Exhibit 10.1


 


AMENDED AND RESTATED 2007 STOCK INCENTIVE
PLAN


FOR KEY EMPLOYEES OF DOLLAR GENERAL
CORPORATION AND ITS AFFILIATES


 


This Amended and Restated 2007 Stock
Incentive Plan for Key Employees of Dollar General Corporation and its
Affiliates (the “Plan”) is effective as provided in Section 14
herein.


 


WHEREAS, the Board of
Directors of Dollar General Corporation initially approved the 2007 Stock
Incentive Plan for Key Employees of Dollar General Corporation and its
Affiliates as of July 6, 2007, and the Board subsequently amended such
plan on May 29, 2008; and


 


WHEREAS, the Plan is
hereby amended and restated in its entirety as follows:


 


1.             Purpose of Plan


 


The Plan is designed:


 


(a)           to promote the long term
financial interests and growth of Dollar General Corporation (the “Company”)
and its Subsidiaries by attracting and retaining management and other personnel
and key service providers with the training, experience and ability to enable
them to make a substantial contribution to the success of the Company’s
business;


 


(b)           to motivate management
personnel by means of growth-related incentives to achieve long range goals;
and


 


(c)           to further the alignment of
interests of Participants with those of the shareholders of the Company through
opportunities for increased stock, or stock-based ownership in the Company.


 


2.             Definitions


 


As used in the Plan, the following words
shall have the following meanings:


 


(a)           “Affiliate” means
with respect to any Person, any entity directly or indirectly controlling,
controlled by or under common control with such Person.


 


(b)           “Award” means an
award made to a Participant pursuant to the Plan and described in Section 6,
including, without limitation, an award of a Stock Option, Stock Appreciation
Right, Other Stock-Based Award or Dividend Equivalent Right (as such terms are
defined in Section 6), or any combination of the foregoing.


 


(c)           “Award Agreement”
means an agreement between the Company and a Participant that sets forth the
terms, conditions and limitations applicable to an Award.


 

















 


(d)           “Beneficial Owner”
means a “beneficial owner”, as such term is defined in Rule 13d-3 under
the Exchange Act (or any successor rule thereto).


 


(e)           “Board” means the
Board of Directors of the Company.


 


(f)            “Change in Control”
means, in one or a series of related transactions, (i) the sale of all or
substantially all of the assets of Buck Holdings, L.P. or the Company and its
subsidiaries to any person (or group of persons acting in concert), other than
to (x) investment funds affiliated with Kohlberg Kravis Roberts &
Co. L.P. (together the “Sponsors”) or its Affiliates or (y) any
employee benefit plan (or trust forming a part thereof) maintained by the
Company, the Sponsors or their respective Affiliates or other person of which a
majority of its voting power or other equity securities is owned, directly or
indirectly, by the Company, the Sponsors or their respective Affiliates; or (ii) a
merger, recapitalization or other sale by the Company, the Sponsors
(indirectly) or any of their respective Affiliates, to a person (or group of
persons acting in concert) of Common Stock or other voting securities of the
Company that results in more than 50% of the Common Stock or other voting
securities of the Company (or any resulting company after a merger) being held,
directly or indirectly,  by a person (or
group of persons acting in concert) that is not Controlled by (x) the
Sponsors or its Affiliates or (y) an employee benefit plan (or trust
forming a part thereof) maintained by the Company, the Sponsors or their
respective Affiliates or other person of which a majority of its voting power
or other equity securities is owned, directly or indirectly, by the Company,
the Sponsors or their respective Affiliates; in any event, which results in the
Sponsors and its Affiliates or such employee benefit plan ceasing to hold the
ability to elect (or cause to be elected) a majority of the members of the
Board.


 


For purposes of this definition, “controlled by” means with
respect to the relationship between or among two or more Persons, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the affairs or management of a Person, whether through the
ownership of voting securities, by contract or otherwise, including the ownership,
directly or indirectly, of securities having the power to elect a majority of
the board of directors or similar body governing the affairs of such Person.


 


(g)            “Code” means the
United States Internal Revenue Code of 1986, as amended.


 


(h)           “Committee” means the
Compensation Committee of the Board (or, if no such committee is appointed, the
Board).


 


(i)            “Common Stock” or “Share”
means the common stock, par value $0.875 per share, of the Company, which may
be authorized but unissued, or issued and reacquired.


