exhibit10_1.htm


    
      
        

      
Exhibit 10.1


    McMoRan
EXPLORATION CO.

    2008
STOCK INCENTIVE PLAN

     

    SECTION
1

     

    Purpose.  The
purpose of the McMoRan Exploration Co. 2008 Stock Incentive Plan (the “Plan”) is
to increase stockholder value and advance the interests of the Company and its
Subsidiaries by furnishing a variety of equity incentives designed to attract,
retain and motivate key employees, officers and directors of the Company and
consultants and advisers to the Company and to strengthen the mutuality of
interests among such persons and the Company’s stockholders.

     

    SECTION
2

     

    Definitions.  As
used in the Plan, the following terms shall have the meanings set forth
below:

     

    “Award”
shall mean any Option, Stock Appreciation Right, Restricted Stock, Restricted
Stock Unit or Other Stock-Based Award.

     

    “Award
Agreement” shall mean any written or electronic notice of grant, agreement,
contract or other instrument or document evidencing any Award, which may, but
need not, be required to be executed,
acknowledged or accepted by a Participant.

     

    “Board”
shall mean the Board of Directors of the Company.

     

    “Code”
shall mean the Internal Revenue Code of 1986, as amended from time to
time.

     

    “Committee”
refers to the Corporate Personnel Committee of the Board, the Nominating and
Corporate Governance Committee of the Board, or both committees, as the context
indicates.

     

    “Common
Stock” shall mean shares of common stock, par value $0.01 per share, of the
Company.

     

    “Company”
shall mean McMoRan Exploration Co.

     

    “Designated
Beneficiary” shall mean the beneficiary designated by the Participant, in a
manner determined by the Committee, to receive the benefits due the Participant
under the Plan in the event of the Participant’s death.  In the
absence of an effective designation by the Participant, Designated Beneficiary
shall mean the Participant’s estate.

     

    “Eligible
Individual” shall mean (i) any person providing services as an officer of the
Company or a Subsidiary, whether or not employed by such entity, including any
such person who is also a director of the Company, (ii) any employee of the
Company or a Subsidiary, including any director who is also an employee of the
Company or a Subsidiary, (iii) any officer or employee of an entity with which
the Company has contracted to receive executive, management or legal services
who provides services to the Company or a Subsidiary through such arrangement,
(iv) any consultant or adviser to the Company, a Subsidiary or to an entity
described in clause (iii) hereof who provides services to the Company or a
Subsidiary through such arrangement, (v) any person who has agreed in writing to
become a person described in clauses (i), (ii), (iii) or (iv) within not more
than 30 days following the date of grant of such person’s first Award under the
Plan, and (vi) Outside Directors.

     

    “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended from time to
time.

     

    “Incentive
Stock Option” shall mean an option granted under Section 6 of the Plan that is
intended to meet the requirements of Section 422 of the Code or any successor
provision thereto.

     

    “Nonqualified
Stock Option” shall mean an option granted under Section 6 of the Plan that is
not intended to be an Incentive Stock Option.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    “Option”
shall mean an Incentive Stock Option or a Nonqualified Stock
Option.

     

    “Other
Stock-Based Award” shall mean any right or award granted under Section 10 of the
Plan.

     

    “Outside
Directors” shall mean members of the Board who are not employees of the Company,
and shall include advisory directors to the Board.

     

    “Participant”
shall mean any Eligible Individual granted an Award under the Plan.

     

    “Person”
shall mean any individual, corporation, partnership, limited liability company,
association, joint-stock company, trust, unincorporated organization, government
or political subdivision thereof or other entity.

     

    “Restricted
Stock” shall mean any restricted stock granted under Section 8 of the
Plan.

     

    “Restricted
Stock Unit” shall mean any restricted stock unit granted under Section 9 of the
Plan.

     

    “Section
162(m)” shall mean Section 162(m) of the Code and all regulations promulgated
thereunder as in effect from time to time.

     

    “Section
409A” shall mean Section 409A of the Code and all regulations and guidance
promulgated thereunder as in effect from time to time.

     

    “Shares”
shall mean the shares of Common Stock and such other securities of the Company
or a Subsidiary as the Committee may from time to time designate.

     

    “Stock
Appreciation Right” shall mean any right granted under Section 7 of the
Plan.

     

    “Subsidiary”
shall mean (i) any corporation or other entity in which the Company possesses
directly or indirectly equity interests representing at least 50% of the total
ordinary voting power or at least 50% of the total value of all classes of
equity interests of such corporation or other entity and (ii) any other entity
in which the Company has a direct or indirect economic interest that is
designated as a Subsidiary by the Committee.

