exv10w28






Exhibit
10.28




COMPOSITE
VERSION reflects all amendments through December 31, 2008






 

 








CAPITALSOURCE INC.




THIRD AMENDED AND RESTATED EQUITY INCENTIVE PLAN




 

 








 









 












TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	1.	 	PURPOSE	 	1
	2.	 	DEFINITIONS	 	1
	3.	 	ADMINISTRATION OF THE PLAN	 	5
	 	 	3.1.	 	Board	 	5
	 	 	3.2.	 	Committee	 	5
	 	 	3.3.	 	Terms of Awards	 	5
	 	 	3.4.	 	Deferral Arrangement	 	6
	 	 	3.5.	 	No Liability	 	6
	4.	 	STOCK SUBJECT TO THE PLAN	 	6
	5.	 	EFFECTIVE DATE, DURATION AND AMENDMENTS	 	7
	 	 	5.1.	 	Effective Date	 	7
	 	 	5.2.	 	Term	 	7
	 	 	5.3.	 	Amendment and Termination of the Plan	 	7
	6.	 	AWARD ELIGIBILITY AND LIMITATIONS	 	7
	 	 	6.1.	 	Service Providers; Outside Directors; Other Persons	 	7
	 	 	6.2.	 	Successive Awards	 	8
	 	 	6.3.	 	Limitation on Shares of Stock Subject to Awards and Cash Awards	 	8
	 	 	6.4.	 	Limitations on Incentive Stock Options	 	8
	 	 	6.5.	 	Stand-Alone, Additional, Tandem, and Substitute Awards	 	8
	7.	 	AWARD AGREEMENT	 	9
	8.	 	TERMS AND CONDITIONS OF OPTIONS	 	9
	 	 	8.1.	 	Option Price	 	9
	 	 	8.2.	 	Vesting	 	9
	 	 	8.3.	 	Term	 	9
	 	 	8.4.	 	Termination of Service	 	9
	 	 	8.5.	 	Limitations on Exercise of Option	 	10
	 	 	8.6.	 	Method of Exercise	 	10
	 	 	8.7.	 	Rights of Holders of Options	 	10
	 	 	8.8.	 	Delivery of Stock Certificates	 	10
	 	 	8.9.	 	No Option Repricing	 	10
	9.	 	TRANSFERABILITY OF OPTIONS	 	10
	 	 	9.1.	 	Transferability of Options	 	10
	 	 	9.2.	 	Family Transfers	 	11
	10.	 	STOCK APPRECIATION RIGHTS	 	11
	 	 	10.1.	 	Right to Payment	 	11
	 	 	10.2.	 	Other Terms	 	11
	 	 	10.3.	 	No SAR Repricing	 	11
	11.	 	RESTRICTED STOCK AND STOCK UNITS	 	12
	 	 	11.1.	 	Grant of Restricted Stock or Stock Units	 	12
	 	 	11.2.	 	Restrictions	 	12
	 	 	11.3.	 	Restricted Stock Certificates	 	12






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	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	 	 	11.4.	 	Rights of Holders of Restricted Stock	 	12
	 	 	11.5.	 	Rights of Holders of Stock Units	 	13
	 
	 	 	 	11.5.1.	 	No Voting and Dividend Rights	 	13
	 
	 	 	 	11.5.2.	 	Creditor’s Rights	 	13
	 	 	11.6.	 	Termination of Service	 	13
	 	 	11.7.	 	Purchase of Restricted Stock	 	13
	 	 	11.8.	 	Delivery of Stock	 	13
	12.	 	UNRESTRICTED STOCK AWARDS	 	13
	13.	 	FORM OF PAYMENT FOR OPTIONS AND RESTRICTED STOCK	 	14
	 	 	13.1.	 	General Rule	 	14
	 	 	13.2.	 	Surrender of Stock	 	14
	 	 	13.3.	 	Cashless Exercise	 	14
	 	 	13.4.	 	Other Forms of Payment	 	14
	14.	 	DIVIDEND EQUIVALENT RIGHTS	 	14
	 	 	14.1.	 	Dividend Equivalent Rights	 	15
	 	 	14.2.	 	Termination of Service	 	15
	15.	 	PERFORMANCE AND ANNUAL INCENTIVE AWARDS	 	15
	 	 	15.1.	 	Performance Conditions	 	15
	 	 	15.2.	 	Performance or Annual Incentive Awards Granted to Designated Covered
Employees	 	15
	 
	 	 	 	15.2.1.	 	Performance Goals Generally	 	15
	 
	 	 	 	15.2.2.	 	Business Criteria	 	16
	 
	 	 	 	15.2.3.	 	Timing For Establishing Performance Goals	 	16
	 
	 	 	 	15.2.4.	 	Performance or Annual Incentive Award Pool	 	16
	 
	 	 	 	15.2.5.	 	Settlement of Performance or Annual Incentive Awards; Other Terms	 	16
	 	 	15.3.	 	Written Determinations	 	16
	 	 	15.4.	 	Status of Section 15.2 Awards Under Code Section 162(m)	 	17
	16.	 	PARACHUTE LIMITATIONS	 	17
	17.	 	REQUIREMENTS OF LAW	 	18
	 	 	17.1.	 	General	 	18
	 	 	17.2.	 	Rule 16b-3	 	18
	18.	 	EFFECT OF CHANGES IN CAPITALIZATION	 	18
	 	 	18.1.	 	Changes in Stock	 	18
	 	 	18.2.	 	Changes in Capitalization; Merger; Liquidation	 	19
	 	 	18.3.	 	Adjustments	 	19
	 	 	18.4.	 	No Limitations on Company	 	20
	19.	 	GENERAL PROVISIONS	 	20
	 	 	19.1.	 	Disclaimer of Rights	 	20
	 	 	19.2.	 	Nonexclusivity of the Plan	 	20
	 	 	19.3.	 	Withholding Taxes	 	20
	 	 	19.4.	 	Captions	 	21
	 	 	19.5.	 	Other Provisions	 	21






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	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	 	 	19.6.	 	Number And Gender	 	21
	 	 	19.7.	 	Severability	 	21
	 	 	19.8.	 	Governing Law	 	21
	 	 	19.9.	 	Code Section 409A	 	21






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CAPITALSOURCE INC.




THIRD AMENDED AND RESTATED EQUITY INCENTIVE PLAN




     CapitalSource Inc., a Delaware corporation (the “Company”), sets forth herein the terms of its
Third Amended and Restated Equity Incentive Plan (as amended, the “Plan”) as of May 1, 2008, as
follows:



1. PURPOSE




     This Plan is intended to (a) provide incentive to eligible persons to stimulate their efforts
toward the continued success of the Company and to operate and manage their businesses in a manner
that will provide for the long-term growth and profitability of the Company; and (b) provide a
means of obtaining, rewarding and retaining key personnel. To this end, the Plan provides for the
grant of stock options, stock appreciation rights, restricted stock, stock units, unrestricted
stock, dividend equivalent rights and cash awards. Any of these awards may, but need not, be made
as performance incentives to reward attainment of annual or long-term performance goals in
accordance with the terms hereof. Stock options granted under the Plan may be non-qualified stock
options or incentive stock options, as provided herein.



2. DEFINITIONS




     For purposes of interpreting the Plan and related documents (including Award Agreements), the
following definitions shall apply:



     2.1 “Affiliate” means, with respect to the Company, any company or other trade or business
that controls, is controlled by or is under common control with the Company within the meaning of
Rule 405 of Regulation C under the Securities Act, including, without limitation, any Subsidiary.



     2.2 “Annual Incentive Award” means an Award made subject to attainment of performance goals
(as described in Section 15) over a performance period of up to and including one year (the fiscal
year, unless otherwise specified by the Committee).



     2.3 “Award” means a grant of an Option, Stock Appreciation Right, Restricted Stock,
Unrestricted Stock, Stock Unit, Dividend Equivalent Rights, or cash award under the Plan.



