EX-10.2 WEBMD HEALTH CORP. LONG-TERM INCENTIVE



 





EXHIBIT 10.2




WEBMD HEALTH CORP.

LONG-TERM INCENTIVE PLAN

FOR EMPLOYEES OF SUBIMO, LLC




ARTICLE 1

PURPOSE




     1.1 GENERAL. The purpose of the WebMD Health Corp. Long-Term Incentive Plan for Employees of
Subimo, LLC (the “Plan”) is to induce employees of Subimo, LLC (“Subimo”) to remain employees of
Subimo following the acquisition of Subimo by WebMD Health Corp., a Delaware corporation (the
“Corporation”), pursuant to the Unit Purchase Agreement, dated as of November 2, 2006, between the
Corporation, Subimo, the seller and unit holders named therein (the “Purchase Agreement”) and to
motivate such employees to promote the success, and enhance the value, of the Corporation, by
linking the personal interests of such employees to those of Corporation shareholders and by
providing such employees with an incentive for outstanding performance.



ARTICLE 2

EFFECTIVE DATE




     2.1 EFFECTIVE DATE. The Plan became effective on the date upon which it was approved by the
Compensation Committee of the Board of Directors of the Corporation, which was December 14, 2006
(the “Effective Date”).



ARTICLE 3

DEFINITIONS




     3.1 DEFINITIONS. When a word or phrase appears in this Plan with the initial letter
capitalized, and the word or phrase does not commence a sentence and is not otherwise defined in
the Plan, the word or phrase shall generally be given the meaning ascribed to it in this Section.
The following words and phrases shall have the following meanings:




     (a) “1933 Act” means the Securities Act of 1933, as amended from time to time.




     (b) “1934 Act” means the Securities Exchange Act of 1934, as amended from time to time.




     (c) “Affiliate” means any Parent or Subsidiary and any person that directly, or
indirectly through one or more intermediaries, controls, is controlled by, or is under
common control with, the Corporation.




     (d) “Award” means any Option or Restricted Stock Award granted to a Participant under
the Plan.




     (e) “Award Agreement” means any written agreement, contract or other instrument or
document evidencing an Award.




     (f) “Board” means the Board of Directors of the Corporation.




     (g) “Cause” as a reason for a Participant’s termination of employment or service shall
have the meaning assigned such term in the employment agreement, if any, between such
Participant and the Corporation or an affiliated company, provided , however , that if there
is no such employment agreement in which such term is defined, “Cause” shall mean any of the
following acts by the



 









 







Participant, as determined by the Board: gross neglect of duty, prolonged absence from
duty without the consent of the Corporation, intentionally engaging in any activity that is
in conflict with or adverse to the business or other interests of the Corporation, or
willful misconduct, misfeasance or malfeasance of duty which is reasonably determined to be
detrimental to the Corporation.




     (h) “Change of Control” means and includes the occurrence of any one of the following
events:




          (i) individuals who, at the effective date of the Initial Public Offering, constitute
the Board (the “Incumbent Directors”) cease for any reason to constitute at least a majority
of the Board, provided that any person becoming a director after the Effective Date and
whose election or nomination for election was approved by a vote of at least a majority of
the Incumbent Directors then on the Board (either by a specific vote or by approval of the
proxy statement of the Corporation in which such person is named as a nominee for director,
without written objection to such nomination) shall be an Incumbent Director; provided,
however, that no individual initially elected or nominated as a director of the Corporation
as a result of an actual or threatened election contest (as described in Rule 14a-11 under
the 1934 Act (“Election Contest”)) or other actual or threatened solicitation of proxies or
consents by or on behalf of any “person” (as such term is defined in Section 3(a)(9) of the
1934 Act and as used in Section 13(d)(3) and 14(d)(2) of the 1934 Act) other than the Board
(“Proxy Contest”), including by reason of any agreement intended to avoid or settle any
Election Contest or Proxy Contest, shall be deemed an Incumbent Director;




          (ii) any person becomes a “beneficial owner” (as defined in Rule 13d-3 under the 1934
Act), directly or indirectly, of securities of the Corporation representing 50% or more of
the combined voting power of the Corporation’s then outstanding securities eligible to vote
for the election of the Board (the “Corporation Voting Securities”); provided, however, that
the event described in this paragraph (ii) shall not be deemed to be a Change of Control of
the Corporation by virtue of any of the following acquisitions: (A) any acquisition by a
person who is on the Effective Date the beneficial owner of 50% or more of the outstanding
Corporation Voting Securities, (B) an acquisition by the Corporation which reduces the
number of Corporation Voting Securities outstanding and thereby results in any person
acquiring beneficial ownership of more than 50% of the outstanding Corporation Voting
Securities, provided that if after such acquisition by the Corporation such person becomes
the beneficial owner of additional Corporation Voting Securities that increase the
percentage of outstanding Corporation Voting Securities beneficially owned by such person, a
Change of Control of the Corporation shall then occur, (C) an acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Corporation or any Parent or
Subsidiary, (D) an acquisition by an underwriter temporarily holding securities pursuant to
an offering of such securities or (E) an acquisition pursuant to a Non-Qualifying
Transaction (as defined in paragraph (iii)); or




