EX-10.33






Exhibit 10.33




LEXMARK INTERNATIONAL, INC.

2005 NONEMPLOYEE DIRECTOR STOCK PLAN

As Amended and Restated, Effective January 1, 2009




Section 1. Purposes




     The purposes of the Plan are to enable the Company to attract, retain and motivate the best
qualified nonemployee directors and to enhance a long-term mutuality of interest between the
directors and stockholders of the Company by granting eligible directors an equity interest in the
Company.



Section 2. Definitions




     Unless the context requires otherwise, the following words as used in the Plan shall have the
meanings ascribed to each below, it being understood that masculine, feminine and neuter pronouns
are used interchangeably, and that each comprehends the others, and that the singular shall include
the plural, and the plural shall include the singular.



          (a) “Act” shall mean the Securities Exchange Act of 1934, as amended.




          (b) “Adjustment Event” shall mean any stock dividend, stock split or share combination of, or
extraordinary cash dividend on, the Common Stock or recapitalization, reorganization, merger,
consolidation, split-up, spin-off, combination, exchange of shares, warrants or rights offering to
purchase Common Stock at a price substantially below Fair Market Value, or other similar event
affecting the Common Stock of the Company.




          (c) “Annual Fees” shall mean the amounts payable by the Company to an Eligible Director for
services to be rendered as a member of the Board during any calendar year, including retainers,
meeting and attendance fees (including any per diem attendance fee for international directors),
committee chair fees and fees otherwise payable for acting on or as a member of the Board or any
committee thereof, but not including reimbursement of expenses.




          (d) “Award” shall mean any Option, Stock Appreciation Right, Restricted Stock or Deferred
Stock Unit awarded under the Plan.




          (e) “Award Agreement” means the agreement, certificate or other instrument evidencing the
grant of any Award under the Plan.




          (f) “Board” shall mean the Board of Directors of the Company.




          (g) “Change in Control” shall mean the occurrence of any of the following events:





     (i) a majority of the members of the Board at any time cease for any reason
other than due to death or disability to be persons who were members of the Board
twenty-four months prior to such time (the “Incumbent Directors”); provided that any
director whose election, or nomination for election by the



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Company’s stockholders, was approved by a vote of at least a majority of the
members of the Board then still in office who are Incumbent Directors shall be
treated as an Incumbent Director; or




     (ii) any “person,” including a “group” (as such terms are used in Sections
13(d) and 14(d)(2) of the Act, but excluding the Company, its Subsidiaries, any
employee benefit plan of the Company or any Subsidiary, employees of the Company or
any Subsidiary or any group of which any of the foregoing is a member) is or becomes
the “beneficial owner” (as defined in Rule 13d-3 under the Act), directly or
indirectly, including without limitation, by means of a tender or exchange offer, of
securities of the Company representing 30% or more of the combined voting power of
the Company’s then outstanding securities; or




     (iii) the stockholders of the Company shall approve a definitive agreement (x)
that results in the consummation of a merger or other business combination of the
Company with or into another corporation immediately following which merger or
combination (A) the stock of the surviving entity or its ultimate parent corporation
is not readily tradable on an established securities market, (B) a majority of the
directors of the surviving entity are persons who (1) were not directors of the
Company immediately prior to the merger and (2) are not nominees or representatives
of the Company or (C) any “person,” including a “group” (as such terms are used in
Sections 13(d) and 14(d)(2) of the Act, but excluding the Company, its Subsidiaries,
any employee benefit plan of the Company or any Subsidiary, employees of the Company
or any Subsidiary or any group of which any of the foregoing is a member) is or
becomes the “beneficial owner” (as defined in Rule 13d-3 under the Act), directly or
indirectly, of 30% or more of the securities of the surviving entity or (y) for the
direct or indirect sale or other disposition of all or substantially all of the
assets of the Company.



     Notwithstanding the foregoing, a “Change in Control” shall not be deemed to occur in the event
the Company files for bankruptcy, liquidation or reorganization under the United States Bankruptcy
Code.



     Notwithstanding the foregoing, to the extent that any Section 409A Incentive Award would
become payable under this Plan by reason of a Change in Control, such amount shall become payable
only if the event constituting a Change in Control would also constitute a “change in the
ownership” of the Company, a “change in the effective control” of the Company, or a “change in the
ownership of a substantial portion of the assets” of the Company within the meaning of Section
1.409A-3(i)(5) of the Treasury Regulations.



          (h) “Change in Control Price” shall mean the highest price per share of Common Stock paid in
conjunction with any transaction resulting in a Change in Control (as determined in good faith by
the Board if any part of the offered price is payable other than in cash) or, in the case of a
Change in Control occurring solely by reason of a change in the composition of the Board, the
average selling price of the Common Stock for the 30-day period


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immediately preceding the date on which such Change in Control occurs, calculated in
accordance with Section 1.409A-1(b)(5)(iv).




          (i) “Code” shall mean the Internal Revenue Code of 1986, as amended.




          (j) “Common Stock” means the Class A Common Stock of the Company, par value $0.01 per share,
or such other shares or kind of securities as determined by the Board.




          (k) “Company” shall mean Lexmark International, Inc., a Delaware corporation, and any
successor thereto.




          (l) “Deferred Stock Unit” means an Eligible Director’s right to receive pursuant to the Plan
one share of Common Stock, or, if provided by the Board, cash equal to the Fair Market Value of a
share of Common Stock, at the end of a specified period of time.




          (m) “Eligible Director” shall mean a director of the Company who is not, at the relevant time,
an officer or employee of the Company or any of its Subsidiaries or affiliated with any stockholder
of the Company holding 5% or more of the Company’s equity securities.