     2.4 “Award Agreement” means the written agreement between the Company and a Grantee that
evidences and sets out the terms and conditions of an Award.



     2.5 “Benefit Arrangement” shall have the meaning set forth in Section 16 hereof.



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



     2.7 “Cause” unless otherwise provided by the Board or the Committee in the Award Agreement,
has the same meaning as provided in the employment agreement between the Service Provider and the
Company or any Affiliate of the Company, on the date of Termination of Employment, or if no such
definition or employment agreement exists, “Cause” means conduct amounting to (i) fraud or
dishonesty against the Company or any Affiliate of the Company, (ii) Service Provider’s willful
misconduct, repeated refusal to follow the reasonable directions of the Board, any executive
officer or departmental head of the Company or any Affiliate, or knowing violation of law in the
course of



 









 







performance of the duties of Service Provider’s employment with the Company or any
Affiliate of the Company, (iii) repeated absences from work without a reasonable excuse, (iv)
intoxication with alcohol or drugs while on the Company’s or any Affiliate of the Company’s
premises, (v) a conviction or plea of guilty or nolo contendere to a felony or a crime involving
dishonesty, or (vi) a material breach or violation of the terms of any employment or other
agreement to which Service Provider and the Company, or, if applicable, any Affiliate of the
Company are parties.



     2.8 “Code” means the Internal Revenue Code of 1986, as now in effect or as hereafter amended.



     2.9 “Committee” means the Compensation Committee of the Board.



     2.10 “Company” means CapitalSource Inc.



     2.11 “Corporate Transaction” means (i) the dissolution or liquidation of the Company or a
merger, consolidation, or reorganization of the Company with one or more other entities in which
the Company is not the surviving entity, (ii) a sale of substantially all of the assets of the
Company to another person or entity, or (iii) any transaction (including without limitation a
merger or reorganization in which the Company is the surviving entity) which results in any person
or entity (other than persons who are shareholders, directly or indirectly, or Affiliates
immediately prior to the transaction) owning 50% or more of the combined voting power of all
classes of stock of the Company.



     2.12 “Covered Employee” means a Grantee who is a Covered Employee within the meaning of
Section 162(m)(3) of the Code.



     2.13 “Disability” has the same meaning as provided in the long-term disability plan or policy
maintained or, if applicable, most recently maintained, by the Company or, if applicable, any
Affiliate of the Company for the Service Provider. If no long-term disability plan or policy was
ever maintained on behalf of the Service Provider, Disability shall mean that condition described
in Code Section 22(e)(3), as amended from time to time. In the event of a dispute, the
determination of Disability shall be made by the Board and shall be supported by advice of a
physician competent in the area to which such Disability relates.



     2.14 “Dividend Equivalent” means a right, granted to a Grantee under Section 14 hereof, to
receive cash, Stock, other Awards or other property equal in value to dividends paid with respect
to a specified number of shares of Stock, or other periodic payments.



     2.15 “Effective Date” means January 25, 2006.



     2.16 “Exchange Act” means the Securities Exchange Act of 1934, as now in effect or as
hereafter amended.



     2.17 “Fair Market Value” means the value of a share of Stock, determined as follows: if on
the Grant Date or other determination date the Stock is listed on an established national or
regional stock exchange, is admitted to quotation on The Nasdaq Stock Market, Inc. or is publicly
traded on an
established securities market, the Fair Market Value of a share of Stock shall be the closing
price of the Stock on such exchange or in such market (if there is more than one such exchange or
market the Board shall determine the appropriate exchange or market) on the Grant Date or such
other determination date (or if there is no such reported closing price, the Fair Market Value
shall be the mean between the highest



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bid and lowest asked prices or between the high and low sale
prices on such trading day) or, if no sale of Stock is reported for such trading day, on the next
preceding day on which any sale shall have been reported. If the Stock is not listed on such an
exchange, quoted on such system or traded on such a market, Fair Market Value shall be the value of
the Stock as determined by the Board in good faith. Notwithstanding the foregoing, for Options
with a Grant Date of the date of the assumption of the Plan by the Company from CapitalSource
Holdings LLC, Fair Market Value on such Grant Date shall be the price per share at which the
Company sold Stock in the Company’s initial public offering as set forth in the underwriting
agreement among the Company, the selling stockholders named therein and the representatives of the
several underwriters named in a schedule thereto.



     2.18 “Family Member” means a person who is a spouse, former spouse, child, stepchild,
grandchild, parent, stepparent, grandparent, niece, nephew, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother, sister, brother-in-law, or sister-in-law, including adoptive
relationships, of the Grantee, any person sharing the Grantee’s household (other than a tenant or
employee), a trust in which any one or more of these persons have more than fifty percent of the
beneficial interest, a foundation in which any one or more of these persons (or the Grantee)
control the management of assets, and any other entity in which one or more of these persons (or
the Grantee) own more than fifty percent of the voting interests.



     2.19 “Grant Date” means, as determined by the Board or the Committee, the latest to occur of
(i) the date as of which the Board or such Committee approves an Award, (ii) the date on which the
recipient of an Award first becomes eligible to receive an Award under Section 6 hereof, or (iii)
such other date as may be specified by the Board or such Committee.



     2.20 “Grantee” means a person who receives or holds an Award under the Plan.



     2.21 “Incentive Stock Option” means an “incentive stock option” within the meaning of Section
422 of the Code, or the corresponding provision of any subsequently enacted tax statute, as amended
from time to time.



     2.22 “Non-qualified Stock Option” means an Option that is not an Incentive Stock Option.



     2.23 “Option” means an option to purchase one or more shares of Stock pursuant to the Plan.



     2.24 “Option Price” means the purchase price for each share of Stock subject to an Option.



     2.25 “Other Agreement” shall have the meaning set forth in Section 16 hereof.



     2.26 “Outside Director” means a member of the Board who is not an officer or employee of the
Company.



     2.27 “Performance Award” means an Award made subject to the attainment of performance goals
(as described in Section 15) over a performance period of more than one year.



     2.28 “Plan” means this CapitalSource Inc. Third Amended and Restated Equity Incentive Plan, as
amended, modified or restated from time to time.



     2.29 “Purchase Price” means the purchase price for each share of Stock pursuant to a grant of
Restricted Stock.



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     2.30 “Reporting Person” means a person who is required to file reports under Section 16(a) of
the Exchange Act.



     2.31 “Restricted Stock” means shares of Stock, awarded to a Grantee pursuant to Section 11
hereof.



     2.32 “SAR Exercise Price” means the per share exercise price of an SAR granted to a Grantee
under Section 10 hereof.



     2.33 “Securities Act” means the Securities Act of 1933, as now in effect or as hereafter
amended.



     2.34 “Service” means service as an employee, officer, Outside Director or other Service
Provider of the Company or an Affiliate. Unless otherwise stated in the applicable Award
Agreement, a Grantee’s change in position or duties shall not result in interrupted or terminated
Service, so long as such Grantee continues to be an employee, officer, Outside Director or other
Service Provider of the Company or an Affiliate. Subject to the preceding sentence, whether a
termination of Service shall have occurred for purposes of the Plan shall be determined by the
Board, which determination shall be final, binding and conclusive.



     2.35 “Service Provider” means an employee, officer or Outside Director of the Company or an
Affiliate, or an individual who is a consultant or adviser providing services to the Company or an
Affiliate.



     2.36 “Stock” means the common stock, par value $.01 per share, of the Company.



     2.37 “Stock Appreciation Right” or “SAR” means a right granted to a Grantee under Section 10
hereof.



     2.38 “Stock Unit” means a bookkeeping entry representing the equivalent of a share of Stock,
awarded to a Grantee pursuant to Section 11 hereof.



     2.39 “Subsidiary” means any “subsidiary corporation” of the Company within the meaning of
Section 424(f) of the Code.



     2.40 “Termination Date” means the date upon which an Option shall terminate or expire, as set
forth in Section 8.3 hereof.



