Exhibit 10(y)


 


2004
Omnibus Incentive Compensation Plan


 


Computer
Horizons Corp.


 


Effective May 19,
2004


 





















 


Contents


 


	
  Article 1.
  Establishment, Purpose, and Duration

  	
   

  
	
  Article 2.
  Definitions

  	
   

  
	
  Article 3. Administration

  	
   

  
	
  Article 4.
  Shares Subject to the Plan and Maximum Awards

  	
   

  
	
  Article 5.
  Eligibility and Participation

  	
   

  
	
  Article 6.
  Stock Options

  	
   

  
	
  Article 7.
  Stock Appreciation Rights

  	
   

  
	
  Article 8.
  Restricted Stock and Restricted Stock Units

  	
   

  
	
  Article 9.
  Performance Units/Performance Shares

  	
   

  
	
  Article 10.
  Cash-Based Awards and Other Stock-Based Awards

  	
   

  
	
  Article 11.
  Performance Measures

  	
   

  
	
  Article 12.
  Nonemployee Director Awards

  	
   

  
	
  Article 13.
  Dividend Equivalents

  	
   

  
	
  Article 14.
  Beneficiary Designation

  	
   

  
	
  Article 15.
  Deferrals

  	
   

  
	
  Article 16.
  Rights of Participants

  	
   

  
	
  Article 17. Change of
  Control

  	
   

  
	
  Article 18.
  Amendment, Modification, Suspension, and Termination

  	
   

  
	
  Article 19.
  Withholding

  	
   

  
	
  Article 20.
  Successors

  	
   

  
	
  Article 21. General
  Provisions

  	
   

  



 





















 


Computer
Horizons Corp.

2004 Omnibus Incentive Compensation Plan


 


Article 1. Establishment, Purpose, and Duration


 


1.1                         Establishment.
Computer Horizons Corp., a New York corporation (hereinafter referred to as the
“Company”), establishes an incentive compensation plan to be known as the 2004 Omnibus Incentive Compensation Plan (hereinafter referred
to as the “Plan”), as set forth in this document.


 


The Plan permits the grant of Cash-Based Awards,
Nonqualified Stock Options, Incentive Stock Options, Stock Appreciation Rights,
Restricted Stock, Restricted Stock Units, Performance Shares, Performance
Units, and Other Stock-Based Awards.


 


The Plan shall become effective upon shareholder
approval (the “Effective Date”) and shall remain in effect as provided in Section 1.3
hereof.


 


1.2                         Purpose
of the Plan. The purpose of the Plan is to promote the interests of the Company
and its shareholders by strengthening the Company’s ability to attract,
motivate, and retain Employees and Directors of
the Company upon whose judgment, initiative, and efforts the financial success
and growth of the business of the Company largely depend, and to provide an
additional incentive for such individuals through stock ownership and other
rights that promote and recognize the financial success and growth of the
Company and create value for shareholders.


 


1.3                         Duration
of the Plan. Unless sooner terminated as provided herein, the Plan shall
terminate ten years from the Effective Date. After the Plan is terminated, no
Awards may be granted but Awards previously granted shall remain outstanding in
accordance with their applicable terms and conditions and the Plan’s terms and
conditions. Notwithstanding the foregoing, no Incentive Stock Options may be
granted more than ten years after the earlier of (a) adoption of the Plan
by the Board, and (b) the Effective Date.


 


Article 2.
Definitions


 


Whenever used in the Plan, the following terms shall
have the meanings set forth below, and when the meaning is intended, the
initial letter of the word shall be capitalized.


 


2.1                         “Affiliate”
shall have the meaning ascribed to such term in Rule 12b-2 of the
General Rules and Regulations of the Exchange Act.


 


2.2                         “Annual
Award Limit” or “Annual Award Limits” have the meaning set forth in Section 4.3.


 


2.3                         “Award”
means, individually or collectively, a grant under this Plan of Cash-Based
Awards, Nonqualified Stock Options, Incentive Stock Options, SARs, Restricted
Stock, Restricted Stock Units, Performance Shares, Performance Units, or Other
Stock-Based Awards, in each case subject to the terms of this Plan.


 


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2.4                         “Award
Agreement” means either (i) a written agreement entered into by the
Company and a Participant setting forth the terms and provisions applicable to
an Award granted under this Plan, or (ii) a written statement issued by
the Company to a Participant describing the terms and provisions of such Award.


 


2.5                         “Beneficial
Owner” or “Beneficial Ownership” shall have
the meaning ascribed to such term in Rule 13d-3 of the General Rules and
Regulations under the Exchange Act.


 


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


 


2.7                         “Cash-Based
Award” means an Award granted to a Participant as described in Article 10.


 


2.8                         “Change
of Control” means any of the following events:


 


(a)                            The
acquisition by any Person of Beneficial Ownership of twenty percent (20%) or
more of the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of Directors (the “Outstanding
Company Voting Securities”); provided, however, that for purposes of this Section 2.8,
the following acquisitions shall not constitute a Change of Control: (i) any
acquisition by a Person who on the Effective Date is the Beneficial Owner of
twenty percent (20%) or more of the Outstanding Company Voting Securities, (ii) any
acquisition directly from the Company, including without limitation, a public
offering of securities, (iii) any acquisition by the Company, (iv) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its subsidiaries, or (v) any
acquisition by any corporation pursuant to a transaction which complies with
subparagraphs (i), (ii), and (iii) of Section 2.8(c);


 


(b)                           Individuals
who constitute the Board as of the Effective Date hereof (the “Incumbent Board”)
cease for any reason to constitute at least a majority of the Board, provided
that any individual becoming a Director subsequent to the Effective Date whose
election, or nomination for election by the Company’s shareholders, was
approved by a vote of at least a majority of the Directors then comprising the
Incumbent Board shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election or removal of the Directors of the
Company or other actual or threatened solicitation of proxies of consents by or
on behalf of a Person other than the Board;


 


(c)                            Consummation
of a reorganization, merger, or consolidation to which the Company is a party
or a sale or other disposition of all or substantially all of the assets of the
Company (a “Business Combination”), in each case unless, following such
Business Combination: (i) all or substantially all of the individuals and
entities who were the Beneficial Owners of Outstanding Company Voting
Securities immediately prior to such Business Combination beneficially own,


 


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directly or indirectly, more than fifty percent (50%)
of the combined voting power of the outstanding voting securities entitled to
vote generally in the election of Directors of the corporation resulting from
the Business Combination (including, without limitation, a corporation which as
a result of such transaction owns the Company or all or substantially all of
the Company’s assets either directly or through one or more subsidiaries) (the “Successor
Entity”) in substantially the same proportions as their ownership immediately
prior to such Business Combination of the Outstanding Company Voting
Securities; and (ii) no Person (excluding any Successor Entity or any
employee benefit plan, or related trust, of the Company or such Successor
Entity) beneficially owns, directly or indirectly, twenty percent (20%) or more
of the combined voting power of the then outstanding voting securities of the
Successor Entity, except to the extent that such ownership existed prior to the
Business Combination; and (iii) at least a majority of the members of the
board of directors of the Successor Entity were members of the Incumbent Board
(including persons deemed to be members of the Incumbent Board by reason of the
proviso to paragraph (b) of this Section 2.8) at the time of the
execution of the initial agreement or of the action of the Board providing for
such Business Combination; or


 


(d)                           Approval
by the shareholders of the Company of a complete liquidation or dissolution of
the Company.


 


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


 


2.10                  “Committee”
means the compensation committee of the Board, or any other committee
designated by the Board to administer this Plan. The members of the Committee
shall be appointed from time to time by and shall serve at the discretion of
the Board.


 


2.11                  “Company”
means Computer Horizons Corp., a New York corporation, and any successor
thereto as provided in Article 21 herein.


 


2.12                  “Covered
Employee” means a Participant who is a “covered employee,” as defined in
Code Section 162(m) and the regulations promulgated under Code Section 162(m),
or any successor statute.


 


2.13                  “Director”
means any individual who is a member of the Board of Directors of the
Company.


 


2.14                  “Effective
Date” has the meaning set forth in Section 1.1.