          (n) “Equity Fee Election” shall mean an Eligible Director’s election to receive all or a
portion of his Annual Fees in the form of Deferred Stock Units in lieu of cash that shall be
irrevocable for the calendar year to which it applies.




          (o) “Fair Market Value” means, as of any date of determination, the closing price of a share
of Common Stock on a national securities exchange on that day, as reported for such day in the Wall
Street Journal, or the mean of the last bid and asked prices for a share of Common Stock on such
immediately preceding date, as reported on a nationally recognized system of price quotation. In
the event that there are no Common Stock transactions reported on such exchange or system on such
day, Fair Market Value shall mean the closing price or the mean of the last bid and asked prices,
whichever is applicable, on the immediately preceding day on which Common Stock transactions were
so reported.




          (p) “Grant Date” shall mean, with respect to the grant of Deferred Stock Units under the Plan,
each date on which Annual Fees become payable to members of the Board.




          (q) “Nonemployee Director Stock Plan” means the Company’s Nonemployee Director Stock Plan
originally approved by the Company’s stockholders on October 26, 1995, as amended and restated from
time to time, and scheduled to terminate according to its terms on November 20, 2005.




          (r) “Option” means the right to purchase a stated number of shares of Common Stock at a stated
price (as specified in Section 7.2 hereof) for a specified period of time.




          (s) “Option Award” shall mean an Initial Award or an Annual Award (each as defined in Section
6 of the Plan) to purchase Shares at an exercise price per Share equal to the Fair Market Value of
a Share on the date of grant of such Award.




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          (t) “Plan” shall mean the Lexmark International, Inc. 2005 Nonemployee Director Stock Plan, as
set forth herein and as the same may be further amended from time to time.




          (u) “Qualifying Common Stock” means shares of Common Stock which (i) are not subject to any
loan or other obligation of the Eligible Director and (ii) either (A) have been owned by the
Eligible Director for at least six months (or such greater or lesser period as the Board shall
determine) or (B) were purchased by the Eligible Director on a national securities exchange or
nationally recognized over-the-counter market.




          (v) “Restriction Period” means the period during which shares of Restricted Stock are subject
to forfeiture or restrictions on transfer (if applicable) as described in Section 9 of the Plan and
any applicable Award Agreement.




          (w) “Restricted Stock” means Common Stock or units with respect to Common Stock awarded to an
Eligible Director pursuant to the Plan which is subject to forfeiture and restrictions on
transferability in accordance with Section 9 of the Plan.




          (x) “Section 409A Incentive Award” means any Award, which provides for the “deferral of
compensation” within the meaning of Section 1.409A-1(b) of the Treasury Regulations, which is not
otherwise exempt from the requirements of Section 409A of the Code.




          (y) “Share” shall mean a share of Common Stock.




          (z) “Stock Appreciation Right” means the right to receive a payment from the Company, in cash,
Common Stock or a combination thereof, equal to the excess of the Fair Market Value of a share of
Common Stock at the date of exercise over a specified price fixed by the Board (as specified in
Section 8 hereof).




          (aa) “Subsidiary” shall mean any entity that is directly or indirectly controlled by the
Company, or any other entity in which the Company has a significant equity interest, as determined
by the Board.




          (bb) “Year of Board Service” shall mean any 12 consecutive month period during which an
Eligible Director serves as a member of the Board. In the event an Eligible Director is reinstated
as a member of the Board after he ceases to serve as a member of the Board, a new Year of Board
Service shall commence on the date he recommences service as a member of the Board.




          (cc) For purposes of any Section 409A Incentive Award, the terms “ceases to serve,”
“terminate,” or “termination of service,” and variations thereof, as used in the Plan or any Award
Agreement for a Section 409A Incentive Award, are intended to mean an Eligible Director’s
“separation from service” from the Company for purposes of Section 409A of the Code, using the
default provisions set forth in Section 1.409A-1(h) of the Treasury Regulations.




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Section 3. Effective Date and Term




     The Plan shall be effective upon the approval by stockholders at the 2005 Annual Meeting of
Stockholders (the “Effective Date”). The Plan, as amended and restated, shall be effective as of
January 1, 2009. The Plan term will terminate on the tenth anniversary of the Effective Date,
unless sooner terminated by the Board pursuant to Section 13.



Section 4. Administration




     4.1 Powers of the Board. The Plan shall be administered by the Board. The Board may delegate
its powers and functions hereunder to a duly appointed committee of the Board. The Board shall have
full authority to interpret the Plan; to establish, amend and rescind rules for carrying out the
Plan; to administer the Plan; to construe the respective Award Agreements and the Plan; and to make
all other determinations and to take such steps in connection with the Plan as the Board, in its
discretion, deems necessary or desirable for administering the Plan. Each determination,
interpretation or other action made or taken pursuant to the provisions of this Plan by the Board
shall be final and binding for all purposes and upon all persons, including, without limitation,
the Company, the directors, officers and employees of the Company, the Eligible Director and his
respective heirs, executors, administrators, personal representatives and other successors in
interest.



