EX-10.2 TIME WARNER INC. 2003 STOCK INCENTIVE PLAN



 





Exhibit 10.2


As
Amended Through

 October 25, 2007


TIME WARNER INC.




2003 STOCK INCENTIVE PLAN




1. Purpose of the Plan




     The purpose of the Plan is to aid the Company and its Affiliates in recruiting and retaining
employees, directors, advisors and consultants and to motivate such employees, directors, advisors
and consultants to exert their best efforts on behalf of the Company and its Affiliates by
providing incentives through the granting of Awards. The Company expects that it will benefit from
the added interest which such employees, directors, advisors and consultants will have in the
welfare of the Company as a result of their proprietary interest in the Company’s success.



2. Definitions




     The following capitalized terms used in the Plan have the respective meanings set forth in
this Section:




	 	(a)	 	“Act” means The Securities Exchange Act of 1934, as
amended, or any successor thereto.
	 
	 	(b)	 	“Affiliate” means any entity that is consolidated with
the Company for financial reporting purposes or any other entity designated by
the Board in which the Company or an Affiliate has a direct or indirect equity
interest of at least twenty percent (20%), measured by reference to vote or
value.
	 
	 	(c)	 	“Award” means an Option, Stock Appreciation Right,
Restricted Stock or Other Stock-Based Award granted pursuant to the Plan.
	 
	 	(d)	 	“Board” means the Board of Directors of the Company.
	 
	 	(e)	 	“Change in Control” means the occurrence of any of the
following events:






     (i) any “Person” within the meaning of Section 13(d)(3) or 14(d)(2) of
the Act (other than the Company or any company owned, directly or
indirectly, by the shareholders of the Company in substantially the same
proportions as their ownership of stock of the Company) becomes the
“Beneficial Owner” within the meaning of Rule 13d-3 promulgated under the
Act of 30% or more of the combined voting power of the then outstanding
securities of the Company entitled to vote generally in the election of
directors; excluding, however, any circumstance in which such beneficial
ownership resulted from any acquisition by an employee benefit plan (or
related trust) sponsored or maintained by the Company or by any corporation
controlling, controlled by, or under common control with, the Company;









 



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     (ii) a change in the composition of the Board since the Effective Date,
such that the individuals who, as of such date, constituted the Board (the
“Incumbent Board”) cease for any reason to constitute at least a
majority of such Board; provided that any individual who becomes a director
of the Company subsequent to the Effective Date whose election, or
nomination for election by the Company’s stockholders, was approved by the
vote of at least a majority of the directors then comprising the Incumbent
Board shall be deemed a member of the Incumbent Board; and provided further,
that any individual who was initially elected as a director of the Company
as a result of an actual or threatened election contest, as such terms are
used in Rule 14a-12 of Regulation 14A promulgated under the Act, or any
other actual or threatened solicitation of proxies or consents by or on
behalf of any person or Entity other than the Board shall not be deemed a
member of the Incumbent Board;




     (iii) a reorganization, recapitalization, merger or consolidation (a
“Corporate Transaction”) involving the Company, unless securities
representing 60% or more of the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of
directors of the Company or the corporation resulting from such Corporate
Transaction (or the parent of such corporation) are held subsequent to such
transaction by the person or persons who were the beneficial holders of the
outstanding voting securities entitled to vote generally in the election of
directors of the Company immediately prior to such Corporate Transaction, in
substantially the same proportions as their ownership immediately prior to
such Corporate Transaction; or




     (iv) the sale, transfer or other disposition of all or substantially
all of the assets of the Company.




	 	(f)	 	“Code” means The Internal Revenue Code of 1986, as
amended, or any successor thereto.
	 
	 	(g)	 	“Committee” means the Compensation and Human
Development Committee of the Board or its successor, or such other committee of
the Board to which the Board has delegated power to act under or pursuant to
the provisions of the Plan or a subcommittee of the Compensation and Human
Development Committee (or such other committee) established by the Compensation
and Human Development Committee or such other committee.
	 
	 	(h)	 	“Company” means Time Warner Inc., a Delaware
corporation named AOL Time Warner Inc. prior to October 16, 2003.
	 