 


2.15                  “Employee”
means any employee of the Company, its Affiliates, and/or Subsidiaries.


 


2.16                  “Exchange
Act” means the Securities Exchange Act of 1934, as amended from time to
time, or any successor act thereto.


 


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2.17                  “Fair
Market Value” or “FMV” means a
price that is based on the opening, closing, actual, high, low, or average
selling prices of a Share quoted through the National Association of Securities
Dealers’ Automatic Quotation (“NASDAQ”) National Market System or other
established stock exchange (or exchanges) on the applicable date, the preceding
trading days the next succeeding trading day, or an average of trading days, as
determined by the Committee in its discretion. 
Unless the Committee determines otherwise, if the Shares are traded over
the counter at the time a determination of its Fair Market Value is required to
be made hereunder, its Fair Market Value shall be deemed to be equal to the
average between the reported high and low or closing bid and asked prices of a
Share on the most recent date on which Shares were publicly traded. In the
event Shares are not publicly traded at the time a determination of their value
is required to be made hereunder, the determination of their Fair Market Value
shall be made by the Committee in such manner as it deems appropriate. Such
definition(s) of FMV shall be specified in each Award Agreement and may differ
depending on whether FMV is in reference to the grant, exercise, vesting,
settlement, or payout of an Award.


 


2.18                  “Full
Value Award” means an Award other than in the form of an ISO, NQSO, or SAR,
and which is settled by the issuance of Shares.


 


2.19                  “Freestanding
SAR” means an SAR that is granted independently of any Options, as described
in Article 7.


 


2.20                  “Grant
Price” means the price established at the time of grant of a SAR pursuant
to Article 7, used to determine whether there is any payment due upon
exercise of the SAR.


 


2.21                  “Incentive
Stock Option” or “ISO” means an
Option to purchase Shares granted under Article 6 to an Employee and that
is designated as an Incentive Stock Option and that is intended to meet
the requirements of Code Section 422, or any successor provision.


 


2.22                  “Insider”
shall mean an individual who is, on the relevant date, an officer, Director, or
more than ten percent (10%) Beneficial Owner of any class of the Company’s
equity securities that is registered pursuant to Section 12 of the
Exchange Act, as determined by the Board in accordance with Section 16 of
the Exchange Act.


 


2.23                  “Nonemployee
Director” means a Director who is not an Employee.


 


2.24                  “Nonemployee
Director Award” means any NQSO, SAR, or Full Value Award granted, whether
singly, in combination, or in tandem, to a Participant who is a Nonemployee Director
pursuant to such applicable terms, conditions, and limitations as the Board or
Committee may establish in accordance with this Plan.


 


2.25                  “Nonqualified
Stock Option” or “NQSO” means
an Option that is not intended to meet the requirements of Code Section 422,
or that otherwise does not meet such requirements.


 


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2.26                  “Option”
means an Incentive Stock Option or a Nonqualified Stock Option, as
described in Article 6.


 


2.27                  “Option
Price” means the price at which a Share may be purchased by a Participant
pursuant to an Option.


 


2.28                  “Other
Stock-Based Award” means an equity-based or equity-related Award not
otherwise described by the terms of this Plan, granted pursuant to Article 10.


 


2.29                  “Participant”
means any eligible person as set forth in Article 5 to whom an Award is
granted.


 


2.30                  “Performance-Based
Compensation” means compensation under an Award that satisfies the
requirements of Section 162(m) of the Code for deductibility of
remuneration paid to Covered Employees.


 


2.31                  “Performance
Measures” means measures as described in Article 11 on which the
performance goals are based and which are approved by the Company’s
shareholders pursuant to this Plan in order to qualify Awards as
Performance-Based Compensation.


 


2.32                  “Performance
Period” means the period of time during which the performance goals must be
met in order to determine the degree of payout and/or vesting with respect to
an Award.


 


2.33                  “Performance
Share” means an Award granted to a Participant, as described in Article 9.


 


2.34                  “Performance
Unit” means an Award granted to a Participant, as described in Article 9.


 


2.35                  “Period
of Restriction” means the period when Restricted Stock or Restricted Stock
Units are subject to a substantial risk of forfeiture (based on the passage of
time, the achievement of performance goals, or upon the occurrence of other
events as determined by the Committee, in its discretion), as provided in Article 8.


 


2.36                  “Person”
shall have the meaning ascribed to such term in Section 3(a)(9) of
the Exchange Act and used in Sections 13(d) and 14(d) thereof,
including a “group” as defined in Section 13(d) thereof.


 


2.37                  “Plan”
means the Computer Horizons Corp. 2004 Omnibus Incentive Compensation Plan.


 


2.38                  “Plan
Year” means the calendar year.


 


2.39                  “Restricted
Stock” means an Award granted to a Participant pursuant to Article 8.


 


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2.40                  “Restricted
Stock Unit” means an Award granted to a Participant pursuant to Article 8,
except no Shares are actually awarded to the Participant on the date of grant.


 


2.41                  “Share”
means a share of common stock of the Company, $.10 par value per share.


 


2.42                  “Stock
Appreciation Right” or “SAR” means an
Award, designated as a SAR, pursuant to the terms of Article 7 herein.


 


2.43                  “Subsidiary”
means any corporation or other entity, whether domestic or foreign, in which
the Company has or obtains, directly or indirectly, a proprietary interest of
more than fifty percent (50%) by reason of stock ownership or otherwise.


 


2.44                  “Tandem
SAR” means an SAR that is granted in connection with a related Option
pursuant to Article 7 herein, the exercise of which shall require
forfeiture of the right to purchase a Share under the related Option (and when
a Share is purchased under the Option, the Tandem SAR shall similarly be
canceled).


 


Article 3.
Administration


 


3.1                         General.
The Committee shall be responsible for administering the Plan, subject to this Article 3
and the other provisions of the Plan. The Committee may employ attorneys,
consultants, accountants, agents, and other persons, any of whom may be an
Employee, and the Committee, the Company, and its officers and Directors shall
be entitled to rely upon the advice, opinions, or valuations of any such persons.
All actions taken and all interpretations and determinations made by the
Committee shall be final and binding upon the Participants, the Company, and
all other interested persons.


 


3.2                         Authority
of the Committee. The Committee shall have full and exclusive discretionary
power to interpret the terms and the intent of the Plan and any Award Agreement
or other agreement or document ancillary to or in connection with the Plan, to
determine eligibility for Awards and to adopt such rules, regulations, forms,
instruments, and guidelines for administering the Plan as the Committee may
deem necessary or proper. Such authority shall include, but not be limited to,
selecting Award recipients, establishing all Award terms and conditions,
including the terms and conditions set forth in Award Agreements, and, subject
to Article 18, adopting modifications and amendments to the Plan or any
Award Agreement, including without limitation, any that are necessary to comply
with the laws of the countries and other jurisdictions in which the Company,
its Affiliates, and/or its Subsidiaries operate.


 


3.3                         Delegation.
The Committee may delegate to one or more of its members or to one or more
officers of the Company, and/or its Subsidiaries and Affiliates or to one or
more agents or advisors such administrative duties or powers as it may deem
advisable, and the Committee or any person to whom it has delegated duties or
powers as aforesaid may employ one or more persons to render advice with
respect to any responsibility the Committee or such person may have under the
Plan. The Committee may, by resolution, authorize one or more officers of the
Company to do one or both of the following on the same basis as can the
Committee: (a) designate Employees to be recipients of Awards; and (b) determine
the size of any such Awards; provided, however, (i) the Committee shall
not delegate such responsibilities to any such officer for Awards granted to an
Employee that is considered an Insider; (ii) the resolution providing such
authorization sets forth the


 


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total number of Awards such officer(s) may grant; and (iii) the
officer(s) shall report periodically to the Committee regarding the nature and
scope of the Awards granted pursuant to the authority delegated.


 


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Article 4. Shares Subject to the Plan and Maximum Awards


 


4.1                         Number
of Shares Available for Awards.


 


(a)         Subject to
adjustment as provided in Section 4.4 herein, the maximum number of Shares
available for issuance to Participants under the Plan (the “Share Authorization”)
shall be three million five hundred thousand (3,500,000).


