Exhibit
10.8


 


IAC/INTERACTIVECORP

AMENDED AND RESTATED 2005 STOCK AND ANNUAL INCENTIVE PLAN

(effective December 17, 2008)


 


SECTION 1.           Purpose; Definitions.


 


The purpose of this Plan is to give the Company a
competitive advantage in attracting, retaining and motivating officers,
employees, directors and/or consultants and to provide the Company and its
Subsidiaries and Affiliates with a stock and incentive plan providing
incentives directly linked to shareholder value. Certain terms used herein have
definitions given to them in the first place in which they are used. In
addition, for purposes of this Plan, the following terms are defined as set
forth below:


 


(a)           “Affiliate”
means a corporation or other entity controlled by, controlling or under common
control with, the Company.


 


(b)           “Applicable
Exchange” means Nasdaq or such other securities exchange as may at the
applicable time be the principal market for the Common Stock.


 


(c)           “Award” means
an Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit,
or other stock-based award granted pursuant to the terms of this Plan.


 


(d)           “Award Agreement”
means a written or electronic document or agreement setting forth the terms and
conditions of a specific Award.


 


(e)           “Beneficial
Ownership” shall have the meaning given in Rule 13d-3 promulgated
under the Exchange Act.


 


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


 


(g)           “Bonus Award”
means a bonus award made pursuant to Section 9.


 


(h)           “Cause”
means, unless otherwise provided in an Award Agreement, (i) “Cause” as
defined in any Individual Agreement to which the applicable Participant is a
party, or (ii) if there is no such Individual Agreement or if it does not
define Cause: (A) the willful or gross neglect by a Participant of his
employment duties; (B) the plea of guilty or nolo contendere to, or conviction for, the commission of a
felony offense by a Participant; (C) a material breach by a Participant of
a fiduciary duty owed to the Company or any of its subsidiaries; (D) a
material breach by a Participant of any nondisclosure, non-solicitation or
non-competition obligation owed to the Company or any of its Affiliates; or (E) before
a Change in Control, such other events as shall be determined by the Committee
and set forth in a Participant’s Award Agreement. Notwithstanding the general rule of
Section 2(c), following a Change in Control, any determination by the
Committee as to whether “Cause” exists shall be subject to de novo review.


 


(i)            “Change in
Control” has the meaning set forth in Section 10(b).


 

















 


(j)            “Code” means
the Internal Revenue Code of 1986, as amended from time to time, and any
successor thereto.


 


(k)           “Commission”
means the Securities and Exchange Commission or any successor agency.


 


(l)            “Committee”
has the meaning set forth in Section 2(a).


 


(m)          “Common Stock”
means common stock, par value $.001 per share, of the Company.


 


(n)           “Company”
means IAC/InterActiveCorp, a Delaware corporation or its successor.


 


(o)           “Disability”
means (i) “Disability” as defined in any Individual Agreement to which the
Participant is a party, (ii) if there is no such Individual Agreement or
it does not define “Disability,” (A) permanent and total disability as
determined under the Company’s long-term disability plan applicable to the
Participant, or (B) if there is no such plan applicable to the Participant
or the Committee determines otherwise in an applicable Award Agreement, “Disability”
as determined by the Committee. Notwithstanding the forgoing, with respect to
an Incentive Stock Option, “Disability” shall mean Permanent and Total
Disability as defined in Section 22(e)(3) of the Code, with respect
to each Award that constitutes a “nonqualified deferred compensation plan”
within the meaning of Section 409A of the Code, the foregoing definition
shall apply for purposes of vesting of such Award, provided that such Award
shall not be settled until the earliest of: (i) the Participant’s “disability”
within the meaning of Section 409A of the Code, (ii) the Participant’s
“separation from service” within the meaning of Section 409A of the Code
and (iii) the date such Award would otherwise be settled pursuant to the
terms of the Award Agreement.


 


(p)           “Disaffiliation”
means a Subsidiary’s or Affiliate’s ceasing to be a Subsidiary or Affiliate for
any reason (including, without limitation, as a result of a public offering, or
a spinoff or sale by the Company, of the stock of the Subsidiary or Affiliate)
or a sale of a division of the Company and its Affiliates.


 


(q)           “EBITA” means
for any period, operating profit (loss) plus (i) amortization, including
goodwill impairment, (ii) amortization of non-cash distribution and
marketing expense and non-cash compensation expense, (iii) disengagement
expenses, (iv) restructuring charges, (v) non-cash write-downs of
assets or goodwill, (vi) charges relating to disposal of lines of
business, (vii) litigation settlement amounts and (viii) costs
incurred for proposed and completed acquisitions.


 


(r)            “EBITDA”
means for any period, operating profit (loss) plus (i) depreciation and amortization,
including goodwill impairment, (ii) amortization of cable distribution
fees, (iii) amortization of non-cash distribution and marketing expense
and non-cash compensation expense, (iv) disengagement expenses, (v) restructuring
charges, (vi) non-cash write-downs of assets or goodwill, (vii) charges
relating to disposal of lines of business, (viii) litigation settlement
amounts and (ix) costs incurred for proposed and completed acquisitions.


 

















 


(s)           “Eligible
Individuals” means directors, officers, employees and consultants of the
Company or any of its Subsidiaries or Affiliates.


 


(t)            “Exchange Act”
means the Securities Exchange Act of 1934, as amended from time to time, and
any successor thereto.


 


(u)           “Fair Market
Value” means, if the Common Stock is listed on a national securities
exchange, as of any given date, the closing price for the Common Stock on such
date on the Applicable Exchange, or if Shares were not traded on the Applicable
Exchange on such measurement date, then on the next preceding date on which
Shares were traded, all as reported by such source as the Committee may select.
If the Common Stock is not listed on a national securities exchange, Fair
Market Value shall be determined by the Committee in its good faith discretion,
in compliance with the requirements of Section 409A of the Code.


 


(v)           “Free-Standing
SAR” has the meaning set forth in Section 5(b).


 


(w)          “Grant Date”
means (i) the date on which the Committee by resolution selects an
Eligible Individual to receive a grant of an Award and determines the number of
Shares to be subject to such Award or the formula for earning a number of
shares or cash amount, or (ii) such later date as the Committee shall
provide in such resolution.


 


(x)            “Group”
shall have the meaning given in Section 13(d)(3) and 14(d)(2) of
the Exchange Act.


 


(y)           “Incentive Stock
Option” means any Option that is designated in the applicable Award
Agreement as an “incentive stock option” within the meaning of Section 422
of the Code, and that in fact so qualifies.


 


(z)            “Individual
Agreement” means an employment, consulting or similar agreement between a
Participant and the Company or one of its Subsidiaries or Affiliates.


 


(aa)         “Nonqualified
Option” means any Option that is not an Incentive Stock Option.


 


(bb)         “Option” means
an Award granted under Section 5.


 


(cc)         “Participant”
means an Eligible Individual to whom an Award is or has been granted.


