EX-10.1



 





SAVIENT PHARMACEUTICALS, INC.

2004 INCENTIVE PLAN 

Amended and restated as of May 15, 2007



WHEREAS, Savient Pharmaceuticals, Inc.’s (the “Company”) Board of Directors approved the
elimination of the provisions for director compensation from the 2004 Incentive Plan (the
“Plan”) and established a separate program for director compensation (the “Director
Compensation Program”) at its meeting on May 15, 2007.




NOW, THERFORE, this Plan is amended and restated as follows:




     1. Purpose. The purpose of the Plan is to attract, motivate, reward and retain key
personnel of the Company, a Delaware corporation, and its successors , and affiliates through the
use of equity-based and cash incentive compensation awards (“Awards”). The Plan amends,
restates and consolidates the Savient Pharmaceuticals, Inc. 2001 Stock Option Plan (the “2001
Plan”) and the Savient Pharmaceuticals, Inc. Stock Compensation Plan for Outside Directors (the
“Director Plan”). The Plan shall be effective for Awards granted on or after the Effective
Date (as defined in Section 18 below). Awards granted under the 2001 Plan or the Director Plan
prior to the Effective Date shall continue to be governed by the terms of the 2001 Plan or the
Director Plan, as applicable, and the applicable Award agreements entered into thereunder.



     2. Aggregate Share Limitation. Subject to adjustment as provided in Section 13 below,
the total number of shares of common stock, $.01 par value (the “Common Stock”) which may
be issued pursuant to the Plan (exclusive of shares subject to options outstanding under the 2001
Plan on the Effective Date) shall not exceed of 6,239,405 shares (the “Authorized Shares”).
For these purposes, if a share of Common Stock is issued pursuant to a Full Value Equity Award (as
defined below) it shall reduce the number of Authorized Shares by 1.3 shares and if a share of
Common Stock is issued pursuant to an Award that is not a Full Value Equity Award it shall reduce
the number of Authorized Shares by one (1) share. In determining the number of Authorized Shares
available for issuance under the Plan at any time after the Effective Date, the following shares be
deemed not to have been issued (and will be remain available for issuance) pursuant to the Plan:
(i) shares subject to an Award that is forfeited, canceled, terminated or settled in cash, (ii)
shares repurchased by the Company from the recipient of an Award for not more than the original
purchase price of such shares or forfeited to the Company by the recipient of an Award, and (iii)
shares withheld or tendered by the recipient of an Award as payment of the exercise or purchase
price under an Award or the tax withholding obligations associated with an Award. For purposes of
the preceding sentence, references to Awards shall include options outstanding under the 2001 Plan
on the Effective Date. Notwithstanding the foregoing, subject to adjustment as provided in Section
13 below, no more than 6,239,405 shares of Common Stock may be issued pursuant to the exercise of
Incentive Stock Options (as defined in Section 5 below), exclusive of shares subject to options
outstanding under the 2001 Plan on the Effective Date. Shares may be either authorized and unissued
or held by the Company in its treasury. For purposes hereof, a “Full Value Equity Award” means any
Award which results in the issuance of shares of Common Stock other than options, stock
appreciation rights and other Awards which are based solely upon an increase in value of the Common
Stock following the date of grant.



1









 





     3. Annual Individual Award Limitations. Subject to adjustment as provided in Section
13 below, the maximum number of shares of Common Stock with respect to which options may be granted
during any calendar year to any employee is 250,000. Subject to adjustment as provided in Section
13 below, the maximum number of shares of Common Stock with respect to which stock appreciation
rights (“SARs”) may be granted during any calendar year to any employee is 250,000. With
respect to performance-based Awards pursuant to Section 9 valued by reference to Common Stock at
the date of grant, subject to adjustment as provided in Section 13 below, the maximum number of
shares of Common Stock that may be “earned” by any employee during any calendar year is 150,000.
With respect to performance-based Awards pursuant to Section 9 not valued by reference to Common
Stock at the date of grant (so that the foregoing limitation would not operate as an effective
limitation satisfying Treasury Regulation 1.162-27(e)(4)), the maximum amount that may be “earned”
by any employee during any calendar year is $500,000. Any “unused” portion of the annual limitation
on performance-based Awards that may be “earned” by an employee shall be carried forward on a
cumulative basis. For purposes of applying the limitations of this Section 3, (i) an employee’s
Award is “earned” upon satisfaction of the applicable performance condition(s), without regard to
whether settlement of the Award is deferred or remains subject to a continuing service or other
non-performance based condition(s), and (ii) an employee’s annual performance limit is “used” at
the time of grant of an Award, without regard to whether the Award is subsequently “earned.”