     2.41 “Ten Percent Stockholder” means an employee who owns more than ten percent (10%) of the
total combined voting power of all classes of outstanding stock of the Company, its parent or any
of
its Subsidiaries. In determining stock ownership, the attribution rules of Section 424(d) of
the Code shall be applied.



     2.42 “Unrestricted Stock” means an Award pursuant to Section 12 hereof.



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3. ADMINISTRATION OF THE PLAN




     3.1. Board



     The Board shall have such powers and authorities related to the administration of the Plan as
are consistent with the Company’s amended and restated certificate of incorporation and amended and
restated by-laws and applicable law. The Board shall have full power and authority to take all
actions and to make all determinations required or provided for under the Plan, any Award or any
Award Agreement, and shall have full power and authority to take all such other actions and make
all such other determinations not inconsistent with the specific terms and provisions of the Plan
that the Board deems to be necessary or appropriate to the administration of the Plan, any Award or
any Award Agreement. All such actions and determinations shall be by the affirmative vote of a
majority of the members of the Board present at a meeting or by unanimous consent of the Board
executed in writing in accordance with the Company’s amended and restated certificate of
incorporation and amended and restated by-laws and applicable law. The interpretation and
construction by the Board of any provision of the Plan, any Award or any Award Agreement shall be
final and conclusive.



     3.2. Committee



     The Board from time to time may delegate to the Committee such powers and authorities related
to the administration and implementation of the Plan, as set forth in Section 3.1 above and other
applicable provisions, as the Board shall determine, consistent with the amended and restated
certificate of incorporation and amended and restated by-laws of the Company and applicable law.
The Board may also appoint one or more separate committees of the Board, each composed of one or
more directors of the Company who need not be Outside Directors, who may administer the Plan with
respect to employees or other Service Providers who are not officers or directors of the Company,
may grant Awards under the Plan to such employees or other Service Providers, and may determine all
terms of such Awards. In addition, the Committee may delegate to one or more executive officers
of the Company the authority to grant Awards to employees or other Service Providers who are not
officers or directors of the Company. Such delegation shall specify the maximum number of shares
of Stock that may be granted by such officer(s), as well as the time period during which the
delegation shall remain in effect. In the event that the Plan, any Award or any Award Agreement
entered into hereunder provides for any action to be taken by or determination to be made by the
Board, such action may be taken or such determination may be made by the Committee if the power and
authority to do so has been delegated to the Committee by the Board as provided for in this
Section. Unless otherwise expressly determined by the Board, any such action or determination by
the Committee shall be final, binding and conclusive. To the extent permitted by law, the
Committee may delegate its authority under the Plan to a member of the Board.



     3.3. Terms of Awards



     Subject to the other terms and conditions of the Plan, the Board shall have full and final
authority to:



     (i) designate Grantees,



     (ii) determine the type or types of Awards to be made to a Grantee,



     (iii) determine the number of shares of Stock to be subject to an Award,



     (iv) establish the terms and conditions of each Award (including, but not limited to, the
exercise price of any Option, the nature and duration of any restriction or condition (or provision
for lapse thereof)



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relating to the vesting, exercise, transfer, or forfeiture of an Award or the
shares of Stock subject thereto, and any terms or conditions that may be necessary to qualify
Options as Incentive Stock Options),



     (v) prescribe the form of each Award Agreement evidencing an Award, and



     (vi) amend, modify, or supplement the terms of any outstanding Award, subject to Section 8.9.
Such authority specifically includes the authority, in order to effectuate the purposes of the Plan
but without amending the Plan, to modify Awards to eligible individuals who are foreign nationals
or are individuals who are employed outside the United States to recognize differences in local
law, tax policy, or custom.



     The Board shall have the right, in its discretion, to make Awards in substitution or exchange
for any other award under another plan of the Company, any Affiliate, or any business entity to be
acquired by the Company or an Affiliate. The Committee may retain the right in an Award Agreement
to cause a forfeiture of the gain realized by a Grantee on account of actions taken by the Grantee
in violation or breach of or in conflict with any non-competition agreement, any agreement
prohibiting solicitation of employees or clients of the Company or any Affiliate thereof or any
confidentiality obligation with respect to the Company or any Affiliate thereof or otherwise in
competition with the Company or any Affiliate thereof, to the extent specified in such Award
Agreement applicable to the Grantee. Furthermore, the Company may annul an Award if the Grantee is
an employee of the Company or an Affiliate thereof and is terminated for Cause as defined in the
applicable Award Agreement or the Plan, as applicable. The grant of any Award shall be contingent
upon the Grantee executing the appropriate Award Agreement.



     3.4. Deferral Arrangement



     The Board may permit or require the deferral of any award payment into a deferred compensation
arrangement, subject to such rules and procedures as it may establish, which may include provisions
for the payment or crediting of interest or dividend equivalents, including converting such credits
into deferred Stock equivalents and restricting deferrals to comply with hardship distribution
rules affecting 401(k) plans. Any such deferrals shall be made in a manner that complies with Code
Section 409A.



     3.5. No Liability



     No member of the Board or of the Committee shall be liable for any action or determination
made in good faith with respect to the Plan or any Award or Award Agreement.



4. STOCK SUBJECT TO THE PLAN





     Subject to adjustment as provided in Section 18 hereof, the number of shares of Stock
available for issuance under the Plan shall be thirty three million (33,000,000). Any shares of
Stock that are subject to Awards of Options shall be counted against this limit as one (1) share
for every one (1) share issued. With respect to Stock Appreciation Rights, when a stock-settled
Stock Appreciation Right grant is exercised, the shares subject to such award will be counted
against the maximum share limitations as one (1) share for every share subject thereto, regardless
of the number of shares actually issued to settle the Stock Appreciation Right upon exercise. Any
shares that are subject to Awards other than Options or Stock Appreciation Rights shall be counted
against this limit as one and one-half (11/2) shares for every one (1) share granted. Stock issued
or to be issued under the Plan shall be authorized but unissued shares or treasury shares. If any
shares covered by an Award are not purchased or are forfeited, if an Award is settled in cash or if
an Award otherwise terminates without delivery of any Stock subject thereto, then the number


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of
shares of Stock counted against the aggregate number of shares available under the Plan with
respect to such Award shall, to the extent of any such forfeiture, cash payment or termination,
again be available for making Awards under the Plan. Any shares of Stock that again become
available for grant pursuant to this Article 4 shall be added back as one (1) share if such shares
were subject to Options or Stock Appreciation Rights granted under the Plan, and as one and
one-half (11/2) shares if such shares were subject to Awards other than Options or Stock Appreciation
Rights granted under the Plan. Shares issued pursuant to Awards granted in substitution for
awards held by employees of a business entity acquired by the Company or an Affiliate shall not
count against the shares available for issuance under the Plan.



5. EFFECTIVE DATE, DURATION AND AMENDMENTS




     5.1. Effective Date



     The amendment and restatement of the Plan shall be effective as of the Effective Date, subject
to approval of the Plan by the Company’s stockholders within one year of the Effective Date. Upon
approval of the Plan by the stockholders of the Company as set forth above, all Awards made under
the Plan on or after the Effective Date shall be fully effective as if the stockholders of the
Company had approved the Plan on the Effective Date. If the stockholders fail to approve the
amendment and restatement of the Plan within one year after the Effective Date, any Awards made
hereunder after the Effective Date shall be null and void and of no effect.



     5.2. Term



     The Plan shall terminate automatically on August 6, 2016 and may be terminated on any earlier
date as provided in Section 5.3.



     5.3. Amendment and Termination of the Plan



     The Board may, at any time and from time to time, amend, suspend, or terminate the Plan as to
any shares of Stock as to which Awards have not been made. An amendment shall be contingent on
approval of the Company’s stockholders to the extent stated by the Board or required by applicable
law. In addition, an amendment will be contingent on approval of the Company’s stockholders if the
amendment would (i) materially increase the benefits accruing to participants under the Plan, (ii)
materially increase the aggregate number of shares of Stock that may be issued under the Plan, or
(iii) materially modify the requirements as to eligibility for participation in the Plan. No
Awards shall be made after termination of
the Plan. No amendment, suspension, or termination of the Plan shall, without the consent of the
Grantee, impair rights or obligations under any Award theretofore awarded under the Plan.



