exv10w1



 




Exhibit 10.1


Dean Foods Company 2007 Stock Incentive Plan




Section 1. Purpose 




The Plan is intended to promote the interests of the Company and its shareholders by (i) attracting
and retaining non-employee directors and executive personnel and other key employees of outstanding
ability; (ii) motivating non-employee directors and executive personnel and other key employees, by
means of performance-related incentives, to achieve longer-range Performance Criteria; and (iii)
enabling such non-employee directors and employees to participate in the growth and financial
success of the Company.



Section 2. Definitions




(a) Certain Definitions. Capitalized terms used herein without definition shall have the
respective meanings set forth below:



“Act” means the Securities Exchange Act of 1934, as amended.



“Affiliate” means (i) for purposes of Incentive Stock Options, any corporation that is a “parent
corporation” (as defined in Section 424(e) of the Code) or a “subsidiary corporation” (as defined
in Section 424(e) of the Code) of the Company, and (ii) for all other purposes, with respect to any
person, any other person that (directly or indirectly) is controlled by, controlling or under
common control with such person.



“Award” means any grant or award made pursuant to Sections 5 through 8 of the Plan, inclusive.



“Award Agreement” means either a written or electronic agreement entered into by the Company and a
Participant setting forth the terms and provisions applicable to an Award or Awards granted to the
Participant, or a written or electronic statement issued by the Company describing the terms and
conditions of an Award or Awards.



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



“Cause” means (i) the willful failure of a Participant to perform substantially his or her duties;
(ii) a Participant’s willful or serious misconduct that has caused, or could reasonably be expected
to result in, material injury to the business or reputation of an Employer; (iii) a Participant’s
conviction of, or entering a plea of guilty or nolo contendere to, a crime constituting a felony;
(iv) the breach by a Participant of any written covenant or agreement with an Employer, any
material written policy of any Employer or any Employer’s “code of conduct”, or (v) the
Participant’s failure to cooperate with an Employer in any internal investigation or
administrative, regulatory or judicial proceeding. In addition, the Participant’s Service shall be
deemed to have terminated for Cause if, after the Participant’s Service has terminated (for a
reason other than Cause), facts and circumstances are discovered that would have justified a
termination for Cause.



“Change in Control” means the first occurrence of any of the following events after the Effective
Date:




	(i)	 	any person, entity or “group” (as defined in Section 13(d) of the Act), other than the
Company, a wholly-owned subsidiary of the Company, and any employee benefit plan of the
Company or any wholly-owned subsidiary of the Company, becomes a “beneficial owner” (as
defined in Rule 13d-3 under the Act), of 30% or more of the combined voting power of the
Company’s then outstanding voting securities;




 









 












	(ii)	 	the persons who, as of the Effective Date, are serving as the members of the Board (the
“Incumbent Directors”) shall cease for any reason to constitute at least a majority of the
Board (or the board of directors of any successor to the Company), provided that any director
elected to the Board, or nominated for election, by at least two-thirds of the Incumbent
Directors then still in office shall be deemed to be an Incumbent Director for purposes of
this clause (ii);






	(iii)	 	the Company consummates a merger or consolidation with any other corporation, and as a
result of which (A) persons who were shareholders of the Company immediately prior to such
merger or consolidation, do not, immediately thereafter, own, directly or indirectly and in
substantially the same proportions as their ownership of the stock of the Company immediately
prior to the merger or consolidation, more than 50% of the combined voting power of the voting
securities entitled to vote generally in the election of directors of (x) the Company or the
surviving entity or (y) an entity that, directly or indirectly, owns more than 50% of the
combined voting power entitled to vote generally in the election of directors of the entity
described in subclause (x), and (B), within the twelve-month period after such consummation of
the merger or consolidation, the members of the Board as of the consummation of such merger or
consolidation cease to constitute a majority of the board of directors of the Company or the
surviving entity (or the entity that, directly or indirectly, owns more than 50% of the
combined voting power entitled to vote generally in the election of directors of the Company
or such surviving entity);






	(iv)	 	the shareholders of the Company approve a sale, transfer or other disposition of all or
substantially all of the assets of the Company, which is consummated and immediately following
which the persons who were shareholders of the Company immediately prior to such sale,
transfer or disposition, do not own, directly or indirectly and in substantially the same
proportions as their ownership of the stock of the Company immediately prior to the sale,
transfer or disposition, more than 50% of the combined voting power of the voting securities
entitled to vote generally in the election of directors of (x) the entity or entities to which
such assets are sold or transferred or (y) an entity that, directly or indirectly, owns more
than 50% of the combined voting power entitled to vote generally in the election of directors
of the entities described in subclause (x);






	(v)	 	the shareholders of the Company approve a plan of complete liquidation of the Company, or
such a plan is commenced; and






	(vi)	 	any other event not described in clauses (i) through (v) above that the Board, in its
discretion, determines to be a Change in Control.





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



“Committee” means the Compensation Committee of the Board



or such other committee of the Board as the Board shall from time to time designate to administer
the Plan.



“Company” means Dean Foods Company, a Delaware corporation.



“Consultant” means any person, including an advisor, engaged by an Employer to render services to
such Employer and who is not a Director or an Employee.



 









 





“Designated Beneficiary” means the beneficiary designated by the Participant, in a manner
determined by the Committee, to receive amounts due the Participant 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.



“Director” means any individual who is a member of the Board or the board of directors of an
Affiliate of the Company.



"Disability” means, unless another definition is incorporated into the applicable Award Agreement,
disability as specified under the long-term disability plan of the Company or an Affiliate thereof
that covers the Participant, or if there is no such long-term disability plan, any other
termination of a Participant’s Service under such circumstances that the Committee determines to
qualify as a Disability for purposes of this Plan; provided that if a Participant is a party to an
employment or individual severance agreement with an Employer that defines the term “Disability”
then, with respect to any Award made to such Participant, “Disability” shall have the meaning set
forth in such employment or severance agreement.



“Effective Date” means April 2, 2007, the date on which the Plan was approved by the Board.



“Employee” means any officer or employee employed by any Employer in a common-law employee-employer
relationship.



“Employer” means the Company and any Affiliate thereof.



“Executive Officer” means any “officer” within the meaning of Rule 16(a)-1(f) promulgated under the
Act or any “covered employee” within the meaning of Section 162(m)(3) of the Code.



“Fair Market Value” means the closing sales price (or average of the quoted closing bid and asked
prices if there is no closing sale price reported) of the Common Stock on the date specified as
reported by the principal national exchange or trading system on which the Common Stock is then
listed or traded. If there is no reported price information for the Common Stock, the Fair Market
Value will be determined by the Board or the Committee may, but shall not be obligated to,
commission and rely upon an independent appraisal of the Common Stock.



