exv10w5






EXHIBIT 10.5




FORM OF




ASCENT MEDIA CORPORATION




2008 INCENTIVE PLAN




ARTICLE I




PURPOSE OF PLAN; EFFECTIVE DATE




          1.1. Purpose. The purpose of the Plan is to promote the success of the Company by providing a method whereby
(i) eligible employees of the Company and its Subsidiaries and (ii) independent contractors
providing services to the Company and its Subsidiaries may be awarded additional remuneration for
services rendered and encouraged to invest in capital stock of the Company, thereby increasing
their proprietary interest in the Company’s businesses, encouraging them to remain in the employ of
the Company or its Subsidiaries, and increasing their personal interest in the continued success
and progress of the Company and its Subsidiaries. The Plan is also intended to aid in (i)
attracting Persons of exceptional ability to become officers and employees of the Company and its
Subsidiaries and (ii) inducing independent contractors to agree to provide services to the Company
and its Subsidiaries.




          1.2. Effective Date. The Plan shall be effective as of [                     ___], 2008 (the “Effective Date”)
..




ARTICLE II




DEFINITIONS




          2.1. Certain Defined Terms. Capitalized terms not defined elsewhere in the Plan shall have the following meanings (whether
used in the singular or plural):




          “Affiliate” of the Company means any corporation, partnership or other business association
that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is
under common control with the Company.




          “Agreement” means a stock option agreement, stock appreciation rights agreement, restricted
shares agreement, stock units agreement, cash award agreement or an
agreement evidencing more than one type of Award, specified in Section 11.5, as any such
Agreement may be supplemented or amended from time to time.




 









 








          “Approved Transaction” means any transaction in which the Board (or, if approval of the Board
is not required as a matter of law, the stockholders of the Company) shall approve (i) any
consolidation or merger of the Company, or binding share exchange, pursuant to which shares of
Common Stock of the Company would be changed or converted into or exchanged for cash, securities,
or other property, other than any such transaction in which the common stockholders of the Company
immediately prior to such transaction have the same proportionate ownership of the Common Stock of,
and voting power with respect to, the surviving corporation immediately after such transaction,
(ii) any merger, consolidation or binding share exchange to which the Company is a party as a
result of which the Persons who are common stockholders of the Company immediately prior thereto
have less than a majority of the combined voting power of the outstanding capital stock of the
Company ordinarily (and apart from the rights accruing under special circumstances) having the
right to vote in the election of directors immediately following such merger, consolidation or
binding share exchange, (iii) the adoption of any plan or proposal for the liquidation or
dissolution of the Company, or (iv) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all, or substantially all, of the assets of the Company.




          “Award” means a grant of Options, SARs, Restricted Shares, Stock Units, Performance Awards,
Cash Awards and/or cash amounts under the Plan.




          “Board” means the Board of Directors of the Company.




          “Board Change” means, during any period of two consecutive years, individuals who at the
beginning of such period constituted the entire Board cease for any reason to constitute a majority
thereof unless the election, or the nomination for election, of each new director was approved by a
vote of at least two-thirds of the directors then still in office who were directors at the
beginning of the period.




          “Cash Award” means an Award made pursuant to Section 10.1 of the Plan to a Holder that is paid
solely on account of the attainment of one or more Performance Objectives that have been
preestablished by the Committee.




          “Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor
statute or statutes thereto. Reference to any specific Code section shall include any successor
section.




          “Committee” means the committee of the Board appointed pursuant to Section 3.1 to administer
the Plan.




          “Common Stock” means each or any (as the context may require) series of the Company’s common
stock.




          “Company” means Ascent Media Corporation, a Delaware corporation.




          “Control Purchase” means any transaction (or series of related transactions) in which (i) any
person (as such term is defined in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), corporation
or other entity (other than the Company, any Subsidiary of the Company or any employee benefit plan
sponsored by the Company or any Subsidiary of the Company) shall




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purchase any Common Stock of the Company (or securities convertible into Common Stock of the Company) for cash, securities or any
other consideration pursuant to a tender offer or exchange offer, without the prior consent of the
Board, or (ii) any person (as such term is so defined), corporation or other entity (other than the
Company, any Subsidiary of the Company, any employee benefit plan sponsored by the Company or any
Subsidiary of the Company or any Exempt Person (as defined below)) shall become the “beneficial
owner” (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 20% or more of the combined voting power of the then
outstanding securities of the Company ordinarily (and apart from the rights accruing under special
circumstances) having the right to vote in the election of directors (calculated as provided in
Rule 13d-3(d) under the Exchange Act in the case of rights to acquire the Company’s securities),
other than in a transaction (or series of related transactions) approved by the Board. For
purposes of this definition,




          “Exempt Person” means each of (a) the Chairman of the Board, the President and each of the
directors of the Company as of the Effective Date, and (b) the respective family members, estates
and heirs of each of the Persons referred to in clause (a) above and any trust or other investment
vehicle for the primary benefit of any of such Persons or their respective family members or heirs.
As used with respect to any Person, the term “family member” means the spouse, siblings and lineal
descendants of such Person.




          “Disability” means the inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than 12 months.




          “Dividend Equivalents” means, with respect to Restricted Shares to be issued at the end of the
Restriction Period, to the extent specified by the Committee only, an amount equal to all dividends
and other distributions (or the economic equivalent thereof) which are payable to stockholders of
record during the Restriction Period on a like number and kind of shares of Common Stock.




          “Domestic Relations Order” means a domestic relations order as defined by the Code or Title I
of the Employee Retirement Income Security Act, or the rules thereunder.




          “Equity Security” shall have the meaning ascribed to such term in Section 3(a)(11) of the
Exchange Act, and an equity security of an issuer shall have the meaning ascribed thereto in Rule
16a-1 promulgated under the Exchange Act, or any successor Rule.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, or any
successor statute or statutes thereto. Reference to any specific Exchange Act section shall
include any successor section.




          “Fair Market Value” of a share of any series of Common Stock on any day means the last sale
price (or, if no last sale price is reported, the average of the high bid and low asked prices) for
a share of such series of Common Stock on such day (or, if such day is not a trading day, on the
next preceding trading day) as reported on the consolidated transaction




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reporting system for the principal national securities exchange on which shares of such series of Common Stock are listed on
such day or if such shares are not then listed on a national securities exchange, then as reported
on Nasdaq or, if such shares are not then listed or quoted on Nasdaq, then as quoted by the
National Quotation Bureau Incorporated. If for any day the Fair Market Value of a share of the
applicable series of Common Stock is not determinable by any of the foregoing means, then the Fair
Market Value for such day shall be determined in good faith by the Committee on the basis of such
quotations and other considerations as the Committee deems appropriate.