 


(j)            “Employee” means a
person, including an officer, in the regular employment of the Company or any
other Service Recipient who, in the opinion of the Committee, has or is
expected to have involvement in the management, growth or protection of some part
or all of the business of the Company or any other Service Recipient.


 


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


 


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(l)            “Fair Market Value”
means, on a per Share basis, the fair market value of the Common Stock on any
given date determined as follows: (i) if there is a public market for the
Shares on such date, the closing trading price of the Shares as reported on
such date on the Composite Tape of the principal national securities exchange
on which such Shares are listed or admitted to trading, or (ii) if there
is no public market for the Shares on such date, the Fair Market Value shall be
the fair market value of the Shares as determined reasonably and in good faith
by the Board, which shall not take into account any minority interest discount
or discount for the imposition of transfer restrictions.


 


(m)           “Group” means “group,”
as such term is used for purposes of Section 13(d) or 14(d) of
the Exchange Act.


 


(n)           “ISO” means a Stock
Option that is also an incentive stock option granted pursuant to Section 6(a)(ii) of
the Plan.


 


(o)           “Management Stockholder’s
Agreement” means that certain Management Stockholder’s Agreement between
the applicable Participant and the Company.


 


(p)           “Other Stock-Based Awards”
means Other Stock-Based Awards granted pursuant to Section 6(c) of
the Plan.


 


(q)           “Participant” means
an Employee, non-employee member of the Board, consultant or other person
having a service relationship with the Company or any other Service Recipient,
to whom one or more Awards have been made and remain outstanding.


 


(r)            “Performance-Based Awards”
shall have the meaning set forth in Section 6(c) of the Plan.


 


(s)           “Person” means “person,”
as such term is used for purposes of Section 13(d) or 14(d) of
the Exchange Act.


 


(t)            “Public Offering” means any registered public
offering of the Common Stock on the New York Stock Exchange or the Nasdaq
National Market or other nationally recognized stock exchange or listing
system.


 


(u)           “Service Recipient”
means the Company, any Subsidiary of the Company, or any Affiliate of the
Company that satisfies the definition of “service recipient” within the meaning
of Proposed Treasury Regulation Section 1.409A-1(g) (or any successor
regulation), with respect to which the person is a “service provider” (within
the meaning of Proposed Treasury Regulation Section 1.409A-1(f) (or
any successor regulation).


 


(v)           “Stock Appreciation
Rights” means Stock Appreciation Rights granted under Section 6(b) of
the Plan.


 


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(w)          “Stock Options” means
Stock Options granted pursuant to Section 6(a) of the Plan.


 


(x)            “Subsidiary” means
any corporation or other entity in an unbroken chain of corporations or other
entities beginning with the Company if each of the corporations or other
entities, or group of commonly controlled corporations or other entities, other
than the last corporation or other entity in the unbroken chain then owns stock
or other equity interests possessing 50% or more of the total combined voting
power of all classes of stock or other equity interests in one of the other
corporations or other entities in such chain.


 


3.             Shares Subject to the Plan


 


Subject to adjustment as provided for in
Sections 8 and 9, the total number of Shares which may be issued under the Plan
is 31,142,858, no more than 4,500,000 of which shall be available for grant to
any one Participant in the form of Stock Options and Stock Appreciation Rights
in any given fiscal year of the Company, and no more than 1,500,000 of which
shall be available for grant to any one Participant in the form of Other
Stock-Based Awards in any given fiscal year of the Company.  The Shares may consist, in whole or in part,
of unissued Shares or issued but reaquired Shares.  The issuance of Shares or the payment of cash
in consideration of the substitution, cancellation or termination of an Award
shall reduce the total number of Shares available under the Plan, to the extent
of the number of Shares subject to such substituted, cancelled or terminated
Award.  Shares related to Awards or
portions of Awards that are forfeited, terminated, canceled, expire
unexercised, withheld to satisfy tax withholding obligations, or are
repurchased by the Company, shall immediately become available for new Awards.