     

    SECTION
3

     

    (a) Administration.  The
Plan shall generally be administered by the Corporate Personnel
Committee.  The Nominating and Corporate Governance Committee of the
Board shall administer the Plan with respect to grants to Outside
Directors.  Members of the Corporate Personnel Committee and the
Nominating and Corporate Governance Committee shall qualify as “non-employee
directors” under Rule 16b-3 under the 1934 Act.  Subject to the terms
of the Plan and applicable law, and in addition to other express powers and
authorizations conferred on the Committee by the Plan, the Nominating and
Corporate Governance Committee (with respect to Outside Directors) and the
Corporate Personnel Committee (with respect to all other Eligible Individuals)
shall have full power and authority to: (i) designate Participants; (ii)
determine the type or types of Awards to be granted to an Eligible Individual;
(iii) determine the number of Shares to be covered by, or with respect to which
payments, rights or other matters are to be calculated in connection with,
Awards; (iv) determine the terms and conditions of any Award; (v) determine
whether, to what extent, and under what circumstances Awards may be settled or
exercised in cash, whole Shares, other whole securities, other Awards, other
property or other cash amounts payable by the Company upon the exercise of that
or other Awards, or canceled, forfeited or suspended and the method or methods
by which Awards may be settled, exercised, canceled, forfeited or suspended;
(vi) determine whether, to what extent, and under what circumstances cash,
Shares, other securities, other Awards, other property, and other amounts
payable by the Company with respect to an Award shall be deferred either
automatically or at the election of the holder thereof or of the Committee;
(vii) interpret and administer the Plan and any instrument or agreement relating
to, or Award made under, the Plan; (viii) establish, amend, suspend or waive
such rules and regulations and appoint such agents as it shall deem appropriate
for the proper administration of the Plan; and (ix) make any other determination
and take any other action that the Committee deems necessary or desirable for
the administration of the Plan.  Unless otherwise expressly provided
in the Plan, all designations, determinations, interpretations and other
decisions under 

     

    
      
         

      

      
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    or with
respect to the Plan or any Award shall be within the sole discretion of the
applicable Committee, may be made at any time and shall be final, conclusive and
binding upon all Persons, including the Company, any Subsidiary, any
Participant, any holder or beneficiary of any Award, any stockholder of the
Company and any Eligible Individual.

     

    (b) Delegation.  Subject
to the terms of the Plan and applicable law, the Committee may delegate to one
or more officers of the Company the authority, subject to such terms and
limitations as the Committee shall determine, to grant and set the terms of, to
cancel, modify or waive rights with respect to, or to alter, discontinue,
suspend, or terminate Awards held by Eligible Individuals who are not officers
or directors of the Company for purposes of Section 16 of the Exchange Act, or
any successor section thereto, or who are otherwise not subject to such Section;
provided, however, that the per share exercise price of any Option granted under
this Section 3(b) shall be equal to the fair market value of the underlying
Shares on the date of grant.

     

    SECTION
4

     

    Eligibility.                      Any
Eligible Individual shall be eligible to be granted an Award.

     

    SECTION
5

     

    (a) Shares Available for
Awards.  Subject to adjustment as provided in Section
5(b):

     

    (i) Calculation of Number of
Shares Available.

     

    (A) Subject
to the other provisions of this Section 5(a), the number of Shares with respect
to which Awards payable in Shares may be granted under the Plan shall be
5,500,000.  Awards that by their terms may be settled only in cash
shall not be counted against the maximum number of Shares provided
herein.

     

    (B) The
number of Shares that may be issued pursuant to Incentive Stock Options may not
exceed 5,500,000 Shares.

     

    (C) Subject
to the other provisions of this Section 5(a):

     

    (1) the
maximum number of Shares with respect to which Awards in the form of Restricted
Stock, Restricted Stock Units or Other Stock-Based Awards payable in Shares for
which a per share purchase price that is less than 100% of the fair market value
of the securities to which the Award relates shall be 1,650,000 Shares;
and

     

    (2) up to
275,000 Shares may be issued pursuant to Awards to employees, consultants or
advisers in the form of Restricted Stock, Restricted Stock Units or Other
Stock-Based Awards payable in Shares without compliance with the minimum vesting
periods set forth in Sections 8(b), 9(b), and 10(b), respectively.  If
(x) Restricted Stock, Restricted Stock Units or an Other Stock-Based Award is
granted with a minimum vesting period of at least three years or a minimum
vesting period of at least one year, subject to the attainment of specific
performance goals, and (y) the vesting of such Award is accelerated in
accordance with Section 12(a) hereof as a result of the Participant’s death,
retirement or other termination of employment or cessation of consulting or
advisory services to the Company, or a change in control of the Company, such
Shares shall not count against the 275,000 limitation described
herein.

