Exhibit 10.1


 


AMENDED AND RESTATED


OWENS-ILLINOIS, INC.


2005 INCENTIVE AWARD PLAN


 


ARTICLE 1.


PURPOSE


 


The purpose of
the Owens-Illinois, Inc. 2005 Incentive Award Plan (the “Plan”) is to promote the success and
enhance the value of, as well as aid Owens-Illinois, Inc. (the “Company”) by linking the personal
interests of current and future Employees and Consultants to those of Company
stockholders. The Plan is intended to incentivise these individuals to continue
providing the Company with outstanding performance, to generate superior
returns to Company stockholders, and to provide flexibility to the Company in
its ability to motivate, attract, and retain the services of Employees and
Consultants upon whose judgment, interest, and special effort the successful
conduct of the Company’s operation is largely dependent.


 


ARTICLE 2.


DEFINITIONS AND CONSTRUCTION


 


Wherever the
following terms are used in the Plan they shall have the meanings specified
below, unless the context clearly indicates otherwise. The singular pronoun
shall include the plural where the context so indicates.


 


2.1                                 “Applicable Accounting Standards” shall
mean Generally Accepted Accounting Principles in the United States,
International Financial Reporting Standard or such other accounting principles
or standards as may apply to the Company’s financial statements under United
States federal securities laws from time to time.


 


2.2                                 “Award”
means an Option, a Restricted Stock award, a Stock Appreciation Right award, a
Performance Share award, a Performance Stock Unit award, a Dividend Equivalents
award, a Stock Payment award, a Deferred Stock award, a Restricted Stock Unit
award, an Other Stock-Based Award, a Performance Bonus Award, or a
Performance-Based Award granted to a Participant pursuant to the Plan.


 


2.3                                 “Award
Agreement” means any written agreement, contract, or other instrument or
document evidencing an Award, including through any electronic medium.


 


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


 


2.5                                 “Change
in Control” means and includes each of the following:


 


(a)                                  A
transaction or series of transactions (other than an offering of Stock to the
general public through a registration statement filed with the Securities and
Exchange Commission) whereby any “person” or related “group” of “persons” (as
such terms are used in Sections 13(d) and 14(d)(2) of the
Exchange Act) (other than the Company, any of its Subsidiaries, an employee
benefit plan maintained by the Company or any of its Subsidiaries or a “person”
that, prior to such transaction, directly or indirectly controls, is controlled
by, or is under common control with, the Company) directly or indirectly
acquires beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act) of securities of the Company possessing more than 50% of the
total combined voting power of the Company’s securities outstanding immediately
after such acquisition; or


 


(b)                                 During
any period of two consecutive years, individuals who, at the beginning of such
period, constitute the Board together with any new director(s) (other than
a director designated by a person


 


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who shall have
entered into an agreement with the Company to effect a transaction described in
Section 2.4(a) or Section 2.4(c)) whose election by the Board or
nomination for election by the Company’s stockholders was approved by a vote of
at least two-thirds of the directors then still in office who either were
directors at the beginning of the two year period or whose election or nomination
for election was previously so approved, cease for any reason to constitute a
majority thereof; or


 


(c)                                  The
consummation by the Company (whether directly involving the Company or
indirectly involving the Company through one or more intermediaries) of (x) a
merger, consolidation, reorganization, or business combination or (y) a
sale or other disposition of all or substantially all of the Company’s assets
in any single transaction or series of related transactions or (z) the
acquisition of assets or stock of another entity, in each case other than a
transaction:


 


(i)                                     Which
results in the Company’s voting securities outstanding immediately before the
transaction continuing to represent (either by remaining outstanding or by
being converted into voting securities of the Company or the person that, as a
result of the transaction, controls, directly or indirectly, the Company or
owns, directly or indirectly, all or substantially all of the Company’s assets
or otherwise succeeds to the business of the Company (the Company or such
person, the “Successor Entity”))
directly or indirectly, at least a majority of the combined voting power of the
Successor Entity’s outstanding voting securities immediately after the
transaction, and


 


(ii)                                  After
which no person or group beneficially owns voting securities representing 50%
or more of the combined voting power of the Successor Entity; provided, however, that no person or group
shall be treated for purposes of this Section 2.4(c)(ii) as
beneficially owning 50% or more of combined voting power of the Successor
Entity solely as a result of the voting power held in the Company prior to the
consummation of the transaction; or


 


(d)                                 The
Company’s stockholders approve a liquidation or dissolution of the Company.


 


The Committee shall have full
and final authority, which shall be exercised in its discretion, to determine
conclusively whether a Change in Control of the Company has occurred pursuant
to the above definition, and the date of the occurrence of such Change in
Control and any incidental matters relating thereto.


 


2.6                                 “Code”
means the Internal Revenue Code of 1986, as amended.


 


2.7                                 “Committee”
means the committee of the Board described in Article 12.


 


2.8                                 “Consultant”
means any consultant or adviser if:


 


(a)                                  The
consultant or adviser renders bona fide services to the Company;


 


(b)                                 The
services rendered by the consultant or adviser are not in connection with the
offer or sale of securities in a capital-raising transaction and do not
directly or indirectly promote or maintain a market for the Company’s
securities; and


 


(c)                                  The
consultant or adviser is a natural person who has contracted directly with the
Company to render such services.


 


2.9                                 “Covered
Employee” means an Employee who is, or could be, a “covered employee”
within the meaning of Section 162(m) of the Code.


 


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2.10                           “Deferred
Stock” means a right to receive a specified number of shares of Stock
during specified time periods pursuant to Article 8.


 


2.11                           “Disability”
means that the Participant qualifies to receive long-term disability payments
under the Company’s long-term disability insurance program, as it may be
amended from time to time.


 


2.12                           “Dividend
Equivalents” means a right granted to a Participant pursuant to Article 8
to receive the equivalent value (in cash or Stock) of dividends paid on Stock.


 


2.13                           “Effective
Date” shall have the meaning set forth in Section 13.1.


 


2.14                           “Eligible
Individual” means any person who is an Employee or a Consultant, as
determined by the Committee.


 


2.15                           “Employee”
means any officer or other employee (as defined in accordance with Section 3401(c) of
the Code) of the Company or any Subsidiary.


 


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


 


2.17                           “Fair
Market Value” shall mean, as of any given date, the value of a share of
Stock determined as follows:


 


(a)                                  If
the Stock is listed on any established stock exchange (such as the New York
Stock Exchange, the NASDAQ Global Market and the NASDAQ Global Select Market)
or national market system, its Fair Market Value shall be the closing sales
price for a share of Stock as quoted on such exchange or system for such date
or, if there is no closing sales price for a share of Stock on the date in
question, the closing sales price for a share of Stock on the last preceding
date for which such quotation exists, as reported in The Wall Street Journal or such other source as the
Committee deems reliable;


 


(b)                                 If
the Common Stock is not listed on an established stock exchange or national
market system, but the Common Stock is regularly quoted by a recognized
securities dealer, its Fair Market Value shall be the mean of the closing
representative bid and asked prices for such date or, if there are no bid and
asked prices for a share of Stock on such date, the closing bid and low asked
prices for a share of Stock on the last preceding date for which such
information exists, as reported in The Wall
Street Journal or such other source as the Committee deems reliable;
or


 


(c)                                  If
the Stock is neither listed on an established stock exchange or a national
market system nor regularly quoted by a recognized securities dealer, its Fair
Market Value shall be established by the Committee in good faith.


 


2.18                           “Full
Value Award” means any Award other than an Option, SAR or other Award for
which the Participant pays the intrinsic value (whether directly or by forgoing
a right to receive a cash payment from the Company).