 


4.             Administration of Plan


 


(a)           The Plan shall be
administered by the (i) Committee, which may delegate its duties and
powers in whole or in part to any subcommittee thereof consisting solely of at
least two individuals who are intended to qualify as “Non-Employee Directors”
within the meaning of Rule 16b-3 under the Exchange Act (or any successor rule thereto),
“independent directors” within the meaning of the New York Stock Exchange’s
listed company rules and “outside directors” within the meaning of Section 162(m) of
the Code (or any successor section thereto), or (ii) Board acting on
behalf of the Committee, in each case to the extent permitted by applicable
law.  The Committee may adopt its own rules of
procedure, and action of a majority of the members of the Committee taken at a
meeting, or action taken without a meeting by unanimous written consent, shall
constitute action by the Committee. 
Subject to Section 10 of the Plan, the Committee shall have the power
and authority to administer, construe and interpret the Plan, to make rules for
carrying it out and to make changes in such rules, and to make any other
determinations that it deems necessary or desirable for the administration of
the Plan.  The Committee may correct any
defect or supply any omission or reconcile any inconsistency in the Plan and
any Award Agreement in the manner and to the extent the Committee deems
necessary or desirable.  Any such
interpretations, rules, and administration shall be consistent with the basic
purposes of the Plan.  The Committee
shall have the full power and authority to establish the terms and conditions
of any Award consistent with the provisions of the Plan and to waive any such
terms and conditions at any time (including, without limitation, accelerating
or waiving any vesting conditions).  At
the time a Award is made or amended in accordance with the terms of the Plan,
or the terms or 


 


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conditions of a Award are changed in
accordance with the terms of the Plan or the Award Agreement, the Committee may
provide for limitations or conditions on such Award. Any decision of the
Committee (including a duly authorized subcommittee thereof) in the
interpretation and administration of the Plan, as described herein, shall lie
within its sole and absolute discretion and shall be final, conclusive and
binding on all parties concerned (including, but not limited to, Participants
and their beneficiaries or successors).


 


(b)           Awards may, in the
discretion of the Committee, be made under the Plan in assumption of, or in
substitution for, outstanding awards previously granted by the Company or its
Affiliates or a company acquired by the Company or with which the Company
combines.


 


(c)           The Committee may employ
counsel, consultants, accountants, appraisers, brokers or other persons.  The Committee, the Company, and the officers
and directors of the Company shall be entitled to rely upon the advice, opinions
or valuations of any such persons.  No
member of the Committee, nor employee or representative of the Company shall be
personally liable for any action, determination or interpretation made in good
faith with respect to the Plan or the Awards, and all such members of the
Committee, employees and representatives shall be fully protected and
indemnified to the greatest extent permitted by applicable law by the Company
with respect to any such action, determination or interpretation.


 


5.             Eligibility


 


The Committee may from time to time make
Awards under the Plan to such Employees, or other persons having a relationship
with Company or any other Service Recipient, and in such form and having such
terms, conditions and limitations as the Committee may determine.  The terms, conditions and limitations of each
Award under the Plan shall be set forth in an Award Agreement, in a form
approved by the Committee, consistent, however, with the terms of the Plan.


 


6.             Awards


 


From time to time, the Committee will
determine the forms and amounts of Awards for Participants.  Such Awards may take the following forms in
the Committee’s sole discretion:


 


(a)           Stock Options.


 


(i)            Stock Options.  These are options to purchase Common Stock (“Stock
Options”).  At the time of Award the
Committee shall determine, and shall include in the Award Agreement, the option
exercise period, the option exercise price, vesting requirements, and such
other terms, conditions or restrictions on the grant or exercise of the option
as the Committee deems appropriate including, without limitation, the right to
receive dividend equivalent payments on vested options.  Notwithstanding the foregoing, the exercise
price per Share of a Stock Option shall in no event be less than the Fair
Market Value on the date the Stock Option is granted (subject to later
adjustment pursuant to Sections 8 and 9 hereof).  In addition to other restrictions contained
in the Plan, a Stock Option granted under this Section 6(a) may not
be exercised more than 10 years after the date it is granted.  Payment of the Stock Option exercise price
shall be made (i) in cash, (ii) with the consent of the Committee, in
Shares (any such Shares valued at Fair Market Value on the date of exercise)
that the Participant has held for at least six months (or such other 


 


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period of time as may be required by the Company’s accountants), (iii) through
the withholding of Shares (any such Shares valued at Fair Market Value on the
date of exercise) otherwise issuable upon the exercise of the Stock Option in a
manner that is compliant with applicable law, or (iv) a combination of the
foregoing methods, in each such case in accordance with the terms of the Plan,
the Award Agreement and of any applicable guidelines of the Committee in effect
at the time.