     

    (D) To the
extent any Shares covered by an Award are not issued because the Award is
forfeited or canceled or the Award is settled in cash, such Shares shall again
be available for grant pursuant to new Awards under the Plan.

     

    (E) In the
event that Shares are issued as Restricted Stock or Other Stock-Based Awards
under the Plan and thereafter are forfeited or reacquired by the Company
pursuant to rights reserved upon issuance thereof, such Shares shall again be
available for grant pursuant to new Awards under the Plan.  With


     

    
      
         

      

      
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    respect
to Stock Appreciation Rights, if the Award is payable in Shares, all Shares to
which the Award relates are counted against the Plan limits, rather than the net
number of Shares delivered upon exercise of the Award.

     

    (F) The
maximum value of an Other Stock-Based Award that is valued in dollars (whether
or not paid in Common Stock) scheduled to be paid out to any one participant in
any calendar year shall be $5 million.

     

    (ii) Shares Deliverable Under
Awards.  Any Shares delivered pursuant to an Award may consist
of authorized and unissued Shares or of treasury Shares, including Shares held
by the Company or a Subsidiary and Shares acquired in the open market or
otherwise obtained by the Company or a Subsidiary.  The issuance of
Shares may be effected on a non-certificated basis, to the extent not prohibited
by applicable law or the applicable rules of any stock exchange.

     

    (iii) Individual
Limits.  The maximum number of Shares of Common Stock that may
be covered by Awards granted under the Plan to any Outside Director during a
calendar year shall be 50,000 Shares, and the maximum number of Shares of Common
Stock that may be covered by Awards granted under the Plan to other Participants
during a calendar year shall be 500,000 Shares.

     

    (iv) Use of
Shares.  Subject to the terms of the Plan and the overall
limitation on the number of Shares that may be delivered under the Plan, the
Committee may use available Shares as the form of payment for compensation,
grants or rights earned or due under any other compensation plans or
arrangements of the Company or a Subsidiary and the plans or arrangements of the
Company or a Subsidiary assumed in business combinations.

     

    (b) Adjustments.  In
the event that the Committee determines that any dividend or other distribution
(whether in the form of cash, Shares, Subsidiary securities, other securities or
other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of Shares or other securities of the Company, issuance of
warrants or other rights to purchase Shares or other securities of the Company,
or other similar corporate transaction or event affects the Shares such that an
adjustment is determined by the Committee to be appropriate to prevent dilution
or enlargement of the benefits or potential benefits intended to be made
available under the Plan, then the Committee shall, in such manner as it may
deem equitable, adjust any or all of (i) the number and type of Shares (or other
securities or property) with respect to which Awards may be granted, (ii) the
number and type of Shares (or other securities or property) subject to
outstanding Awards, and (iii) the grant or exercise price with respect to any
Award and, if deemed appropriate, make provision for a cash payment to the
holder of an outstanding Award and, if deemed appropriate, adjust outstanding
Awards to provide the rights contemplated by Section 11(b) hereof; provided, in
each case, that with respect to Awards of Incentive Stock Options no such
adjustment shall be authorized to the extent that such authority would cause the
Plan to violate Section 422(b)(1) of the Code or any successor provision thereto
and, with respect to all Awards under the Plan, no such adjustment shall be
authorized to the extent that such authority would be inconsistent with the
requirements for full deductibility under Section 162(m); and provided further
that the number of Shares subject to any Award denominated in Shares shall
always be a whole number.

     

    (c) Performance Goals for
Section 162(m) Awards.  The Committee shall determine at the
time of grant if the grant of Restricted Stock, Restricted Stock Units or an
Other Stock-Based Award is intended to qualify as “performance-based
compensation” as that term is used in Section 162(m).  Any such grant
shall be conditioned on the achievement of one or more performance
measures.  The performance measures pursuant to which Restricted
Stock, Restricted Stock Units and Other Stock-Based Awards shall vest shall be
any or a combination of the following:  earnings per share, return on
assets, an economic value added measure, shareholder return, earnings, share
price, return on equity, return on investment, return on fully-employed capital,
reduction of expenses, containment of expenses within budget, reserve
recognition, addition to reserves, cash provided by operating activities,
increase in cash flow, return on cash flow, cash flow per equivalent barrel,
finding costs per equivalent barrel, or increase in production of the Company, a
division of the Company or a Subsidiary.  For any performance period,
such performance objectives may be measured on an absolute basis or relative to
a group of peer companies selected by the Committee, relative to internal goals
or relative to levels attained in prior years.  For grants of
Restricted Stock, Restricted Stock Units and Other Stock-Based Awards intended
to qualify as “performance-based compensation,” the grants and the establishment
of performance measures shall be made during the period required under Section
162(m).

