exv10w4






Exhibit 10.4




Madison Square Garden, Inc. 2009 Employee Stock Plan




          1. Purpose. The purpose of the Madison Square Garden, Inc. 2009 Employee Stock Plan is to
compensate employees of the Company and its Affiliates who are and have been largely responsible
for the management and growth of the business of the Company and its Affiliates and to advance the
interest of the Company by encouraging and enabling the acquisition of a personal proprietary
interest in the Company by employees upon whose judgment and keen interest the Company and its
Affiliates are largely dependent for the successful conduct of their operations. It is anticipated
that such compensation and the acquisition of such proprietary interest in the Company will
stimulate the efforts of such employees on behalf of the Company and its Affiliates, and strengthen
their desire to remain with the Company and its Affiliates. It is also expected that such
compensation and the opportunity to acquire such a proprietary interest will enable the Company and
its Affiliates to attract and retain desirable personnel.



          2. Definitions. When used in this Plan, unless the context otherwise requires:



          (a) “Affiliate” shall mean (i) any Entity controlling, controlled by, or under common control
with the Company or any other Affiliate and (ii) any Entity in which the Company owns at least five
percent of the outstanding equity interest of such Entity.



          (b) “Award” shall mean an Option, Right, Restricted Share or Restricted Stock Unit or other
equity based award which is granted or made under the Plan.



          (c) “Award Agreement” shall mean an agreement which may be entered into by a Participant under
the Plan and the Company, setting forth the terms and provisions applicable to Awards granted to
such Participant.



          (d) “Board of Directors” shall mean the Board of Directors of the Company, as constituted at
any time.



          (e) “Committee” shall mean the Compensation Committee of the Board of Directors, as described
in Section 3.



          (f) “Company” shall mean Madison Square Garden, Inc., a Delaware corporation.



          (g) “Consent” shall mean (i) any listing, registration or qualification requirement in respect
of an Award or Share with respect to any securities exchange or under any federal, state or local
law, rule or regulation, (ii) any and all written agreements and representations by the Participant
with respect to the disposition of Shares, or with respect to any other matter, which the Committee
may deem necessary or desirable to



 









 







comply with the terms of any such listing, registration or qualification requirement or to
obtain an exemption therefrom, (iii) any and all other consents, clearances and approvals in
respect of an action under the Plan by any governmental or other regulatory body or any stock
exchange or self-regulatory agency, (iv) any and all consents by the Participant to (A) the
Company’s supplying to any third party recordkeeper of the Plan such personal information as the
Committee deems advisable to administer the Plan and (B) the Company’s imposing sales and transfer
procedures and restrictions on Shares delivered under the Plan and (v) any and all other consents
or authorizations required to comply with, or required to be obtained under law.



          (h) “Entity” shall mean any business, corporation, partnership, limited liability company or
other entity.



          (i) “Fair Market Value” on a specified date shall mean the closing price for a Share on the
stock exchange, if any, on which such Shares are primarily traded, but if no Shares were traded on
such date, the average of the bid and asked closing prices at which one Share is traded on the
over-the-counter market, as reported on the National Association of Securities Dealers Automated
Quotation System, or, if none of the above is applicable, the value of a Share as established by
the Committee for such date using any reasonable method of valuation.



          (j) “GAAP” shall mean accounting principles generally accepted in the United States of
America.



          (k) “Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as amended.



          (l) “Options” shall mean the stock options granted pursuant to Section 6 hereof.



          (m) “Participant” shall mean any employee or former employee of the Company or any Affiliate
who holds an outstanding Award granted under the Plan.



          (n) “Performance Criteria” shall mean a goal or goals established by the Committee and
measured over a period or periods selected by the Committee, such goal(s) to constitute a
requirement that must be met in connection with the vesting, exercise and/or payment of an Award
under the Plan as specified by the Committee. To the extent that an Award of Restricted Shares or
Restricted Stock Units or another stock based award (other than Options and Rights) is intended to
satisfy the requirements for deductibility under Section 162(m) of the Internal Revenue Code, the
payment of the Award will be conditioned on the satisfaction of one or more of the performance
criteria listed below over a period or periods selected by the Compensation Committee. The
performance criteria may be determined by reference to the performance of the Company, an affiliate
or a business unit, product, team, venue, production, event, network or service thereof or any
combination of the foregoing. Such criteria may also be measured on a per customer, subscriber,
sponsor, viewer (or available viewer), basic



