EX-10.5



 






Exhibit 10.5



 

 



MERCK & CO., INC.




2001 INCENTIVE STOCK PLAN




(Amended and Restated as of December 19, 2006)




 

 








 









 












2001 INCENTIVE STOCK PLAN




     The 2001 Incentive Stock Plan (“ISP”), effective January 1, 2001, is established to
encourage employees of Merck & Co., Inc. (the “Company”), its subsidiaries, its affiliates and
its joint ventures to acquire Common Stock in the Company (“Common Stock”). It is believed
that the ISP will stimulate employees’ efforts on the Company’s behalf, will tend to maintain
and strengthen their desire to remain with the Company, will be in the interest of the Company
and its Stockholders and will encourage such employees to have a greater personal financial
investment in the Company through ownership of its Common Stock.



1. Incentives




     Incentives under the ISP may be granted in any one or a combination of (a) Incentive Stock
Options (or other statutory stock options); (b) Nonqualified Stock Options; (c) Stock
Appreciation Rights; (d) Restricted Stock Grants and (e) Performance Shares (collectively
“Incentives”). All Incentives shall be subject to the terms and conditions set forth herein
and to such other terms and conditions as may be established by the Compensation and Benefits
Committee of the Board of Directors (the “Committee”).



2. Eligibility




     Regular full-time and part-time employees of the Company, its subsidiaries, its affiliates
and its joint ventures, including officers, whether or not directors of the Company, and
employees of a joint venture partner or affiliate of the Company who provide services to the
joint venture with such partner or affiliate, shall be eligible to participate in the ISP
(“Eligible Employees”) if designated by the Committee. Directors of the Company who are not
regular employees are not eligible to participate in the ISP.



3. Administration




     The ISP shall be administered by the Committee. The Committee shall be responsible for the
administration of the ISP including, without limitation, determining which Eligible Employees
receive Incentives, what kind of Incentives are made under the ISP and for what number of
shares, and the other terms and conditions of such Incentives. Determinations by the Committee
under the ISP including, without limitation, determinations of the Eligible Employees, the form,
amount and timing of Incentives, the terms and provisions of Incentives and the agreements
evidencing Incentives, need not be uniform and may be made selectively among Eligible Employees
who receive, or are eligible to receive, Incentives hereunder, whether or not such Eligible
Employees are similarly situated.



     The Committee shall have the responsibility of construing and interpreting the ISP and of
establishing and amending such rules and regulations as it may deem necessary or desirable for
the proper administration of the ISP. Any decision or action taken or to be taken by the
Committee, arising out of or in connection with the construction, administration, interpretation
and effect of the ISP and of its rules and regulations, shall, to the maximum extent permitted
by applicable law, be within its absolute discretion (except as otherwise specifically provided
herein) and shall be conclusive and binding upon the Company, all Eligible Employees and any
person claiming under or through any Eligible Employee.



     The Committee may delegate some or all of its power and authority hereunder to the Chief
Executive Officer or other senior member of management as the Committee deems appropriate;
provided, however, that the Committee may not delegate its authority with regard to any matter
or action affecting an officer subject to Section 16 of the Securities Exchange Act of 1934.



     For the purpose of this section and all subsequent sections, the ISP shall be deemed to
include this plan and any comparable sub-plans established by subsidiaries which, in the
aggregate, shall constitute one plan governed by the terms set forth herein.



 









 





4. Shares Available for Incentives




     (a) Shares Subject to Issuance or Transfer. Subject to adjustment as provided in Section
4(c) hereof, there is hereby reserved for issuance under the ISP 95 million shares of Common
Stock. The shares available for granting awards shall be increased by the number of shares as to
which options or other benefits granted under the ISP have lapsed, expired, terminated or been
canceled. In addition, any shares reserved for issuance under the Company’s 1996 Incentive Stock
Plan and 1991 Incentive Stock Plan (“Prior Plans”) in excess of the number of shares as to
which options or other benefits have been awarded thereunder, plus any such shares as to which
options or other benefits granted under the Prior Plans may lapse, expire, terminate or be
canceled, shall also be reserved and available for issuance or reissuance under the ISP. Shares
under this ISP may be delivered by the Company from its authorized but unissued shares of Common
Stock or from Common Stock held in the Treasury.