          “Free Standing SAR” has the meaning ascribed thereto in Section 7.1.




          “Holder” means a Person who has received an Award under the Plan.




          “Nasdaq” means The Nasdaq Stock Market.




          “Nonqualified Stock Option” means a stock option granted under Article VI.




          “Option” means a Nonqualified Stock Option.




          “Performance Award” means an Award made pursuant to Article X of the Plan to a Holder that is
subject to the attainment of one or more Performance Objectives.




          “Performance Objective” means a standard established by the Committee to determine in whole or
in part whether a Performance Award shall be earned.




          “Person” means an individual, corporation, limited liability company, partnership, trust,
incorporated or unincorporated association, joint venture or other entity of any kind.




          “Plan” means this Ascent Media Corporation 2008 Incentive Plan.




          “Restricted Shares” means shares of any series of Common Stock or the right to receive shares
of any specified series of Common Stock, as the case may be, awarded pursuant to Article VIII.




          “Restriction Period” means a period of time beginning on the date of each Award of Restricted
Shares and ending on the Vesting Date with respect to such Award.




          “Retained Distribution” has the meaning ascribed thereto in Section 8.3.




          “SARs” means stock appreciation rights, awarded pursuant to Article VII, with respect to
shares of any specified series of Common Stock.




          “Stock Unit Awards” has the meaning ascribed thereto in Section 9.1.




          “Subsidiary” of a Person means any present or future subsidiary (as defined in Section 424(f)
of the Code) of such Person or any business entity in which such Person owns, directly or
indirectly, 50% or more of the voting, capital or profits interests. An entity shall be





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deemed a
subsidiary of a Person for purposes of this definition only for such periods as the requisite
ownership or control relationship is maintained.




          “Tandem SARs” has the meaning ascribed thereto in Section 7.1.




          “Vesting Date” with respect to any Restricted Shares awarded hereunder, means the date on
which such Restricted Shares cease to be subject to a risk of forfeiture, as designated in or
determined in accordance with the Agreement with respect to such Award of Restricted Shares
pursuant to Article VIII. If more than one Vesting Date is designated for an Award of Restricted
Shares, reference in the Plan to a Vesting Date in respect of such Award shall be deemed to refer
to each part of such Award and the Vesting Date for such part.




ARTICLE III




ADMINISTRATION




          3.1. Committee. The Plan shall be administered by the Compensation Committee of the Board unless a different
committee is appointed by the Board. The Committee shall be comprised of not less than two
Persons. The Board may from time to time appoint members of the Committee in substitution for or
in addition to members previously appointed, may fill vacancies in the Committee and may remove
members of the Committee. The Committee shall select one of its members as its chairman and shall
hold its meetings at such times and places as it shall deem advisable. A majority of its members
shall constitute a quorum and all determinations shall be made by a majority of such quorum. Any
determination reduced to writing and signed by all of the members shall be as fully effective as if
it had been made by a majority vote at a meeting duly called and held.




          3.2.
Powers. The Committee shall have full power and authority to
grant to eligible persons Options under
Article VI of the Plan, SARs under Article VII of the Plan, Restricted Shares under Article VIII of
the Plan, Stock Units under Article IX of the Plan, Cash Awards under Article X of the Plan and/or
Performance Awards under Article X of the Plan, to determine the terms and conditions (which need
not be identical) of all Awards so granted, to interpret the provisions of the Plan and any
Agreements relating to Awards granted under the Plan and to supervise the administration of the
Plan. The Committee in making an Award may provide for the granting or issuance of additional,
replacement or alternative Awards upon the occurrence of specified events, including the exercise
of the original Award. The Committee shall have sole authority in the
selection of persons to whom
Awards may be granted under the Plan and in the determination of the timing, pricing and amount of
any such Award, subject only to the express provisions of the Plan. In making determinations
hereunder, the Committee may take into account the nature of the services rendered by the
respective employees and independent contractors, their present and
potential contributions to the success of the Company and its Subsidiaries, and such other factors
as the Committee in its discretion deems relevant.




          3.3. Interpretation. The Committee is authorized, subject to the provisions of the Plan, to establish, amend and
rescind such rules and regulations as it deems necessary or advisable for the proper administration
of the Plan and to take such other action in connection with or in relation to the Plan as it deems
necessary or advisable. Each action and determination





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made or taken pursuant to the Plan by the
Committee, including any interpretation or construction of the Plan, shall be final and conclusive
for all purposes and upon all persons. No member of the Committee shall be liable for any action
or determination made or taken by him or the Committee in good faith with respect to the Plan.




ARTICLE IV




SHARES SUBJECT TO THE PLAN




          4.1. Number of Shares. Subject to the provisions of this Article IV, the maximum number of shares of Common Stock with
respect to which Awards may be granted during the term of the Plan shall be [2 million] shares.
Shares of Common Stock will be made available from the authorized but unissued shares of the
Company or from shares reacquired by the Company, including shares purchased in the open market.
The shares of Common Stock subject to (i) any Award granted under the Plan that shall expire,
terminate or be annulled for any reason without having been exercised (or considered to have been
exercised as provided in Section 7.2), (ii) any Award of any SARs granted under the Plan that shall
be exercised for cash, and (iii) any Award of Restricted Shares or Stock Units that shall be
forfeited prior to becoming vested (provided that the Holder received no benefits of ownership of
such Restricted Shares or Stock Units other than voting rights and the accumulation of Retained
Distributions and unpaid Dividend Equivalents that are likewise forfeited) shall again be available
for purposes of the Plan. Except for Awards described in
Section 11.1, no person may be granted in
any calendar year (i) Awards covering more than [500,000] shares of Common Stock (as such amount may be
adjusted from time to time as provided in Section 4.2) or
(ii) Options or SARs that are exercisable for more than
[500,000] shares of Common Stock. No person shall receive payment for Cash
Awards during any calendar year aggregating in excess of [$1,000,000].