6. AWARD ELIGIBILITY AND LIMITATIONS




     6.1. Service Providers; Outside Directors; Other Persons



     Subject to this Section 6, Awards may be made under the Plan to: (i) any Service Provider to
the Company or of any Affiliate, including any such Service Provider who is an officer or director
of the Company, or of any Affiliate, as the Board shall determine and designate from time to time
and (ii) any other



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individual whose participation in the Plan is determined to be in the best
interests of the Company by the Board.



     6.2. Successive Awards



     An eligible person may receive more than one Award, subject to such restrictions as are
provided herein.



     6.3. Limitation on Shares of Stock Subject to Awards and Cash Awards



     (i) the maximum number of shares of Stock subject to Options or SARs that can be issued under
the Plan to any person eligible for an Award under Section 6 hereof is ten million (10,000,000) in
any three consecutive calendar years;



     (ii) the maximum number of shares that can be issued under the Plan, other than pursuant to an
Option, SAR, or Restricted Stock or Stock Unit grant that is not performance based, to any person
eligible for an Award under Section 6 hereof is one million (1,000,000) in any three consecutive
calendar years;



     (iii) the maximum amount that may be earned as an Annual Incentive Award or other cash Award
in any fiscal year by any one Grantee shall be $5,000,000 and the maximum amount that may be earned
as a Performance Award or other cash Award in respect of a performance period by any one Grantee
shall be $5,000,000.



     The preceding limitations in this Section 6.3 are subject to adjustment as provided in Section
18 hereof.



     6.4. Limitations on Incentive Stock Options



     An Option shall constitute an Incentive Stock Option only (i) if the Grantee of such Option is
an employee of the Company or any Subsidiary of the Company; (ii) to the extent specifically
provided in the related Award Agreement; and (iii) to the extent that the aggregate Fair Market
Value (determined at the time the Option is granted) of the shares of Stock with respect to which
all Incentive Stock Options held by such Grantee become exercisable for the first time during any
calendar year (under the Plan and all other plans of the Grantee’s employer and its Affiliates)
does not exceed $100,000. This limitation shall be applied by taking Options into account in the
order in which they were granted.



     6.5. Stand-Alone, Additional, Tandem, and Substitute Awards



     Awards granted under the Plan may, in the discretion of the Board, be granted either alone or
in addition to, in tandem with, or in substitution or exchange for, any other Award or any award
granted under another plan of the Company, any Affiliate, or any business entity to be acquired by
the Company or an Affiliate, or any other right of a Grantee to receive payment from the Company or
any Affiliate. Such additional, tandem, and substitute or exchange Awards may be granted at any
time. If an Award is granted in substitution or exchange for another Award, the Board shall
require the surrender of such other Award in consideration for the grant of the new Award. In
addition, Awards may be granted in lieu of cash compensation, including in lieu of cash amounts
payable under other plans of the Company or any Affiliate. Notwithstanding Sections 8.1 and 10.1,
the Option Price of an Option or the grant price of an SAR that is a Substitute Award may be less
than 100% of the Fair Market Value of a share of Common Stock on the original date of grant;
provided, that, the Option Price or grant price is determined in accordance with the principles of
Code Section 424 and the regulations thereunder.



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7. AWARD AGREEMENT




     Each Award granted pursuant to the Plan shall be evidenced by an Award Agreement, in such form
or forms as the Board shall from time to time determine. Award Agreements granted from time to
time or at the same time need not contain similar provisions but shall be consistent with the terms
of the Plan. Each Award Agreement evidencing an Award of Options shall specify whether such
Options are intended to be Non-qualified Stock Options or Incentive Stock Options, and in the
absence of such specification such options shall be deemed Non-qualified Stock Options.



8. TERMS AND CONDITIONS OF OPTIONS




     8.1. Option Price



     The Option Price of each Option shall be fixed by the Board and stated in the Award Agreement
evidencing such Option. The Option Price of each Option shall be at least the Fair Market Value on
the Grant Date of a share of Stock; provided, however, that in the event that a
Grantee is a Ten Percent Stockholder, the Option Price of an Option granted to such Grantee that is
intended to be an Incentive Stock Option shall be not less than 110 percent of the Fair Market
Value of a share of Stock on the Grant Date. In no case shall the Option Price of any Option be
less than the par value of a share of Stock.



     8.2. Vesting



     Subject to Sections 8.3 and 18 hereof, each Option granted under the Plan shall become
exercisable at such times and under such conditions as shall be determined by the Board and stated
in the Award Agreement. For purposes of this Section 8.2, fractional numbers of shares of Stock
subject to an Option shall be rounded down to the next nearest whole number.



     8.3. Term



     Each Option granted under the Plan shall terminate, and all rights to purchase shares of Stock
thereunder shall cease, upon the expiration of ten years from the date such Option is granted, or
under such circumstances and on such date prior thereto as is set forth in the Plan or as may be
fixed by the Board and
stated in the Award Agreement relating to such Option (the “Termination Date”); provided,
however, that in the event that the Grantee is a Ten Percent Stockholder, an Option granted
to such Grantee that is intended to be an Incentive Stock Option shall not be exercisable after the
expiration of five years from its Grant Date.



     8.4. Termination of Service



     Each Award Agreement shall set forth the extent to which the Grantee shall have the right to
exercise the Option following termination of the Grantee’s Service. Such provisions shall be
determined in the sole discretion of the Board, need not be uniform among all Options issued
pursuant to the Plan, and may reflect distinctions based on the reasons for termination of Service.
An Option that is intended to be an Incentive Stock Option shall no longer be exercisable as an
Incentive Stock Option ninety (90) days after the termination of the Grantee’s Service.



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     8.5. Limitations on Exercise of Option



     Notwithstanding any other provision of the Plan, in no event may any Option be exercised, in
whole or in part, ten years following the Grant Date, or after the occurrence of an event referred
to in Section 18 hereof which results in termination of the Option.



     8.6. Method of Exercise



     An Option that is exercisable may be exercised by the Grantee’s delivery to the Company of
written notice of exercise on any business day, at the Company’s principal office, on the form
specified by the Company. Such notice shall specify the number of shares of Stock with respect to
which the Option is being exercised and shall be accompanied by payment in full of the Option Price
of the shares for which the Option is being exercised.



     8.7. Rights of Holders of Options



     Unless otherwise stated in the applicable Award Agreement, an individual holding or exercising
an Option shall have none of the rights of a stockholder (for example, the right to receive cash or
dividend payments or distributions attributable to the subject shares of Stock or to direct the
voting of the subject shares of Stock ) until the shares of Stock covered thereby are fully paid
and issued to him. Except as provided in Section 18 hereof, no adjustment shall be made for
dividends, distributions or other rights for which the record date is prior to the date of such
issuance.



     8.8. Delivery of Stock Certificates



     Promptly after the exercise of an Option by a Grantee and the payment in full of the Option
Price, such Grantee shall be entitled to the issuance of a stock certificate or certificates
evidencing his or her ownership of the shares of Stock subject to the Option. Notwithstanding any
other provision of this Plan to the contrary, the Company may elect to satisfy any requirement
under this Plan for the delivery of stock certificates through the use of book-entry.



     8.9. No Option Repricing



     Notwithstanding any other provision in the Plan to the contrary, the Option Price of an Option
may not be amended or modified after the Grant Date, and an Option may not be surrendered in
consideration of or exchanged for cash, other Awards or a new option having an Option Price below
that of the Option which was surrendered or exchanged without approval of the Company’s
stockholders.



