  Participant  on  terms  and  conditions  established  by  the  Committee.  Payments  may  include,  without  limitation,  provisions  for  the  payment  or  crediting  of  reasonable  interest  on  installment  or  deferred  payments  or  the  grant  or  crediting  of  Dividend  Equivalents  or  other  amounts  in  respect  of  installment  or  deferred  payments  denominated  in  Stock.  Any  payment  deferred  pursuant  to  this  Section 8(c) shall  represent  only  an  unfunded,  unsecured  promise  by  the  Company  to  pay  the  amount  credited  thereto  to  the  Participant  in  the  future.  In  the  case  of  any  409A  Award  that  is  vested  and  no  longer  subject  to  a  risk  of  forfeiture  (within  the  meaning  of  Code  Section 83)  and  deferred  at  the  election  of  the  Participant,  such  Award  will  be  distributed  to  the  Participant,  upon  application  of  the  Participant,  if  the  Participant  has  had  an  unforeseeable  emergency  within  the  meaning  of  Code  Sections 409A(a)(2)(A)(vi) and  409A(a)(2)(B)(ii),  in  accordance  with  Section 409A(a)(2)(B)(ii).


 

















 


(d) Additional Award Forfeiture
Provisions.  The Committee may
condition a Participant’s right to receive a grant of an Award, to
exercise the Award, to retain Stock acquired in connection with an Award, or to
retain the profit or gain realized by a Participant in connection with an
Award, including cash received upon sale of Stock acquired in connection with
an Award, upon compliance by the Participant with specified conditions relating
to non-competition, confidentiality of information relating to the Company,
non-solicitation of customers, suppliers, and employees of the Company,
cooperation in litigation, non-disparagement of the Company and its officers,
directors and affiliates, and other restrictions upon or covenants of the
Participant, including during specified periods following termination of
employment or service to the Company.


 


(e) Exemptions from
Section 16(b) Liability.  With
respect to a Participant who is then subject to the reporting requirements of
Section 16(a) of the Exchange Act in respect of the Company, the
Committee shall implement transactions under the Plan and administer the Plan
in a manner that will ensure that each transaction with respect to such a
Participant is exempt from liability under Rule 16b-3 or otherwise not
subject to liability under Section 16(b), except that this provision shall
not limit sales by such a Participant, and such a Participant may elect to
engage in other non-exempt transactions under the Plan. The Committee may
authorize the Company to repurchase any Award or shares of Stock deliverable or
delivered in connection with any Award (subject to Section 10(i)) in order
to avoid a Participant who is subject to Section 16 of the Exchange Act
incurring liability under Section 16(b). Unless otherwise specified by the
Participant, equity securities or derivative securities acquired under the Plan
which are disposed of by a Participant shall be deemed to be disposed of in the
order acquired by the Participant.


 


9.  Change in Control.


 


(a) Effect of “Change in Control.”  In the event of a “Change in Control,” the
following provisions shall apply unless otherwise provided in the Award
agreement:


 


(i) Any Award carrying a
right to exercise that was not previously exercisable and vested shall become
fully exercisable and vested as of the time of the Change in Control;


 


(ii) If any optionee holds
an Option immediately prior to a Change in Control that was not previously
exercisable and vested in full throughout the 60-day period preceding the
Change in Control, he shall be entitled to elect, during the 60-day period
following the Change in Control, in lieu of acquiring the shares of Stock
covered by the portion of the Option that was not vested and exercisable within
such 60-day period, to receive, and the Company shall be obligated to pay, in
cash the excess of the Change in Control Price over the exercise price of such
Option, multiplied by the number of shares of Stock covered by such portion of
the Option;


 


(iii) The restrictions,
deferral of settlement, and forfeiture conditions applicable to any other Award
granted under the Plan shall lapse and such Awards shall be deemed fully vested
as of the time of the Change in Control, except to the extent of any waiver by
the Participant and subject to applicable restrictions set forth in
Section 10(a) hereof; and


 


(iv) With respect to any
outstanding Award subject to achievement of performance goals and conditions
under the Plan, such performance goals and other conditions will be deemed to
be met if and to the extent so provided by the Committee in the Award agreement
relating to such Award.