 









 







or diluted share basis or any combination of the foregoing and may reflect absolute
performance, incremental performance or comparative performance to other companies (or their
products or services) determined on a gross, net, GAAP or non-GAAP basis, with respect to one or
more of the following: (i) net or operating income or other measures of profit; (ii) measures of
revenue; (iii) earnings before interest, taxes, depreciation and amortization (EBITDA); (iv) cash
flow, free cash flow, adjusted operating cash flow and similar measures; (v) return on equity,
investment, assets or capital; (vi) gross or operating margins or savings; (vii) performance
relative to budget, forecast or market expectations; (viii) market share or penetration, subscriber
or customer acquisition or retention, ratings, viewership, facilities utilization or attendance;
(ix) sports team performance; (x) operating metrics relating to sales, subscriptions, sponsorships
or customer service or satisfaction; (xi) capital spending management, network upgrades, facility
maintenance, construction or renovation or product or service deployments; (xii) achievement of
strategic business objectives such as acquisitions, dispositions or investments; (xiii) a specified
increase in the fair market value of the Shares; (xiv) a specified increase in the private market
value of the Company; (xv) the Share price; (xvi) earnings per share; and/or (xvii) total
shareholder return.



          (o) “Plan” shall mean this Madison Square Garden, Inc. 2009 Employee Stock Plan, as amended
from time to time.



          (p) “Restricted Period” shall mean the period of time during which Restrictions shall apply to
a Restricted Share, as determined by the Committee pursuant to Section 9 hereof.



          (q) “Restricted Shares” shall mean the Shares awarded pursuant to Section 9 hereof that are
subject to restrictions upon their sale, assignment, transfer, pledge or other disposal or
encumbrance as determined by the Committee.



          (r) “Restricted Stock Units” shall mean awards made pursuant to Section 10 hereof, each such
unit representing an unfunded and unsecured promise to deliver a Share (or cash or other property
equal in value to the Share).



          (s) “Restrictions” shall mean the restrictions upon sale, assignment, transfer, pledge or
other disposal or encumbrance on a Restricted Share as determined by the Committee in respect of an
Award of a Restricted Share pursuant to Section 9 hereof.



          (t) “Rights” shall mean stock appreciation rights granted pursuant to Section 7 of the Plan.



          (u) “Share” shall mean a share of Madison Square Garden, Inc. Class A Common Stock, par value
$0.01 per share.



          (v) “Subsidiary” shall mean any “subsidiary corporation,” as defined in Section 424(f) of the
Internal Revenue Code.



 









 





          3. Administration. (a)  The Plan shall be administered by the Committee, which shall consist
of at least two members of the Board of Directors who shall be appointed by, and shall serve at the
pleasure of, the Board of Directors. Except as otherwise determined by the Board of Directors, the
members of the Committee shall be “non-employee directors”, as defined in Rule 16b-3 of the
Securities Exchange Act of 1934 (the “Exchange Act”), and “outside directors” as defined in Section
162(m) of the Internal Revenue Code; provided, however, that the failure of the Committee to be so
comprised shall not cause any Award to be invalid. The Committee may delegate any of its powers
under the Plan to a subcommittee of the Committee (which hereinafter shall also be referred to as
the Committee). The Committee may also delegate to any person who is not a member of the Committee
or to any administrative group within the Company, any of its powers, responsibilities or duties.
In delegating its authority, the Committee shall consider the extent to which any delegation may
cause Awards to fail to be deductible under Section 162(m) of the Internal Revenue Code or to fail
to meet the requirements of Rule 16(b)-3(d)(1) or Rule 16(b)-3(e) under the Exchange Act.



