Exhibit 10.58


 


MXENERGY
HOLDINGS INC.


2010
STOCK INCENTIVE PLAN


 






 


Plan Document


 






 


1.             Introduction.


 


(a)           Purpose.  MXenergy Holdings Inc. (the “Company”) hereby
establishes this equity-based incentive compensation plan to be known as the “MXenergy
Holdings Inc. 2010 Stock Incentive Plan”
(the “Plan”), for the following purposes: (i) to enhance the Company’s ability to attract highly
qualified personnel; (ii) to strengthen its retention capabilities; (iii) to
enhance the long-term performance and competitiveness of the Company; and (iv) to align the
interests of Plan participants with those of the Company’s shareholders.  This Plan is intended to serve as the sole source for
all future equity-based awards to those eligible for Plan participation.


 


(b)           Effective Date. 
This Plan shall become effective on the date (the “Effective Date”)
upon which it has received  Board  approval in accordance with the Company’s governing
instruments.


 


(c)           Definitions. 
Terms in the Plan and any Appendix that begin with an initial capital
letter have the defined meaning set forth in Appendix I
or elsewhere in this Plan, in either case unless the context of their use
clearly indicates a different meaning.


 


(d)           Effect on Other Plans, Awards,
and Arrangements.  This Plan is not intended to affect and shall
not affect any stock options, equity-based compensation, or other benefits that
the Company or its Affiliates may have provided, or may separately provide in
the future, pursuant to any agreement, plan, or program that is independent of
this Plan.  Notwithstanding the
foregoing, no further awards of any kind shall occur under any other Company
plan or program that entails the issuance of Share-settled awards, and any
Shares that are currently reserved for awards under any such plans (as well as
any Shares that in the future would have become available for awards under
those plans) shall be added to the reserve of Shares that are authorized and
available for issuance pursuant to this Plan.


 


(e)           Appendices. 
Incorporated by reference and thereby part of the Plan are the terms set
forth in Appendix I (Definitions).


 


2.             Types of Awards.  The Plan permits the granting of the
following types of Awards according to the Sections of the Plan listed here:


 


	
  Section 5

  	
   

  	
  Stock Options

  
	
  Section 6

  	
   

  	
  Share Appreciation
  Rights (“SARs”)

  
	
  Section 7

  	
   

  	
  Restricted Shares,
  Restricted Share Units (“RSUs”), and Unrestricted Shares

  
	
  Section 8

  	
   

  	
  Deferred Share Units (“DSUs”)

  
	
  Section 9

  	
   

  	
  Performance and
  Cash-settled Awards

  
	
  Section 10

  	
   

  	
  Dividend Equivalent
  Rights

  



 

















 


3.             Shares Available for Awards.


 


(a)           Generally, Subject to Section 13 below, a total of ten
percent of the number of Shares outstanding on the Effective Date (equal to
5,716,328 Shares) shall be available for issuance under the Plan.  The Shares deliverable pursuant to Awards
shall be authorized but unissued Shares, or Shares that the Company otherwise
holds in treasury or in trust.


 


(b)           Replenishment; Counting of Shares. 
Any Shares reserved for Plan Awards will again be available for future
Awards if the Shares for any reason will never be issued to a Participant or
Beneficiary pursuant to an Award (for example, due to its settlement in cash
rather than in Shares, or the Award’s forfeiture, cancellation, expiration, or
net settlement without the issuance of Shares). 
Further, and to the extent permitted under Applicable Law, the maximum
number of Shares available for delivery under the Plan shall not be reduced by
any Shares issued under the Plan through the settlement, assumption, or
substitution of outstanding awards or obligations to grant future awards as a
condition of the Company’s or an Affiliate’s acquiring another entity.  On the other hand, Shares that a Person owns
and tenders in payment of all or part of the exercise price of an Award or in
satisfaction of applicable Withholding Taxes shall not increase the number of
Shares available for future issuance under the Plan.


 


4.             Eligibility.


 


(a)           General Rule. 
Subject to the express provisions of the Plan, the Committee shall
determine from the class of Eligible Persons those Persons to whom Awards may
be granted.  Each Award shall be
evidenced by an Award Agreement that sets forth its Grant Date and all other
terms and conditions of the Award, that is signed on behalf of the Company (or
delivered by an authorized agent through an electronic medium), and that, if
required by the Committee, is signed by the Eligible Person as an acceptance of
the Award.  The grant of an Award shall not obligate the Company or
any Affiliate to continue the employment or service of any Eligible Person, or
to provide any future Awards or other remuneration at any time thereafter.


 


(b)           Option and SAR Limits per Person. 
During the term of the Plan, no Participant may receive Options and SARs
that relate to more than 50% of the maximum number of Shares issuable under the
Plan as of its Effective Date, as such number may be adjusted pursuant to Section 13
below.


 


(c)           Replacement Awards. 
Subject to Applicable Law (including any associated shareholder approval
requirements), the Committee may, in its sole discretion and upon such terms as
it deems appropriate, require as a condition of the grant of an Award to a
Participant that the Participant, with the Participant’s consent, surrender for
cancellation some or all of the Awards or other grants that the Participant has
received under this Plan or otherwise. 
An Award conditioned upon such surrender may or may not be the same type
of Award, may cover the same (or a lesser or greater) number of Shares as such
surrendered Award, may have other terms that are determined without regard to
the terms or conditions of such surrendered Award, and may contain any other
terms that the Committee deems appropriate. 
In the case of Options and SARs, these other terms may not involve an
exercise price that is lower than the exercise price of the surrendered Option
or SAR unless the Company’s shareholders approve the grant itself or the
program under which the grant is made pursuant to the Plan.


 


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5.             Stock Options.


 


(a)           Grants.  Subject to the special rules for ISOs set forth
in the next paragraph, the Committee may grant Options to Eligible Persons
pursuant to Award Agreements setting forth terms and conditions that are not
inconsistent with the Plan, that may be immediately exercisable or that may
become exercisable in whole or in part based on future events or conditions,
that may include vesting or other requirements for the right to exercise the
Option, and that may differ for any reason between Eligible Persons or classes
of Eligible Persons, provided in
all instances that:


 


(i)         the exercise price for Shares subject to
purchase through exercise of an Option shall not be less than 100% of the Fair
Market Value of the underlying Shares on the Grant Date; and


 


(ii)        no Option shall be exercisable for a term
ending more than ten years after its Grant Date.


 


(b)           Special ISO Provisions.  The following provisions shall control any
grants of Options that are denominated as ISOs; provided
that  ISOs may not be awarded unless the Plan receives
shareholder approval within twelve (12) months after its Effective Date.


 


(i)         Eligibility. 
The Committee may grant ISOs only to Employees (including officers who
are Employees) of the Company or an Affiliate that is a “parent corporation” or
“subsidiary corporation” within the meaning of Code Section 424.


 


(ii)        Documentation.  Each Option that is intended to be an ISO must be
designated in the Award Agreement as an ISO, provided
that any Option designated as an ISO will be a Non-ISO to the extent the Option
fails to meet the requirements of Code Section 422.  In the case of an ISO, the Committee shall
determine on the Date of Grant the acceptable methods of paying the exercise
price for Shares, and it shall be included in the applicable Award Agreement.


 


(iii)       $100,000 Limit. 
To the extent that the aggregate Fair Market Value of Shares with
respect to which ISOs first become exercisable by a Participant in any calendar
year (under this Plan and any other plan of the Company or any Affiliate)
exceeds U.S. $100,000, such excess Options shall be treated as Non-ISOs.  For purposes of determining whether the U.S.
$100,000 limit is exceeded, the Fair Market Value of the Shares subject to an
ISO shall be determined as of the Grant Date. 
In reducing the number of Options treated as ISOs to meet the U.S.
$100,000 limit, the most recently granted Options shall be reduced first.  In the event that Code Section 422 is
amended to alter the limitation set forth therein, the limitation of this
paragraph shall be automatically adjusted accordingly.


 


(iv)       Grants to 10% Holders. 
In the case of an ISO granted to an Employee who is a Ten Percent Holder
on the Grant Date, the ISO’s term shall not exceed five years from the Grant
Date, and the exercise price shall be at least 110% 


 


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of the Fair Market
Value of the underlying Shares on the Grant Date.  In the event that Code Section 422 is
amended to alter the limitations set forth therein, the limitation of this
paragraph shall be automatically adjusted accordingly.


 


(v)        Substitution of Options. 
In the event the Company or an Affiliate acquires (whether by purchase,
merger, or otherwise) all or substantially all of outstanding capital stock or
assets of another corporation or in the event of any reorganization or other
transaction qualifying under Code Section 424, the Committee may, in
accordance with the provisions of that Section, substitute ISOs for ISOs
previously granted under the plan of the acquired company provided (A) the
excess of the aggregate Fair Market Value of the Shares subject to an ISO
immediately after the substitution over the aggregate exercise price of such
shares is not more than the similar excess immediately before such
substitution, and (B) the new ISO does not give additional benefits to the
Participant, including any extension of the exercise period.


 


(vi)       Notice of Disqualifying Dispositions. 
By executing an ISO Award Agreement, each Participant agrees to notify
the Company in writing immediately after the Participant sells, transfers or
otherwise disposes of any Shares acquired through exercise of the ISO, if such
disposition occurs within the earlier of (A) two years of the Grant Date,
or (B) one year after the exercise of the ISO being exercised.  Each Participant further agrees to provide
any information about a disposition of Shares as may be requested by the
Company to assist it in complying with any applicable tax laws.