     (b) Limit on an Individual’s Incentives. In any given year, no Eligible Employee may
receive Incentives covering more than three (3) million shares of the Company’s Common Stock
(such number of shares shall be adjusted in accordance with Section 4(c)).



     (c) Adjustment of Shares. In the event of a reorganization, recapitalization, stock
split, stock dividend, extraordinary cash dividend, combination of shares, merger,
consolidation, rights offering, spin off, split off, split up or other similar change in the
capital structure of the Company, the Committee shall make equitable adjustments to (i) the
number and kind of shares authorized for issuance under the ISP, (ii) the number and kind of
shares subject to outstanding Incentives, (iii) the option price of Stock Options and (iv) the
grant value of Stock Appreciation Rights. Any such determination shall be final, binding and
conclusive on all parties.



5. Stock Options




     The Committee may grant options qualifying as Incentive Stock Options under the Internal
Revenue Code of 1986, as amended, or any successor code thereto (the “Code”), other statutory
options under the Code and Nonqualified Options (collectively “Stock Options”). Such Stock
Options shall be subject to the following terms and conditions and such other terms and
conditions as the Committee may prescribe:




     (a) Option Price. The option price per share with respect to each Stock Option shall
be determined by the Committee, but shall not be less than 100% of the fair market value of
the Common Stock on the date the Stock Option is granted, as determined by the Committee.




     (b) Period of Option. The period of each Stock Option shall be fixed by the
Committee, but shall not exceed ten (10) years.




     (c) Payment. No shares shall be issued until full payment of the option price has
been made. The option prices may be paid in cash or, if the Committee determines, in shares
of Common Stock or a combination of cash and shares. If the Committee approves the use of
shares of Common Stock as a payment method, the Committee shall establish such conditions as
it deems appropriate for the use of Common Stock to exercise a stock option. Stock options
awarded under the ISP shall be exercised through the Company’s broker-assisted stock option
exercise program, provided such program is available at the time of the option exercise, or
by such other means as the Committee may determine from time to time. The Committee may
establish rules and procedures to permit an optionholder to defer recognition of gain upon
the exercise of a stock option.




     (d) Exercise of Option. The Committee shall determine how and when shares covered by
a Stock Option may be purchased. The Committee may establish waiting periods, the dates on
which options become exercisable or “vested” and exercise periods, provided that in no
event (including those specified



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in paragraphs (e), (f) and (g) of this section) shall any Stock Option be exercisable after
its specified expiration period.




     (e) Termination of Employment. Upon the termination of a Stock Option grantee’s
employment (for any reason other than retirement, death or termination for deliberate,
willful or gross misconduct), Stock Option privileges shall be limited to the shares which
were immediately exercisable at the date of such termination. The Committee, however, in its
discretion, may provide that any Stock Options outstanding but not yet exercisable upon the
termination of a Stock Option grantee’s employment may become exercisable in accordance with
a schedule as may be determined by the Committee. Such Stock Option privileges shall expire
unless exercised or surrendered under a Stock Appreciation Right within such period of time
after the date of termination of employment as may be established by the Committee, but in
no event later than the expiration date of the Stock Option.




     (f) Retirement. Upon retirement of a Stock Option grantee, Stock Option privileges
shall apply to those shares immediately exercisable at the date of retirement. The
Committee, however, in its discretion, may provide that any Stock Options outstanding but
not yet exercisable upon the retirement of a Stock Option grantee may become exercisable in
accordance with a schedule as may be determined by the Committee. Stock Option privileges
shall expire unless exercised within such period of time as may be established by the
Committee, but in no event later than the expiration date of the Stock Option.




     (g) Death. Upon the death of a Stock Option grantee, Stock Option privileges shall
apply to those shares which were immediately exercisable at the time of death. The
Committee, however, in its discretion, may provide that any Stock Options outstanding but
not yet exercisable upon the death of a Stock Option grantee may become exercisable in
accordance with a schedule as may be determined by the Committee. Such privileges shall
expire unless exercised by legal representative(s) within a period of time as determined by
the Committee, but in no event later than the expiration date of the Stock Option.