          (b) The Committee shall have full authority, subject to the terms of the Plan (including
Section 19), to (a) exercise all of the powers granted to it under the Plan, (b) construe,
interpret and implement the Plan and all Awards and Award Agreements, (c) prescribe, amend and
rescind rules and regulations relating to the Plan, including rules governing its own operations,
(d) make all determinations necessary or advisable in administering the Plan, (e) correct any
defect, supply any omission and reconcile any inconsistency in the Plan, (f) amend the Plan,
(g) grant Awards and determine who shall receive Awards and the terms and conditions of such
Awards, including, but not limited to, conditioning the exercise, vesting, payout or other term or
condition of an Award on the achievement of Performance Criteria, (h) amend any outstanding Award
in any respect, including, without limitation, to (1) accelerate the time or times at which the
Award becomes vested or unrestricted or may be exercised or at which Shares are delivered under the
Award (and, without limitation on the Committee’s rights, in connection with such acceleration, the
Committee may provide that any Shares delivered pursuant to such Award shall be Restricted Shares,
which are subject to vesting, transfer, forfeiture or repayment provisions similar to those in the
Participant’s underlying Award) or (2) waive or amend any goals, restrictions, conditions or
Performance Criteria (subject to the requirements of Section 162(m) of the Internal Revenue Code,
if applicable to the Award) applicable to such Award, or impose new goals or restrictions and
(i) determine at any time whether, to what extent and under what circumstances and method or
methods (1) Awards may be (A) settled in cash, Shares, other securities, other Awards or other
property, (B) exercised or (C) canceled, forfeited or suspended or (2) Shares, other securities,
cash, other Awards or other property and other amounts payable with respect to an Award may be
deferred either automatically or at the election of the participant or of the Committee. The
enumeration of the foregoing powers is not intended and should not be construed to limit in any way
the authority of the Committee under the Plan which is intended, to the fullest extent permitted by
law, to be plenary. The Plan, and all such rules, regulations, determinations and interpretations,
shall be binding and conclusive upon the Company, its stockholders and all Participants, and upon



 









 







their respective legal representatives, heirs, beneficiaries, successors and assigns and upon
all other persons claiming under or through any of them.



          (c) No member of the Board of Directors or the Committee or any employee of the Company or any
of its Affiliates (each such person a “Covered Person”) shall have any liability to any person
(including, without limitation, any Participant) for any action taken or omitted to be taken or any
determination made in good faith with respect to the Plan or any Award. Each Covered Person shall
be indemnified and held harmless by the Company against and from any loss, cost, liability or
expense (including attorneys’ fees) that may be imposed upon or incurred by such Covered Person in
connection with or resulting from any action, suit or proceeding to which such Covered Person may
be a party or in which such Covered Person may be involved by reason of any action taken or omitted
to be taken under the Plan and against and from any and all amounts paid by such Covered Person,
with the Company’s approval, in settlement thereof, or paid by such Covered Person in satisfaction
of any judgment in any such action, suit or proceeding against such Covered Person; provided that,
the Company shall have the right, at its own expense, to assume and defend any such action, suit or
proceeding and, once the Company gives notice of its intent to assume the defense, the Company
shall have sole control over such defense with counsel of the Company’s choice. The foregoing right
of indemnification shall not be available to a Covered Person to the extent that a court of
competent jurisdiction in a final judgment or other final adjudication, in either case, not subject
to further appeal, determines that the acts or omissions of such Covered Person giving rise to the
indemnification claim resulted from such Covered Person’s bad faith, fraud or willful criminal act
or omission. The foregoing right of indemnification shall not be exclusive of any other rights of
indemnification to which Covered Persons may be entitled under the Company’s Certificate of
Incorporation or by-laws, as a matter of law, or otherwise, or any other power that the Company may
have to indemnify such persons or hold them harmless.



          4. Participants. Except as hereinafter provided, all employees of the Company and its
Affiliates shall be eligible to receive Awards under the Plan, except that Options that are
intended to qualify as incentive stock options within the meaning of Section 422 of the Internal
Revenue Code shall be granted only to employees of the Company or a Subsidiary. Nothing herein
contained shall be construed to prevent the making of one or more Awards at the same or different
times to the same employee.