 


(dd)         “Performance Goals”
means the performance goals established by the Committee in connection with the
grant of Restricted Stock, Restricted Stock Units or Bonus Awards or other
stock-based awards. In the case of Qualified-Performance Based Awards that are
intended to qualify under Section 162(m)(4), (i) such goals shall be
based on the attainment of one or any combination of the following: specified
levels of earnings per share from continuing operations, net profit after tax,
EBITDA, EBITA, gross profit, cash generation, unit volume, market share, sales,
asset quality, earnings per share, operating income, revenues, return on
assets, return on operating assets, return on equity, profits, total
shareholder return (measured in terms of stock price appreciation and/or
dividend growth), cost saving levels, marketing-spending efficiency, core
non-interest income, change in working capital, return on capital, and/or stock
price, with


 

















 


respect
to the Company or any Subsidiary, Affiliate, division or department of the
Company that are intended to qualify under Section 162(m)(4)(c) of
the Code and (ii) such Performance Goals shall be set by the Committee
within the time period prescribed by Section 162(m) of the Code and
related regulations. Such Performance Goals also may be based upon the
attaining of specified levels of Company, Subsidiary, Affiliate or divisional
performance under one or more of the measures described above relative to the
performance of other entities, divisions or subsidiaries.


 


(ee)         “Plan” means
this IAC/InterActiveCorp Amended and Restated 2005 Stock and Annual Incentive
Plan, as set forth herein and as hereafter amended from time to time.


 


(ff)           “Plan Year”
means the calendar year or, with respect to Bonus Awards, the Company’s fiscal
year if different.


 


(gg)         “Qualified
Performance-Based Award” means an Award intended to qualify for the Section 162(m) Exemption,
as provided in Section 11.


 


(hh)         “Restricted Stock”
means an Award granted under Section 6.


 


(ii)           “Restricted
Stock Units” means an Award granted under Section 7.


 


(jj)           “Resulting
Voting Power” shall mean the outstanding combined voting power of the then
outstanding voting securities entitled to vote generally in the election of
directors (or equivalent governing body, if applicable) of the entity resulting
from a Business Combination (including, without limitation, an entity which as
a result of such transaction owns the Corporation or all or substantially all
of the Corporation’s assets either directly or through one or more
subsidiaries).


 


(kk)         “Retirement”
means retirement from active employment with the Company, a Subsidiary or
Affiliate at or after the Participant’s attainment of age 65.


 


(ll)           “Section 162(m) Exemption”
means the exemption from the limitation on deductibility imposed by Section 162(m) of
the Code that is set forth in Section 162(m)(4)(C) of the Code.


 


(mm)       “Share” means a
share of Common Stock.


 


(nn)         “Specified
Employee” shall mean any individual who is a “key employee” (as defined in Section 416(i) of
the Code without regard to paragraph (5) thereof) with respect to the
Company and its Affiliates, as determined by the Company (or the Affiliate, in
the event that the Affiliate and the Company are not considered a single
employer under Sections 414(b) or 414(c) of the Code)  in accordance with its uniform policy with
respect to all arrangements subject to Section 409A of the Code, based
upon the twelve (12) month period ending on each December 31st. All
individuals who are determined to be key employees under Section 416(i)(1)(A)(i),
(ii) or (iii) of the Code (without regard to paragraph (5) thereof)
on December 31st shall be treated as Specified Employees for purposes of
the Plan during the twelve (12) month period that begins on the following April 1st.


 

















 


(oo)         “Stock
Appreciation Right” has the meaning set forth in Section 5(b).


 


(pp)         “Subsidiary”
means any corporation, partnership, joint venture or other entity during any
period in which at least a 50% voting or profits interest is owned, directly or
indirectly, by the Company or any successor to the Company.


 


(qq)         “Tandem SAR”
has the meaning set forth in Section 5(b).


 


(rr)           “Term” means
the maximum period during which an Option or Stock Appreciation Right may
remain outstanding, subject to earlier termination upon Termination of
Employment or otherwise, as specified in the applicable Award Agreement.


 


(ss)         “Termination of
Employment” means the termination of the applicable Participant’s
employment with, or performance of services for, the Company and any of its
Subsidiaries or Affiliates. Unless otherwise determined by the Committee, if a
Participant’s employment with, or membership on a board of directors of, the
Company and its Affiliates terminates but such Participant continues to provide
services to the Company and its Affiliates in a non-employee director capacity
or as an employee, as applicable, such change in status shall not be deemed a
Termination of Employment. A Participant employed by, or performing services
for, a Subsidiary or an Affiliate or a division of the Company and its
Affiliates shall be deemed to incur a Termination of Employment if, as a result
of a Disaffiliation, such Subsidiary, Affiliate, or division ceases to be a
Subsidiary, Affiliate or division, as the case may be, and the Participant does
not immediately thereafter become an employee of, or member of the board of
directors of, the Company or another Subsidiary or Affiliate. Temporary
absences from employment because of illness, vacation or leave of absence and
transfers among the Company and its Subsidiaries and Affiliates shall not be
considered Terminations of Employment. Notwithstanding the foregoing, with
respect to any Award that constitutes a “nonqualified deferred compensation
plan” within the meaning of Section 409A of the Code, “Termination of
Employment” shall mean a “separation from service” as defined under Section 409A
of the Code.


 


SECTION 2.           Administration.


 


(a)           Committee.
The Plan shall be administered by the Compensation and Human Resources
Committee of the Board or such other committee of the Board as the Board may
from time to time designate (the “Committee”), which shall be composed of
not less than two directors, and shall be appointed by and serve at the
pleasure of the Board. The Committee shall, subject to Section 11, have
plenary authority to grant Awards pursuant to the terms of the Plan to Eligible
Individuals. Among other things, the Committee shall have the authority,
subject to the terms of the Plan:


 


(i)            to select the
Eligible Individuals to whom Awards may from time to time be granted;


 


(ii)           to determine
whether and to what extent Incentive Stock Options, Nonqualified Options, Stock
Appreciation Rights, Restricted Stock, Restricted Stock Units, other
stock-based awards, or any combination thereof, are to be granted hereunder;


 

















 


(iii)          to determine the
number of Shares to be covered by each Award granted hereunder;


 


(iv)          to determine the
terms and conditions of each Award granted hereunder, based on such factors as
the Committee shall determine;


 


(v)           subject to Section 12,
to modify, amend or adjust the terms and conditions of any Award, at any time
or from time to time;


 


(vi)          to adopt, alter and
repeal such administrative rules, guidelines and practices governing the Plan
as it shall from time to time deem advisable;


 


(vii)         to interpret the
terms and provisions of the Plan and any Award issued under the Plan (and any
agreement relating thereto);


 


(viii)        to establish any “blackout”
period that the Committee in its sole discretion deems necessary or advisable;
and


 


(ix)           to otherwise
administer the Plan.


 


(b)           Procedures.


 


(i)            The Committee may
act only by a majority of its members then in office, except that the Committee
may, except to the extent prohibited by applicable law or the listing standards
of the Applicable Exchange and subject to Section 11, allocate all or any
portion of its responsibilities and powers to any one or more of its members
and may delegate all or any part of its responsibilities and powers to any
person or persons selected by it.


 


(ii)           Subject to Section 11(c),
any authority granted to the Committee may also be exercised by the full Board.
To the extent that any permitted action taken by the Board conflicts with
action taken by the Committee, the Board action shall control.


 


(c)           Discretion of
Committee. Subject to Section 1(g), any determination made by the
Committee or by an appropriately delegated officer pursuant to delegated
authority under the provisions of the Plan with respect to any Award shall be
made in the sole discretion of the Committee or such delegate at the time of
the grant of the Award or, unless in contravention of any express term of the Plan,
at any time thereafter. All decisions made by the Committee or any
appropriately delegated officer pursuant to the provisions of the Plan shall be
final and binding on all persons, including the Company, Participants, and
Eligible Individuals.