          (iii) the consummation of a reorganization, merger, consolidation, statutory share
exchange or similar form of corporate transaction involving the Corporation that requires
the approval of the Corporation’s stockholders, whether for such transaction or the issuance
of securities in the transaction (a “Reorganization”), or the sale or other disposition of
all or substantially all of the Corporation’s assets to an entity that is not an affiliate
of the Corporation (a “Sale”), unless immediately following such Reorganization or Sale: (A)
more than 50% of the total voting power of (x) the corporation resulting from such
Reorganization or the corporation which has acquired all or substantially all of the assets
of the Corporation (in either case, the “Surviving Corporation”) or (y) if applicable, the
ultimate parent corporation that directly or indirectly has beneficial ownership of 100% of
the voting securities eligible to elect directors of the Surviving Corporation (the “Parent
Corporation”), is represented by the Corporation Voting Securities that were outstanding
immediately prior to such Reorganization or Sale (or, if applicable, is represented by
 shares into which such Corporation Voting Securities were converted pursuant to such
Reorganization or Sale), and such voting power among the holders thereof is in substantially
the same proportion as the voting power of such Corporation Voting Securities among the
holders thereof immediately prior to the Reorganization or Sale, (B) no person (other than
(x) the Corporation, (y) any employee benefit plan (or related trust) sponsored or
maintained by the Surviving Corporation or the Parent Corporation or (z) a person who
immediately prior to the



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Reorganization or Sale was the beneficial owner of 25% or more of the outstanding
Corporation Voting Securities) is the beneficial owner, directly or indirectly, of 25% or
more of the total voting power of the outstanding voting securities eligible to elect
directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) and (C) at least a majority of the members of the board of directors of the
Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation)
following the consummation of the Reorganization or Sale were Incumbent Directors at the
time of the Board’s approval of the execution of the initial agreement providing for such
Reorganization or Sale (any Reorganization or Sale which satisfies all of the criteria
specified in (A), (B) and (C) above shall be deemed to be a “Non-Qualifying Transaction”);



     provided, however, that in no event shall a Change of Control be deemed to
have occurred so long as Emdeon Corporation directly or indirectly beneficially owns at least 50%
of the voting power represented by the securities of the Corporation entitled to vote generally in
the election of the Corporation’s directors; and provided further, however, that under no
circumstances shall a split-off, spin-off, stock dividend or similar transaction as a result of
which the voting securities of the Corporation are distributed to shareholders of Emdeon
Corporation or its successors constitute a Change of Control.



     Notwithstanding the foregoing, with respect to an Award that is subject to Section 409A of the
Code, and payment or settlement of such Award is to be accelerated in connection with an event that
would otherwise constitute a Change of Control, no event set forth in clause (i), (ii) or (iii)
will constitute a Change of Control for purposes of the Plan and any Award Agreement unless such
event also constitutes a “change in the ownership”, “change in the effective control” or “change in
the ownership of a substantial portion of the assets” of the Corporation as defined under Section
409A of the Code and the Treasury guidance promulgated thereunder.




     (i) “Code” means the Internal Revenue Code of 1986, as amended from time to time, and
the regulations promulgated thereunder.




     (j) “Committee” means, subject to the last sentence of Section 4.1, the committee of
the Board described in Article 4.




     (k) “Covered Employee” means a covered employee as defined in Section 162(m)(3) of the
Code.




     (l) “Disability” has the meaning ascribed under the long-term disability plan
applicable to the Participant. Notwithstanding the above, to the extent an Award is subject
to Section 409A of the Code, and payment or settlement of the Award is to be accelerated
solely as a result of the Participant’s Disability, Disability shall have the meaning
ascribed thereto under Section 409A of the Code and the Treasury guidance promulgated
thereunder.




     (m) “Dividend Equivalent” means a right granted to a Participant under Article 11.




     (n) “Effective Date” has the meaning assigned such term in Section 2.1.




     (o) “Fair Market Value”, on any date, means (i) if the Stock is listed on a securities
exchange or is traded over the Nasdaq National Market, the closing sales price on such
exchange or over such system on such date or, in the absence of reported sales on such date,
the closing sales price on the immediately preceding date on which sales were reported or
(ii) if the Stock is not listed on a securities exchange or traded over the Nasdaq National
Market, Fair Market Value will be determined by such other method as the Committee
determines in good faith to be reasonable.