“Incentive Stock Option” means a stock option granted under Section 7 of the Plan that is
designated as an Incentive Stock Option that is intended to meet the requirements of Section 422 of
the Code.



“Net Exercised” means the exercise of an Option or any portion thereof by the delivery of the
greatest number of whole shares of Stock having a Fair Market Value on the date of exercise not in
excess of the difference between the aggregate Fair Market Value of the shares of Stock subject to
the Option (or the portion of such Option then being exercised) and the aggregate exercise price
for all such shares of Stock under the Option (or the portion thereof then being exercised), with
any fractional share that would result from such equation to be payable in cash.



“New Employer” means, after a Change in Control, a Participant’s employer, or any direct or
indirect parent or any direct or indirect majority-owned subsidiary of such employer.



 









 





“Non-statutory Stock Option” means a stock option granted under Section 7 of the Plan that is not
intended to be an Incentive Stock Option.



“Option” means an Incentive Stock Option or a Non-statutory Stock Option.



“Other Stock-Based Award” means an award of, or related to, shares of Stock other than Options,
Restricted Stock, Performance Shares, Restricted Stock Units or Performance Units, as granted by
the Committee in accordance with the provisions of Section 8 of the Plan.



“Participant” means an Employee, Director or Consultant who is selected by the Committee to receive
an Award under the Plan.



“Performance Award” means an Award granted pursuant to Section 5 of the Plan of a contractual right
to receive cash or Stock (as determined by the Committee) upon the achievement, in whole or in
part, of the applicable Performance Criteria.



“Performance Criteria” means the objectives established by the Committee for a Performance Period
pursuant to Section 5(c) of the Plan for the purpose of determining the extent to which an Award of
Performance Shares, Performance Awards or Performance Units has been earned.



“Performance Period” means the period selected by the Committee during which performance is
measured for the purpose of determining the extent to which an Award of Performance Shares,
Performance Awards or Performance Units has been earned.



“Performance Share” means an Award granted pursuant to Section 5 of the Plan of a contractual right
to receive one share of Stock (or the Fair Market Value thereof in cash or any combination of cash
and Stock, as determined by the Committee), or a fraction or multiple thereof, upon the
achievement, in whole or in part, of the applicable Performance Criteria.



“Performance Unit” means an Award granted pursuant to Section 5 of the Plan of a contractual right
to receive a fixed or variable dollar denominated unit (or a unit denominated in the Participant’s
local currency), or a fraction or multiple thereof, upon the achievement, in whole or in part, of
the applicable Performance Criteria. The Committee shall determine whether the earned portion of
any such Performance Units shall be payable in cash, Stock or any combination thereof.



“Qualifying Termination of Employment” means a termination of a Participant’s Service with an
Employer by reason of the Participant’s death, Disability or Retirement.



“Restriction Period” means the period of time selected by the Committee during which an Award of
Restricted Stock and Restricted Stock Units, as the case may be, is subject to forfeiture and/or
restrictions on transfer pursuant to the terms of the Plan.



“Restricted Stock” means shares of Stock contingently granted to a Participant under Section 6 of
the Plan.



 









 





“Restricted Stock Unit” means a fixed or variable stock denominated unit contingently awarded to a
Participant under Section 6 of the Plan.



“Retirement” means, unless another definition is incorporated into the applicable Award Agreement,
a termination of the Participant’s Service at or after the Participant’s normal retirement age or
earlier retirement date established under any qualified retirement plan maintained by the Company;
provided that if a Participant is a party to an employment or individual severance agreement with
an Employer that defines the term “Retirement” then, with respect to any Award made to such
Participant, “Retirement” shall have the meaning set forth in such employment or severance
agreement.



“Service” means the provision of services to the Company or its Affiliates in the capacity of (i)
an Employee, (ii) a Director, or (iii) a Consultant.



“Special Termination” means a termination of the Participant’s Service due to death or Disability.



“Stock” means the common stock of the Company, par value $0.01 per share.



“Stock Appreciation Right” or “SAR” means an Award, granted alone or in tandem with an Option,
designated as an SAR under Section 7 of the Plan.



“Subsidiary” means any business entity in which the Company possesses directly or indirectly fifty
percent (50%) or more of the total combined voting power.



(b) Gender and Number. Except when otherwise indicated by the context, words in the
masculine gender used in the Plan shall include the feminine gender, the singular shall include the
plural, and the plural shall include the singular.



Section 3. Powers of the Committee




(a) Eligibility. Each Employee, Director or Consultant who, in the opinion of the
Committee, has the capacity to contribute to the success of the Company is eligible to be a
Participant in the Plan.



(b) Power to Grant and Establish Terms of Awards. The Committee shall have the
discretionary authority, subject to the terms of the Plan, to determine which Employees, Directors
or Consultants to whom Awards shall be granted, the type or types of Awards to be granted, and the
terms and conditions of any and all Awards including, without limitation, the number of shares of
Stock subject to an Award, the time or times at which Awards shall be granted, and the terms and
conditions of applicable Award Agreements. The Committee may establish different terms and
conditions for different types of Awards, for different Participants receiving the same type of
Award, and for the same Participant for each type of Award such Participant may receive, whether or
not granted at the same or different times.



(c) Administration. The Plan shall be administered by the Committee. The Committee shall
have sole and complete authority and discretion to adopt, alter and repeal such administrative
rules, guidelines and practices governing the operation of the Plan as it shall from time to time
deem advisable, and to interpret the terms and provisions of the Plan. The Committee’s decisions
(including any failure to make decisions) shall be binding upon all persons,



 









 





including the Company, shareholders, Employers, and each Employee, Director, Consultant,
Participant or Designated Beneficiary, and shall be given deference in any proceeding with respect
thereto.



(d) Delegation by the Committee. The Committee may delegate to the Company’s Chief
Executive Officer and/or to such other officer(s) of the Company, the power and authority to make
and/or administer Awards under the Plan with respect to individuals who are below the position of
an executive officer of the Company, pursuant to such conditions and limitations as the Committee
may establish and only the Committee or the Board may select, and grant Awards to, executive
officers or exercise any other discretionary authority under the Plan in respect of Awards granted
to such executive officers. Unless the Committee shall otherwise specify, any delegate shall have
the authority and right to exercise (within the scope of such person’s delegated authority) all of
the same powers and discretion that would otherwise be available to the Committee pursuant to the
terms hereof. The Committee may also appoint agents (who may be officers or employees of the
Company) to assist in the administration of the Plan and may grant authority to such persons to
execute agreements, including Award Agreements, or other documents on its behalf. All expenses
incurred in the administration of the Plan, including, without limitation, for the engagement of
any counsel, consultant or agent, shall be paid by the Company.