	 	(i)	 	“Effective Date” means the date the Board approved the
Plan (March 20, 2003).










 



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	 	(j)	 	“Employment” means (i) a Participant’s employment if
the Participant is an employee of the Company or any of its Affiliates, (ii) a
Participant’s services as a consultant, if the Participant is a consultant to
the Company or any of its Affiliates and (iii) a Participant’s services as a
non-employee director, if the Participant is a non-employee member of the Board
or the board of directors of an Affiliate; provided however that unless
otherwise determined by the Committee, a change in a Participant’s status from
employee to non-employee (other than a director of the Company or an Affiliate)
shall constitute a termination of employment hereunder.
	 
	 	(k)	 	“Fair Market Value” means, on a given date, (i) if
there should be a public market for the Shares on such date, the average of the
high and low prices of the Shares on the New York Stock Exchange, or, if the
Shares are not listed or admitted on any national securities exchange, the
average of the per Share closing bid price and per Share closing asked price on
such date as quoted on the National Association of Securities Dealers Automated
Quotation System (or such market in which such prices are regularly quoted)(the
“NASDAQ”), or, if no sale of Shares shall have been reported on the New York
Stock Exchange or quoted on the NASDAQ on such date, then the immediately
preceding date on which sales of the Shares have been so reported or quoted
shall be used, and (ii) if there should not be a public market for the Shares
on such date, the Fair Market Value shall be the value established by the
Committee in good faith.
	 
	 	(l)	 	“ISO” means an Option that is also an incentive stock
option granted pursuant to Section 6(e).
	 
	 	(m)	 	“Other Stock-Based Awards” means awards granted
pursuant to Section 9.
	 
	 	(n)	 	“Option” means a stock option granted pursuant to
Section 6.
	 
	 	(o)	 	“Option Price” means the price for which a Share can be
purchased upon exercise of an Option, as determined pursuant to Section 6(a).
	 
	 	(p)	 	“Participant” means an employee, prospective employee,
director, advisor or consultant of the Company or an Affiliate who is selected
by the Committee to participate in the Plan.
	 
	 	(q)	 	“Performance-Based Awards” means certain Other
Stock-Based Awards granted pursuant to Section 9(b).
	 
	 	(r)	 	“Plan” means the Time Warner Inc. 2003 Stock Incentive
Plan, as amended from time to time.
	 
	 	(s)	 	“Restricted Stock” means any Share granted under
Section 8.










 



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	 	(t)	 	“Shares” means shares of common stock of the Company,
$.01 par value per share.
	 
	 	(u)	 	“Stock Appreciation Right” means a stock appreciation
right granted pursuant to Section 7.
	 
	 	(v)	 	“Subsidiary” means a subsidiary corporation, as defined
in Section 424(f) of the Code (or any successor section thereto), of the
Company.





3. Shares Subject to the Plan




     The total number of Shares which may be issued under the Plan is 200,000,000, of which no more
than 20% may be issued in the form of Restricted Stock or Other Stock-Based Awards payable in
Shares. The maximum aggregate number of Shares with respect to which Awards may be granted during
a calendar year, net of any Shares which are subject to Awards (or portions thereof) which, during
such year, terminate or lapse without payment of consideration, shall be equal to 2% of the number
of Shares outstanding on December 31 of the preceding calendar year. The maximum number of Shares
with respect to which Awards may be granted during a calendar year to any Participant shall be
2,000,000; provided that the maximum number of Shares that may be awarded in the form of
Restricted Stock or Other Stock-Based Awards payable in Shares during any calendar year to any
Participant shall be 600,000. The Shares may consist, in whole or in part, of unissued Shares or
treasury Shares. The number of Shares available for issuance under the Plan shall be reduced by the
full number of Shares covered by Awards granted under the Plan (including, without limitation, the
full number of Shares covered by any Stock Appreciation Right, regardless of whether any such Stock
Appreciation Right or other Award covering Shares under the Plan is ultimately settled in cash or
by delivery of Shares); provided, however, that the number of Shares covered by Awards (or
portions thereof) that are forfeited or that otherwise terminate or lapse without the payment of
consideration in respect thereof shall again become available for issuance under the Plan; and
provided further that any Shares that are forfeited after the actual issuance of such
Shares to a Participant under the Plan shall not become available for re-issuance under the Plan.