 


(c)           Method of Exercise. 
Each Option may be exercised, in whole or in part (provided
that the Company shall not be required to issue fractional shares) at any time
and from time to time prior to its expiration, but only pursuant to the terms
of the applicable Award Agreement, and subject to the times, circumstances and
conditions for exercise contained in the applicable Award Agreement.  Exercise shall occur by delivery of both
written notice of exercise to the secretary of the Company, and payment of the full
exercise price for the Shares being purchased. 
The methods of payment that the Committee may in its discretion accept
or commit to accept in an Award Agreement include:


 


(i)            cash or check payable to the Company (in
U.S. dollars);


 


(ii)           other Shares that (A) are owned by
the Participant who is purchasing Shares pursuant to an Option, (B) have a
Fair Market Value on the date of surrender equal to the aggregate exercise
price of the Shares as to which the Option is being exercised, (C) are
all, at the time of such surrender, free and clear of any and all claims,
pledges, liens and encumbrances, or any restrictions which would in any manner
restrict the transfer of such shares to or by the Company (other than such
restrictions as may have existed prior to an issuance of such Shares by the
Company to such Participant), and (D) are duly endorsed for transfer to
the Company;


 


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(iii)          a net exercise by surrendering to the Company Shares otherwise receivable
upon exercise of the Option;


 


(iv)          a cashless exercise program that the
Committee may approve, from time to time in its discretion, pursuant to which a
Participant may elect to concurrently provide irrevocable instructions (A) to
such Participant’s broker or dealer to effect the immediate sale of the
purchased Shares and remit to the Company, out of the sale proceeds available
on the settlement date, sufficient funds to cover the exercise price of the
Option plus all applicable taxes required to be withheld by the Company by
reason of such exercise, and (B) to the Company to deliver the
certificates for the purchased Shares directly to such broker or dealer in
order to complete the sale; or


 


(v)           any combination of the foregoing methods
of payment.


 


The
Company shall not be required to deliver Shares pursuant to the exercise of an
Option until the Company has received sufficient funds to cover the full
exercise price due and all applicable Withholding Taxes required by reason of
such exercise.


 


Notwithstanding any other provision of the Plan to the contrary, no
Participant who is a Director or an “executive officer” of the Company within
the meaning of Section 13(k) of the Exchange Act shall be permitted
to make payment with respect to any Awards granted under the Plan, or continue
any extension of credit with respect to such payment with a loan from the
Company or a loan arranged by the Company in violation of Section 13(k) of
the Exchange Act.


 


(d)           Exercise of an Unvested Option. 
The Committee in its sole discretion may allow a Participant to exercise
an unvested Option, in which case the Shares then issued shall be Restricted
Shares having analogous vesting restrictions to the unvested Option.


 


(e)           Termination of Continuous Service. 
The Committee may establish and set forth in the applicable Award Agreement
the terms and conditions on which an Option shall remain exercisable, if at
all, following termination of a Participant’s Continuous Service.  The Committee may waive or modify these
provisions at any time.  To the extent
that a Participant is not entitled to exercise an Option at the date of his or
her termination of Continuous Service, or if the Participant (or other person
entitled to exercise the Option) does not exercise the Option to the extent so
entitled within the time specified in the Award Agreement or below (as
applicable), the Option shall terminate and the Shares underlying the
unexercised portion of the Option shall revert to the Plan and become available
for future Awards.


 


The
following provisions shall apply to the extent an Award Agreement does not
specify the terms and conditions upon which an Option shall terminate when
there is a termination of a Participant’s Continuous Service:


 


	
  Reason
  for terminating Continuous Service

  	
   

  	
  Option Termination Date

  
	
   

  	
   

  	
   

  
	
  (I) By the Company
  for Cause, or what would have been Cause if the Company had known all of the
  relevant facts.

  	
   

  	
  Termination of the
  Participant’s Continuous Service, or when Cause first existed if earlier.

  



 


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  (II) Disability of
  the Participant.

  	
   

  	
  Within one year after
  termination of the Participant’s Continuous Service.

  
	
   

  	
   

  	
   

  
	
  (III) Retirement
  of the Participant.

  	
   

  	
  Within one  year after termination of the Participant’s Continuous
  Service.

  
	
   

  	
   

  	
   

  
	
  (IV) Death of the
  Participant during Continuous Service or within 90  days
  thereafter.

  	
   

  	
  Within one  year after termination of the Participant’s Continuous
  Service.

  
	
   

  	
   

  	
   

  
	
  (V) Other than due
  to Cause or the Participant’s Disability, Retirement, or Death.

  	
   

  	
  Within 90 days after
  termination of the Participant’s Continuous Service.

  



 


If there is a Securities and Exchange Commission
blackout period (or a Committee-imposed blackout period) that prohibits the
buying or selling of Shares during any part of the ten day period before the
expiration of any Option based on the termination of a Participant’s Continuous
Service (as described above), the period for exercising the Options shall be
extended until ten days beyond when such blackout period ends.  Notwithstanding any provision hereof or
within an Award Agreement, no Option shall ever be exercisable after the
expiration date of its original term as set forth in the Award Agreement.


 


(f)            Buyout.  The Committee
may at any time offer to buy out an Option, in exchange for a payment in cash
or Shares, based on such terms and conditions as the Committee shall establish
and communicate to the Participant at the time that such offer is made.  In addition, but subject to Applicable Law,  if the Fair Market Value for Shares subject to any Option
or Options is more than 33% below their exercise price for more than 30
consecutive business days, the Committee may unilaterally declare such Option
to be terminated, effective on the date on which the Committee provides written
notice to the Participant or other Option holder. The Committee may take such
action with respect to any or all Options granted under the Plan and with
respect to any individual Option holder or class or classes of Option holders,
and the Committee shall not have any obligation to be uniform, consistent, or
nondiscriminatory between classes of similarly-situated Option holders, except
as required by Applicable Law.


 


6.             SARs.


 


(a)           Grants.  The Committee may grant SARs to Eligible Persons
pursuant to Award Agreements setting forth terms and conditions that are not inconsistent
with the Plan; provided that:


 


(i)         the exercise price for the Shares subject
to each SAR shall not be less than 100% of the Fair Market Value of the
underlying Shares on the Grant Date;


 


(ii)        no SAR shall be exercisable for a term
ending more than ten years after its Grant Date; and


 


(iii)       each SAR shall, except to the extent an
SAR Award Agreement provides otherwise, be subject to the provisions of Section 5(e) relating
to the effect of 


 


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a termination of
Participant’s Continuous Service and Section 5(f) relating to
buyouts, in each case with “SAR” being substituted for “Option.”


 


(b)           Settlement.  Subject to the Plan’s terms, an SAR shall entitle the
Participant, upon exercise of the SAR, to receive Shares having a Fair Market
Value on the date of exercise equal to the product of the number of Share as to
which the SAR is being exercised, and the excess of (i) the Fair Market
Value, on such date, of the Shares covered by the exercised SAR, over (ii) an
exercise price designated in the SAR Award Agreement.  Notwithstanding the foregoing, an SAR Award
Agreement may limit the total settlement value that the Participant will be
entitled to receive upon the SAR’s exercise, and may provide for settlement
either in cash or in any combination of cash or Shares that the Committee may
authorize pursuant to an Award Agreement. 
If, on the date on which an SAR or portion thereof is to expire, the
Fair Market Value of the underlying Shares exceeds their aggregate exercise
price of such SAR, then the SAR shall be deemed exercised and the Participant
shall within ten days thereafter receive the Shares that would have been issued
on such date if the Participant had affirmatively exercised the SAR on that
date.


 


(c)           SARs related to Options. 
The Committee may grant SARs either concurrently with the grant of an
Option or with respect to an outstanding Option, in which case the SAR shall
extend to all or a portion of the Shares covered by the related Option, and
shall have an exercise price that is not less than the exercise price of the
related Option.  An SAR shall entitle the
Participant who holds the related Option, upon exercise of the SAR and
surrender of the related Option, or portion thereof, to the extent the SAR and
related Option each were previously unexercised, to receive payment of an
amount determined pursuant to Section 6(b) above.  Any SAR granted in tandem with an ISO will
contain such terms as may be required to comply with the provisions of Code Section 422.


 


(d)           Effect on Available Shares.  At each time of a exercise of an SAR that is settled
in Shares, only those Shares that are issued or delivered in settlement of the
exercise shall be counted against the number of Shares available for Awards
under the Plan; provided that the number of
Shares that are issued or delivered pursuant to the exercise of an SAR shall
not exceed the number of Shares specified in the Award Agreement as being
subject to the SAR Award.