(e) Restrictive Covenants and Other Conditions. Without limiting the generality of the
foregoing, the Committee may condition the grant of any Award under the Plan upon the Participant
to whom such Award would be granted agreeing in writing to certain conditions (such as restrictions
on the ability to transfer the underlying shares of Stock) or covenants in favor of the Company
and/or one or more Affiliates thereof (including, without limitation, covenants not to compete, not
to solicit employees and customers and not to disclose confidential information, that may have
effect following the termination of the Participant’s Service and after the Stock subject to the
Award has been transferred to the Participant), including, without limitation, the requirement that
the Participant disgorge any profit, gain or other benefit received in respect of the Award prior
to any breach of any such covenant.



(f) Participants Based Outside the United States. To conform with the provisions of local
laws and regulations, or with local compensation practices and policies, in foreign countries in
which the Company or any of its Subsidiaries or Affiliates operate, but subject to the limitations
set forth in Section 4 of the Plan regarding the maximum number of shares of Stock issuable
hereunder and the maximum Award to any single Participant, the Committee may (i) modify the terms
and conditions of Awards granted to Participants employed outside the United States (“Non-US
Awards”), (ii) establish, without amending the Plan, subplans with modified exercise procedures and
such other modifications as may be necessary or advisable under the circumstances (“Subplans”), and
(iii) take any action which it deems advisable to obtain, comply with or otherwise reflect any
necessary governmental regulatory procedures, exemptions or approvals with respect to the Plan. The
Committee’s decision to grant Non-US Awards or to establish Subplans is entirely voluntary and at
the complete discretion of the Committee. The Committee may amend, modify or terminate any Subplans
at any time, and such amendment, modification or termination may be made without prior notice to
the Participants. The Company, Subsidiaries, Affiliates of any of the foregoing and members of the
Committee shall not incur any liability of any kind to any Participant as a result of any change,
amendment or termination of any Subplan at any time. The benefits and rights provided under any
Subplan or by any Non-US Award (i) are wholly discretionary and, although provided by either the
Company, a Subsidiary or Affiliate of any of the foregoing, do not constitute regular or periodic
payments and (ii) are not to be considered part of the Participant’s salary or compensation under
the Participant’s employment with the Participant’s local employer for purposes of calculating any
severance, resignation, redundancy or other end of service payments, vacation, bonuses, long-term
service awards, indemnification, pension or retirement benefits, or any other payments, benefits or
rights of any kind. If a



 









 





Subplan is terminated, the Committee may direct the payment of Non-US Awards (or direct the
deferral of payments whose amount shall be determined) prior to the dates on which payments would
otherwise have been made, and, in the Committee’s discretion, such payments may be made in a lump
sum or in installments.



Section 4. Maximum Amount Available 




for Awards 




(a) Number. Subject in all cases to the provisions of this Section 4, the maximum number of
shares of Stock that are available for Awards shall be six million shares, plus
the number of shares remaining available for issuance as of the Effective Date under both the 1997
Stock Option and Restricted Stock Plan and the 1989 Stock Awards Plan. Such maximum number of
shares shall be subject to adjustment in Section 4(d). Notwithstanding the provisions of Section
4(b) of the Plan, the maximum number of shares of Stock that may be issued in respect of Incentive
Stock Options shall not exceed 1,000,000 shares. Shares of Stock may be made available from Stock
held in treasury or authorized but unissued shares of the Company not reserved for any other
purpose.



(b) Canceled, Terminated or Forfeited Awards, Etc. Any shares of Stock subject to an Award
which for any reason expires without having been exercised, is canceled or terminated or otherwise
is settled without the issuance of any Stock shall again be available for grant under the Plan;
provided that, for purposes of Section 4(a) upon the Net Exercise of any Options or the exercise of
any SAR, the gross number of shares as to which such Option or SAR is being exercised, and not just
the net number of shares delivered upon such exercise, shall be treated as issued pursuant to the
Plan.



(c) Individual Award Limitations. No Participant may be granted under the Plan in any
calendar year Awards of Restricted Stock, Restricted Stock Units, Performance Shares and
Performance Units covering an aggregate of more than 1,000,000 shares of Stock, subject to
adjustment in Section 4(d) or 10(b). No Participant may be granted Options and SARs on more than
1,000,000 shares of Stock under the Plan in any calendar year, subject to adjustment in Section
4(d) or 10(b). The maximum aggregate cash payment with respect to cash-based Awards (including
Performance Awards) granted in any one fiscal year that may be made to any Participant shall be
$5,000,000.



(d) Adjustment in Capitalization. In the event that the Committee shall determine that any
stock dividend, stock split, share combination, extraordinary cash dividend, recapitalization,
reorganization, merger, consolidation, split-up, spin-off, combination, exchange of shares,
warrants or rights offering to purchase Stock at a price substantially below Fair Market Value, or
other similar corporate event affects the Stock such that an adjustment is required in order to
preserve, or to prevent the enlargement of, the benefits or potential benefits intended to be made
available under this Plan, then an adjustment shall be made in the number and class of shares of
stock available for Awards under Section 4(a) and the limitations in Section 4(c) and the Committee
shall substitute for or add to each share of Stock that may become subject to an Award the number
and kind of shares of stock or other securities into which each outstanding share of Stock was
changed, for which each such share of Stock was exchanged, or to which each such share of Stock, as
the case may be.



Section 5. Performance Awards, Performance Shares and Performance Units

(a) Generally. The Committee shall have the authority to determine the Participants who
shall receive Performance Awards, Performance Shares and Performance Units, the number of
Performance Shares and the number and value of Performance Units each Participant receives for each
or any Performance Period, and the Performance Criteria applicable in respect of such Performance
Awards, Performance Shares and Performance Units for each Performance



 









 






	Period. The Committee shall determine the duration of each Performance Period (which may differ
from each other), and there may be more than one Performance Period in existence at any one time as
to any Participant or all or any class of Participants. Each grant of Performance Shares and
Performance Units shall be evidenced by an Award Agreement that shall specify the number of
Performance Shares and the number and value of Performance Units awarded to the Participant, the
Performance Criteria applicable thereto, and such other terms and conditions not inconsistent with
the Plan as the Committee shall determine. No shares of Stock will be issued at the time an Award
of Performance Shares is made, and the Company shall not be required to set aside a fund for the
payment of Performance Shares or Performance Units. Subject to the terms of the Plan, Performance
Awards may be granted to Participants in such amounts, subject to such Performance Criteria, and
upon such terms, and at any time and from time to time, as shall be determined by the Committee.