     (h) Termination Due to Misconduct. If a Stock Option grantee’s employment is
terminated for deliberate, willful or gross misconduct, as determined by the Company, all
rights under the Stock Option shall expire upon receipt of the notice of such termination.




     (i) Limits on Incentive Stock Options. Except as may otherwise be permitted by the
Code, the Committee shall not grant to an Eligible Employee Incentive Stock Options that, in
the aggregate, are first exercisable during any one calendar year to the extent that the
aggregate fair market value of the Common Stock, at the time the Incentive Stock Options are
granted, exceeds $100,000, or such other amount as the Internal Revenue Service may decide
from time to time.



6. Stock Appreciation Rights




     The Committee may, in its discretion, grant a right to receive the appreciation in the fair
market value of shares of Common Stock (“Stock Appreciation Right”) either singly or in
combination with an underlying Stock Option granted hereunder or under the Prior Plans. Such
Stock Appreciation Rights shall be subject to the following terms and conditions and such other
terms and conditions as the Committee may prescribe:




     (a) Time and Period of Grant. If a Stock Appreciation Right is granted with respect
to an underlying Stock Option, it may be granted at the time of the Stock Option grant or at
any time thereafter but prior to the expiration of the Stock Option grant. If a Stock
Appreciation Right is granted with respect to an underlying Stock Option, at the time the
Stock Appreciation Right is granted the Committee may limit the exercise period for such
Stock Appreciation Right, before and after which period no Stock Appreciation Right shall
attach to the underlying Stock Option. In no event shall the exercise period for a Stock
Appreciation Right granted with respect to an underlying Stock Option exceed the exercise
period



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for such Stock Option. If a Stock Appreciation Right is granted without an underlying Stock
Option, the period for exercise of the Stock Appreciation Right shall be set by the
Committee.




     (b) Value of Stock Appreciation Right. If a Stock Appreciation Right is granted with
respect to an underlying Stock Option, the grantee will be entitled to surrender the Stock
Option which is then exercisable and receive in exchange therefor an amount equal to the
excess of the fair market value of the Common Stock on the date the election to surrender is
received by the Company over the Stock Option price multiplied by the number of shares
covered by the Stock Option which is surrendered. If a Stock Appreciation Right is granted
without an underlying Stock Option, the grantee will receive upon exercise of the Stock
Appreciation Right an amount equal to the excess of the fair market value of the Common
Stock on the date the election to surrender such Stock Appreciation Right is received by the
Company over the fair market value of the Common Stock on the date of grant multiplied by
the number of shares covered by the grant of the Stock Appreciation Right.




     (c) Payment of Stock Appreciation Right. Payment of a Stock Appreciation Right shall
be in the form of shares of Common Stock, cash or any combination of shares and cash. The
form of payment upon exercise of such a right shall be determined by the Committee either at
the time of grant of the Stock Appreciation Right or at the time of exercise of the Stock
Appreciation Right.



7. Performance Share Awards




     The Committee may grant awards under which payment may be made in shares of Common Stock,
cash or any combination of shares and cash if the performance of the Company or any subsidiary,
division, affiliate or joint venture of the Company selected by the Committee during the Award
Period meets certain goals established by the Committee (“Performance Share Awards”). Such
Performance Share Awards shall be subject to the following terms and conditions and such other
terms and conditions as the Committee may prescribe:




     (a) Award Period and Performance Goals. The Committee shall determine and include in
a Performance Share Award grant the period of time for which a Performance Share Award is
made (“Award Period”). The Committee shall also establish performance objectives
(“Performance Goals”) to be met by the Company, subsidiary, division or joint venture
during the Award Period as a condition to payment of the Performance Share Award. The
Performance Goals may include earnings per share, return on stockholders’ equity, return on
assets, net income or any other financial or other measurement established by the Committee.
The Performance Goals may include minimum and optimum objectives or a single set of
objectives.