     4. Administration.



          (a) Committee. The Plan will be administered by the Company’s Board of Directors (the
“Board”) or a committee comprised of at least three members of the Board (the Board in such
capacity or such committee being referred to as the “Committee”). The members of the
Committee will be appointed by and serve at the pleasure of the Board. Notwithstanding the
foregoing, the Board will have sole responsibility and authority for matters relating to the grant
and administration of Awards to non-employee directors of the Company, and reference herein to the
Committee with respect to any such matters will be deemed to refer to the Board.




          (b) Responsibility and Authority of Committee. Subject to the provisions of the Plan,
the Committee, acting in its discretion, will have responsibility and full power and authority to
(i) select the persons to whom Awards will be made, (ii) prescribe the terms and conditions of each
Award and make amendments thereto, (iii) construe, interpret and apply the provisions of the Plan
and of any agreement or other document evidencing an Award made under the Plan, and (iv) make any
and all determinations and take any and all other actions as it deems necessary or desirable in
order to carry out the terms of the Plan. In exercising its responsibilities under the Plan, the
Committee may obtain at the Company’s expense such advice, guidance and other assistance from
outside compensation consultants and other professional advisers as it deems appropriate.




          (c) Delegation of Authority. Subject to the requirements of applicable law, the
Committee may delegate to any person or group or subcommittee of persons (who may, but need not be,
members of the Committee) such Plan-related functions within the scope of its responsibility, power
and authority as it deems appropriate.




2









 





          (d) Committee Actions. A majority of the members of the Committee shall constitute a
quorum. The Committee may act by the vote of a majority of its members present at a meeting at
which there is a quorum or by unanimous written consent. The decision of the Committee as to any
disputed question, including questions of construction, interpretation and administration, shall be
final and conclusive on all persons. The Committee shall keep a record of its proceedings and acts
and shall keep or cause to be kept such books and records as may be necessary in connection with
the proper administration of the Plan.




          (e) Indemnification. The Company shall indemnify and hold harmless each member of the
Board, the Committee or any subcommittee appointed by the Committee and any employee of the Company
who provides assistance with the administration of the Plan from and against any loss, cost,
liability (including any sum paid in settlement of a claim with the approval of the Board), damage
and expense (including reasonable legal fees and other expenses incident thereto and, to the extent
permitted by applicable law, advancement of such fees and expenses) arising out of or incurred in
connection with the Plan, unless and except to the extent attributable to such person’s fraud or
willful misconduct.




     5. Eligibility. Awards may be granted under the Plan to present or future employees of
the Company or an affiliate of the Company and to directors of, or consultants to, the Company or
an affiliate who are not employees, provided that incentive stock options (“Incentive Stock
Options”) within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended
(the “Code”), may only be granted to employees of the Company or a “subsidiary corporation”
of the Company within the meaning of Section 424(f) of the Code. For purposes hereof,
“affiliate” of the Company means a person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with, the Company.



     6. Stock Option Awards. Stock options granted under the Plan will have such vesting
and other terms and conditions as the Committee, acting in its discretion in accordance with the
Plan, may determine, either at the time the option is granted or, if the holder’s rights are not
adversely affected, at any subsequent time. The Committee may impose restrictions on shares
acquired upon, and/or make or impose such other arrangements or conditions as it deems appropriate
for the deferral of income attributable to, the exercise of options granted under the Plan.



          (a) Exercise Price. The exercise price per share of Common Stock covered by an option
granted under the Plan may not be less than the Fair Market Value (as defined in Section 12 below)
of a share of Common Stock on the date the option is granted, provided that, in the case of an
Incentive Stock Option granted to a “10% stockholder” within the meaning of Section 422(b)(6) of
the Code, the exercise price may not be less than 110% of the Fair Market Value of a share of
Common Stock on the date the option is granted.




          (b) Option Term. Unless sooner terminated in accordance with its terms, an option will
automatically expire on the tenth anniversary of the date it is granted (the fifth anniversary of
the date it is granted in the case of an Incentive Stock Option granted to a “10% stockholder”).