(b) Earned Performance Awards, Performance Shares and Performance Units. Performance
Awards, Performance Shares and Performance Units shall become earned, in whole or in part, based
upon the attainment of specified Performance Criteria or the occurrence of any event or events,
including a Change in Control, as the Committee shall determine, either at or after the grant date.
In addition to the achievement of the specified Performance Criteria, the Committee may, at the
grant date, condition payment of Performance Awards, Performance Shares and Performance Units on
the Participant completing a minimum period of Service following the grant date or on such other
conditions as the Committee shall specify. The Committee may provide, at the time of any grant of
Performance Shares or Performance Units, that if performance relative to the Performance Criteria
exceeds targeted levels, the number of shares issuable in respect of each Performance Share or the
value payable in respect of each Performance Unit shall be adjusted by such multiple (not in excess
of 200%) as the Committee shall specify.



(c) Performance Criteria. At the discretion of the Committee, Performance Criteria may be
based on the total return to the Company’s shareholders, inclusive of dividends paid, during the
applicable Performance Period (determined either in absolute terms or relative to the performance
of one or more similarly situated companies or a published index covering the performance of a
number of companies), or upon the relative or comparative attainment of one or more of the
following criteria, whether in absolute terms or relative to the performance of one or more
similarly situated companies or a published index covering the performance of a number of
companies: stock price, operating earnings or margins, net earnings, return on equity, income,
market share, return on investment, return on capital employed, level of expenses, revenue cash
flow and, in the case of persons who are not Executive Officers, such other criteria as may be
determined by the Committee. Performance Criteria may be established on a Company-wide basis or
with respect to one or more business units or divisions or Subsidiaries. When establishing
Performance Criteria for a Performance Period, the Committee may exclude any or all “extraordinary
items” as determined under U.S. generally accepted accounting principles including, without
limitation, the charges or costs associated with restructurings of the Company or any Subsidiary,
mergers, acquisitions, divestitures, discontinued operations, other unusual or non-recurring items,
the cumulative effects of accounting changes or such other objective factors as the Committee deems
appropriate. Except in the case of Awards to Executive Officers intended to be “other
performance-based compensation” under Section 162(m)(4) of the Code, the Committee may also adjust
the Performance Criteria for any Performance Period as it deems equitable in recognition of unusual
or non-recurring events affecting the Company, changes in applicable tax laws or accounting
principles, or such other factors as the Committee may determine.



(d) Special Rule for Performance Criteria. If, at the time of grant, the Committee intends
an Award of Performance Awards, Performance Shares or Performance Units to qualify as “other
performance-based compensation” within the



 









 





meaning of Section 162(m)(4) of the Code, the Committee must establish the Performance Criteria for
the applicable Performance Cycle no later than the 90th day after the Performance Cycle begins (or
by such other date as may be required under Section 162(m) of the Code).



(e) Certification of Attainment of Performance Criteria. As soon as practicable after the
end of a Performance Cycle and prior to any payment in respect of such Performance Cycle, the
Committee shall certify in writing the amount of the Performance Award, the number of Performance
Shares, or the number and value of Performance Units, that have been earned on the basis of
performance in relation to the established Performance Criteria.



(f) Payment of Awards. Earned Performance Awards, Performance Shares and the value of
earned Performance Units shall be distributed to the Participant or, if the Participant has died,
to the Participant’s Designated Beneficiary, as soon as practicable after the expiration of the
Performance Period and the Committee’s certification under Section 5(e) above, provided that (i)
earned Performance Awards, Performance Shares and the value of earned Performance Units shall not
be distributed to a Participant until any other conditions on payment of such Awards established by
the Committee have been satisfied, and (ii) any amounts payable in respect of Performance Awards,
Performance Shares or Performance Units pursuant to Section 9 of the Plan shall be distributed in
accordance with Section 9. The Committee shall determine whether Performance Awards, Performance
Shares and the value of earned Performance Units are to be distributed in the form of cash, shares
of Stock or in a combination thereof, with the value or number of shares of Stock payable to be
determined based on the Fair Market Value of Stock on the date of the Committee’s certification
under Section 5(e) above.



(g) Newly Eligible Participants. Notwithstanding anything in this Section 5 to the
contrary, the Committee shall be entitled to make such rules, determinations and adjustments as it
deems appropriate with respect to any Participant who becomes eligible to receive Performance
Awards, Performance Shares or Performance Units after the commencement of a Performance Cycle.



(h) Termination of Service.





	(i)	 	Qualifying Termination of Employment. Unless otherwise determined by the Committee at or
after the grant date, or except as provided in an employment or individual severance agreement
between a Participant and an Employer, a Participant whose Service terminates by reason of a
Qualifying Termination of Employment on or after the first anniversary of the commencement of
the relevant Performance Cycle (or such other period as the Committee shall specify at the
time of grant of the Performance Awards, Performance Shares or Performance Units) shall be
entitled to a distribution of the same Performance Awards, number of Performance Shares, or
the value of Performance Units (without pro-ration) that would have been payable for the
Performance Cycle had his or her Service continued until the end of the applicable Performance
Cycle. Any Performance Awards, Performance Shares or value of Performance Units becoming
payable in accordance with the preceding sentence shall be paid at the same time as the
Performance Awards, Performance Shares and the value of Performance Units are paid to other
Participants (or at such earlier time as the Committee may permit). Any rights that a
Participant or Designated Beneficiary may have in respect of any Performance Awards,
Performance Shares or Performance Units outstanding at the date of the Qualifying Termination
of Employment that are not available to be earned or that are not earned in accordance with
this Section 5(h)(i) shall be forfeited and canceled, effective as of the date of the
Participant’s termination of Service.




 









 












	(ii)	 	Termination for any Other Reason. Unless otherwise determined by the Committee at or after
the grant date, or except as provided in an employment or individual severance agreement
between a Participant and an Employer, if a Participant’s Service is terminated for any reason
other than a Qualifying Termination of Employment during a Performance Cycle, all of the
Participant’s rights to Performance Awards, Performance Shares and Performance Units related
to such Performance Cycle shall be immediately forfeited and canceled as of the date of such
termination of Service. Notwithstanding the immediately preceding sentence, a Participant’s
rights in respect of unearned Performance Awards, Performance Shares and Performance Units
shall in all events be immediately forfeited and canceled as of the date of the Participant’s
termination of Service for Cause.






	(iii)	 	Termination in Connection with a Change in Control. Notwithstanding anything to the
contrary in this Section 5(h), Section 9 of the Plan shall determine the treatment of
Performance Awards, Performance Shares and Performance Units upon a Change in Control,
including the treatment of such Awards granted to any Participant whose Service is
involuntarily terminated by an Employer other than for Cause or whose Service is terminated
due to a Special Termination, in either case, on or after the date on which the shareholders
of the Company approve the transaction giving rise to the Change in Control, but prior to the
consummation thereof.