 


(ii)           ISOs.  The Committee may grant Stock Options under
the Plan that are intended to be ISOs. 
Such ISOs shall comply with the requirements of Section 422 of the
Code (or any successor section thereto). 
No ISO may be granted to any Participant who at the time of such grant,
owns more than ten percent of the total combined voting power of all classes of
stock of the Company or of any Subsidiary, unless (i) the option exercise
price for such ISO is at least 110% of the Fair Market Value of a Share on the
date the ISO is granted and (ii) the date on which such ISO terminates is
a date not later than the day preceding the fifth anniversary of the date on
which the ISO is granted.  Any
Participant who disposes of Shares acquired upon the exercise of an ISO either (i) within
two years after the date of grant of such ISO or (ii) within one year
after the transfer of such Shares to the Participant, shall notify the Company
of such disposition and of the amount realized upon such disposition.  All Stock Options granted under the Plan are
intended to be nonqualified stock options, unless the applicable Award
agreement expressly states that the Stock Option is intended to be an ISO.  If a Stock Option is intended to be an ISO,
and if for any reason such Option (or portion thereof) shall not qualify as an
ISO, then, to the extent of such nonqualification, such Stock Option (or
portion thereof) shall be regarded as a nonqualified stock option granted under
the Plan; provided that such Stock Option (or portion thereof) otherwise
complies with the Plan’s requirements relating to nonqualified stock
options.  In no event shall any member of
the Committee, the Company or any of its Affiliates (or their respective
employees, officers or directors) have any liability to any Participant (or any
other Person) due to the failure of a Stock Option to qualify for any reason as
an ISO.


 


(iii)          Attestation.  Wherever in this Plan or any agreement
evidencing an Award a Participant is permitted to pay the Stock Option exercise
price of a Stock Option or taxes relating to the exercise of a Stock Option by
delivering Shares, the Participant may, subject to procedures satisfactory to
the Committee, satisfy such delivery requirement by presenting proof of
Beneficial Ownership of such Shares, in which case the Company shall treat the
Stock Option as exercised without further payment and shall withhold such
number of Shares from the Shares acquired by the exercise of the Stock Option,
subject to actual receipt of such Shares (whether of the actual Share
certificate or electronic delivery of such Shares).


 


(b)           Stock Appreciation Rights.  The Committee may grant “Stock
Appreciation Rights” (as hereinafter defined) independent of, or in
connection with, the grant of a Stock Option or a portion thereof.  Each Stock Appreciation Right shall be
subject to such other terms as the Committee may determine.  The exercise price per Share of a Stock
Appreciation Right shall in no event be less than the Fair Market Value on the
date the Stock Appreciation Right is granted or, in the case of a Stock
Appreciation Right granted in conjunction with a Stock Option, or a portion
thereof, the Stock Option exercise price of the related Stock Option.  Each “Stock Appreciation Right” granted
independent of a Stock Option shall be defined as a right of a Participant,
upon exercise of such Stock Appreciation Right, to receive an amount equal to
the product of (i) the excess of (A) the Fair Market Value on the
exercise date of one Share over (B) the exercise price 


 


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per Share of such Stock Appreciation Right,
multiplied by (ii) the number of Shares covered by the Stock Appreciation
Right.  Payment of the Stock Appreciation
Right shall be made in Shares or in cash, or partly in Shares and partly in
cash (any such Shares valued at the Fair Market Value on the date of the
payment), all as shall be determined by the Committee.  Stock Appreciation Rights may be exercised
from time to time upon actual receipt by the Company of written notice of
exercise stating the number of Shares with respect to which the Stock
Appreciation Right is being exercised. 
The date a notice of exercise is received by the Committee shall be the
exercise date.  No fractional Shares will
be issued in payment for Stock Appreciation Rights, but instead cash will be
paid for a fraction or, if the Committee should so determine, the number of
Shares will be rounded downward to the next whole Share.


 


(c)           Other
Stock-Based Awards.