4. Administration





	 	(a)	 	The Plan shall be administered by the Committee, which may
delegate its duties and powers in whole or in part to any subcommittee thereof
consisting solely of at least two individuals who are intended to qualify as
“Non-Employee Directors” within the meaning of Rule 16b-3 under the Act (or any
successor rule thereto) and, to the extent required by Section 162(m) of the
Code (or any successor section thereto), “outside directors” within the meaning
thereof. In addition, the Committee may delegate the authority to grant Awards
under the Plan to any employee or group of employees of the Company or an
Affiliate; provided, that such grants are consistent with guidelines
established by the Committee from time to time.










 



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	 	(b)	 	The Committee shall have the full power and authority to make,
and establish the terms and conditions of, any Award to any person eligible to
be a Participant, consistent with the provisions of the Plan and to waive any
such terms and conditions at any time (including, without limitation,
accelerating or waiving any vesting conditions). Awards may, in the discretion
of the Committee, be made under the Plan in assumption of, or in substitution
for, outstanding awards previously granted by the Company or its affiliates or
a company acquired by the Company or with which the Company combines. The
number of Shares underlying such substitute awards shall be counted against the
aggregate number of Shares available for Awards under the Plan.
	 
	 	(c)	 	The Committee is authorized to interpret the Plan, to
establish, amend and rescind any rules and regulations relating to the Plan,
and to make any other determinations that it deems necessary or desirable for
the administration of the Plan, and may delegate such authority, as it deems
appropriate. The Committee may correct any defect or supply any omission or
reconcile any inconsistency in the Plan in the manner and to the extent the
Committee deems necessary or desirable. Any decision of the Committee in the
interpretation and administration of the Plan, as described herein, shall lie
within its sole and absolute discretion and shall be final, conclusive and
binding on all parties concerned (including, but not limited to, Participants
and their beneficiaries or successors).
	 
	 	(d)	 	The Committee shall require payment of any amount it may
determine to be necessary to withhold for federal, state, local or other taxes
as a result of the exercise, grant or vesting of an Award. Unless the
Committee specifies otherwise, the Participant may elect to pay a portion or
all of such withholding taxes by (a) delivery of Shares or (b) having Shares
withheld by the Company with a Fair Market Value equal to the minimum statutory
withholding rate from any Shares that would have otherwise been received by the
Participant.





5. Limitations





	 	(a)	 	No Award may be granted under the Plan after the fifth
anniversary of the meeting of shareholders of the Company at which the Plan is
approved (which meeting was held on May 16, 2003), but Awards granted prior to
such fifth anniversary may extend beyond that date.
	 
	 	(b)	 	No Option or Stock Appreciation Right, once granted hereunder,
may be repriced.
	 
	 	(c)	 	With respect to any Awards granted to a Participant who is a
non-employee member of the Board at the time of grant, such Awards shall be
made pursuant to formulas established by the Board in advance of such grant.
Any such Awards shall be made at the time such a Participant first










 



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	 	 	 	becomes a member of the Board and, thereafter, on an annual basis at or
following the annual meeting of stockholders. Such formulas may include any
one or more of the following: (i) a fixed number of Options or Stock
Appreciation Rights, (ii) a fixed number of Shares of Restricted Stock or a
number of Shares of Restricted Stock determined by reference to a fixed
dollar amount (calculated based on the Fair Market Value of a Share on the
date of grant), and (iii) Other Stock-Based Awards determined either by
reference to a fixed number of Shares or to a fixed dollar amount
(calculated based on the Fair Market Value of a Share on the date of grant).