     

    
      
         

      

      
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    SECTION
6

     

    (a) Stock
Options.  Subject to the provisions of the Plan, the Committee
shall have sole and complete authority to determine the Eligible Individuals to
whom Options shall be granted, the number of Shares to be covered by each
Option, the option price thereof, the conditions and limitations applicable to
the exercise of the Option and the other terms thereof.  The Committee
shall have the authority to grant Incentive Stock Options, Nonqualified Stock
Options or both.  In the case of Incentive Stock Options, the terms
and conditions of such grants shall be subject to and comply with such rules as
may be required by Section 422 of the Code, as from time to time amended, and
any implementing regulations.  Except in the case of an Option granted
in assumption of or substitution for an outstanding award of a company acquired
by the Company or with which the Company combines, the exercise price of any
Option granted under this Plan shall not be less than 100% of the fair market
value of the underlying Shares on the date of grant.

     

    (b) Exercise.  Each
Option shall be exercisable at such times and subject to such terms and
conditions as the Committee may, in its sole discretion, specify in the
applicable Award Agreement or thereafter, provided, however, that in no event
may any Option granted hereunder be exercisable after the expiration of 10 years
after the date of such grant.  The Committee may impose such
conditions with respect to the exercise of Options, including without
limitation, any condition relating to the application of Federal or state
securities laws, as it may deem necessary or advisable.  An Option may
be exercised, in whole or in part, by giving written notice to the Company,
specifying the number of Shares to be purchased.  The exercise notice
shall be accompanied by the full purchase price for the Shares.

     

    (c) Payment.  The
Option price shall be payable in United States dollars and may be paid by (i)
cash or cash equivalent; (ii) delivery of shares of Common Stock, which shares
shall be valued for this purpose at the fair market value (valued in accordance
with procedures established by the Committee) as of the effective date of such
exercise; (iii) delivery of irrevocable written instructions to a broker
approved by the Company (with a copy to the Company) to immediately sell a
portion of the shares issuable under the Option and to deliver promptly to the
Company the amount of sale proceeds to pay the exercise price; (iv) if approved
by the Committee, through a net exercise procedure whereby the Participant
surrenders the Option in exchange for that number of shares of Common Stock with
an aggregate fair market value equal to the difference between the aggregate
exercise price of the Options being surrendered and the aggregate fair market
value of the shares of Common Stock subject to the Option; or (v) in such other
manner as may be authorized from time to time by the Committee.  Prior
to the issuance of Shares upon the exercise of an Option, a Participant shall
have no rights as a shareholder.

     

    SECTION
7

     

    (a) Stock Appreciation
Rights.  Subject to the provisions of the Plan, the Committee
shall have sole and complete authority to determine the Eligible Individuals to
whom Stock Appreciation Rights shall be granted, the number of Shares to be
covered by each Award of Stock Appreciation Rights, the grant price thereof, the
conditions and limitations applicable to the exercise of the Stock Appreciation
Right and the other terms thereof.  Stock Appreciation Rights may be
granted in tandem with another Award, in addition to another Award, or
freestanding and unrelated to any other Award.  Stock Appreciation
Rights granted in tandem with or in addition to an Option or other Award may be
granted either at the same time as the Option or other Award or at a later
time.  Stock Appreciation Rights shall not be exercisable after the
expiration of 10 years after the date of grant.  Except in the case of
a Stock Appreciation Right granted in assumption of or substitution for an
outstanding award of a company acquired by the Company or with which the Company
combines, the grant price of any Stock Appreciation Right granted under this
Plan shall not be less than 100% of the fair market value of the Shares covered
by such Stock Appreciation Right on the date of grant or, in the case of a Stock
Appreciation Right granted in tandem with a then outstanding Option or other
Award, on the date of grant of such related Option or Award.

     

    (b) A Stock
Appreciation Right shall entitle the holder thereof to receive upon exercise,
for each Share to which the Stock Appreciation Right relates, an amount equal to
the excess, if any, of the fair market value of a Share on the date of exercise
of the Stock Appreciation Right over the grant price.  The Committee
shall determine at the time of grant of a Stock Appreciation Right whether it
shall be settled in cash, Shares or a combination of cash and
Shares.