3









 





          (c) Manner of Exercise. An outstanding and exercisable option may be exercised by
transmitting to the Secretary of the Company (or other person designated for this purpose by the
Committee) a written notice identifying the option that is being exercised and specifying the
number of shares to be purchased pursuant to that option, together with payment of the exercise
price, and by satisfying the applicable tax withholding obligations pursuant to Section 14. The
Committee may establish such rules and procedures as it deems appropriate for the exercise of
options under the Plan. The Committee, acting in its sole discretion, may permit the exercise price
to be paid in whole or in part in cash or by check, by means of a cashless exercise procedure, in
the form of unrestricted shares of Common Stock (to the extent of the Fair Market Value thereof) if
the surrender or withholding of such shares does not result in the recognition of additional
accounting expense by the Company or, subject to applicable law, by any other form of consideration
deemed appropriate. In addition, subject to applicable law, the Committee may permit option holders
to elect to defer the delivery of shares representing the profit upon exercise of an option,
subject to such terms, conditions and restrictions as the Committee may specify.




          (d) Rights as a Stockholder. No shares of Common Stock will be issued in respect of
the exercise of an option granted under the Plan until full payment therefor has been made and the
applicable tax withholding obligation has been satisfied or provided for. The holder of an option
will have no rights as a stockholder with respect to any shares covered by an option until the date
a stock certificate for such shares is issued to him or her. Except as otherwise provided herein,
no adjustments shall be made for dividends or distributions of other rights for which the record
date is prior to the date such stock certificate is issued.




          (e) Nontransferability of Options. No option granted under the Plan may be assigned or
transferred except upon the option holder’s death to a beneficiary designated by the option holder
in a manner prescribed or approved for this purpose by the Committee or, if no designated
beneficiary shall survive the option holder, pursuant to the option holder’s will or by the laws of
descent and distribution; and each such option may be exercised during the option holder’s lifetime
only by the option holder. Notwithstanding the preceding sentence, the Committee may, in its sole
discretion, permit an option holder to transfer an option (other than an Incentive Stock Option),
in whole or in part, to such persons and/or entities as are approved by the Committee from time to
time and subject to such terms and conditions as the Committee may determine from time to time.




          (f) Termination of Employment or Other Service. The Committee may establish such
exercisability and other conditions applicable to an option following the termination of the option
holder’s employment or other service with the Company and its subsidiaries (“Termination of
Service”) as the Committee deems appropriate on a grant-by-grant basis.




          (g) Limitation on Repricing of Options. Unless and except to the extent otherwise
approved by the stockholders of the Company, the “repricing” of options granted under the Plan
shall not be permitted. For this purpose, “repricing” means: (i) amending the terms of an option
after it is granted to lower its exercise price, (ii) canceling an option at a time when its
exercise price is equal to or greater than the Fair Market Value of the underlying shares, in
exchange for another option, restricted stock or other equity award and (iii) any other action




4









 







that is treated as a repricing under generally accepted accounting principles; provided,
however, that a cancellation, exchange or other modification to an option that occurs in connection
with a merger, acquisition, spin-off or other corporate transaction, including under Section 13
(relating to capital and other corporate changes) will not be deemed a repricing. A cancellation
and exchange described in clause (ii) of the preceding sentence will be considered a repricing
regardless of whether the option, restricted stock or other equity award is delivered
simultaneously with the cancellation, regardless of whether it is treated as a repricing under
generally accepted accounting principles, and regardless of whether it is voluntary on the part of
the option holder.




     7. Stock Appreciation Rights. A stock appreciation right (“SAR”) constitutes a
conditional right of the holder to receive, in cash and/or shares of Common Stock of equivalent
value, as determined by the Committee in its sole discretion, an amount equal to the Fair Market
Value of a share of Common Stock on the applicable exercise or designated settlement date minus a
specified base price. SARs granted under the Plan will have such vesting and other terms and
conditions as the Committee, acting in its discretion in accordance with the Plan, may determine,
either at the time the SAR is granted or, if the holder’s rights are not adversely affected, at any
subsequent time. The Committee may impose restrictions on the settlement of SARs, and/or make or
impose such other arrangements or conditions as it deems appropriate for the deferral of income
attributable to, the exercise of SARs granted under the Plan.



          (a) Types of SARs. SARs may be awarded in conjunction with a stock option award
(“tandem SARs”) or independent of any stock option award (“stand-alone SARs”). A
tandem SAR may be awarded either at or after the time the related option award is granted, provided
that a tandem SAR awarded in conjunction with an Incentive Stock Option may only be awarded at the
time the ISO is granted.




          (b) Base Price. The base price per share of Common Stock covered by an SAR granted
under the Plan may not be less than the Fair Market Value of a share of Common Stock on the date
the SAR is granted, provided that, in the case of a tandem SAR awarded in conjunction with an
Incentive Stock Option granted to a “10% stockholder”, the base price may not be less than 110% of
the Fair Market Value of a share of Common Stock on the date the SAR is granted.