 


(d)           Award Agreements.
The terms and conditions of each Award, as determined by the Committee, shall
be set forth in an Award Agreement, which shall be delivered to the Participant
receiving such Award upon, or as promptly as is reasonably practicable
following, the grant of such Award. The effectiveness of an Award shall not be
subject to the Award Agreement’s being signed by the Company and/or the
Participant receiving the Award unless specifically so provided in the Award
Agreement. Award Agreements may be amended only in accordance with Section 12
hereof. Notwithstanding any provision of the Plan or an Award Agreement to the
contrary, in the event that any term of an Award Agreement conflicts with any


 

















 


provision
of the Plan that specifically pertains to Section 409A of the Code, the
provision of the Plan shall govern.


 


SECTION 3.           Common Stock Subject to Plan.


 


(a)           Plan Maximums.
The maximum number of Shares that may be delivered pursuant to Awards under the
Plan shall be 25,000,000. Shares subject to an Award under the Plan may be
authorized and unissued Shares or may be treasury Shares.


 


(b)           Individual Limits.
No Participant may be granted Awards covering in excess of 10,000,000 Shares
during the term of the Plan.


 


(c)           Rules for
Calculating Shares Delivered.


 


(i)            To the extent that
any Award is forfeited, or any Option and the related Tandem SAR (if any) or
Free-Standing SAR terminates, expires or lapses without being exercised, or any
Award is settled for cash, the Shares subject to such Awards not delivered as a
result thereof shall again be available for Awards under the Plan.


 


(ii)           If the exercise
price of any Option and/or the tax withholding obligations relating to any
Award are satisfied by delivering Shares to the Company (by either actual
delivery or by attestation), only the number of Shares issued net of the Shares
delivered or attested to shall be deemed delivered for purposes of the limits
set forth in Section 3(a). To the extent any Shares subject to an Award
are withheld to satisfy the exercise price (in the case of an Option) and/or
the tax withholding obligations relating to such Award, such Shares shall not
be deemed to have been delivered for purposes of the limits set forth in Section 3(a).


 


(d)           Adjustment
Provision. In the event of a merger, consolidation, acquisition of property
or shares, stock rights offering, liquidation, Disaffiliation, or similar event
affecting the Company or any of its Subsidiaries (each, a “Corporate
Transaction”), the Committee or the Board may in its discretion make such
substitutions or adjustments as it deems appropriate and equitable to (i) the
aggregate number and kind of Shares or other securities reserved for issuance
and delivery under the Plan, (ii) the various maximum limitations set
forth in Sections 3(a) and 3(b) upon certain types of Awards and upon
the grants to individuals of certain types of Awards, (iii) the number and
kind of Shares or other securities subject to outstanding Awards; and (iv) the
exercise price of outstanding Options and Stock Appreciation Rights. In the
event of a stock dividend, stock split, reverse stock split, separation,
spinoff, reorganization, extraordinary dividend of cash or other property,
share combination, or recapitalization or similar event affecting the capital
structure of the Company (each, a “Share Change”), the Committee or the Board
shall make such substitutions or adjustments as it deems appropriate and
equitable to (i) the aggregate number and kind of Shares or other
securities reserved for issuance and delivery under the Plan (provided, that, there will be no
adjustment under this clause (i) with respect to the reverse stock split
that is subject to approval by the stockholders of the Company on the date the
Plan is subject to approval by the stockholders of the Company), (ii) the
various maximum limitations set forth in Sections 3(a) and 3(b) upon
certain types of Awards and upon the grants to individuals of certain types of
Awards, (iii) the number and kind of Shares or other securities subject to
outstanding Awards; and (iv) the exercise price of outstanding Options and
Stock


 

















 


Appreciation
Rights. In the case of Corporate Transactions, such adjustments may include,
without limitation, (1) the cancellation of outstanding Awards in exchange
for payments of cash, property or a combination thereof having an aggregate
value equal to the value of such Awards, as determined by the Committee or the
Board in its sole discretion (it being understood that in the case of a
Corporate Transaction with respect to which shareholders of Common Stock
receive consideration other than publicly traded equity securities of the
ultimate surviving entity, any such determination by the Committee that the
value of an Option or Stock Appreciation Right shall for this purpose be deemed
to equal the excess, if any, of the value of the consideration being paid for
each Share pursuant to such Corporate Transaction over the exercise price of
such Option or Stock Appreciation Right shall conclusively be deemed valid); (2) the
substitution of other property (including, without limitation, cash or other
securities of the Company and securities of entities other than the Company)
for the Shares subject to outstanding Awards; and (3) in connection with
any Disaffiliation, arranging for the assumption of Awards, or replacement of
Awards with new awards based on other property or other securities (including,
without limitation, other securities of the Company and securities of entities
other than the Company), by the affected Subsidiary, Affiliate, or division or
by the entity that controls such Subsidiary, Affiliate, or division following
such Disaffiliation (as well as any corresponding adjustments to Awards that
remain based upon Company securities). The Committee may adjust in its sole
discretion the Performance Goals applicable to any Awards to reflect any Share
Change and any Corporate Transaction and any unusual or non-recurring events
and other extraordinary items, impact of charges for restructurings,
discontinued operations, and the cumulative effects of accounting or tax
changes, each as defined by generally accepted accounting principles or as
identified in the Company’s financial statements, notes to the financial
statements, management’s discussion and analysis or the Company’s other SEC
filings,  provided that in the case of Performance Goals applicable to
any Qualified Performance-Based Awards, such adjustment does not violate Section 162(m) of
the Code. Any adjustment under this Section 3(d) need not be the same
for all Participants.


 


(e)           Section 409A.
Notwithstanding the foregoing: (i) any adjustments made pursuant to Section 3(d) to
Awards that are considered “deferred compensation” within the meaning of Section 409A
of the Code shall be made in compliance with the requirements of Section 409A
of the Code; (ii) any adjustments made pursuant to Section 3(d) to
Awards that are not considered “deferred compensation” subject to Section 409A
of the Code shall be made in such a manner as to ensure that after such
adjustment, the Awards either (A) continue not to be subject to Section 409A
of the Code or (B) comply with the requirements of Section 409A of
the Code; and (iii) in any event, neither the Committee nor the Board
shall have the authority to make any adjustments pursuant to Section 3(d) to
the extent the existence of such authority would cause an Award that is not
intended to be subject to Section 409A of the Code at the Grant Date to be
subject thereto.


 


SECTION 4.           Eligibility.


 


Awards may be granted under the Plan to Eligible
Individuals; provided, however, that Incentive Stock Options may
be granted only to employees of the Company and its subsidiaries or parent
corporation (within the meaning of Section 424(f) of the Code).


 

















 


SECTION 5.           Options and Stock Appreciation
Rights.


 


(a)           Types of Options.
Options may be of two types: Incentive Stock Options and Nonqualified Options.
The Award Agreement for an Option shall indicate whether the Option is intended
to be an Incentive Stock Option or a Nonqualified Option.