     The Board shall have the discretionary authority, subject to the terms of the Plan, to
determine the time or times at which Awards may be exercised, paid or transferred, as the case may
be; the form and manner of payment of any amount due from an Eligible Director in connection with
any Award; whether any restriction (including any provision as to vesting, exercisability, payment
or transferability) shall be modified or waived, in whole or in part, after the date of grant of
the Award in the event an Eligible Director dies, becomes disabled or ceases to serve as a member
of the Board for any reason, provided, however, the Board shall not modify or waive any restriction
of any Section 409A Incentive Award that would result in an impermissible acceleration of payment
in violation of Section 1.409A-3(j), or otherwise violate Section 409A of the Code or any provision
of the Treasury Regulations promulgated thereunder; whether amounts payable by the Company in
respect of any Award shall be paid in Common Stock, cash or any combination thereof; whether and to
what extent any Award may be transferred by the Eligible Director; and the terms, provisions and
conditions to be included in any Award Agreement.



     The Board shall not have the power to reduce, whether through amendment or otherwise, the
exercise price of any outstanding Option or Stock Appreciation Right nor to grant a new Option or
Stock Appreciation Right in substitution for or upon the cancellation of any previously granted
Option or Stock Appreciation Right, which has the effect of reducing the exercise price, unless
approved by the Company’s stockholders.



     4.2 Delegation. The Board may appoint the Secretary of the Company, other officers or
employees of the Company or competent professional advisors to assist the Board in the
administration of the Plan, and may grant authority to such persons to execute agreements or other
documents on its behalf.



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     4.3 Agents. The Board may employ such legal counsel, consultants and agents as it may deem
desirable for the administration of the Plan, and may rely upon any opinion received from any such
counsel or consultant and any computation received from any such consultant or agent. Expenses
incurred by the Board in the engagement of any such counsel, consultant or agent shall be paid by
the Company.



     4.4 Indemnification. Each person who is or shall have been a member of the Board or any
committee thereof or any person designated pursuant to Section 4.2 or 4.3 above shall be
indemnified and held harmless by the Company against and from any loss, cost, liability or expense
that may be imposed upon or reasonably incurred by him in connection with or resulting from any
claim, action, suit or proceeding to which he may be made a party or in which he may be involved by
reason of any action taken or failure to act under the Plan and against and from any and all
amounts paid by him in settlement thereof, with the Company’s approval, or paid by him in
satisfaction of any judgment in any such action, suit or proceeding against him, provided he shall
give the Company an opportunity, at its own expense, to handle and defend the same before he
undertakes to handle and defend it on his own behalf. The foregoing right of indemnification shall
not be exclusive and shall be independent of any other rights of indemnification to which such
persons may be entitled under the Company’s Certificate of Incorporation or By-laws, by contract,
as a matter of law or otherwise.



Section 5. Shares: Adjustment upon Certain Events




     5.1 Shares Available. Subject to the provisions of Section 5.5, the number of shares of Common
Stock subject to Awards under the Plan may not exceed 500,000, plus any shares that become
available for grant pursuant to Section 5.2 and shares that have not been utilized under the
Company’s Nonemployee Director Stock Plan at the time of its termination. The shares to be
delivered under the Plan may consist, in whole or in part, of Common Stock held in treasury or
authorized but unissued Common Stock, not reserved for any other purpose, or from Common Stock
reacquired by the Company.



     5.2 Canceled, Terminated, or Forfeited Awards. Any shares of Common Stock subject to any
portion of an Award which, in any such case and for any reason, expires, or is canceled, terminated
or otherwise settled, without the issuance of such shares of Common Stock, shall again be available
for award under the Plan. Shares of Common Stock that are delivered to the Company, either actually
or by attestation, in payment of the exercise price for any Option granted under the Plan will also
be available for future grants under the Plan. Shares reacquired by the Company on the open market
using the cash option proceeds (the exercise price paid in cash and the value of the tax benefit
that could be realized by the Company determined under generally accepted accounting principles)
received by the Company from the exercise of Options granted under the Plan will also be available
for future grants under the Plan; provided, however, that the number of Shares that may again be
available through open market purchases with option proceeds shall not be greater than the amount
of such option proceeds divided by the Fair Market Value on the date of exercise of the Option
giving rise to such proceeds.



     5.3 Substitute Awards. Awards assumed or granted in substitution or exchange for awards
previously granted by a company acquired by the Company or with which the Company



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combines shall not reduce the Shares that may be authorized for grant to an Eligible Director
or delivered under the Plan.



     5.4 No Limit on Corporate Action. The existence of this Plan and Shares granted hereunder
shall not affect in any way the right or power of the Board or the stockholders of the Company to
make or authorize any adjustment, recapitalization, reorganization or other change in the Company’s
capital structure or its business, any merger or consolidation of the Company, any issuance of
bonds, debentures, preferred or prior preference stocks ahead of or affecting Common Stock, the
dissolution or liquidation of the Company or any sale or transfer of all or part of its assets or
business, or any other corporate act or proceeding.



     5.5 Adjustment in Capitalization. The aggregate number of shares of Common Stock available for
Awards under Section 5.1, or subject to outstanding Awards, and the respective prices and/or
vesting criteria applicable to outstanding Awards shall be proportionately adjusted to reflect, as
deemed equitable and appropriate by the Board, an Adjustment Event. To the extent deemed equitable
and appropriate by the Board, subject to any required action by stockholders, in any merger,
consolidation, reorganization, liquidation, dissolution or other similar transaction, any Award
granted under the Plan shall pertain to the securities and other property to which a holder of the
number of shares of Common Stock covered by the Award would have been entitled to receive in
connection with such event.