     

    
      
         

      

      
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    SECTION
8

     

    (a) Restricted
Stock.  Subject to the provisions of the Plan, the Committee
shall have sole and complete authority to determine the Eligible Individuals to
whom Restricted Stock shall be granted, the number of Shares to be covered by
each Award of Restricted Stock and the terms, conditions, and limitations
applicable thereto.  An Award of Restricted Stock may be subject to
the attainment of specified performance goals or targets, restrictions on
transfer, forfeitability provisions and such other terms and conditions as the
Committee may determine, subject to the provisions of the Plan.  An
award of Restricted Stock may be made in lieu of the payment of cash
compensation otherwise due to an Eligible Individual.  To the extent
that Restricted Stock is intended to qualify as “performance-based compensation”
under Section 162(m), it must be made subject to the attainment of one or more
of the performance goals specified in Section 5(c) hereof and meet the
additional requirements imposed by Section 162(m).

     

    (b) The Restricted
Period.  At the time that an Award of Restricted Stock is made,
the Committee shall establish a period of time during which the transfer of the
Shares of Restricted Stock shall be restricted (the “Restricted
Period”).  Each Award of Restricted Stock may have a different
Restricted Period.  Except for Restricted Stock granted to Outside
Directors, Restricted Stock that vests based on the attainment of performance
goals, and except as provided in Section 5(a)(i)(C)(2), a Restricted Period of
at least three years is required with incremental vesting of the Award over the
three-year period permitted.  If the grant or vesting of the Shares is
subject to the attainment of specified performance goals, a Restricted Period of
at least one year with incremental vesting is permitted.  The
expiration of the Restricted Period shall also occur as provided in the Award
Agreement in accordance with Section 12(a) hereof.

     

    (c) Escrow.  The
Participant receiving Restricted Stock shall enter into an Award Agreement with
the Company setting forth the conditions of the grant.  Certificates
representing Shares of Restricted Stock shall be registered in the name of the
Participant and deposited with the Company, together with a stock power endorsed
in blank by the Participant.  Each such certificate shall bear a
legend in substantially the following form:

     

    The
transferability of this certificate and the shares of Common Stock represented
by it are subject to the terms and conditions (including conditions of
forfeiture) contained in the McMoRan Exploration Co. 2008 Stock Incentive Plan
(the “Plan”) and a notice of grant issued thereunder to the registered owner by
McMoRan Exploration Co.  Copies of the Plan and the notice of grant
are on file at the principal office of McMoRan Exploration Co.

     

    Alternatively,
in the discretion of the Company, ownership of the Shares of Restricted Stock
and the appropriate restrictions shall be reflected in the records of the
Company’s transfer agent and no physical certificates shall be issued prior to
vesting.

     

    (d) Dividends on Restricted
Stock.  Any and all cash and stock dividends paid with respect
to the Shares of Restricted Stock shall be subject to any restrictions on
transfer, forfeitability provisions or reinvestment requirements as the
Committee may, in its discretion, prescribe in the Award Agreement.

     

    (e) Forfeiture.  In
the event of the forfeiture of any Shares of Restricted Stock under the terms
provided in the Award Agreement (including any additional Shares of Restricted
Stock that may result from the reinvestment of cash and stock dividends, if so
provided in the Award Agreement), such forfeited shares shall be surrendered and
the certificates canceled.  The Participants shall have the same
rights and privileges, and be subject to the same forfeiture provisions, with
respect to any additional Shares received pursuant to Section 5(b) or Section
11(b) due to a recapitalization, merger or other change in
capitalization.

     

    (f) Expiration of Restricted
Period.  Upon the expiration or termination of the Restricted
Period and the satisfaction of any other conditions prescribed by the Committee
or at such earlier time as provided in the Award Agreement or an amendment
thereto, the restrictions applicable to the Restricted Stock shall lapse and a
stock certificate for the number of Shares of Restricted Stock with respect to
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    delivered,
free of all such restrictions and legends, except any that may be imposed by
law, to the Participant or the Participant’s estate, as the case may
be.

     

    (g) Rights as a
Stockholder.  Subject to the terms and conditions of the Plan
and subject to any restrictions on the receipt of dividends that may be imposed
in the Award Agreement, each Participant receiving Restricted Stock shall have
all the rights of a stockholder with respect to Shares of stock during any
period in which such Shares are subject to forfeiture and restrictions on
transfer, including without limitation, the right to vote such
Shares.