 


2.19                           “Incentive
Stock Option” means an Option that is intended to meet the requirements of Section 422
of the Code or any successor provision thereto.


 


2.20                           “Non-Employee
Director” means a member of the Board who qualifies as a “Non-Employee
Director” as defined in Rule 16b-3(b)(3) of the Exchange Act, or any
successor definition adopted by the Board.


 


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2.21                           “Non-Qualified
Stock Option” means an Option that is not intended to be an Incentive Stock
Option.


 


2.22                           “Option”
means a right granted to a Participant pursuant to Article 5 of the Plan
to purchase a specified number of shares of Stock at a specified price during
specified time periods. An Option may be either an Incentive Stock Option or a
Non-Qualified Stock Option.


 


2.23                           “Other
Stock-Based Award” means an Award granted or denominated in Stock or units
of Stock pursuant to Section 8.7 of the Plan.


 


2.24                           “Participant”
means any Eligible Individual who, as a member of the Board, Consultant or
Employee, has been granted an Award pursuant to the Plan.


 


2.25                           “Performance-Based
Award” means an Award granted to selected Covered Employees pursuant to
Articles 6 and 8, but which is subject to the terms and conditions set
forth in Article 9. All Performance-Based Awards are intended to qualify
as Qualified Performance-Based Compensation.


 


2.26                           “Performance
Bonus Award” has the meaning set forth in Section 8.8.


 


2.27                           “Performance
Criteria” means the criteria that the Committee selects for purposes of
establishing the Performance Goal or Performance Goals for an Award for a
Performance Period. The Performance Criteria that will be used to establish
Performance Goals are limited to the following: (i) earnings before or
after taxes (including earnings before interest, taxes, depreciation and
amortization); (ii) net income; (iii) operating income; (iv) earnings
per share of Stock; (v) book value per share of Stock; (vi) return on
equity; (vii) expense management; (viii) return on investment before
or after the cost of capital; (ix) improvements in capital structure; (x) profitability
of an identifiable business unit or product; (xi) maintenance or
improvement of profit margins; (xii) Stock price; (xiii) market
share; (xiv) revenues or sales; (xv) costs; (xvi) cash flow;
(xvii) working capital; (xviii) return on assets; (xix) cost
reduction goals; (xx) return on sales; (xxi) gross margin;
(xxii) debt reduction; (xxiii) new product launches;
(xxiv) completion of joint ventures, divestitures, acquisitions or other
corporate transactions; (xxv) new business or expansion of customers or
clients; or (xxvi) productivity improvement. The foregoing criteria may
relate to the Company, one or more of its Subsidiaries or one or more of its
divisions or units or any combination of the foregoing, and may be applied on
an absolute basis and/or be relative to one or more peer group companies or
indices, or any combination thereof, all as the Committee shall determine.


 


2.28                           “Performance
Goals” means, for a Performance Period, the goals established in writing by
the Committee for the Performance Period based upon the Performance Criteria.
Depending on the Performance Criteria used to establish such Performance Goals,
the Performance Goals may be expressed in terms of overall Company performance
or the performance of a division, business unit, or an individual. The achievement
of each Performance Goal shall be determined in accordance with Applicable
Accounting Standards, to the extent applicable. The Committee may, in its sole
discretion, provide that one or more objectively determinable adjustments shall
be made to one or more of the Performance Goals. Such adjustments may include
one or more of the following: (i) items related to a change in Applicable
Accounting Standards; (ii) items relating to financing activities; (iii) expenses
for restructuring or productivity initiatives; (iv) other non-operating
items; (v) items related to acquisitions; (vi) items attributable to
the business operations of any entity acquired by the Company during the
Performance Period; (vii) items related to the disposal of a business or
segment of a business; (viii) items related to discontinued operations
that do not qualify as a segment of a business under Applicable Accounting
Standards; (ix) items attributable to any stock dividend, stock split,
combination or exchange of shares


 


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occurring during the
Performance Period; or (x) any other items of significant income or
expense which are determined to be appropriate adjustments; (xi) items
relating to unusual or extraordinary corporate transactions, events or
developments, (xii) items related to amortization of acquired intangible
assets; (xiii) items that are outside the scope of the Company’s core,
on-going business activities; or (xiv) items relating to any other unusual
or nonrecurring events or changes in applicable laws, accounting principles or
business conditions. For all Awards intended to be Qualified Performance-Based
Compensation, such determinations shall be made within the time prescribed by,
and otherwise in compliance with, Section 162(m) of the Code.


 


2.29                           “Performance
Period” means the one or more periods of time, which may be of varying and
overlapping durations, as the Committee may select, over which the attainment
of one or more Performance Goals will be measured for the purpose of
determining a Participant’s right to, and the payment of, a Performance-Based
Award.


 


2.30                           “Performance
Share” means a right granted to a Participant pursuant to Article 8,
to receive Stock, the payment of which is contingent upon achieving certain
Performance Goals or other performance-based targets established by the
Committee.


 


2.31                           “Performance
Stock Unit” means a right granted to a Participant pursuant to Article 8,
to receive Stock, the payment of which is contingent upon achieving certain Performance
Goals or other performance-based targets established by the Committee.


 


2.32                           “Plan”
means this Amended and Restated Owens-Illinois, Inc. 2005 Incentive Award
Plan, as it may be amended from time to time.


 


2.33                           “Qualified
Performance-Based Compensation” means any compensation that is intended to
qualify as “qualified performance-based compensation” as described in Section 162(m)(4)(C) of
the Code.


 


2.34                           “Restricted
Stock” means Stock awarded to a Participant pursuant to Article 6 that
is subject to certain restrictions and may be subject to risk of forfeiture.


 


2.35                           “Restricted
Stock Unit” means an Award granted pursuant to Section 8.6.


 


2.36                           “Securities
Act” shall mean the Securities Act of 1933, as amended.


 


2.37                           “Stock”
means the common stock of the Company, par value $0.01 per share, and such
other securities of the Company that may be substituted for Stock pursuant to Article 11.


 


2.38                           “Stock
Appreciation Right” or “SAR”
means a right granted pursuant to Article 7 to receive a payment equal to
the excess of the Fair Market Value of a specified number of shares of Stock on
the date the SAR is exercised over the Fair Market Value on the date the SAR
was granted as set forth in the applicable Award Agreement.


 


2.39                           “Stock
Payment” means (a) a payment in the form of shares of Stock, or (b) an
option or other right to purchase shares of Stock, as part of any bonus,
deferred compensation or other arrangement, made in lieu of all or any portion
of the compensation, granted pursuant to Article 8.


 


2.40                           “Subsidiary”
means any “subsidiary corporation” as defined in Section 424(f) of
the Code and any applicable regulations promulgated thereunder or any other
entity of which a majority of the outstanding voting stock or voting power is
beneficially owned directly or indirectly by the Company.


 


2.41                           “Successor
Entity” shall have the meaning set forth in Section 2.4(c)(i).


 


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ARTICLE 3.


SHARES SUBJECT TO THE PLAN


 


3.1                                 Number
of Shares.


 


(a)                                  Subject
to Article 11 and Section 3.1(b), the aggregate number of shares of
Stock which may be issued or transferred pursuant to Awards under the Plan
shall be 16,000,000 shares, provided,
however, that such aggregate number of shares of Stock available for
issuance under the Plan shall be reduced by 1.75 shares for each share of Stock
delivered in settlement of any Full Value Award.