 


(b)           Types and Nature
of Stock Appreciation Rights. Stock Appreciation Rights may be “Tandem
SARs,” which are granted in conjunction with an Option, or “Free-Standing
SARs,” which are not granted in conjunction with an Option. Upon the
exercise of a Stock Appreciation Right, the Participant shall be entitled to
receive an amount in cash, Shares, or both, in value equal to the product of (i) the
excess of the Fair Market Value of one Share over the exercise price of the
applicable Stock Appreciation Right, multiplied by (ii) the number of
Shares in respect of which the Stock Appreciation Right has been exercised. The
applicable Award Agreement shall specify whether such payment is to be made in
cash or Common Stock or both, or shall reserve to the Committee or the
Participant the right to make that determination prior to or upon the exercise
of the Stock Appreciation Right.


 


(c)           Tandem SARs.
A Tandem SAR may be granted at the Grant Date of the related Option. A Tandem
SAR shall be exercisable only at such time or times and to the extent that the
related Option is exercisable in accordance with the provisions of this Section 5,
and shall have the same exercise price as the related Option. A Tandem SAR
shall terminate or be forfeited upon the exercise or forfeiture of the related
Option, and the related Option shall terminate or be forfeited upon the
exercise or forfeiture of the Tandem SAR.


 


(d)           Exercise Price.
The exercise price per Share subject to an Option or Free-Standing SAR shall be
determined by the Committee and set forth in the applicable Award Agreement,
and shall not be less than the Fair Market Value of a share of the Common Stock
on the applicable Grant Date. In no event may any Option or Free-Standing SAR
granted under this Plan be amended, other than pursuant to Section 3(d),
to decrease the exercise price thereof or otherwise be subject to any action
that would be treated, for accounting purposes, as a “repricing” of such Option
or Free-Standing SAR, unless such amendment, cancellation, or action is
approved by the Company’s shareholders.


 


(e)           Term. The
Term of each Option and each Free-Standing SAR shall be fixed by the Committee,
but shall not exceed ten years from the Grant Date in the case of an Incentive
Stock Option.


 


(f)            Vesting and
Exercisability. Except as otherwise provided herein, Options and
Free-Standing SARs shall be exercisable at such time or times and subject to
such terms and conditions as shall be determined by the Committee. If the
Committee provides that any Option or Free-Standing SAR will become exercisable
only in installments, the Committee may at any time waive such installment
exercise provisions, in whole or in part, based on such factors as the
Committee may determine. In addition, the Committee may at any time accelerate
the exercisability of any Option or Free-Standing SAR.


 

















 


(g)           Method of
Exercise. Subject to the provisions of this Section 5, Options and
Free-Standing SARs may be exercised, in whole or in part, at any time during
the applicable Term by giving written notice of exercise to the Company or
through the procedures established with the Company’s appointed third-party
Option administrator specifying the number of Shares as to which the Option or
Free-Standing SAR is being exercised; provided, however, that,
unless otherwise permitted by the Committee, any such exercise must be with
respect to a portion of the applicable Option or Free-Standing SAR relating to
no less than the lesser of the number of Shares then subject to such Option or
Free-Standing SAR or 100 Shares. In the case of the exercise of an Option, such
notice shall be accompanied by payment in full of the purchase price (which
shall equal the product of such number of Shares multiplied by the applicable
exercise price) by certified or bank check or such other instrument as the
Company may accept. If approved by the Committee, payment, in full or in part,
may also be made as follows:


 


(i)            Payments may be
made in the form of unrestricted Shares (by delivery of such Shares or by
attestation) of the same class as the Common Stock subject to the Option
already owned by the Participant (based on the Fair Market Value of the Common
Stock on the date the Option is exercised); provided, however,
that, in the case of an Incentive Stock Option, the right to make a payment in
the form of already owned Shares of the same class as the Common Stock subject
to the Option may be authorized only at the time the Option is granted.


 


(ii)           To the extent
permitted by applicable law, payment may be made by delivering a properly
executed exercise notice to the Company, together with a copy of irrevocable
instructions to a broker to deliver promptly to the Company the amount of sale
or loan proceeds necessary to pay the purchase price, and, if requested, the
amount of any federal, state, local or foreign withholding taxes. To facilitate
the foregoing, the Company may, to the extent permitted by applicable law,
enter into agreements for coordinated procedures with one or more brokerage
firms. To the extent permitted by applicable law, the Committee may also
provide for Company loans to be made for purposes of the exercise of Options.


 


(iii)          Payment may be made
by instructing the Committee to withhold a number of Shares having a Fair
Market Value (based on the Fair Market Value of the Common Stock on the date
the applicable Option is exercised) equal to the product of (A) the
exercise price multiplied by (B) the number of Shares in respect of which
the Option shall have been exercised.


 


(h)           Delivery; Rights
of Shareholders. No Shares shall be delivered pursuant to the exercise of
an Option until the exercise price therefor has been fully paid and applicable
taxes have been withheld. The applicable Participant shall have all of the
rights of a shareholder of the Company holding the class or series of Common Stock
that is subject to the Option or Stock Appreciation Right (including, if
applicable, the right to vote the applicable Shares and the right to receive
dividends), when the Participant (i) has given written notice of exercise,
(ii) if requested, has given the representation described in Section 14(a),
and (iii) in the case of an Option, has paid in full for such Shares.


 


(i)            Terminations of Employment.
Subject to Section 10(c), a Participant’s Options and Stock Appreciation
Rights shall be forfeited upon such Participant’s Termination of Employment,
except as set forth below:


 














 


(i)            Upon a Participant’s
Termination of Employment by reason of death, any Option or Stock Appreciation
Right held by the Participant that was exercisable immediately before the
Termination of Employment may be exercised at any time until the earlier of (A) the
first anniversary of the date of such death and (B) the expiration of the
Term thereof;


 


(ii)           Upon a Participant’s
Termination of Employment by reason of Disability or Retirement, any Option or
Stock Appreciation Right held by the Participant that was exercisable
immediately before the Termination of Employment may be exercised at any time
until the earlier of (A) the first anniversary of such Termination of
Employment and (B) the expiration of the Term thereof;


 


(iii)          Upon a Participant’s
Termination of Employment for Cause, any Option or Stock Appreciation Right
held by the Participant shall be forfeited, effective as of such Termination of
Employment;


 


(iv)          Upon a Participant’s
Termination of Employment for any reason other than death, Disability, Retirement
or for Cause, any Option or Stock Appreciation Right held by the Participant
that was exercisable immediately before the Termination of Employment may be
exercised at any time until the earlier of (A) the 90th day following such
Termination of Employment and (B) expiration of the Term thereof; and


 


(v)           Notwithstanding the
above provisions of this Section 5(i), if a Participant dies after such
Participant’s Termination of Employment but while any Option or Stock
Appreciation Right remains exercisable as set forth above, such Option or Stock
Appreciation Right may be exercised at any time until the later of (A) the
earlier of (1) the first anniversary of the date of such death and (2) expiration
of the Term thereof and (B) the last date on which such Option or Stock
Appreciation Right would have been exercisable, absent this Section 5(i)(v).


 


Notwithstanding the foregoing, the Committee shall have the power, in
its discretion, to apply different rules concerning the consequences of a
Termination of Employment; provided, however, that if such rules are
less favorable to the Participant than those set forth above, such rules are
set forth in the applicable Award Agreement. 
If an Incentive Stock Option is exercised after the expiration of the
exercise periods that apply for purposes of Section 422 of the Code, such
Option will thereafter be treated as a Nonqualified Option.