6. Terms and Conditions of Options




     Options granted under the Plan shall be, as determined by the Committee, nonqualified or
incentive stock options for federal income tax purposes, as evidenced by the related Award
agreements, and shall be subject to the foregoing and the following terms and conditions and to
such other terms and conditions, not inconsistent therewith, as the Committee shall determine, and
as evidenced by the related Award agreement:




	 	(a)	 	Option Price. The Option Price per Share shall be
determined by the Committee, but shall not be less than 100% of the Fair Market
Value of a Share on the date an Option is granted.
	 
	 	(b)	 	Exercisability. Options granted under the Plan shall
be exercisable at such time and upon such terms and conditions as may be
determined by the Committee, but in no event shall an Option be exercisable
more than ten years after the date it is granted, except as may be provided
pursuant to Section 15.
	 
	 	(c)	 	Exercise of Options. Except as otherwise provided in
the Plan or in an Award agreement, an Option may be exercised for all, or from
time to time any part, of the Shares for which it is then exercisable. For
purposes of this Section 6, the exercise date of an Option shall be the date a
notice of exercise is received by the Company, together with provision for
payment of the full purchase price in accordance with this Section 6(c). The
purchase price for the Shares as to which an Option is exercised shall be paid
to the Company, as designated by the Committee, pursuant to one or more of the
following methods: (i) in cash or its equivalent (e.g., by check); (ii) in
Shares having a Fair Market Value equal to the aggregate Option Price for the
Shares being purchased and satisfying such other requirements as may be imposed
by the Committee; provided, that such Shares have been held by the Participant
for no less than six months (or such other period as established from time to
time by the Committee in order to avoid adverse accounting treatment applying
generally accepted accounting principles); (iii) partly in cash and partly in
such Shares or (iv) if there is a public market for the Shares at such time,
through the delivery of irrevocable instructions to a broker to sell Shares
obtained











 



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	 	 	 	upon the
exercise of the Option and to deliver promptly to the Company an amount out
of the proceeds of such Sale equal to the aggregate Option Price for the
Shares being purchased. No Participant shall have any rights to dividends
or other rights of a stockholder with respect to Shares subject to an Option
until the Participant has given written notice of exercise of the Option,
paid in full for such Shares and, if applicable, has satisfied any other
conditions imposed by the Committee pursuant to the Plan.
	 
	 	(d)	 	Deferral. In the sole discretion of the Committee, in
accordance with procedures established by the Committee, the Participant may be
permitted to defer the issuance of Shares deliverable upon the exercise of an
Option for a specified period or until a specified date.
	 
	 	(e)	 	ISOs. The Committee may grant Options under the Plan
that are intended to be ISOs. Such ISOs shall comply with the requirements of
Section 422 of the Code (or any successor section thereto). No ISO may be
granted to any Participant who at the time of such grant, owns more than ten
percent of the total combined voting power of all classes of stock of the
Company or of any Subsidiary, unless (i) the Option Price for such ISO is at
least 110% of the Fair Market Value of a Share on the date the ISO is granted
and (ii) the date on which such ISO terminates is a date not later than the day
preceding the fifth anniversary of the date on which the ISO is granted. Any
Participant who disposes of Shares acquired upon the exercise of an ISO either
(i) within two years after the date of grant of such ISO or (ii) within one
year after the transfer of such Shares to the Participant, shall notify the
Company of such disposition and of the amount realized upon such disposition.
All Options granted under the Plan are intended to be nonqualified stock
options, unless the applicable Award agreement expressly states that the Option
is intended to be an ISO. If an Option is intended to be an ISO, and if for
any reason such Option (or portion thereof) shall not qualify as an ISO, then,
to the extent of such nonqualification, such Option (or portion thereof) shall
be regarded as a nonqualified stock option granted under the Plan;
provided that such Option (or portion thereof) otherwise complies with
the Plan’s requirements relating to nonqualified stock options. In no event
shall any member of the Committee, the Company or any of its Affiliates (or
their respective employees, officers or directors) have any liability to any
Participant (or any other person) due to the failure of an Option to qualify
for any reason as an ISO.
	 