          5. Share Limitations. (a)  The Committee may make Awards under this Plan for up to an
aggregate number of [l] Shares, which may be either treasury Shares or authorized but unissued
Shares. To the extent that (i) an Award shall be paid, settled or exchanged or shall expire, lapse,
terminate or be cancelled for any reason without the issuance of Shares, (ii) any Shares under an
Award are not issued because of payment or withholding obligations or (iii) Restricted Shares shall
revert back to the Company prior to the lapse of the Restrictions or be applied by the Company for
purposes of tax withholding obligations, then the Committee may also grant Awards with respect to
such Shares or Restricted Shares. Awards payable only in cash or property



 









 







other than Shares shall not reduce the aggregate remaining number of Shares with respect to
which Awards may be made under the Plan and Shares relating to any other Awards that are settled in
cash or property other than Shares, when settled, shall be added back to the aggregate remaining
number of Shares with respect to which Awards may be made under the Plan. The maximum number of
Shares that may be issued under the Plan shall be adjusted by the Committee as appropriate to
account for the events provided for in Section 12 hereof. Any Shares with respect to which the
Company becomes obligated to make Awards through the assumption of, or in substitution for,
outstanding awards previously granted by an acquired entity, shall not count against the Shares
available to be delivered pursuant to Awards under this Plan.



          (b) In no event shall any Participant be granted Awards during any one (1) calendar year for,
or that relate to, an aggregate number of Shares exceeding [l]. The maximum number of Shares
underlying Awards that may be granted to an individual in any one (1) calendar year under the Plan
shall be adjusted by the Committee as appropriate to account for the events provided for in Section
12 hereof.



          6. Options. Options granted under the Plan shall be either incentive stock options, within
the meaning of Section 422 of the Internal Revenue Code, or non-qualified options, as determined by
the Committee in its sole discretion.




     (a) Terms and Conditions. The form, terms and conditions of each Option shall be
determined by the Committee and shall be set forth in an Award Agreement. Such terms and
conditions may include, without limitation, provisions relating to the vesting and
exercisability of such Options as well as the conditions or circumstances upon which such
Options may be accelerated, extended, forfeited or otherwise modified. The Committee may,
in its sole discretion, establish one or more conditions to the vesting or exercise of an
Option including, without limitation, conditions the satisfaction of which are measured by
Performance Criteria; provided that, if such Option is designated as an incentive stock
option, then such condition or conditions shall not be inconsistent with Section 422 of the
Internal Revenue Code. Unless the Award Agreement specifies that the Option is an incentive
stock option, it shall be a non-qualified stock option. All or any part of any Options
granted to any Participant may be made exercisable upon the occurrence of such special
circumstances or events as determined in the sole discretion of the Committee.




     (b) Exercise Price for Options. The exercise price per Share of the Shares to be
purchased pursuant to any Option shall be fixed by the Committee at the time an Option is
granted, but in no event shall it be less than the Fair Market Value of a Share on the day
on which the Option is granted. Such exercise price shall thereafter be subject to
adjustment as required by the Award Agreement relating to each Option or Section 12 hereof.



 









 






     (c) Duration of Options. The duration of any Option granted under this Plan shall be
for a period fixed by the Committee but shall, except as described in the next sentence, in
no event be more than ten (10) years. Notwithstanding the foregoing, an Award Agreement may
provide that, in the event the Participant dies while the Option is outstanding, the Option
will remain outstanding until the first anniversary of the Participant’s date of death, and
whether or not such first anniversary occurs prior to or following the expiration of ten
(10) years from the date the Option was granted.




     (d) Incentive Stock Options Granted to Ten Percent Stockholders. To the extent
required by Section 422 of the Internal Revenue Code, no Option which is intended to
qualify as an incentive stock option shall be granted under this Plan to any employee who,
at the time the Option is granted, owns, or is considered owning, within the meaning of
Section 422 of the Internal Revenue Code, shares possessing more than ten percent (10%) of
the total combined voting power or value of all classes of stock of the Company or any
Subsidiary, unless the exercise price under such Option is at least one hundred and ten
percent (110%) of the Fair Market Value of a Share on the date such Option is granted and
the duration of such option is no more than five (5) years.




     (e) Initial Exercisability Limitation. The aggregate Fair Market Value (determined at
the time that an Option is granted) of the Shares with respect to incentive stock options
granted in any calendar year under all stock option plans of the Company or any corporation
which (at the time of the granting of such incentive stock option) was a parent or
Subsidiary of the Company, or of any predecessor corporation of any such corporation, which
are exercisable for the first time by a Participant during any calendar year shall not
exceed $100,000, or, if different, the maximum allowed under Section 422 of the Internal
Revenue Code.