     Any shares of stock (whether Common Stock, shares of stock into which shares of Common Stock
are converted or for which shares of Common Stock are exchanged or shares of stock are distributed
with respect to Common Stock) or cash or other property received with respect to any Award granted
under the Plan as a result of any Adjustment Event, any distribution of property or any merger,
consolidation, reorganization, liquidation, dissolution or other similar transaction shall, except
as provided in Section 9.4, Section 10.5 or as otherwise provided by the Board at or after the date
any such Award is made, be subject to the same terms and conditions, including vesting and
restrictions on exercisability or transfer, as are applicable to the Award with respect to which
such shares, cash or other property is received, and any Award Agreement and stock certificate(s)
representing or evidencing any shares of stock or other property so received shall so provide and
be legended as appropriate.



Section 6. Awards




     6.1 Initial Awards. During the term of the Plan, each Eligible Director shall receive an
Option Award to purchase Shares or such other form of Award as determined by the Board at the time
of such grant (the “Initial Award”) on the date of the meeting of the Board or the annual meeting
of the stockholders of the Company, whichever is applicable, at which such Eligible Director is
first elected to serve as a member of the Board.



     6.2 Annual Awards. Each Eligible Director may, at the discretion of the Board, also be granted
one or more Option Awards or other Awards after the Initial Award (each an “Annual Award”), at such
time or times and in such amount as shall be determined by the Board.



     6.3 General. All Initial Awards and Annual Awards shall be reasonable in size and amount and
all Annual Awards shall be consistent in size from one Eligible Director to another,



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except with respect to differentiation in award size based on Board committee membership(s)
and service as the chair of a Board committee.



Section 7. Options




     7.1 Grant of Options. Options may be granted to Eligible Directors at such time or times as
shall be determined by the Board. Options granted under the Plan shall be non-qualified stock
options. The date of grant of an Option under the Plan will be the date on which the Option is
awarded by the Board or, if so determined by the Board, the date on which occurs any event the
occurrence of which is an express condition precedent to the grant of the Option. The Board shall
determine the number of Options, if any, to be granted to an Eligible Director. Each Option shall
be evidenced by an Award Agreement that shall specify the exercise price, the duration of the
Option, the number of shares of Common Stock to which the Option pertains and such other terms and
conditions not inconsistent with the Plan as the Board shall determine.



     7.2 Exercise Price. Options granted pursuant to the Plan shall have an exercise price which is
not less than the Fair Market Value on the date the Option is granted.



     7.3 Exercise of Options. Options awarded to an Eligible Director under the Plan shall be
exercisable at such time or times and subject to such restrictions or other conditions, as the
Board shall determine. Once exercisable, an Option may be exercised from time to time, in whole or
in part, up to the total number of shares of Common Stock with respect to which it is then
exercisable. Notwithstanding the foregoing, no Option shall be exercisable for more than 10 years
after the date on which it is granted.



     7.4 Payment. The Board shall establish procedures governing the exercise of Options, which
shall require that notice of exercise be given and that the Option price be paid in full at the
time of exercise (i) in cash or cash equivalents, (ii) in the discretion of the Board, in shares of
Qualifying Common Stock having a Fair Market Value on the date of exercise equal to such Option
price or in a combination of cash and Qualifying Common Stock or (iii) in accordance with such
other procedures or in such other form as the Board shall from time to time determine. As soon as
practicable after receipt of an exercise notice and payment of the exercise price in accordance
with this Section 7.4, the Company shall direct its stock transfer agent to make (or to cause to be
made) an appropriate book entry reflecting the Eligible Director’s ownership of the shares of
Common Stock so acquired.



Section 8. Stock Appreciation Rights




     8.1 Grant of Stock Appreciation Rights. Stock Appreciation Rights may be granted to Eligible
Directors at such time or times and with respect to such number of shares of Common Stock as shall
be determined by the Board and shall be subject to such terms and conditions as the Board may
impose. Each grant of an Award of Stock Appreciation Rights shall be evidenced by an Award
Agreement.



     8.2 Exercise Price. Stock Appreciation Rights granted pursuant to the Plan shall have an
exercise price which is not less than the Fair Market Value on the date the Stock Appreciation
Right is granted, except that if a Stock Appreciation Right is granted retroactively in tandem with
or in substitution for an Option, the designated Fair Market Value for purposes of establishing



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the exercise price for such Stock Appreciation Rights may be the Fair Market Value on the date
the Options were granted.



     8.3 Exercise of Stock Appreciation Rights. Stock Appreciation Rights may be exercised at such
time or times and subject to such conditions, including the occurrence of any event or events,
including a Change in Control, as the Board shall determine, either at or after the date of grant.
Stock Appreciation Rights which are granted in tandem with an Option may only be exercised upon the
surrender of the right to exercise such Option for an equivalent number of shares and may be
exercised only with respect to the shares of Common Stock for which the related Option is then
exercisable. Notwithstanding any other provision of the Plan, the Board may impose such conditions
on the exercise of a Stock Appreciation Right (including, without limitation, the right of the
Board to limit the time of exercise to specified periods) as may be required to satisfy the
applicable provisions of Rule 16b-3 as promulgated under the Act or any successor rule.



     8.4 Payment. Upon exercise of a Stock Appreciation Right, the Eligible Director shall be
entitled to receive payment in cash, Common Stock or in a combination of cash and Common Stock, as
determined by the Board, of an amount determined by multiplying:




     (i) any increase in the Fair Market Value of a share of Common Stock at the
date of exercise over the exercise price fixed by the Board at the date of grant of
such Stock Appreciation Right, provided such amount shall not be less than the Fair
Market Value of a share of Common Stock at the date of grant, by




     (ii) the number of shares of Common Stock with respect to which the Stock
Appreciation Right is exercised.