9. TRANSFERABILITY OF OPTIONS




     9.1. Transferability of Options



     Except as provided in Section 9.2, during the lifetime of a Grantee, only the Grantee (or, in
the event of legal incapacity or incompetency, the Grantee’s guardian or legal representative) may
exercise an Option. Except as provided in Section 9.2, no Option shall be assignable or
transferable by the Grantee to whom it is granted, other than by will or the laws of descent and
distribution.



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     9.2. Family Transfers



     If authorized in the applicable Award Agreement, a Grantee may transfer, not for value, all or
part of an Option which is not an Incentive Stock Option to any Family Member. For the purpose of
this Section 9.2, a “not for value” transfer is a transfer which is (i) a gift, (ii) a transfer
under a domestic relations order in settlement of marital property rights; or (iii) a transfer to
an entity in which more than fifty percent of the voting interests are owned by Family Members (or
the Grantee) in exchange for an interest in that entity. Following a transfer under this Section
9.2, any such Option shall continue to be subject to the same terms and conditions as were
applicable immediately prior to transfer. Subsequent transfers of transferred Options are
prohibited except to Family Members of the original Grantee in accordance with this Section 9.2 or
by will or the laws of descent and distribution. The events of termination of Service of Section
8.4 hereof shall continue to be applied with respect to the original Grantee, following which the
Option shall be exercisable by the transferee only to the extent, and for the periods specified, in
Section 8.4.



10. STOCK APPRECIATION RIGHTS




     The Board is authorized to grant Stock Appreciation Rights (“SARs”) to Grantees on the
following terms and conditions:



     10.1. Right to Payment



     A SAR shall confer on the Grantee to whom it is granted a right to receive, upon exercise
thereof, the excess of (A) the Fair Market Value of one share of Stock on the date of exercise over
(B) the grant price of the SAR, as determined by the Board. The Award Agreement for an SAR shall
specify the grant price of the SAR, which shall be at least the Fair Market Value of a share of
Stock on the Grant Date.



     10.2. Other Terms



     The Board shall determine at the date of grant or thereafter, the time or times at which and
the circumstances under which a SAR may be exercised in whole or in part (including based on
achievement of performance goals and/or future service requirements), the time or times at which
SARs shall cease to be or become exercisable following termination of Service or upon other
conditions, the method of exercise, method of settlement, form of consideration payable in
settlement which may be cash or Stock, method by or forms in which Stock will be delivered or
deemed to be delivered to Grantees, whether or not a SAR shall be in tandem or in combination with
any other Award, and any other terms and conditions of any SAR, provided, however,
that each SAR granted under the Plan shall terminate, and all rights to acquire shares of Stock
thereunder shall cease, upon the expiration of ten years from the date such SAR is granted.



     10.3. No SAR Repricing



     Notwithstanding any other provision in the Plan to the contrary, the grant price of a SAR may
not be amended or modified after the Grant Date, and a SAR may not be surrendered in consideration
of or exchanged for cash, other Awards or a new SAR having an grant price below that of the SAR
which was surrendered or exchanged without approval of the Company’s stockholders.



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11. RESTRICTED STOCK AND STOCK UNITS




     11.1. Grant of Restricted Stock or Stock Units



     The Board may from time to time grant Restricted Stock or Stock Units to persons eligible to
receive Awards under Section 6 hereof, subject to such restrictions, conditions and other terms, if
any, as the Board may determine.



     11.2. Restrictions



     At the time a grant of Restricted Stock or Stock Units is made, the Board may, in its sole
discretion, establish a period of time (a “restricted period”) applicable to such Restricted Stock
or Stock Units. Each Award of Restricted Stock or Stock Units may be subject to a different
restricted period. The Board may, in its sole discretion, at the time a grant of Restricted Stock
or Stock Units is made, prescribe restrictions in addition to or other than the expiration of the
restricted period, including the satisfaction of corporate or individual performance objectives,
which may be applicable to all or any portion of the Restricted Stock or Stock Units in accordance
with Section 15.1 and 15.2. Neither Restricted Stock nor Stock Units may be sold, transferred,
assigned, pledged or otherwise encumbered or disposed of during the restricted period or prior to
the satisfaction of any other restrictions prescribed by the Board with respect to such Restricted
Stock or Stock Units.



     11.3. Restricted Stock Certificates



     The Company shall issue, in the name of each Grantee to whom Restricted Stock has been
granted, stock certificates representing the total number of shares of Restricted Stock granted to
the Grantee, as soon as reasonably practicable after the Grant Date. The Board may provide in an
Award Agreement that either (i) the Secretary of the Company, or his delegate, shall hold such
certificates for the Grantee’s
benefit until such time as the Restricted Stock is forfeited to the Company or the restrictions
lapse, or (ii) such certificates shall be delivered to the Grantee, provided,
however, that all such certificates, regardless of whether held by the Secretary, his
delegate or delivered to the Grantee, shall bear a legend or legends that comply with the
applicable securities laws and regulations and makes appropriate reference to the restrictions
imposed under the Plan and the Award Agreement.



     11.4. Rights of Holders of Restricted Stock



     Unless the Board otherwise provides in an Award Agreement, holders of Restricted Stock shall
have the right to vote such Stock and the right to receive any dividends declared or paid with
respect to such Stock. The Board may provide that any dividends paid on Restricted Stock must be
reinvested in shares of Stock, which may or may not be subject to the same vesting conditions and
restrictions applicable to such Restricted Stock. All distributions, if any, received by a Grantee
with respect to Restricted Stock as a result of any stock split, stock dividend, combination of
shares, or other similar transaction shall be subject to the restrictions applicable to the
original Grant. Holders of Restricted Stock may not make an election under Code Section 83(b) with
regard to the grant of Restricted Stock, and any holder who attempts to make such an election shall
forfeit the Restricted Stock.



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     11.5. Rights of Holders of Stock Units



          11.5.1. No Voting and Dividend Rights




     Unless the Board otherwise provides in an Award Agreement, holders of Stock Units shall have
no rights as stockholders of the Company. The Board may provide in an Award Agreement evidencing a
grant of Stock Units that the holder of such Stock Units shall be entitled to receive, upon the
Company’s payment of a cash dividend on its outstanding Stock, a cash payment for each Stock Unit
held equal to the per-share dividend paid on the Stock. Such Award Agreement may also provide that
such cash payment will be deemed reinvested in additional Stock Units at a price per unit equal to
the Fair Market Value of a share of Stock on the date that such dividend is paid.



          11.5.2. Creditor’s Rights




     A holder of Stock Units shall have no rights other than those of a general creditor of the
Company. Stock Units represent an unfunded and unsecured obligation of the Company, subject to the
terms and conditions of the applicable Award Agreement.



     11.6. Termination of Service



     Unless the Board otherwise provides in an Award Agreement or in writing after the Award
Agreement is issued, upon the termination of a Grantee’s Service, any Restricted Stock or Stock
Units held by such Grantee that have not vested, or with respect to which all applicable
restrictions and conditions have not lapsed, shall immediately be deemed forfeited. Upon
forfeiture of Restricted Stock or Stock Units, the Grantee shall have no further rights with
respect to such Award, including but not limited to any right to vote Restricted Stock or any right
to receive dividends with respect to shares of Restricted Stock or Stock Units.



     11.7. Purchase of Restricted Stock



     The Grantee shall be required, to the extent required by applicable law, to purchase the
Restricted Stock from the Company at a Purchase Price equal to the greater of (i) the aggregate par
value of the
shares of Stock represented by such Restricted Stock or (ii) the Purchase Price, if any,
specified in the Award Agreement relating to such Restricted Stock. The Purchase Price shall be
payable in a form described in Section 13 or, in the discretion of the Board, in consideration for
past Services rendered to the Company or an Affiliate.