          4.2. Adjustments. If the Company subdivides its outstanding shares of any series of Common Stock into a greater
number of shares of such series of Common Stock (by stock dividend, stock split, reclassification,
or otherwise) or combines its outstanding shares of any series of Common Stock into a smaller
number of shares of such series of Common Stock (by reverse stock split, reclassification, or
otherwise) or if the Committee determines that any stock dividend, extraordinary cash dividend,
reclassification, recapitalization, reorganization, split-up, spin-off, combination, exchange of
shares, warrants or rights offering to purchase such series of Common Stock or other similar
corporate event (including mergers or consolidations other than those
which constitute Approved Transactions, adjustments with respect to which shall be governed by
Section 11.1(b)) affects any series of Common Stock so that an adjustment is required to preserve
the benefits or potential benefits intended to be made available under the Plan, then the
Committee, in its sole discretion and in such manner as the Committee deems equitable and
appropriate, shall make such adjustments to any or all of (i) the number and kind of shares of
stock which thereafter may be awarded, optioned or otherwise made subject to the benefits
contemplated by the Plan, (ii) the number and kind of shares of stock subject to outstanding
Awards, and (iii) the purchase or exercise price and the relevant appreciation base with respect to
any of the foregoing, provided, however, that the number of shares subject to any
Award shall always be a whole number. Notwithstanding the foregoing, if all shares of any series
of Common Stock are redeemed, then each outstanding Award shall be adjusted to substitute for the
shares of such series of Common Stock subject thereto the kind and amount of cash, securities or
other assets issued or paid in the redemption of the equivalent number of




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shares of such series of
Common Stock and otherwise the terms of such Award, including, in the case of Options or similar
rights, the aggregate exercise price, and, in the case of Free Standing SARs, the aggregate base
price, shall remain constant before and after the substitution (unless otherwise determined by the
Committee and provided in the applicable Agreement). The Committee may, if deemed appropriate,
provide for a cash payment to any Holder of an Award in connection with any adjustment made
pursuant to this Section 4.2.




ARTICLE V




ELIGIBILITY




          5.1.
General. The persons who shall be eligible to participate in the Plan and to receive Awards under the
Plan shall, subject to Section 5.2, be such persons who are employees (including officers and
directors) of or independent contractors providing services to the Company or its Subsidiaries as
the Committee shall select. Awards may be made to employees or independent contractors who hold or
have held Awards under the Plan or any similar or other awards under any other plan of the Company
or any of its Affiliates.




          5.2. Ineligibility. No member of the Committee, while serving as such, shall be eligible to receive an Award.




ARTICLE VI




STOCK OPTIONS




          6.1. Grant of Options. Subject to the limitations of the Plan, the Committee shall designate from time to time those
eligible persons to be granted Options, the time when each Option shall be granted to such eligible
persons, the series and number of shares of Common Stock subject to such Option, and, subject to
Section 6.2, the purchase price of the shares of Common Stock subject to such Option.




          6.2. Option Price. The price at which shares may be purchased upon exercise of an Option shall be fixed by the
Committee and may be no less than the Fair Market Value of the shares of the applicable series of
Common Stock subject to the Option as of the date the Option is granted.




          6.3. Term of Options. Subject to the provisions of the Plan with respect to death, retirement and termination of
employment, the term of each Option shall be for such period as the Committee shall determine as
set forth in the applicable Agreement.




          6.4. Exercise of Options. An Option granted under the Plan shall become (and remain) exercisable during the term of the
Option to the extent provided in the applicable Agreement and the Plan and, unless the Agreement
otherwise provides, may be exercised to the extent exercisable, in whole or in part, at any time
and from time to time during such term; provided, however, that subsequent to the
grant of an Option, the Committee, at any time before complete termination of such Option, may
accelerate the time or times at which such Option may be exercised in whole or in part (without
reducing the term of such Option).




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          6.5. Manner of Exercise.




          (a) Form of Payment. An Option shall be exercised by written notice to the Company
upon such terms and conditions as the Agreement may provide and in accordance with such other
procedures for the exercise of Options as the Committee may establish from time to time. The
method or methods of payment of the purchase price for the shares to be purchased upon exercise of
an Option and of any amounts required by Section 11.9 shall be determined by the Committee and may
consist of (i) cash, (ii) check, (iii) whole
shares of any series of Common Stock, (iv) the withholding of shares of the applicable series of
Common Stock issuable upon such exercise of the Option, (v) the delivery, together with a properly
executed exercise notice, of irrevocable instructions to a broker to deliver promptly to the
Company the amount of sale or loan proceeds required to pay the purchase price, or (vi) any
combination of the foregoing methods of payment, or such other consideration and method of payment
as may be permitted for the issuance of shares under the Delaware General Corporation Law. The
permitted method or methods of payment of the amounts payable upon exercise of an Option, if other
than in cash, shall be set forth in the applicable Agreement and may be subject to such conditions
as the Committee deems appropriate.




          (b) Value of Shares. Unless otherwise determined by the Committee and provided in the
applicable Agreement, shares of any series of Common Stock delivered in payment of all or any part
of the amounts payable in connection with the exercise of an Option, and shares of any series of
Common Stock withheld for such payment, shall be valued for such purpose at their Fair Market Value
as of the exercise date.




          (c) Issuance of Shares. The Company shall effect the transfer of the shares of Common
Stock purchased under the Option as soon as practicable after the exercise thereof and payment in
full of the purchase price therefor and of any amounts required by Section 11.9, and within a
reasonable time thereafter, such transfer shall be evidenced on the books of the Company. Unless
otherwise determined by the Committee and provided in the applicable Agreement, (i) no Holder or
other person exercising an Option shall have any of the rights of a stockholder of the Company with
respect to shares of Common Stock subject to an Option granted under the Plan until due exercise
and full payment has been made, and (ii) no adjustment shall be made for cash dividends or other
rights for which the record date is prior to the date of such due exercise and full payment.




          (d) Nontransferability. Unless otherwise determined by the Committee and provided in
the applicable Agreement, Options shall not be transferable other than by will or the laws of
descent and distribution or pursuant to a Domestic Relations Order, and, except as otherwise
required pursuant to a Domestic Relations Order, Options may be exercised during the lifetime of
the Holder thereof only by such Holder (or his or her court-appointed legal representative).




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ARTICLE VII




SARs




          7.1. Grant of SARs. Subject to the limitations of the Plan, SARs may be granted by the Committee to such eligible
persons in such numbers, with respect to any specified series of Common Stock, and at such times
during the term of the Plan as the Committee shall determine. A SAR may be granted to a Holder of
an Option (hereinafter called a “related Option”) with respect to all or a portion of the shares of
Common Stock subject to the related Option (a “Tandem SAR”) or may be granted separately to an
eligible employee (a “Free Standing SAR”). Subject to the limitations of the Plan, SARs shall be
exercisable in whole or in part upon notice to the Company upon such terms and conditions as are
provided in the Agreement.