 


7.             Restricted Shares, RSUs,
and Unrestricted Share Awards.


 


(a)           Grant.  The Committee may grant Restricted Share, RSU, or
Unrestricted Share Awards to Eligible Persons, in all cases pursuant to Award
Agreements setting forth terms and conditions that are not inconsistent with
the Plan.  The Committee shall establish
as to each Restricted Share or RSU Award the number of Shares deliverable or
subject to the Award (which number may be determined by a written formula), and
the period or periods of time (the “Restriction Period”)
at the end of which all or some restrictions specified in the Award Agreement
shall lapse, and the Participant shall receive unrestricted Shares (or cash to
the extent provided in the Award Agreement) in settlement of the Award.   Such restrictions may include, without limitation,
restrictions concerning voting rights and transferability, and such
restrictions may lapse separately or in combination at such times and pursuant
to such circumstances or based on such criteria as selected by the Committee,
including, without limitation, criteria based on the Participant’s duration of
employment, directorship or consultancy with the Company, individual, group, or
divisional performance criteria, Company performance, or other criteria
selection by the Committee. The Committee may make Restricted Share and RSU
Awards with or without the 


 


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requirement for payment of cash or other
consideration.  In addition, the
Committee may grant Awards hereunder in the form of Unrestricted Shares which
shall vest in full upon the Grant Date or such other date as the Committee may
determine or which the Committee may issue pursuant to any program under which
one or more Eligible Persons (selected by the Committee in its sole discretion)
elect to pay for such Shares or to receive Unrestricted Shares in lieu of cash
bonuses that would otherwise be paid.


 


(b)           Vesting and Forfeiture.  The Committee shall set forth, in an Award Agreement
granting Restricted Shares or RSUs, the terms and conditions under which the
Participant’s interest in the Restricted Shares or the Shares subject to RSUs
will become vested and non-forfeitable. 
Except as set forth in the applicable Award Agreement or as the
Committee otherwise determines, upon termination of a Participant’s Continuous
Service for any reason, the Participant shall forfeit his or her Restricted
Shares and RSUs to the extent the Participant’s interest therein has not vested
on or before such termination date; provided
that if a Participant purchases Restricted Shares and forfeits them for any
reason, the Company shall return the purchase price to the Participant to the
extent either set forth in an Award Agreement or required by Applicable Laws.


 


(c)           Certificates for Restricted
Shares.  Unless otherwise provided in an Award Agreement, the
Company shall hold certificates representing Restricted Shares and dividends
(whether in Shares or cash) that accrue with respect to them until the
restrictions lapse, and the Participant shall provide the Company with appropriate
stock powers endorsed in blank. The Participant’s failure to provide such stock
powers within ten days after a written request from the Company shall entitle
the Committee to unilaterally declare a forfeiture of all or some of the
Participant’s Restricted Shares.


 


(d)           Section 83(b) Elections. 
A Participant may make an election under Code Section 83(b) (the
“Section 83(b) Election”)
with respect to Restricted Shares.  A
Participant who has received RSUs may, within ten days after receiving the RSU
Award, provide the Committee with a written notice of his or her desire to make
Section 83(b) Election with respect to the Shares subject to such
RSUs.  The Committee may in its
discretion convert the Participant’s RSUs into Restricted Shares, on a
one-for-one basis, in full satisfaction of the Participant’s RSU Award.  The Participant may then make a Section 83(b) Election
with respect to those Restricted Shares; provided that the Participant’s Section 83(b) Election
will be invalid if not filed with the Company and the appropriate U.S. tax
authorities within 30 days after the Grant Date of the RSUs replaced by the
Restricted Shares.


 


(e)           Deferral Elections for RSUs. 
To the extent specifically provided in an Award Agreement, a Participant
may irrevocably elect, in accordance with Section 8 below, to defer the
receipt of all or a percentage of the Shares that would otherwise be
transferred to the Participant both more than 12 months after the date of the
Participant’s deferral election and upon the vesting of an RSU Award.  If the Participant makes this election, the
Company shall credit the Shares subject to the election, and any associated
Shares attributable to Dividend Equivalent Rights attached to the Award, to a
DSU account established pursuant to Section 8 below on the date such
Shares would otherwise have been delivered to the Participant pursuant to this
Section.


 


(f)            Issuance of Shares upon Vesting. 
As soon as practicable after vesting of a Participant’s Restricted
Shares (or of the right to receive Shares underlying RSUs), the Company shall
deliver to the Participant, free from vesting restrictions, one Share for each
surrendered and vested Restricted Share (or deliver one Share free of the
vesting restriction for each vested RSU), unless an Award 


 


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Agreement provides otherwise and subject to Section 11
regarding Withholding Taxes.  No
fractional Shares shall be distributed, and cash shall be paid in lieu thereof.


 


8.             DSUs.


 


(a)           Elections to Defer. 
The Committee may make DSU awards to Eligible Persons pursuant to Award
Agreements (regardless of whether or not there is a deferral of the Eligible
Person’s compensation), and may permit select Eligible Persons to irrevocably
elect, on a form provided by and acceptable to the Committee (the “Election Form”), to forego the
receipt of cash or other compensation (including the Shares deliverable
pursuant to any RSU Award) and in lieu thereof to have the Company credit to an
internal Plan account a number of DSUs having a Fair Market Value equal to the
Shares and other compensation deferred. 
These credits will be made at the end of each calendar quarter (or other
period determined by the Committee) during which compensation is deferred.  Notwithstanding the foregoing sentence, a
Participant’s Election Form will be ineffective with respect to any
compensation that the Participant earns before the date on which the Election Form takes
effect.  For any Participant who is
subject to U.S. income taxation, the Committee shall only authorize deferral
elections under this Section (i) pursuant to written procedures, and
using written Election Forms, that satisfy the requirements of Code Section 409A,
and (ii) only by Eligible Persons who are Directors, Consultants, or
members of a select group of management or highly compensated Employees (within
the meaning of ERISA).


 


(b)           Vesting. 
Unless an Award Agreement expressly provides otherwise, each Participant
shall be 100% vested at all times in any Shares subject to DSUs.


 


(c)           Issuances of Shares. 
Unless an Award Agreement expressly provides otherwise, the Company
shall settle a Participant’s DSU Award, by delivering one Share for each DSU,
in five substantially equal annual installments that are issued before the last
day of each of the five calendar years that end after the date on which the
Participant’s Continuous Service ends for any reason, subject to —


 


(i)            the Participant’s right to elect a
different form of distribution, only on a form provided by and acceptable to
the Committee, that permits the Participant to select any combination of a lump
sum and annual installments that are triggered by, and completed within ten
years following, the last day of the Participant’s Continuous Service, and


 


(ii)           the Company’s acceptance of the
Participant’s distribution election form executed at the time the Participant
elects to defer the receipt of cash or other compensation pursuant to Section 8(a),
provided that the Participant may
change a distribution election through any subsequent election that (A) the
Participant delivers to the Company at least one year before the date on which
distributions are otherwise scheduled to commence pursuant to the Participant’s
initial distribution election, and (B) defers the commencement of
distributions by at least five years from the originally scheduled distribution
commencement date.


 


Fractional shares shall
not be issued, and instead shall be paid out in cash.


 


(d)           Emergency Withdrawals. 
In the event that a Participant suffers an unforeseeable emergency
within the contemplation of this Section, the Participant may apply to the
Committee for 


 


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an immediate distribution of all or a portion of the
Participant’s DSUs.  The unforeseeable
emergency must result from a sudden and unexpected illness or accident of the
Participant, the Participant’s spouse, or a dependent (within the meaning of
Code Section 152) of the Participant, casualty loss of the Participant’s
property, or other similar extraordinary and unforeseeable conditions beyond
the control of the Participant.  The
Committee shall, in its sole and absolute discretion, determine whether a
Participant has a qualifying unforeseeable emergency, may require independent
verification of the emergency, and may determine whether or not to provide the
Participant with cash or Shares. 
Examples of purposes which are not considered unforeseeable emergencies
include post-secondary school expenses or the desire to purchase a
residence.  In no event will a distribution
be made to the extent the unforeseeable emergency could be relieved through
reimbursement or compensation by insurance or otherwise, or by liquidation of
the Participant’s nonessential assets to the extent such liquidation would not
itself cause a severe financial hardship. 
The amount of any distribution hereunder shall be limited to the amount
necessary to relieve the Participant’s unforeseeable emergency plus amounts
necessary to pay taxes reasonably anticipated as a result of the distribution.  The number of Shares subject to the
Participant’s DSU Award shall be reduced by any Shares distributed to the
Participant and by a number of Shares having a Fair Market Value on the date of
the distribution equal to any cash paid to the Participant pursuant to this
Section.  For all DSUs granted to
Participants who are U.S. taxpayers, the term “unforeseeable emergency” shall
be interpreted in accordance with Code Section 409A.


 


(e)           Termination of Service. 
For purposes of this Section, a Participant’s “Continuous Service” shall
only end when the Participant incurs a “separation from service” within the
meaning of Treasury Regulations § 1.409A-1(h). A Participant shall be
considered to have experienced a termination of Continuous Service when the
facts and circumstances indicate that either (i) no further services will
be performed for the Company or any Affiliate after a certain date, or (ii) that
the level of bona fide services the Participant will perform after such date
(whether as an Employee, Director, or Consultant) are reasonably expected to
permanently decrease to no more than 50% of the average level of bona fide
services performed by such Participant (whether as an Employee, Director, or
Consultant) over the immediately preceding 36-month period (or full period of
services to the Company and its Affiliates if the Participant has been
providing such services for less than 36 months).