 


The foregoing notwithstanding, any benefit or
right provided under this Section 9 in the case of any non-409A Award
shall be limited to those benefits and rights permitted under Code
Section 409A, and any benefit or right provided under this Section 9
that would result in a distribution of a 409A Award at a time or in a manner
not permitted by Section 409A shall be limited to the extent necessary so
that the distribution is permitted under Section 409A. For this purpose,
the distribution of a 409A Award (i) triggered by a Change in Control will
remain authorized if the Change in Control also constitutes a change in the
ownership or effective control of the Company, or in the ownership of a
substantial portion of the assets of the Company, within the meaning of Code

Section 409A(a)(2)(A)(v), and (ii) triggered by 


 

















 


a termination of employment with or service to the Company or a
subsidiary following a Change in Control by a specified employee, within the
meaning of Code Section 409A(a)(2)(B)(i), will remain authorized to occur
six months after such termination.


 


(b) Definition of “Change in
Control.”  A “Change in Control” shall
mean the occurrence of any of the following:


 


(i) when  any  “person”  as  defined  in  Section 3(a)(9) of  the  Exchange  Act  and  as  used  in  Sections 13(d) and  14(d) thereof,  including  a  “group”  as  defined  in  Section 13(d) of  the  Exchange  Act  but  excluding  the  Company  and  any  subsidiary  and  any  employee  benefit  plan  sponsored  or  maintained  by  the  Company  or  any  subsidiary  (including  any  trustee  of  such  plan  acting  as  trustee),  directly  or  indirectly,  becomes  the  “beneficial  owner”  (as  defined  in  Rule 13d-3  under  the  Exchange  Act)  of  securities  of  the  Company  representing  at  least  40%  percent  (or  such  greater  percentage  as  the  Committee  may  specify  in  connection  with  the  grant  of  any  Award)  of  the  combined  voting  power  of  the  Company’s  then-outstanding  securities;  or


 


(ii) the occurrence of a
transaction requiring stockholder approval for the acquisition of the Company
by an entity other than the Company or a subsidiary by merger or otherwise or
for the purchase by an entity other than the Company or a subsidiary of
substantially all of the assets of the Company.


 


(c) Definition of “Change in Control
Price.”  The “Change in Control Price”
means an amount in cash equal to the higher of (i) the amount of cash and
fair market value of property that is the highest price per share paid (including
extraordinary dividends) in any transaction triggering the Change in Control,
or (ii) the highest Fair Market Value per share at any time during the
60-day period preceding the Change in Control.


 


10.  General Provisions.


 


(a) Compliance with Legal and Other
Requirements.  The Company may, to the
extent deemed necessary or advisable by the Committee and subject to
Section 10(h), postpone the issuance or delivery of Stock or payment of
other benefits under any Award until completion of such registration or
qualification of such Stock or other required action under any federal or state
law, rule, or regulation, listing or other required action with respect to any
stock exchange or automated quotation system upon which the Stock or other
securities of the Company are listed or quoted, or compliance with any other
obligation of the Company, as the Committee may consider appropriate, and may
require any Participant to make such representations, furnish such information
and comply with or be subject to such other conditions as it may consider
appropriate in connection with the issuance or delivery of Stock or payment of
other benefits in compliance with applicable laws, rules, and regulations,
listing requirements, or other obligations. The foregoing notwithstanding, in
connection with a Change in Control, the Company shall take or cause to be
taken no action, and shall undertake or permit to arise no legal or contractual
obligation, that results or would result in any postponement of the issuance or
delivery of Stock or payment of benefits under any Award or the imposition of
any other conditions on such issuance, delivery or payment, to the extent that
such postponement or other condition would represent a greater burden on a
Participant than existed on the 90th day preceding the Change in Control.


 


(b) Limits on Transferability;
Beneficiaries.  No Award or other right
or interest of a Participant under the Plan shall be pledged, hypothecated or
otherwise encumbered or subject to any lien, obligation or liability of such
Participant to any party, or assigned or transferred by such Participant
otherwise than by will or the laws of descent and distribution or to a
Beneficiary upon the death of a Participant, and such Awards or rights that may
be exercisable shall be exercised during the lifetime of the Participant only
by the Participant or his or her guardian or legal representative, except that
Awards and other rights (other than ISOs and SARs in tandem therewith) may be
transferred for estate planning purposes to one or more Beneficiaries or other
transferees during the lifetime of the Participant, and may be exercised by
such 


 

















 


transferees in accordance with the terms of such Award, but only if and
to the extent such transfers are permitted by the Committee pursuant to the
express terms of an Award agreement (subject to any terms and conditions which
the Committee may impose thereon). A Beneficiary, transferee, or other person
claiming any rights under the Plan from or through any Participant shall be subject
to all terms and conditions of the Plan and any Award agreement applicable to
such Participant, except as otherwise determined by the Committee, and to any
additional terms and conditions deemed necessary or appropriate by the
Committee.