 


(i)            Generally.  The Committee may grant or sell awards of
Shares, awards of restricted Shares and awards that are valued in whole or in
part by reference to, or are otherwise based on the Fair Market Value or number
of, or are in any way payable in the form of, Shares (including, without
limitation, restricted stock units and bonus stock).  Such “Other Stock-Based Awards” shall
be in such form, and dependent on such conditions, as the Committee may
determine, including, without limitation, the right to receive, or vest with respect
to, one or more Shares (or the equivalent cash value of such Shares) upon the
completion of a specified period of service, the occurrence of an event and/or
the attainment of performance objectives. 
Other Stock-Based Awards may be granted alone or in addition to any
other Awards under the Plan.  Subject to
the provisions of the Plan, the Committee shall determine to whom and when
Other Stock-Based Awards will be made; the number of Shares to be awarded under
(or otherwise related to) such Other Stock-Based Awards; whether such Other
Stock-Based Awards shall be settled in cash, Shares or a combination of cash
and Shares; and all other terms and conditions of such awards (including,
without limitation, the vesting provisions thereof and provisions ensuring that
all Shares so awarded and issued shall be fully paid and non-assessable).


 


(ii)           Notwithstanding anything to the contrary herein,
certain Other Stock-Based Awards granted under this Section 6(c) may be
granted in a manner which is intended to qualify for the exemption from the
limitation on deductibility imposed by Section 162(m) of the Code that is
set forth in Section 162(m)(4)(C) of the Code or any successor
provision thereto (“Performance-Based Awards”).  A Participant’s Performance-Based Award shall
be determined based on the attainment of written performance goals approved by
the Committee for a performance period established by the Committee within the
time period prescribed by Section 162(m) of the Code.  The performance goals, which must be
objective, shall be based upon one or more of the following criteria: (a) net
earnings or net income (before or after taxes); (b) earnings per share; (c) net
sales or revenue growth; (d) gross or net operating profit; (e) return
measures (including, but not limited to, return on assets, capital, invested
capital, equity, sales, or revenue); (f) cash flow (including, but not
limited to, operating cash flow, free cash flow, and cash flow return on
capital); (g) earnings before or after taxes, interest, depreciation,
and/or amortization; (h) gross or operating margins; (i) productivity
ratios; (j) share price (including, but not limited to, growth measures
and total shareholder return); (k) expense targets; (l) margins; (m) operating
efficiency; (n) customer satisfaction; 
(o) working capital targets; (p) economic value added; (q) volume;
(r) capital expenditures;  (s) market
share; (t) costs; (u) regulatory ratings; (v) asset 


 


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quality; (w) net worth;
and (x) safety.  The foregoing
criteria may relate to the Company, one or more of its Affiliates or one or
more of its or their divisions or units, or any combination of the foregoing,
and may be applied on an absolute basis and/or be relative to one or more peer group
companies or indices, or any combination thereof, all as the Committee shall
determine.  In addition, to the degree
consistent with Section 162(m) of the Code (or any successor section
thereto), the performance goals may be calculated without regard to
extraordinary or non-recurring items, as the Committee may determine in its
sole discretion.  The maximum amount of a
Performance-Based Award granted during a calendar year to any Participant shall
be, with respect to Performance-Based Awards that are denominated in Shares, 24
million.  The Committee shall determine
whether, with respect to a performance period, the applicable performance goals
have been met with respect to a given Participant and, if they have, shall so
certify and ascertain the amount of the applicable Performance-Based
Award.  No Performance-Based Awards will
be paid for such performance period until such certification is made by the
Committee.  The amount of the
Performance-Based Award actually paid to a given Participant may be less than
the amount determined by the applicable performance goal formula, at the
discretion of the Committee.  The amount
of the Performance-Based Award determined by the Committee for a performance
period shall be paid to the Participant at such time as determined by the
Committee in its sole discretion after the end of such performance period;
provided, however, that a Participant may, if and to the extent permitted by
the Committee and consistent with the provisions of Section 162(m) of
the Code, elect to defer payment of a Performance-Based Award.


 


(d)           Dividend Equivalent Rights – The
Committee may grant Dividend Equivalent Rights either alone or in connection
with the grant of an Award.  A “Dividend
Equivalent Right” shall be the right to receive a payment in respect of one
Share (whether or not subject to a Stock Option) equal to the amount of any
dividend paid in respect of one Share held by a shareholder in the
Company.  Each Dividend Equivalent Right
shall be subject to such terms as the Committee may determine.


 


7.             Limitations and Conditions


 


(a)           No Award may be granted
under the Plan after July 6, 2017, but Awards theretofore granted may
extend beyond that date.


 


(b)           Nothing contained herein
shall affect the right of the Company or any other Service Recipient to
terminate any Participant’s employment or other service relationship at any
time or for any reason.