     

    SECTION
9                                

     

    (a) Restricted Stock
Units.  Subject to the provisions of the Plan, the Committee
shall have sole and complete authority to determine the Eligible Individuals to
whom Restricted Stock Units shall be granted, the number of Shares to be covered
by each Award of Restricted Stock Units and the terms, conditions, and
limitations applicable thereto.  An Award of Restricted Stock Units is
a right to receive shares of Common Stock in the future and may be subject to
the attainment of specified performance goals or targets, restrictions on
transfer, forfeitability provisions and such other terms and conditions as the
Committee may determine, subject to the provisions of the Plan.  An
award of Restricted Stock Units may be made in lieu of the payment of cash
compensation otherwise due to an Eligible Individual.  To the extent
that an Award of Restricted Stock Units is intended to qualify as
“performance-based compensation” under Section 162(m), it must be made subject
to the attainment of one or more of the performance goals specified in Section
5(c) hereof and meet the additional requirements imposed by Section
162(m).

     

    (b) The Vesting
Period.  At the time that an Award of Restricted Stock Units is
made, the Committee shall establish a period of time during which the Restricted
Stock Units shall vest (the “Vesting Period”).  Each Award of
Restricted Stock may have a different Vesting Period.  Except for
Restricted Stock Units granted to Outside Directors, Restricted Stock Units that
vest based on the attainment of performance goals, and except as provided in
Section 5(a)(i)(C)(2), a Vesting Period of at least three years is required with
incremental vesting of the Award over the three-year period
permitted.  If the grant or vesting is subject to the attainment of
specified performance goals, a Vesting Period of at least one year with
incremental vesting is permitted.  The expiration of the Vesting
Period shall also occur as provided in the Award Agreement in accordance with
Section 12(a) hereof.

     

    (c) Rights as a
Stockholder.  Subject to the terms and conditions of the Plan
and subject to any restrictions may be imposed in the Award Agreement, each
Participant receiving Restricted Stock Units shall have no rights as a
stockholder with respect to such Restricted Stock Units until such time as
Shares are issued to the Participant.

     

    SECTION
10

     

    (a) Other Stock-Based
Awards.  The Committee is hereby authorized to grant to
Eligible Individuals an “Other Stock-Based Award”, which shall consist of an
Award that is not an instrument or Award specified in Sections 6 through 9 of
this Plan, the value of which is based in whole or in part on the value of
Shares.  Other Stock-Based Awards may be awards of Shares or may be
denominated or payable in, valued in whole or in part by reference to, or
otherwise based on or related to, Shares (including, without limitation,
securities convertible or exchangeable into or exercisable for Shares), as
deemed by the Committee consistent with the purposes of the Plan.  The
Committee shall determine the terms and conditions of any such Other Stock-Based
Award and may provide that such awards would be payable in whole or in part in
cash.  To the extent that an Other Stock-Based Award is intended to
qualify as “performance-based compensation” under Section 162(m), it must be
made subject to the attainment of one or more of the performance goals specified
in Section 5(c) hereof and meet the additional requirements imposed by Section
162(m).

     

    (b) Limitations.  Except
for Other Stock-Based Awards granted to Outside Directors, Other Stock-Based
Awards that vest based on the attainment of performance goals, and except as
provided in Section 5(a)(i)(C)(2), a vesting period of at least three years is
required with incremental vesting of the Award over the three-year period
permitted.  If the grant or vesting is subject to the attainment of
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    vesting
period of at least one year with incremental vesting is
permitted.  The expiration of the vesting period shall also occur as
provided in the Award Agreement in accordance with Section 12(a)
hereof.

     

    (c) Dividend
Equivalents.  In the sole and complete discretion of the
Committee, an Award, whether made as an Other Stock-Based Award under this
Section 10 or as an Award granted pursuant to Sections 6 through 9 hereof, may
provide the holder thereof with dividends or dividend equivalents, payable in
cash, Shares, Subsidiary securities, other securities or other property on a
current or deferred basis.

     

    SECTION
11

     

    (a) Amendment or Discontinuance
of the Plan.  The Board may amend or discontinue the Plan at
any time; provided, however, that no such amendment may

     

    (i) without
the approval of the stockholders, (a) increase, subject to adjustments permitted
herein, the maximum number of shares of Common Stock that may be issued through
the Plan, (b) materially increase the benefits accruing to Participants under
the Plan, (c) materially expand the classes of persons eligible to participate
in the Plan, (d) expand the types of Awards available for grant under the Plan,
(e) materially extend the term of the Plan, (f) materially change the method of
determining the exercise price of Options or Stock Appreciation Rights, or (g)
amend Section 11(c) to permit a reduction in the exercise price of Options;
or

     

    (ii) materially
impair, without the consent of the recipient, an Award previously
granted.