 


(j)            Nontransferability
of Options and Stock Appreciation Rights. 
No Option or Free-Standing SAR shall be transferable by a Participant
other than (i) by will or by the laws of descent and distribution, or (ii) in
the case of a Nonqualified Option or Free-Standing SAR, pursuant to a qualified
domestic relations order or as otherwise expressly permitted by the Committee
including, if so permitted, pursuant to a transfer to the Participant’s family
members or to a charitable organization, whether directly or indirectly or by
means of a trust or partnership or otherwise. 
For purposes of this Plan, unless otherwise determined by the Committee,
“family member” shall have the meaning given to such term in General
Instructions A.1(a)(5) to Form S-8 under the Securities Act of 1933,
as amended, and any successor thereto.  A
Tandem SAR shall be transferable only with the related Option as permitted by
the preceding sentence.  Any Option or
Stock Appreciation Right shall be exercisable, subject to the terms of this
Plan, only by the applicable Participant, the guardian or legal representative
of such Participant, or any


 

















 


person to whom such Option or Stock Appreciation Right is permissibly
transferred pursuant to this Section 5(j), it being understood that the
term “Participant” includes such guardian, legal representative and
other transferee; provided, however, that the term “Termination
of Employment” shall continue to refer to the Termination of Employment of
the original Participant.


 


SECTION 6.                   Restricted
Stock.


 


(a)           Nature of Awards
and Certificates.  Shares of
Restricted Stock are actual Shares issued to a Participant, and shall be evidenced
in such manner as the Committee may deem appropriate, including book-entry
registration or issuance of one or more stock certificates.  Any certificate issued in respect of Shares
of Restricted Stock shall be registered in the name of the applicable Participant
and shall bear an appropriate legend referring to the terms, conditions, and
restrictions applicable to such Award, substantially in the following form:


 


“The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions (including
forfeiture) of the IAC/InterActiveCorp Amended and Restated 2005 Stock and
Annual Incentive Plan and an Award Agreement. 
Copies of such Plan and Agreement are on file at the offices of
IAC/InterActiveCorp, 555 West 18th Street, New York, New York.”


 


The Committee may require that the certificates evidencing such shares
be held in custody by the Company until the restrictions thereon shall have
lapsed and that, as a condition of any Award of Restricted Stock, the applicable
Participant shall have delivered a stock power, endorsed in blank, relating to
the Common Stock covered by such Award.


 


(b)           Terms and
Conditions.  Shares of Restricted
Stock shall be subject to the following terms and conditions:


 


(i)            The Committee may,
prior to or at the time of grant, designate an Award of Restricted Stock as a
Qualified Performance-Based Award, in which event it shall condition the grant
or vesting, as applicable, of such Restricted Stock upon the attainment of
Performance Goals.  If the Committee does
not designate an Award of Restricted Stock as a Qualified Performance-Based
Award, it may also condition the grant or vesting thereof upon the attainment
of Performance Goals.  Regardless of
whether an Award of Restricted Stock is a Qualified Performance-Based Award,
the Committee may also condition the grant or vesting thereof upon the
continued service of the Participant. 
The conditions for grant or vesting and the other provisions of Restricted
Stock Awards (including without limitation any applicable Performance Goals)
need not be the same with respect to each recipient.  Subject to Section 11(b), the Committee
may at any time, in its sole discretion, accelerate or waive, in whole or in
part, any of the foregoing restrictions.


 


(ii)           Subject to the
provisions of the Plan and the applicable Award Agreement, during the period,
if any, set by the Committee, commencing with the date of such Restricted Stock
Award for which such Participant’s continued service is required (the “Restriction


 





















 


Period”), and until the later of (A) the
expiration of the Restriction Period and (B) the date the applicable
Performance Goals (if any) are satisfied, the Participant shall not be
permitted to sell, assign, transfer, pledge or otherwise encumber Shares of
Restricted Stock.


 


(iii)          Except as provided
in this Section 6 and in the applicable Award Agreement, the applicable
Participant shall have, with respect to the Shares of Restricted Stock, all of
the rights of a stockholder of the Company holding the class or series of
Common Stock that is the subject of the Restricted Stock, including, if
applicable, the right to vote the Shares and the right to receive any cash
dividends.  If so determined by the
Committee in the applicable Award Agreement and subject to Section 14(e), (A) cash
dividends on the class or series of Common Stock that is the subject of the
Restricted Stock Award shall be automatically reinvested in additional
Restricted Stock, held subject to the vesting of the underlying Restricted
Stock, and (B) subject to any adjustment pursuant to Section 3(d),
dividends payable in Common Stock shall be paid in the form of Restricted Stock
of the same class as the Common Stock with which such dividend was paid, held
subject to the vesting of the underlying Restricted Stock.


 


(iv)          Except as otherwise
set forth in the applicable Award Agreement, upon a Participant’s Termination
of Employment for any reason during the Restriction Period or before the
applicable Performance Goals are satisfied, all Shares of Restricted Stock
still subject to restriction shall be forfeited by such Participant; provided,
however, that subject to Section 11(b), the Committee shall have
the discretion to waive, in whole or in part, any or all remaining restrictions
with respect to any or all of such Participant’s Shares of Restricted Stock.


 


(v)           If and when any
applicable Performance Goals are satisfied and the Restriction Period expires
without a prior forfeiture of the Shares of Restricted Stock for which legended
certificates have been issued, unlegended certificates for such Shares shall be
delivered to the Participant upon surrender of the legended certificates.


 


SECTION 7.                   Restricted
Stock Units.


 


(a)           Nature of Award.  Restricted Stock Units are Awards denominated
in Shares that will be settled, subject to the terms and conditions of the
Restricted Stock Units, either by delivery of Shares to the Participant or by
the payment of cash based upon the Fair Market Value of a specified number of
Shares.


 


(b)           Terms and Conditions.  Restricted Stock Units shall be subject to
the following terms and conditions:


 


(i)            The Committee may,
in connection with the grant of Restricted Stock Units, designate them as
Qualified Performance-Based Awards, in which event it shall condition the grant
or vesting thereof upon the attainment of Performance Goals.  If the Committee does not designate
Restricted Stock Units as Qualified Performance-Based Awards, it may also
condition the grant or vesting thereof upon the attainment of Performance Goals.  Regardless of whether Restricted Stock Units
are Qualified Performance-Based Awards, the Committee may also condition the
vesting thereof upon the continued service of the Participant.  The conditions for grant or vesting and the
other provisions of Restricted Stock Awards (including without limitation any
applicable Performance Goals) need not be the same with respect to each


 





















 


recipient.  Subject to Section 11(b),
the Committee may at any time, in its sole discretion, accelerate or waive, in
whole or in part, any of the foregoing restrictions.  Except as otherwise provided in Section 7(b)(iv) or
in the applicable Award Agreement, an Award of Restricted Stock Units shall be
settled as and when the Restricted Stock Units vest (but no in event later than
two and a half months after the end of the fiscal year in which the Restricted
Stock Units vest).


 


(ii)           Subject to the
provisions of the Plan and the applicable Award Agreement, during the period,
if any, set by the Committee, commencing with the date of such Restricted Stock
Units Award for which such Participant’s continued service is required (the “Restriction
Period”), and until the later of (A) the expiration of the Restriction
Period and (B) the date the applicable Performance Goals (if any) are satisfied,
the Participant shall not be permitted to sell, assign, transfer, pledge or
otherwise encumber Restricted Stock Units.