Section 6. Restricted Stock and Restricted 




Stock Units




(a) Grant. Restricted Stock and Restricted Stock Units may be granted to Participants at
such time or times as shall be determined by the Committee. The grant date of any Restricted Stock
or Restricted Stock Units under the Plan will be the date on which such Restricted Stock or
Restricted Stock Units are awarded by the Committee, or such other date as the Committee shall
determine. Restricted Stock and Restricted Stock Units shall be evidenced by an Award Agreement
that shall specify (i) the number of shares of Restricted Stock and the number of Restricted Stock
Units granted to each Participant, (ii) the Restriction Period(s) applicable thereto and (iii) such
other terms and conditions not inconsistent with the Plan as the Committee shall determine,
including customary representations, warranties and covenants with respect to securities law
matters. Awards of Restricted Stock Units shall be evidenced by a bookkeeping entry in the
Company’s records (or by such other reasonable method as the Company shall determine from time to
time).



(b) Vesting. Restricted Stock and Restricted Stock Units granted to Participants under the
Plan shall be subject to a Restriction Period. Except as otherwise determined by the Committee at
or after the grant date, and subject to the Participant’s continued employment with his or her
Employer on such date, the Restricted Stock shall vest ratably over five years upon each
anniversary of the grant date. The Committee may provide that the Restriction Period on Restricted
Stock or Restricted Stock Units shall lapse, in whole or in part, upon the achievement of
performance criteria (and without regard to the minimum service requirement), which criteria shall
be selected from those available to the Committee under Section 5(c) of the Plan, provided that any
Award of Restricted Stock made to any Executive Officer that is intended to qualify as “other
performance-based compensation” under Section 162(m) of the Code shall be subject to the same
restrictions and limitations applicable to Awards of Performance Shares under Section 5(d) of the
Plan and subject to the certification required under Section 5(e) of the Plan. The Restriction
Period shall also lapse, in whole or in part, upon the occurrence of any event or events, including
a Change in Control, specified in the Plan, or specified by the Committee, in its discretion,
either at or after the grant date of the applicable Award.



 









 





(c) Dividend Equivalents. The Committee shall determine whether and to what extent
dividends payable on Stock will be credited, or paid currently, to a Participant in respect of an
Award of Restricted Stock Units. Unless otherwise determined by the Committee at or after the grant
date, a Participant holding Restricted Stock Units shall not be entitled to exercise any voting
rights and any other rights as a shareholder with respect to shares of Stock underlying such Award.



(d) Settlement of Restricted Stock and Restricted Stock Units. At the expiration of the
Restriction Period for any Restricted Stock, the Company shall remove the restrictions applicable
to the Restricted Stock, and shall, upon request, deliver the stock certificates evidencing such
Restricted Stock to the Participant or the Participant’s legal representative (or otherwise
evidence the issuance of such shares free of any restrictions imposed under the Plan). At the
expiration of the Restriction Period for any Restricted Stock Units, for each such Restricted Stock
Unit, the Participant shall receive, in the Committee’s discretion, (i) a cash payment equal to the
Fair Market Value of one share of Stock as of such payment date, (ii) one share of Stock or (iii)
any combination of cash and shares of Stock having an aggregate value equal to the Fair Market
Value of one share of Stock.



(e) Restrictions on Transfer. Except as provided herein or in an Award Agreement, shares of
Restricted Stock and Restricted Stock Units may not be sold, assigned, transferred, pledged or
otherwise encumbered during the Restriction Period. Any such attempt by the Participant to sell,
assign, transfer, pledge or encumber shares of Restricted Stock and Restricted Stock Units without
complying with the provisions of the Plan shall be void and of no effect.



(f) Termination of Service.





	(i)	 	Qualifying Termination of Employment. Unless otherwise determined by the Committee at or
after the grant date, or except as provided in an employment or individual severance agreement
between a Participant and an Employer, if a Participant’s Service terminates by reason of a
Qualifying Termination of Employment during the Restriction Period, a pro rata portion of any
Stock related to Restricted Stock or a Restricted Stock Unit held by such Participant shall
become nonforfeitable at the date of such termination, based on the number of full calendar
months of such Participant’s Service relative to the number of full calendar months in the
relevant Restriction Period.






	(ii)	 	Termination for any Other Reason. Unless otherwise determined by the Committee at or after
the grant date, or except as provided in an employment or individual severance agreement
between a Participant and an Employer, if a Participant’s Service terminates for any reason
other than a Qualifying Termination of Employment during the Restriction Period, any
Restricted Stock or Restricted Stock Units held by such Participant shall be forfeited and
canceled as of the date of such termination of Service. Notwithstanding the immediately
preceding sentence, a Participant’s rights in respect of unvested Restricted Stock or
Restricted Stock Units shall in all events be immediately forfeited and canceled as of the
date of the Participant’s termination of Service for Cause.






	(iii)	 	Termination in Connection with a Change in Control. Notwithstanding anything to the contrary
in this Section 6(f), Section 9 of the Plan shall determine the treatment of Restricted Stock
and Restricted Stock Units upon a Change in Control, including the treatment of such Awards
granted to any Participant whose Service is involuntarily terminated by an Employer other than
for Cause or whose Service is terminated due to a Special Termination, in either case, on or
after the date on which the shareholders of the Company approve the transaction giving rise to
the Change in Control, but prior to the consummation thereof.




 









 











Section 7. Stock Options and Stock Appreciation Rights




(a) Grant. Options and Stock Appreciation Rights (“SARs”) may be granted to Participants at
such time or times as shall be determined by the Committee. The Committee shall have the authority
to grant Incentive Stock Options, Non-statutory Stock Options and SARs. The grant date of an Option
or SAR under the Plan will be the date on which the Option or SAR is awarded by the Committee, or
such other future date as the Committee shall determine in its sole discretion. Each Option or SAR
shall be evidenced by an Award Agreement that shall specify the type of Option Award granted, the
exercise price, the duration of the Option or SAR, the number of shares of Stock to which the
Option or SAR pertains, the conditions upon which the Option or SAR or any portion thereof shall
become vested or exercisable and such other terms and conditions not inconsistent with the Plan as
the Committee shall determine, including customary representations, warranties and covenants with
respect to securities law matters. For the avoidance of doubt, Incentive Stock Options may only be
granted to Employees.



(b) Exercise Price. The Committee shall establish the exercise price at the time each
Option or SAR is granted, which price shall not be less than 100% of the Fair Market Value of the
Stock on the grant date. Notwithstanding the foregoing, if an Incentive Stock Option is granted to
an Employee who, at the time of grant, owns stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or any Affiliate thereof, the exercise price
shall be at least 110% of the Fair Market Value of the Stock on the grant date.