          7.2. Tandem SARs. A Tandem SAR may be granted either concurrently with the grant of the related Option or at any
time thereafter prior to the complete exercise, termination, expiration or cancellation of such
related Option. Tandem SARs shall be exercisable only at the time and to the extent that the
related Option is exercisable (and may be subject to such additional limitations on exercisability
as the Agreement may provide) and in no event after the complete termination or full exercise of
the related Option. Upon the exercise or termination of the related Option, the Tandem SARs with
respect thereto shall be canceled automatically to the extent of the number of shares of Common
Stock with respect to which the related Option was so exercised or terminated. Subject to the
limitations of the Plan, upon the exercise of a Tandem SAR and unless otherwise determined by the
Committee and provided in the applicable Agreement, (i) the Holder thereof shall be entitled to
receive from the Company, for each share of the applicable series of Common Stock with respect to
which the Tandem SAR is being exercised, consideration (in the form
determined as provided in Section 7.4) equal in value to the excess of the Fair Market Value of a
share of the applicable series of Common Stock with respect to which the Tandem SAR was granted on
the date of exercise over the related Option purchase price per share, and (ii) the related Option
with respect thereto shall be canceled automatically to the extent of the number of shares of
Common Stock with respect to which the Tandem SAR was so exercised.




          7.3. Free Standing SARs. Free Standing SARs shall be exercisable at the time, to the extent and upon the terms and
conditions set forth in the applicable Agreement. The base price of a Free Standing SAR may be no
less than the Fair Market Value of the applicable series of Common Stock with respect to which the
Free Standing SAR was granted as of the date the Free Standing SAR is granted. Subject to the
limitations of the Plan, upon the exercise of a Free Standing SAR and unless otherwise determined
by the Committee and provided in the applicable Agreement, the Holder thereof shall be entitled to
receive from the Company, for each share of the applicable series of Common Stock with respect to
which the Free Standing SAR is being exercised, consideration (in the form determined as provided
in Section 7.4) equal in value to the excess of the Fair Market Value of a share of the
applicable series of Common Stock with respect to which the Free Standing SAR was granted on the
date of exercise over the base price per share of such Free Standing SAR.




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          7.4. Consideration. The consideration to be received upon the exercise of a SAR by the Holder shall be paid in cash,
shares of the applicable series of Common Stock with respect to which the SAR was granted (valued
at Fair Market Value on the date of exercise of such SAR), a combination of cash and such shares of
the applicable series of Common Stock or such other consideration, in each case, as provided in the
Agreement. No fractional shares of Common Stock shall be issuable upon exercise of a SAR, and
unless otherwise provided in the applicable Agreement, the Holder will receive cash in lieu of
fractional shares. Unless the Committee shall otherwise determine, to the extent a Free Standing
SAR is exercisable, it will be exercised automatically for cash on its expiration date.




          7.5. Limitations. The applicable Agreement may provide for a limit on the amount payable to a Holder upon exercise
of SARs at any time or in the aggregate, for a limit on the number of SARs that may be exercised by
the Holder in whole or in part for cash during any specified period, for a limit on the time
periods during which a Holder may exercise SARs, and for such other limits on the rights of the
Holder and such other terms and conditions of the SAR, including a condition that the SAR may be
exercised only in accordance with rules and regulations adopted from time to time, as the Committee
may determine. Unless otherwise so provided in the applicable Agreement, any such limit relating
to a Tandem SAR shall not restrict the exercisability of the related Option. Such rules and
regulations may govern the right to exercise SARs granted prior to the adoption or amendment of
such rules and regulations as well as SARs granted thereafter.




          7.6. Exercise. For purposes of this Article VII, the date of exercise of a SAR shall mean the date on which the
Company shall have received notice from the Holder of the SAR of the exercise of such SAR (unless
otherwise determined by the Committee and provided in the applicable Agreement).




          7.7. Nontransferability. Unless otherwise determined by the Committee and provided in the applicable Agreement, (i) SARs
shall not be transferable other than by will or the laws of descent and distribution or pursuant to
a Domestic Relations Order, and (ii) except as otherwise required pursuant to a Domestic Relations
Order, SARs may be exercised during the lifetime of the Holder thereof only by such Holder (or his
or her court-appointed legal representative).




ARTICLE VIII




RESTRICTED SHARES




          8.1. Grant. Subject to the limitations of the Plan, the Committee shall designate those eligible Persons to
be granted Awards of Restricted Shares, shall determine the time when each such Award shall be
granted, shall determine whether shares of Common Stock covered by Awards of Restricted Shares will
be issued at the beginning or the end of the Restriction Period and whether Dividend Equivalents
will be paid during the Restriction Period in the event shares of the applicable series of Common
Stock are to be issued at the end of the Restriction Period, and shall designate (or set forth the
basis for determining) the Vesting Date or Vesting Dates for each Award of Restricted Shares, and
may prescribe other restrictions, terms and conditions applicable to the vesting of such Restricted
Shares in addition to those provided



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in the Plan. The Committee shall determine the price, if any,
to be paid by the Holder for the Restricted Shares; provided, however, that the
issuance of Restricted Shares shall be made for at least the minimum consideration necessary to
permit such Restricted Shares to be deemed fully paid and nonassessable. All determinations made
by the Committee pursuant to this Section 8.1 shall be specified in the Agreement.




          8.2. Issuance of Restricted Shares at Beginning of the Restriction Period. If shares of the applicable series of Common Stock are issued at the beginning of the
Restriction Period, the stock certificate or certificates representing such Restricted Shares shall
be registered in the name of the Holder to whom such Restricted Shares shall have been awarded.
During the Restriction Period, certificates representing the Restricted Shares and any securities
constituting Retained Distributions shall bear a restrictive legend to the effect that ownership of
the Restricted Shares (and such Retained Distributions), and the enjoyment of all rights
appurtenant thereto, are subject to the restrictions, terms and conditions provided in the Plan and
the applicable Agreement. Such certificates shall remain in the custody of the Company or its
designee, and the Holder shall deposit with the custodian stock powers or other instruments of
assignment, each endorsed in blank, so as to permit retransfer to the Company of all or any portion
of the Restricted Shares and any securities constituting Retained Distributions that shall be
forfeited or otherwise not become vested in accordance with the Plan and the applicable Agreement.