 


(b)                                 To
the extent that an Award terminates, expires, or lapses for any reason, any
shares of Stock subject to the Award shall again be available for the grant of
an Award pursuant to the Plan. Any shares of Common Stock tendered or withheld
to satisfy the grant or exercise price or tax withholding obligation pursuant
to any Award (other than an Option) shall be counted against the number of
shares available under Section 3.1(a). To the extent permitted by
applicable law or any exchange rule, shares of Stock issued in assumption of,
or in substitution for, any outstanding awards of any entity acquired in any
form of combination by the Company or any Subsidiary shall not be counted
against shares of Stock available for grant pursuant to this Plan. The payment
of Dividend Equivalents in conjunction with any outstanding Awards shall not be
counted against the shares available for issuance under the Plan. For purposes
of determining the number of shares available under Section 3.1(a), shares
of Common Stock subject to Stock Appreciation Rights shall be counted as one
share for each Stock Appreciation Right awarded.


 


3.2                                 Stock
Distributed.  Any Stock distributed
pursuant to an Award may consist, in whole or in part, of authorized and
unissued Stock, treasury Stock or Stock purchased on the open market.


 


3.3                                 Limitation
on Number of Shares Subject to Awards. 
Notwithstanding any provision in the Plan to the contrary, and subject
to Article 11, the maximum number of shares of Stock with respect to one
or more Awards that may be granted to any one Participant during a calendar
year (measured from the date of any grant) shall be 700,000 and the maximum
aggregate dollar value of any Award designated to be paid solely in cash to any
Covered Employee during any calendar year which is intended to be a Performance
Based Award shall not exceed $5,000,000.


 


ARTICLE 4.


ELIGIBILITY AND PARTICIPATION


 


4.1                                 Eligibility.  Each Eligible Individual shall be eligible to
be granted one or more Awards pursuant to the Plan.


 


4.2                                 Participation.  Subject to the provisions of the Plan, the
Committee may, from time to time, select from among all Eligible Individuals,
those to whom Awards shall be granted and shall determine the nature and amount
of each Award. No Eligible Individual shall have any right to be granted an
Award pursuant to this Plan.


 


4.3                                 Foreign
Participants.  In order to assure the
viability of Awards granted to Participants employed in foreign countries, the
Committee may provide for such special terms as it may consider necessary or
appropriate to accommodate differences in local law, tax policy, or custom.
Moreover, the Committee may approve such supplements to, or amendments,
restatements, or alternative versions of, the Plan as it may consider necessary
or appropriate for such purposes without thereby affecting the terms of the
Plan as in


 


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effect for any other purpose; provided, however, that no such
supplements, amendments, restatements or alternative versions shall increase
the share limitations contained in Sections 3.1 and 3.3 of the Plan.


 


ARTICLE 5.


STOCK OPTIONS


 


5.1                                 General.  The Committee is authorized to grant Options
to Eligible Individuals on the following terms and conditions:


 


(a)                                  Exercise
Price.  The exercise price per share
of Stock subject to an Option shall be determined by the Committee and set
forth in the Award Agreement; provided
that the exercise price for any Option shall not be less than 100% of the Fair
Market Value of a share of Stock on the date of grant.


 


(b)                                 Time
and Conditions of Exercise.  The
Committee shall determine the time or times at which an Option may be exercised
in whole or in part; provided
that the term of any Option granted under the Plan shall not exceed ten years
and one day. The Committee shall also determine the performance or other
conditions, if any, that must be satisfied before all or part of an Option may
be exercised.


 


5.2                                 Incentive
Stock Options.  The terms of any
Incentive Stock Options granted pursuant to the Plan must comply with the
conditions and limitations contained in Section 13.2 and this Section 5.2.


 


(a)                                  Eligibility.  Incentive Stock Options may be granted only to
employees of the Company or any “subsidiary corporation” thereof (within the
meaning of Section 424(f) of the Code and the applicable regulations
promulgated thereunder).


 


(b)                                 Exercise
Price.  The exercise price per share
of Stock shall be set by the Committee; provided
that subject to Section 5.2(d) the exercise price for any Incentive
Stock Option shall not be less than 100% of the Fair Market Value on the date
of grant.


 


(c)                                  Individual
Dollar Limitation.  The aggregate
Fair Market Value (determined as of the time the Option is granted) of all
shares of Stock with respect to which Incentive Stock Options are first
exercisable by a Participant in any calendar year may not exceed $100,000 or
such other limitation as imposed by Section 422(d) of the Code, or
any successor provision. To the extent that Incentive Stock Options are first
exercisable by a Participant in excess of such limitation, the excess shall be
considered Non-Qualified Stock Options.


 


(d)                                 Ten
Percent Owners.  An Incentive Stock
Option shall be granted to any individual who, at the date of grant, owns stock
possessing more than ten percent of the total combined voting power of all
classes of Stock of the Company only if such Option is granted at a price that
is not less than 110% of Fair Market Value on the date of grant and the Option
is exercisable for no more than five years from the date of grant.


 


(e)                                  Notice
of Disposition.  The Participant
shall give the Company prompt notice of any disposition of shares of Stock
acquired by exercise of an Incentive Stock Option within (i) two years
from the date of grant of such Incentive Stock Option or (ii) one year
after the transfer of such shares of Stock to the Participant.


 


(f)                                    Right
to Exercise.  During a Participant’s
lifetime, an Incentive Stock Option may be exercised only by the Participant.


 


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5.3                                 Substitution
of Stock Appreciation Rights.  The
Committee may provide in the Award Agreement evidencing the grant of an Option
that the Committee, in its sole discretion, shall have the right to substitute
a Stock Appreciation Right for such Option at any time prior to or upon
exercise of such Option, subject to the provisions of Section 7.2 hereof;
provided that such Stock Appreciation Right shall be exercisable with respect
to the same number of shares of Stock for which such substituted Option would
have been exercisable.


 


ARTICLE 6.


RESTRICTED STOCK AWARDS


 


6.1                                 Grant
of Restricted Stock.  The Committee
is authorized to make Awards of Restricted Stock to any Eligible Individual
selected by the Committee in such amounts and subject to such terms and
conditions as determined by the Committee. All Awards of Restricted Stock shall
be evidenced by a written Restricted Stock Award Agreement.


 


6.2                                 Issuance
and Restrictions.  Subject to Section 10.6,
Restricted Stock shall be subject to such restrictions on transferability and
other restrictions as the Committee may impose (including, without limitation,
limitations on the right to vote Restricted Stock or the right to receive
dividends on the Restricted Stock). These restrictions may lapse separately or
in combination at such times, pursuant to such circumstances, in such
installments, or otherwise, as the Committee determines at the time of the
grant of the Award or thereafter.


 


6.3                                 Forfeiture.  Except as otherwise determined by the
Committee at the time of the grant of the Award or thereafter, upon termination
of employment or service during the applicable restriction period, Restricted
Stock that is at that time subject to restrictions shall be forfeited; provided, however, that, except as
otherwise provided by Section 10.6, the Committee may (a) provide in
any Restricted Stock Award Agreement that restrictions or forfeiture conditions
relating to Restricted Stock will be waived in whole or in part in the event of
terminations resulting from specified causes, and (b) in other cases waive
in whole or in part restrictions or forfeiture conditions relating to
Restricted Stock.


 


6.4                                 Certificates
for Restricted Stock.  Restricted
Stock granted pursuant to the Plan may be evidenced in such manner as the
Committee shall determine. Certificates or book entries evidencing shares of
Restricted Stock must include an appropriate legend referring to the terms,
conditions, and restrictions applicable to such Restricted Stock, and the
Company may, in it sole discretion, retain physical possession of any stock
certificate until such time as all applicable restrictions lapse.


 


ARTICLE 7.