 


9.             Performance and
Cash-Settled Awards.


 


(a)           Performance Units. 
Subject to the limitations set forth in paragraph (b) hereof, the
Committee may in its discretion grant Performance Awards, including Performance
Units to any Eligible Person, including Performance Unit Awards that (i) have
substantially the same financial benefits and other terms and conditions as
Options, SARs, RSUs, or DSUs, but (ii) are settled only in cash.  All Awards hereunder shall be made pursuant
to Award Agreements setting forth terms and conditions that are not
inconsistent with the Plan.


 


(b)           Performance
Compensation Awards.  Subject to the limitations set forth in this
Section, the Committee may, at the time of grant of a Performance Unit,
designate such Award as a “Performance Compensation
Award” (payable in cash or Shares) in order that such Award
constitutes, and has terms and conditions that are designed to qualify as, “qualified
performance-based compensation” under Code Section 162(m).  With respect to each such Performance
Compensation Award, the Committee shall establish, in writing within the time
required under Code


 


10
















 


Section 162(m), a “Performance
Period,” “Performance Measure(s)”,
and “Performance Formula(e)” (each such
term being defined below).  Once
established for a Performance Period, the Performance Measure(s) and
Performance Formula(e) shall not be amended or otherwise modified to the
extent such amendment or modification would cause the compensation payable
pursuant to the Award to fail to constitute qualified performance-based
compensation under Code Section 162(m).


 


A Participant shall be eligible to receive payment in
respect of a Performance Compensation Award only to the extent that the
Performance Measure(s) for such Award is achieved and the Performance
Formula(e) as applied against such Performance Measure(s) determines
that all or some portion of such Participant’s Award has been earned for the
Performance Period.  As soon as
practicable after the close of each Performance Period, the Committee shall
review and certify in writing whether, and to what extent, the Performance Measure(s) for
the Performance Period have been achieved and, if so, determine and certify in
writing the amount of the Performance Compensation Award to be paid to the
Participant and, in so doing, may use negative discretion to decrease, but not
increase, the amount of the Award otherwise payable to the Participant based
upon such performance


 


(c)           Limitations on Awards. 
The maximum Performance Award and the maximum Performance Compensation
Award that any one Participant may receive for any one Performance Period,
without regard to time of vesting or exercisability, shall not together exceed
the limitation set forth in Section 3(b) above, as adjusted pursuant
to Section 13 below (or, for Performance Units to be settled in cash, U.S.
$1,000,000.  The Committee shall have the
discretion to provide in any Award Agreement that any amounts earned in excess
of these limitations will be credited as DSUs or as deferred cash compensation
under a separate plan of the Company (provided in the
latter case that such deferred compensation either bears a reasonable rate of
interest or has a value based on one or more predetermined actual
investments).  Any amounts for which
payment to the Participant is deferred pursuant to the preceding sentence shall
be paid to the Participant in a future year or years not earlier than, and only
to the extent that, the Participant is either not receiving compensation in
excess of these limits for a Performance Period, or is not subject to the
restrictions set forth under Code Section 162(b).


 


(d)           Definitions.


 


(i)            “Performance Formula”
means, for a Performance Period, one or more objective formulas or standards
established by the Committee for purposes of determining whether or the extent
to which an Award has been earned based on the level of performance attained or
to be attained with respect to one or more Performance Measure(s).  Performance Formulae may vary from
Performance Period to Performance Period and from Participant to Participant
and may be established on a stand-alone basis, in tandem or in the alternative.


 


(ii)           “Performance Measure”
means one or more of the following selected by the Committee to measure
Company, Affiliate, and/or business unit performance for a Performance Period,
whether in absolute or relative terms (including, without limitation, terms
relative to a peer group or index): 
basic, diluted, or adjusted earnings per share; sales or revenue;
earnings before interest, taxes, and other adjustments (in total or on a per
share basis); basic or adjusted net income; 


 


11

















 


returns on equity,
assets, capital, revenue or similar measure; economic value added; working
capital; total shareholder return; and product development, product market
share, research, licensing, litigation, human resources, information services,
mergers, acquisitions, sales of assets of Affiliates or business units.  Each such measure shall be, to the extent
applicable, determined in accordance with generally accepted accounting
principles as consistently applied by the Company (or such other standard
applied by the Committee) and, if so determined by the Committee, and in the
case of a Performance Compensation Award, to the extent permitted under Code Section 162(m),
adjusted to omit the effects of extraordinary items, gain or loss on the
disposal of a business segment, unusual or infrequently occurring events and
transactions and cumulative effects of changes in accounting principles.  Performance Measures may vary from
Performance Period to Performance Period and from Participant to Participant,
and may be established on a stand-alone basis, in tandem or in the alternative.


 


(iii)          “Performance Period”
means one or more periods of time (of not less than one fiscal year of the
Company), as the Committee may designate, over which the attainment of one or
more Performance Measure(s) will be measured for the purpose of
determining a Participant’s rights in respect of an Award.


 


(e)           Deferral Elections. 
At any time prior to the date that is both at least six months before
the close of a Performance Period (or shorter or longer period that the
Committee selects) with respect to a Performance Award and at which time
vesting or payment is substantially uncertain to occur, the Committee may
permit a Participant who is a member of a select group of management or highly
compensated employees (within the meaning of ERISA) to irrevocably elect, on a
form provided by and acceptable to the Committee, to defer the receipt of all
or a percentage of the cash or Shares that would otherwise be transferred to
the Participant upon the vesting of such Award. 
If the Participant makes this election, the cash or Shares subject to
the election, and any associated interest and dividends, shall be credited to
an account established pursuant to Section 8 hereof on the date such cash
or Shares would otherwise have been released or issued to the Participant
pursuant to this Section.


 


10.           Dividend
Equivalent Rights.  The
Committee may grant Dividend Equivalent Rights to any Eligible Person, and may
do either pursuant to an Award Agreement that is independent of any other
Award, or through a provision in another Award (other than an Option or SAR)
that Dividend Equivalent Rights attach to the Shares underlying the Award.  For example, and without limitation, the Committee
may grant a Dividend Equivalent Right in respect of each Share subject to a
Restricted Stock Award, Restricted Stock Unit Award, Deferred Stock Unit, or
Performance Share Award.


 


(a)           Nature of Right. 
Each Dividend Equivalent Right shall represent the right to receive
amounts based on the dividends declared on Shares as of all dividend payment
dates during the term of the Dividend Equivalent Right as determined by the
Committee.  Unless otherwise determined
by the Committee, a Dividend Equivalent Right shall expire upon termination of
the Participant’s Continuous Service, provided that a Dividend Equivalent Right
that is granted as part of another Award shall expire only when the Award is
settled or otherwise forfeited.


 


12

















 


(b)           Settlement.  Unless
otherwise provided in an Award Agreement, Dividend Equivalent Rights shall be
paid out on the (i) on the record date for dividends if the Award occurs
on a stand-alone basis, and (ii) on the vesting or later settlement date
for another Award if the Dividend Equivalent Right is granted as part of
it.  Payment of all amounts determined in
accordance with this Section shall be in Shares, with cash paid in lieu of
fractional Shares, provided that the Committee may instead provide in an Award
Agreement for cash settlement of all or part of the Dividend Equivalent
Rights.  Only the Shares actually issued
pursuant to Dividend Equivalent Rights shall count against the limits set forth
in Section 3 above.


 


(c)           Other Terns. 
The Committee may impose such other terms and conditions on the grant of
a Dividend Equivalent Right as it deems appropriate in its discretion as
reflected by the terms of the Award Agreement. The Committee may establish a
program under which Dividend Equivalent Rights may be granted in conjunction
with other Awards.  The Committee may
also authorize, for any Participant or group of Participants, a program under
which the payments with respect to Dividend Equivalent Rights may be deferred
pursuant to the terms and conditions determined under Section 9 above.


 


11.           Taxes;
Withholding.


 


(a)           General Rule. 
Participants are solely responsible and liable for the satisfaction of
all taxes and penalties that may arise in connection with Awards, and neither
the Company, nor any Affiliate, nor any of their employees, directors, or
agents shall have any obligation to mitigate, indemnify, or to otherwise hold
any Participant harmless from any or all of such taxes.  The Company’s obligation to deliver Shares
(or to pay cash) to Participants pursuant to Awards is at all times subject to
their prior or coincident satisfaction of all required Withholding Taxes.  Except to the extent otherwise either
provided in an Award Agreement or thereafter authorized by the Committee, the
Company or any Affiliate will satisfy required Withholding Taxes that the
Participant has not otherwise arranged to settle before the due date thereof —


 


(i)                           first from withholding the cash otherwise
payable to the Participant pursuant to the Award;


 


(ii)                        then by withholding and cancelling the
Participant’s rights with respect to a number of Shares that (A) would
otherwise have been delivered to the Participant pursuant to the Award, and (B) have
an aggregate Fair Market Value equal to the Withholding Taxes (such withheld
Shares to be valued on the basis of the aggregate Fair Market Value thereof on
the date of the withholding); and


 


(iii)                     finally, withholding the cash otherwise
payable to the Participant by the Company.


 


The
number of Shares withheld and cancelled to pay a Participant’s Withholding
Taxes will be rounded up to the nearest whole Share sufficient to satisfy such
taxes, with cash being paid to the Participant in an amount equal to the amount
by which the Fair Market Value of such Shares exceeds the Withholding Taxes.