     (b) Payment of Performance Share Awards. The Committee shall establish the method of
calculating the amount of payment to be made under a Performance Share Award if the
Performance Goals are met, including the fixing of a maximum payment. The Performance Share
Award shall be expressed in terms of shares of Common Stock and referred to as “Performance
Shares.” After the completion of an Award Period, the performance of the Company,
subsidiary, division or joint venture shall be measured against the Performance Goals, and
the Committee shall determine whether all, none or any portion of a Performance Share Award
shall be paid. The Committee, in its discretion, may elect to make payment in shares of
Common Stock, cash or a combination of shares and cash. Any cash payment shall be based on
the fair market value of Performance Shares on, or as soon as practicable prior to, the date
of payment.




     (c) Revision of Performance Goals. At any time prior to the end of an Award Period,
the Committee may revise the Performance Goals and the computation of payment if unforeseen
events occur which have a substantial effect on the performance of the Company, subsidiary,
division or joint



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venture and which, in the judgment of the Committee, make the application of the Performance
Goals unfair unless a revision is made.




     (d) Requirement of Employment. A grantee of a Performance Share Award must remain in
the employ of the Company until the completion of the Award Period in order to be entitled
to payment under the Performance Share Award; provided that the Committee may, in its
discretion, provide for a full or partial payment where such an exception is deemed
equitable.




     (e) Dividends. The Committee may, in its discretion, at the time of the granting of a
Performance Share Award, provide that any dividends declared on the Common Stock during the
Award Period, and which would have been paid with respect to Performance Shares had they
been owned by a grantee, be (i) paid to the grantee, or (ii) accumulated for the benefit of
the grantee and used to increase the number of Performance Shares of the grantee.




     (f) Limit on Performance Share Awards. Incentives granted as Performance Share Awards
under this section and Restricted Stock Grants under Section 8 shall not exceed, in the
aggregate, six (6) million shares of Common Stock (such number of shares shall be adjusted
in accordance with Section 4(c)).



8. Restricted Stock Grants




     The Committee may award shares of Common Stock to a grantee, which shares shall be subject
to the following terms and conditions and such other terms and conditions as the Committee may
prescribe (“Restricted Stock Grant”):




     (a) Requirement of Employment. A grantee of a Restricted Stock Grant must remain in
the employment of the Company during a period designated by the Committee (“Restriction
Period”) in order to retain the shares under the Restricted Stock Grant. If the grantee
leaves the employment of the Company prior to the end of the Restriction Period, the
Restricted Stock Grant shall terminate and the shares of Common Stock shall be returned
immediately to the Company provided that the Committee may, at the time of the grant,
provide for the employment restriction to lapse with respect to a portion or portions of the
Restricted Stock Grant at different times during the Restriction Period. The Committee may,
in its discretion, also provide for such complete or partial exceptions to the employment
restriction as it deems equitable.




     (b) Restrictions on Transfer and Legend on Stock Certificates. During the Restriction
Period, the grantee may not sell, assign, transfer, pledge or otherwise dispose of the
shares of Common Stock. Each certificate for shares of Common Stock issued hereunder shall
contain a legend giving appropriate notice of the restrictions in the grant.




     (c) Escrow Agreement. The Committee may require the grantee to enter into an escrow
agreement providing that the certificates representing the Restricted Stock Grant will
remain in the physical custody of an escrow holder until all restrictions are removed or
expire.




     (d) Lapse of Restrictions. All restrictions imposed under the Restricted Stock Grant
shall lapse upon the expiration of the Restriction Period if the conditions as to employment
set forth above have been met. The grantee shall then be entitled to have the legend removed
from the certificates.




     (e) Dividends. The Committee shall, in its discretion, at the time of the Restricted
Stock Grant, provide that any dividends declared on the Common Stock during the Restriction
Period shall either be (i) paid to the grantee, or (ii) accumulated for the benefit of the
grantee and paid to the grantee only after the expiration of the Restriction Period.



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     (f) Limit on Restricted Stock Grant. Incentives granted as Restricted Stock Grants
under this section and Performance Share Awards under Section 7 shall not exceed, in the
aggregate, six (6) million shares of Common Stock (such number of shares shall be adjusted
in accordance with Section 4(c)).