 


(c)           Other than as specifically
provided in the Management Stockholder’s Agreement, no benefit under the Plan
shall be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, or charge, and any attempt to do so shall be
void.  No such benefit shall, prior to
receipt thereof by the Participant, be in any manner liable for or subject to
the debts, contracts, liabilities, engagements, or torts of the Participant.


 


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(d)           Participants shall not be,
and shall not have any of the rights or privileges of, shareholders of the
Company in respect of any Shares purchasable or deliverable in connection with
any Award unless and until certificates representing any such Shares have been
issued by the Company to such Participants (or book entry representing such
Shares has been made and such Shares have been deposited with the appropriate
registered book-entry custodian).


 


(e)           No election as to benefits
or exercise of any Award may be made during a Participant’s lifetime by anyone
other than the Participant except by a legal representative appointed for or by
the Participant.


 


(f)            Absent express provisions to
the contrary, any Award under this Plan shall not be deemed compensation for
purposes of computing benefits or contributions under any retirement or  severance plan of the Company or other Service Recipient
and shall not affect any benefits under any other benefit plan of any kind now
or subsequently in effect under which the availability or amount of benefits is
related to level of compensation.  This
Plan is not a “Retirement Plan” or “Welfare Plan” under the Employee Retirement
Income Security Act of 1974, as amended.


 


(g)           Unless the Committee
determines otherwise, no benefit or promise under the Plan shall be secured by
any specific assets of the Company or any other Service Recipient, nor shall
any assets of the Company or any other Service Recipient be designated as
attributable or allocated to the satisfaction of the Company’s obligations
under the Plan.


 


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


 


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


 


8.             Adjustments upon Certain
Events.


 


In the event of any stock split, spin-off, share
combination, reclassification, recapitalization, liquidation, dissolution,
reorganization, merger, Change in Control, payment of a dividend (other than a
cash dividend paid as part of a regular dividend program) or other similar
transaction or occurrence which affects the equity securities of the Company or
the value thereof, the Committee shall (i) adjust the number and kind of
shares subject to the Plan and available for or covered by Awards, (ii) adjust
the share and/or exercise prices related to outstanding Awards, and/or (iii) take
such other action (including, without limitation providing for payment of a
cash amount to holders of outstanding Awards), in each case as it deems
reasonably necessary to address, on an equitable basis, the effect of the
applicable corporate event on the Plan and any outstanding Awards, and to the
extent applicable, without adverse tax consequences under Section


 


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409A of the Code.  Any such
adjustment made or action taken by the Committee in accordance with the
preceding sentence shall be final and binding upon holders of Stock Options and
upon the Company.


 


9.             Change in Control.


 


Notwithstanding Section 8 above, in the event
of a Change in Control: (a) if determined by the Committee in the
applicable Award Agreement or otherwise determined by the Committee in its sole
discretion, any outstanding Awards then held by Participants which are
unexercisable or otherwise unvested or subject to lapse restrictions may
automatically be deemed exercisable or otherwise vested or no longer subject to
lapse restrictions, as the case may be, as of immediately prior to such Change
in Control and (b) the Committee may, to the extent determined by the
Committee to be permitted under Section 409A of the Code, but shall not be
obligated to: (i) cancel such Awards for fair value (as determined in the
sole discretion of the Committee) which, in the case of Stock Options and Stock
Appreciation Rights, may equal the excess, if any, of the value of the
consideration (as determined in the sole discretion of the Committee) to be
paid in the Change in Control transaction to holders of the same number of Shares
subject to such Stock Options or Stock Appreciation Rights over the aggregate
exercise price of such Stock Options or the aggregate exercise price of such
Stock Appreciation Rights, as the case may be; (ii) provide for the
issuance of substitute awards that will substantially preserve the otherwise
applicable terms and value of any affected Awards previously granted hereunder,
as determined by the Committee in its sole discretion; or (iii) provide
that for a period of at least ten business days prior to the Change in Control,
any Stock Options or Stock Appreciation Rights shall be exercisable, to the
extent applicable, as to all Shares subject thereto and that upon the
occurrence of the Change in Control, such Awards shall terminate and be of no
further force and effect.