     

    (b) Adjustment of Awards Upon
the Occurrence of Certain Unusual or Nonrecurring Events.  The
Committee is hereby authorized to make adjustments in the terms and conditions
of, and the criteria included in, Awards in recognition of unusual or
nonrecurring events (including, without limitation, the events described in
Section 5(b) hereof) affecting the Company, or the financial statements of the
Company or any Subsidiary, or of changes in applicable laws, regulations, or
accounting principles, whenever the Committee determines that such adjustments
are appropriate to prevent dilution or enlargement of the benefits or potential
benefits intended to be made available under the Plan.

     

    (c) Cancellation.  Any
provision of this Plan or any Award Agreement to the contrary notwithstanding,
the Committee may cause any Award granted hereunder to be canceled in
consideration of a cash payment or alternative Award made to the holder of such
canceled Award equal in value to such canceled Award.  Notwithstanding
the foregoing, except for adjustments permitted under Sections 5(b) and 11(b),
no action by the Committee shall, unless approved by the stockholders of the
Company, (i) cause a reduction in the exercise price of Options granted under
the Plan or (ii) permit an outstanding Option with an exercise price greater
than the current fair market value of a Share to be surrendered as consideration
for a new Option with a lower exercise price, shares of Restricted Stock,
Restricted Stock Units, and Other Stock-Based Award, a cash payment or Common
Stock.  The determinations of value under this subparagraph shall be
made by the Committee in its sole discretion.

     

    SECTION
12

     

    (a) Award
Agreements.  Each Award hereunder shall be evidenced by an
agreement or notice delivered to the Participant (by paper copy or
electronically) that shall specify the terms and conditions thereof and any
rules applicable thereto, including but not limited to the effect on such Award
of the death, retirement or other termination of employment or cessation of
consulting or advisory services of the Participant and the effect thereon, if
any, of a change in control of the Company.

     

    (b) Withholding.

     

        (i)           A
Participant shall be required to pay to the Company, and the Company shall have
the right to deduct from all amounts paid to a Participant (whether under the
Plan or otherwise), any taxes required by law to be paid or withheld in respect
of Awards hereunder to such Participant.  The Committee may provide
for additional cash payments to holders of Awards to defray or offset any tax
arising from the grant, vesting, exercise or payment of any Award.

     

    
      
         

      

      
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    (ii) At any
time that a Participant is required to pay to the Company an amount required to
be withheld under the applicable tax laws in connection with the issuance of
Shares under the Plan, the Participant may, if permitted by the Committee,
satisfy this obligation in whole or in part by delivering currently owned Shares
or by electing (the “Election”) to have the Company withhold from the issuance
Shares, which Shares shall have a value equal to the minimum amount required to
be withheld.  The value of the Shares delivered or withheld shall be
based on the fair market value of the Shares on the date as of which the amount
of tax to be withheld shall be determined in accordance with applicable tax laws
(the “Tax Date”).

     

    (iii) Each
Election to have Shares withheld must be made prior to the Tax
Date.  If a Participant wishes to deliver Shares in payment of taxes,
the Participant must so notify the Company prior to the Tax Date.

     

    (c) Transferability.  No
Awards granted hereunder may be transferred, pledged, assigned or otherwise
encumbered by a Participant except: (i) by will; (ii) by the laws of descent and
distribution; (iii) pursuant to a domestic relations order, as defined in the
Code, if permitted by the Committee and so provided in the Award Agreement or an
amendment thereto; or (iv) if permitted by the Committee and so provided in the
Award Agreement or an amendment thereto, Options may be transferred or assigned
(w) to Immediate Family Members, (x) to a partnership in which Immediate Family
Members, or entities in which Immediate Family Members are the owners, members
or beneficiaries, as appropriate, are the partners, (y) to a limited liability
company in which Immediate Family Members, or entities in which Immediate Family
Members are the owners, members or beneficiaries, as appropriate, are the
members, or (z) to a trust for the benefit of Immediate Family Members;
provided, however, that no more than a de minimus beneficial interest in a
partnership, limited liability company or trust described in (x), (y) or (z)
above may be owned by a person who is not an Immediate Family Member or by an
entity that is not beneficially owned solely by Immediate Family
Members.  “Immediate Family Members” shall be defined as the spouse
and natural or adopted children or grandchildren of the Participant and their
spouses.  To the extent that an Incentive Stock Option is permitted to
be transferred during the lifetime of the Participant, it shall be treated
thereafter as a Nonqualified Stock Option.  Any attempted assignment,
transfer, pledge, hypothecation or other disposition of Awards, or levy of
attachment or similar process upon Awards not specifically permitted herein,
shall be null and void and without effect.  The designation of a
Designated Beneficiary shall not be a violation of this Section
12(c).