9. Transferability




     Each Incentive Stock Option granted under the ISP shall not be transferable other than by
will or the laws of descent and distribution; each other Incentive granted under the ISP will
not be transferable or assignable by the recipient, and may not be made subject to execution,
attachment or similar procedures, other than by will or the laws of descent and distribution or
as determined by the Committee in accordance with regulations promulgated under the Securities
Exchange Act of 1934, or any other applicable law or regulation.



10. Discontinuance or Amendment of the Plan




     The Board of Directors may discontinue the ISP at any time and may from time to time amend
or revise the terms of the ISP as permitted by applicable statutes, except that it may not
revoke or alter, in a manner unfavorable to the grantees of any Incentives hereunder, any
Incentives then outstanding, nor may the Board amend the ISP without stockholder approval where
the absence of such approval would cause the Plan to fail to comply with Rule 16b-3 under the
Securities Exchange Act of 1934, or any other requirement of applicable law or regulation.
Unless approved by the Company’s stockholders, no adjustments or reduction of the exercise price
of any outstanding Incentives shall be made by cancellation of outstanding Incentives and the
subsequent regranting of Incentives at a lower price to the same individual. No Incentive shall
be granted under the ISP after December 31, 2003, but Incentives granted theretofore may extend
beyond that date.



11. No Right of Employment or Participation




     The ISP and the Incentives granted hereunder shall not confer upon any Eligible Employee
the right to continued employment with the Company, its subsidiaries, its affiliates or its
joint ventures or affect in any way the right of such entities to terminate the employment of an
Eligible Employee at any time and for any reason. No individual shall have a right to be granted
an Incentive, or having been granted an Incentive, to receive any future Incentives.



12. No Limitation on Compensation




     Nothing in the ISP shall be construed to limit the right of the Company to establish other
plans or to pay compensation to its employees, in cash or property, in a manner which is not
expressly authorized under the ISP.



13. No Impact on Benefits




     Except as may otherwise be specifically stated under any employee benefit plan, policy or
program, no amount payable in respect of any Incentive shall be treated as compensation for
purposes of calculating an employee’s right under any such plan, policy or program.



14. No Constraint on Corporate Action




     Nothing in the ISP shall be construed (i) to limit, impair or otherwise affect the
Company’s right or power to make adjustments, reclassifications, reorganizations or changes of
its capital or business structure, or to merge or consolidate, or dissolve, liquidate, sell or
transfer all or any part of its business or assets, or (ii) except as provided in Section 10, to
limit the right or power of the Company or any subsidiary to take any action which such entity
deems to be necessary or appropriate.



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15. Withholding Taxes




     The Company shall be entitled to deduct from any payment under the ISP, regardless of the
form of such payment, the amount of all applicable income and employment taxes required by law
to be withheld with respect to such payment or may require the Eligible Employee to pay to it
such tax prior to and as a condition of the making of such payment. In accordance with any
applicable administrative guidelines it establishes, the Committee may allow an Eligible
Employee to pay the amount of taxes required by law to be withheld from an Incentive by
withholding from any payment of Common Stock due as a result of such Incentive, or by permitting
the Eligible Employee to deliver to the Company, shares of Common Stock having a fair market
value, as determined by the Committee, equal to the amount of such required withholding taxes.



16. Governing Law




     The ISP, and all agreements hereunder, shall be construed in accordance with and governed
by the laws of the State of New Jersey.



Merck Change in Control




     (a) Options.




     1. Vesting of Options Other Than Key R&D Options. Upon the occurrence of a Change in
Control, each Stock Option which is outstanding immediately prior to the Change in Control,
other than the Key R&D Options, shall immediately become fully vested and exercisable.




     2. Vesting of Key R&D Options.




     (i) Subject to (a)(2)(ii) of this Schedule, upon the occurrence of a Change in Control,
each Key R&D Option shall continue to be subject to the performance-based vesting schedule
applicable thereto immediately prior to the Change in Control.