     (f) Settlement of an Option. When an Option is exercised pursuant to Section 8
hereof, the Committee, in its sole discretion, may elect, in lieu of issuing Shares
pursuant to the terms of the Option, to settle the Option by paying the Participant an
amount equal to the product obtained by multiplying (i) the excess of the Fair Market Value
of one Share on the date the Option is exercised over the exercise price of the Option (the
“Option Spread”) by (ii) the number of Shares with respect to which the Option is
exercised. The amount payable to the Participant in these circumstances shall be paid by
the Company either in cash or in Shares having a Fair Market Value equal to the Option
Spread, or a combination thereof, as the Committee shall determine at the time the Option
is exercised or at the time the Option is granted.



          7. Rights. The Committee may grant to employees the right to receive such number of Rights,
as determined by the Committee in its sole discretion.



 









 






     
(a) Terms and Conditions. The form, terms and conditions of each Right shall be
determined by the Committee and shall be set forth in an Award Agreement. Such terms and
conditions may include, without limitation, provisions relating to the vesting and
exercisability of such Rights as well as the conditions or circumstances upon which such
Rights may be accelerated, extended, forfeited or otherwise modified. The Committee may, in
its sole discretion, establish one or more conditions to the vesting or exercise of a Right
including, without limitation, conditions the satisfaction of which are measured by
Performance Criteria. All or any part of any outstanding Rights granted to any Participant
may be made exercisable upon the occurrence of such special circumstances or events as
determined in the sole discretion of the Committee.




     (b) Exercise Price for Rights. The exercise price of each Right shall be fixed by the
Committee at the time a Right is granted, but in no event shall it be less than the Fair
Market Value of a Share on the day on which the Right is granted. Such exercise price shall
thereafter be subject to adjustment as required by the Award Agreement relating to each
Right or Section 12 hereof.




     (c) Duration of Rights. The duration of any Right granted under this Plan shall be
for a period fixed by the Committee but shall, except as described in the next sentence, in
no event be more than ten (10) years. Notwithstanding the foregoing, an Award Agreement may
provide that, in the event the Participant dies while the Right is outstanding, the Right
will remain outstanding until the first anniversary of the Participant’s date of death, and
whether or not such first anniversary occurs prior to or following the expiration of ten
(10) years from the date the Right was granted.




     (d) Settlement of Rights. Upon the exercise of any Rights, the Participant shall be
entitled to receive from the Company an amount equal to the product obtained by multiplying
(i) the excess of the Fair Market Value of one Share on the date the Rights are exercised
over the exercise price of the related Right by (ii) the number of Shares to which such
Rights are related. Such amount shall be paid in cash, in Shares having a Fair Market Value
equal to such amount, or a combination of cash and Shares, as the Committee shall determine
at the time the Right is exercised or at the time the Right is granted.



          8. Exercise of Options and Rights. (a)  An Option or Right shall be exercised by the delivery
to any person who has been designated by the Company for the purpose of receiving the same, of a
written notice duly signed by the Participant (or the representative of the estate or the heirs of
a deceased Participant) to such effect (or electronic notice in a manner, if any, previously
approved by the Company). Unless the Company chooses to settle an Option in cash, Shares or a
combination thereof pursuant to Section 6(f) hereof, the Participant shall be required to deliver
to the Company, within five (5) days of the delivery of the notice described above, either cash, a
check payable to the order of the Company, Shares duly endorsed over to the Company (which Shares



 









 







shall be valued at their Fair Market Value as of the date preceding the day of such
exercise) or any combination of such methods of payment, which together amount to the full exercise
price of the Shares purchased pursuant to the exercise of the Option. Notwithstanding the preceding
sentence, the Company and the Participant may agree upon any other reasonable manner of providing
for payment of the exercise price of the Option.



          (b) Except to the extent the Committee chooses to settle any Option or Right in cash pursuant
to Section 6(f) or 7(d) hereof, within a reasonable time after exercise of an Option or Right the
Company shall either issue to the Participant a certificate representing the Shares purchased
pursuant to the exercise of the Option or Right or credit the number of such Shares to a book-entry
account. To the extent the Committee chooses to settle any Option or Right in cash pursuant to
Section 6(f) or 7(d), within a reasonable time after exercise of an Option or Right the Company
shall cause to be delivered to the person entitled thereto a payment for the amount payable
pursuant to the exercise of the Option or Right.



          9. Restricted Shares. The Committee may grant to employees the right to receive such number
of Restricted Shares, as determined by the Committee in its sole discretion.