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




     (q) “Non-Qualified Stock Option” means an Option that is not an Incentive Stock Option.



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     (r) “Option” means a right granted to a Participant under Article 7 to purchase Stock
at a specified price during specified time periods.




     (s) “Parent” means a corporation which owns or beneficially owns a majority of the
outstanding voting stock or voting power of the Corporation.




     (t) “Participant” means a person who, as an employee or officer of Subimo, has been
granted an Award under the Plan. In no event may any officer or director of the Company or
Parent who is subject to Section 16(a) of the 1934 Act receive an Award hereunder.




     (u) “Restricted Stock Award” means Stock granted to a Participant under Article 7 that
is subject to certain restrictions and to risk of forfeiture.




     (v) “Stock” means the $.01 par value Class A common stock of the Corporation and such
other securities of the Corporation as may be substituted for Stock pursuant to Article 10.




     (w) “Subsidiary” means any corporation, limited liability company, partnership or other
entity of which a majority of the outstanding voting equity securities or voting power is
beneficially owned directly or indirectly by the Corporation.




     (x) “Emdeon Corporation” means Emdeon Corporation, a Delaware corporation.



ARTICLE 4

ADMINISTRATION




     4.1 COMMITTEE. The Plan shall be administered by a committee (the “Committee”) appointed by
the Board (which Committee shall consist of two or more directors) or, at the discretion of the
Board from time to time, the Plan may be administered by the Board. It is intended that the
directors appointed to serve on the Committee shall be “non-employee directors” (within the meaning
of Rule 16b-3 promulgated under the 1934 Act) and “outside directors” (within the meaning of
Section 162(m) of the Code and the regulations thereunder) to the extent that Rule 16b-3 and, if
necessary for relief from the limitation under Section 162(m) of the Code and such relief is sought
by the Corporation, Section 162(m) of the Code, respectively, are applicable. However, the mere
fact that a Committee member shall fail to qualify under either of the foregoing requirements shall
not invalidate any Award made by the Committee which Award is otherwise validly made under the
Plan. The members of the Committee shall be appointed by, and may be changed at any time and from
time to time in the discretion of, the Board. During any time that the Board is acting as
administrator of the Plan, it shall have all the powers of the Committee hereunder, and any
reference herein to the Committee (other than in this Section 4.1) shall include the Board.



     4.2 ACTION BY THE COMMITTEE. For purposes of administering the Plan, the following rules of
procedure shall govern the Committee. A majority of the Committee shall constitute a quorum. The
acts of a majority of the members present at any meeting at which a quorum is present, and acts
approved unanimously in writing by the members of the Committee in lieu of a meeting, shall be
deemed the acts of the Committee. Each member of the Committee is entitled to, in good faith, rely
or act upon any report or other information furnished to that member by any officer or other
employee of the Corporation or any Parent or Affiliate, the Corporation’s independent certified
public accountants, or any executive compensation consultant or other professional retained by the
Corporation to assist in the administration of the Plan.



     4.3 AUTHORITY OF COMMITTEE. Except as provided below, the Committee has the exclusive power,
authority and discretion to:




     (a) Designate Participants;




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



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




     (d) Determine the terms and conditions of any Award granted under the Plan, including,
but not limited to, the exercise price, grant price or purchase price, any restrictions or
limitations on the Award, any schedule for lapse of forfeiture restrictions or restrictions
on the exercisability of an Award, and accelerations or waivers thereof, based in each case
on such considerations as the Committee in its sole discretion determines;




     (e) Accelerate the vesting or lapse of restrictions of any outstanding Award, based in
each case on such considerations as the Committee in its sole discretion determines;




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




     (g) Prescribe the form of each Award Agreement, which need not be identical for each
Participant or amend any Award Agreement;




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




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




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




     (k) Amend the Plan as provided herein.



          Notwithstanding the foregoing authority, except as provided in or pursuant to Article 15, the
Committee shall not authorize, generally or in specific cases only, for the benefit of any
Participant, any adjustment in the exercise price of an Option, or in the number of shares subject
to an Option granted hereunder by (i) cancellation of an outstanding Option and a subsequent
regranting of an Option, (ii) amendment to an outstanding Option (iii) substitution of an
outstanding Option or (iv) any other action that would be deemed to constitute a repricing of such
an Award under applicable law, in each case, without prior approval of the Corporation’s
stockholders.




          4.4 DELEGATION OF AUTHORITY. To the extent not prohibited by applicable laws, rules and
regulations, the Board or the Committee may, from time to time, delegate some or all of its
authority under the Plan to a subcommittee or subcommittees thereof or to one or more directors or
executive officers of the Corporation as it deems appropriate under such conditions or limitations
as it may set at the time of such delegation or thereafter, except that neither the Board nor the
Committee may delegate its authority pursuant to Article 16 to amend the Plan. For purposes of the
Plan, references to the Committee shall be deemed to refer to any subcommittee, subcommittees,
directors or executive officers to whom the Board or the Committee delegates authority pursuant to
this Section 4.4.