     

    (d) Share
Certificates.  All certificates for Shares or other securities
delivered under the Plan pursuant to any Award or the exercise thereof shall be
subject to such stop transfer orders and other restrictions as the Committee may
deem advisable under the Plan or the rules, regulations, and other requirements
of the Securities and Exchange Commission, any stock exchange upon which such
Shares or other securities are then listed, and any applicable federal or state
laws, and the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.

     

    (e) No Limit on Other
Compensation Arrangements.  Nothing contained in the Plan shall
prevent the Company from adopting or continuing in effect other compensation
arrangements, which may, but need not, provide for the grant of options, stock
appreciation rights and other types of Awards provided for hereunder (subject to
stockholder approval of any such arrangement if approval is required), and such
arrangements may be either generally applicable or applicable only in specific
cases.

     

    (f) No Right to
Employment.  The grant of an Award shall not be construed as
giving a Participant the right to be retained in the employ of or as a
consultant or adviser to the Company or any Subsidiary or in the employ of or as
a consultant or adviser to any other entity providing services to the
Company.  The Company or any Subsidiary or any such entity may at any
time dismiss a Participant from employment, or terminate any arrangement
pursuant to which the Participant provides services to the Company or a
Subsidiary, free from any liability or any claim under the Plan, unless
otherwise expressly provided in the Plan or in any Award
Agreement.  No Eligible Individual or other person shall have any
claim to be granted any Award, and there is no obligation for uniformity of
treatment of Eligible Individuals, Participants or holders or beneficiaries of
Awards.

     

    (g) Governing
Law.  The validity, construction, and effect of the Plan, any
rules and regulations relating to the Plan and any Award Agreement shall be
determined in accordance with the laws of the State of Delaware.

     

    
      
         

      

      
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    (h) Severability.  If
any provision of the Plan or any Award is or becomes or is deemed to be invalid,
illegal, or unenforceable in any jurisdiction or as to any Person or Award, or
would disqualify the Plan or any Award under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to
applicable laws, or if it cannot be construed or deemed amended without, in the
determination of the Committee, materially altering the intent of the Plan or
the Award, such provision shall be stricken as to such jurisdiction, Person or
Award and the remainder of the Plan and any such Award shall remain in full
force and effect.

     

    (i) No Trust or Fund
Created.  Neither the Plan nor any Award shall create or be
construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company and a Participant or any other
Person.  To the extent that any Person acquires a right to receive
payments from the Company pursuant to an Award, such right shall be no greater
than the right of any unsecured general creditor of the Company.

     

    (j) No Fractional
Shares.  No fractional Shares shall be issued or delivered
pursuant to the Plan or any Award, and the Committee shall determine whether
cash, other securities or other property shall be paid or transferred in lieu of
any fractional Shares or whether such fractional Shares or any rights thereto
shall be canceled, terminated, or otherwise eliminated.

     

    (k) Compliance with
Law.  The Company intends that Awards granted under the Plan,
or any deferrals thereof, will comply with the requirements of Section 409A to
the extent applicable.

     

    (l) Deferral
Permitted.  Payment of cash or distribution of any Shares to
which a Participant is entitled under any Award shall be made as provided in the
Award Agreement.  Payment may be deferred at the option of the
Participant if provided in the Award Agreement.

     

    (m) Headings.  Headings
are given to the subsections of the Plan solely as a convenience to facilitate
reference.  Such headings shall not be deemed in any way material or
relevant to the construction or interpretation of the Plan or any provision
thereof.

     

    SECTION
13

     

    Term of the
Plan.  Subject to Section 11(a), no Awards may be granted under
the Plan after June 5, 2018, which is ten years after the date the Plan was
approved by the Company’s stockholders; provided, however, that Awards granted
prior to such date shall remain in effect until such Awards have either been
satisfied, expired or canceled under the terms of the Plan, and any restrictions
imposed on Shares in connection with their issuance under the Plan have
lapsed.


    
      
        
           

        

         


      

      
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