 


13

















 


(b)           U.S. Code Section 409A.   To the extent that the Committee determines
that any Award granted under the Plan is subject to Code Section 409A, the
Award Agreement evidencing such Award shall incorporate the terms and
conditions required by Code Section 409A. 
To the extent applicable, the Plan and Award Agreements shall be
interpreted in accordance with Code Section 409A 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, 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
Administrator determines are necessary or appropriate (i) to exempt the
Award from Code Section 409A and/or preserve the intended tax treatment of
the benefits provided with respect to the Award, or (ii) to comply with
the requirements of Code Section 409A and related Department of Treasury
guidance and thereby avoid the application of any penalty taxes under such
Section.


 


(c)           Unfunded Tax Status.  The Plan is intended to be an “unfunded” plan
for incentive compensation.  With respect
to any payments not yet made to a Person pursuant to an Award, nothing
contained in the Plan or any Award Agreement shall give the Person any rights
that are greater than those of a general creditor of the Company or any
Affiliate, and a
Participant’s rights under the Plan at all times constitute an unsecured claim
against the general assets of the Company for the collection of benefits as
they come due.  Neither the Participant
nor the Participant’s duly-authorized transferee or Beneficiaries shall have
any claim against or rights in any specific assets, Shares, or other funds of
the Company.


 


12.           Non-Transferability
of Awards.


 


(a)           General. 
Except as set forth in this Section, or as otherwise approved by the
Committee, Awards may not be sold, pledged, assigned, hypothecated, transferred
or disposed of in any manner other than by will or by the laws of descent or
distribution.  The designation of a death
Beneficiary by a Participant will not constitute a transfer.  An Award may be exercised, during the
lifetime of the holder of an Award, only by such holder, by the duly-authorized
legal representative of a holder who is Disabled, or by a transferee permitted
by this Section.


 


(b)           Limited Transferability Rights. 
The
Committee may in its discretion provide in an Award Agreement that an Award in
the form of a Non-ISO, Share-settled SAR, Restricted Shares, or Performance
Shares may be transferred, on such terms and conditions as the Committee deems
appropriate, either (i) by instrument to the Participant’s “Immediate
Family” (as defined below), (ii) by instrument to an inter vivos or
testamentary trust (or other entity) in which the Award is to be passed to the
Participant’s designated beneficiaries, or (iii) by gift to charitable
institutions.  Any transferee of the
Participant’s rights shall succeed and be subject to all of the terms of the
applicable Award Agreement and the Plan. 
“Immediate Family” means any child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew,
mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or
sister-in-law, and shall include adoptive relationships.


 


(c)           Death. 
In the event of the death of a Participant, any outstanding Awards
issued to the Participant shall automatically be transferred to the Participant’s
Beneficiary (or, if no Beneficiary is designated or surviving, to the person or
persons to whom the Participant’s rights under the Award pass by will or the
laws of descent and distribution).


 


14

















 


13.           Change in
Capital Structure; Change in Control; Etc.


 


(a)           Changes in Capitalization.  The Committee shall equitably adjust the number of
Shares covered by each outstanding Award, and the number of Shares that have
been authorized for issuance under the Plan but as to which no Awards have yet
been granted or that have been returned to the Plan upon cancellation,
forfeiture, or expiration of an Award, as well as the exercise or other price
per Share covered by each such outstanding Award, to reflect any increase or
decrease in the number of issued Shares resulting from a stock-split, reverse
stock-split, stock dividend, combination, recapitalization or reclassification
of the Shares, merger, consolidation, change in form of organization, or any
other increase or decrease in the number of issued Shares effected without
receipt of consideration by the Company. 
In the event of any such transaction or event, the Committee may provide
in substitution for any or all outstanding Awards such alternative
consideration (including cash or securities of any surviving entity) as it may
in good faith determine to be equitable under the circumstances and may require
in connection therewith the surrender of all Awards so replaced.  In any case, such substitution of cash or
securities shall not require the consent of any person who is granted Awards
pursuant to the Plan.  Except as
expressly provided herein, or in an Award Agreement, if the Company issues for
consideration shares of stock of any class or securities convertible into
shares of stock of any class, the issuance shall not affect, and no adjustment
by reason thereof shall be required to be made with respect to the number or
price of Shares subject to any Award.


 


(b)           Dissolution or Liquidation. In the event of the dissolution or
liquidation of the Company other than as part of a Change of Control, each
Award will terminate immediately prior to the consummation of such dissolution
or liquidation, subject to the ability of the Committee to exercise any
discretion authorized in the case of a Change in Control.


 


(c)           Change in Control.  In the event of a Change in Control but subject to the
terms of any Award Agreements or employment-related agreements between the
Company or any Affiliates and any Participant, each outstanding Award shall be
assumed or a substantially equivalent award shall be substituted by the
surviving or successor company or a parent or subsidiary of such successor
company (in each case, the “Successor Company”)
upon consummation of the transaction. 
Notwithstanding the foregoing, instead of having outstanding Awards be
assumed or replaced with equivalent awards by the Successor Company, the
Committee may in its sole and absolute discretion and authority, without
obtaining the approval or consent of the Company’s shareholders or any
Participant with respect to his or her outstanding Awards, take one or more of
the following actions (with respect to any or all of the Awards, and with
discretion to differentiate between individual Participants and Awards for any
reason):


 


(i)            accelerate the vesting of Awards so that
Awards shall vest (and, to the extent applicable, become exercisable) as to the
Shares that otherwise would have been unvested and provide that repurchase
rights of the Company with respect to Shares issued pursuant to an Award shall
lapse as to the Shares subject to such repurchase right;


 


(ii)           arrange or otherwise provide for the
payment of cash or other consideration to Participants in exchange for the
satisfaction and cancellation of outstanding Awards (with the Committee
determining the amount payable to each Participant based on the Fair Market
Value, on the date of the Change in Control, of the Award being cancelled,
based on any reasonable valuation method selected by the Committee);


 


15

















 


(iii)          terminate all or some Awards upon the
consummation of the transaction, provided that the Committee shall provide for
vesting of such Awards in full as of a date immediately prior to consummation
of the Change in Control.  To the extent
that an Award is not exercised prior to consummation of a transaction in which
the Award is not being assumed or substituted, such Award shall terminate upon
such consummation;


 


(iv)          make such other modifications,
adjustments or amendments to outstanding Awards or this Plan as the Committee
deems necessary or appropriate, subject however to the terms of Section 13
above.


 


Notwithstanding the above and unless otherwise
provided in an Award Agreement or in any employment-related agreement between
the Company or any Affiliate and the Participant, in the event a Participant is
Involuntarily Terminated on or within 12 months (or other period either set
forth in an Award Agreement) following a Change in Control, then any Award that
is assumed or substituted pursuant to this Section above shall accelerate
and become fully vested (and become exercisable in full in the case of Options
and SARs), and any repurchase right applicable to any Shares shall lapse in
full, unless an Award Agreement provides for a more restrictive acceleration or
vesting schedule or more restrictive limitations on the lapse of repurchase
rights or otherwise places additional restrictions, limitations and conditions
on an Award.  The acceleration of vesting
and lapse of repurchase rights provided for in the previous sentence shall
occur immediately prior to the effective date of the Participant’s Involuntary
Termination, unless an Award Agreement provides otherwise.


 


14.           Termination,
Rescission and Recapture of Awards.


 


(a)           Each Award under the Plan is intended to
align the Participant’s long-term interests with those of the Company.  Accordingly, to the extent provided in an
Award Agreement, the Company may terminate any outstanding, unexercised,
unexpired, unpaid, or deferred Awards (“Termination”),
rescind any exercise, payment or delivery pursuant to the Award (“Rescission”), or recapture any
Shares (whether restricted or unrestricted) or proceeds from the Participant’s
sale of Shares issued pursuant to the Award (“Recapture”), if the
Participant does not comply with the conditions of subsections (b), (c), and (e) hereof
(collectively, the “Conditions”).


 


(b)           A Participant shall not, without the
Company’s prior written authorization, disclose to anyone outside the Company,
or use in other than the Company’s business, any proprietary or confidential
information or material, as those or other similar terms are used in any
applicable patent, confidentiality, inventions, secrecy, or other agreement
between the Participant and the Company with regard to any such proprietary or
confidential information or material.


 


(c)           Pursuant to any agreement between the
Participant and the Company with regard to intellectual property (including but
not limited to patents, trademarks, copyrights, trade secrets, inventions,
developments, improvements, proprietary information, confidential business and
personnel information), a Participant shall promptly disclose and assign to the
Company or its designee all right, title, and interest in such intellectual
property, and shall take all reasonable steps necessary to enable the Company
to secure all right, title and interest in such intellectual property in the
United States and in any foreign country.


 


16

















 


(d)           Upon exercise, payment, or delivery of
cash or Common Stock pursuant to an Award, the Participant shall certify on a
form acceptable to the Company that he or she is in compliance with the terms
and conditions of the Plan and, if a severance of Continuous Service has
occurred for any reason, shall state the name and address of the Participant’s
then-current employer or any entity for which the Participant performs business
services and the Participant’s title, and shall identify any organization or
business in which the Participant owns a greater-than-five-percent equity
interest.