          8.3. Restrictions. Restricted Shares issued at the beginning of the Restriction Period shall constitute issued and
outstanding shares of the applicable series of Common Stock for all corporate purposes. The Holder
will have the right to vote such Restricted Shares, to receive and retain such dividends and
distributions, as the Committee may designate, paid or distributed on such Restricted Shares, and
to exercise all other rights, powers and privileges of a Holder of shares of the applicable series
of Common Stock with respect to such Restricted Shares; EXCEPT, THAT, unless otherwise determined
by the Committee and provided in the applicable Agreement, (i) the Holder will not be entitled to
delivery of the stock certificate or certificates representing such Restricted Shares until the
Restriction Period shall have expired and unless all other vesting requirements with respect
thereto shall have been fulfilled or waived; (ii) the Company or its designee will retain custody
of the stock certificate or certificates representing the Restricted Shares during the Restriction
Period as provided in Section 8.2; (iii) other than such dividends and distributions as the
Committee may designate, the Company or its designee will retain custody of all distributions
(“Retained Distributions”) made or declared with respect to the Restricted Shares (and such
Retained Distributions will be subject to the same restrictions, terms and vesting, and other
conditions as are applicable to the Restricted Shares) until such time, if ever, as the Restricted
Shares with respect to which such Retained Distributions shall have been made, paid or declared
shall have become vested, and such Retained Distributions shall not bear interest or be segregated
in a separate account; (iv) the Holder may not sell, assign, transfer, pledge, exchange, encumber
or dispose of the Restricted Shares or any Retained Distributions or his interest in any of them
during the Restriction Period; and (v) a breach of any restrictions, terms or conditions provided
in the Plan or established by the Committee with respect to any Restricted Shares or Retained
Distributions will cause a forfeiture of such Restricted Shares and any Retained Distributions with
respect thereto.




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          8.4. Issuance of Stock at End of the Restriction Period. Restricted Shares issued at the end of the Restriction Period shall not constitute issued and
outstanding shares of the applicable series of Common Stock, and the Holder shall not have any of
the rights of a stockholder with respect to the shares of Common Stock covered by such an Award of
Restricted Shares, in each case until such shares shall have been transferred to the Holder at the
end of the Restriction Period. If and to the extent that shares of Common Stock are to be issued
at the end of the Restriction Period, the Holder shall be entitled to receive Dividend Equivalents
with respect to the shares of Common Stock covered thereby either (i) during the Restriction Period
or (ii) in accordance with the rules applicable to Retained Distributions, as the Committee may
specify in the Agreement.




          8.5. Cash Payments. In connection with any Award of Restricted Shares, an Agreement may provide for the payment of a
cash amount to the Holder of such Restricted Shares at any time after such Restricted Shares shall
have become vested. Such cash amounts shall be payable in accordance with such additional
restrictions, terms and conditions as shall be prescribed by the Committee in the Agreement and
shall be in addition to any other salary, incentive, bonus or other
compensation payments which such Holder shall be otherwise entitled or eligible to receive from the
Company.




          8.6. Completion of Restriction Period. On the Vesting Date with respect to each Award of Restricted Shares and the satisfaction of any
other applicable restrictions, terms and conditions, (i) all or the applicable portion of such
Restricted Shares shall become vested, (ii) any Retained Distributions and any unpaid Dividend
Equivalents with respect to such Restricted Shares shall become vested to the extent that the
Restricted Shares related thereto shall have become vested, and (iii) any cash amount to be
received by the Holder with respect to such Restricted Shares shall become payable, all in
accordance with the terms of the applicable Agreement. Any such Restricted Shares, Retained
Distributions and any unpaid Dividend Equivalents that shall not become vested shall be forfeited
to the Company, and the Holder shall not thereafter have any rights (including dividend and voting
rights) with respect to such Restricted Shares, Retained Distributions and any unpaid Dividend
Equivalents that shall have been so forfeited. The Committee may, in its discretion, provide that
the delivery of any Restricted Shares, Retained Distributions and unpaid Dividend Equivalents that
shall have become vested, and payment of any related cash amounts that shall have become payable
under this Article VIII, shall be deferred until such date or dates as the recipient may elect.
Any election of a recipient pursuant to the preceding sentence shall be filed in writing with the
Committee in accordance with such rules and regulations, including any deadline for the making of
such an election, as the Committee may provide, and shall be made in compliance with Section 409A
of the Code.




ARTICLE IX




STOCK UNITS




          9.1. Grant. In addition to granting Awards of Options, SARs and Restricted Shares, the Committee shall,
subject to the limitations of the Plan, have authority to grant to eligible Persons Awards of Stock
Units which may be in the form of shares of any specified series of Common Stock or units, the
value of which is based, in whole or in part, on the Fair



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Market Value of the shares of any
specified series of Common Stock. Subject to the provisions of the Plan, including any rules
established pursuant to Section 9.2, Awards of Stock Units shall be subject to such terms,
restrictions, conditions, vesting requirements and payment rules as the Committee may determine in
its discretion, which need not be identical for each Award. The determinations made by the
Committee pursuant to this Section 9.1 shall be specified in the applicable Agreement.




          9.2. Rules. The Committee may, in its discretion, establish any or all of the following rules for
application to an Award of Stock Units:





     (a) Any shares of Common Stock which are part of an Award of Stock Units may not be
assigned, sold, transferred, pledged or otherwise encumbered prior to the date
on which the shares are issued or, if later, the date provided by the Committee at the
time of the Award.




     (b)
Such Awards may provide for the payment of cash consideration by the person to whom
such Award is granted or provide that the Award, and any shares of Common Stock to be issued
in connection therewith, if applicable, shall be delivered without the payment of cash
consideration; provided, however, that the issuance of any shares of Common
Stock in connection with an Award of Stock Units shall be for at least the minimum
consideration necessary to permit such shares to be deemed fully paid and
nonassessable.




     (c) Awards of Stock Units may provide for deferred payment schedules, vesting over a
specified period of employment, the payment (on a current or deferred basis) of dividend
equivalent amounts with respect to the number of shares of Common Stock covered by the
Award, and elections by the employee to defer payment of the Award or the lifting of
restrictions on the Award, if any, provided that any such deferrals shall comply with the
requirements of Section 409A of the Code.




     (d) In such circumstances as the Committee may deem advisable, the Committee may waive
or otherwise remove, in whole or in part, any restrictions or limitations to which a Stock
Unit Award was made subject at the time of grant.