(c) Vesting and Exercisability. Except as otherwise determined by the Committee at or after
the grant date, and subject to the Participant’s continued employment with his or her Employer on
such date, each Option and SAR awarded to a Participant under the Plan shall become vested and
exercisable in three approximately equal installments on each of the first three anniversaries of
the grant date. Options and SARs may also become exercisable, in whole or in part, upon the
occurrence of any event or events, including a Change in Control, specified in the Plan, or
specified by the Committee, in its discretion, either at or after the grant date of the applicable
Option or SAR. In its discretion, the Committee may also establish performance conditions with
respect to the exercisability of any Option or SAR during a Performance Period selected by the
Committee. No Option or SAR shall be exercisable on or after the tenth anniversary of its grant
date (the fifth anniversary of the grant date for an Incentive Stock Option is granted to an
Employee who, at the time of grant, owns stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or any Affiliate thereof). The Committee may
impose such conditions with respect to the exercise of Options or SARs, including without
limitation, any relating to the application of federal or state securities laws, as it may deem
necessary or advisable.



(d) Payment of Option Exercise Price. No Stock shall be delivered pursuant to any exercise
of an Option until payment in full of the exercise price therefore is received by the Company. Such
payment may be made in cash or its equivalent or, if permitted by the Committee, (i) by exchanging
shares of Stock owned by the Participant for at least six months (or for such greater or lesser
period as the Committee may determine from time to time) and which are not the subject of any
pledge or other security interest, (ii) through an arrangement with a broker approved by the
Company whereby payment of the exercise price is accomplished with the proceeds of the sale of
Stock or (iii) by a combination of the foregoing, provided that the combined value of all cash and
cash equivalents and the Fair Market Value of any such Stock so tendered to the Company, valued as
of the date of such tender, is at least equal to such exercise price of the portion of the Option
being exercised. Additionally, to the extent authorized by the Committee (whether at or after the
grant date), Options may be Net Exercised subject to such terms and conditions as the



 









 





Committee may from time to time impose. The Company may not make a loan to a Participant to
facilitate such Participant’s exercise of any of his or her Options or payment of taxes.



(e) Payment of SAR Amount. Upon exercise of a SAR, a Participant shall be entitled to
receive payment from the Company in an amount determined by multiplying: (i) the excess of the Fair
Market Value of a share of Stock on the date of exercise over the grant price; by (ii) the number
of shares of Stock with respect to which the SAR is exercised. At the sole discretion of the
Committee, the payment upon SAR exercise may be in cash, in shares of Stock of equivalent value, or
in some combination thereof.



(f) Incentive Stock Option Status. Notwithstanding anything in this Plan to the contrary,
no term of this Plan relating to Incentive Stock Options shall be interpreted, amended or altered,
nor shall any discretion or authority granted under the Plan be so exercised, so as to disqualify
the Plan under Section 422 of the Code.



(g) Termination of Service.





	(i)	 	Special Termination. Unless otherwise determined by the Committee at or after the grant
date, or except as provided in an employment or individual severance agreement between a
Participant and an Employer, if the Participant’s Service is terminated due to a Special
Termination, then all Options and SARs held by the Participant on the effective date of such
Special Termination shall vest and become exercisable and shall remain exercisable until the
first to occur of (A) the first anniversary of the effective date of such Special Termination
(or, for Incentive Stock Options, the first anniversary of such Special Termination) or (B)
the expiration date of the Option or SAR.






	(ii)	 	Termination for any Other Reason. Unless otherwise determined by the Committee at or after
the grant date, or except as provided in an employment or individual severance agreement
between a Participant and an Employer, (A) if the Participant’s Service is voluntarily or
involuntarily terminated for any reason other than a Special Termination prior to the
expiration date of the Option or SAR, any Options and SARs that have not become vested and
exercisable on or before the effective date of such termination shall terminate on such
effective date, and (B) if the Participant’s Service is terminated voluntarily or
involuntarily for any reason other than a Special Termination or for Cause, any vested and
exercisable Options and SARs then held by the Participant shall remain exercisable for a
period of 90 days following the effective date of such termination of Service.






	(iii)	 	Termination for Cause. Notwithstanding anything contrary in this Section 7(g), if the
Participant’s Service is terminated for Cause, then all Options or SARs (whether or not then
vested or exercisable) shall terminate and be canceled immediately upon such termination,
regardless of whether then vested or exercisable.






	(iv)	 	Termination in Connection with a Change in Control. Notwithstanding anything to the contrary
in this Section 7(g), Section 9 of the Plan shall determine the treatment of Options and SARs
upon a Change in Control, including the treatment of Options and SARs granted to any
Participant whose Service is involuntarily terminated by an Employer other than for Cause or
whose Service is terminated due to a Special Termination, in either case, on or after the date
on which the shareholders of the Company approve the transaction giving rise to the Change in
Control, but prior to the consummation thereof.







 









 






Section 8. Other Stock-Based Awards




(a) Other Stock Based Awards. The Committee may grant Other Stock-Based Awards, including,
but not limited to, the outright grant of Stock in satisfaction of obligations of the Company or
any Affiliate thereof under another compensatory plan, program or arrangement, modified Awards
intended to comply with or structured in accordance with the provisions of applicable non-U.S. law
or practice, or the sale of Stock, in such amounts and subject to such terms and conditions as the
Committee shall determine, including, but not limited to, the satisfaction of Performance Criteria.
Each Other-Stock Based Award shall be evidenced by an Award Agreement that shall specify the terms
and conditions applicable thereto. Any Other Stock-Based Award may entail the transfer of actual
shares of Stock or the payment of the value of such Award in cash based upon the value of a
specified number of shares of Stock, or any combination of the foregoing, as determined by the
Committee. The terms of any Other Stock-Based Award need not be uniform in application to all (or
any class of) Participants, and each Other Stock-Based Award granted to any Participant (whether or
not at the same time) may have different terms.



(b) Termination of Service. In addition to any other terms and conditions that may be
specified by the Committee, each Other Stock-Based Award shall specify the impact of a termination
of Service upon the rights of a Participant in respect of such Award. At the discretion of the
Committee, such conditions may be the same as apply with respect to Restricted Stock or Restricted
Stock Units, or may contain terms that are more or less favorable to the Participant.



Section 9. Change in Control 




(a) Accelerated Vesting and Payment.





	(i)	 	In General. Except as provided in an employment or individual severance agreement between a
Participant and an Employer or an Award Agreement, upon a Change in Control (i) all
outstanding Options shall become vested and exercisable immediately and (ii) the Restriction
Period on all outstanding Restricted Stock and Restricted Stock Units shall lapse immediately.
Additionally, the Committee (as constituted prior to the Change in Control) may provide that
in connection with the Change in Control (i) each Option shall be canceled in exchange for an
amount (payable in accordance with Section 9(a)(iii) below) equal to the excess, if any, of
the Fair Market Value over the exercise price for such Option and (ii) each share of
Restricted Stock and each Restricted Stock Unit shall be canceled in exchange for an amount
(payable in accordance with Section 9(a)(iii) below) equal to the Fair Market Value,
multiplied by the number of shares of Stock covered by such Award.