          4.5 DECISIONS BINDING. The Committee’s interpretation of the Plan, any Awards granted under
the Plan, any Award Agreement and all decisions and determinations by the Committee with respect to
the Plan are final, binding and conclusive on all parties.




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ARTICLE 5

SHARES SUBJECT TO THE PLAN




     5.1 NUMBER OF SHARES. Subject to adjustment as provided in Article 10, the aggregate number
of shares of Stock reserved and available for Awards shall be 500,000 shares (the “Maximum
Number”). Any shares reserved, but not granted on the Closing Date of the transaction contemplated
by the Purchase Agreement shall lapse and shall not be available for grant under the Plan. No
Options may be granted in the form of Incentive Stock Options. All Options are Non-Qualified
Options.



     5.2 LAPSED AWARDS. Once an Award (or portion thereof) is forfeited, such shares shall not be
available for the granting of an Award under the Plan.



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



ARTICLE 6

ELIGIBILITY




     6.1 GENERAL. Awards may be granted only to individuals who are employees or officers of
Subimo. No Award may be made to Covered Employees or other persons subject to Section 16 of the
1934 Act.



ARTICLE 7

STOCK OPTIONS




     7.1 GENERAL. The Committee is authorized to grant Options to Participants on the following
terms and conditions:




     (a) Exercise Price. The exercise price per share of Stock under an Option shall be
determined by the Committee at the time of the grant but in no event shall the exercise
price be less than 100% of the Fair Market Value of a share of Stock on the date of grant.




     (b) Time and Conditions of Exercise. The Committee shall determine the time or times
at which an Option may be exercised in whole or in part, subject to Section 7.1(e). The
Committee also shall determine the performance or other conditions, if any, that must be
satisfied before all or part of an Option may be exercised. The Committee may waive any
exercise provisions at any time in whole or in part based upon factors as the Committee may
determine in its sole discretion so that the Option becomes exerciseable at an earlier date.




     (c) Payment. Unless otherwise determined by the Committee, the exercise price of an
Option may be paid (i) in cash, (ii) by actual delivery or attestation to ownership of
freely transferable shares of stock already owned; provided, however, that to the extent
required by applicable accounting rules, such shares shall have been held by the Participant
for at least six months, (iii) by a combination of cash and shares of Stock equal in value
to the exercise price or (iv) by such other means as the Committee, in its discretion, may
authorize. In accordance with the rules and procedures authorized by the Committee for this
purpose, an Option may also be exercised through a “cashless exercise” procedure authorized
by the Committee that permits Participants to exercise Options by delivering a properly
executed exercise notice to the Corporation together with a copy of irrevocable instructions
to a broker to deliver promptly to the Corporation the amount of sale or loan proceeds
necessary to pay the exercise price and the amount of any required tax or other withholding
obligations.




     (d) Evidence of Grant. All Options shall be evidenced by a written Award Agreement
between the Corporation and the Participant. The Award Agreement shall include such
provisions not inconsistent with the Plan as may be specified by the Committee.



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     (e) Exercise Term. In no event may any Option be exercisable for more than ten years
from the date of its grant.



ARTICLE 8

RESTRICTED STOCK AWARDS




     8.1 GRANT OF RESTRICTED STOCK. The Committee is authorized to make Awards of Restricted Stock
to Participants in such amounts and subject to such terms and conditions as may be selected by the
Committee. All Awards of Restricted Stock shall be evidenced by a Restricted Stock Award Agreement.



     8.2 ISSUANCE AND RESTRICTIONS. Restricted Stock shall be subject to such restrictions on
transferability and other restrictions as the Committee may impose (including, without limitation,
limitations on the right to vote Restricted Stock or the right to receive dividends on the
Restricted Stock). These restrictions may lapse separately or in combination at such times, under
such circumstances, in such installments, upon the satisfaction of performance goals or otherwise,
as the Committee determines at the time of the grant of the Award or thereafter.



     8.3 FORFEITURE. Except as otherwise determined by the Committee at the time of the grant of
the Award or thereafter, upon termination of employment during the applicable restriction period or
upon failure to satisfy a performance goal during the applicable restriction period, Restricted
Stock that is at that time subject to restrictions shall be forfeited and reacquired by the
Corporation; provided, however, that the Committee may provide in any Award Agreement that
restrictions or forfeiture conditions relating to Restricted Stock will be waived in whole or in
part in the event of terminations resulting from specified causes, and the Committee may in other
cases waive in whole or in part restrictions or forfeiture conditions relating to Restricted Stock.