     (a) Issuance; Terms and Conditions. The form, terms and conditions of each Restricted
Share shall be determined by the Committee and shall be set forth in an Award Agreement.
Such terms and conditions may include, without limitation, the Restrictions upon such
Restricted Shares, the dates as of which Restrictions upon such Restricted Shares will
cease, and the conditions or circumstances upon which such Restricted Shares will be
forfeited or otherwise modified. The Committee may, in its sole discretion, establish one
or more Restrictions to the vesting of a Restricted Share that relate to the satisfaction
of Performance Criteria.




     (b) Payment of Par Value. To the extent a Participant is required by law to pay to
the Company the par value of a Restricted Share, such Participant shall have forty-five
(45) business days from the date of such grant to pay to the Company, in cash or by check,
an amount equal to the par value of a Share multiplied by the number of Shares or
Restricted Shares which have been granted to the employee by the Committee. In such
instances, if the Participant fails to make payment to the Company for such Shares or
Restricted Shares within forty-five (45) business days of the grant thereof, the Company
shall withhold, or shall cause to be withheld, the amount of such payment from compensation
otherwise due the employee from the Company or any Affiliate. Unless the Committee
determines otherwise, a Participant’s prior service with the Company or any of its
Affiliates shall be deemed sufficient consideration for such Restricted Shares and no
payment therefore (including, without limitation, for the par value of the Restricted
Shares) shall be due from the Participant. Subject to the provisions of



 









 







Section 15 hereof, the Committee, in its sole discretion, shall either issue to the
employee a certificate representing such Restricted Shares or credit the number of such
Restricted Shares to a book-entry account upon the payment due, if any, pursuant to this
paragraph.




     (c) Restriction on Shares. In no event shall a Restricted Share be sold, assigned,
transferred, pledged or otherwise disposed of or encumbered until the expiration of the
Restricted Period which relates to such Restricted Share. All or any part of any
outstanding Restricted Shares granted to any Participant may be vested in full and the
Restrictions thereon shall lapse upon the occurrence of such special circumstances or
events as determined in the sole discretion of the Committee.




     (d) Forfeiture of Restricted Shares. If Restricted Shares are forfeited pursuant to
the terms of the Plan or an Award Agreement, such Restricted Shares shall revert back and
belong to the Company. In the event that any Restricted Shares should be forfeited by the
Participant, revert back and belong to the Company, any stock certificate or certificates
representing such Restricted Shares shall be cancelled and the Restricted Shares shall be
returned to the treasury of the Company. Upon the reversion of such Restricted Shares, the
Company shall repay to the employee or (in the case of death) to the representative of the
employee’s estate, the full cash amount paid, if any, to the Company by the employee for
such Restricted Shares pursuant to Section 9(b) hereof.




     (e) Right to Vote and Receive Dividends on Restricted Shares. Each Participant shall,
during the Restricted Period, be the beneficial and record owner of such Restricted Shares
and shall have full voting rights with respect thereto. Unless the Committee determines
otherwise, during the Restricted Period, all ordinary cash dividends (as determined by the
Committee in its sole discretion) paid upon any Restricted Share shall be retained by the
Company for the account of the relevant Participant. Such dividends shall revert back to
the Company if for any reason the Restricted Share upon which such dividends were paid
reverts back to the Company. Upon the expiration of the Restricted Period, all such
dividends made on such Restricted Share and retained by the Company will be paid to the
relevant Participant.



          10. Restricted Stock Units. The Committee may grant employees such number of Restricted Stock
Units as it may determine in its sole discretion.




     (a) Terms and Conditions. The form, terms and conditions of each Restricted Stock
Unit shall be determined by the Committee and shall be set forth in an Award Agreement.
Such terms and conditions may include, without limitation, the conditions or circumstances
upon which such Restricted Stock Unit will be paid, forfeited or otherwise modified, and
the date or dates upon which any Shares, cash or other property shall be delivered to the
Participant in respect



 









 







of the Restricted Stock Units. The Committee may, in its sole discretion, establish
one or more conditions to the vesting of a Restricted Stock Unit including, without
limitation, conditions the satisfaction of which are measured by Performance Criteria. All
or any part of any outstanding Restricted Stock Unit granted to any Participant may be
vested in full or paid upon the occurrence of such special circumstances or events as
determined in the sole discretion of the Committee.