     (ii) Notwithstanding (a)(2)(i) of this Schedule, if the Stock Options do not continue to be
outstanding following the Change in Control or are not exchanged for or converted into options
to purchase securities of a successor entity (“Successor Options”), then, upon the occurrence of
a Change in Control, all or a portion of each Key R&D Option shall immediately vest and become
exercisable in the following percentages: (A) if such Key R&D Option’s first milestone has not
been reached before the date of the Change in Control, 14% of the then-unvested portion of the
Key R&D Option shall vest and become exercisable and the remainder shall be forfeited; (B) if
only such Key R&D Option’s first milestone has been reached before the date of the Change in
Control, 42% of the then-unvested portion of the Key R&D Option shall vest and become
exercisable and the remainder shall be forfeited; and (C) if such Key R&D Option’s first and
second milestones have been reached before the date of the Change in Control, 100% of the
then-unvested portion of the Key R&D Option shall vest and become exercisable.




     3. Post-Termination Exercise Period. If Stock Options continue to be outstanding
following the Change in Control or are exchanged for or converted into Successor Options, then
the portion of such Stock Options or such Successor Options, as applicable, that is vested and
exercisable immediately following the termination of employment of the holder thereof after the
Change in Control shall remain exercisable following such termination for five years from the
date of such termination (but not beyond the remainder of the term thereof) provided, however,
that, if such termination is by reason of gross misconduct, death or retirement (as these terms
are applied to awards granted under the Plans), then those provisions of the Plan that are
applicable to a termination by reason of gross misconduct, death or retirement, if any, shall
apply to such termination. If the effect of vesting pursuant to this Section (a) would cause a
Stock Option or



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Successor Stock Option to terminate earlier than if such accelerated vesting had not occurred,
then the term of such Stock Option shall not expire earlier than if such accelerated vesting had
not occurred.




     4. Cashout of Stock Options. If the Stock Options do not continue to be outstanding
following the Change in Control and are not exchanged for or converted into Successor Options,
each holder of a vested and exercisable option shall be entitled to receive, as soon as
practicable following the Change in Control, for each share of Common Stock subject to a vested
and exercisable option, an amount of cash determined by the Committee prior to the Change in
Control but in no event less than the excess of the Change in Control Price over the exercise
price thereof (subject to any existing deferral elections then in effect). If the consideration
to be paid in a Change in Control is not entirely shares of common stock of an acquiring or
resulting corporation, then the Committee may, prior to the Change in Control, provide for the
cancellation of outstanding Stock Options at the time of the Change in Control, in whole or in
part, for cash pursuant to this provision or may provide for the exchange or conversion of
outstanding Stock Options at the time of the Change in Control, in whole or in part, and, in
connection with any such provision, may (but shall not be obligated to) permit holders of Stock
Options to make such elections related thereto as it determines are appropriate.




     5. Incentive Stock Options Not Amended. This Section does not apply to any incentive
stock option within the meaning of Section 422 of the Internal Revenue Code.



     (b) Restricted Stock Units and Performance Share Units.




     1. Vesting of Restricted Stock Units. Upon the occurrence of a Change in Control, each
unvested restricted stock unit award which is outstanding immediately prior to the Change in
Control under the Plan shall immediately become fully vested.




     2. Vesting of Performance Share Units. Upon the occurrence of a Change in Control, each
unvested performance share unit award which is outstanding immediately prior to the Change in
Control under the Plan shall immediately become vested in an amount equal to the PSU Pro Rata
Amount.




     3. Settlement of Restricted Stock Units and Performance Share Units.




     (i) If the Common Stock continues to be widely held and freely tradable following the
Change in Control or is exchanged for or converted into securities of a successor entity that
are widely held and freely tradable, then the restricted stock units and the vested performance
share units shall be paid in shares of Common Stock or such other securities as soon as
practicable after the date of the Change in Control (subject to any existing deferral elections
then in effect).




     (ii) If the Common Stock does not continue to be widely held and freely tradable following
the Change in Control and is not exchanged for or converted into securities of a successor
entity that are widely held and freely tradable, then the restricted stock units and the vested
performance share units shall be paid in cash as soon as practicable after the date of the
Change in Control (subject to any existing deferral elections then in effect).



     (c) Other Provisions.