 


(b)         Subject to
the limit set forth in Section 4.1(a) on the number of Shares that
may be issued in the aggregate under the Plan, the maximum number of Shares
that may be issued pursuant to ISOs and NQSOs shall be:


 


(i)                                     Three
million five hundred thousand (3,500,000) Shares that
may be issued pursuant to Awards in the form of ISOs; and


 


(ii)                                  Three
million five hundred thousand (3,500,000) Shares that may be issued pursuant to
Awards in the form of NQSOs.


 


4.2                         Share
Usage. Shares covered by an Award shall only be counted as used to the
extent they are actually issued. Any Shares related to Awards which terminate
by expiration, forfeiture, cancellation, or otherwise without the issuance of
such Shares, are settled in cash in lieu of Shares, or are exchanged with the
Committee’s permission, prior to the issuance of Shares, for Awards not
involving Shares, shall be available again for grant under the Plan. Moreover,
if the Option Price of any Option granted under the Plan or the tax withholding
requirements with respect to any Award granted under the Plan are satisfied by
tendering Shares to the Company (by either actual delivery or by attestation),
or if an SAR is exercised, only the number of Shares issued, net of the Shares
tendered, if any, will be deemed delivered for purposes of determining the
maximum number of Shares available for delivery under the Plan. The maximum
number of Shares available for issuance under the Plan shall not be reduced to
reflect any dividends or dividend equivalents that are reinvested into
additional Shares or credited as additional Restricted Stock, Restricted Stock
Units, Performance Shares, or Stock-Based Awards. The Shares available for
issuance under the Plan may be authorized and unissued Shares or treasury
Shares.


 


4.3                         Annual
Award Limits. Unless and until the Committee determines that an Award to a
Covered Employee shall not be designed to qualify as Performance-Based
Compensation, the following limits (each an “Annual Award Limit,” and,
collectively, “Annual Award Limits”) shall apply to grants of such Awards under
the Plan:


 


(a)         Options: The maximum aggregate number of Shares subject to
Options granted in any one Plan Year to any one Participant shall be one
hundred thousand (100,000) plus the amount of the Participant’s unused
applicable Annual Award Limit for Options as of the close of the previous Plan
Year.


 


(b)         SARs: The maximum number of Shares subject to Stock
Appreciation Rights granted in any one Plan Year to any one Participant shall
be one hundred thousand (100,000) plus the amount of the Participant’s unused
applicable Annual Award Limit for SARs as of the close of the previous Plan
Year.


 


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(c)         Restricted Stock or Restricted Stock Units: The maximum
aggregate grant with respect to Awards of Restricted Stock or Restricted Stock
Units in any one Plan Year to any one Participant shall be one hundred thousand
(100,000) plus the amount of the Participant’s unused applicable Annual Award
Limit for Restricted Stock or Restricted Stock Units as of the close of the
previous Plan Year.


 


(d)         Performance Units or Performance Shares: The maximum
aggregate Award of Performance Units or Performance Shares that a Participant
may receive in any one Plan Year shall be one hundred thousand (100,000)
Shares, or equal to the value of one hundred thousand (100,000) Shares
determined as of the date of vesting or payout, as applicable plus the amount
of the Participant’s unused applicable Annual Award Limit for Performance Units
or Performance Shares as of the close of the previous Plan Year.


 


(e)         Cash-Based Awards: The maximum aggregate amount awarded or
credited with respect to Cash-Based Awards to any one Participant in any one
Plan Year may not exceed the value of five hundred thousand dollars ($500,000)
determined as of the date of vesting or payout, as applicable plus the amount
of the Participant’s unused applicable Annual Award Limit for Cash-Based Awards
as of the close of the previous Plan Year.


 


(f)          Other Stock-Based Awards. The maximum aggregate grant with
respect to other Stock-Based Awards pursuant to Section 10.2 in any one
Plan Year to any one Participant shall be one hundred thousand (100,000) plus
the amount of the Participant’s unused applicable Annual Award Limit for Other
Stock-Based Awards as of the close of the previous Plan Year.


 


4.4                         Adjustments
in Authorized Shares. In the event of any corporate event or transaction
(including, but not limited to, a change in the Shares of the Company or the
capitalization of the Company) such as a merger, consolidation, reorganization,
recapitalization, separation, stock dividend, stock split, reverse stock split,
split up, spin-off, or other distribution of stock or property of the Company,
combination of Shares, exchange of Shares, dividend in kind, or other like
change in capital structure or distribution (other than normal cash dividends)
to shareholders of the Company, or any similar corporate event or transaction,
the Committee, in its sole discretion, in order to prevent dilution or
enlargement of Participants’ rights under the Plan, shall substitute or adjust,
as applicable, the number and kind of Shares that may be issued under the Plan
or under particular forms of Awards, the number and kind of Shares subject to
outstanding Awards, the Option Price or Grant Price applicable to outstanding
Awards, the Annual Award Limits, and other value determinations applicable to
outstanding Awards.


 


The Committee, in its sole discretion, may also make
appropriate adjustments in the terms of any Awards under the Plan to reflect or
related to such changes or distributions and to modify any other terms of outstanding
Awards, including modifications of performance goals and changes in the length
of Performance Periods. The determination of the Committee as to the foregoing
adjustments, if any, shall be conclusive and binding on Participants under the
Plan.


 


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Subject to the provisions of Article 18, without
affecting the number of Shares reserved or available hereunder, the Committee
may authorize the issuance or assumption of benefits under this Plan in connection
with any merger, consolidation, acquisition of property or stock, or
reorganization upon such terms and conditions as it may deem appropriate,
subject to compliance with the ISO rules under Section 422 of the
Code, where applicable.


 


Article 5.
Eligibility and Participation


 


5.1                         Eligibility.
Individuals eligible to participate in this Plan include all Employees and
Directors.


 


5.2                         Actual
Participation. Subject to the provisions of the Plan, the Committee may,
from time to time, select from all eligible individuals, those to whom Awards
shall be granted and shall determine, in its sole discretion, the nature of,
any and all terms permissible by law, and the amount of each Award.


 


Article 6.
Stock Options


 


6.1                         Grant
of Options. Subject to the terms and provisions of the Plan, Options may be
granted to Participants in such number, and upon such terms, and at any
time and from time to time as shall be determined by the Committee, in its sole
discretion; provided that ISOs may be granted only to eligible Employees of the
Company or of any parent or subsidiary corporation (as permitted by Section 422
of the Code and the regulations thereunder).


 


6.2                         Award
Agreement. Each Option grant shall be evidenced by an Award Agreement that
shall specify the Option Price, the maximum duration of the Option, the number
of Shares to which the Option pertains, the conditions upon which an Option
shall become vested and exercisable, and such other provisions as the Committee
shall determine which are not inconsistent with the terms of the Plan. The
Award Agreement also shall specify whether the Option is intended to be an ISO
or a NQSO.


 


6.3                         Option
Price. The Option Price for each grant of an Option under this Plan shall
be as determined by the Committee and shall be specified in the Award
Agreement. The Option Price shall be: (i) based  on one hundred percent (100%) of the FMV of
the Shares on the date of grant, (ii) set at a premium to the FMV of the
Shares on the date of grant, or (iii) indexed to the FMV of the Shares on
the date of grant, with the index determined by the Committee, in its
discretion; provided, however, the Option Price on the date of grant must be at
least equal to one hundred percent (100%) of the FMV of the Shares on the date
of grant.


 


6.4                         Duration
of Options. Each Option granted to a Participant shall expire at such time
as the Committee shall determine at the time of grant; provided, however, no
Option shall be exercisable later than the fifth (5th) anniversary
date of its grant. Notwithstanding the foregoing, for Options granted to
Participants outside the United States, the Committee has the authority to
grant Options that have a term greater than five (5) years.


 


6.5                         Exercise
of Options. Options granted under this Article 6 shall be
exercisable at such times and be subject to such restrictions and conditions as
the Committee shall in each instance approve, which terms and restrictions need
not be the same for each grant or for each Participant.