STOCK APPRECIATION RIGHTS


 


7.1                                 Grant
of Stock Appreciation Rights.


 


(a)                                  The
Committee is authorized to grant Stock Appreciation Rights to Eligible
Individuals from time to time, in its sole discretion, on such terms and
conditions as it may determine consistent with the Plan; provided, however, that the term of any
Stock Appreciation Right shall not be more than ten (10) years from the
date of grant.


 


(b)                                 A
Stock Appreciation Right shall entitle the Participant (or other person
entitled to exercise the Stock Appreciation Right pursuant to the Plan) to
exercise all or a specified portion of the Stock Appreciation Right (to the
extent then exercisable pursuant to its terms) and to receive from the


 


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Company an
amount determined by multiplying the difference obtained by subtracting the
exercise price per share of the Stock Appreciation Right from the Fair Market
Value on the date of exercise of the Stock Appreciation Right by the number of
shares of Common Stock with respect to which the Stock Appreciation Right shall
have been exercised, subject to any limitations the Committee may impose. The
exercise price per share of Stock subject to each Stock Appreciation Right
shall be set by the Committee, but shall not be less than 100% of the Fair
Market Value on the date the Stock Appreciation Right is granted.


 


7.2                                 Form of Payment.  Payment of the amounts determined under Section 7.1(b) shall
be in cash, shares of Common Stock (based on its Fair Market Value as of the
date the Stock Appreciation Right is exercised), or a combination of both, as
determined by the Committee.


 


ARTICLE 8.


OTHER TYPES OF AWARDS


 


8.1                                 Performance
Share Awards.  Any Participant
selected by the Committee may be granted one or more Performance Share awards
which shall be denominated in a number of shares of Stock and which may be
linked to any one or more of the Performance Criteria or other specific
performance criteria determined appropriate by the Committee, in each case on a
specified date or dates or over any period or periods determined by the
Committee. In making such determinations, the Committee shall consider (among
such other factors as it deems relevant in light of the specific type of award)
the contributions, responsibilities and other compensation of the particular
Participant.


 


8.2                                 Performance
Stock Units.  Any Participant
selected by the Committee may be granted one or more Performance Stock Unit
awards which shall be denominated in units of value including dollar value of
shares of Stock and which may be linked to any one or more of the Performance
Criteria or other specific performance criteria determined appropriate by the
Committee, in each case on a specified date or dates or over any period or
periods determined by the Committee. In making such determinations, the Committee
shall consider (among such other factors as it deems relevant in light of the
specific type of award) the contributions, responsibilities and other
compensation of the particular Participant.


 


8.3                                 Dividend
Equivalents.


 


(a)                                  Any
Participant selected by the Committee may be granted Dividend Equivalents based
on the dividends declared on the shares of Stock 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 of Stock by such formula and at such time and subject
to such limitations as may be determined by the Committee. No Dividend
Equivalent will be paid to a Participant unless and until the Award to which
such Dividend Equivalent relates vests.


 


(b)                                 Notwithstanding
the foregoing, no Dividend Equivalents shall be payable with respect to Options
or Stock Appreciation Rights.


 


8.4                                 Stock
Payments.  Any Participant selected
by the Committee may receive Stock Payments in the manner determined from time
to time by the Committee; provided,
that unless otherwise determined by the Committee such Stock Payments shall be
made in lieu of base salary, bonus, or other cash compensation otherwise
payable to such Participant. The number of shares shall be determined by the
Committee and may be based upon the Performance Criteria or other specific
performance criteria


 


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determined appropriate by the
Committee, determined on the date such Stock Payment is made or on any date
thereafter.


 


8.5                                 Deferred
Stock.  Any Participant selected by
the Committee may be granted an award of Deferred Stock in the manner
determined from time to time by the Committee. The number of shares of Deferred
Stock shall be determined by the Committee and may be linked to the Performance
Criteria or other specific performance criteria determined to be appropriate by
the Committee, in each case on a specified date or dates or over any period or
periods determined by the Committee subject to Section 10.6. Stock
underlying a Deferred Stock award will not be issued until the Deferred Stock
award has vested, pursuant to a vesting schedule or performance criteria set by
the Committee. Unless otherwise provided by the Committee, a Participant
awarded Deferred Stock shall have no rights as a Company stockholder with
respect to such Deferred Stock until such time as the Deferred Stock Award has
vested and the Stock underlying the Deferred Stock Award has been issued.


 


8.6                                 Restricted
Stock Units.  The Committee is
authorized to make Awards of Restricted Stock Units to any Participant selected
by the Committee in such amounts and subject to such terms and conditions as
determined by the Committee. At the time of grant, the Committee shall specify
the date or dates on which the Restricted Stock Units shall become fully vested
and nonforfeitable, and may specify such conditions to vesting as it deems
appropriate subject to Section 10.6. At the time of grant, the Committee
shall specify the maturity date applicable to each grant of Restricted Stock
Units which shall be no earlier than the vesting date or dates of the Award and
may be determined at the election of the grantee. On the maturity date, the
Company shall, subject to Section 10.5(b), transfer to the Participant one
unrestricted, fully transferable share of Stock for each Restricted Stock Unit
scheduled to be paid out on such date and not previously forfeited. The
Committee shall specify the purchase price, if any, to be paid by the grantee
to the Company for such shares of Stock.


 


8.7                                 Other
Stock-Based Awards.  Any Participant
selected by the Committee may be granted one or more Awards that provide
Participants with shares of Stock or the right to purchase shares of Stock or
that have a value derived from the value of, or an exercise or conversion
privilege at a price related to, or that are otherwise payable in shares of
Stock and which may be linked to any one or more of the Performance Criteria or
other specific performance criteria determined appropriate by the Committee, in
each case on a specified date or dates or over any period or periods determined
by the Committee subject to Section 10.6. In making such determinations,
the Committee shall consider (among such other factors as it deems relevant in
light of the specific type of Award) the contributions, responsibilities and
other compensation of the particular Participant.


 


8.8                                 Performance
Bonus Awards.  Any Participant
selected by the Committee may be granted one or more Performance-Based Awards
in the form of a cash bonus (a “Performance
Bonus Award”) payable upon the attainment of Performance Goals that
are established by the Committee and relate to one or more of the Performance
Criteria, in each case on a specified date or dates or over any period or
periods determined by the Committee subject to Section 10.6. Any such
Performance Bonus Award paid to a Covered Employee shall be based upon
objectively determinable bonus formulas established in accordance with Article 9.


 


8.9                                 Term.  Except as otherwise provided herein, the term
of any Award of Performance Shares, Performance Stock Units, Dividend
Equivalents, Stock Payments, Deferred Stock, Restricted Stock Units or Other
Stock-Based Award shall be set by the Committee in its discretion.


 


10
















 


8.10                           Exercise
or Purchase Price.  The Committee may
establish the exercise or purchase price, if any, of any Award of Performance
Shares, Performance Stock Units, Deferred Stock, Stock Payments, Restricted
Stock Units or Other Stock-Based Award; provided,
however, that such price shall not be less than the par value of a
share of Stock on the date of grant, unless otherwise permitted by applicable
state law.


 


8.11                           Exercise
Upon Termination of Employment or Service. 
An Award of Performance Shares, Performance Stock Units, Dividend
Equivalents, Deferred Stock, Stock Payments, Restricted Stock Units and Other
Stock-Based Award shall only be exercisable or payable while the Participant is
an Employee or Consultant, as applicable; provided,
however, that the Committee in its sole and absolute discretion may
provide that an Award of Performance Shares, Performance Stock Units, Dividend
Equivalents, Stock Payments, Deferred Stock, Restricted Stock Units or Other
Stock-Based Award may be exercised or paid subsequent to a termination of
employment or service, as applicable, or following a Change in Control of the
Company, or because of the Participant’s retirement, death or Disability, or
otherwise; provided, however,
that any such provision with respect to Performance Shares or Performance Stock
Units shall be subject to the requirements of Section 162(m) of the
Code that apply to Qualified Performance-Based Compensation.