	 	(f)	 	Attestation. Wherever in this Plan or any agreement
evidencing an Award a Participant is permitted to pay the exercise price of an
Option or taxes relating to the exercise of an Option by delivering Shares, the
Participant may, subject to procedures satisfactory to the Committee, satisfy
such delivery requirement by presenting proof of beneficial ownership of such
Shares, in which case the Company shall treat the Option as exercised










 



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	 	 	 	without further payment and/or shall withhold such number of Shares from the
Shares acquired by the exercise of the Option, as appropriate.










 



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7. Terms and Conditions of Stock Appreciation Rights





	 	(a)	 	Grants. The Committee may grant (i) a Stock
Appreciation Right independent of an Option or (ii) a Stock Appreciation Right
in connection with an Option, or a portion thereof. A Stock Appreciation Right
granted pursuant to clause (ii) of the preceding sentence (A) may be granted at
the time the related Option is granted or at any time prior to the exercise or
cancellation of the related Option, (B) shall cover the same number of Shares
covered by an Option (or such lesser number of Shares as the Committee may
determine) and (C) shall be subject to the same terms and conditions as such
Option except for such additional limitations as are contemplated by this
Section 7 (or such additional limitations as may be included in an Award
agreement).
	 
	 	(b)	 	Terms. The exercise price per Share of a Stock
Appreciation Right shall be an amount determined by the Committee but in no
event shall such amount be less than the Fair Market Value of a Share on the
date the Stock Appreciation Right is granted; provided, however, that
notwithstanding the foregoing in the case of a Stock Appreciation Right granted
in conjunction with an Option, or a portion thereof, the exercise price may not
be less than the Option Price of the related Option. Each Stock Appreciation
Right granted independent of an Option shall entitle a Participant upon
exercise to an amount equal to (i) the excess of (A) the Fair Market Value on
the exercise date of one Share over (B) the exercise price per Share, times
(ii) the number of Shares covered by the Stock Appreciation Right. Each Stock
Appreciation Right granted in conjunction with an Option, or a portion thereof,
shall entitle a Participant to surrender to the Company the unexercised Option,
or any portion thereof, and to receive from the Company in exchange therefor an
amount equal to (i) the excess of (A) the Fair Market Value on the exercise
date of one Share over (B) the Option Price per Share, times (ii) the number of
Shares covered by the Option, or portion thereof, which is surrendered.
Payment shall be made in Shares or in cash, or partly in Shares and partly in
cash (any such Shares valued at such Fair Market Value), all as shall be
determined by the Committee. Stock Appreciation Rights may be exercised from
time to time upon actual receipt by the Company of written notice of exercise
stating the number of Shares with respect to which the Stock Appreciation Right
is being exercised. The date a notice of exercise is received by the Company
shall be the exercise date. No fractional Shares will be issued in payment for
Stock Appreciation Rights, but instead cash will be paid for a fraction or, if
the Committee should so determine, the number of Shares will be rounded
downward to the next whole Share.










 



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	 	(c)	 	Limitations. The Committee may impose, in its
discretion, such conditions upon the exercisability of Stock Appreciation
Rights as it may deem fit, but in no event shall a Stock Appreciation Right be
exercisable more than ten years after the date it is granted, except as may be
provided pursuant to Section 15.





8. Restricted Stock





	 	(a)	 	Grant. Subject to the provisions of the Plan, the
Committee shall determine the number of Shares of Restricted Stock to be
granted to each Participant, the duration of the period during which, and the
conditions, if any, under which, the Restricted Stock may be forfeited to the
Company, and the other terms and conditions of such Awards; provided that not
less than 95% of the Shares of Restricted Stock shall remain subject to
forfeiture for at least three years after the date of grant, subject to earlier
termination of such potential for forfeiture in whole or in part in the event
of a Change in Control or the death, disability or other termination of the
Participant’s employment.
	 
	 	(b)	 	Transfer Restrictions. Shares of Restricted Stock may
not be sold, assigned, transferred, pledged or otherwise encumbered, except as
provided in the Plan or the applicable Award agreement. Certificates, or other
evidence of ownership, issued in respect of Shares of Restricted Stock shall
be registered in the name of the Participant and deposited by such Participant,
together with a stock power endorsed in blank, with the Company. After the
lapse of the restrictions applicable to such Shares of Restricted Stock, the
Company shall deliver such certificates, or other evidence of ownership, to the
Participant or the Participant’s legal representative.
	 