 


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6.6                         Payment.
Options granted under this Article 6 shall be exercised by the delivery of
a notice of exercise to the Company or an agent designated by the Company in a
form specified or accepted by the Committee, or by complying with any
alternative procedures which may be authorized by the Committee, setting forth
the number of Shares with respect to which the Option is to be exercised,
accompanied by full payment for the Shares.


 


A condition of the issuance of the Shares as to which
an Option shall be exercised shall be the payment of the Option Price. The
Option Price of any Option shall be payable to the Company in full either: (a) in
cash or its equivalent; (b) by tendering (either by actual delivery or
attestation) previously acquired Shares having an aggregate Fair Market Value
at the time of exercise equal to the Option Price (provided that except as
otherwise determined by the Committee, the Shares that are tendered must have
been held by the Participant for at least six (6) months prior to their
tender to satisfy the Option Price or have been purchased on the open market); (c) by
a combination of (a) and (b); or (d) any other method approved or
accepted by the Committee in its sole discretion., including, without
limitation, if the Committee so determines, a cashless (broker-assisted)
exercise.


 


Subject to any governing rules or regulations, as
soon as practicable after receipt of written notification of exercise and full
payment (including satisfaction of any applicable tax withholding), the Company
shall deliver to the Participant evidence of book entry Shares, or upon the
Participant’s request, Share certificates in an appropriate amount based upon
the number of Shares purchased under the Option(s).


 


Unless otherwise determined by the Committee, all
payments under all of the methods indicated above shall be paid in United
States dollars.


 


6.7                         Restrictions
on Share Transferability. The Committee may impose such restrictions on any
Shares acquired pursuant to the exercise of an Option granted under this Article 6
as it may deem advisable, including, without limitation, minimum holding period
requirements, restrictions under applicable federal securities laws, under the
requirements of any stock exchange or market upon which such Shares are then
listed and/or traded, or under any blue sky or state securities laws
applicable to such Shares.


 


6.8                         Termination
of Employment. Each
Participant’s Award Agreement shall set forth the extent to which the
Participant shall have the right to exercise the Option following termination
of the Participant’s employment or provision of services to the Company, its
Affiliates, its Subsidiaries, as the case may be. Such provisions shall be
determined in the sole discretion of the Committee, shall be included in the
Award Agreement entered into with each Participant, need not be uniform among
all Options issued pursuant to this Article 6, and may reflect
distinctions based on the reasons for termination.


 


6.9                         Transferability
of Options.


 


(a)                            Incentive Stock Options. No ISO granted under the Plan may
be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and distribution.
Further, all ISOs granted to a Participant under this Article 6 shall be
exercisable during his or her lifetime only by such Participant.


 


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(b)                           Nonqualified Stock Options. Except as otherwise provided in
a Participant’s Award Agreement or otherwise determined at any time by the
Committee, no NQSO granted under this Article 6 may be sold, transferred,
pledged, assigned, or otherwise alienated or hypothecated, other than by will
or by the laws of descent and distribution; provided that the Board or
Committee may permit further transferability, on a general or a specific basis,
and may impose conditions and limitations on any permitted transferability.
Further, except as otherwise provided in a Participant’s Award Agreement or
otherwise determined at any time by the Committee, or unless the Board or
Committee decides to permit further transferability, all NQSOs granted to a
Participant under this Article 6 shall be exercisable during his or her
lifetime only by such Participant. With respect to those NQSOs, if any, that
are permitted to be transferred to another person, references in the Plan to
exercise or payment of the Option Price by the Participant shall be deemed to
include, as determined by the Committee, the Participant’s permitted
transferee.


 


6.10                  Notification of Disqualifying Disposition. If any Participant shall make any disposition
of Shares issued pursuant to the exercise of an ISO under the circumstances
described in Section 421(b) of the Code (relating to certain
disqualifying dispositions), such Participant shall notify the Company of such
disposition within ten (10) days thereof.


 


6.11                  Substituting SARs. Only in the event the Company is not
accounting for equity compensation under APB Opinion 25, the Committee shall
have the ability to substitute, without receiving Participant permission, SARs
paid only in Stock (or SARs paid in Stock or cash at the Committee’s
discretion) for outstanding Options; provided, the terms of the substituted
Stock SARs are the same as the terms for the Options and the aggregate
difference between the Fair Market Value of the underlying Shares and the Grant
Price of the SARs is equivalent to the aggregate difference between the Fair
Market Value of the underlying Shares and the Option Price of the Options. If,
in the opinion of the Company’s auditors, this provision creates adverse
accounting consequences for the Company, it shall be considered null and void.


 


Article 7.
Stock Appreciation Rights


 


7.1                         Grant
of SARs. Subject to the terms and conditions of the Plan, SARs may be
granted to Participants at any time and from time to time as shall be
determined by the Committee. The Committee may grant Freestanding SARs, Tandem
SARs, or any combination of these forms of SARs.


 


Subject to the terms and conditions of the Plan, the
Committee shall have complete discretion in determining the number of SARs
granted to each Participant and, consistent with the provisions of the Plan, in
determining the terms and conditions pertaining to such SARs.


 


The Grant Price for each grant of a Freestanding SAR
shall be determined by the Committee and shall be specified in the Award
Agreement. The Grant Price shall be: (i) based on one hundred percent
(100%) of the FMV of the Shares on the date of grant, (ii) set at a
premium to the FMV of the Shares on the date of grant, or (iii) indexed to
the FMV of the Shares on the date of grant, with the index determined by the
Committee, in its discretion; provided, however, the Grant Price on the date of
grant must be at least equal to one hundred percent (100%) of the FMV of the
Shares on the


 


12





















 


date of grant. The Grant
Price of Tandem SARs shall be equal to the Option Price of the related Option.


 


7.2                         SAR
Agreement. Each SAR Award shall be evidenced by an Award Agreement that
shall specify the Grant Price, the term of the SAR, and such other provisions
as the Committee shall determine.


 


7.3                         Term
of SAR. The term of an SAR granted under the Plan shall be determined by
the Committee, in its sole discretion, and except as determined otherwise by
the Committee and specified in the SAR Award Agreement, no SAR shall be
exercisable later than the fifth (5th) anniversary date of its
grant. Notwithstanding the foregoing, for SARs granted to Participants outside
the United States, the Committee has the authority to grant SARs that have a
term greater than five (5) years.


 


7.4                         Exercise
of Freestanding SARs. Freestanding SARs may be exercised upon whatever
terms and conditions the Committee, in its sole discretion, imposes.


 


7.5.                      Exercise
of Tandem SARs. Tandem SARs may be exercised for all or part of the Shares
subject to the related Option upon the surrender of the right to exercise the
equivalent portion of the related Option. A Tandem SAR may be exercised only
with respect to the Shares for which its related Option is then exercisable.


 


Notwithstanding any other provision of this Plan to
the contrary, with respect to a Tandem SAR granted in connection with an ISO: (a) the
Tandem SAR will expire no later than the expiration of the underlying ISO; (b) the
value of the payout with respect to the Tandem SAR may be for no more
than one hundred percent (100%) of the excess of the Fair Market Value of
the Shares subject to the underlying ISO at the time the Tandem SAR is
exercised over the Option Price of the underlying ISO; and (c) the Tandem
SAR may be exercised only when the Fair Market Value of the Shares subject to
the ISO exceeds the Option Price of the ISO.


 


7.6                         Payment
of SAR Amount. Upon the exercise of an SAR, a Participant shall be entitled
to receive payment from the Company in an amount determined by multiplying:


 


(a)                            The
excess of the Fair Market Value of a Share on the date of exercise over the
Grant Price; by


 


(b)                           The
number of Shares with respect to which the SAR is exercised.


 


At the discretion of the Committee, the payment upon
SAR exercise may be in cash, Shares, or any combination thereof, or in any
other manner approved by the Committee in its sole discretion. The Committee’s
determination regarding the form of SAR payout shall be set forth in the Award
Agreement pertaining to the grant of the SAR.