 


8.12                           Form of
Payment.  Payments with respect to
any Awards granted under this Article 8 shall be made in cash, in Stock or
a combination of both, as determined by the Committee.


 


ARTICLE 9.


PERFORMANCE-BASED AWARDS


 


9.1                                 Purpose.  The purpose of this Article 9 is to
provide the Committee the ability to qualify Awards other than Options and SARs
and that are granted pursuant to Articles 6 and 8 as Qualified
Performance-Based Compensation. If the Committee, in its discretion, decides to
grant a Performance-Based Award to a Covered Employee, the provisions of this Article 9
shall control over any contrary provision contained in Articles 6 or 8; provided, however, that the Committee may
in its discretion grant Awards to Covered Employees that are based on
Performance Criteria or Performance Goals but that do not satisfy the
requirements of this Article 9.


 


9.2                                 Applicability.  This Article 9 shall apply only to those
Covered Employees selected by the Committee to receive Performance-Based
Awards. The designation of a Covered Employee as a Participant for a
Performance Period shall not in any manner entitle the Participant to receive
an Award for the period. Moreover, designation of a Covered Employee as a
Participant for a particular Performance Period shall not require designation
of such Covered Employee as a Participant in any subsequent Performance Period
and designation of one Covered Employee as a Participant shall not require
designation of any other Covered Employees as a Participant in such period or
in any other period.


 


9.3                                 Procedures
with Respect to Performance-Based Awards. 
To the extent necessary to comply with the Qualified Performance-Based
Compensation requirements of Section 162(m)(4)(C) of the Code, with
respect to any Award granted under Articles 6 and 8 which may be granted
to one or more Covered Employees, no later than ninety (90) days following
the commencement of any fiscal year in question or any other designated fiscal
period or period of service (or such other time as may be required or permitted
by Section 162(m) of the Code), the Committee shall, in writing, (a) designate
one or more Covered Employees, (b) select the Performance Criteria
applicable to the Performance Period, (c) establish the Performance Goals,
and amounts of such Awards, as applicable, which may be earned for such


 


11

















 


Performance Period, and (d) specify
the relationship between Performance Criteria and the Performance Goals and the
amounts of such Awards, as applicable, to be earned by each Covered Employee
for such Performance Period. Following the completion of each Performance
Period, the Committee shall certify in writing whether the applicable
Performance Goals have been achieved for such Performance Period. In
determining the amount earned by a Covered Employee, the Committee shall have
the right to reduce or eliminate (but not to increase) the amount payable at a
given level of performance to take into account additional factors that the
Committee may deem relevant to the assessment of individual or corporate
performance for the Performance Period.


 


9.4                                 Payment
of Performance-Based Awards.  Unless
otherwise provided in the applicable Award Agreement, a Participant must be
employed by the Company or a Subsidiary on the day a Performance-Based Award
for such Performance Period is paid to the Participant. Furthermore, a
Participant shall be eligible to receive payment pursuant to a
Performance-Based Award for a Performance Period only if the Performance Goals
for such period are achieved.


 


9.5                                 Additional
Limitations.  Notwithstanding any
other provision of the Plan, any Award which is granted to a Covered Employee
and is intended to constitute Qualified Performance-Based Compensation shall be
subject to any additional limitations set forth in Section 162(m) of
the Code (including any amendment to Section 162(m) of the Code) or
any regulations or rulings issued thereunder that are requirements for
qualification as qualified performance-based compensation as described in Section 162(m)(4)(C) of
the Code, and the Plan shall be deemed amended to the extent necessary to conform
to such requirements.


 


ARTICLE 10.


PROVISIONS APPLICABLE TO AWARDS


 


10.1                           Stand-Alone
and Tandem Awards.  Awards granted
pursuant to the Plan may, in the discretion of the Committee, be granted either
alone, in addition to, or in tandem with, any other Award granted pursuant to
the Plan. Awards granted in addition to or in tandem with other Awards may be
granted either at the same time as or at a different time from the grant of
such other Awards.


 


10.2                           Award
Agreement.  Awards under the Plan
shall be evidenced by Award Agreements that set forth the terms, conditions and
limitations for each Award which may include the term of an Award, the
provisions applicable in the event the Participant’s employment or service
terminates, and the Company’s authority to unilaterally or bilaterally amend,
modify, suspend, cancel or rescind an Award.


 


10.3                           Limits
on Transfer.  No right or interest of
a Participant in any Award may be pledged, encumbered, or hypothecated to or in
favor of any party other than the Company or a Subsidiary, or shall be subject
to any lien, obligation, or liability of such Participant to any other party
other than the Company or a Subsidiary. Except as otherwise provided by the
Committee, no Award shall be assigned, transferred, or otherwise disposed of by
a Participant other than by will or the laws of descent and distribution. The
Committee by express provision in the Award or an amendment thereto may permit
an Award (other than an Incentive Stock Option) to be transferred to, exercised
by and paid to certain persons or entities related to the Participant,
including but not limited to members of the Participant’s family, charitable
institutions, or trusts or other entities whose beneficiaries or beneficial
owners are members of the Participant’s family and/or charitable institutions,
or to such other persons or entities as may be expressly approved by the
Committee, pursuant to such conditions and procedures as the Committee may
establish. Any permitted transfer shall be subject to the condition that the
Committee receive evidence satisfactory to it that the


 


12

















 


transfer is being made for
estate and/or tax planning purposes (or to a “blind trust” in connection with
the Participant’s termination of employment or service with the Company or a
Subsidiary to assume a position with a governmental, charitable, educational or
similar non-profit institution) and on a basis consistent with the Company’s
lawful issue of securities.


 


10.4                           Beneficiaries.  Notwithstanding Section 10.3, a
Participant may, in the manner determined by the Committee, designate a
beneficiary to exercise the rights of the Participant and to receive any
distribution with respect to any Award upon the Participant’s death. A
beneficiary, legal guardian, legal representative, or other person claiming any
rights pursuant to the Plan is subject to all terms and conditions of the Plan
and any Award Agreement applicable to the Participant, except to the extent the
Plan and Award Agreement otherwise provide, and to any additional restrictions
deemed necessary or appropriate by the Committee. If the Participant is married
and resides in a community property state, a designation of a person other than
the Participant’s spouse as his or her beneficiary with respect to more than
50% of the Participant’s interest in the Award shall not be effective without
the prior written consent of the Participant’s spouse. If no beneficiary has
been designated or survives the Participant, payment shall be made to the
person entitled thereto pursuant to the Participant’s will or the laws of
descent and distribution. Subject to the foregoing, a beneficiary designation
may be changed or revoked by a Participant at any time provided the change or
revocation is filed with the Committee.