 


10.           Amendment and Termination


 


(a)           The Committee shall have the
authority to make such amendments to any terms and conditions applicable to
outstanding Awards as are consistent with this Plan, provided that no
such action shall modify any Award in a manner that adversely impacts, other
than in a de minimis manner, a Participant with
respect to any outstanding Awards, other than pursuant to Sections 8, 9 or 10(c) hereof,
without the Participant’s consent, except as such modification is provided for
or contemplated in the terms of the Award or this Plan (including Section 4(a) above).


 


(b)           The Board may amend, suspend
or terminate the Plan, except that no such action, other than an action
under Sections 8, 9 or 10(c) hereof, may be taken which would, without
shareholder approval, increase the aggregate number of Shares available for
Awards under the Plan, decrease the exercise price of outstanding Stock Options
or Stock Appreciation Rights, change the requirements relating to the
Committee, or extend the term of the Plan. 
However, no such Board action shall adversely impact, other than in a de minimis manner, a Participant with respect to any
outstanding Awards, other than pursuant to Sections 8, 9 or 10(c) hereof,
without the Participant’s consent, except as otherwise contemplated in the
terms of the Award or the Plan (including Section 4(a) above).


 


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(c)           This Plan is intended to
comply with Section 409A of the Code and will be interpreted in a manner
intended to comply with Section 409A of the Code.  Notwithstanding anything herein to the
contrary, (i) if, at the time of the Participant’s termination of service
with any Service Recipient, the Participant is a “specified employee” as
defined in Section 409A of the Code, and the deferral of the commencement
of any payments or benefits otherwise payable hereunder as a result of such
termination of service is necessary in order to prevent the imposition of any
accelerated or additional tax under Section 409A of the Code, then the
Company will defer the commencement of the payment of any such payments or
benefits hereunder (without any reduction in such payments or benefits
ultimately paid or provided to the Participant) until the date that is six months
and one day following the Participant’s termination of service with all Service
Recipients (or the earliest date as is permitted under Section 409A of the
Code), if such payment or benefit is payable upon a termination of service and (ii) if
any other payments of money or other benefits due to the Participant hereunder
would cause the application of an accelerated or additional tax under Section 409A
of the Code, such payments or other benefits shall be deferred, if deferral
will make such payment or other benefits compliant under Section 409A of
the Code, or otherwise such payment or other benefits shall be restructured, to
the extent possible, in a manner, reasonably determined by the Board in
consultation with the Participant, that does not cause such an accelerated or
additional tax or result in an additional cost to the Company (without any
reduction in such payments or benefits ultimately paid or provided to the
Participant).  Each payment made under
the Plan shall be designated as a “separate payment” within the meaning of Section 409A
of the Code and all references to “termination of employment” or “termination
of service” shall be deemed to refer to a “separation from service” within the
meaning of Section 409A of the Code.


 


11.           Governing Law; International
Participants


 


(a)           This Plan shall be governed
by and construed in accordance with the laws of the State of Delaware
applicable therein.


 


(b)           With respect to Participants
who reside or work outside the United States of America, the Committee may, in
its sole discretion, amend the terms of the Plan or awards with respect to such
Participants in order to conform such terms with the requirements of local law
or to obtain more favorable tax or other treatment for a Participant, the
Company or any other Service Recipient.


 


12.           Transfers and Leaves of
Absence


 


For purposes of the Plan, unless the
Committee determines otherwise: (a) a transfer of a Participant’s
employment without an intervening period of separation among the Company and
any other Service Recipient shall not be deemed a termination of employment,
and (b) a Participant who is granted in writing a leave of absence or who
is entitled to a statutory leave of absence shall be deemed to have remained in
the employ of the Company (and other Service Recipient) during such leave of
absence.


 


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13.           Withholding Taxes


 


The Company shall have the right to deduct
from any payment made under the Plan any federal, state or local income or
other taxes required by law to be withheld with respect to such payment.  It shall be a condition to the obligation of
the Company to deliver Shares upon the exercise of a Stock Option that the
Participant pays to the Company such amount as may be requested by the Company for
the purpose of satisfying any liability for such withholding taxes.


 


14.           Effectiveness of the Plan


 


The original effective date
of this Plan was July 6, 2007; provided, however, that this Plan as
amended and restated shall be effective on the date on which the Company’s
shareholders approve the Plan.  The Plan
shall terminate on the tenth anniversary of the original effective date of this
amended and restated Plan, subject to earlier termination by the Board pursuant
to Section 10.


 


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