     11.8. Delivery of Stock



     Upon the expiration or termination of any restricted period and the satisfaction of any other
conditions prescribed by the Board, the restrictions applicable to shares of Restricted Stock or
Stock Units settled in Stock shall lapse, and, unless otherwise provided in the Award Agreement, a
stock certificate for such shares shall be delivered, free of all such restrictions, to the Grantee
or the Grantee’s beneficiary or estate, as the case may be. Stock Units may also be settled in
cash upon the determination of the Board or as specified in the applicable Award Agreement.



12. UNRESTRICTED STOCK AWARDS




     The Board may, in its sole discretion, grant to any Grantee under the Plan (or sell at par
value or such other higher purchase price determined by the Board) Unrestricted Stock Awards
pursuant to which Grantees may receive shares of Stock free of any restrictions (“Unrestricted
Stock”). Unrestricted Stock



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Awards may be granted or sold in respect of past services and other
valid consideration, or in lieu of, or in addition to, any cash compensation due to such Grantee.



13. FORM OF PAYMENT FOR OPTIONS AND RESTRICTED STOCK




     13.1. General Rule



     Payment of the Option Price for the shares purchased pursuant to the exercise of an Option or
the Purchase Price for Restricted Stock shall be made in cash or in cash equivalents acceptable to
the Company.



     13.2. Surrender of Stock



     To the extent the Award Agreement so provides, payment of the Option Price for shares
purchased pursuant to the exercise of an Option or the Purchase Price for Restricted Stock may be
made all or in part through the tender to the Company of shares of Stock, which shall be valued,
for purposes of determining the extent to which the Option Price or Purchase Price has been paid
thereby, at their Fair Market Value on the date of exercise. In addition, and also only to the
extent the Award Agreement so provides, payment of the Option Price may be made by requesting that
the Company withhold shares of Stock that would otherwise be deliverable pursuant to the exercise
of the Option, which shares shall be valued at their Fair Market Value on the date of exercise.



     13.3. Cashless Exercise



     With respect to an Option only (and not with respect to Restricted Stock), to the extent the
Award Agreement so provides and subject to compliance with applicable law, payment of the Option
Price for shares purchased pursuant to the exercise of an Option may be made all or in part by
delivery (on a form
acceptable to the Board) of an irrevocable direction to a licensed securities broker
acceptable to the Company to sell shares of Stock and to deliver all or part of the sales proceeds
to the Company in payment of the Option Price and any withholding taxes described in Section 19.3.



     13.4. Other Forms of Payment



     To the extent the Award Agreement so provides, payment of the Option Price for shares
purchased pursuant to exercise of an Option or the Purchase Price for Restricted Stock may be made
in any other form that is consistent with applicable laws, regulations and rules.



14. DIVIDEND EQUIVALENT RIGHTS




     14.1. Dividend Equivalent Rights



     A Dividend Equivalent Right is an Award entitling the recipient to receive credits based on
cash distributions that would have been paid on the shares of Stock specified in the Dividend
Equivalent Right (or other award to which it relates) if such shares had been issued to and held by
the recipient. A Dividend Equivalent Right may be granted hereunder to any Grantee as a component
of another Award or



-14-









 







as a freestanding award. The terms and conditions of Dividend Equivalent
Rights shall be specified in the grant. Dividend Equivalents credited to the holder of a Dividend
Equivalent Right may be paid currently or may be deemed to be reinvested in additional shares of
Stock, which may thereafter accrue additional equivalents. Any such reinvestment shall be at Fair
Market Value on the date of reinvestment. Dividend Equivalent Rights may be settled in cash or
Stock or a combination thereof, in a single installment or installments, all determined in the sole
discretion of the Board. Subject to Code Section 409A, a Dividend Equivalent Right granted as a
component of another Award may provide that such Dividend Equivalent Right shall be settled upon
exercise, settlement, or payment of, or lapse of restrictions on, such other award, and that such
Dividend Equivalent Right shall expire or be forfeited or annulled under the same conditions as
such other award. A Dividend Equivalent Right granted as a component of another Award may also
contain terms and conditions different from such other award.



     14.2. Termination of Service



     Except as may otherwise be provided by the Board either in the Award Agreement or in writing
after the Award Agreement is issued, a Grantee’s rights in all Dividend Equivalent Rights or
interest equivalents shall automatically terminate upon the Grantee’s termination of Service for
any reason.



15. PERFORMANCE AND ANNUAL INCENTIVE AWARDS




     15.1. Performance Conditions



          The right of a Grantee to exercise or receive a grant or settlement of any Award, and the
timing thereof, may be subject to such performance conditions as may be specified by the Board.
The Board may use such business criteria and other measures of performance as it may deem
appropriate in establishing any performance conditions, and may exercise its discretion to reduce
the amounts payable under any Award subject to performance conditions, except as limited under
Sections 15.2 hereof in the
case of a Performance Award or Annual Incentive Award intended to qualify under Code Section
162(m). If and to the extent required under Code Section 162(m), any power or authority relating
to a Performance Award or Annual Incentive Award intended to qualify under Code Section 162(m),
shall be exercised by the Committee and not the Board.




     15.2. Performance or Annual Incentive Awards Granted to Designated Covered Employees



          If and to the extent that the Committee determines that a Performance or Annual Incentive
Award to be granted to a Grantee who is designated by the Committee as likely to be a Covered
Employee should qualify as “performance-based compensation” for purposes of Code Section 162(m),
the grant, exercise and/or settlement of such Performance or Annual Incentive Award shall be
contingent upon achievement of pre-established performance goals and other terms set forth in this
Section 15.2.




          15.2.1. Performance Goals Generally




     The performance goals for such Performance or Annual Incentive Awards shall consist of one or
more business criteria and a targeted level or levels of performance with respect to each of such
criteria, as specified by the Committee consistent with this Section 15.2. Performance goals shall
be objective and shall otherwise meet the requirements of Code Section 162(m) and regulations
thereunder including the



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requirement that the level or levels of performance targeted by the
Committee result in the achievement of performance goals being “substantially uncertain.” The
Committee may determine that such Performance or Annual Incentive Awards shall be granted,
exercised and/or settled upon achievement of any one performance goal or that two or more of the
performance goals must be achieved as a condition to grant, exercise and/or settlement of such
Performance or Annual Incentive Awards. Performance goals may differ for Performance or Annual
Incentive Awards granted to any one Grantee or to different Grantees.



          15.2.2. Business Criteria




     One or more of the following business criteria for the Company, on a consolidated basis,
and/or specified subsidiaries or business units of the Company (except with respect to the total
stockholder return and earnings per share criteria), shall be used exclusively by the Committee in
establishing performance goals for such Performance or Annual Incentive Awards: (1) total
stockholder return; (2) such total stockholder return as compared to total return (on a comparable
basis) of a publicly available index such as, but not limited to, the Standard & Poor’s 500 Stock
Index; (3) net income; (4) pretax earnings; (5) earnings before interest expense and taxes (EBIT),
(6) earnings before interest expense, taxes, depreciation and amortization (EBITDA); (7) pretax
operating earnings after interest expense and before bonuses, service fees, and extraordinary or
special items; (8) operating margin; (9) earnings per share; (10) return on equity; (11) return on
assets, (12) return on capital; (13) return on investment; (14) operating earnings; (15) working
capital; (16) ratio of debt to stockholders’ equity, (17) revenue; (18) book value and (19) funds
from operations (FFO).



          15.2.3. Timing For Establishing Performance Goals




     Performance goals shall be established not later than 90 days after the beginning of any
performance period applicable to such Performance or Annual Incentive Awards, or at such other date
as may be required or permitted for “performance-based compensation” under Code Section 162(m).



          15.2.4. Performance or Annual Incentive Award Pool




     The Committee may establish a Performance or Annual Incentive Award pool, which shall be an
unfunded pool, for purposes of measuring Company performance in connection with Performance or
Annual Incentive Awards.