ARTICLE X




CASH AWARDS AND PERFORMANCE AWARDS




          10.1. Cash Awards. In addition to granting Options, SARs, Restricted Shares and Stock Units, the Committee shall,
subject to the limitations of the Plan, have authority to grant to
eligible persons Cash Awards.
Each Cash Award shall be subject to such terms and conditions, restrictions and contingencies, as the Committee shall determine. Restrictions and contingencies limiting the right to
receive a cash payment pursuant to a Cash Award shall be based upon the achievement of single or
multiple Performance Objectives over a performance period established by the Committee. The
determinations made by the Committee pursuant to this Section 10.1 shall be specified in the
applicable Agreement.





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          10.2. Designation as a Performance Award. The Committee shall have the right to designate any Award of Options, SARs, Restricted Shares or
Stock Units as a Performance Award. All Cash Awards shall be designated as Performance Awards.




          10.3. Performance Objectives. The grant or vesting of a Performance Award shall be subject to the achievement of Performance
Objectives over a performance period established by the Committee based upon one or more of the
following business criteria that apply to the Holder, one or more business
units, divisions or Subsidiaries of the Company or the applicable sector of the Company, or the
Company as a whole, and if so desired by the Committee, by comparison with a peer group of
companies: increased revenue; net income measures (including income after capital costs and income
before or after taxes); stock price measures (including growth measures and total stockholder
return); price per share of Common Stock; market share; earnings per share (actual or targeted
growth); earnings before interest, taxes, depreciation and amortization (EBITDA); economic value
added (or an equivalent metric); market value added; debt to equity ratio; cash flow measures
(including cash flow return on capital, cash flow return on tangible capital, net cash flow and net
cash flow before financing activities); return measures (including return on equity, return on
average assets, return on capital, risk-adjusted return on capital, return on investors’ capital
and return on average equity); operating measures (including operating income, funds from
operations, cash from operations, after-tax operating income, sales volumes, production volumes and
production efficiency); expense measures (including overhead cost and general and administrative
expense); margins; stockholder value; total stockholder return; proceeds from dispositions; total
market value and corporate values measures (including ethics compliance, environmental and safety).
Unless otherwise stated, such a Performance Objective need not be based upon an increase or
positive result under a particular business criterion and could include, for example, maintaining
the status quo or limiting economic losses (measured, in each case, by reference to specific
business criteria). The Committee shall have the authority to determine whether the Performance
Objectives and other terms and conditions of the Award are satisfied, and the Committee’s
determination as to the achievement of Performance Objectives relating to a Performance Award shall
be made in writing.




          10.4. Section 162(m) of the Code. Notwithstanding the foregoing provisions, if the Committee intends for a Performance Award to be
granted and administered in a manner designed to preserve the deductibility of the compensation
resulting from such Award in accordance with Section 162(m) of the
Code, then (x) the Performance
Objectives for such particular Performance Award relative to the particular period of service to
which the Performance Objectives relate shall be established by the Committee in writing (i) no
later than 90 days after the beginning of such period and (ii) prior to the completion of 25% of
such period and (y) the terms of the Performance Award will be
designed so that any other applicable requirements set forth in
Sections 162(m) of the Code and the Treasury Regulations promulgated
thereunder will be met.




          10.5. Waiver of Performance Objectives. The Committee shall have no discretion to modify or waive the Performance Objectives or
conditions to the grant or vesting of a Performance Award unless such Award is not intended to
qualify as qualified performance-based compensation under Section 162(m) of the Code and the
relevant Agreement provides for such discretion.




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ARTICLE XI




GENERAL PROVISIONS




          11.1. Acceleration of Awards.




          (a) Death or Disability. If a Holder’s employment shall terminate by reason of death
or Disability, notwithstanding any contrary waiting period, installment period, vesting schedule or
Restriction Period in any Agreement or in the Plan, unless the applicable Agreement provides
otherwise:





     (i) in the case of an Option or SAR, each outstanding Option or SAR granted under the
Plan shall immediately become exercisable in full in respect of the aggregate number of
shares covered thereby;




     (ii) in the case of Restricted Shares, the Restriction Period applicable to each such
Award of Restricted Shares shall be deemed to have expired and all such Restricted Shares,
any related Retained Distributions and any unpaid Dividend Equivalents shall become vested
and any related cash amounts payable pursuant to the applicable Agreement shall be adjusted
in such manner as may be provided in the Agreement; and




     (iii) in the case of Stock Units, each such Award of Stock Units shall become vested in
full.



          (b) Approved Transactions; Board Change; Control Purchase. In the event of any
Approved Transaction, Board Change or Control Purchase, notwithstanding any contrary waiting
period, installment period, vesting schedule or Restriction Period in any Agreement or in the Plan,
unless the applicable Agreement provides otherwise:





     (i) in the case of an Option or SAR, each such outstanding Option or SAR granted under
the Plan shall become exercisable in full in respect of the aggregate number of shares
covered thereby;




     (ii) in the case of Restricted Shares, the Restriction Period applicable to each such
Award of Restricted Shares shall be deemed to have expired and all such Restricted Shares,
any related Retained Distributions and any unpaid Dividend Equivalents shall become vested
and any related cash amounts payable pursuant to the applicable Agreement shall be adjusted
in such manner as may be provided in the Agreement; and




     (iii) in the case of Stock Units, each such Award of Stock Units shall become vested in
full, in each case effective upon the Board Change or Control Purchase or immediately prior
to consummation of the Approved Transaction.



     The effect, if any, on a Cash Award of an
Approved Transaction, Board Change or Control Purchase shall be prescribed in the applicable
Agreement.



     Notwithstanding the foregoing, unless otherwise provided in the applicable
Agreement, the Committee may, in its discretion, determine that any or all outstanding
Awards of any or all types granted pursuant to the Plan will not vest or become exercisable
on an accelerated basis in connection with an Approved Transaction if effective provision
has been made for the taking of such action which, in



15









 







the opinion of the Committee, is
equitable and appropriate to substitute a new Award for such Award or to assume such Award
and to make such new or assumed Award, as nearly as may be practicable, equivalent to the
old Award (before giving effect to any acceleration of the vesting or exercisability
thereof), taking into account, to the extent applicable, the kind and amount of securities,
cash or other assets into or for which the
applicable series of Common Stock may be changed, converted or exchanged in connection
with the Approved Transaction.