 


(e)           If the Company determines, in its sole
and absolute discretion, that (i) a Participant has violated any of the
Conditions or (ii) during his or her Continuous Service, or within one  year after its termination for any reason, a Participant (x) has
rendered services to or otherwise directly or indirectly engaged in or
assisted, any organization or business that, in the judgment of the Company in
its sole and absolute discretion, is or is working to become competitive with
the Company; (y) has solicited any non-administrative employee of the
Company to terminate employment with the Company; or (z) has engaged in
activities which are materially prejudicial to or in conflict with the
interests of the Company, including any breaches of fiduciary duty or the duty
of loyalty, then the Company may, in its sole and absolute discretion, impose a
Termination, Rescission, and/or Recapture with respect to any or all of the
Participant’s relevant Awards, Shares, and the proceeds thereof.


 


(f)            Within ten days after receiving notice
from the Company of any such activity described in Section 14(e) above,
the Participant shall deliver to the Company the Shares acquired pursuant to
the Award, or, if Participant has sold the Shares, the gain realized, or
payment received as a result of the rescinded exercise, payment, or delivery; provided, that if the Participant
returns Shares that the Participant purchased pursuant to the exercise of an
Option (or the gains realized from the sale of such Common Stock), the Company
shall promptly refund the exercise price, without earnings, that the
Participant paid for the Shares.  Any
payment by the Participant to the Company pursuant to this Section shall
be made either in cash or by returning to the Company the number of Shares that
the Participant received in connection with the rescinded exercise, payment, or
delivery.  It shall not be a basis for
Termination, Rescission or Recapture if after termination of a Participant’s
Continuous Service, the Participant purchases, as an investment or otherwise,
stock or other securities of such an organization or business, so long as (i) such
stock or other securities are listed upon a recognized securities exchange or
traded over-the-counter, and (ii) such investment does not represent more
than a five percent (5%) equity interest in the organization or business.


 


(g)           Notwithstanding the foregoing provisions
of this Section, the Company has sole and absolute discretion not to require
Termination, Rescission and/or Recapture, and its determination not to require
Termination, Rescission and/or Recapture with respect to any particular act by
a particular Participant or Award shall not in any way reduce or eliminate the
Company’s authority to require Termination, Rescission and/or Recapture with
respect to any other act or Participant or Award.  Nothing in this Section shall be
construed to impose obligations on the Participant to refrain from engaging in
lawful competition with the Company after the termination of employment that
does not violate subsections (b), (c), or (e) of this Section, other than
any obligations that are part of any separate agreement between the Company and
the Participant or that arise under Applicable Law.


 


(h)           All administrative and discretionary
authority given to the Company under this Section shall be exercised by
the most senior human resources executive of the Company or such 


 


17

















 


other person or committee (including without
limitation the Committee) as the Committee may designate from time to time.


 


(i)            If any provision within this Section is
determined to be unenforceable or invalid under any Applicable Law, such
provision will be applied to the maximum extent permitted by Applicable Law,
and shall automatically be deemed amended in a manner consistent with its
objectives and any limitations required under Applicable Law.  Notwithstanding the foregoing, but subject to
any contrary terms set forth in any Award Agreement, this Section shall not
be applicable to any Participant from and after his or her termination of
Continuous Service after a Change in Control.


 


15.           Recoupment
of Awards.  Unless
otherwise specifically provided in an Award Agreement, and to the extent
permitted by Applicable Law, the Committee may in its sole and absolute
discretion, without obtaining the approval or consent of the Company’s
shareholders or of any Participant, require that any Participant reimburse the
Company for all or any portion of any Awards granted under this Plan (“Reimbursement”), or the Committee
may require the Termination or Rescission of, or the Recapture associated with,
any Award, if and to the extent—


 


(a)           the granting, vesting, or payment of such
Award was predicated upon the achievement of certain financial results that
were subsequently the subject of a material financial restatement;


 


(b)           in the Committee’s view the Participant
either benefited from a calculation that later proves to be materially
inaccurate, or engaged in fraud or misconduct that caused or partially caused
the need for a material financial restatement by the Company or any Affiliate;
and


 


(c)           a lower granting, vesting, or payment of
such Award would have occurred based upon the conduct described in clause (b) of
this Section.


 


In each instance, the Committee will,
to the extent practicable and allowable under Applicable Laws, require
Reimbursement, Termination or Rescission of, or Recapture relating to, any such
Award granted to a Participant; provided that the Company will not seek
Reimbursement, Termination or Rescission of, or Recapture relating to, any such
Awards that were paid or vested more than three years prior to the first date
of the applicable restatement period.


 


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


 


17.           Administration
of the Plan.  The
Committee shall administer the Plan in accordance with its terms, provided that
the Board may act in lieu of the Committee on any matter.  The Committee shall hold meetings at such
times and places as it may determine and shall make such rules and
regulations for the conduct of its business as it deems advisable.  In the absence of a duly appointed Committee,
the Board shall function as the Committee for all purposes of the Plan.


 


(a)           Committee Composition. 
The Board shall appoint the members of the Committee. If and to the
extent permitted by Applicable Law, the Committee may authorize one or more
executive 


 


18

















 


officers to make Awards to Eligible Persons other than
themselves.  The Board may at any time
appoint additional members to the Committee, remove and replace members of the
Committee with or without Cause, and fill vacancies on the Committee however
caused.


 


(b)           Powers of the Committee. 
Subject to the provisions of the Plan, the Committee shall have the
authority, in its sole discretion:


 


(i)            to grant Awards and to determine Eligible
Persons to whom Awards shall be granted from time to time, and the number of
Shares, units, or dollars to be covered by each Award;


 


(ii)           to determine, from time to time, the Fair
Market Value of Shares;


 


(iii)          to determine, and to set forth in Award
Agreements, the terms and conditions of all Awards, including any applicable exercise
or purchase price, the installments and conditions under which an Award shall
become vested (which may be based on performance), terminated, expired,
cancelled, or replaced, and the circumstances for vesting acceleration or
waiver of forfeiture restrictions, and other restrictions and limitations;


 


(iv)          to approve the forms of Award Agreements
and all other documents, notices and certificates in connection therewith which
need not be identical either as to type of Award or among Participants;


 


(v)           to construe and interpret the terms of
the Plan and any Award Agreement, to determine the meaning of their terms, and
to prescribe, amend, and rescind rules and procedures relating to the Plan
and its administration;


 


(vi)          to the extent consistent with the purposes
of the Plan and without amending the Plan, to modify, to cancel, or to waive
the Company’s rights with respect to any Awards, to adjust or to modify Award
Agreements for changes in Applicable Law, and to recognize differences in
foreign law, tax policies, or customs;


 


(vii)         to require, as a condition precedent to the grant,
vesting, exercise, settlement, and/or issuance of Shares pursuant to any Award,
that a Participant agree to execute a general release of claims (in any form
that the Committee may require, in its sole discretion, which form may include any other provisions, e.g. confidentiality and restrictions on competition, that
are found in general claims release agreements that the Company utilizes or
expects to utilize);


 


(viii)        in the event that the Company
establishes, for itself or using the services of a third party, an automated
system for the documentation, granting, settlement, or exercise of Award, such
as a system using an internet website or interactive voice response, to implement
paperless documentation, granting, settlement, or exercise of Awards by a
Participant may be permitted through the use of such an automated system; and


 


(ix)           to make all interpretations and to take
all other actions that the Committee may consider necessary or advisable to
administer the Plan or to effectuate its purposes.


 


19

















 


Subject to Applicable Law
and the restrictions set forth in the Plan, the Committee may delegate
administrative functions to individuals who are Directors or Employees.


 


(d)           Local Law Adjustments and
Sub-plans.  To facilitate the making of any grant of an
Award under this Plan, the Committee may adopt rules and provide for such
special terms for Awards to Participants who are located within the United
States, foreign nationals, or who are employed by the Company or any Affiliate
outside of the United States of America as the Committee may consider necessary
or appropriate to accommodate differences in local law, tax policy or custom.  Without limiting the foregoing, the Company
is specifically authorized to adopt rules and procedures regarding the
conversion of local currency, taxes, withholding procedures and handling of
stock certificates which vary with the customs and requirements of particular
countries.  The Company may adopt
sub-plans and establish escrow accounts and trusts, and settle Awards in cash
in lieu of shares, as may be appropriate, required or applicable to particular
locations and countries.


 


(c)           Action
by 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 an officer or
other employee of the Company or any Affiliate, the Company’s independent
certified public accounts, or any executive compensation consultant or other
professional retained by the Company to assist in the administration of the
Plan.


 


(d)           Deference to Committee Determinations. 
The Committee shall have the discretion to interpret or construe
ambiguous, unclear, or implied (but omitted) terms in any fashion it deems to
be appropriate in its sole discretion, and to make any findings of fact needed
in the administration of the Plan or Award Agreements.  The Committee’s prior exercise of its
discretionary authority shall not obligate it to exercise its authority in a
like fashion thereafter.  The Committee’s
interpretation and construction of any provision of the Plan, or of any Award
or Award Agreement, and all determination the Committee makes pursuant to the
Plan shall be final, binding, and conclusive.  
The validity of any such interpretation, construction, decision or
finding of fact shall not be given de novo review if challenged in court, by
arbitration, or in any other forum, and shall be upheld unless clearly made in
bad faith or materially affected by fraud.