	(ii)	 	Performance Awards, Performance Shares and Performance Units. Except as provided in an Award
Agreement, in the event of a Change in Control, (i) each outstanding Performance Award and
Performance Share shall be canceled in exchange for a payment equal to the greater of (a) the
payment that would have been payable had each such Performance Award or Performance Share been
deemed equal to 100% or (b) the actual performance to date (or such greater or lesser
percentage as the Committee shall specify at the grant date or such greater percentage as the
Committee shall specify after the grant date) and (ii) each outstanding Performance Unit shall
be canceled in exchange for a payment equal to the greater of (a) the value that would have
been payable had each such Performance Unit been deemed equal to 100% or (b) the actual
performance to date (or such greater or lesser percentage as the Committee shall specify at
the grant date or such greater percentage as the Committee shall specify after the grant date)
of its initially established dollar or local currency denominated value.






	(iii)	 	Payments. Payment of any amounts calculated in accordance with Sections 9(a)(i) and (ii)
shall be made in cash or, if determined by the Committee (as constituted prior to the Change
in Control), in shares of the stock of the New Employer having an aggregate fair market value
equal to such amount or in a combination of such shares of stock and cash. All amounts payable
hereunder shall be payable in full, as soon as reasonably practicable, but in no event later
than ten business days, following the Change in Control. For purposes hereof, the fair market
value




 









 











of one share of stock of the New Employer shall be determined by the Committee (as constituted
prior to the consummation of the transaction constituting the Change in Control) in good faith.



(b) Termination of Service Prior to Change in Control. In the event that any Change in
Control occurs as a result of any transaction described in clause (iii) or (iv) of the definition
of such term, any Participant whose Service is involuntarily terminated by an Employer other than
for Cause or is terminated due to a Special Termination, in either case, on or after the date on
which the shareholders of the Company approve the transaction giving rise to the Change in Control,
but prior to the consummation thereof, shall be treated, solely for purposes of this Plan
(including, without limitation, this Section 9), as continuing in Service until the occurrence of
such Change in Control and to have been terminated immediately thereafter.



Section 10. Effective Date, Amendment, Modification and Termination of the Plan 




or Awards




(a) General. The Plan shall be effective on the Effective Date, and shall continue in
effect, unless sooner terminated pursuant to this Section 10, until the tenth anniversary of the
Effective Date, after which no new Awards may be granted under the Plan. The Board may at any time
in its sole discretion, for any reason whatsoever, terminate or suspend the Plan, and from time to
time may amend or modify the Plan; provided that without the approval by a majority of the votes
cast at a duly constituted meeting of shareholders of the Company, no amendment or modification to
the Plan may (i) materially increase the benefits accruing to Participants under the Plan, (ii)
except as otherwise expressly provided in Section 4(d) of the Plan, materially increase the number
of shares of Stock subject to the Plan or the individual Award limitations specified in Section
4(c) of the Plan, (iii) materially modify the requirements for participation in the Plan or (iv)
materially modify the Plan in any other way that would require shareholder approval under any
regulatory requirement that the Committee determines to be applicable. In the event that the
Committee shall determine that such action would, taking into account such factors as it deems
relevant, be beneficial to the Company, the Committee may affirmatively act to amend, modify or
terminate any outstanding Award at any time prior to payment or exercise in any manner not
inconsistent with the terms of the Plan, subject to Section 10(b), including without limitation, to
change the date or dates as of which (A) an Option becomes exercisable, (B) a Performance Award,
Performance Share or Performance Unit is deemed earned, or (C) Restricted Stock and Restricted
Stock Units becomes nonforfeitable, except that no outstanding Option or SAR may be amended or
otherwise modified or exchanged (other than in connection with a transaction described in Section
4(d) of the Plan) in a manner that would have the effect of reducing its original exercise price or
otherwise constitute repricing. Any such action by the Committee shall be subject to the
Participant’s consent if the Committee determines that such action would adversely affect in any
material way the Participant’s rights under such Award, whether in whole or it part. No amendment,
modification or termination of the Plan or any Award shall adversely affect in any material way any
Award theretofore granted under the Plan, without the consent of the Participant.



(b) Adjustment of Awards Upon the Occurrence of Certain Events.





	(i)	 	Equity Restructurings. If the outstanding shares of Stock are increased, decreased, changed
into or exchanged for a different number or kind of shares or securities of the Company
through a non-reciprocal transaction between the Company and its stockholders that causes the
per share fair market value underlying an Award to change, such as stock dividend, stock
split, spin-off, rights offering, recapitalization through a large, non-recurring cash
dividend, or other similar transaction, a proportionate adjustment shall be made to the number
or kind of shares or securities allocated to Awards that have been granted prior to any such
change. Any such adjustment in an outstanding Option or SAR shall be made without change in
the aggregate exercise price applicable to the




 









 






	 	 	unexercised portion of such Option or SAR but with a corresponding adjustment in the exercise
price for each share of Stock or other unit of any security covered by such Option or SAR.






	(ii)	 	Reciprocal Transactions. The Board may, but shall not be obligated to, make an appropriate
and proportionate adjustment to an Award or to the exercise price of any outstanding Award,
and/or grant an additional Award to the holder of any outstanding Award, to compensate for the
diminution in the intrinsic value of the shares of Stock resulting from any reciprocal
transaction.






	(iii)	 	Certain Unusual or Nonrecurring Events. In recognition of unusual or nonrecurring events
affecting the Company or its financial statements, or in recognition of changes in applicable
laws, regulations or accounting principles, and, whenever the Board determines that
adjustments are appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, the Board may, using
reasonable care, make adjustments in the terms and conditions of, and the criteria included
in, Awards. In case of an Award designed to qualify for the Performance-Based Exception (as
defined in Code Section 409A), the Board will take care not to make an adjustment that would
disqualify the Award.






	(iv)	 	Fractional Shares and Notice. Fractional shares of Stock resulting from any adjustment in
Awards pursuant to this Section 10(b) may be settled in cash or otherwise as the Board
determines. The Company will give notice of any adjustment to each Participant who holds an
Award that has been adjusted and the adjustment (whether or not such notice is given) will be
effective and binding for all Plan purposes.





Section 11. Deferrals and Section 409A




Notwithstanding anything in this Plan to the contrary, no terms of this Plan relating to Awards or
any deferral with respect thereto shall be interpreted, amended or altered, nor shall any
discretion or authority granted under the Plan be so exercised, so as to cause an Award, or the
deferral or payment thereof, to become subject to interests and additional tax under Section 409A.