	 	(c)	 	Dividends. Dividends paid on any Shares of Restricted
Stock may be paid directly to the Participant, withheld by the Company subject
to vesting of the Restricted Shares pursuant to the terms of the applicable
Award agreement, or may be reinvested in additional Shares of Restricted Stock,
as determined by the Committee in its sole discretion.
	 
	 	(d)	 	Performance-Based Grants. Notwithstanding anything to
the contrary herein, certain Shares of Restricted Stock granted under this
Section 8 may, at the discretion of the Committee, be granted in a manner which
is intended to be deductible by the Company under Section 162(m) of the Code
(or any successor section thereto). The restrictions applicable to such
Restricted Stock shall lapse based wholly or partially on the attainment of
written performance goals approved by the Committee for a performance period
established by the Committee (i) while the outcome for that performance period
is substantially uncertain and (ii) no more than 90 days after the commencement
of the performance period to which the performance goal relates or, if less,
the number of days which is equal to










 



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	 		 	25 percent of the relevant performance period. The performance goals, which
must be objective, shall be based upon one or more of the criteria set forth
in Section 9(b) below. The Committee shall determine in its discretion
whether, with respect to a performance period, the applicable performance
goals have been met with respect to a given Participant and, if they have,
shall so certify prior to the release of the restrictions on the Shares.





9. Other Stock-Based Awards





	 	(a)	 	Generally. The Committee, in its sole discretion, may
grant or sell Awards of Shares and Awards that are valued in whole or in part
by reference to, or are otherwise based on the Fair Market Value of, Shares
(“Other Stock-Based Awards”). Such Other Stock-Based Awards shall be in such
form, and dependent on such conditions, as the Committee shall determine,
including, without limitation, the right to receive, or vest with respect to,
one or more Shares (or the equivalent cash value of such Shares) upon the
completion of a specified period of service, the occurrence of an event and/or
the attainment of performance objectives. Other Stock-Based Awards may be
granted alone or in addition to any other Awards granted under the Plan.
Subject to the provisions of the Plan, the Committee shall determine the number
of Shares to be awarded to a Participant under (or otherwise related to) such
Other Stock-Based Awards; whether such Other Stock-Based Awards shall be
settled in cash, Shares or a combination of cash and Shares; and all other
terms and conditions of such Awards (including, without limitation, the vesting
provisions thereof and provisions ensuring that all Shares so awarded and
issued shall be fully paid and non-assessable). The maximum amount of Other
Stock-Based Awards that may be granted during a calendar year to any
Participant shall be: (x) with respect to Other Stock-Based Awards that are
denominated or payable in Shares, 600,000 Shares and (y) with respect to Other
Stock-Based Awards that are not denominated or payable in Shares, $10 million.
Notwithstanding any other provision, with respect to (i) Other Stock-Based
Awards settled in Shares that are subject to time-based vesting, not less than
95% of such Other Stock Based Awards payable in Shares shall vest and become
payable at least three years after the date of grant, subject to earlier
vesting in whole or in part in the event of a Change in Control or the death,
disability or other termination of the Participant’s employment, and (ii) Other
Stock-Based Awards settled in Shares that are subject to vesting upon the
attainment of performance objectives, the minimum performance period shall be
one year.
	 
	 	(b)	 	Performance-Based Awards. Notwithstanding anything to
the contrary herein, certain Other Stock-Based Awards granted under this
Section 9 may be granted in a manner which is intended to be deductible by the
Company under Section 162(m) of the Code (or any successor section thereto)
(“Performance-Based Awards”). A Participant’s Performance-










 