     (b) Settlement of Restricted Stock Units. The Committee, in its sole discretion, may
instruct the Company to pay on the date when Shares would otherwise be issued pursuant to a
Restricted Stock Unit, in lieu of such Shares, a cash amount equal to the number of such
Shares multiplied by the Fair Market Value of a Share on the date when Shares would
otherwise have been issued. If a Participant is entitled to receive other stock, securities
or other property as a result of an adjustment, pursuant to Section 12 hereof, the
Committee, in its sole discretion, may instruct the Company to pay, in lieu of such other
stock, securities or other property, cash equal to the fair market value thereof as
determined in good faith by the Committee. Until the delivery of such Shares, cash,
securities or other property, the rights of a Participant with respect to a Restricted
Stock Unit shall be only those of a general unsecured creditor of the Company.




     (c) Right to Receive Dividends on Restricted Stock Units. Unless the Committee
determines otherwise, during the period prior to payment of the Restricted Stock Unit, all
ordinary cash dividends (as determined by the Committee in its sole discretion) that would
have been paid upon any Share underlying a Restricted Stock Unit had such Shares been
issued shall be paid only at the time and to the extent such Restricted Stock Unit is
vested.



          11. Grant of Other Stock-Based Awards. The Committee may grant other types of equity-based or
equity-related Awards (including unrestricted Shares) in such amounts and subject to such terms and
conditions as the Committee shall determine. Such Awards may entail the transfer of actual Shares,
or payment in cash or otherwise of amounts based on the value of Shares.



          12. Certain Adjustments. (a)  In the event that any dividend or other distribution (whether
in the form of cash, Shares, other securities, or other property), recapitalization, forward or
reverse stock split, reorganization, merger, consolidation, spin-off, combination, repurchase,
share exchange, liquidation, dissolution or other similar corporate transaction or event affects
Shares such that the failure to make an adjustment to an Award would not fairly protect the rights
represented by the Award in accordance with the essential intent and principles thereof (each such
event, an “Adjustment Event”), then the Committee shall, in such manner as it may determine to be
equitable in its sole discretion, adjust any or all of the terms of an outstanding Award
(including, without limitation, the number of Shares covered by such outstanding Award, the type of
property to which the Award is subject and the exercise price of such Award).



 









 




In determining adjustments to be made under this Section 12(a), the Committee may take into
account such factors as it determines to be appropriate, including without limitation (i) the
provisions of applicable law and (ii) the potential tax or accounting consequences of an adjustment
(or not making an adjustment) and, in light of such factors or others, may make adjustments that
are not uniform or proportionate among outstanding Awards.




          (b) Fractional Shares or Securities. Any fractional shares or securities payable upon the
exercise of an Award as a result of an adjustment pursuant to this Section 12 shall, at the
election of the Committee, be payable in cash, Shares, or a combination thereof, on such bases as
the Committee may determine in its sole discretion.



          13. No Rights of a Stockholder. A Participant shall not be deemed to be the holder of, or
have any of the rights of a stockholder with respect to, any Shares subject to Options, Rights or
Restricted Stock Units unless and until the Company shall have issued and delivered Shares to the
Participant and said Participant’s name shall have been entered as a stockholder of record on the
books of the Company. Thereupon, such Participant shall have full voting, dividend and other
ownership rights with respect to such Shares. The Company will not be obligated to issue or deliver
any Shares unless and until all legal matters in connection with the issuance and delivery of
Shares have been approved by the Company’s counsel and the Company’s counsel determines that all
applicable federal, state and other laws and regulations have been complied with and all listing
requirements for relevant stock exchanges have been met.



          14. No Right to Continued Employment. Nothing in the Plan or in any Award Agreement shall
confer upon any Participant the right to continued employment by the Company or any Affiliate or
affect any right which the Company or any Affiliate may have to terminate such employment.



          15. Issuance of Shares and Consents. If the Committee shall at any time determine that any
Consent is necessary or desirable as a condition of, or in connection with, the granting of any
Award, the delivery of Shares or the delivery of any cash, securities or other property under the
Plan, or the taking of any other action, then such action shall not be taken, in whole or in part,
unless and until such Consent shall have been effected or obtained to the full satisfaction of the
Committee. Any stock certificate representing Restricted Shares shall contain an appropriate legend
referring to the Plan and the Restrictions upon such Restricted Shares. Simultaneously with
delivery of any stock certificate for Restricted Shares, the Company may cause a stop transfer
order with respect to such certificate to be placed with the transfer agent of the Shares.