 


(iii)          The Award Agreement
for Restricted Stock Units shall specify whether, to what extent and on what
terms and conditions the applicable Participant shall be entitled to receive
current or deferred payments of cash, Common Stock or other property
corresponding to the dividends payable on the Common Stock (subject to Section 14(e) below).


 


(iv)          Except as otherwise
set forth in the applicable Award Agreement, upon a Participant’s Termination
of Employment for any reason during the Restriction Period or before the
applicable Performance Goals are satisfied, all Restricted Stock Units still
subject to restriction shall be forfeited by such Participant; provided,
however, that subject to Section 11(b), the Committee shall have
the discretion to waive, in whole or in part, any or all remaining restrictions
with respect to any or all of such Participant’s Restricted Stock Units,
provided, however, if any of such Participant’s Restricted Stock Units
constitute a “nonqualified deferred compensation plan” within the meaning of Section 409A
of the Code, settlement of such Restricted Stock Units shall not occur until
the earliest of (1) the date such Restricted Stock Units would otherwise
be settled pursuant to the terms of the Award Agreement and (2) the
Participant’s “separation of service” within the meaning of Section 409A
of the Code.


 


SECTION 8.                   Other
Stock-Based Awards.


 


Other Awards of Common Stock and other Awards that are valued in whole
or in part by reference to, or are otherwise based upon or settled in, Common
Stock, including (without limitation), unrestricted stock, performance units,
dividend equivalents, and convertible debentures, may be granted under the
Plan.


 


SECTION 9.                   Bonus
Awards.


 


(a)           Determination of
Awards.  The Committee shall
determine the total amount of Bonus Awards for each Plan Year or such shorter
performance period as the Committee may establish in its sole discretion.  Prior to the beginning of the Plan Year or
such shorter performance period as the Committee may establish in its sole
discretion (or such later date as may be prescribed by the Internal Revenue
Service under Section 162(m) of the Code), the Committee shall
establish Performance Goals for Bonus Awards for the Plan Year or such shorter
period; provided, that such Performance Goals may be established at a
later date for


 

















 


Participants who are not Covered Employees within the meaning of Section 162(m)(3) of
the Code.  Bonus amounts payable to any
individual Participant with respect to a Plan Year will be limited to a maximum
of $10 million.  For performance periods
that are shorter than a Plan Year, such $10 million maximum may be pro-rated if
so determined by the Committee.


 


(b)           Payment of Awards.  Bonus Awards under the Plan shall be paid in
cash or in shares of Common Stock (valued at Fair Market Value as of the date
of payment) as determined by the Committee, as soon as practicable following
the close of the Plan Year or such shorter performance period as the Committee
may establish.  It is intended that a
Bonus Award will be paid no later than the fifteenth (15th) day of the third
month following the later of: (i) the end of the Participant’s taxable
year in which the requirements for such Bonus Award have been satisfied by the
Participant or (ii) the end of the Company’s fiscal year in which the
requirements for such Bonus Award have been satisfied by the Participant.  To the extent provided by the Committee, a
Participant may elect to defer  receipt
of amounts payable under a Bonus Award for a specified period, or until a
specified event, subject in each case to the Committee’s approval and in
accordance with the terms of plans and arrangements that comply with Section 409A
that may be established from time to time. 
The Bonus Award for any Plan Year or such shorter performance period to
any Participant may be reduced or eliminated by the Committee in its
discretion.


 


SECTION 10.                 Change
in Control Provisions.


 


(a)           Impact of
Event/Single Trigger.  Unless
otherwise provided in the applicable Award Agreement and subject to Sections
3(d), 3(e) and 14(k), notwithstanding any other provision of the Plan to
the contrary, immediately upon the occurrence of a Change in Control, with
respect to Awards held by officers of the Company (and not the Company’s
Subsidiaries) with a title of Senior Vice President or above as of immediately
prior to the Change in Control, and with respect to all other Participants solely
to the extent provided in the applicable Award Agreement:


 


(i)            any Options and
Stock Appreciation Rights outstanding which are not then exercisable and vested
shall become fully exercisable and vested;


 


(ii)           the restrictions
and deferral limitations applicable to any Restricted Stock shall lapse, and
such Restricted Stock shall become free of all restrictions and become fully
vested and transferable; and


 


(iii)          all Restricted
Stock Units shall be considered to be earned and payable in full, and any restrictions
shall lapse, and such Restricted Stock Units shall be settled as promptly as is
practicable in the form set forth in the applicable Award Agreement; provided,
however, that with respect to any Restricted Stock Unit that constitute a “nonqualified
deferred compensation plan” within the meaning of Section 409A of the
Code, the settlement of such Restricted Stock Units pursuant to this Section 10(a)(iii) shall
not occur until the earliest of (1) the Change in Control if such Change
in Control constitutes a “change in the ownership of the corporation,” a “change
in effective control of the corporation” or a “change in the ownership of a
substantial portion of the assets of the corporation,” within the meaning of Section 409A(a)(2)(A)(v) of
the Code, (2) the date such Restricted Stock Units would otherwise be


 

















 


settled pursuant to the terms of the Award Agreement and (3) the
Participant’s “separation of service” within the meaning of Section 409A
of the Code.


 


(b)           Definition of
Change in Control.  For purposes of
the Plan, unless otherwise provided in an option agreement or other agreement
relating to an Award, a “Change in Control” shall mean the happening of
any of the following events:


 


(i)            The acquisition by
any individual, entity or Group (a “Person”), other than Barry Diller,
Liberty Media Corporation, their respective Affiliates, any Group including any
of the foregoing, or the Corporation, of Beneficial Ownership of equity
securities of the Corporation representing more than 50% of the voting power of
the then outstanding equity securities of the Corporation entitled to vote
generally in the election of directors (the “Outstanding Corporation Voting
Securities”); provided, however, that (A) for purposes
of this subsection any Group including Liberty Media Corporation or its
Affiliates (but excluding Barry Diller) shall be excluded only so long as they
own over 50% of the aggregate economic ownership held by such Group, and (B) any
acquisition that would constitute a Change of Control under this subsection (i) that
is also a Business Combination shall be determined exclusively under subsection
(iii) below; or


 


(ii)           Individuals who, as
of the Effective Date, constitute the Board (the “Incumbent Directors”)
cease for any reason to constitute at least a majority of the Board; constitute
the Board (the “Incumbent Directors”) cease for any reason to constitute
at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the Effective Date, whose
election, or nomination for election by the Corporation’s shareholders, was
approved by a vote of at least a majority of the Incumbent Directors at such
time, or whose election was not opposed by Barry Diller voting as a stockholder
so long as he is the Chairman and Chief Executive Officer (or senior executive
officer) of the Corporation, shall become an Incumbent Director, but excluding,
for this purpose, any such individual whose initial assumption of office occurs
as a result of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board; or


 


(iii)          Consummation of a
reorganization, merger, consolidation, sale or other disposition of all or
substantially all of the assets of the Corporation, the purchase of assets or
stock of another entity, or other similar corporate transaction (a “Business
Combination”), in each case, unless immediately following such Business
Combination, (A) more than 50% of the Resulting Voting Power shall reside
in Outstanding Corporation Voting Securities retained by the Corporation’s
stockholders in the Business Combination and/or voting securities received by
such stockholders in the Business Combination on account of Outstanding
Corporation Voting Securities, and (B) at least a majority of the members
of the board of directors (or equivalent governing body, if applicable) of the
entity resulting from such Business Combination were Incumbent Directors at the
time of the initial agreement, or action of the Board, providing for such
Business Combination; or


 


(iv)          Approval by the
stockholders of the Corporation of a complete liquidation or dissolution of the
Corporation.