          15.2.5. Settlement of Performance or Annual Incentive Awards; Other Terms




     Settlement of such Performance or Annual Incentive Awards shall be in cash, Stock, other
Awards or other property, in the discretion of the Committee. The Committee may, in its
discretion, reduce the amount of a settlement otherwise to be made in connection with such
Performance or Annual Incentive Awards. The Committee shall specify the circumstances in which
such Performance or Annual Incentive Awards shall be paid or forfeited in the event of termination
of Service by the Grantee prior to the end of a performance period or settlement of Performance
Awards.



     15.3. Written Determinations



          All determinations by the Committee as to the establishment of performance goals, the amount
of any Performance Award pool or potential individual Performance Awards and as to the achievement
of performance goals relating to Performance Awards, and the amount of any Annual Incentive Award
pool or potential individual Annual Incentive Awards and the amount of final Annual Incentive
Awards, shall be made in writing in the case of any Award intended to qualify under Code




-16-









 







Section
162(m). To the extent required to comply with Code Section 162(m), the Committee may delegate any
responsibility relating to such Performance Awards or Annual Incentive Awards.




     15.4. Status of Section 15.2 Awards Under Code Section 162(m)



          It is the intent of the Company that Performance Awards and Annual Incentive Awards under
Section 15.2 hereof granted to persons who are designated by the Committee as likely to be Covered
Employees within the meaning of Code Section 162(m) and regulations thereunder shall, if so
designated by the Committee, constitute “qualified performance-based compensation” within the
meaning of Code Section 162(m) and regulations thereunder. Accordingly, the terms of Section 15.2,
including the definitions of Covered Employee and other terms used therein, shall be interpreted in
a manner consistent with Code Section 162(m) and regulations thereunder. The foregoing
notwithstanding, because the Committee cannot determine with certainty whether a given Grantee will
be a Covered Employee with respect to a fiscal year that has not yet been completed, the term
Covered Employee as used herein shall mean only a person designated by the Committee, at the time
of grant of Performance Awards or an Annual Incentive Award, as likely to be a Covered Employee
with respect to that fiscal year. If any provision of the Plan or any agreement relating to such
Performance Awards or Annual Incentive Awards does not comply or is inconsistent with the
requirements of Code Section 162(m) or regulations thereunder, such provision shall be construed or
deemed amended to the extent necessary to conform to such requirements.




16. PARACHUTE LIMITATIONS




     Notwithstanding any other provision of this Plan or of any other agreement, contract, or
understanding heretofore or hereafter entered into by a Grantee with the Company or any Affiliate,
except an agreement, contract or understanding between the Grantee and the Company or any Affiliate
that
expressly addresses Section 280G of the Code (an “Other Agreement”), and notwithstanding any formal
or informal plan or other arrangement for the direct or indirect provision of compensation to the
Grantee (including groups or classes of Grantees or beneficiaries of which the Grantee is a
member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit
to or for the Grantee (a “Benefit Arrangement”), if the Grantee is a “disqualified individual,” as
defined in Section 280G(c) of the Code, any Option, Restricted Stock or Stock Unit held by that
Grantee and any right to receive any payment or other benefit under this Plan shall not become
exercisable or vested (i) to the extent that such right to exercise, vesting, payment, or benefit,
taking into account all other rights, payments, or benefits to or for the Grantee under this Plan,
all Other Agreements, and all Benefit Arrangements, would cause any payment or benefit to the
Grantee under this Plan to be considered a “parachute payment” within the meaning of Section
280G(b)(2) of the Code as then in effect (a “Parachute Payment”) and (ii) if, as a result
of receiving a Parachute Payment, the aggregate after-tax amounts received by the Grantee from the
Company under this Plan, all Other Agreements, and all Benefit Arrangements would be less than the
maximum after-tax amount that could be received by the Grantee without causing any such payment or
benefit to be considered a Parachute Payment. In the event that the receipt of any such right to
exercise, vesting, payment, or benefit under this Plan, in conjunction with all other rights,
payments, or benefits to or for the Grantee under any Other Agreement or any Benefit Arrangement
would cause the Grantee to be considered to have received a Parachute Payment under this Plan that
would have the effect of decreasing the after-tax amount received by the Grantee as described in
clause (ii) of the preceding sentence, then the Grantee shall have the right, in the Grantee’s sole
discretion, to designate those rights, payments, or benefits under this Plan, any Other Agreements,
and any Benefit Arrangements that should be reduced or eliminated so as to avoid having the payment
or benefit to the Grantee under this Plan be deemed to be a Parachute Payment.



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17. REQUIREMENTS OF LAW




     17.1. General



     The Company shall not be required to sell or issue any shares of Stock under any Award if the
sale or issuance of such shares would constitute a violation by the Grantee, any other individual
exercising an Option, or the Company of any provision of any law or regulation of any governmental
authority, including without limitation any federal or state securities laws or regulations. If at
any time the Company shall determine, in its discretion, that the listing, registration or
qualification of any shares subject to an Award upon any securities exchange or under any
governmental regulatory body is necessary or desirable as a condition of, or in connection with,
the issuance or purchase of shares hereunder, no shares of Stock may be issued or sold to the
Grantee or any other individual exercising an Option pursuant to such Award unless such listing,
registration, qualification, consent or approval shall have been effected or obtained free of any
conditions not acceptable to the Company, and any delay caused thereby shall in no way affect the
date of termination of the Award. Specifically, in connection with the Securities Act, upon the
exercise of any Option or the delivery of any shares of Stock underlying an Award, unless a
registration statement under such Act is in effect with respect to the shares of Stock covered by
such Award, the Company shall not be required to sell or issue such shares unless the Board has
received evidence satisfactory to it that the Grantee or any other individual exercising an Option
may acquire such shares pursuant to an exemption from registration under the Securities Act. Any
determination in this connection by the Board shall be final, binding, and conclusive. The Company
may, but shall in no event be obligated to, register any securities covered hereby pursuant to the
Securities Act. The Company shall not be obligated to take any affirmative action in order to
cause the exercise of an Option or the issuance of shares of Stock pursuant to
the Plan to comply with any law or regulation of any governmental authority. As to any
jurisdiction that expressly imposes the requirement that an Option shall not be exercisable until
the shares of Stock covered by such Option are registered or are exempt from registration, the
exercise of such Option (under circumstances in which the laws of such jurisdiction apply) shall be
deemed conditioned upon the effectiveness of such registration or the availability of such an
exemption.



     17.2. Rule 16b-3



     During any time when the Company has a class of equity security registered under Section 12 of
the Exchange Act, it is the intent of the Company that Awards pursuant to the Plan and the exercise
of Options granted hereunder will qualify for the exemption provided by Rule 16b-3 under the
Exchange Act. To the extent that any provision of the Plan or action by the Board does not comply
with the requirements of Rule 16b-3, it shall be deemed inoperative to the extent permitted by law
and deemed advisable by the Board, and shall not affect the validity of the Plan. In the event
that Rule 16b-3 is revised or replaced, the Board may exercise its discretion to modify this Plan
in any respect necessary to satisfy the requirements of, or to take advantage of any features of,
the revised exemption or its replacement.



18. EFFECT OF CHANGES IN CAPITALIZATION




     18.1. Changes in Stock



     If the number of outstanding shares of Stock is increased or decreased or the shares of Stock
are changed into or exchanged for a different number or kind of shares or other securities of the
Company on



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account of any recapitalization, reclassification, stock split, reverse split,
combination of shares, exchange of shares, stock dividend or other distribution payable in capital
stock, or other increase or decrease in such shares effected without receipt of consideration by
the Company occurring after the Effective Date, the number and kinds of shares for which grants of
Awards may be made under the Plan shall be adjusted proportionately and accordingly by the Company.
In addition, the number and kind of shares for which Awards are outstanding shall be adjusted
proportionately and accordingly so that the proportionate interest of the Grantee immediately
following such event shall, to the extent practicable, be the same as immediately before such
event. Any such adjustment in outstanding Options or SARs shall not change the aggregate Option
Price or SAR Exercise Price payable with respect to shares that are subject to the unexercised
portion of an outstanding Option or SAR, as applicable, but shall include a corresponding
proportionate adjustment in the Option Price or SAR Exercise Price per share. The conversion of
any convertible securities of the Company shall not be treated as an increase in shares effected
without receipt of consideration. Notwithstanding the foregoing, in the event of any distribution
to the Company’s stockholders of securities of any other entity or other assets (other than
dividends payable in cash or stock of the Company) without receipt of consideration by the Company,
the Company shall in such manner as the Company deems appropriate, adjust (i) the number and kind
of shares subject to outstanding Awards and/or (ii) the exercise price of outstanding Options and
SARs to reflect such distribution.