          11.2. Termination of Employment.




          (a) General. If a Holder’s employment shall terminate prior to an Option or SAR
becoming exercisable or being exercised (or deemed exercised, as provided in Section 7.2) in full,
or during the Restriction Period with respect to any Restricted Shares or prior to the vesting or
complete exercise of any Stock Units, then such Option or SAR shall thereafter become or be
exercisable, such Stock Units to the extent vested shall thereafter be exercisable, and the
Holder’s rights to any unvested Restricted Shares, Retained Distributions, unpaid Dividend
Equivalents and related cash amounts and any such unvested Stock Units shall thereafter vest, in
each case solely to the extent provided in the applicable Agreement; provided,
however, that, unless otherwise determined by the Committee and provided in the applicable
Agreement, (i) no Option or SAR may be exercised after the scheduled expiration date thereof; (ii)
if the Holder’s employment terminates by reason of death or Disability, the Option or SAR shall
remain exercisable for a period of at least one year following such termination (but not later than
the scheduled expiration of such Option or SAR); and (iii) any termination of the Holder’s
employment for cause will be treated in accordance with the provisions of Section 11.2(b). The
effect on a Cash Award of the termination of a Holder’s employment for any reason, other than for
cause, shall be prescribed in the applicable Agreement.




          (b) Termination for Cause. If a Holder’s employment with the Company or a Subsidiary
of the Company shall be terminated by the Company or such Subsidiary for “cause” during the
Restriction Period with respect to any Restricted Shares or prior to any Option or SAR becoming
exercisable or being exercised in full or prior to the vesting or complete exercise of any Stock
Unit or the payment in full of any Cash Award (for these purposes, “cause” shall have the meaning
ascribed thereto in any employment agreement to which such Holder is a party or, in the absence
thereof, shall include insubordination, dishonesty, incompetence, moral turpitude, other misconduct
of any kind and the refusal to perform his duties and responsibilities for any reason other than
illness or incapacity; provided, however, that if such termination occurs within 12
months after an Approved Transaction or Control Purchase or Board Change, termination for “cause”
shall mean only a felony conviction for fraud, misappropriation, or embezzlement), then, unless
otherwise determined by the Committee and provided in the applicable Agreement, (i) all Options and
SARs and all unvested or unexercised Stock Units and all unpaid Cash Awards held by such Holder
shall immediately terminate, and (ii) such Holder’s rights to all Restricted Shares, Retained
Distributions, any unpaid Dividend Equivalents and any related cash amounts shall be forfeited
immediately.




          (c) Miscellaneous. The Committee may determine whether any given leave of absence
constitutes a termination of employment; provided, however, that for purposes of
the Plan, (i) a leave of absence, duly authorized in writing by the Company for military service or




16









 







sickness, or for any other purpose approved by the Company if the period of such leave does not
exceed 90 days, and (ii) a leave of absence in excess of 90 days, duly authorized in writing by the
Company provided the employee’s right to reemployment is guaranteed either by statute or
contract, shall not be deemed a termination of employment. Unless otherwise determined by the
Committee and provided in the applicable Agreement, Awards made under the Plan shall not be
affected by any change of employment so long as the Holder continues to be an employee of the
Company.




          11.3. Right of Company to Terminate Employment. Nothing contained in the Plan or in any Award, and no action of the Company or the Committee
with respect thereto, shall confer or be construed to confer on any Holder any right to continue in
the employ of the Company or any of its Subsidiaries or interfere in any way with the right of the
Company or any Subsidiary of the Company to terminate the employment of the Holder at any time,
with or without cause, subject, however, to the provisions of any employment agreement between the
Holder and the Company or any Subsidiary of the Company.




          11.4. Nonalienation of Benefits. Except as set forth herein, no right or benefit under the Plan shall be subject to anticipation,
alienation, sale, assignment, hypothecation, pledge, exchange, transfer, encumbrance or charge, and
any attempt to anticipate, alienate, sell, assign, hypothecate, pledge, exchange, transfer,
encumber or charge the same shall be void. No right or benefit hereunder shall in any manner be
liable for or subject to the debts, contracts, liabilities or torts of the Person entitled to such
benefits.




          11.5. Written Agreement. Each Award of Options shall be evidenced by a stock option agreement; each Award of SARs shall
be evidenced by a stock appreciation rights agreement; each Award of Restricted Shares shall be
evidenced by a restricted shares agreement; each Award of Stock Units shall be evidenced by a stock
units agreement; and each Performance Award shall be evidenced by a performance award agreement
(including a cash award agreement evidencing a Cash Award), each in such form and containing such
terms and provisions not inconsistent with the provisions of the Plan as the Committee from time to
time shall approve; provided, however, that if more than one type of Award is made
to the same Holder, such Awards may be evidenced by a single Agreement with such Holder. Each
grantee of an Option, SAR, Restricted Shares, Stock Units or Performance Award (including a Cash
Award) shall be notified promptly of such grant, and a written Agreement shall be promptly executed
and delivered by the Company. Any such written Agreement may contain (but shall not be required to
contain) such provisions as the Committee deems appropriate (i) to insure that the penalty
provisions of Section 4999 of the Code will not apply to any stock or cash received by the Holder
from the Company or (ii) to provide cash payments to the Holder to mitigate the impact of such
penalty provisions upon the Holder. Any such Agreement may be supplemented or amended from time to
time as approved by the Committee as contemplated by Section 11.7(b).




          11.6. Designation of Beneficiaries. Each Person who shall be granted an Award under the Plan may designate a beneficiary or
beneficiaries and may change such designation from time to time by filing a written designation
of beneficiary or beneficiaries with the Committee on a form to be prescribed by it, provided that
no such designation shall be effective unless so filed prior to the death of such Person.




17









 








          11.7. Termination and Amendment.




          (a) General. Unless the Plan shall theretofore have been terminated as hereinafter
provided, no Awards may be made under the Plan on or after the tenth anniversary of the Effective
Date. The Plan may be terminated at any time prior to such date and may, from time to time, be
suspended or discontinued or modified or amended if such action is deemed advisable by the
Committee.