 

















 


(c)           Impact of
Event/Double Trigger.  Unless
otherwise provided in the applicable Award Agreement and subject to Sections
3(d), 3(e) and 14(k), notwithstanding any other provision of this Plan to
the contrary, upon a Participant’s Termination of Employment, during the
two-year period following a Change in Control, by the Company other than for
Cause or Disability or by the Participant for Good Reason (as defined below):


 


(i)            any Options and
Stock Appreciation Rights outstanding as of such Termination of Employment
which were outstanding as of the date of such Change in Control (including any
Options and Stock Appreciation Rights that became vested pursuant to Section 10(a))
shall be fully exercisable and vested and shall remain exercisable until the
later of (i) the last date on which such Option or Stock Appreciation
Right would be exercisable in the absence of this Section 10(c) and (ii) the
earlier of (A) the first anniversary of such Change in Control and (B) expiration
of the Term of such Option or Stock Appreciation Right;


 


(ii)           the restrictions
and deferral limitations applicable to any Restricted Stock shall lapse, and
such Restricted Stock outstanding as of such Termination of Employment which
were outstanding as of the date of such Change in Control shall become free of
all restrictions and become fully vested and transferable; and


 


(iii)          all Restricted
Stock Units outstanding as of such Termination of Employment which were
outstanding as of the date of such Change in Control shall be considered to be
earned and payable in full, and any restrictions shall lapse and such
Restricted Stock Units shall be settled as promptly as is practicable in the
form set forth in the applicable Award Agreement.


 


(d)           For purposes of this
Section 10, “Good Reason” means (i) “Good Reason” as defined
in any Individual Agreement or Award Agreement to which the applicable
Participant is a party, or (ii) if there is no such Individual Agreement
or if it does not define Good Reason, without the Participant’s prior written
consent: (A) a material reduction in the Participant’s rate of annual base
salary from the rate of annual base salary in effect for such Participant
immediately prior to the Change in Control, (B) a relocation of the
Participant’s principal place of business more than 35 miles from the city in
which such Participant’s principal place of business was located immediately
prior to the Change in Control or (C) a material and demonstrable adverse
change in the nature and scope of the Participant’s duties from those in effect
immediately prior to the Change in Control. 
In order to invoke a Termination of Employment for Good Reason, a
Participant shall provide written notice to the Company of the existence of one
or more of the conditions described in clauses (A) through (C) within
90 days following the Participant’s knowledge of the initial existence of such
condition or conditions, and the Company shall have 30 days following receipt
of such written notice (the “Cure Period”) during which it may remedy the
condition.  In the event that the Company
fails to remedy the condition constituting Good Reason during the Cure Period,
the Participant must terminate employment, if at all, within 90 days following
the Cure Period in order for such Termination of Employment to constitute a
Termination of Employment for Good Reason.


 

















 


SECTION 11.                 Qualified
Performance-Based Awards; Section 16(b).


 


(a)           The provisions of
this Plan are intended to ensure that all Options and Stock Appreciation Rights
granted hereunder to any Participant who is or may be a “covered employee”
(within the meaning of Section 162(m)(3) of the Code) in the tax year
in which such Option or Stock Appreciation Right is expected to be deductible
to the Company qualify for the Section 162(m) Exemption, and all such
Awards shall therefore be considered Qualified Performance-Based Awards and
this Plan shall be interpreted and operated consistent with that intention
(including, without limitation, to require that all such Awards be granted by a
committee composed solely of members who satisfy the requirements for being “outside
directors” for purposes of the Section 162(m) Exemption (“Outside
Directors”)).  When granting any
Award other than an Option or Stock Appreciation Right, the Committee may
designate such Award as a Qualified Performance-Based Award, based upon a
determination that (i) the recipient is or may be a “covered employee”
(within the meaning of Section 162(m)(3) of the Code) with respect to
such Award, and (ii) the Committee wishes such Award to qualify for the Section 162(m) Exemption,
and the terms of any such Award (and of the grant thereof) shall be consistent
with such designation (including, without limitation, that all such Awards be
granted by a committee composed solely of Outside Directors).


 


(b)           Each Qualified
Performance-Based Award (other than an Option or Stock Appreciation Right)
shall be earned, vested and payable (as applicable) only upon the achievement
of one or more Performance Goals, together with the satisfaction of any other
conditions, such as continued employment, as the Committee may determine to be
appropriate, and no Qualified Performance-Based Award may be amended, nor may
the Committee exercise any discretionary authority it may otherwise have under
this Plan with respect to a Qualified Performance-Based Award under this Plan,
in any manner that would cause the Qualified Performance-Based Award to cease
to qualify for the Section 162(m) Exemption; provided, however,
that (i) the Committee may provide, either in connection with the grant of
the applicable Award or by amendment thereafter, that achievement of such
Performance Goals will be waived upon the death or Disability of the
Participant  or under any other
circumstance with respect to which the existence of such possible waiver will
not cause the Award to fail to qualify for the Section 162(m) Exemption
as of the Grant Date, and (ii) the provisions of Section 10 shall
apply notwithstanding this Section 11(b).


 


(c)           The full Board shall
not be permitted to exercise authority granted to the Committee to the extent
that the grant or exercise of such authority would cause an Award designated as
a Qualified Performance-Based Award not to qualify for, or to cease to qualify
for, the Section 162(m) Exemption.


 


(d)           The provisions of
this Plan are intended to ensure that no transaction under the Plan is subject
to (and not exempt from) the short-swing recovery rules of Section 16(b) of
the Exchange Act (“Section 16(b)”). 
Accordingly, the composition of the Committee shall be subject to such
limitations as the Board deems appropriate to permit transactions pursuant to
this Plan to be exempt (pursuant to Rule 16b-3 promulgated under the
Exchange Act) from Section 16(b), and no delegation of authority by the
Committee shall be permitted if such delegation would cause any such
transaction to be subject to (and not exempt from) Section 16(b).


 

















 


SECTION 12.                 Term,
Amendment and Termination.


 


(a)           Effectiveness.  The Plan shall be effective as of the date
(the “Effective Date”) it is adopted by the Board, subject to the approval
by the holders of at least a majority of the voting power represented by
outstanding capital stock of the Company that is entitled generally to vote in
the election of directors.


 


(b)           Termination.  The Plan will terminate on the tenth
anniversary of the Effective Date. 
Awards outstanding as of such date shall not be affected or impaired by
the termination of the Plan.


 


(c)           Amendment of Plan.  The Board may amend, alter, or discontinue
the Plan, but no amendment, alteration or discontinuation shall be made which
would materially impair the rights of the Participant with respect to a
previously granted Award without such Participant’s consent, except such an
amendment made to comply with applicable law (including without limitation Section 409A
of the Code), stock exchange rules or accounting rules.  In addition, no such amendment shall be made
without the approval of the Company’s stockholders to the extent such approval
is required by applicable law or the listing standards of the Applicable
Exchange.


 


(d)           Amendment of
Awards.  Subject to Section 5(d),
the Committee may unilaterally amend the terms of any Award theretofore
granted, prospectively or retroactively, but no such amendment shall cause a
Qualified Performance-Based Award to cease to qualify for the Section 162(m) Exemption
or without the Participant’s consent materially impair the rights of any
Participant with respect to an Award, except such an amendment made to cause
the Plan or Award to comply with applicable law (including without limitation Section 409A
of the Code), stock exchange rules or accounting rules.