 


10.5                           Stock
Certificates; Book Entry Procedures.


 


(a)                                  Notwithstanding
anything herein to the contrary, the Company shall not be required to issue or
deliver any certificates evidencing shares of Stock pursuant to the exercise of
any Award, unless and until the Board has determined, with advice of counsel,
that the issuance and delivery of such certificates is in compliance with all
applicable laws, regulations of governmental authorities and, if applicable,
the requirements of any exchange on which the shares of Stock are listed or
traded. All Stock certificates delivered pursuant to the Plan are subject to
any stop-transfer orders and other restrictions as the Committee deems
necessary or advisable to comply with federal, state, or foreign jurisdiction,
securities or other laws, rules and regulations and the rules of any
national securities exchange or automated quotation system on which the Stock
is listed, quoted, or traded. The Committee may place legends on any Stock
certificate to reference restrictions applicable to the Stock. In addition to
the terms and conditions provided herein, the Board may require that a
Participant make such reasonable covenants, agreements, and representations as
the Board, in its discretion, deems advisable in order to comply with any such
laws, regulations, or requirements. The Committee shall have the right to
require any Participant to comply with any timing or other restrictions with
respect to the settlement or exercise of any Award, including a window-period
limitation, as may be imposed in the discretion of the Committee.


 


(b)                                 Notwithstanding
any other provision of the Plan, unless otherwise determined by the Committee
or required by any applicable law, rule or regulation, the Company shall
not deliver to any Participant certificates evidencing shares of Stock issued
in connection with any Award and instead such shares of Stock shall be recorded
in the books of the Company (or, as applicable, its transfer agent or stock
plan administrator).


 


10.6                           Full Value
Award Vesting Limitations. 
Notwithstanding any other provision of this Plan to the contrary, Full
Value Awards made to Employees or Consultants shall become vested over a period
of not less than three years (or, in the case of vesting based upon the
attainment of Performance Goals or other performance based objectives, over a
period of not less than one year) following the date the Award is


 


13

















 


made; provided, however, that, notwithstanding
the foregoing, Full Value Awards that result in the issuance of an aggregate of
up to 5% of the shares of Stock available pursuant to Section 3.1(a) may
be granted to any one or more Participants without respect to such minimum
vesting provisions.


 


10.7                           Paperless
Administration.  In the event that
the Company establishes, for itself or using the services of a third party, an
automated system for the documentation, granting or exercise of Awards, such as
a system using an internet website or interactive voice response, then the
paperless documentation, granting or exercise of Awards by a Participant may be
permitted through the use of such an automated system.


 


10.8                           Payment.  The Committee shall determine the methods by
which Participants may make payment with respect to any Awards granted under
the Plan, which shall include, without limitation: (i) cash, (ii) promissory
note bearing interest at no less than such rate as shall then preclude the
imputation of interest under the Code, (iii) shares of Stock held for such
period of time as may be required by the Committee in order to avoid adverse
accounting consequences and having a Fair Market Value on the date of delivery
equal to the aggregate exercise price of the Option or exercised portion
thereof, or (iv) other property acceptable to the Committee (including
through the delivery of a notice that the Participant has placed a market sell
order with a broker with respect to shares of Stock then issuable upon exercise
of the Option, and that the broker has been directed to pay a sufficient
portion of the net proceeds of the sale to the Company in satisfaction of the
Option exercise price; provided
that payment of such proceeds is then made to the Company upon settlement of
such sale), and the methods by which shares of Stock shall be delivered or
deemed to be delivered to Participants. Notwithstanding any other provision of
the Plan to the contrary, no Participant shall be permitted to make payment on
any Award granted under the Plan with a loan or other extension of credit from
the Company.


 


ARTICLE 11.


CHANGES IN CAPITAL STRUCTURE


 


11.1                           Adjustments.


 


(a)                                  In
the event of any stock dividend, stock split, combination or exchange of
shares, merger, consolidation, spin-off, recapitalization, distribution of
Company assets to stockholders (other than normal cash dividends), or any other
corporate event affecting the Stock or the share price of the Stock, the
Committee shall make such proportionate and equitable adjustments, if any, as
the Committee in its discretion deems appropriate to reflect such changes with
respect to (i) the aggregate number and type of shares that may be issued
under the Plan (including, but not limited to, adjustments of the limitations
in Sections 3.1 and 3.3); (ii) the terms and conditions of any
outstanding Awards (including, without limitation, any applicable performance
targets or criteria with respect thereto); and/or (iii) the grant or
exercise price per share for any outstanding Awards under the Plan. Any
adjustment affecting an Award intended as Qualified Performance-Based
Compensation shall be made consistent with the requirements of Section 162(m) of
the Code.


 


(b)                                 In
the event of any transaction or event described in Section 11.1(a) or
any unusual or nonrecurring transactions or events affecting the Company, any
affiliate of the Company, or the financial statements of the Company or any
affiliate (including without limitation any Change in Control), or of changes
in applicable laws, regulations or accounting principles, and whenever the
Committee determines that action is appropriate in order to prevent the
dilution or enlargement of the benefits or potential benefits intended to be
made available under the Plan or with respect to any


 


14

















 


Award under the
Plan, to facilitate such transactions or events or to give effect to such
changes in laws, regulations or principles, the Committee, in its sole
discretion and on such terms and conditions as it deems appropriate, either by
amendment of the terms of any outstanding Awards or by action taken prior to
the occurrence of such transaction or event and either automatically or upon
the Participant’s request, is hereby authorized to take any one or more of the
following actions:


 


(i)                                     To
provide for either (A) termination of any such Award in exchange for an
amount of cash and/or other property, if any, equal to the amount that would
have been attained upon the exercise of such Award or realization of the
Participant’s rights (and, for the avoidance of doubt, if as of the date of the
occurrence of the transaction or event described in this Section 11.1(b) the
Committee determines in good faith that no amount would have been attained upon
the exercise of such Award or realization of the Participant’s rights, then such
Award may be terminated by the Company without payment) or (B) the
replacement of such Award with other rights or property selected by the
Committee in its sole discretion having an aggregate value not exceeding the
amount that could have been attained upon the exercise of such Award or
realization of the Participant’s rights had such Award been currently
exercisable or payable or fully vested;


 


(ii)                                  To
provide that such Award be assumed by the successor or survivor corporation, or
a parent or subsidiary thereof, or shall be substituted for by similar options,
rights or awards covering the stock of the successor or survivor corporation,
or a parent or subsidiary thereof, with appropriate adjustments as to the
number and kind of shares and prices; and


 


(iii)                               To
make adjustments in the number and type of shares of Stock (or other securities
or property) subject to outstanding Awards, and in the number and kind of
outstanding Restricted Stock or Deferred Stock and/or in the terms and
conditions of (including the grant or exercise price), and the criteria
included in, outstanding options, rights and awards and options, rights and
awards which may be granted in the future;


 


(iv)                              To
provide that such Award shall be exercisable or payable or fully vested with
respect to all shares covered thereby, notwithstanding anything to the contrary
in the Plan or the applicable Award Agreement; and


 


(v)                                 To
provide that the Award cannot vest, be exercised or become payable after such
event.


 


11.2                           Impact
of a Change in Control.  Subject to
any applicable requirements of Section 409A of the Code, upon or in
anticipation of, a Change in Control, the Committee, in its sole and absolute
discretion, may (a) cause any and all Awards outstanding hereunder to
become fully exercisable, (b) cause all forfeiture conditions to lapse and
to terminate at a specific time in the future, including but not limited to the
date of such Change in Control, (c) give each Participant the right to
exercise such Awards during a period of time as the Committee, in its sole and
absolute discretion, shall determine, and/or (d) cause any and all Awards
outstanding hereunder to terminate at a specific time in the future, including
but not limited to the date of such Change in Control. In the event that the
terms of any agreement between the Company or any Company Subsidiary or
affiliate and a Participant contains provisions that conflict with and are more
restrictive than the provisions of this Section 11.2, this Section 11.2
shall prevail and control and the more restrictive terms of such agreement (and
only such terms) shall be of no force or effect.