          (b) Modification. No termination, modification or amendment of the Plan may, without
the consent of the Person to whom any Award shall theretofore have been granted, adversely affect
the rights of such Person with respect to such Award except as otherwise permitted by Section
11.17. No modification, extension, renewal or other change in any Award granted under the Plan
shall be made after the grant of such Award, unless the same is consistent with the provisions of
the Plan, or as otherwise permitted by Section 11.17. With the consent of the Holder and subject
to the terms and conditions of the Plan (including Section 11.7(a)), or as otherwise permitted by
Section 11.17, the Committee may amend outstanding Agreements with any Holder, including any
amendment which would (i) accelerate the time or times at which the Award may be exercised and/or
(ii) extend the scheduled expiration date of the Award (except that no such acceleration or
extension shall result in the imposition of an additional tax under Section 409A (as defined
below)). Without limiting the generality of the foregoing, the Committee may, but solely with the
Holder’s consent unless otherwise provided in the Agreement (or pursuant to Section 11.17), agree
to cancel any Award under the Plan and grant a new Award in substitution therefor, provided that
the Award so substituted shall satisfy all of the requirements of the Plan as of the date such new
Award is made (and shall not result in the imposition of an additional tax under Section 409A).
Nothing contained in the foregoing provisions of this Section 11.7(b) shall be construed to prevent
the Committee from providing in any Agreement that the rights of the Holder with respect to the
Award evidenced thereby shall be subject to such rules and regulations as the Committee may,
subject to the express provisions of the Plan, adopt from time to time or impair the enforceability
of any such provision.




          11.8. Government and Other Regulations. The obligation of the Company with respect to Awards shall be subject to all applicable laws,
rules and regulations and such approvals by any governmental agencies as may be required, including
the effectiveness of any registration statement required under the Securities Act of 1933, and the
rules and regulations of any securities exchange or association on which the Common Stock may be
listed or quoted. For so long as any series of Common Stock are registered under the Exchange Act,
the Company shall use its reasonable efforts to comply with any legal requirements (i) to maintain
a registration statement in effect under the Securities Act of 1933 with respect to all shares of
the applicable series of Common Stock that may be issued to Holders under the Plan and (ii) to file
in a timely manner all reports required to be filed by it under the Exchange Act.




          11.9. Withholding. The Company’s obligation to deliver shares of Common Stock or pay cash in respect of any Award
under the Plan shall be subject to applicable federal, state and local tax withholding
requirements. Federal, state and local withholding tax due at the time of an Award, upon the
exercise of any Option or SAR or upon the vesting of, or expiration of restrictions with respect
to, Restricted Shares or Stock Units or the satisfaction of the Performance Objectives applicable
to a Performance Award, as appropriate, may, in the




18









 







discretion of the Committee, be paid in shares
of the applicable series of Common Stock already owned by the Holder or through the withholding of
shares otherwise issuable to such Holder, upon such terms and conditions (including the conditions
referenced in Section 6.5) as the Committee shall determine. If the Holder shall fail to pay, or
make arrangements satisfactory to the Committee for the payment to the Company of, all such
federal, state and local taxes required to be withheld by the Company, then the Company shall, to
the extent permitted by law, have the right to deduct from any payment of any kind otherwise due to
such Holder an amount equal to any federal, state or local taxes of any kind required to be
withheld by the Company with respect to such Award.




          11.10. Nonexclusivity of the Plan. The adoption of the Plan by the Board shall not be construed as creating any limitations on the
power of the Board to adopt such other incentive arrangements as it may deem desirable, including
the granting of stock options and the awarding of stock and cash otherwise than under the Plan, and
such arrangements may be either generally applicable or applicable only in specific cases.




          11.11. Exclusion from Pension and Profit-Sharing Computation. By acceptance of an Award, unless otherwise provided in the applicable Agreement, each Holder
shall be deemed to have agreed that such Award is special incentive compensation that will not be
taken into account, in any manner, as salary, compensation or bonus in determining the amount of
any payment under any pension, retirement or other employee benefit plan, program or policy of the
Company or any Subsidiary of the Company. In addition, each beneficiary of a deceased Holder shall
be deemed to have agreed that such Award will not affect the amount of any life insurance coverage,
if any, provided by the Company on the life of the Holder which is payable to such beneficiary
under any life insurance plan covering employees of the Company or any Subsidiary of the Company.




          11.12. Unfunded Plan. Neither the Company nor any Subsidiary of the Company shall be required to segregate any cash or
any shares of Common Stock which may at any time be represented by Awards, and the Plan shall
constitute an “unfunded” plan of the Company. Except as provided in Article VIII with respect to
Awards of Restricted Shares and except as expressly set forth in an Agreement, no employee shall
have voting or other rights with respect to the shares of Common Stock covered by an Award prior to
the delivery of such shares. Neither the Company nor any Subsidiary of the Company shall, by any
provisions of the Plan, be deemed to be a trustee of any shares of Common Stock or any other
property, and the liabilities of the Company and any
Subsidiary of the Company to any employee pursuant to the Plan shall be those of a debtor pursuant
to such contract obligations as are created by or pursuant to the Plan, and the rights of any
employee, former employee or beneficiary under the Plan shall be limited to those of a general
creditor of the Company or the applicable Subsidiary of the Company, as the case may be. In its
sole discretion, the Board may authorize the creation of trusts or other arrangements to meet the
obligations of the Company under the Plan, provided, however, that the existence of
such trusts or other arrangements is consistent with the unfunded status of the Plan.




          11.13. Governing Law. The Plan shall be governed by, and construed in accordance with, the laws of the State of
Delaware.




19









 








          11.14. Accounts. The delivery of any shares of Common Stock and the payment of any amount in respect of an Award
shall be for the account of the Company or the applicable Subsidiary of the Company, as the case
may be, and any such delivery or payment shall not be made until the recipient shall have paid or
made satisfactory arrangements for the payment of any applicable withholding taxes as provided in
Section 11.9.




          11.15. Legends. Each certificate evidencing shares of Common Stock subject to an Award shall bear such legends
as the Committee deems necessary or appropriate to reflect or refer to any terms, conditions or
restrictions of the Award applicable to such shares, including any to the effect that the shares
represented thereby may not be disposed of unless the Company has received an opinion of counsel,
acceptable to the Company, that such disposition will not violate any federal or state securities
laws.




          11.16. Company’s Rights. The grant of Awards pursuant to the Plan shall not affect in any way the right or power of the
Company to make reclassifications, reorganizations or other changes of or to its capital or
business structure or to merge, consolidate, liquidate, sell or otherwise dispose of all or any
part of its business or assets.




          11.17. Section 409A. Notwithstanding anything in this Plan to the contrary, if any Plan provision or Award under the
Plan would result in the imposition of an additional tax under
Section 409A of the Code and related
regulations and United States Department of the Treasury pronouncements (“Section 409A”), that Plan
provision or Award will be reformed to avoid imposition of the applicable tax and no action taken
to comply with Section 409A shall require the Holder’s consent or be deemed to adversely affect the
Holder’s rights to an Award.




          11.18. Construction. The words “include,” “includes,” “included” and “including” to
the extent used in the Plan shall be deemed in each case to be followed by the words “without
limitation.”





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