 


7.7                         Termination
of Employment. Each Award Agreement shall set forth the extent to which the
Participant shall have the right to exercise the SAR following termination of
the Participant’s employment with or provision of services to the Company, its
Affiliates, and/or its Subsidiaries, as the case may be. Such provisions shall
be determined in the sole discretion of the Committee, shall


 


13





















 


be included in the Award Agreement entered into with
Participants, need not be uniform among all SARs issued pursuant to the Plan,
and may reflect distinctions based on the reasons for termination.


 


7.8                         Nontransferability
of SARs. Except as otherwise provided in a Participant’s Award Agreement or
otherwise determined at any time by the Committee, no SAR granted under
the Plan may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, other than by will or by the laws of descent and
distribution. Further, except as otherwise provided in a Participant’s Award
Agreement or otherwise determined at any time by the Committee, all SARs
granted to a Participant under the Plan shall be exercisable during his or her
lifetime only by such Participant. With respect to those SARs, if any, that are
permitted to be transferred to another person, references in the Plan to
exercise of the SAR by the Participant or payment of any amount to the
Participant shall be deemed to include, as determined by the Committee, the
Participant’s permitted transferee.


 


7.9                         Other
Restrictions. The Committee shall impose such other conditions and/or
restrictions on any Shares received upon exercise of a SAR granted pursuant to
the Plan as it may deem advisable or desirable. These restrictions may include,
but shall not be limited to, a requirement that the Participant hold the Shares
received upon exercise of a SAR for a specified period of time.


 


Article 8.
Restricted Stock and Restricted Stock Units


 


8.1                         Grant of Restricted Stock or Restricted Stock
Units. Subject to the terms and
provisions of the Plan, the Committee, at any time and from time to time, may
grant Shares of Restricted Stock and/or Restricted Stock Units to Participants
in such amounts as the Committee shall determine. Restricted Stock Units shall
be similar to Restricted Stock except that no Shares are actually awarded to
the Participant on the date of grant.


 


8.2                         Restricted
Stock or Restricted Stock Unit Agreement. Each Restricted Stock and/or
Restricted Stock Unit grant shall be evidenced by an Award Agreement that shall
specify the Period(s) of Restriction, the number of Shares of Restricted Stock
or the number of Restricted Stock Units granted, and such other provisions as
the Committee shall determine.


 


8.3                         Transferability.
Except as provided in this Plan or an Award Agreement, the Shares of Restricted
Stock and/or Restricted Stock Units granted herein may not be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated until
the end of the applicable Period of Restriction established by the Committee
and specified in the Award Agreement (and in the case of Restricted Stock Units
until the date of delivery or other payment), or upon earlier satisfaction of
any other conditions, as specified by the Committee, in its sole discretion,
and set forth in the Award Agreement or otherwise at any time by the Committee.
All rights with respect to the Restricted Stock and/or Restricted Stock Units
granted to a Participant under the Plan shall be available during his or her
lifetime only to such Participant, except as otherwise provided in an Award
Agreement or at any time by the Committee.


 


8.4                         Other Restrictions. The Committee shall impose such other
conditions and/or restrictions on any Shares of Restricted Stock or Restricted
Stock Units granted pursuant to the Plan as it may deem advisable including,
without limitation, a requirement that Participants pay a stipulated purchase
price for each Share of Restricted Stock or each Restricted Stock Unit,
restrictions based upon the achievement of specific performance goals,
time-based restrictions on


 


14





















 


vesting following the attainment of the performance
goals, time-based restrictions, and/or restrictions under applicable laws or
under the requirements of any stock exchange or market upon which such Shares
are listed or traded, or holding requirements or sale restrictions placed on
the Shares by the Company upon vesting of such Restricted Stock or Restricted
Stock Units.


 


To the extent deemed appropriate by the Committee, the
Company may retain the certificates representing Shares of Restricted Stock in
the Company’s possession until such time as all conditions and/or restrictions
applicable to such Shares have been satisfied or lapse.


 


Except as otherwise provided in this Article 8,
Shares of Restricted Stock covered by each Restricted Stock Award shall become
freely transferable by the Participant after all conditions and restrictions
applicable to such Shares have been satisfied or lapse (including satisfaction
of any applicable tax withholding obligations), and Restricted Stock Units
shall be paid in cash, Shares, or a combination of cash and Shares as the
Committee, in its sole discretion shall determine.


 


8.5                         Certificate Legend. In addition to any legends placed on
certificates pursuant to Section 8.4, each certificate representing Shares
of Restricted Stock granted pursuant to the Plan may bear a legend such as the
following or as otherwise determined by the Committee in its sole discretion:


 


The
sale or transfer of Shares of stock represented by this certificate, whether
voluntary, involuntary, or by operation of law, is subject to certain
restrictions on transfer as set forth in the Computer Horizons Corp. 2004 Omnibus Incentive
Compensation Plan, and in the associated Award Agreement. A copy of the Plan
and such Award Agreement may be obtained from Computer Horizons Corp.


 


8.6                         Voting Rights. Unless otherwise determined by the Committee and set forth in a
Participant’s Award Agreement, to the extent permitted or required by law, as
determined by the Committee, Participants holding Shares of Restricted Stock
granted hereunder may be granted the right to exercise full voting rights with
respect to those Shares during the Period of Restriction. A Participant shall
have no voting rights with respect to any Restricted Stock Units granted
hereunder.


 


8.7                         Termination
of Employment. Each Award Agreement shall set forth the extent to which the
Participant shall have the right to retain Restricted Stock and/or Restricted
Stock Units following termination of the Participant’s employment with or
provision of services to the Company, its Affiliates, and/or its Subsidiaries,
as the case may be. Such provisions shall be determined in the sole discretion
of the Committee, shall be included in the Award Agreement entered into with
each Participant, need not be uniform among all Shares of Restricted Stock or
Restricted Stock Units issued pursuant to the Plan, and may reflect
distinctions based on the reasons for termination.


 


8.8                         Section 83(b) Election.
The Committee may provide in an Award Agreement that the Award of Restricted
Stock is conditioned upon the Participant making or refraining from making an
election with respect to the Award under Section 83(b) of the Code.
If a Participant makes an election pursuant to Section 83(b) of the
Code concerning a Restricted Stock Award, the Participant shall be required to
file promptly a copy of such election with the Company.


 


15





















 


Article 9.
Performance Units/Performance Shares


 


9.1                         Grant
of Performance Units/Performance Shares. Subject to the terms and
provisions of the Plan, the Committee, at any time and from time to time,
may grant Performance Units and/or Performance Shares to Participants in such
amounts and upon such terms as the Committee shall determine.


 


9.2                         Value
of Performance Units/Performance Shares. Each Performance Unit shall
have an initial value that is established by the Committee at the time of
grant. Each Performance Share shall have an initial value equal to the Fair
Market Value of a Share on the date of grant. The Committee shall set
performance goals in its discretion which, depending on the extent to which
they are met, will determine the value and/or number of Performance
Units/Performance Shares that will be paid out to the Participant.


 


9.3                         Earning
of Performance Units/Performance Shares. Subject to the terms of
this Plan, after the applicable Performance Period has ended, the holder
of Performance Units/Performance Shares shall be entitled to receive payout on
the value and number of Performance Units/Performance Shares earned by the
Participant over the Performance Period, to be determined as a function of the
extent to which the corresponding performance goals have been achieved.


 


9.4                         Form and
Timing of Payment of Performance Units/Performance Shares. Payment of
earned Performance Units/Performance Shares shall be as determined by the
Committee and as evidenced in the Award Agreement. Subject
to the terms of the Plan, the Committee, in its sole discretion, may
pay earned Performance Units/Performance Shares in the form of cash or in
Shares (or in a combination thereof) equal to the value of the earned
Performance Units/Performance Shares at the close of the applicable Performance
Period, or as soon as practicable after the end of the Performance Period. Any
Shares may be granted subject to any restrictions deemed appropriate by the
Committee. The determination of the Committee with respect to the form of
payout of such Awards shall be set forth in the Award Agreement pertaining to
the grant of the Award.