          (c) SAR Term. Unless sooner terminated in accordance with its terms, a stand-alone SAR
will automatically expire on the tenth anniversary of the date it is granted and a tandem SAR will
expire upon the expiration of the related option.




          (d) Exercise of SARs. Except as otherwise provided herein, a tandem SAR will be
exercisable only at the same time and to the same extent and subject to the same conditions as the
related option is exercisable. The exercise of a tandem SAR will terminate the related option to
the extent of the shares of Common Stock with respect to which the SAR is exercised, and vice
versa. An outstanding and exercisable SAR may be exercised by transmitting to the Secretary of the
Company (or other person designated for this purpose by the Committee) a written notice identifying
the SAR that is being exercised, specifying the number of shares covered by the exercise and
containing such other information or statements as the Committee may require, and by satisfying the
applicable tax withholding obligations pursuant to Section 14.




5









 




The Committee may establish such rules and procedures as it deems appropriate for the exercise
of SARs under the Plan. Upon the exercise of an SAR (or designated settlement date, if applicable),
the holder will be entitled to receive an amount, in cash and/or shares of Common Stock as
determined by the Committee, equal to the product of (i) the number of shares of Common Stock with
respect to which the SAR is being exercised (or settled) and (ii) the difference between the Fair
Market Value of a share of Common Stock on the date the SAR is exercised (or settled) and the base
price per share of the SAR.




          (e) Nontransferability of SARs. No SARs granted under the Plan may be assigned or
transferred except upon the SAR holder’s death to a beneficiary designated by the SAR holder in a
manner prescribed or approved for this purpose by the Committee or, if no designated beneficiary
shall survive the SAR holder, pursuant to the SAR holder’s will or by the laws of descent and
distribution; and each such SAR may be exercised during the SAR holder’s lifetime only by the SAR
holder.




          (f) Termination of Employment or Other Service. The Committee may establish such
exercisability and other conditions applicable to an SAR following the recipient’s Termination of
Service as the Committee deems appropriate on a grant-by-grant basis.




     8. Restricted Stock and Restricted Stock Unit Awards. The Committee may grant stock
Awards upon such terms and conditions as the Committee, acting in its discretion in accordance with
the Plan, may determine. A stock Award may take the form of the issuance and transfer to the
recipient of shares of Common Stock or a grant of stock units representing a right to receive
shares of Common Stock in the future and, in either case, may be subject to designated vesting
conditions, repurchase rights and transfer restrictions. Without limiting the foregoing, the
Committee may, in its sole discretion, make stock or stock unit Awards pursuant to the Plan in
conjunction with such voluntary or involuntary deferred compensation plans or arrangements as the
Company may establish from time to time on such terms and conditions as it deems appropriate.



          (a) Minimum Purchase Price. The purchase price payable for shares of Common Stock
transferred pursuant to a stock Award must be at least equal to their par value, unless other
lawful consideration is received by the Company for the issuance of the shares or treasury shares
are delivered in connection with the Award.




          (b) Stock Certificates for Non-Vested Stock. Shares of Common Stock issued pursuant to
a non-vested stock Award may be evidenced by book entries on the Company’s stock transfer records
pending satisfaction of the applicable vesting conditions. If a stock certificate for shares is
issued before the stock Award vests, the certificate will bear an appropriate legend to reflect the
nature of the conditions and restrictions applicable to the shares, and the Company may require
that any or all such stock certificates be held in custody by the Company until the applicable
conditions are satisfied and other restrictions lapse. The Committee may establish such other
conditions as it deems appropriate in connection with the issuance of certificates for shares
issued pursuant to non-vested stock Awards, including, without limitation, a requirement that the
recipient deliver a duly signed stock power, endorsed in blank, for the shares covered by the
Award.




6









 





          (c) Stock Certificates for Vested Stock. The recipient of a vested stock Award will be
entitled to receive a certificate, free and clear of conditions and restrictions (except as may be
imposed in order to comply with applicable law), for vested shares covered by the Award, subject,
however, to the payment or satisfaction of withholding tax obligations in accordance with Section
14. The delivery of vested shares covered by an Award of stock units may be deferred if and to the
extent provided by the terms of the Award or directed by the Committee.




          (d) Rights as a Stockholder. Unless otherwise determined by the Committee, (i) the
recipient of a stock Award will be entitled to receive dividend payments (or, in the case of an
Award of stock units, dividend equivalent payments) on or with respect to the shares that remain
covered by the Award (which the Committee may specify are payable on a deferred basis and are
forfeitable to the same extent as the underlying Award), (ii) the recipient of a non-vested stock
Award may exercise voting rights if and to the extent that shares of Common Stock have been issued
to him pursuant to the Award, and (iii) the recipient will have no other rights as a stockholder
with respect to such shares unless and until the shares are issued to him free of all conditions
and restrictions under the Plan.