     8.4 CERTIFICATES FOR RESTRICTED STOCK. Restricted Stock granted under the Plan may be
evidenced in such manner as the Committee shall determine. If certificates representing shares of
Restricted Stock are registered in the name of the Participant, certificates must bear an
appropriate legend referring to the terms, conditions and restrictions applicable to such
Restricted Stock.



ARTICLE 9

PROVISIONS APPLICABLE TO AWARDS




     9.1 TERM OF AWARD. The term of each Award shall be for the period as determined by the
Committee.



     9.2 FORM OF PAYMENT FOR AWARDS. Subject to the terms of the Plan and any applicable law or
Award Agreement, payments or transfers to be made by the Corporation or a Parent or Affiliate on
the grant or exercise of an Award may be made in such form as the Committee determines at or after
the time of grant, including, without limitation, cash, Stock, other Awards or other property, or
any combination thereof, and may be made in a single payment or transfer, in installments or on a
deferred basis, in each case determined in accordance with rules adopted by, and at the discretion
of, the Committee.



     9.3 LIMITS ON TRANSFER. No right or interest of a Participant in any unexercised or
restricted Award may be pledged, encumbered or hypothecated to or in favor of any party other than
the Corporation or a Parent or Affiliate, or shall be subject to any lien, obligation, or liability
of such Participant to any other party other than the Corporation or a Parent or Affiliate. No
unexercised or restricted Award shall be assignable or transferable by a Participant other than by
will or the laws of descent and distribution or, pursuant to a domestic relations order that would
satisfy Section 414(p)(1)(A) of the Code if such Section applied to an Award under the Plan;
provided, however, that the Committee may (but need not) permit other transfers where the Committee
concludes that such transferability (i) does not result in accelerated taxation or other adverse
tax consequences, and (ii) is otherwise appropriate and desirable, taking into account any factors
deemed relevant, including, without limitation, state or federal tax or securities laws applicable
to transferable Awards.



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     9.4 BENEFICIARIES. Notwithstanding Section 9.3, a Participant may, in the manner determined
by the Committee, designate a beneficiary to exercise the rights of the Participant and to receive
any distribution with respect to any Award upon the Participant’s death. A beneficiary, legal
guardian, legal representative or other person claiming any rights under the Plan is subject to all
terms and conditions of the Plan and any Award Agreement applicable to the Participant, except to
the extent the Plan and such Award Agreement otherwise provide, and to any additional restrictions
deemed necessary or appropriate by the Committee. If no beneficiary has been designated or survives
the Participant, payment shall be made to the Participant’s estate. Subject to the foregoing, a
beneficiary designation may be changed or revoked by a Participant at any time, provided the change
or revocation is filed with the Committee.



     9.5 STOCK CERTIFICATES. All Stock issuable under the Plan is subject to any stop-transfer
orders and other restrictions as the Committee deems necessary or advisable to comply with federal
or state securities laws, rules and regulations and the rules of any national securities exchange
or automated quotation system on which the Stock is listed, quoted or traded. The Committee may
place legends on any Stock certificate or issue instructions to the transfer agent to reference
restrictions applicable to the Stock.



     9.6 ACCELERATION UPON DEATH OR DISABILITY. Unless otherwise set forth in an Award Agreement,
upon the Participant’s death or Disability during his employment, all outstanding Options,
Restricted Stock Awards shall become fully exercisable and all restrictions on outstanding Awards
shall lapse. Any Option shall thereafter continue or lapse in accordance with the other provisions
of the Plan and the Award Agreement.



     9.7 ACCELERATION OF VESTING AND LAPSE OF RESTRICTIONS. The Committee may, in its sole
discretion, at any time (including, without limitation, prior to, coincident with or subsequent to
a Change of Control) determine that (a) all or a portion of a Participant’s Options shall become
fully or partially exercisable, and/or (b) all or a part of the restrictions on all or a portion of
the outstanding Awards shall lapse, in each case, as of such date as the Committee may, in its sole
discretion, declare; provided, however, that, with respect to Awards that are subject to Section
409A of the Code, the Committee shall not have the authority to accelerate or postpone the timing
of payment or settlement of an Award in a manner that would cause such Award to become subject to
the interest and penalty provisions under Section 409A of the Code. The Committee may discriminate
among Participants and among Awards granted to a Participant in exercising its discretion pursuant
to this Section 9.7.