 


(c) Adjustments.  In the event that any large, special and
non-recurring dividend or other distribution (whether in the form of cash or
property other than Stock), recapitalization, forward or reverse split, Stock
dividend, reorganization, merger, consolidation, spin-off, combination,
repurchase, share exchange, liquidation, dissolution or other similar corporate
transaction or event affects the Stock such that an adjustment is determined by
the Committee to be appropriate or, in the case of any outstanding Award, necessary
in order to prevent dilution or enlargement of the rights of the Participant,
then the Committee shall, in such equitable manner as it may determine, adjust
any or all of (A) the number and kind of shares of Stock which may be
delivered in connection with Awards granted thereafter, (B) the number and
kind of shares of Stock by which annual per-person Award limitations are
measured under Section 5(b), (C) the number and kind of shares of
Stock subject to or deliverable in respect of outstanding Awards and
(D) the exercise price, grant price or purchase price relating to any
Award or, if deemed appropriate, the Committee may make provision for a payment
of cash or property to the holder of an outstanding Option (subject to
Section 10(i)). In addition, the Committee is authorized to make
adjustments in the terms and conditions of, and the criteria included in,
Awards (including Performance Awards and performance goals and any hypothetical
funding pool relating thereto) in recognition of unusual or nonrecurring events
(including, without limitation, events described in the preceding sentence, as
well as acquisitions and dispositions of businesses and assets) affecting the
Company, any subsidiary or affiliate or other business unit, or the financial
statements of the Company or any subsidiary or affiliate, or in response to
changes in applicable laws, regulations, accounting principles, tax rates and
regulations or business conditions or in view of the Committee’s assessment of
the business strategy of the Company, any subsidiary or affiliate or business
unit thereof, performance of comparable organizations, economic and business
conditions, personal performance of a Participant, and any other circumstances
deemed relevant; provided that no such adjustment shall be authorized or made
if and to the extent that the existence of such authority (A) would cause
Options, SARs, or Performance Awards granted under Section 7 to
Participants designated by the Committee as Covered Employees and intended to
qualify as “performance-based compensation” under Code
Section 162(m) and regulations thereunder to otherwise fail to
qualify as “performance-based compensation” under Code
Section 162(m) and regulations thereunder, or (B) would cause
the Committee to be deemed to have authority to change the targets, within the
meaning of Treasury Regulation 1.162-27(e)(4)(vi), under the performance
goals relating to Options or SARs granted to Covered Employees and intended to
qualify as “performance-based compensation” under Code Section 162(m) and
regulations thereunder; and provided further, that adjustments to Non-409A
Awards will be made only to the extent permitted under 409A.


 


(d) Taxes.  The Company and any subsidiary is authorized
to withhold from any Award granted, any payment relating to an Award under the
Plan, including from a distribution of Stock, or any payroll or other payment
to a Participant, amounts of withholding and other taxes due or potentially
payable in connection with any Award, and to take such other action as the
Committee may deem advisable to enable the Company and Participants to satisfy
obligations for the payment of withholding taxes and other tax obligations
relating to any Award. This authority shall include authority to withhold or
receive Stock or other property and to make cash payments in respect thereof in
satisfaction of a Participant’s tax obligations, either on a mandatory or
elective basis, in the discretion of the Committee, or in satisfaction of other
tax obligations if such withholding will not result in additional accounting
expense to the Company. Other provisions of the Plan notwithstanding, only the
minimum amount of Stock deliverable in connection with an Award necessary to
satisfy statutory withholding requirements will be withheld, unless 


 

















 


withholding of any additional amount of Stock will not result in
additional accounting expense to the Company.


 