          16. Withholding. If the Company or an Affiliate shall be required to withhold any amounts by
reason of a federal, state or local tax laws, rules or regulations in respect of any Award, the
Company or an Affiliate shall be entitled to deduct or withhold such amounts from any payments
(including, without limitation Shares which would otherwise be issued to the Participant pursuant
to the Award; provided that, to the



 









 







extent desired for GAAP purposes, such withholding shall not exceed the statutory minimum
amount required to be withheld) to be made to the Participant. In any event, the Participant shall
make available to the Company or Affiliate, promptly when requested by the Company or such
Affiliate, sufficient funds or Shares to meet the requirements of such withholding and the Company
or Affiliate shall be entitled to take and authorize such steps as it may deem advisable in order
to have such funds made available to the Company or Affiliate out of any funds or property due to
the Participant.



          17. Right of Offset. The Company shall have the right to offset against its obligation to
deliver Shares, cash or other property under any Award any outstanding amounts of whatever nature
that the Participant then owes to the Company or any of its Affiliates.



          18. Non-Transferability of Awards. Unless the Committee shall permit (on such terms and
conditions as it shall establish) an Award to be transferred to a member of the Participant’s
immediate family or to a trust or similar vehicle for the benefit of members of the Participant’s
immediate family (collectively, the “Permitted Transferees”), no Award shall be assignable or
transferable except by will or by the laws of descent and distribution, and 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, the Permitted Transferees.



          19. Administration and Amendment of the Plan. The Board of Directors or the Committee may
discontinue the Plan at any time and from time to time may amend or revise the terms of the Plan or
any Award Agreement, as permitted by applicable law, except that it may not (a) make any amendment
or revision in a manner unfavorable to a Participant (other than if immaterial), without the
consent of the Participant or (b) make any amendment or revision without the approval of the
stockholders of the Company if such approval is required by the rules of an exchange on which
Shares are traded. Consent of the Participant shall not be required solely pursuant to the previous
sentence in respect of any adjustment made pursuant to Section 12(a) except to the extent the terms
of an Award Agreement expressly refer to an Adjustment Event, in which case such terms shall not be
amended in a manner unfavorable to a Participant (other than if immaterial) without such
Participant’s consent.



          20. Effective Date. The Plan shall become effective upon approval by the stockholders of the
Company.



          21. Severability. If any of the provisions of this Plan or any Award Agreement is finally
held to be invalid, illegal or unenforceable (whether in whole or in part), such provision shall be
deemed modified to the extent, but only to the extent, of such invalidity, illegality or
unenforceability and the remaining provisions shall not be affected thereby; provided that, if any
of such provisions is finally held to be invalid,



 









 







illegal, or unenforceable because it exceeds the maximum scope determined to be acceptable to
permit such provision to be enforceable, such provision shall be deemed to be modified to the
minimum extent necessary to modify such scope in order to make such provision enforceable
hereunder.



          22. Plan Headings. The headings in this Plan are for the purpose of convenience only and are
not intended to define or limit the construction of the provisions hereof.



          23. Non-Uniform Treatment. The Committee’s determinations under the Plan need not be uniform
and may be made by it selectively among persons who receive, or are eligible to receive, Awards
(whether or not such persons are similarly situated). Without limiting the generality of the
foregoing, the Committee shall be entitled, among other things, to make non-uniform and selective
determinations, amendments and adjustments, and to enter into non-uniform and selective Award
Agreements, as to the persons to receive Awards under the Plan, and the terms and provisions of
Awards under the Plan.



          24. Governing Law. The Plan and any Award Agreements shall be governed by and construed in
accordance with the laws of the State of Delaware, without reference to principles of conflict of
laws.



          25. Successors and Assigns. The terms of this Plan shall be binding upon and inure to the
benefit of the Company and its successors and assigns.



          26. Duration. This Plan shall remain in effect until [l] unless sooner terminated by the
Committee or the Board of Directors. Awards theretofore granted may extend beyond that date in
accordance with the provisions of the Plan.