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	 	 	 	Based Award shall be determined based on the attainment of written
performance goals approved by the Committee for a performance period of not
less than one year established by the Committee (i) while the outcome for
that performance period is substantially uncertain and (ii) no more than 90
days after the commencement of the performance period to which the
performance goal relates or, if less, the number of days which is equal to
25 percent of the relevant performance period. The performance goals, which
must be objective, shall be based upon one or more of the following
criteria: (i) consolidated earnings before or after taxes (including
earnings before interest, taxes, depreciation and amortization); (ii) net
income; (iii) operating income; (iv) earnings per Share; (v) book value per
Share; (vi) return on shareholders’ equity; (vii) expense management; (viii)
return on investment; (ix) improvements in capital structure; (x)
profitability of an identifiable business unit or product; (xi) maintenance
or improvement of profit margins; (xii) stock price; (xiii) market share;
(xiv) revenues or sales; (xv) costs; (xvi) cash flow; (xvii) working capital
and (xviii) return on assets. The foregoing criteria may relate to the
Company, one or more of its Affiliates or one or more of its or their
divisions or units, or any combination of the foregoing, and may be applied
on an absolute basis and/or be relative to one or more peer group companies
or indices, or any combination thereof, all as the Committee shall
determine. In addition, to the degree consistent with Section 162(m) of the
Code (or any successor section thereto), the performance goals may be
calculated without regard to extraordinary items. The Committee shall
determine whether, with respect to a performance period, the applicable
performance goals have been met with respect to a given Participant and, if
they have, shall so certify and ascertain the amount of the applicable
Performance-Based Award. No Performance-Based Awards will be paid for such
performance period until such certification is made by the Committee. The
amount of the Performance-Based Award actually paid to a given Participant
may be less than the amount determined by the applicable performance goal
formula, at the discretion of the Committee. The amount of the
Performance-Based Award determined by the Committee for a performance period
shall be paid to the Participant at such time as determined by the Committee
in its sole discretion after the end of such performance period;
provided, however, that a Participant may, if and to the
extent permitted by the Committee and consistent with the provisions of
Section 162(m) of the Code, elect to defer payment of a Performance-Based
Award.





10. Adjustments Upon Certain Events




     Notwithstanding any other provisions in the Plan to the contrary, the following provisions
shall apply to all Awards granted under the Plan:




	 	(a)	 	Generally. In the event of any change in the
outstanding Shares after the Effective Date by reason of any Share dividend or
split, reorganization,










 



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	 	 	 	recapitalization, merger, consolidation, spin-off, combination, combination
or transaction or exchange of Shares or other corporate exchange, or any
distribution to shareholders of Shares other than regular cash dividends or
any transaction similar to the foregoing, the Committee in its sole
discretion and without liability to any person may make such substitution or
adjustment, if any, as it deems to be equitable, as to (i) the number or
kind of Shares or other securities issued or reserved for issuance pursuant
to the Plan or pursuant to outstanding Awards, (ii) the maximum number of
Shares for which Awards (including limits established for Restricted Stock
or Other Stock-Based Awards) may be granted during a calendar year to any
Participant, (iii) the Option Price or exercise price of any Stock
Appreciation Right and/or (iv) any other affected terms of such Awards.
	 
	 	(b)	 	Change in Control. In the event of a Change in Control
after the Effective Date, the Committee may, but shall not be obligated to, (A)
accelerate, vest or cause the restrictions to lapse with respect to, all or any
portion of an Award or (B) cancel Awards for fair value (as determined in the
sole discretion of the Committee) which, in the case of Options and Stock
Appreciation Rights, may equal the excess, if any, of value of the
consideration to be paid in the Change in Control transaction to holders of the
same number of Shares subject to such Options or Stock Appreciation Rights (or,
if no consideration is paid in any such transaction, the Fair Market Value of
the Shares subject to such Options or Stock Appreciation Rights) over the
aggregate exercise price of such Options or Stock Appreciation Rights or (C)
provide for the issuance of substitute Awards that will substantially preserve
the otherwise applicable terms of any affected Awards previously granted
hereunder as determined by the Committee in its sole discretion or (D) provide
that for a period of at least 30 days prior to the Change in Control, such
Options shall be exercisable as to all shares subject thereto and that upon the
occurrence of the Change in Control, such Options shall terminate and be of no
further force and effect.