 


SECTION 13.                 Unfunded
Status of Plan.


 


It is presently intended that the Plan constitute an “unfunded” plan
for incentive and deferred compensation. 
Solely to the extent permitted under Section 409A of the Code, the
Committee may authorize the creation of trusts or other arrangements to meet
the obligations created under the Plan to deliver Common Stock or make
payments; provided, however, that the existence of such trusts or
other arrangements is consistent with the “unfunded” status of the Plan.  Notwithstanding any other provision of this
Plan to the contrary, with respect to any Award that constitutes a “nonqualified
deferred compensation plan” within the meaning of Section 409A of the
Code, no trust shall be funded with respect to any such Award if such funding
would result in taxable income to the Participant by reason of Section 409A(b) of
the Code and in no event shall any such trust assets at any time be located or
transferred outside of the United States, within the meaning of Section 409A(b) of
the Code.


 


SECTION 14.                 General
Provisions.


 


(a)           Conditions for
Issuance.  The Committee may require
each person purchasing or receiving Shares pursuant to an Award to represent to
and agree with the Company in writing that such person is acquiring the Shares
without a view to the distribution thereof. 
The certificates for such Shares may include any legend which the
Committee deems appropriate to reflect any restrictions on transfer.  Notwithstanding any other provision of the
Plan or


 





















 


agreements made pursuant thereto, the Company shall not be required to
issue or deliver any certificate or certificates for Shares under the Plan
prior to fulfillment of all of the following conditions: (i) listing or
approval for listing upon notice of issuance, of such Shares on the Applicable
Exchange; (ii) any registration or other qualification of such Shares of
the Company under any state or federal law or regulation, or the maintaining in
effect of any such registration or other qualification which the Committee
shall, in its absolute discretion upon the advice of counsel, deem necessary or
advisable; and (iii) obtaining any other consent, approval, or permit from
any state or federal governmental agency which the Committee shall, in its
absolute discretion after receiving the advice of counsel, determine to be
necessary or advisable.


 


(b)           Additional
Compensation Arrangements.  Nothing
contained in the Plan shall prevent the Company or any Subsidiary or Affiliate
from adopting other or additional compensation arrangements for its employees.


 


(c)           No Contract of
Employment.  The Plan shall not
constitute a contract of employment, and adoption of the Plan shall not confer
upon any employee any right to continued employment, nor shall it interfere in
any way with the right of the Company or any Subsidiary or Affiliate to
terminate the employment of any employee at any time.


 


(d)           Required Taxes.  No later than the date as of which an amount
first becomes includible in the gross income of a Participant for federal,
state, local or foreign income or employment or other tax purposes with respect
to any Award under the Plan, such Participant shall pay to the Company, or make
arrangements satisfactory to the Company regarding the payment of, any federal,
state, local or foreign taxes of any kind required by law to be withheld with
respect to such amount.  If determined by
the Company, withholding obligations may be settled with Common Stock,
including Common Stock that is part of the Award that gives rise to the
withholding requirement.  The obligations
of the Company under the Plan shall be conditional on such payment or
arrangements, and the Company and its Affiliates shall, to the extent permitted
by law, have the right to deduct any such taxes from any payment otherwise due
to such Participant.  The Committee may
establish such procedures as it deems appropriate, including making irrevocable
elections, for the settlement of withholding obligations with Common Stock.


 


(e)           Limitation on
Dividend Reinvestment and Dividend Equivalents.  Reinvestment of dividends in additional
Restricted Stock at the time of any dividend payment, and the payment of Shares
with respect to dividends to Participants holding Awards of Restricted Stock
Units, shall only be permissible if sufficient Shares are available under Section 3
for such reinvestment or payment (taking into account then outstanding
Awards).  In the event that sufficient
Shares are not available for such reinvestment or payment, such reinvestment or
payment shall be made in the form of a grant of Restricted Stock Units equal in
number to the Shares that would have been obtained by such payment or
reinvestment, the terms of which Restricted Stock Units shall provide for
settlement in cash and for dividend equivalent reinvestment in further
Restricted Stock Units on the terms contemplated by this Section 14(e).


 

















 


(f)            Designation of
Death Beneficiary.  The Committee
shall establish such procedures as it deems appropriate for a Participant to
designate a beneficiary to whom any amounts payable in the event of such
Participant’s death are to be paid or by whom any rights of such eligible
Individual, after such Participant’s death, may be exercised.


 


(g)           Subsidiary
Employees.  In the case of a grant of
an Award to any employee of a Subsidiary of the Company, the Company may, if
the Committee so directs, issue or transfer the Shares, if any, covered by the
Award to the Subsidiary, for such lawful consideration as the Committee may
specify, upon the condition or understanding that the Subsidiary will transfer
the Shares to the employee in accordance with the terms of the Award specified
by the Committee pursuant to the provisions of the Plan.  All Shares underlying Awards that are
forfeited or canceled should revert to the Company.


 


(h)           Governing Law and
Interpretation.  The Plan and all
Awards made and actions taken thereunder shall be governed by and construed in
accordance with the laws of the State of Delaware, without reference to
principles of conflict of laws.  The
captions of this Plan are not part of the provisions hereof and shall have no
force or effect.


 


(i)            Non-Transferability.  Except as otherwise provided in Section 5(j) or
by the Committee, Awards under the Plan are not transferable except by will or
by laws of descent and distribution.


 


(j)            Foreign
Employees and Foreign Law Considerations. 
The Committee may grant Awards to Eligible Individuals who are foreign
nationals, who are located outside the United States or who are not compensated
from a payroll maintained in the United States, or who are otherwise subject to
(or could cause the Company to be subject to) legal or regulatory provisions of
countries or jurisdictions outside the United States, on such terms and
conditions different from those specified in the Plan as may, in the judgment
of the Committee, be necessary or desirable to foster and promote achievement
of the purposes of the Plan, and, in furtherance of such purposes, the
Committee may make such modifications, amendments, procedures, or subplans as
may be necessary or advisable to comply with such legal or regulatory
provisions.


 


(k)           Section 409A
of the Code.


 


(i)            It is the intention
of the Company that no Award shall be “deferred compensation” subject to Section 409A
of the Code, unless and to the extent that the Committee specifically
determines otherwise as provided in this Section 14(k), and the Plan and
the terms and conditions of all Awards shall be interpreted accordingly.


 


(ii)           The terms and conditions
governing any Awards that the Committee determines will be subject to Section 409A
of the Code, including any rules for elective or mandatory deferral of the
delivery of cash or shares of Common Stock pursuant thereto and any rules regarding
treatment of such Awards in the event of a Change in Control, shall be set
forth in the applicable Award Agreement, and shall comply in all respects with Section 409A
of the Code.


 

















 


(iii)          Notwithstanding any
other provision of the Plan to the contrary, with respect to any Award that
constitutes a “nonqualified deferred compensation plan,” any payments (whether
in cash, Shares or other property) to be made with respect to the Award in
connection with and upon the Participant’s Termination of Employment shall be
delayed if the Participant is a Specified Employee until the earlier of (A) the
first day of the seventh month following the Participant’s Termination of
Employment and (B) the Participant’s death.