 


9.5                         Termination
of Employment. Each Award Agreement shall set forth the extent to which the
Participant shall have the right to retain Performance Units and/or Performance
Shares following termination of the Participant’s employment with or provision
of services to the Company, its Affiliates, and/or its Subsidiaries, as the
case may be. Such provisions shall be determined in the sole discretion of the
Committee, shall be included in the Award Agreement entered into with each
Participant, need not be uniform among all Awards of Performance Units or
Performance Shares issued pursuant to the Plan, and may reflect distinctions
based on the reasons for termination.


 


9.6                         Nontransferability.
Except as otherwise provided in a Participant’s Award Agreement or otherwise at
any time by the Committee, Performance Units/Performance Shares may not be
sold, transferred, pledged, assigned, or otherwise alienated or hypothecated,
other than by will or by the laws of descent and distribution. Further, except
as otherwise provided in a Participant’s Award Agreement or otherwise at any
time by the Committee, a Participant’s rights under the Plan shall be exercisable
during his or her lifetime only by such Participant.


 


Article 10.
Cash-Based Awards and Other Stock-Based Awards


 


10.1                  Grant
of Cash-Based Awards. Subject to the terms and provisions of the Plan,
the Committee, at any time and from time to time, may grant Cash-Based Awards
to Participants in such


 


16





















 


amounts and upon such terms, including the achievement
of specific performance goals, as the Committee may determine.


 


10.2                  Other
Stock-Based Awards. The Committee may grant other types of equity-based or
equity-related Awards not otherwise described by the terms of this Plan
(including the grant or offer for sale of unrestricted Shares) in such amounts
and subject to such terms and conditions, as the Committee shall determine.
Such Awards may involve the transfer of actual Shares to Participants, or
payment in cash or otherwise of amounts based on the value of Shares and may
include, without limitation, Awards designed to comply with or take advantage of
the applicable local laws of jurisdictions other than the United States.


 


10.3                  Value
of Cash-Based and Other Stock-Based Awards. Each Cash-Based Award shall
specify a payment amount or payment range as determined by the Committee. Each
Other Stock-Based Award shall be expressed in terms of Shares or units based on
Shares, as determined by the Committee. The Committee may establish performance
goals in its discretion. If the Committee exercises its discretion to establish
performance goals, the number and/or value of Cash-Based Awards or Other
Stock-Based Awards that will be paid out to the Participant will depend on the
extent to which the performance goals are met.


 


10.4                  Payment
of Cash-Based Awards and Other Stock-Based Awards. Payment, if any, with
respect to a Cash-Based Award or an Other Stock-Based Award shall be made in
accordance with the terms of the Award, in cash or Shares as the Committee
determines.


 


10.5                  Termination
of Employment. The Committee shall determine the extent to which the
Participant shall have the right to receive Cash-Based Awards or other
Stock-Based Awards following termination of the Participant’s employment with
or provision of services to the Company, its Affiliates, and/or its
Subsidiaries, as the case may be. Such provisions shall be determined in the
sole discretion of the Committee, such provisions may be included in an
agreement entered into with each Participant, but need not be uniform among all
Awards of Cash-Based Awards or Other Stock-Based Awards issued pursuant to the
Plan, and may reflect distinctions based on the reasons for termination.


 


10.6                  Nontransferability.
Except as otherwise determined by the Committee, neither Cash-Based Awards nor
Other Stock-Based Awards may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, other than by will or by the laws of descent and
distribution. Further, except as otherwise provided by the Committee, a
Participant’s rights under the Plan, if exercisable, shall be exercisable
during his or her lifetime only by such Participant. With respect to those
Cash-Based Awards or Other Stock-Based Awards, if any, that are permitted to be
transferred to another person, references in the Plan to exercise or payment of
such Awards by or to the Participant shall be deemed to include, as determined
by the Committee, the Participant’s permitted transferee.


 


Article 11.
Performance Measures


 


11.1                  Performance
Measures. Unless and until the Committee proposes for shareholder vote and
the shareholders approve a change in the general Performance Measures set forth
in this Article 11, the performance goals upon which the payment or
vesting of an Award to a Covered Employee


 


17





















 


that is intended to qualify as Performance-Based Compensation
shall be limited to the following Performance Measures:


 


(a)                            Net
earnings or net income (before or after taxes);


(b)                           Earnings
per share;


(c)                            Net
sales growth;


(d)                           Net
operating profit;


(e)                            Return
measures (including, but not limited to, return on assets, capital, invested
capital, equity, or sales);


(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; and


(p)                           Economic
value added or EVA® (net operating profit after tax minus the sum of
capital multiplied by the cost of capital).


 


Any Performance Measure(s) may
be used to measure the performance of the Company, Subsidiary, and/or Affiliate
as a whole or any business unit of the Company, Subsidiary, and/or Affiliate or
any combination thereof, as the Committee may deem appropriate, or any of the
above Performance Measures as compared to the performance of a group of
comparator companies, or published or special index that the Committee, in its
sole discretion, deems appropriate, or the Company may select Performance
Measure (j) above as compared to various stock market indices. The Committee
also has the authority to provide for accelerated vesting of any Award based on
the achievement of performance goals pursuant to the Performance Measures
specified in this Article 11.


 


11.2                  Evaluation of Performance. The Committee may provide in any such Award that
any evaluation of performance may include or exclude any of the following
events that occurs during a Performance Period: (a) asset write-downs, (b) litigation
or claim judgments or settlements, (c) the effect of changes in tax laws,
accounting principles, or other laws or provisions affecting reported results, (d) any
reorganization and restructuring programs, (e) extraordinary nonrecurring
items as described in Accounting Principles Board Opinion No. 30 and/or in
management’s discussion and analysis of financial condition and results of
operations appearing in the Company’s annual report to shareholders for the
applicable year, (f) acquisitions or divestitures, and (g) foreign
exchange gains and losses. To the extent such inclusions or exclusions affect
Awards to Covered Employees, they shall be prescribed in a form that meets the
requirements of Code Section 162(m) for deductibility.


 


11.3                  Adjustment
of Performance-Based Compensation. Awards that are designed to qualify as
Performance-Based Compensation, and that are held by Covered Employees, may not
be adjusted upward. The Committee shall retain the discretion to adjust such
Awards downward, either on a formula or discretionary basis or any combination,
as the Committee determines.


 


18





















 


11.4                  Committee
Discretion. In the event that applicable tax and/or securities laws change
to permit Committee discretion to alter the governing Performance Measures
without obtaining shareholder approval of such changes, the Committee shall
have sole discretion to make such changes without obtaining shareholder
approval. In addition, in the event that the Committee determines that it is
advisable to grant Awards that shall not qualify as Performance-Based
Compensation, the Committee may make such grants without satisfying the
requirements of Code Section 162(m) and base vesting on Performance
Measures other than those set forth in Section 11.1.


 


Article 12.
Nonemployee Director Awards


 


12.1                  Nonemployee
Director Awards. All Awards to Nonemployee Directors shall be determined by
the Board or Committee.


 


12.2                  Nonemployee
Director Retainer Deferral. The Committee may permit or require a
Nonemployee Director Participant to defer all or some portion of any cash
retainer to be paid to such Participant. If any such deferral election is
required or permitted, the Committee shall, in its sole discretion, establish rules and
procedures for such retainer deferrals.


 


Article 13.
Dividend Equivalents


 


Any Participant selected by the Committee may be
granted dividend equivalents based on the dividends declared on Shares that are
subject to any Award, to be credited as of dividend payment dates, during the
period between the date the Award is granted and the date the Award is
exercised, vests or expires, as determined by the Committee. Such dividend
equivalents shall be converted to cash or additional Shares by such formula and
at such time and subject to such limitations as may be determined by the
Committee.


 


Article 14.
Beneficiary Designation


 


Each Participant under the Plan may, from time to
time, name any beneficiary or beneficiaries (who may be named contingently or
successively) to whom any benefit under the Plan is to be paid in case of his
or her death before he or she receives any or all of such benefit. Each such
designation shall revoke all prior designations by the same Participant,
shall be in a form prescribed by the Committee, and will be effective only when
filed by the Participant in writing with the Company during the Participant’s
lifetime. In the absence of any such designation, benefits remaining unpaid at
the Participant’s death shall be paid to the Participant’s estate.