     1. Except to the extent required by applicable law, for the entirety of the Protection
Period, the material terms of the Plan shall not be modified in any manner that is materially
adverse to the Qualifying Participants (it being understood that this Section (c) of this
Schedule shall not require that any specific type or levels of equity awards be granted to
Qualifying Participants following the Change in Control).




     2. During the Protection Period, the Plan may not be amended or modified to reduce or
eliminate the protections set forth in Section (c)(1) of this Schedule and may not be
terminated.



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     3. The Company shall pay all legal fees and related expenses (including the costs of
experts, evidence and counsel) reasonably and in good faith incurred by a Qualifying Participant
if the Qualifying Participant prevails on his or her claim for relief in an action (x) by the
Qualifying Participant claiming that the provisions of Section (c)(1) or (c)(2) of this Schedule
have been violated (but, for avoidance of doubt, excluding claims for Plan benefits in the
ordinary course) and (y) if applicable, by the Company or the Qualifying Participant’s employer
to enforce post-termination covenants against the Qualifying Participant.




     4. This section does not apply to any incentive stock option within the meaning of Section
422 of the Internal Revenue Code.




     5. Anything in the Plan as amended by this Schedule notwithstanding, the Company reserves
the right to make such further changes as may be required if and to the extent required to avoid
adverse consequences under the American Jobs Creation Act of 2004, as amended.



     (d) Definitions.




     For purposes of this Schedule, the following terms shall have the following meanings:




     1. “Change in Control” shall have the meaning set forth in the Company’s Change in Control
Separation Benefits Plan; provided, however, that, as to any award under the Plan that consists
of deferred compensation subject to Section 409A of the Code, the definition of “Change in
Control” shall be deemed modified to the extent necessary to comply with Section 409A of the
Code.




     2. “Change in Control Price” shall mean, with respect to a share of Common Stock, the
higher of (A) the highest reported sales price, regular way, of such share in any transaction
reported on the New York Stock Exchange Composite Tape or other national exchange on which such
shares are listed or on the NASDAQ National Market during the 10-day period prior to and
including the date of a Change in Control and (B) if the Change in Control is the result of a
tender or exchange offer, merger, or other, similar corporate transaction, the highest price per
such share paid in such tender or exchange offer, merger or other, similar corporate
transaction; provided that, to the extent all or part of the consideration paid in any such
transaction consists of securities or other non-cash consideration, the value of such securities
or other non-cash consideration shall be determined by the Committee.




     3. “Key R&D Options” shall mean those performance-based options granted to employees under
the Key Research and Development Program described in the applicable Schedule to the Rules and
Regulations for the Plan, if any.




     4. “Protection Period” shall mean the period beginning on the date of the Change in
Control and ending on the second anniversary of the date of the Change in Control.




     5. “PSU Pro Rata Amount” shall mean for each Performance Share Unit award, the amount
determined by multiplying (x) and (y), where (x) is the number of Target Shares subject to the
Performance Share Unit award times the Assumed Performance Percentage and (y) is a fraction, the
numerator of which is the number of whole and partial calendar months elapsed during the
applicable performance period (counting any partial month as a whole month for this purpose) and
the denominator of which is the total number of months in the applicable performance period.
The Assumed Performance Percentage shall be determined by (1) averaging the ranks during the
Award Period as follows: (A) as to any completed performance year as of the Change in Control,
the actual rank (except that, if fewer than 90 days have elapsed since the completion of such
performance year, the Target Rank shall be used), and (B) as to any performance year that is
incomplete or has not yet begun as of the Change in Control, the Target Rank, (2) rounding the
average rank calculated pursuant to the foregoing clause (1) to the nearest whole number using
ordinary



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numerical rounding, and (3) using the Final Award Percentage associated with the number
determined in the foregoing clause (2). The Target Rank is the rank associated with 100% on the
chart of Final Award Percentages.




     6. “Qualifying Participants” shall mean those individuals who participate in the Plan
(whether as current or former employees) as of immediately prior to the Change in Control.



     (e) Application.



          This Schedule shall apply to Stock Options, restricted stock unit awards and performance share
unit awards under the Plans granted prior to November 24, 2004.




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