Section 9. Restricted Stock




     9.1 Grant of Restricted Stock. The Board may grant Awards of Restricted Stock to Eligible
Directors at such times and in such amounts and subject to such other terms and conditions not
inconsistent with the Plan, as it shall determine. Unless the Board provides otherwise at or after
the date of grant, stock certificates evidencing any shares of Restricted Stock so granted shall be
held in the custody of the Secretary of the Company until the Restriction Period lapses, and, as a
condition to the grant of any Award of shares of Restricted Stock, the Eligible Director shall have
delivered to the Company a stock power, endorsed in blank, relating to the shares of Common Stock
covered by such Award. Each grant of Restricted Stock shall be evidenced by an Award Agreement.



     9.2 Payment. Upon the expiration or termination of the Restriction Period, which shall not be
less than three years (pro rata or other graded vesting during the Restriction Period may be
permitted), and the satisfaction (as determined by the Board) of any other conditions determined by
the Board, the restrictions applicable to the Restricted Stock shall lapse and the Company shall
cancel and direct its stock transfer agent to make (or to cause to be made) an appropriate book
entry reflecting the Eligible Director’s ownership of such number of shares of Common Stock with
respect to which the restrictions have lapsed, free of all such restrictions, other than any
imposed by applicable law. Upon request, the Company shall deliver to the



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Eligible Director a stock certificate registered in such Eligible Director’s name and
representing the number of shares of Common Stock with respect to which the restrictions have
lapsed, free of all such restrictions except any that may be imposed by law. To the extent provided
by the Board, in its discretion, in lieu of delivering shares of Common Stock, the Company may make
a cash payment in full or partial satisfaction of any Award of Restricted Stock equal to the Fair
Market Value, on the date the applicable restrictions lapse, of the number of shares or units of
Restricted Stock with respect to which such restrictions have lapsed. No payment will be required
to be made by the Eligible Director upon the delivery of such shares of Common Stock and/or cash.



     9.3 Restrictions on Transferability during Restriction Period. Except as provided in Section
15.1, shares of Restricted Stock or units with respect to Restricted Stock may not be sold,
transferred, pledged, assigned or otherwise alienated or hypothecated until such time as the
Restriction Period applicable thereto shall have lapsed upon the satisfaction of such conditions,
including without limitation, the occurrence of such event or events, as shall be determined by the
Board either at or after the time of grant.



     9.4 Rights as a Stockholder. Unless otherwise determined by the Board at or after the date of
grant, Eligible Directors granted shares of Restricted Stock shall be entitled to vote on any
matter submitted to the Company’s stockholders. In addition, unless otherwise determined by the
Board, Eligible Directors granted Restricted Stock shall be entitled to receive, either currently
or at a future date, as specified by the Board, all dividends or dividend equivalents and other
distributions or equivalent value of other distributions paid with respect to those shares,
provided that if any such dividends, dividend equivalents or distributions are paid in shares of
Common Stock or other property (other than cash), such shares and other property shall be subject
to the same forfeiture restrictions and restrictions on transferability as apply to the Restricted
Stock with respect to which they were paid.



     9.5 Legend. To the extent any stock certificate is issued to an Eligible Director in respect
of shares of Restricted Stock awarded under the Plan prior to the expiration of the applicable
Restriction Period, such certificate shall be registered in the name of the Eligible Director and
shall bear the following (or similar) legend:




     “The shares of stock represented by this certificate are subject to the terms
and conditions contained in the Lexmark International, Inc. 2005 Nonemployee
Director Stock Plan and the Award Agreement, dated as of _____________
between the Company and the Eligible Director, and may not be sold, pledged,
transferred, assigned, hypothecated or otherwise encumbered in any manner (except as
provided in Section 15.1 of the Plan or in such Award Agreement) until
_____________.”



     Upon the lapse of the Restriction Period with respect to any such shares of Restricted Stock,
the Company shall, upon the Eligible Director’s request, issue or have issued new share
certificates without the legend described herein in exchange for those previously issued.



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     9.6 Deferred Settlement of Restricted Stock Units. An Eligible Director who has received an
Award of Restricted Stock in the form of units with respect to shares of Common Stock may elect to
defer the settlement to a specified date after the settlement date set forth in Section 9.2, or as
otherwise provided in the Award Agreement. The initial election to defer settlement of the
Restricted Stock units must be made within 30 days after the date of grant, provided that the
vesting of such Award is contingent on the Eligible Director providing services as a member of the
Board for at least 12 months following the date of such initial election. Absent an initial
election to defer settlement of the Restricted Stock units, the Eligible Director may also make a
subsequent election to defer the settlement of the Restricted Stock units to a specified date after
the settlement date set forth in Section 9.2, or as otherwise provided in the Award Agreement,
provided the Eligible Director’s election to defer the settlement date must be made at least 12
months in advance of the settlement date set forth in Section 9.2, or as otherwise provided in the
Award Agreement, and must defer settlement for a period of at least five (5) after such date. An
Eligible Director’s subsequent election to defer settlement of the Restricted Stock units to a
specified date after the settlement date set forth in Section 9.2, or as otherwise provided in the
Award Agreement shall not take effect until at least 12 months after the date on which the
subsequent election is made by the Eligible Director.