 


Article 15.
Deferrals


 


The Committee may permit or require a Participant to
defer such Participant’s receipt of the payment of cash or the delivery of Shares
that would otherwise be due to such Participant by virtue of the exercise of an
Option or SAR, the lapse or waiver of restrictions with respect to Restricted
Stock or Restricted Stock Units, or the satisfaction of any requirements or
performance goals with respect to Performance Shares, Performance Units,
Cash-Based Awards, Other Stock-Based Awards, or Cash-Based Awards. If any such
deferral election is required or permitted, the Committee shall, in its sole
discretion, establish rules and procedures for such payment deferrals.


 


Article 16.
Rights of Participants


 


16.1                  Employment.
Nothing in the Plan or an Award Agreement shall interfere with or limit in any
way the right of the Company, its Affiliates, and/or its Subsidiaries, to
terminate any


 


19





















 


Participant’s employment or service on the Board at
any time or for any reason not prohibited by law, nor confer upon any
Participant any right to continue his or her employment or service as a
Director for any specified period of time.


 


Neither an Award nor any benefits arising under this
Plan shall constitute an employment contract with the Company, its Affiliates,
and/or its Subsidiaries and, accordingly, subject to Articles 3 and 18,
this Plan and the benefits hereunder may be terminated at any time in the sole
and exclusive discretion of the Committee without giving rise to any liability
on the part of the Company, its Affiliates, and/or its Subsidiaries.


 


16.2                  Participation.
No individual shall have the right to be selected to receive an Award under
this Plan, or, having been so selected, to be selected to receive a future
Award.


 


16.3                  Rights
as a Shareholder. Except as otherwise provided herein, a Participant shall
have none of the rights of a shareholder with respect to Shares covered by any
Award until the Participant becomes the record holder of such Shares.


 


Article 17.
Change of Control


 


17.1                  Change
of Control of the Company. Upon the occurrence of a Change of Control,
unless otherwise specifically prohibited under applicable laws or by the rules and
regulations of any governing governmental agencies or national securities
exchanges, or unless the Committee shall determine otherwise in the Award
Agreement:


 


(a)                            Any
and all Options and SARs granted hereunder shall become immediately vested and
exercisable; additionally, if a Participant’s employment is terminated for any
reason except Cause within three (3) months prior to such Change of
Control or within twelve (12) months subsequent to such Change of Control, the
Participant shall have until the earlier of: (i) twelve (12) months
following such termination date, or (ii) the expiration of the Option or
SAR term, to exercise any such Option or SAR;


 


(b)                           Any
Period of Restriction and restrictions imposed on Restricted Stock or
Restricted Stock Units shall lapse and such Restricted Stock or Restricted
Stock Units shall become fully vested;


 


(c)                            The
target payout opportunities attainable under all outstanding Awards of
performance-based Restricted Stock, performance-based Restricted Stock Units,
Performance Units, and Performance Shares, shall be deemed to have been fully
earned based on targeted performance being attained as of the effective date of
the Change of Control;


 


(i)                                     The
vesting of all Awards denominated in Shares shall be accelerated as of the
effective date of the Change of Control, and shall be paid out to Participants
within thirty (30) days following the effective date of the Change of Control.
The Committee has the authority to pay all or any portion of the value of the
Shares in cash;


 


20





















 


(ii)                                  Awards
denominated in cash shall be paid to Participants in cash within thirty (30)
days following the effective date of the Change of Control; and


 


(d)                           Upon
a Change of Control, unless otherwise specifically provided in a written
agreement entered into between the Participant and the Company, the Committee
shall pay out all Cash-Based Awards and Other Stock-Based Awards.


 


(e)                            Subject
to the acceleration of vesting of outstanding Options, the Committee, in its
discretion, may provide that in the event of a Change of Control pursuant to Section 2.8(a), (b), (c), or (d),
no later than ten (10) days after the approval by the shareholders of the
Company of such merger, consolidation, reorganization, sale, lease, or exchange
or assets or dissolution or such election of directors, or in the event of a
Change of Control pursuant to Section 2.8(a),
no later than thirty (30) days after the occurrence of such Change of Control,
that (i) Options may be exercised in full only for a limited period of
time on or before a specified date (before or after such Change of Control)
fixed by the Committee, after which specified date all unexercised Options and
all rights of the Participants thereunder shall terminate, or (ii) require
the mandatory surrender to the Company by selected Participants of some or all
of the outstanding Options held by such Participants as of a date, before or
after such Change of Control, specified by the Committee, in which event the
Committee shall thereupon cancel such Options and the Company shall pay to each
Participant an amount of cash per Share equal to the excess, if any of the “Change
of Control Value” of the Shares subject to such Option over the Option Price(s)
under such Options for such Shares.


 


(f)                              For
the purpose of Section 17.1(f)(ii), “Change of Control Value” shall equal
the amount determined in clause (i), (ii), or (iii), whichever is applicable,
as follows: (i) the per Share price offered to shareholders of the Company
in any such merger, consolidation, reorganization, sale of assets, or
dissolution transaction, (ii) the price per Share offered to shareholders
of the Company in any tender offer or exchange offer whereby a Change of
Control takes place, or (iii) if such Change of Control occurs other than
pursuant to a tender or exchange offer, the Fair Market Value per Share of the
Shares in which such Options being surrendered are exercisable, as determined
by the Committee as of the date determined by the Committee to be the date of
cancellation and surrender of such Options. In the event that the consideration
offered to shareholders of the Company in any transaction described in Section 2.8 consists of anything
other than cash, the Committee shall determine the fair cash equivalent of the
portion of the consideration offered which is other than cash.


 


Article 18.
Amendment, Modification, Suspension, and Termination


 


18.1                  Amendment,
Modification, Suspension, and Termination. Subject to Section 18.3,
the Committee may, at any time and from time to time, alter, amend,
modify, suspend, or terminate the Plan and any Award Agreement in whole or
in part; provided, however, that, without the prior approval of the Company’s
shareholders and except as provided in Sections 4.4 and 6.11 hereof, Options or
SARs issued under the Plan will not be repriced, replaced, or regranted through


 


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cancellation, or by lowering
the Option Price of a previously granted Option or the Grant Price of a
previously granted SAR, and no amendment of the Plan shall be made without
shareholder approval if shareholder approval is required by law, regulation, or
stock exchange rule.


 


18.2                  Adjustment
of Awards Upon the Occurrence of Certain Unusual or Nonrecurring Events.
The Committee may make adjustments in the terms and conditions of, and the
criteria included in, Awards in recognition of unusual or nonrecurring events
(including, without limitation, the events described in Section 4.4
hereof) affecting the Company or the financial statements of the Company or of
changes in applicable laws, regulations, or accounting principles, whenever the
Committee determines that such adjustments are appropriate in order to prevent
unintended dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan. The determination of the
Committee as to the foregoing adjustments, if any, shall be conclusive and
binding on Participants under the Plan.


 


18.3                  Awards
Previously Granted. Notwithstanding any other provision of the Plan to the
contrary, no termination, amendment, suspension, or modification of the Plan or
an Award Agreement shall adversely affect in any material way any Award
previously granted under the Plan, without the written consent of the
Participant holding such Award. 


 


Article 19.
Withholding


 


19.1                  Tax
Withholding. The Company shall have the power and the right to deduct or
withhold, or require a Participant to remit to the Company, the minimum
statutory amount to satisfy federal, state, and local taxes, domestic or
foreign, required by law or regulation to be withheld with respect to any
taxable event arising as a result of this Plan.


 


19.2                  Share
Withholding. With respect to withholding required upon the exercise of
Options or SARs, upon the lapse of restrictions on Restricted Stock and
Restricted Stock Units, or upon the achievement of performance goals related to
Performance Shares, or any other taxable event arising as a result of an Award
granted hereunder, Participants may elect, subject to the approval of the
Committee, to satisfy the withholding requirement, in whole or in part, by
having the Company withhold Shares having a Fair Market Value on the date the
tax is to be determined equal to the minimum statutory total tax that could be
imposed on the transaction. All such elections shall be irrevocable, made in
writing, and signed by the Participant, and shall be subject to any
restrictions or limitations that the Committee, in its sole discretion, deems
appropriate.