11. No Right to Employment or Awards




     The granting of an Award under the Plan shall impose no obligation on the Company or any
Affiliate to continue the Employment of a Participant and shall not lessen or affect the Company’s
or Subsidiary’s right to terminate the Employment of such Participant. No Participant or other
person shall have any claim to be granted any Award, and there is no obligation for uniformity of
treatment of Participants, or holders of Awards. The terms and conditions of Awards and the
Committee’s determinations and interpretations with respect thereto need not be the same with
respect to each Participant (whether or not such Participants are similarly situated).



12. Successors and Assigns










 




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     The Plan shall be binding on all successors and assigns of the Company and a Participant,
including without limitation, the estate of such Participant and the executor, administrator or
trustee of such estate, or any receiver or trustee in bankruptcy or representative of the
Participant’s creditors.



13. Nontransferability of Awards




     Unless otherwise determined by the Committee, an Award shall not be transferable or assignable
by the Participant otherwise than by will or by the laws of descent and distribution. An Award
exercisable after the death of a Participant may be exercised by the legatees, personal
representatives or distributees of the Participant.



14. Amendments or Termination




     The Board or the Committee may amend, alter or discontinue the Plan, but no amendment,
alteration or discontinuation shall be made, (a) without the approval of the shareholders of the
Company, if such action would (except as is provided in Section 10 of the Plan), increase the total
number of Shares reserved for the purposes of the Plan or increase the maximum number of Shares of
Restricted Stock or Other Stock-Based Awards that may be awarded hereunder, or the maximum number
of Shares for which Awards may be granted to any Participant, (b) without the consent of a
Participant, if such action would diminish any of the rights of the Participant under any Award
theretofore granted to such Participant under the Plan or (c) to Section 5(b), relating to
repricing of Options or Stock Appreciation Rights, to permit such repricing; provided,
however, that the Committee may amend the Plan in such manner as it deems necessary to
permit the granting of Awards meeting the requirements of the Code or other applicable laws.



15. International Participants




     With respect to Participants who reside or work outside the United States of America and who
are not (and who are not expected to be) “covered employees” within the meaning of Section 162(m)
of the Code, the Committee may, in its sole discretion, amend the terms of the Plan or Awards with
respect to such Participants in order to conform such terms with the requirements of local law or
to obtain more favorable tax or other treatment for a Participant, the Company or an Affiliate.



16. Other Benefit Plans




     All Awards shall constitute a special incentive payment to the Participant and shall not be
taken into account in computing the amount of salary or compensation of the Participant for the
purpose of determining any benefits under any pension, retirement, profit-sharing, bonus, life
insurance or other benefit plan of the Company or under any agreement between the Company and the
Participant, unless such plan or agreement specifically provides otherwise.



17. Choice of Law










 




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     The Plan shall be governed by and construed in accordance with the laws of the State of New
York without regard to conflicts of laws, and except as otherwise provided in the pertinent Award
agreement, any and all disputes between a Participant and the Company or any Affiliate relating to
an Award shall be brought only in a state or federal court of competent jurisdiction sitting in
Manhattan, New York.



18. Effectiveness of the Plan




     The Plan shall be effective as of the Effective Date, subject to the approval of the
shareholders of the Company.



19. Section 409A




     Notwithstanding other provisions of the Plan or any Award agreements thereunder, no Award
shall be granted, deferred, accelerated, extended, paid out or modified under this Plan in a manner
that would result in the imposition of an additional tax under Section 409A of the Code upon a
Participant. In the event that it is reasonably determined by the Committee that, as a result of
Section 409A of the Code, payments in respect of any Award under the Plan may not be made at the
time contemplated by the terms of the Plan or the relevant Award agreement, as the case may be,
without causing the Participant holding such Award to be subject to taxation under Section 409A of
the Code, the Company will make such payment on the first day that would not result in the
Participant incurring any tax liability under Section 409A of the Code; which, if the Participant
is a “specified employee” within the meaning of the Section 409A, shall be the first day following
the six-month period beginning on the date of Participant’s termination of Employment. The Company
shall use commercially reasonable efforts to implement the provisions of this Section 19 in good
faith; provided that neither the Company, the Committee nor any of the Company’s employees,
directors or representatives shall have any liability to Participants with respect to this Section
19.