          (e) Nontransferability. With respect to any stock or stock unit Award, unless and
until all applicable vesting conditions, if any, are satisfied and vested shares are issued,
neither the Award nor any shares of Common Stock issued pursuant to the Award may be sold,
assigned, transferred, disposed of, pledged or otherwise hypothecated other than to the Company in
accordance with the terms of the Award or the Plan. Any attempt to do any of the foregoing before
such time shall be null and void and, unless the Committee determines otherwise, shall result in
the immediate forfeiture of the shares or the Award, as the case may be.




          (f) Termination of Service Before Vesting; Forfeiture. Unless the Committee determines
otherwise, a non-vested stock Award will be forfeited upon the recipient’s Termination of Service.
If a non-vested stock Award is forfeited, any certificate representing shares subject to such Award
will be canceled on the books of the Company and the recipient will be entitled to receive from the
Company an amount equal to any cash purchase price paid by him for such shares. If an Award of
stock units is forfeited, the recipient will have no further right to receive the shares of Common
Stock represented by such units.




     9. Performance-Based Awards.



          (a) General. The Committee may condition the grant, exercise, vesting or settlement of
equity-based Awards on the achievement of specified performance goals in accordance with this
Section 9. In addition, incentive Awards, including annual incentive Awards and long-term incentive
Awards, denominated as cash amounts, may be granted under this Section, which Awards may be earned
by achievement of specified performance goals in accordance with this Section. The performance
period during which achievement of such performance goals may be measured may be any period
specified by the Committee.




          (b) Objective Performance Goals. A performance goal established in connection with an
Award covered by this Section must be (1) objective, so that a third party having knowledge of the
relevant facts could determine whether the goal is met, (2) prescribed in




7









 







writing by the Committee before the beginning of the applicable performance period or at such
later date not later than 90 days after the commencement of the performance period when fulfillment
is substantially uncertain and in any event before completion of 25% of the performance period, and
(3) based on any one or more of the following business criteria (which may be applied to an
individual, a subsidiary, a business unit or division, or the Company and any one or more of its
subsidiaries, business units or divisions as a group, as determined by the Committee):





     (i) total revenue or any key component thereof;




     (ii) operating income, pre-tax or after-tax income from continuing
operations, EBIT, EBITDA or net income;




     (iii) cash flow (including, without limitation, free cash flow, cash
flow return on investment (discounted or otherwise), net cash provided by
operations or cash flow in excess of cost of capital);




     (iv) earnings per share or earnings per share from continuing
operations (basic or diluted);




     (v) return on capital employed, return on invested capital, return on
assets or net assets;




     (vi) after-tax return on stockholders’ equity;



     (vii) economic value created;




     (viii) operating margins or operating expenses;




     (ix) value of the Common Stock or total return to stockholders;




     (x) value of an investment in the Common Stock assuming the
reinvestment of dividends;




     (xi) strategic business criteria, consisting of one or more objectives
based on meeting specified market penetration goals, business expansion
goals, development or commercialization of products, implementation of
efficiencies or cost savings, cost targets, employee satisfaction,
management of employment practices and employee benefits, or goals relating
to acquisitions or divestitures of subsidiaries, Affiliates or joint
ventures; and/or




     (xii) a combination of any or all of the foregoing criteria.


The targeted level or levels of performance with respect to such business criteria may be
established at such levels and on such terms as the Committee may determine, in its discretion,
including in absolute terms, as a goal relative to performance in prior periods, or as a goal
compared to the performance of one or more comparable companies or an index covering




8









 







multiple companies. If and to the extent permitted for Awards intended to qualify as
“performance-based” under Section 162(m) of the Code, the Committee may provide for the adjustment
of such performance goals to reflect changes in accounting methods, corporate transactions
(including, without limitation, dispositions and acquisitions) and other similar types of events or
circumstances occurring during the applicable performance period.




          (c) Calculation of Performance-Based Award. At the expiration of the applicable
performance period, the Committee shall determine the extent to which the performance goals
established pursuant to this Section are achieved and the extent to which each performance-based
Award has been earned. The Committee may not exercise its discretion to enhance the value of an
Award that is subject to performance-based conditions imposed under this Section.