Section 12. General Provisions 




(a) Withholding. The Employer shall have the right to deduct from all amounts paid to a
Participant in cash (whether under this Plan or otherwise) any amount required by law to be
withheld in respect of Awards under this Plan as may be necessary in the opinion of the Employer to
satisfy any applicable tax withholding requirements under the laws of any country, state, province,
city or other jurisdiction, including but not limited to income taxes, capital gains taxes,
transfer taxes, and social security contributions that are required by law to be withheld. In the
case of payments of Awards in the form of Stock, at the Committee’s discretion, the Participant
shall be required to either pay to the Employer the amount of any taxes required to be withheld
with respect to such Stock or, in lieu thereof, the Employer shall have the right to retain (or the
Participant may be offered the opportunity to elect to tender) the number of shares of Stock whose
Fair Market Value equals such amount required to be withheld.



(b) Nontransferability of Awards. No Award shall be assignable or transferable except by
will or the laws of descent and distribution; provided that the Committee may permit (on such terms
and conditions as it shall establish) a Participant to transfer an Award for no consideration to
the Participant’s child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former
spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the



 









 





Participant’s household (other than a tenant or employee), a trust in which these persons have all
of the beneficial interest and any other entity in which these persons (or the Participant) own all
of the voting interests (“Permitted Transferees”). Except to the extent required by law, no right
or interest of any Participant shall be subject to any lien, obligation or liability of the
Participant. All rights with respect to Awards granted to a Participant under the Plan shall be
exercisable during the Participant’s lifetime only by such Participant or, if applicable, his or
her Permitted Transferee(s). The rights of a Permitted Transferee shall be limited to the rights
conveyed to such Permitted Transferee, who shall be subject to and bound by the terms of the
agreement or agreements between the Participant and the Company.



(c) No Limitation on Compensation. Nothing in the Plan shall be construed to limit the
right of the Company to establish other plans or to pay compensation, in cash or property, in a
manner which is not expressly authorized under the Plan.



(d) No Right to Employment. No person shall have any claim or right to be granted an Award,
and the grant of an Award shall not be construed as giving a Participant the right to be retained
in the employ of the Employer. The grant of an Award hereunder, and any future grant of Awards
under the Plan is entirely voluntary, and at the complete discretion of the Company. Neither the
grant of an Award nor any future grant of Awards by the Company shall be deemed to create any
obligation to grant any further Awards, whether or not such a reservation is explicitly stated at
the time of such a grant.



The Plan shall not be deemed to constitute, and shall not be construed by the Participant to
constitute, part of the terms and conditions of employment and participation in the Plan shall not
be deemed to constitute, and shall not be deemed by the Participant to constitute, an employment or
labor relationship of any kind with an Employer. Each Employer expressly reserves the right at any
time to dismiss a Participant free from any liability, or any claim under the Plan, except as
provided herein and in any agreement entered into with respect to an Award. The Company expressly
reserves the right to require, as a condition of participation in the Plan, that Award recipients
agree and acknowledge the above in writing. Further, the Company expressly reserves the right to
require Award recipients, as a condition of participation, to consent in writing to the collection,
transfer from the Employer to the Company and third parties, storage and use of personal data for
purposes of administering the Plan.



(e) No Rights as Shareholder. Subject to the provisions of the applicable Award contained
in the Plan and in the Award Agreement, no Participant, Permitted Transferee or Designated
Beneficiary shall have any rights as a shareholder with respect to any shares of Stock to be
distributed under the Plan until he or she has become the holder thereof.



(f) Construction of the Plan. The validity, construction, interpretation, administration
and effect of the Plan and of its rules and regulations, and rights relating to the Plan, shall be
determined solely in accordance with the laws of the State of Delaware (without reference to the
principles of conflicts of law).



(g) Compliance with Legal and Exchange Requirements. The Plan, the granting and exercising
of Awards thereunder, and any obligations of the Company under the Plan, shall be subject to all
applicable federal, state and foreign country laws, rules and regulations, and to such approvals by
any regulatory or governmental agency as may be required, and to any rules or regulations of any
exchange on which the Stock is listed. The Company, in its discretion, may postpone the granting
and exercising of Awards, the issuance or delivery of Stock under any Award or any other action
permitted under the Plan to permit the Company, with reasonable diligence, to complete such



 









 





stock exchange listing or registration or qualification of such Stock or other required action
under any federal, state or foreign country law, rule or regulation and may require any Participant
to make such representations and furnish such information as it may consider appropriate in
connection with the issuance or delivery of Stock in compliance with applicable laws, rules and
regulations. The Company shall not be obligated by virtue of any provision of the Plan to recognize
the exercise of any Award or to otherwise sell or issue Stock in violation of any such laws, rules
or regulations, and any postponement of the exercise or settlement of any Award under this
provision shall not extend the term of such Awards. Neither the Company nor its directors or
officers shall have any obligation or liability to a Participant with respect to any Award (or
Stock issuable thereunder) that shall lapse because of such postponement.



(h) Indemnification. Each person who is or shall have been a member of the Committee and
each delegate of such Committee shall be indemnified and held harmless by the Company against and
from any loss, cost, liability or expense that may be imposed upon or reasonably incurred by him or
her in connection with or resulting from any claim, action, suit or proceeding to which he or she
may be made a party or in which he or she may be involved in by reason of any action taken or
failure to act under the Plan and against and from any and all amounts paid by him or her in
settlement thereof, with the Company’s approval, or paid by him or her in satisfaction of any
judgment in any such action, suit or proceeding against him or her, provided that the Company is
given an opportunity, at its own expense, to handle and defend the same before he or she undertakes
to handle and defend it personally. The foregoing right of indemnification shall not be exclusive
and shall be independent of any other rights of indemnification to which such persons may be
entitled under the Company’s Certificate of Incorporation or by-laws, by contract, as a matter of
law, or otherwise.



(i) No Impact On Benefits. Except as may otherwise be specifically stated under any
employee benefit plan, policy or program, no amount payable in respect of any Award shall be
treated as compensation for purposes of calculating a Participant’s right under any such plan,
policy or program.



(j) No Constraint on Corporate Action. Nothing in this Plan shall be construed (i) to
limit, impair or otherwise affect the Company’s right or power to make adjustments,
reclassifications, reorganizations or changes of its capital or business structure, or to merge or
consolidate, or dissolve, liquidate, sell or transfer all or any part of its business or assets or
(ii) to limit the right or power of the Company, or any Subsidiary, to take any action which such
entity deems to be necessary or appropriate.



(k) Headings and Captions. The headings and captions herein are provided for reference and
convenience only, shall not be considered part of this Plan, and shall not be employed in the
construction of this Plan.