 


(e)           No Liability; Indemnification. 
Neither the Board nor any Committee member, nor any Person acting at the
direction of the Board or the Committee, shall be liable for any act, omission,
interpretation, construction or determination made in good faith with respect
to the Plan, any Award or any Award Agreement. 
The Company and its Affiliates shall pay or reimburse any member of the
Committee, as well as any Director, Employee, or Consultant who in good faith
takes action on behalf of the Plan, for all expenses incurred with respect to
the Plan, and to the full extent allowable under Applicable Law shall indemnify
each and every one of them for any claims, liabilities, and costs (including
reasonable attorney’s fees) arising out of their good faith performance of
duties on behalf of the Plan.  The
Company and its Affiliates may, but shall not be required to, obtain liability
insurance for this purpose.


 


(f)            Expenses. 
The
expenses of administering the Plan shall be borne jointly and severally by the
Company and its Affiliates.


 


20
















 


18.                                 Modification of Awards and
Substitution of Options.  Within the limitations of the Plan, the
Committee may modify an Award to accelerate the rate at which an Option or SAR
may be exercised, to accelerate the vesting of any Award, to extend or renew outstanding
Awards, to accept the cancellation of outstanding Awards to the extent not
previously exercised, or to make any change that the Plan would permit for a
new Award.  Notwithstanding the
foregoing, no modification of an outstanding Award may materially and adversely
affect a Participant’s rights thereunder unless either (i) the Participant
provides written consent to the modification, or (ii) before a Change in
Control, the Committee determines in good faith that the modification is not
materially adverse to the Participant.


 


19.                                 Plan Amendment and Termination.  The Board may
amend or terminate the Plan as it shall deem advisable; provided that no change
shall be made that increases the total number of Shares reserved for issuance
pursuant to Awards (except pursuant to Section 13 above) unless such
change is authorized by the shareholders of the Company.  A termination or amendment of the Plan shall
not materially and adversely affect a Participant’s vested rights under an
Award previously granted to him or her, unless the Participant consents in
writing to such termination or amendment. 
Notwithstanding the foregoing, the Committee may amend the Plan to
comply with changes in tax or securities laws or regulations, or in the
interpretation thereof.


 


20.                                 Term of Plan.  If not sooner
terminated by the Board, this Plan shall terminate at the close of business on
the date ten years after its Effective Date as determined under Section 1(b) above.  No Awards shall be made under the Plan after
its termination.


 


21.                                 Governing Law.  The terms of
this Plan shall be governed by the laws of the State of Delaware, within the
United States of America, without regard to the State’s conflict of laws rules.


 


22.                                 Laws and Regulations.


 


(a)                                  General Rules.    This Plan, the granting of Awards, the
exercise of Options and SARs, and the obligations of the Company hereunder
(including those to pay cash or to deliver, sell or accept the surrender of any
of its Shares or other securities) shall be subject to all Applicable Law.  In the event that any Shares are not
registered under any Applicable Law prior to the required delivery of them
pursuant to Awards, the Company may require, as a condition to their issuance
or delivery, that the persons to whom the Shares are to be issued or delivered
make any written representations and warranties (such as that such Shares are
being acquired by the Participant for investment for the Participant’s own
account and not with a view to, for resale in connection with, or with an
intent of participating directly or indirectly in, any distribution of such
Shares) that the Committee may reasonably require, and the Committee may in its
sole discretion include a legend to such effect on the certificates
representing any Shares issued or delivered pursuant to the Plan.


 


(b)                                 Black-out Periods.  Notwithstanding any contrary terms within the Plan or
any Award Agreement, the Committee shall have the absolute discretion to impose
a “blackout” period on the exercise of any Option or SAR, as well as the
settlement of any Award, with respect to any or all Participants (including
those whose Continuous Service has ended) to the extent that the Committee
determines that doing so is either desirable or required in order to comply
with applicable securities laws.


 


21

















 


23.                                 No Shareholder Rights.  Neither a Participant nor any transferee or
Beneficiary of a Participant shall have any rights as a shareholder of the
Company with respect to any Shares underlying any Award until the date of
issuance of a share certificate to such Participant, transferee, or Beneficiary
for such Shares in accordance with the Company’s governing instruments and
Applicable Law.  Prior to the issuance of
Shares or Restricted Shares pursuant to an Award, a Participant shall not have
the right to vote or to receive dividends or any other rights as a shareholder
with respect to the Shares underlying the Award (unless otherwise provided in
the Award Agreement for Restricted Shares), notwithstanding its exercise in the
case of Options and SARs.  No adjustment
will be made for a dividend or other right that is determined based on a record
date prior to the date the stock certificate is issued, except as otherwise
specifically provided for in this Plan or an Award Agreement.


 






 


Appendix
I: Definitions


 






 


As used in the Plan, the following terms have the
meanings indicated when they begin with initial capital letters within the
Plan:


 


“Affiliate”
means, with respect to any Person, any other Person that directly or indirectly
controls or is controlled by or under common control with such Person.  For the purposes of this definition, “control,”
when used with respect to any Person, means the possession, direct or indirect,
of the power to direct or cause the direction of the management and policies of
such Person or the power to elect directors, whether through the ownership of
voting securities, by contract or otherwise; and the terms “affiliated,” “controlling”
and “controlled” have meanings correlative to the foregoing.


 


“Applicable Law” means the legal
requirements relating to the administration of options and share-based plans
under any applicable laws of the United States, any other country, and any
provincial, state, or local subdivision, any applicable stock exchange or
automated quotation system rules or regulations, as such laws, rules,
regulations and requirements shall be in place from time to time.


 


“Award”
means any award made pursuant to the Plan, including awards made in the form of
an Option, an SAR, a Restricted Share, a RSU, an Unrestricted Share, a DSU, a
Performance Award, or Dividend Equivalent Rights, or any combination thereof,
whether alternative or cumulative.


 


“Award
Agreement” means any written document setting forth the terms of
an Award that has been authorized by the Committee. The Committee shall
determine the form or forms of documents to be used, and may change them from
time to time for any reason.


 


“Beneficiary” means the person or
entity designated by the Participant, in a form approved by the Company, to
exercise the Participant’s rights with respect to an Award or receive payment
or settlement under an Award after the Participant’s death.


 


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


 


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“Cause”  has the meaning set forth in any unexpired employment
agreement between the Company and the Participant. In the absence of such an
agreement, “Cause” means (i) gross negligence, willful misconduct or other
willful malfeasance by the Participant in the performance of his duties, (ii) the
Participant’s conviction of, plea of nolo contendere
to, or written admission of the commission of, a felony, (iii) any act by
the Participant involving fraud or misrepresentation with respect to his duties
for the Company or its Affiliates, which has resulted or likely will result in
material damage to the Company or its affiliates, (iv) any act by the
Participant constituting a failure to follow the directions of the either the
Company’s Chief Executive Officer or the Board, provided that, the Board
provides written notice of such failure to the Participant and the failure
continues for fifteen (15) days after the Executive’s receipt of such notice,
or (v) the Participant’s material breach of this Agreement, including
without limitation any breach of Sections 8 through 11 hereof, provided that,
in the case of any such breach or such behavior covered by subclause (i), and
the affirmative vote of not less than two-thirds of the entire membership of the
Board to take such action following a meeting in which the Participant and his
counsel are provided an opportunity to be heard by the Board on this issue, the
Board provides written notice of such breach or action to the Participant,
specifically identifying the manner in which the Board believes that
Participant has breached this Agreement or acted in accordance with subclause
(i), and the Participant shall have the opportunity to cure such breach or
action to the reasonable satisfaction of the Board within thirty (30) days
following the delivery of such notice, unless such breach or action is
incapable of cure.  For purpose of this
paragraph, no act or failure to act by the Participant shall be considered “willful”
if such act or failure to act was in good faith and with the reasonable belief
that the act or omission was in the best interests of the Company, or occurred
at the direction of the Board.  The
foregoing definition does not in any way limit the Company’s ability to
terminate a Participant’s employment or consulting relationship at any time,
and the term “Company” will be interpreted herein to include any
Affiliate or successor thereto, if appropriate. 
Furthermore, a Participant’s Continuous Service shall be deemed to have
terminated for Cause within the meaning hereof if, at any time (whether before,
on, or after termination of the Participant’s Continuous Service), facts or
circumstances are discovered that would have justified a termination for Cause.


 


“Change in
Control” means, unless another definition is set forth in an
Award Agreement, the first of the following to occur after the Effective Date:


 


(i)                                     Acquisition of Controlling
Interest.  Any Person (other than Persons who are
Employees at any time more than one year before a transaction) becomes the
beneficial owner, directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company’s then
outstanding securities.  In applying the
preceding sentence, (i) securities acquired from the Company or its
Affiliates by or for the Person shall not be taken into account, and (ii) an
agreement to vote securities shall be disregarded unless its ultimate purpose
is to cause what would otherwise be a Change in Control, as reasonably
determined by the Board.