Section 10. Deferred Stock Units




     10.1 Equity Fee Election. An Eligible Director shall have the right to make an Equity Fee
Election no later than December 31 of each calendar year with respect to Annual Fees paid in cash
to be earned for services rendered in one or more succeeding calendar years. Notwithstanding the
foregoing, (i) a person may make, prior to the first date as of which such person becomes an
Eligible Director and is eligible to participate in the Plan, an Equity Fee Election to be
effective under the Plan with respect to Annual Fees to be earned for services rendered any time
after such election or (ii) an Eligible Director may make an Equity Fee Election at any time during
the 30 day period following the first date as of which such Eligible Director is eligible to
participate in the Plan with respect to Annual Fees to be earned for services rendered after such
30 day period, provided that the Eligible Director is not currently participating in or has
participated in, within the 24-month period prior to becoming eligible to participate, this Plan or
any “Plan” as defined in Section 1.409A-1(c) sponsored by the Company that is required to be
aggregated with this Plan under Section 1.409A-1(c)(2) of the Treasury Regulations. All Equity Fee
Elections must set forth a percentage, up to 100%, of the Annual Fees payable to the Eligible
Director, that will be paid in the form of Deferred Stock Units in lieu of cash. In the event the
Annual Fees of an Eligible Director are increased subsequent to the making of an Equity Fee
Election, such election shall apply to the percentage of such Annual Fees elected by the Eligible
Director, as so increased.



     Effective on each Grant Date of Annual Fees, each Eligible Director who has made an Equity Fee
Election shall receive an award of Deferred Stock Units. No shares shall be issued at the time an
award of Deferred Stock Units is made and the Company shall not be required to set aside a fund for
the payment of such Award. Upon the effective date of the initial Deferred Stock Unit award granted
to an Eligible Director, the Company will establish a separate account for such Eligible Director
and will record in such account the number of Deferred Stock Units awarded to such Eligible
Director from time to time under the plan. The number of Deferred Stock Units awarded to an
Eligible Director on the Grant Date shall be equal to the number of



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Shares (rounded up in the case of fractional shares) obtained by dividing (i) the amount of such
eligible fees deferred pursuant to the Equity Fee Election of such Eligible Director then in effect
with respect to the applicable period since the most recent Grant Date by, (ii) the Fair Market
Value of one Share on such Grant Date. To the extent that any portion of an Eligible Director’s
Annual Fees are determined on an annual basis, a pro rata share of the annual amount thereof shall
be taken into account on each date that the Company shall pay such Annual Fees (i.e. a Grant Date)
for purposes of determining Deferred Stock Units awarded to such eligible Director on such Grant
Date.



     10.2 Grant of Deferred Stock Units. The Board may grant Awards of Deferred Stock Units to
Eligible Directors in lieu of Annual Fees at such times and in such amounts and subject to such
other terms and conditions not inconsistent with the Plan, as it shall determine. Each grant of
Deferred Stock Units shall be evidenced by an Award Agreement.



     10.3 Dividends with respect to Deferred Stock Units. The Board will determine whether and to
what extent to credit to the account of, or to pay currently to, each recipient of a Deferred Stock
Unit award, an amount equal to any dividends paid by the Company during the period of deferral with
respect to the corresponding number of shares of Common Stock (“Dividend Equivalents”). To the
extent provided by the Board at the date of grant, any Dividend Equivalents with respect to cash
dividends on the Common Stock credited to an Eligible Director’s account shall be deemed to have
been invested in shares of Common Stock on the record date established for the related dividend
and, accordingly, a number of Deferred Stock Units shall be credited to such Eligible Director’s
account equal to the greatest whole number which may be obtained by dividing (x) the value of such
Dividend Equivalent on the record date, by (y) the Fair Market Value of a share of Common Stock on
such date.



     10.4 Vesting of Deferred Stock Unit Awards. Deferred Stock Units granted pursuant to Equity
Fee Elections, together with any Dividend Equivalents credited with respect thereto, shall be fully
vested at all times. Other grants of Deferred Stock Units may be subject to forfeiture and vesting
conditions as determined by the Board and specified in the Award Agreement.



     10.5 Rights as a Stockholder. An Eligible Director or his beneficiary shall not have any right
in respect of Deferred Stock Units awarded pursuant to the Plan to vote on any matter submitted to
the Company’s stockholders until such time as the shares of Common Stock attributable to such
Deferred Stock Units have been issued to such Eligible Director or his beneficiary, as applicable.



     10.6 Settlement of Deferred Stock Units. On June 30th in the fifth calendar year following the
year in which the Award of Deferred Stock Units is made, or at such other time or times as shall be
determined by the Board and specified in the Award Agreement, an Eligible Director will be entitled
to receive one Share for each Deferred Stock Unit (and related Dividend Equivalents) subject to
such Award.



     10.7 Deferred Settlement of Deferred Stock Units.



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          (a) An Eligible Director may elect to defer settlement of the Deferred Stock Units beyond the
date specified in Section 10.6 or in the Award Agreement, as applicable, provided the following
requirements are satisfied:





     (i) An Eligible Director’s election to defer settlement of the Deferred Stock
Units may not take effect until at least 12 months after the date on which the
election is made by the Eligible Director;




     (ii) An Eligible Director’s election to defer settlement of the Deferred Stock
Units must delay settlement for a period of not less than five (5) years from the
original settlement date set forth in Section 10.6, or as otherwise provided in the
Award Agreement; and




     (iii) An Eligible Director’s election to defer settlement of the Deferred Stock
Units must be made at least 12 months prior to the settlement date set forth in
Section 10.6, or as otherwise provided in the Award Agreement.



          (b) The Company may delay settlement of the Deferred Stock Units if it reasonably anticipates
that the making of the payment will violate Federal securities laws or other applicable laws
provided payment is made at the earliest date on which the Company reasonably anticipates that the
making of the payment will not cause such violation.