 


11.3                           Outstanding
Awards—Certain Mergers.  Subject to
any required action by the stockholders of the Company, in the event that the
Company shall be the surviving corporation in any merger or consolidation
(except a merger or consolidation as a result of which the holders of shares of
Stock receive securities of another corporation), each Award outstanding on the
date of such merger or consolidation


 


15

















 


shall pertain to and apply to
the securities that a holder of the number of shares of Stock subject to such
Award would have received in such merger or consolidation.


 


11.4                           Outstanding
Awards—Other Changes.  In the event
of any other change in the capitalization of the Company or corporate change
other than those specifically referred to in this Article 11, the
Committee may, in its sole and absolute discretion, make such adjustments in
the number and kind of shares or other securities subject to Awards outstanding
on the date on which such change occurs and in the per share grant or exercise
price of each Award as the Committee may consider appropriate to prevent
dilution or enlargement of rights hereunder.


 


11.5                           No Other
Rights.  Except as expressly provided
in the Plan, no Participant shall have any rights by reason of any subdivision
or consolidation of shares of stock of any class, the payment of any dividend,
any increase or decrease in the number of shares of stock of any class or any
dissolution, liquidation, merger, or consolidation of the Company or any other
corporation. Except as expressly provided in the Plan or pursuant to action of
the Committee under the Plan, no issuance by the Company of shares of stock of
any class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to, the
number of shares of Stock subject to an Award or the grant or exercise price of
any Award.


 


ARTICLE 12.


ADMINISTRATION


 


12.1                           Committee.  The Compensation Committee (or another
committee or a subcommittee of the Board assuming the functions of the
Committee under the Plan) shall administer the Plan (except as otherwise
permitted herein) and shall consist solely of two or more Non-Employee
Directors appointed by and holding office at the pleasure of the Board, each of
whom is intended to qualify as both a “non-employee director” as defined by Rule 16b-3
of the Exchange Act or any successor rule, an “outside director” for purposes
of Section 162(m) of the Code and an “independent director” under the
rules of the New York Stock Exchange (or other principal securities market
on which shares of Common Stock are traded); provided,
that any action taken by the Committee shall be valid and effective, whether or
not members of the Committee at the time of such action are later determined
not to have satisfied the requirements for membership set forth in this Section 12.l
or otherwise provided in any charter of the Committee. Except as may otherwise
be provided in any charter of the Committee, appointment of Committee members
shall be effective upon acceptance of appointment. Committee members may resign
at any time by delivering written notice to the Board. Vacancies in the
Committee may only be filled by the Board. Notwithstanding the foregoing, (a) the
full Board, acting by a majority of its members in office, shall conduct the
general administration of the Plan with respect to Awards granted to
Non-Employee Directors and (b) the Board or Committee may delegate its
authority hereunder to the extent permitted by Section 12.5.


 


12.2                           Action
by the Committee.  Unless otherwise
established by the Board or in any charter of the Committee, a majority of the
Committee shall constitute a quorum and the acts of a majority of the members
present at any meeting at which a quorum is present, and acts approved in
writing by all members of the Committee in lieu of a meeting, shall be deemed
the acts of the Committee. Each member of the Committee is entitled to, in good
faith, rely or act upon any report or other information furnished to that
member by any officer or other employee of the Company or any Subsidiary, the
Company’s independent certified public accountants, or any executive
compensation consultant or other professional retained by the Company to assist
in the administration of the Plan


 


16

















 


12.3                           Authority
of Committee.  Subject to any
specific designation in the Plan, the Committee has the exclusive power,
authority and discretion to:


 


(a)                                  Designate
Participants to receive Awards;


 


(b)                                 Determine
the type or types of Awards to be granted to each Participant;


 


(c)                                  Determine
the number of Awards to be granted and the number of shares of Stock to which
an Award will relate;


 


(d)                                 Determine
the terms and conditions of any Award granted pursuant to the Plan, including,
but not limited to, the exercise price, grant price, or purchase price, any
reload provision, any restrictions or limitations on the Award, any schedule
for lapse of forfeiture restrictions or restrictions on the exercisability of
an Award, and accelerations or waivers thereof, any provisions related to
noncompetition and recapture of gain on an Award, based in each case on such
considerations as the Committee in its sole discretion determines; provided, however, that the Committee
shall not have the authority to accelerate the vesting or waive the forfeiture
of any Performance-Based Awards;


 


(e)                                  Determine
whether, to what extent, and pursuant to what circumstances an Award may be
settled in, or the exercise price of an Award may be paid in, cash, Stock,
other Awards, or other property, or an Award may be canceled, forfeited, or
surrendered;


 


(f)                                    Prescribe
the form of each Award Agreement, which need not be identical for each
Participant;


 


(g)                                 Decide
all other matters that must be determined in connection with an Award;


 


(h)                                 Establish,
adopt, or revise any rules and regulations as it may deem necessary or
advisable to administer the Plan;


 


(i)                                     Interpret
the terms of, and any matter arising pursuant to, the Plan or any Award
Agreement; and


 


(j)                                     Make
all other decisions and determinations that may be required pursuant to the
Plan or as the Committee deems necessary or advisable to administer the Plan.


 


12.4                           Decisions
Binding.  The Committee’s
interpretation of the Plan, any Awards granted pursuant to the Plan, any Award
Agreement and all decisions and determinations by the Committee with respect to
the Plan are final, binding, and conclusive on all parties.


 


12.5                           Delegation
of Authority.  To the extent
permitted by applicable law, the Committee may from time to time delegate to a
committee of one or more members of the Board or one or more officers of the
Company the authority to grant or amend Awards to Participants other than (a) senior
executives of the Company who are subject to Section 16 of the Exchange
Act, (b) Covered Employees, or (c) officers of the Company (or
members of the Board) to whom authority to grant or amend Awards has been
delegated hereunder. Any delegation hereunder shall be subject to the
restrictions and limits that the Committee specifies at the time of such
delegation, and the Committee may at any time rescind the authority so
delegated or appoint a new delegatee. At all times, the delegatee appointed
under this Section 12.5 shall serve in such capacity at the pleasure of
the Committee.


 


17

















 


ARTICLE
13.


EFFECTIVE AND EXPIRATION DATE


 


13.1                           Effective
Date.  The Plan was originally
adopted effective on May 11, 2005, the date it was originally approved by
the Company’s stockholders. This Amended and Restated Plan will be effective on
the date it is approved by the affirmative vote of the holders of a majority of
the shares of stock of the Company present or represented and entitled to vote
at the 2009 annual meeting if such meeting is duly held in accordance with the
applicable provisions of the Company’s Bylaws (the “Restatement Effective Date”).


 


13.2                           Expiration
Date.  The Plan will expire on, and
no Incentive Stock Option or other Award may be granted pursuant to the Plan
after the tenth anniversary of the Restatement Effective Date. Any Awards that
are outstanding on the tenth anniversary of the Restatement Effective Date
shall remain in force according to the terms of the Plan and the applicable
Award Agreement.


 


ARTICLE 14.


AMENDMENT, MODIFICATION, AND TERMINATION


 


14.1                           Amendment,
Modification And Termination.  With
the approval of the Board, at any time and from time to time, the Committee may
terminate, amend or modify the Plan; provided,
however, that (a) to the extent necessary and desirable to
comply with any applicable law, regulation, or stock exchange rule, the Company
shall obtain stockholder approval of any Plan amendment in such a manner and to
such a degree as required, and (b) except as permitted under Article 11,
stockholder approval is required for any amendment to the Plan that (i) increases
the number of shares available under the Plan (other than any adjustment as
provided by Article 11), (ii) permits the Committee to grant Options
or SARs with an exercise price that is below Fair Market Value on the date of
grant, (iii) permits the Committee to extend the exercise period for an
Option or Stock Appreciation Right beyond ten years from the date of grant, (iv) reduce
the exercise price per share of any outstanding Option or Stock Appreciation
Right granted under the Plan, (v) cancel any Option or Stock Appreciation
Right in exchange for cash or another Award when the Option or Stock
Appreciation Right’s price per share exceeds the Fair Market Value of a share
of Common Stock, or (vi) results in a material increase in benefits or a
change in eligibility requirements.