     10. Automatic Awards of Shares to Outside Directors. Director of the Company who are
neither officers nor employees of the Company or any of its subsidiaries (each, an “Outside
Director”) shall be automatically awarded Shares pursuant to the Director Compensation Program.



     11. Other Equity-Based Awards. The Committee may grant dividend equivalent payment
rights, phantom shares, bonus shares and other forms of equity-based Awards to eligible persons,
subject to such terms and conditions as it may establish. Awards made pursuant to this Section 11
may entail the transfer of shares of Common Stock to an Award recipient or the payment in cash or
otherwise of amounts based on the value of shares of Common Stock and may include, without
limitation, Awards designed to comply with or take advantage of applicable tax and/or other laws.
Without limiting the foregoing, in order to comply with applicable foreign laws, the Committee may
establish such sub-plans or programs (and apply for and obtain governmental or regulatory approvals
or exemptions therefor) and modify exercise procedures and other terms and conditions applicable to
Awards as may be necessary or desirable under such laws.



     12. Fair Market Value. For Plan purposes, unless otherwise required by the Code or
determined by the Committee, the “Fair Market Value” of a share of Common Stock on any date
is: (a) the last reported sale price of the Common Stock on The Nasdaq National Market or, if no
such reported sale takes place on any such day, the average of the closing bid and asked prices,
(b) if such Common Stock shall then be listed on a national securities exchange, the last reported
sale price or, if no such reported sale takes place on any such day, the average of the closing bid
and asked prices on the principal national securities exchange on which the Common Stock is listed
or admitted to trading, (c) if such Common Stock shall not be quoted on such National Market nor
listed or admitted to trading on a national securities exchange, then the average of the closing
bid and asked prices, as reported by The Wall Street Journal, for the over-the-counter market, or
(d) if none of the foregoing is applicable, then the fair market value of a share of Common Stock
shall be determined in good faith by the Committee in its discretion.



     13. Capital Changes, Reorganization, Sale.



          (a) Adjustments upon Changes in Capitalization. The aggregate number and class of
shares issuable pursuant to the Plan and the exercise of Incentive Stock Options, the




9









 







maximum number of shares with respect to which options, SARs or other equity Awards may be
granted to or earned by any employee in any calendar year, the number and class of shares and the
exercise price per share covered by each outstanding option (including options granted in
accordance with the Director Compensation Program), the number and class of shares and the base
price per share covered by each outstanding SAR, the number and class of shares covered by each
outstanding stock unit or other-equity-based Award, the number and class of shares subject to
options to be awarded in accordance with the Director Compensation Program and any per-share base
or purchase price or target market price included in the terms of any such Award and related terms
shall all be adjusted proportionately or as otherwise appropriate to reflect any increase or
decrease in the number of issued shares of Common Stock resulting from a split-up or consolidation
of shares or any like capital adjustment, or the payment of any stock dividend, and/or to reflect a
change in the character or class of shares covered by the Plan arising from a readjustment or
recapitalization of the Company’s capital stock.




          (b) Acceleration of Vesting Upon Change of Control. If there is a “Change of Control”
of the Company (as defined in subsection (f) below), then (i) all outstanding options and SARs
shall become fully exercisable whether or not the vesting conditions, if any, set forth in the
related option or SAR agreements have been satisfied, and each holder of such Award shall have the
right to exercise his or her options and/or SARs for as long thereafter as the option or SAR shall
remain in effect in accordance with its terms and the provisions hereof, and (ii) the Board, acting
in its discretion, may accelerate vesting of all other non-vested Awards.




          (c) Conversion of Options and SARs on Stock for Stock Exchange. If the stockholders of
the Company receive capital stock of another corporation (“Exchange Stock”) in exchange for
their shares of Common Stock in any transaction involving a merger (other than a merger of the
Company in which the holders of Common Stock immediately prior to the merger have the same
proportionate ownership of common stock in the surviving corporation immediately after the merger),
consolidation, acquisition of property or stock, separation or reorganization (other than a mere
reincorporation or the creation of a holding company) (an “Exchange Transaction”), all
outstanding options shall be converted into options to purchase shares of Exchange Stock and all
outstanding SARs shall be converted into SARs relating to shares of Exchange Stock unless the
Board, in its sole discretion, determines that all such options and/or SARs shall instead
terminate, in which case the Company shall notify the option holders and SAR holders in writing or
electronically, at least fifteen days prior to the consummation of the Exchange Transaction, that
the option and SAR holders shall have the right, contingent upon the occurrence of the Exchange
Transaction, to exercise all of his or her outstanding options and SARs in full (whether or not the
vesting conditions, if any, set forth in the related option and SAR agreements have been satisfied)
for the period specified in the notice (but in any case not less than fifteen days from the date of
such notice), provided that, if the Exchange Transaction does not take place within the specified
period in the notice for any reason whatsoever, the notice and any exercise pursuant thereto shall
be null and void. The amount and exercise or base price of converted options and SARs shall be
determined by adjusting the amount and price of the options and SARs granted hereunder in the same
proportion as used for determining the number of shares of Exchange Stock the holders of the Common
Stock receive in such merger, consolidation, acquisition of property or stock, separation or
reorganization. To the extent provided in subsection (b) above, the converted options and SARs
shall be fully vested whether or not the vesting requirements set forth in the option or SAR
agreement have been satisfied. The