(e) Changes to the Plan and Awards.  The Board may amend, alter, suspend,
discontinue, or terminate the Plan or the Committee’s authority to grant Awards
under the Plan without the consent of stockholders or Participants, except that
any amendment or alteration to the Plan shall be subject to the approval of the
Company’s stockholders not later than the annual meeting the record date for which
is at or following the date of such Board action if such stockholder approval
is required by any federal or state law or regulation or the rules of any
stock exchange or automated quotation system on which the Stock may then be
listed or quoted, and the Board may otherwise, in its discretion, determine to
submit other such changes to the Plan to stockholders for approval; provided
that, without the consent of an affected Participant, no such Board action may
materially and adversely affect the rights of such Participant under any
previously granted and outstanding Award. (For this purpose, actions that alter
the timing of federal income taxation of a Participant will not be deemed
material unless such action results in an income tax penalty on the Participant.)
The Committee may waive any conditions or rights under, or amend, alter,
suspend, discontinue, or terminate any Award theretofore granted and any Award
agreement relating thereto; provided that the Committee shall have no authority
to waive or modify any Award term after the Award has been granted to the
extent the waived or modified term would be mandatory under the Plan for any
Award newly granted at the date of the waiver or modification; and provided
further, that, without the consent of an affected Participant, no such
Committee action may materially and adversely affect the rights of such
Participant under such Award. Without the prior approval of stockholders, the
Committee will not amend or replace previously granted Options in a transaction
that constitutes a “repricing.” For this purpose, a “repricing” means:
(1) amending the terms of an Option or SAR after it is granted to lower
its exercise price, except pursuant to Section 10(c) hereof;
(2) any other action that is treated as a repricing under generally
accepted accounting principles; and (3) repurchasing for cash or canceling
an Option or SAR at a time when its exercise or grant price is equal to or
greater than the fair market value of the underlying Stock, in exchange for
another Option, Restricted Stock, or other equity, unless the cancellation and
exchange occurs in connection with a merger, acquisition, spin-off or other
similar corporate transaction. A cancellation and exchange described in
clause (3) of the preceding sentence will be considered a repricing
regardless of whether the Option, Restricted Stock or other equity is delivered
simultaneously with the cancellation, regardless of whether it is treated as a
repricing under generally accepted accounting principles, and regardless of
whether it is voluntary on the part of the Option holder.


 


(f) Limitation on Rights Conferred under
Plan.  Neither the Plan nor any action
taken hereunder shall be construed as (i) giving any Eligible Person or
Participant the right to continue as an Eligible Person or Participant or in
the employ or service of the Company or a subsidiary, (ii) interfering in
any way with the right of the Company or a subsidiary to terminate any Eligible
Person’s or Participant’s employment or service at any time, (iii) giving
an Eligible Person or Participant any claim to be granted any Award under the
Plan or to be treated uniformly with other Participants and employees, or
(iv) conferring on a Participant any of the rights of a stockholder of the
Company unless and until the Participant is duly issued or transferred shares
of Stock in accordance with the terms of an Award.


 


(g) Unfunded Status of Awards; Creation
of Trusts.  The Plan is intended to
constitute an “unfunded” plan for incentive and deferred compensation. With
respect to any payments not yet made to a Participant or obligation to deliver
Stock pursuant to an Award, nothing contained in the Plan or any Award shall
give any such Participant any rights that are greater than those of a general
creditor of the Company; provided that the Committee may authorize the creation
of trusts and deposit therein cash, Stock, other Awards or other property, or
make other arrangements to meet the Company’s obligations under the Plan. Such
trusts or other arrangements shall be consistent with the “unfunded” status of
the Plan unless the Committee otherwise determines with the consent of each
affected Participant. The trustee of such trusts may be authorized to dispose
of trust assets and reinvest the proceeds in alternative investments, subject
to such terms and conditions as the Committee may specify and in accordance
with applicable law.


 

















 


(h) Certain Limitations on Awards to
Ensure Compliance with Section 409A. 
For purposes of this Plan, references to an Award term or event
(including any authority or right of the Company or a Participant) being
“permitted” under Section 409A mean, for a 409A Award, that the term or
event will not cause the Participant to be liable for payment of interest or a
tax penalty under Section 409A and, for a Non-409A Award, that the term or
event will not cause the Award to be treated as subject to Section 409A.
Other provisions of the Plan notwithstanding, the terms of any 409A Award and
any Non-409A Award, including any authority of the Company and rights of the
Participant with respect to the Award, shall be limited to those terms
permitted under Section 409A, and any terms not permitted under
Section 409A shall be automatically modified and limited to the extent
necessary to conform with Section 409A. For this purpose, other provisions
of the Plan notwithstanding, the Company shall have no authority to accelerate
distributions relating to 409A Awards in excess of the authority permitted
under Section 409A, any distribution subject to Section 409A(a)(2)(A)(i) (separation
from service) to a “key employee” as defined under
Section 409A(a)(2)(B)(i), shall not occur earlier than the earliest time
permitted under Section 409A(a)(2)(B)(i), and any authorization of payment
of cash to settle a Non-409A Award shall apply only to the extent permitted
under Section 409A for such Award. Non-409A Awards that are
“grandfathered” under Section 409A and that, but for such grandfathered
status, would be deemed 409A Awards shall be subject to the terms and
conditions of the Plan as amended and restated as of May 5, 2005 other
than Sections 6(b)(ii) and 6(c)(ii), provided that if any provision
adopted by amendment to the Plan or an Award Agreement after October 3,
2004, would constitute a material modification of a grandfathered Non-409A
Award, such provision will not be effective as to such Award unless so stated
by the Committee in writing with specific reference to this last sentence of
Section 10(h).