 


(ii)                                  Change in Board Control. 
During a consecutive two-year period commencing after the date of
adoption of this Plan, individuals who constituted the Board at the beginning
of the period (or their approved replacements, as defined in the next sentence)
cease for any reason to constitute a majority of the Board.  A new Director shall be considered an “approved
replacement” Director if his or her election (or nomination for election) was
approved by a vote of at least a majority of the Directors then still in office
who either were Directors at the beginning of the period or were themselves
approved replacement Directors, but in either case excluding any Director whose
initial


 


23

















 


assumption of office
occurred as a result of an actual or threatened solicitation of proxies or
consents by or on behalf of any Person other than the Board.


 


(iii)                               Merger. 
The Company consummates a merger, or consolidation of the Company with
the any other corporation unless: (a) the voting securities of the Company
outstanding immediately before the merger of consolidation would continue to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least 50%
of the combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation;
and (b) no Person (other than Persons who are Employees at any time more
than one year before the transaction) becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 50%
or more of the combined voting power of the Company’s then outstanding
securities.


 


(iv)                              Sale of Assets. 
The stockholders of the Company approve an agreement for the sale of
disposition by the Company of all, or substantially all, of the Company’s
assets.


 


(v)                                 Liquidation or Dissolution. 
The stockholders of the Company approve a plan or proposal for
liquidation or dissolution of the Company.


 


(vi)                              Initial Public Offering. 
The stockholders of the Company approve an initial public offering of
Shares.


 


Notwithstanding the
foregoing, a “Change in Control” shall not be deemed to have occurred by virtue
of the consummation of any transaction or series of integrated transactions
immediately following which the record holders of the common stock of the
Company immediately prior to such transaction or series of transactions
continue to have substantially the same proportionate ownership in any entity
which owns all or substantially all of the assets of the Company immediately
following such transaction or series of transactions.


 


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


 


“Committee” means the Compensation Committee of the
Board or its successor, provided that
the term “Committee” means  (i) the Board when acting at any time in lieu of
the Committee, (ii) with respect to any decision
involving an Award intended to satisfy the requirements of Code Section 162(m),
a committee consisting of two or more Directors of the Company who are “outside
directors” within the meaning of Code Section 162(m), and (iii) with
respect to any decision relating to a Reporting Person, a committee consisting
of solely of two or more Directors who are disinterested within the meaning of Rule 16b-3.


 


“Company”
means MXenergy Holdings Inc., a Delaware corporation; provided
that in the event the Company reincorporates to another jurisdiction, all
references to the term “Company” shall refer to the Company in such new
jurisdiction.


 


“Company Stock” means common stock,
$0.01 par value, of the Company.  In the
event of a change in the capital structure of the Company affecting the common
stock (as provided in Section 13), the Shares resulting from such a change
in the common stock shall be deemed to be Company Stock within the meaning of
the Plan.


 


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“Consultant”
means any person (other than an Employee or Director), including an advisor,
who is engaged by the Company or any Affiliate to render services and is
compensated for such services.


 


“Continuous
Service” means a Participant’s period of service in the absence
of any interruption or termination, as an Employee, Director, or
Consultant.  Continuous Service shall not
be considered interrupted in the case of: 
(i) sick leave; (ii) military leave; (iii) any other
leave of absence approved by the Committee, provided
that such leave is for a period of not more than 90 days, unless reemployment
upon the expiration of such leave is guaranteed by contract or statute, or
unless provided otherwise pursuant to Company policy adopted from time to time;
(iv) changes in status from Director to advisory director or emeritus
status; or (iv) transfers between locations of the Company or between the
Company and its Affiliates. 
Changes in status between service as an Employee, Director, and a
Consultant will not constitute an interruption of Continuous Service if the
individual continues to perform bona fide services for the Company.  The Committee shall have the discretion to determine
whether and to what extent the vesting of any Awards shall be tolled during any
paid or unpaid leave of absence; provided, however, that in the absence of such
determination, vesting for all Awards shall be tolled during any such unpaid
leave (but not for a paid leave).


 


“Deferred
Share Units” or “DSUs” mean
Awards pursuant to Section 8 of the Plan.


 


“Director”
means a member of the Board, or a member of the board of directors of an
Affiliate.


 


“Disabled”
means (i) for an ISO, that the Participant is disabled within the meaning
of Code section 22(e)(3), and (ii) for other Awards, a condition under
which that the Participant —


 


(a)                                  is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months, or


 


(b)                                 is, by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less than 12
months, received income replacement benefits for a period of not less than
three months under an accident or health plan covering employees of the
Company.


 


“Dividend Equivalent
Rights” means Awards pursuant to Section 10 of the Plan,
which may be attached to other Awards.


 


“Eligible
Person” means any Consultant, Director, or Employee and includes
non-Employees to whom an offer of employment has been or is being extended.


 


“Employee”
means any person whom the Company or any Affiliate classifies as an employee
(including an officer) for employment tax purposes, whether or not that
classification is correct.  The payment
by the Company of a director’s fee to a Director shall not be sufficient to
constitute “employment” of such Director by the Company.


 


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“Employer” means the Company and
each Subsidiary and Affiliate that employs one or more Participants.


 


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


 


“Fair Market Value” means the fair
market value of the Company Stock as of such date based on the then prevailing
prices of the Company Stock on the New York Stock Exchange, the American Stock
Exchange, NASDAQ or such other stocks exchange as the Company Stock is then
listed for trading (and, if none, as determined by the Committee in good faith
based on relevant facts and circumstances).


 


“Grant Date” means the later of (i) the
date designated as the “Grant Date” within an Award Agreement, and (ii) date
on which the Committee determines the key terms of an Award, provided that as soon as reasonably
practical thereafter the Committee both notifies the Eligible Person of the
Award and enters into an Award Agreement with the Eligible Person.


 


“Incentive
Stock Option” (or “ISO”)
means, an Option that qualifies for favorable income tax treatment under Code Section 422.


 


“Involuntary
Termination” means
termination of a Participant’s Continuous Service under the following
circumstances occurring on or after a Change in Control:


 


(i) termination without Cause by the Company or
an Affiliate or successor thereto, as appropriate; or


 


(ii) voluntary resignation by the Participant
through the following actions: (1) the Participant provides the Company
with written notice of the existence of one of the events, arising without the
Participant’s consent, listed in clauses (A) through (C), below within
thirty (30) days of the initial existence of such event; (2) the Company fails
to cure such event within thirty (30) days following the date such notice is
given; and (3) the Participant elects to voluntarily terminate employment
within the ninety (90) day period immediately following such event. The events
include: (A) a material reduction in the Participant’s authority, duties,
and responsibilities , (B) the Participant being required to relocate his
place of employment, other than a relocation within fifty (50) miles of the
Company’s Stamford offices, or (C) a material reduction in the Participant’s
Base Salary other than any such reduction consistent with a general reduction
of pay across the executive staff as a group, as an economic or strategic
measure due to poor financial performance by the Company.


 


“Non-ISO” means an Option not intended to qualify
as an Incentive Stock Option, as designated in the applicable Award Agreement.


 


“Option” means a right to purchase
Company Stock granted under the Plan, at a price determined in accordance with
the Plan.


 


“Participant” means any Eligible
Person who holds an outstanding Award.


 


“Performance
Awards” mean Awards granted pursuant to Section 9.


 


26

















 


“Performance
Unit” means an Award granted pursuant to Section 9(a) of
the Plan which may be paid in cash, in Shares, or such combination of cash and
Shares as the Committee in its sole discretion shall determine.


 


“Person”
means any natural person, association, trust, business trust, cooperative,
corporation, general partnership, joint venture, joint-stock company, limited
partnership, limited liability company, real estate investment trust,
regulatory body, governmental agency or instrumentality, unincorporated
organization or organizational entity.


 


“Plan”
means this MXenergy Holdings Inc. 2010 Stock Incentive Plan.


 


“Recapture”
and “Rescission” have the meaning set
forth in Section 14 of the Plan.


 


“Reimbursement”
has the meaning set forth in Section 15 of the Plan.


 


“Reporting
Person” means
an Employee, Director, or Consultant who is subject to the reporting
requirements set forth under Rule 16b-3.


 


“Restricted Share” means a Share of
Company Stock awarded with restrictions imposed under Section 7.


 


“Restricted Share Unit” or “RSU” means a right granted to a
Participant to receive Shares or cash upon the lapse of restrictions imposed
under Section 7.


 


“Retirement” means a Participant’s
termination of employment after age 65.


 


“Rule 16b-3” means Rule 16b-3 promulgated under
the Exchange Act, as amended from time to time, or any successor provision.


 


“Share”
means a share of Common Stock of the Company, as adjusted in accordance with Section 13
of the Plan.


 


“SAR” or “Share
Appreciation Right” means a right to receive amounts awarded
under Section 6.


 


“Ten
Percent Holder” means a person who owns (within the meaning of
Code Section 422) stock representing more than ten percent (10%) of the
combined voting power of all classes of stock of the Company.


 


“Unrestricted
Shares” mean Shares (without restrictions) awarded pursuant to Section 7
of the Plan.


 


“Withholding
Taxes” means the aggregate minimum amount of federal, state,
local and foreign income, payroll and other taxes that the Company and any
Affiliates are required to withhold in connection with any Award.


 


27

















 


MXENERGY HOLDINGS INC.


 


2010 STOCK INCENTIVE PLAN


 


 


	
   

  	
  As approved by the
  Board of

  
	
   

  	
  Directors on January 15, 2010.

  



 


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