10









 







Board, acting in its discretion, may provide for cash settlement and/or make such other
adjustments to the terms of any other outstanding Award as it deems appropriate in the context of
an Exchange Transaction, taking into account the manner in which outstanding options and SARs are
being treated.




          (d) Fractional Shares. In the event of any adjustment in the number of shares covered
by any Award pursuant to the provisions hereof, any fractional shares resulting from such
adjustment will be disregarded and each such Award will cover only the number of full shares
resulting from the adjustment.




          (e) Determination of Board to be Final. All adjustments under this Section 1344 shall
be made by the Board, and its determination as to what adjustments shall be made, and the extent
thereof, shall be final, binding and conclusive. Unless an option holder agrees otherwise, any
change or adjustment to an Incentive Stock Option shall be made in such a manner so as not to
constitute a “modification” as defined in Section 424(h) of the Code and so as not to cause the
option holder’s Incentive Stock Option issued hereunder to fail to continue to qualify as an
Incentive Stock Option.




          (f) Change of Control Defined. For purposes hereof, a “Change of Control” of
the Company is deemed to occur if (1) there occurs (A) any consolidation or merger in which the
Company is not the continuing or surviving entity or pursuant to which shares of the Common Stock
would be converted into cash, securities or other property, other than (x) a consolidation or
merger of the Company in which the holders of the Common Stock immediately prior to the
consolidation or merger have the same proportionate ownership of common stock of the surviving
corporation immediately after the consolidation or merger, or (y) a consolidation or merger which
would result in the voting securities of the Company outstanding immediately prior thereto
continuing to represent (by being converted into voting securities of the continuing or surviving
entity) more than 50% of the combined voting power of the voting securities of the surviving or
continuing entity immediately after such consolidation or merger and which would result in the
members of the Board immediately prior to such consolidation or merger (including, for this
purpose, any individuals whose election or nomination for election was approved by a vote of at
least two-thirds of such members), constituting a majority of the board of directors (or equivalent
governing body) of the surviving or continuing entity immediately after such consolidation or
merger; or (B) any sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all or substantially all the Company’s assets; (2) the Company’s
stockholders approve any plan or proposal for the liquidation or dissolution of the Company; (3)
any person (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of
1934, as amended) shall become the beneficial owner (within the meaning of Rule 13d-3 under said
Act) of 40% or more of the Common Stock other than pursuant to a plan or arrangement entered into
by such person and the Company; or (4) during any period of two consecutive years, individuals who
at the beginning of such period constitute the entire Board shall cease for any reason to
constitute a majority of the Board unless the election or nomination for election by the Company’s
stockholders 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.




11









 








     14. Tax Withholding. As a condition to the exercise of any Award, the delivery of any
shares of Common Stock pursuant to any Award, the lapse of restrictions on any Award or the
settlement of any Award, or in connection with any other event that gives rise to a federal or
other governmental tax withholding obligation on the part of the Company or an affiliate relating
to an Award (including, without limitation, an income tax deferral arrangement pursuant to which
employment tax is payable currently), the Company and/or the affiliate may (a) deduct or withhold
(or cause to be deducted or withheld) from any payment or distribution to an Award recipient
whether or not pursuant to the Plan or (b) require the recipient to remit cash (through payroll
deduction or otherwise), in each case in an amount sufficient in the opinion of the Company to
satisfy such withholding obligation. If the event giving rise to the withholding obligation
involves a transfer of shares of Common Stock, then, at the sole discretion of the Committee, the
recipient may satisfy the withholding obligation described under this Section 14 by electing to
have the Company withhold shares of Common Stock or by tendering previously-owned shares of Common
Stock, in each case having a Fair Market Value equal to the amount of tax to be withheld (or by any
other mechanism as may be required or appropriate to conform with local tax and other rules);
provided, however, that no shares may be withheld if and to the extent that such withholding would
result in the recognition of additional accounting expense by the Company.