          (c) The Company also reserves the right to delay payment upon such other events and conditions
as the Secretary of the Treasury may prescribe in generally applicable guidance published in the
Internal Revenue Bulletin.




     10.8 2008 Transition Rules. Notwithstanding the provisions of Section 9 and this Section 10,
an Eligible Director may elect a new settlement date with respect to his Restricted Stock units
and/or Deferred Stock Units in accordance with the transition relief set forth in IRS Notice
2006-79, as extended by IRS Notice 2007-86. To elect a new settlement date, the Eligible Director
must complete a new Equity Fee Election to specify the new settlement date on or before December
31, 2008. The new settlement date may not defer a payment that would otherwise be made in 2008 and
may not cause a Restricted Stock unit or Deferred Stock Unit to be paid in 2008 that would not
otherwise be paid in 2008. In addition, the new election may not accelerate the settlement to a
date prior to the original settlement date specified in Sections 9.2 or 10.6, or as otherwise
provided in the Award Agreement.



Section 11. Termination of Director Status




     In the event an Eligible Director ceases to serve as a member of the Board for any reason,
with respect to prior Awards consisting of Options and Stock Appreciation Rights:




     (i) if such Eligible Director has completed three (3) Years of Board Service or
less as of the date of such termination, any Option or Stock Appreciation Right
granted to such Eligible Director (x) which is then outstanding, vested and
exercisable on the date of termination may be exercised by the Eligible Director or,
if applicable, his beneficiary for a period of 90 days



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following the date of the Eligible Director’s termination of service, but in no
event later than the expiration date of the term of the Option or Stock Appreciation
Right, and (y) which is not vested and exercisable on the date of termination, shall
be canceled, in full, on the date of such termination; or




     (ii) if such Eligible Director has completed more than three (3) Years of Board
Service as of the date of such termination, any Option or Stock Appreciation Right
granted to such Eligible Director (x) which is then outstanding, vested and
exercisable on the date of termination may be exercised by the Eligible Director or,
if applicable, his beneficiary until the third anniversary of the date of the
Eligible Director’s termination of service, but in no event later than the
expiration date of the term of the Option or Stock Appreciation Right, and (y) which
is then outstanding but not vested and exercisable on the date of termination, shall
thereafter vest in accordance with the vesting schedule set forth in the Award
Agreement for a period of three years following the date of the Eligible Director’s
termination of service and become exercisable by the Eligible Director or, if
applicable, his beneficiary and, once exercisable, will remain exercisable for a
period of three years following the date of the Eligible Director’s termination of
service, but in no event later than the expiration date of the term of the Option or
Stock Appreciation Right.



     The vesting and settlement of all other Awards under this Plan shall be set forth in the
applicable Award Agreement.



Section 12. Change in Control




     12.1 Accelerated Vesting and Payment. Subject to the provisions of Section 12.2 below, in the
event of a Change in Control, (i) each Option and Stock Appreciation Right shall promptly be
canceled in exchange for a payment in cash of an amount equal to the excess of the Change in
Control Price over the exercise price for such Option or the base price for such Stock Appreciation
Right, whichever is applicable, (ii) the Restriction Period applicable to all Restricted Stock
shall expire and all shares shall become nonforfeitable and immediately transferable, and (iii) the
shares of Common Stock with respect to Deferred Stock Units and Restricted Stock units shall become
immediately payable.



     12.2 Alternative Awards. Notwithstanding Section 12.1, no cancellation, acceleration of
exercisability, vesting, cash settlement or other payment shall occur with respect to any Award,
other than a Section 409A Incentive Award, if the Board reasonably determines in good faith prior
to the occurrence of a Change in Control that such Award or class of Awards shall be honored or
assumed, or new rights substituted therefore (such honored, assumed or substituted award
hereinafter called an “Alternative Award”) by the acquiring entity (or the parent or a subsidiary
of such entity) immediately following the Change in Control, provided that any such Alternative
Award must:



          (a) be based on stock which is traded on an established securities market, or which will be so
traded within 60 days following the Change in Control;




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          (b) provide such Eligible Director with rights and entitlements substantially equivalent to or
better than the rights and entitlements applicable under such Award, including, but not limited to,
an identical or better exercise or vesting schedule and identical or better timing and methods of
payment;




          (c) have substantially equivalent economic value to such Award (determined by the Board as
constituted immediately prior to the Change in Control, in it’s sole discretion, promptly after the
Change in Control); and




          (d) satisfy the requirements of Section 1.409A-1(b)(v)(D) of the Treasury Regulations.




Section 13. Amendment and Modification of Plan




     The Board may at any time terminate or suspend the Plan, and from time to time may amend or
modify the Plan, provided, however, that any amendment which would (i) increase the number of
shares available for issuance, (ii) lower the minimum exercise price for Options or Stock
Appreciation Rights or (iii) materially modify the requirements for eligibility to participate in
the Plan, shall be subject to the approval of the Company’s stockholders. No action of the Board
may, without the consent of an Eligible Director, alter or impair such Eligible Director’s rights
under any previously granted Award. Notwithstanding any other provision of the Plan or any Award
Agreement to the contrary, the Board may, in its sole and absolute discretion and without the
consent of an Eligible Director or approval of the Company’s stockholders, amend the Plan or any
outstanding Award Agreement, to take effect retroactively or otherwise, as it deems necessary or
advisable for the purpose of conforming the Plan or such Award Agreement to any present or future
law, regulation or rule applicable to the Plan, including, but not limited to, Section 409 of the
Code and all applicable guidance promulgated thereunder.