     9.8 OTHER ADJUSTMENTS. If (i) an Award is accelerated under Section 9.7 or (ii) a Change of
Control occurs (regardless of whether an acceleration under Section 9.7 occurs), the Committee may,
in its sole discretion, provide (a) that the Award will expire after a designated period of time
after such acceleration or Change of Control, as applicable, to the extent not then exercised, (b)
that the Award will be settled in cash rather than Stock, (c) that the Award will be assumed by
another party to a transaction giving rise to the acceleration or a party to the Change of Control,
(d) that the Award will otherwise be equitably converted or adjusted in connection with such
transaction or Change of Control, or (e) any combination of the foregoing. The Committee’s
determination need not be uniform and may be different for different Participants whether or not
such Participants are similarly situated; provided , however , that, with respect to Awards that
are subject to Section 409A of the Code, the Committee shall not have the authority to accelerate
or postpone the timing of payment or settlement of an Award in a manner that would cause such Award
to become subject to the interest and penalty provisions under Section 409A of the Code.



     9.9 TERMINATION OF EMPLOYMENT. Whether military, government or other service or other leave
of absence shall constitute a termination of employment shall be determined in each case by the
Committee at its discretion, and any determination by the Committee shall be final and conclusive.
A termination of employment shall not occur (i) in a circumstance in which a Participant transfers
from the Corporation to one of its Parents or Subsidiaries, transfers from a Parent or Affiliate to
the Corporation, or transfers from one Parent or Affiliate to another Parent or Affiliate, or (ii)
in the discretion of the Committee as specified at or prior to such occurrence, in the case of a
split-off, spin-off, sale or other disposition of the Participant’s employer from the Corporation
or any Parent or Affiliate.



     9.10 LOAN PROVISIONS. Subject to applicable laws, rules and regulations, including, without
limitation, Section 402 of the Sarbanes-Oxley Act of 2002, with the consent of the Committee, the
Corporation may make, guarantee or arrange for a loan or loans to a Participant with respect to the
exercise of any Option



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granted under this Plan and/or with respect to the payment of the purchase price, if any, of
any Award granted hereunder and/or with respect to the payment by the Participant of any or all
federal and/or state income taxes due on account of the granting or exercise of any Award
hereunder. The Committee shall have full authority to decide whether to make a loan or loans
hereunder and to determine the amount, terms and provisions of any such loan(s), including the
interest rate to be charged in respect of any such loan(s), whether the loan(s) are to be made with
or without recourse against the borrower, the collateral or other security, if any, securing the
repayment of the loan(s), the terms on which the loan(s) are to be repaid and the conditions, if
any, under which the loan(s) may be forgiven.



ARTICLE 10

CHANGES IN CAPITAL STRUCTURE




     10.1 GENERAL. Upon or in contemplation of (a) any reclassification, recapitalization, stock
split (including a stock split in the form of a stock dividend) or reverse stock split, (b) any
merger, combination, consolidation, or other reorganization, (c) any spin-off, split-up, or similar
extraordinary dividend distribution in respect of the Stock (whether in the form of securities or
property), (d) any exchange of Stock or other securities of the Corporation, or any similar,
unusual or extraordinary corporate transaction in respect of the Stock, or (e) a sale of all or
substantially all the business or assets of the Corporation as an entirety, then the Committee
shall, in such manner, to such extent (if any) and at such time as it deems appropriate and
equitable in the circumstances:




     (i) proportionately adjust any or all of (A) the number and type of shares of Stock (or
other securities) that thereafter may be made the subject of Awards (including the specific
share limits, maximums and numbers of shares set forth elsewhere in this Plan), (B) the
number, amount and type of shares of Stock (or other securities or property) subject to any
or all outstanding Awards, (C) the grant, purchase, or exercise price (which term includes
the base price of any SAR or similar right) of any or all outstanding Awards, (D) the
securities, cash or other property deliverable upon exercise or payment of any outstanding
Awards, or (E) the performance standards applicable to any outstanding Awards, or




     (ii) make provision for a cash payment or for the assumption, substitution or exchange
of any or all outstanding share-based Awards or the cash, securities or property deliverable
to the holder of any or all outstanding share-based Awards, based upon the distribution or
consideration payable to holders of the Stock upon or in respect of such event.



     The Committee may adopt such valuation methodologies for outstanding Awards as it deems
reasonable in the event of a cash or property settlement and, in the case of Options, but without
limitation on other methodologies, may base such settlement solely upon the excess if any of the
per share amount payable upon or in respect of such event over the exercise or base price of the
Award.



     In any of such events, the Committee may take such action prior to such event to the extent
that the Committee deems the action necessary to permit the Participant to realize the benefits
intended to be conveyed with respect to the underlying shares in the same manner as is or will be
available to stockholders generally. In the case of any stock split or reverse stock split, if no
action is taken by the Committee, the proportionate adjustments contemplated by clause (i) above
shall nevertheless be made.