     18.2. Changes in Capitalization; Merger; Liquidation



     (a) In the event of a merger, consolidation, reorganization or other Corporate Transaction of
the Company, the Board may make such adjustments with respect to Awards and take such other action
as it deems necessary or appropriate to reflect such merger, consolidation, reorganization or other
Corporate Transaction, including, without limitation, the substitution of new awards, the
termination or the
adjustment of outstanding awards, the acceleration of Awards or the removal of restrictions on
outstanding Awards, all as may be provided in the applicable Award Agreement or, if not expressly
addressed therein, as the Board subsequently may determine in the event of any such transaction.



     (b) In addition to or instead of any adjustments authorized in Section 18.1(a) above, in the
event of a merger, consolidation, reorganization or other Corporate Transaction of the Company, the
Board may elect, in its sole discretion, to cancel or repurchase any outstanding Awards issued
under the Plan and pay or deliver, or cause to be paid or delivered, to the holder thereof an
amount in cash or securities having a value (as determined by the Board acting in good faith), in
the case of an Award consisting of Restricted Stock or Stock Units, equal to the formula or fixed
price per share paid to holders of the Stock in connection with such transaction and, in the case
of Options, equal to the product of the number of shares of Stock subject to the Option (the
“Option Stock”) multiplied by the amount, if any, by which (I) the formula or fixed price per share
of Stock paid to holders of Stock pursuant to such transaction exceeds (II) the Option Price
applicable to such Option. Notwithstanding the foregoing, Stock Units shall be cancelled on a
Corporate Transaction only to the extent such Corporate Transaction constitutes a “change in
control event” within the meaning of Code Section 409A.



     18.3. Adjustments



     Adjustments under this Section 18 related to shares of Stock or securities of the Company
shall be made by the Board, whose determination in that respect shall be final, binding and
conclusive. No fractional shares or other securities shall be issued pursuant to any such
adjustment, and any fractions resulting from any such adjustment shall be eliminated in each case
by rounding downward to the nearest whole share. The Board may provide in the Award Agreements at
the time of grant, or any time thereafter with the consent of the Grantee, for different provisions
to apply to an Award in place of those described in Section 18.



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     18.4. No Limitations on Company



     The existence of this Plan and the Awards granted pursuant to this Plan shall not affect in
any way the right or power of the Company to make or authorize any adjustment, reclassification,
reorganization or other change in its capital or business structure, any merger or consolidation of
the Company, any issue of debt or equity securities having preferences or priorities as to the
Stock or the rights thereof, the dissolution or liquidation of the Company, any sale or transfer of
all or any part of its business or assets, or any other act or proceeding.



19. GENERAL PROVISIONS




     19.1. Disclaimer of Rights



     No provision in the Plan or in any Award or Award Agreement shall be construed to confer upon
any individual the right to remain in the employ or service of the Company or any Affiliate, or to
interfere in any way with any contractual or other right or authority of the Company either to
increase or decrease the compensation or other payments to any individual at any time, or to
terminate any employment or other relationship between any individual and the Company. In
addition, notwithstanding anything contained in the Plan to the contrary, unless otherwise stated
in the applicable Award Agreement, no Award granted
under the Plan shall be affected by any change of duties or position of the Grantee, so long as
such Grantee continues to be a director, officer, consultant or employee of the Company or an
Affiliate. The obligation of the Company to pay any benefits pursuant to this Plan shall be
interpreted as a contractual obligation to pay only those amounts described herein, in the manner
and under the conditions prescribed herein. The Plan shall in no way be interpreted to require the
Company to transfer any amounts to a third party trustee or otherwise hold any amounts in trust or
escrow for payment to any Grantee or beneficiary under the terms of the Plan.



     19.2. Nonexclusivity of the Plan



     Neither the adoption of the Plan nor the submission of the Plan to the stockholders of the
Company for approval shall be construed as creating any limitations upon the right and authority of
the Board to adopt such other incentive compensation arrangements (which arrangements may be
applicable either generally to a class or classes of individuals or specifically to a particular
individual or particular individuals) as the Board in its discretion determines desirable,
including, without limitation, the granting of stock options otherwise than under the Plan.



     19.3. Withholding Taxes



     The Company or an Affiliate, as the case may be, shall have the right to deduct or withhold
from payments of any kind otherwise due to a Grantee (including by withholding shares of Stock
otherwise deliverable under an Award) any Federal, state, or local taxes of any kind required by
law to be withheld with respect to the vesting of or other lapse of restrictions applicable to an
Award or upon the issuance of any shares of Stock upon the exercise of an Option or pursuant to an
Award. At the time of such vesting, lapse, or exercise, the Grantee shall pay to the Company or
the Affiliate, as the case may be, any amount that the Company or the Affiliate may reasonably
determine to be necessary to satisfy such withholding obligation. Subject to the prior approval of
the Company or the Affiliate, which may be withheld by the Company or the Affiliate, as the case
may be, in its sole discretion, the Grantee may elect to satisfy such obligations, in whole or in
part, (i) by causing the Company or the Affiliate to withhold shares of Stock otherwise issuable to
the Grantee or (ii) by delivering to the Company or the Affiliate shares of Stock



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already owned by
the Grantee. The shares of Stock so delivered or withheld shall have an aggregate Fair Market
Value equal to such withholding obligations. The Fair Market Value of the shares of Stock used to
satisfy such withholding obligation shall be determined by the Company or the Affiliate as of the
date that the amount of tax to be withheld is to be determined. A Grantee who has made an election
pursuant to this Section 19.3 may satisfy his or her withholding obligation only with shares of
Stock that are not subject to any repurchase, forfeiture, unfulfilled vesting, or other similar
requirements.



     19.4. Captions



     The use of captions in this Plan or any Award Agreement is for the convenience of reference
only and shall not affect the meaning of any provision of the Plan or such Award Agreement.



     19.5. Other Provisions



     Each Award granted under the Plan may contain such other terms and conditions not inconsistent
with the Plan as may be determined by the Board, in its sole discretion.



     19.6. Number And Gender



     With respect to words used in this Plan, the singular form shall include the plural form, the
masculine gender shall include the feminine gender, etc., as the context requires.



     19.7. Severability



     If any provision of the Plan or any Award Agreement shall be determined to be illegal or
unenforceable by any court of law in any jurisdiction, the remaining provisions hereof and thereof
shall be severable and enforceable in accordance with their terms, and all provisions shall remain
enforceable in any other jurisdiction.



     19.8. Governing Law



     The validity and construction of this Plan and the instruments evidencing the Award hereunder
shall be governed by the laws of the State of Delaware, other than any conflicts or choice of law
rule or principle that might otherwise refer construction or interpretation of this Plan and the
instruments evidencing the Awards granted hereunder to the substantive laws of any other
jurisdiction.



     19.9. Code Section 409A



     The Board or the Committee, as applicable, intends to comply with Section 409A of the Code, or
an exemption to Section 409A, with regard to Awards hereunder that constitute nonqualified deferred
compensation within the meaning of Section 409A. To the extent that the Board or the Committee, as
applicable, determines that a Grantee would otherwise be subject to the additional 20% tax imposed
on certain nonqualified deferred compensation plans pursuant to Section 409A as a result of any
provision of any Award granted under this Plan, such provision shall be deemed amended to the
minimum extent necessary to avoid application of such additional tax. The nature of any such
amendment shall be determined by the Board or the Committee, as applicable.




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