 


Article 20.
Successors


 


All obligations of the Company under the Plan with
respect to Awards granted hereunder shall be binding on any successor to the
Company, whether the existence of such successor is the result of a direct or
indirect purchase, merger, consolidation, or otherwise, of all or substantially
all of the business and/or assets of the Company.


 


Article 21.
General Provisions


 


21.1                  Forfeiture
Events.


 


(a)                            The
Committee may specify in an Award Agreement that the Participant’s rights,
payments, and benefits with respect to an Award shall be subject to reduction,


 


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cancellation, forfeiture, or recoupment upon the
occurrence of certain specified events, in addition to any otherwise applicable
vesting or performance conditions of an Award. Such events may include, but
shall not be limited to, termination of employment for cause, termination of
the Participant’s provision of services to the Company, Affiliate, and/or Subsidiary,
violation of material Company, Affiliate, and/or Subsidiary policies, breach of
noncompetition, confidentiality, or other restrictive covenants that may apply
to the Participant, or other conduct by the Participant that is detrimental to
the business or reputation of the Company, its Affiliates, and/or its
Subsidiaries.


 


(b)                           If
the Company is required to prepare an accounting restatement due to the
material noncompliance of the Company, as a result of misconduct, with any
financial reporting requirement under the securities laws, or if the
Participant is one of the persons subject to automatic forfeiture under Section 304
of the Sarbanes-Oxley Act of 2002, the Participant shall reimburse the Company
the amount of any payment in settlement of an Award earned or accrued during
the twelve-month period following the first public issuance or filing with the
United States Securities and Exchange Commission (whichever just occurred) of
the financial document embodying such financial reporting requirement.


 


21.2                  Legend. The
certificates for Shares may include any legend which the Committee deems
appropriate to reflect any restrictions on transfer of such Shares.


 


21.3                  Gender
and Number. Except where otherwise indicated by the context, any masculine
term used herein also shall include the feminine, the plural shall include the
singular, and the singular shall include the plural.


 


21.4                  Severability. In the event any provision of the Plan shall be held
illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provision had not been included.


 


21.5                  Requirements
of Law. The granting of Awards and the
issuance of Shares under the Plan shall be subject to all applicable laws,
rules, and regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required.


 


21.6                  Delivery
of Title. The Company shall have no
obligation to issue or deliver evidence of title for Shares issued under the
Plan prior to:


 


(a)                            Obtaining
any approvals from governmental agencies that the Company determines are
necessary or advisable; and


 


(b)                           Completion
of any registration or other qualification of the Shares under any applicable
national or foreign law or ruling of any governmental body that the Company
determines to be necessary or advisable.


 


21.7                  Inability
to Obtain Authority. The inability
of the Company to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Company’s counsel to be


 


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necessary to the lawful issuance and sale of any
Shares hereunder, shall relieve the Company of any liability in respect of the
failure to issue or sell such Shares as to which such requisite authority shall
not have been obtained.


 


21.8                  Investment
Representations. The Committee
may require any person receiving Shares pursuant to an Award under this Plan to
represent and warrant in writing that the person is acquiring the Shares for
investment and without any present intention to sell or distribute such Shares.


 


21.9                  Employees
Based Outside of the United States. Notwithstanding any provision of the
Plan to the contrary, in order to comply with the laws in other countries in
which the Company, its Affiliates, and/or its Subsidiaries operate or have
Employees or  Directors, the Committee, in its sole discretion, shall have the
power and authority to:


 


(a)                            Determine
which Affiliates and Subsidiaries shall be covered by the Plan;


 


(b)                           Determine
which Employees and/or Directors outside the United States are eligible to
participate in the Plan;


 


(c)                            Modify
the terms and conditions of any Award granted to Employees and/or Directors
outside the United States to comply with applicable foreign laws;


 


(d)                           Establish
subplans and modify exercise procedures and other terms and procedures, to the
extent such actions may be necessary or advisable. Any 

subplans and modifications to Plan terms and procedures established under this Section 21.9
by the Committee shall be attached to this Plan document as appendices; and


 


(e)                            Take
any action, before or after an Award is made, that it deems advisable to obtain
approval or comply with any necessary local government regulatory exemptions or
approvals.


 


Notwithstanding
the above, the Committee may not take any actions hereunder, and no Awards
shall be granted, that would violate applicable law.


 


21.10           Uncertificated
Shares. To the extent that the Plan provides for issuance of certificates
to reflect the transfer of Shares, the transfer of such Shares may be effected
on a noncertificated basis, to the extent not prohibited by applicable law or
the rules of any stock exchange.


 


21.11           Unfunded
Plan. Participants shall have no right,
title, or interest whatsoever in or to any investments that the Company, and/or
its Subsidiaries, and/or Affiliates may make to aid it in meeting its
obligations under the Plan. Nothing contained in the Plan, and no action taken
pursuant to its provisions, shall create or be construed to create a trust of
any kind, or a fiduciary relationship between the Company and any Participant,
beneficiary, legal representative, or any other person. To the extent that any
person acquires a right to receive payments from the Company, and/or its
Subsidiaries, and/or Affiliates under the Plan, such right shall be no greater
than the right of an unsecured general creditor of the Company, a Subsidiary,
or an Affiliate, as the case may be. All payments to be made hereunder shall be
paid from the general funds of the Company, a Subsidiary, 


 


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or an Affiliate, as the case may be and no special or
separate fund shall be established and no segregation of assets shall be made
to assure payment of such amounts except as expressly set forth in the Plan.


 


21.12           No Fractional Shares.
No fractional Shares shall be issued or delivered pursuant to the Plan or any
Award. The Committee shall determine whether cash, Awards, or other property
shall be issued or paid in lieu of fractional Shares or whether such fractional
Shares or any rights thereto shall be forfeited or otherwise eliminated.


 


21.13           Retirement and Welfare
Plans. Neither Awards made under the Plan nor Shares or cash paid
pursuant to such Awards may be included as “compensation” for purposes of
computing the benefits payable to any Participant under the Company’s or any
Subsidiary’s or Affiliate’s retirement plans (both qualified and non-qualified)
or welfare benefit plans unless such other plan expressly provides that such
compensation shall be taken into account in computing a participant’s benefit.


 


21.14           Nonexclusivity of the Plan.
The adoption of this Plan shall not be construed as creating any limitations on
the power of the Board or Committee to adopt such other compensation
arrangements as it may deem desirable for any Participant.


 


21.15           No
Constraint on Corporate Action. Nothing in this Plan shall be construed to:
(i) limit, impair, or otherwise affect the Company’s or a Subsidiary’s or
an Affiliate’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) limit the right or power of the Company
or a Subsidiary or an Affiliate to take any action which such entity deems to
be necessary or appropriate.


 


21.16           Governing
Law. The Plan and each Award Agreement shall be governed by the laws of the
State of New York, excluding any conflicts or choice of law rule or
principle that might otherwise refer construction or interpretation of the Plan
to the substantive law of another jurisdiction. Unless otherwise provided in
the Award Agreement, recipients of an Award under the Plan are deemed to submit
to the exclusive jurisdiction and venue of the federal or state courts of New
York, to resolve any and all issues that may arise out of or relate to the Plan
or any related Award Agreement.


 


22.17           Indemnification.
Each person who is or shall have been a member of the Board, or a Committee
appointed by the Board, or an officer of the company to whom authority was
delegated in accordance with Section 3.3 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 a party or in which he or she may be involved by reason of any
action take 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 judgement in any such action,
suit, or proceeding against him or her, provided he or she shall give the
Company an opportunity, at its own expense, to handle and defend the same
before he or she undertakes to handle and defend it on his or her own behalf,
unless such loss, cost, liability, or expense is a result of his or her own
willful misconduct or except as expressly provided by statute.


 


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The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such persons may be
entitled under the Company’s Certificate of Incorporation of Bylaws, as a
matter of law, or otherwise, or any power that the Company may have to
indemnify them or hold them harmless.


 


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