     15. Amendment and Termination. The Board may amend or terminate the Plan. Except as
otherwise provided in the Plan with respect to equity changes, any amendment which would (a)
increase the aggregate number of shares of Common Stock issuable under the Plan or the maximum
number of shares with respect to which options, SARs or other equity Awards may be granted to any
employee in any calendar year, (b) modify the class of persons eligible to receive Awards under the
Plan or (c) otherwise require stockholder approval under applicable law or exchange or market
requirements, shall, to the extent required by applicable law or exchange or market requirements,
be subject to the approval of the Company’s stockholders. No amendment or termination may affect
adversely any outstanding Award without the written consent of the Award recipient.



     16. General Provisions.



          (a) Shares Issued under Plan. Shares of Common Stock available for issuance under the
Plan may be authorized and unissued, held by the Company in its treasury or otherwise acquired for
purposes of the Plan. No fractional shares of Common Stock will be issued under the Plan.




          (b) Compliance with Law. The Company will not be obligated to issue or deliver shares
of Common Stock pursuant to the Plan unless the issuance and delivery of such shares complies with
applicable law, including, without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the requirements of any stock exchange or market
upon which the Common Stock may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.




          (c) Transfer Orders; Placement of Legends. All certificates for shares of Common Stock
delivered under the Plan shall be subject to such stock-transfer orders and other restrictions as
the Company may deem advisable under the rules, regulations, and other




12









 







requirements of the Securities and Exchange Commission, any stock exchange or market upon
which the Common Stock may then be listed, and any applicable federal or state securities law. The
Company may cause a legend or legends to be placed on any such certificates to make appropriate
reference to such restrictions.




          (d) No Employment or other Rights. Nothing contained in the Plan or in any Award
agreement shall confer upon any recipient of an Award any right with respect to the continuation of
his or her employment or other service with the Company or an affiliate or interfere in any way
with the right of the Company and its affiliates at any time to terminate such employment or other
service or to increase or decrease, or otherwise adjust, the other terms and conditions of the
recipient’s employment or other service.




          (e) Decisions and Determinations Final. Except to the extent rights or powers under
the Plan are reserved specifically to the discretion of the Board, the Committee shall have full
power and authority to interpret the Plan and any Award agreement made under the Plan and to
determine all issues which arise thereunder or in connection therewith, and the decision of the
Board or the Committee, as the case may be, shall be binding and conclusive on all interested
persons.




          (f) Certain Limitations Relating to Accounting Treatment of Awards. At any time that
the Company is accounting for stock-denominated Awards (other than SARs) under Accounting
Principles Board Opinion 25 (“APB 25”), the Company intends that, with respect to such
Awards, the compensation measurement date for accounting purposes shall occur at the date of grant
or the date performance conditions are met if an Award is fully contingent on achievement of
performance goals, unless the Committee specifically determines otherwise. Therefore, other
provisions of the Plan notwithstanding, in order to preserve this fundamental objective of the
Plan, if any authority granted to the Committee hereunder or any provision of the Plan or an Award
agreement would result, under APB 25, in “variable” accounting or a measurement date other than the
date of grant or the date such performance conditions are met with respect to such Awards, if the
Committee was not specifically aware of such accounting consequence at the time such Award was
granted or provision otherwise became effective, such authority shall be limited and such provision
shall be automatically modified and reformed to the extent necessary to preserve the accounting
treatment of the award intended by the Committee, subject to Section 15 of the Plan.




          (g) Nonexclusivity of the Plan. No provision of the Plan, and neither its adoption
Plan by the Board or submission to the stockholders for approval, shall be construed as creating
any limitations on the power of the Board or a committee thereof to adopt such other incentive
arrangements, apart from the Plan, as it may deem desirable, including incentive arrangements and
Awards which do not qualify as “performance-based compensation” under Section 162(m) of the Code.




     17. Governing Law. All rights and obligations under the Plan and each Award agreement
or instrument shall be governed by and construed in accordance with the laws of the State of
Delaware, without regard to its principles of conflict of laws.



13









 





     18. Term of the Plan. The Plan shall become effective on the date it is approved by
the Company’s stockholders (the “Effective Date”). Unless sooner terminated by the Board,
the Plan shall terminate on April 30, 2011. The rights of any person with respect to an Award made
under the Plan that is outstanding at the time of the termination of the Plan shall not be affected
solely by reason of the termination of the Plan and shall continue in accordance with the terms of
the Award and of the Plan, as each is then in effect or is thereafter amended.




14