 


(i) Certain Limitations Relating to
Accounting Treatment of Awards.  At any
time that the Company is accounting for stock-denominated Awards (other than
SARs) under Accounting Principles Board Opinion 25 (“APB 25”), the Company
intends that, with respect to such Awards, the compensation measurement date
for accounting purposes shall occur at the date of grant or the date
performance conditions are met if an Award is fully contingent on achievement
of performance goals, unless the Committee specifically determines otherwise.
Therefore, other provisions of the Plan notwithstanding, in order to preserve
this fundamental objective of the Plan, if any authority granted to the
Committee hereunder or any provision of the Plan or an Award agreement would
result, under APB 25, in “variable” accounting or a measurement date other
than the date of grant or the date such performance conditions are met with
respect to such Awards, if the Committee was not specifically aware of such
accounting consequence at the time such Award was granted or provision
otherwise became effective, such authority shall be limited and such provision
shall be automatically modified and reformed to the extent necessary to
preserve the accounting treatment of the award intended by the Committee,
subject to Section 10(e) of the Plan. This provision shall cease to
be effective if and at such time as the Company elects to no longer account for
equity compensation under APB 25.


 


(j) Nonexclusivity of the Plan.  Neither the adoption of the Plan by the Board
nor its submission to the stockholders of the Company for approval shall be
construed as creating any limitations on the power of the Board or a committee
thereof to adopt such other incentive arrangements as it may deem desirable
including incentive arrangements and awards which do not qualify under Code
Section 162(m).


 


(k) Payments in the Event of
Forfeitures; Fractional Shares.  Unless
otherwise determined by the Committee, in the event of a forfeiture of an Award
with respect to which a Participant paid cash or other consideration, the
Participant shall be repaid the amount of such cash or other consideration. No
fractional shares of Stock shall be issued or delivered pursuant to the Plan or
any Award. The Committee shall determine whether cash, other Awards or other
property shall be issued or paid in lieu of such fractional shares or whether
such fractional shares or any rights thereto shall be forfeited or otherwise
eliminated.


 


(l) Awards to Participants Outside the
United States.  The Committee may modify
the terms of any Award under the Plan made to or held by a Participant who is
then resident or primarily employed outside of the United States in any manner
deemed by the Committee to be necessary or appropriate in order that 


 

















 


such Award shall conform to laws, regulations, and customs of the
country in which the Participant is then resident or primarily employed, or so
that the value and other benefits of the Award to the Participant, as affected
by foreign tax laws and other restrictions applicable as a result of the
Participant’s residence or employment abroad shall be comparable to the value
of such an Award to a Participant who is resident or primarily employed in the
United States. An Award may be modified under this Section 10(l) in a
manner that is inconsistent with the express terms of the Plan, so long as such
modifications will not contravene any applicable law or regulation or result in
actual liability under Section 16(b) for the Participant whose Award
is modified.


 


(m) Governing Law.  The validity, construction and effect of the
Plan, any rules and regulations under the Plan, and any Award agreement
shall be determined in accordance with the Delaware General Corporation Law,
the contract and other laws of the State of New York without giving effect to
principles of conflicts of laws, and applicable federal law.


 


(n) Preexisting Plan.  Upon stockholder approval of the Plan as of
the Effective Date, no further grants of Awards will be made under the
Preexisting Plan.


 


(o) Plan Effective Date and
Termination.  The Plan was adopted by the
Board of Directors on April 24, 2003 and became effective upon its
approval by the Company’s stockholders on the Effective Date. The Plan was
amended and restated upon its approval by the Company’s stockholders on
June 14, 2005. This amendment and restatement of the Plan shall be
effective upon its approval by the Company’s stockholders by the affirmative
vote of the holders of a majority of the voting securities of the Company
entitled to be cast in person or by proxy at the Company’s 2008 annual meeting
of stockholders. Unless earlier terminated by action of the Board of Directors,
the Plan will remain in effect until such time as no Stock remains available
for delivery under the Plan and the Company has no further rights or
obligations under the Plan with respect to outstanding Awards under the Plan;
provided, however, that no new Awards may be granted more then ten years after
the date of the latest approval of the Plan by stockholders of the Company.