 


14.2                           Awards
Previously Granted.  No termination,
amendment, or modification of the Plan shall adversely affect in any material
way any Award previously granted pursuant to the Plan without the prior written
consent of the Participant.


 


ARTICLE 15.


GENERAL PROVISIONS


 


15.1                           No
Rights to Awards.  No Eligible
Individual or other person shall have any claim to be granted any Award
pursuant to the Plan, and neither the Company nor the Committee is obligated to
treat Eligible Individuals, Participants or any other persons uniformly.


 


15.2                           No Stockholders
Rights.  Except as otherwise provided
herein, a Participant shall have none of the rights of a stockholder with
respect to shares of Stock covered by any Award until the Participant becomes
the record owner of such shares of Stock.


 


15.3                           Withholding.  The Company or any Subsidiary shall have the
authority and the right to deduct or withhold, or require a Participant to
remit to the Company, an amount sufficient to satisfy federal, state,


 


18

















 


local and foreign taxes
(including the Participant’s FICA obligation) required by law to be withheld
with respect to any taxable event concerning a Participant arising as a result
of this Plan. The Committee may in its discretion and in satisfaction of the
foregoing requirement allow a Participant to elect to have the Company withhold
shares of Stock otherwise issuable under an Award (or allow the return of
shares of Stock) having a Fair Market Value equal to the sums required to be
withheld. Notwithstanding any other provision of the Plan, the number of shares
of Stock which may be withheld with respect to the issuance, vesting, exercise
or payment of any Award (or which may be repurchased from the Participant of
such Award within six months (or such other period as may be determined by the
Committee) after such shares of Stock were acquired by the Participant from the
Company) in order to satisfy the Participant’s federal, state, local and
foreign income and payroll tax liabilities with respect to the issuance, vesting,
exercise or payment of the Award shall be limited to the number of shares which
have a Fair Market Value on the date of withholding or repurchase equal to the
aggregate amount of such liabilities based on the minimum statutory withholding
rates for federal, state, local and foreign income tax and payroll tax purposes
that are applicable to such supplemental taxable income.


 


15.4                           No
Right to Employment or Services. 
Nothing in the Plan or any Award Agreement shall interfere with or limit
in any way the right of the Company or any Subsidiary to terminate any
Participant’s employment or services at any time, nor confer upon any
Participant any right to continue in the employ or service of the Company or
any Subsidiary.


 


15.5                           Unfunded
Status of Awards.  The Plan is
intended to be an “unfunded” plan for incentive compensation. With respect to
any payments not yet made to a Participant pursuant to an Award, nothing
contained in the Plan or any Award Agreement shall give the Participant any
rights that are greater than those of a general creditor of the Company or any
Subsidiary.


 


15.6                           Indemnification.  To the extent allowable pursuant to
applicable law, each member of the Committee or of the Board shall be
indemnified and held harmless by the Company from any loss, cost, liability, or
expense that may be imposed upon or reasonably incurred by such member 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 or failure to act pursuant to the Plan and against and from any
and all amounts paid by him or her in satisfaction of judgment in such action,
suit, or proceeding against him or her; provided
he or she gives 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. The foregoing right of indemnification shall not be exclusive
of any other rights of indemnification to which such persons may be entitled
pursuant to the Company’s Certificate of Incorporation or Bylaws, as a matter
of law, or otherwise, or any power that the Company may have to indemnify them
or hold them harmless.


 


15.7                           Relationship
to other Benefits.  No payment
pursuant to the Plan shall be taken into account in determining any benefits
pursuant to any pension, retirement, savings, profit sharing, group insurance,
welfare or other benefit plan of the Company or any Subsidiary except to the
extent otherwise expressly provided in writing in such other plan or an
agreement thereunder.


 


15.8                           Expenses.  The expenses of administering the Plan shall
be borne by the Company and its Subsidiaries.


 


15.9                           Titles
and Headings.  The titles and
headings of the Sections in the Plan are for convenience of reference only and,
in the event of any conflict, the text of the Plan, rather than such titles or
headings, shall control.


 


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15.10                     Fractional
Shares.  No fractional shares of
Stock shall be issued and the Committee shall determine, in its discretion,
whether cash shall be given in lieu of fractional shares or whether such
fractional shares shall be eliminated by rounding up or down as appropriate.


 


15.11                     Limitations
Applicable to Section 16 Persons. 
Notwithstanding any other provision of the Plan, the Plan, and any Award
granted or awarded to any Participant who is then subject to Section 16 of
the Exchange Act, shall be subject to any additional limitations set forth in
any applicable exemptive rule under Section 16 of the Exchange Act
(including any amendment to Rule 16b-3 of the Exchange Act) that are
requirements for the application of such exemptive rule. To the extent
permitted by applicable law, the Plan and Awards granted or awarded hereunder
shall be deemed amended to the extent necessary to conform to such applicable
exemptive rule.


 


15.12                     Government
and Other Regulations.  The
obligation of the Company to make payment of awards in Stock or otherwise shall
be subject to all applicable laws, rules, and regulations, and to such
approvals by government agencies as may be required. The Company shall be under
no obligation to register pursuant to the Securities Act of 1933, as amended,
any of the shares of Stock paid pursuant to the Plan. If the shares paid
pursuant to the Plan may in certain circumstances be exempt from registration
pursuant to the Securities Act of 1933, as amended, the Company may restrict
the transfer of such shares in such manner as it deems advisable to ensure the
availability of any such exemption.


 


15.13                     Section 409A.  To the extent that the Committee determines
that any Award granted under the Plan is subject to Section 409A of the
Code, the Award Agreement evidencing such Award shall incorporate the terms and
conditions required by Section 409A of the Code. To the extent applicable,
the Plan and Award Agreements shall be interpreted in accordance with Section 409A
of the Code and Department of Treasury regulations and other interpretive
guidance issued thereunder, including without limitation any such regulations
or other guidance that may be issued after the Effective Date. Notwithstanding
any provision of the Plan to the contrary, in the event that following the
Effective Date the Committee determines that any Award may be subject to Section 409A
of the Code and related Department of Treasury guidance (including such
Department of Treasury guidance as may be issued after the Effective Date), the
Committee may adopt such amendments to the Plan and the applicable Award Agreement
or adopt other policies and procedures (including amendments, policies and
procedures with retroactive effect), or take any other actions, that the
Committee determines are necessary or appropriate to (a) exempt the Award
from Section 409A of the Code and/or preserve the intended tax treatment
of the benefits provided with respect to the Award, or (b) comply with the
requirements of Section 409A of the Code and related Department of
Treasury guidance.


 


15.14                     Governing
Law.  The Plan and all Award Agreements
shall be construed in accordance with and governed by the laws of the State of
Delaware.


 


* * * * *


 


I hereby
certify that the foregoing Plan was duly adopted by the Board of Directors of
Owens-Illinois, Inc. on March 26, 2009.


 


* * * * *


 


I hereby certify
that the foregoing Plan was approved by the stockholders of Owens-Illinois, Inc.
on April 23, 2009.


 


Executed on
this 24th day of April, 2009.


 


 


	
   

  	
   

  	
  /s/ James W. Baehren

  
	
   

  	
   

  	
  Corporate Secretary

  



 


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