ARTICLE 11

AMENDMENT, MODIFICATION AND TERMINATION




     11.1 AMENDMENT, MODIFICATION AND TERMINATION. The Board or the Committee may, at any time and
from time to time, amend, modify or terminate the Plan; provided, however, that the Board or the
Committee may condition any amendment or modification on the approval of shareholders of the
Corporation if such approval is necessary or deemed advisable with respect to tax, securities or
other applicable laws, policies or regulations.



     11.2 AWARDS PREVIOUSLY GRANTED. At any time and from time to time, but subject to Section
4.3, the Committee may amend, modify or terminate any outstanding Award or Award Agreement



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without approval of the Participant; provided, however, that, subject to the terms of the applicable
Award Agreement, such amendment, modification or termination shall not, without the Participant’s
consent, reduce or diminish the value of such Award determined as if the Award had been exercised,
vested, cashed in or otherwise settled on the date of such amendment or termination; provided
further, however, that the original term of any Option may not be extended. No termination,
amendment, or modification of the Plan shall adversely affect any Award previously granted under
the Plan, without the written consent of the Participant. Notwithstanding any provision herein to
the contrary, the Committee shall have broad authority to amend the Plan or any outstanding Award
under the Plan without approval of the Participant to the extent necessary or desirable (i) to
comply with, or take into account changes in, applicable tax laws, securities laws, accounting
rules and other applicable laws, rules and regulations or (ii) to ensure that an Award is not
subject to interest and penalties under Section 409A of the Code.



ARTICLE 12

GENERAL PROVISIONS




     12.1 NO RIGHTS TO AWARDS. No Participant or any eligible participant shall have any claim to
be granted any Award under the Plan, and neither the Corporation nor the Committee is obligated to
treat Participants or eligible participants uniformly.



     12.2 NO STOCKHOLDER RIGHTS. No Award gives the Participant any of the rights of a shareholder
of the Corporation unless and until shares of Stock are in fact issued to such person in connection
with the exercise, payment or settlement of such Award.



     12.3 WITHHOLDING. The Corporation or any Subsidiary, Parent or Affiliate shall have the
authority and the right to deduct or withhold, or require a Participant to remit to the
Corporation, an amount sufficient to satisfy federal, state, local and other taxes (including the
Participant’s FICA obligation) required by law to be withheld with respect to any taxable event
arising as a result of the Plan. With respect to withholding required upon any taxable event under
the Plan, the Committee may, at the time the Award is granted or thereafter, require or permit that
any such withholding requirement be satisfied, in whole or in part, by (i) withholding from the
Award shares of Stock or (ii) delivering shares of Stock that are already owned, having a Fair
Market Value on the date of withholding equal to the minimum amount (and not any greater amount)
required to be withheld for tax purposes, all in accordance with such procedures as the Committee
establishes. The Corporation or any Subsidiary, Parent or Affiliate, as appropriate, shall also
have the right to deduct from all cash payments made to a Participant (whether or not such payment
is made in connection with an Award) any applicable taxes required to be withheld with respect to
such payments.



     12.4 NO RIGHT TO CONTINUED SERVICE. Nothing in the Plan or any Award Agreement shall
interfere with or limit in any way the right of the Corporation or any Parent or Affiliate to
terminate any Participant’s employment or status as an officer, director or consultant at any time,
nor confer upon any Participant any right to continue as an employee, officer, director or
consultant of the Corporation or any Parent or Affiliate. In its sole discretion, the Board or the
Committee may authorize the creation of trusts or other arrangements to meet the obligations
created under the Plan to deliver shares of Stock with respect to awards hereunder.



     12.5 UNFUNDED STATUS OF AWARDS. The Plan is intended to be an “unfunded” plan for incentive
and deferred compensation. With respect to any payments not yet made to a Participant pursuant to
an Award, nothing contained in the Plan or any Award Agreement shall give the Participant any
rights that are greater than those of a general creditor of the Corporation or any Parent or
Affiliate.



     12.6 INDEMNIFICATION. To the extent allowable under applicable law, each member of the
Committee shall be indemnified and held harmless by the Corporation from any loss, cost, liability
or expense that may be imposed upon or reasonably incurred by such member in connection with or
resulting from any claim, action, suit or proceeding to which such member may be a party or in
which he may be involved by reason of any action or failure to act under the Plan and against and
from any and all amounts paid by such member in satisfaction of judgment in such action, suit or
proceeding against him; provided such member shall give the Corporation an opportunity, at its own
expense, to handle and defend the same before such member undertakes to



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handle and defend it on his
or her own behalf. The foregoing right of indemnification shall not be exclusive of any
other rights of indemnification to which such persons may be entitled under the Corporation’s
Certificate of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the
Corporation may have to indemnify them or hold such persons harmless.