Section 14. Non-Exclusivity




     Neither the adoption of this Plan by the Board nor the submission of this Plan to the
stockholders of the Company for approval shall be construed as creating any limitations on the
power of the Board to adopt such other compensatory arrangements as it may deem desirable,
including, without limitation, payments of cash amounts related to the tax liabilities arising
directly or indirectly from the issuance of Shares with respect to an Eligible Director hereunder.



Section 15. General Provisions




     15.1 Nontransferability of Awards. Unless the Board or the Company’s Vice President, Human
Resources and Vice President and General Counsel shall permit an Award to be transferred by an
Eligible Director to an Eligible Director’s family member for estate planning purposes or to a
trust, partnership, corporation or other entity established by the Eligible Director for estate
planning purposes, on such terms and conditions as the Board or such officers may specify, no Award
granted under the Plan may be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and distribution. All rights with
respect to any Award granted to an Eligible Director under the Plan shall be exercisable by the
transferee only for as long as they could have been exercisable by



15









 







such Eligible Director. If any Award is transferred to a family member, trust, partnership,
corporation or other entity as contemplated by the first sentence hereof, all references herein and
in the applicable Award Agreement to the Eligible Director shall be deemed to refer to such
permitted transferee, other than any such references with respect to the personal status of the
Eligible Director.



     15.2 No Right to Serve as a Director. This Plan shall not impose any obligations on the
Company to retain any Eligible Director as a director nor shall it impose any obligation on the
part of any Eligible Director to remain as a director of the Company.



     15.3 No Right to Particular Assets. Nothing contained in this Plan and no action taken
pursuant to this Plan shall create or be construed to create a trust of any kind or any fiduciary
relationship between the Company and any Eligible Director, the executor, administrator or other
personal representative or designated beneficiary of such Eligible Director, or any other persons.
Any reserves that may be established by the Company in connection with this Plan shall continue to
be held as part of the general funds of the Company, and no individual or entity other than the
Company shall have any interest in such funds until paid to an Eligible Director or his
beneficiary. To the extent that any Eligible Director or his executor, administrator or other
personal representative, as the case may be, acquires a right to receive any payment from the
Company pursuant to this Plan, such right shall be no greater than the right of an unsecured
general creditor of the Company.



     15.4 Beneficiary Designation. Each Eligible Director under the Plan may from time to time name
any beneficiary or beneficiaries (who may be named contingently or successively) to whom any
benefit under the Plan is to be paid or by whom any right under the Plan is to be exercised in case
of his death. Each designation will revoke all prior designations by the same Eligible Director,
shall be in a form prescribed by the Company, and will be effective only when filed by the Eligible
Director in writing with the Company during his lifetime. In the absence of any such designation,
benefits remaining unpaid or Awards outstanding at the Eligible Director’s death shall be paid to
or exercised by the Eligible Director’s surviving spouse, if any, or otherwise to or by his estate.



     15.5 Notices. Each Eligible Director shall be responsible for furnishing the Board with the
current and proper address for the mailing of notices and delivery of agreements and Shares. Any
notices required or permitted to be given shall be deemed given if directed to the person to whom
addressed at such address and mailed by regular United States mail, first-class and prepaid, or by
any recognized international equivalent, if any item mailed to such address is returned as
undeliverable to the addressee, mailing will be suspended until the Eligible Director furnishes the
proper address.



     15.6 Severability of Provisions. If any provision of this Plan shall be held invalid or
unenforceable, such invalidity or unenforceability shall not affect any other provisions hereof,
and this Plan shall be construed and enforced as if such provision had not been included.



     15.7 Incapacity. Any benefit payable to or for the benefit of a minor, an incompetent person
or other person incapable of receiving such benefit shall be deemed paid when paid to such person’s
guardian or to the party providing or reasonably appearing to provide for the care



16









 







of such person, and such payment shall fully discharge the Board, the Company and other
parties with respect thereto.



     15.8 Headings and Captions. The headings and captions herein are provided for reference and
convenience only, shall not be considered part of this Plan and shall not be employed in the
construction of this Plan.



     15.9 Requirements of Law. The granting of Awards and the issuance of shares of Common Stock
shall be subject to all applicable laws, rules and regulations, and to such approvals by any
governmental agencies or national securities exchanges as may be appropriate or required, as
determined by the Board.



     15.10 Governing Law. The Plan, and all Award Agreements hereunder, shall be construed and
enforced according to the laws of the State of Delaware, without regard to principles of conflicts
of laws.



     15.11 Securities Law Compliance. Instruments evidencing Awards may contain such other
provisions, not inconsistent with the Plan, as the Board deems advisable, including a requirement
that the Eligible Director represent to the Company in writing, when an Award is granted or when he
receives shares with respect to such Award (or at such other times as the Board deems appropriate)
that he is accepting such Award, or receiving or acquiring such Shares (unless they are then
covered by a Securities Act of 1933 registration statement), for his own account for investment
only and with no present intention to transfer, sell or otherwise dispose of such Shares except
such disposition by a legal representative as shall be required by will or the laws of any
jurisdiction in winding up the estate of the Eligible Director or pursuant to a transfer permitted
by Section 15.1. Such Shares shall be transferable only if the proposed transfer shall be
permissible pursuant to the Plan and if, in the opinion of counsel satisfactory to the Company,
such transfer at such time will be in compliance with applicable securities laws.



     15.12 Code Section 409A Compliance. The Company intends the Plan and any Award Agreement to
comply with Section 409A of the Code and the Treasury Regulations promulgated thereunder, and the
Plan and any Award Agreement shall be administered in accordance with such intent.




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