     12.7 RELATIONSHIP TO OTHER BENEFITS. No payment under the Plan shall be taken into account in
determining any benefits under any pension, retirement, savings, profit sharing, group insurance,
welfare or benefit plan of the Corporation or any Parent or Affiliate unless provided otherwise in
such other plan.



     12.8 EXPENSES; APPLICATION OF FUNDS. The expenses of administering the Plan shall be borne by
the Corporation and its Parents or Subsidiaries. The proceeds received by the Corporation from the
sale of shares of Stock pursuant to Awards will be used for general corporate purposes.



     12.9 TITLES AND HEADINGS. The titles and headings of the Sections in the Plan are for
convenience of reference only, and in the event of any conflict, the text of the Plan, rather than
such titles or headings, shall control.



     12.10 GENDER AND NUMBER. Except where otherwise indicated by the context, any masculine term
used herein also shall include the feminine; the plural shall include the singular and the singular
shall include the plural.



     12.11 FRACTIONAL SHARES. No fractional shares of Stock shall be issued and the Committee
shall determine, in its discretion, whether cash shall be given in lieu of fractional shares or
whether such fractional shares shall be eliminated by rounding up or down.



     12.12 GOVERNMENT AND OTHER REGULATIONS. The obligation of the Corporation to make payment of
awards in Stock or otherwise shall be subject to all applicable laws, rules and regulations, and to
such approvals by government agencies as may be required. To the extent that Awards under the Plan
are awarded to individuals who are domiciled or resident outside of the United States or to persons
who are domiciled or resident in the United States but who are subject to the tax laws of a
jurisdiction outside of the United States, the Committee may adjust the terms of the Awards granted
hereunder to such person (i) to comply with the laws of such jurisdiction and (ii) to avoid adverse
tax consequences relating to an Award. The authority granted under the previous sentence shall
include the discretion for the Committee to adopt, on behalf of the Corporation, one or more
sub-plans applicable to separate classes of Participants who are subject to the laws of
jurisdictions outside of the United States.



     12.13 SECURITIES LAW RESTRICTIONS. An Award may not be exercised or settled and no shares of
Stock may be issued in connection with an Award unless the issuance of such shares of Stock has
been registered under the 1933 Act and qualified under applicable state “blue sky” laws and any
applicable foreign securities laws, or the Corporation has determined that an exemption from
registration and from qualification under such state “blue sky” laws is available. The Corporation
shall be under no obligation to register under the 1933 Act, or any state securities act, any of
the shares of Stock issued in connection with the Plan. The shares issued in connection with the
Plan may in certain circumstances be exempt from registration under the 1933 Act, and the
Corporation may restrict the transfer of such shares in such manner as it deems advisable to ensure
the availability of any such exemption. The Committee may require each Participant purchasing or
acquiring shares of Stock pursuant to an Award under the Plan to represent to and agree with the
Corporation in writing that such Participant is acquiring the shares of Stock for investment
purposes and not with a view to the distribution thereof. All certificates for shares of Stock
delivered under the Plan shall be subject to such stock-transfer orders and other restrictions as
the Committee may deem advisable under the rules, regulations and other requirements of the
Securities and Exchange Commission, any exchange upon which the Stock is then listed, and any
applicable securities law, and the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.



     12.14 SATISFACTION OF OBLIGATIONS. Subject to applicable law, the Corporation may apply any
cash, shares of Stock, securities or other consideration received upon exercise or settlement of an
Award to any obligations a Participant owes to the Corporation and its Parents, Subsidiaries or
Affiliates in connection with the



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Plan or otherwise, including, without limitation, any tax obligations or obligations under a
currency facility established in connection with the Plan.



     12.15 SECTION 409A OF THE CODE. If any provision of the Plan or an Award Agreement
contravenes any regulations or Treasury guidance promulgated under Section 409A of the Code or
could cause an Award to be subject to the interest and penalties under Section 409A of the Code,
such provision of the Plan or any Award Agreement shall be modified to maintain, to the maximum
extent practicable, the original intent of the applicable provision without violating the
provisions of Section 409A of the Code. Moreover, any discretionary authority that the Board or the
Committee may have pursuant to the Plan shall not be applicable to an Award that is subject to
Section 409A of the Code to the extent such discretionary authority will contravene Section 409A of
the Code or the Treasury guidance promulgated thereunder.



     12.16 GOVERNING LAW. To the extent not governed by federal law, the Plan and all Award
Agreements shall be construed in accordance with and governed by the laws of the State of Delaware.



     12.17 ADDITIONAL PROVISIONS. Each Award Agreement may contain such other terms and conditions
as the Board or the Committee may determine, provided that such other terms and conditions are not
inconsistent with the provisions of this Plan. In the event of any conflict or inconsistency
between the Plan and an Award Agreement, the Plan shall govern and the Award Agreement shall be
interpreted to minimize or eliminate such conflict or inconsistency.




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