Exhibit 10.21


 


AMENDED AND
RESTATED


2007
LONG-TERM INCENTIVE AWARD PLAN


OF


JWH HOLDING
COMPANY, LLC


 


JWH Holding Company, LLC, a Delaware limited liability company, has
adopted the 2007 Long-Term Incentive Award Plan of JWH Holding Company, LLC,
(the “Plan”), effective March 1, 2007, for the benefit of its eligible
employees, consultants and directors.


 


The purposes of the Plan are as follows:


 


(1) To
provide an additional incentive for Employees (as defined below) to further the
growth, development and financial success of the Company by personally
benefiting through the ownership of Company equity and/or rights which
recognize such growth, development and financial success.


 


(2) To
enable the Company to obtain and retain the services of Employees considered
essential to the long-range success of the company by offering them an
opportunity to own equity in the Company and/or rights which will reflect the
growth, development and financial success of the Company.


 


ARTICLE I.


DEFINITIONS


 


Wherever the following terms are used in the Plan, they shall have the
meanings specified below, unless the context clearly indicates otherwise. The
singular pronoun shall include the plural where the context so indicates.


 


1.1. “Administrator”
shall mean the entity that conducts the general administration of the Plan as
provided herein.


 


1.2. “Award” shall mean
an Option that may be awarded or granted under the Plan.


 


1.3. “Award Agreement”
shall mean a written agreement executed by an authorized officer of the Company
and the Holder that shall contain such terms and conditions with respect to an
Award as the Administrator shall determine, consistent with the Plan.


 


1.4. “Award Limit” shall
mean 0.2 LLC Interests, as adjusted pursuant to Section 8.3.


 


1.5. “Board” shall mean
the Board of Directors of Walter.


 


1.6. “Change in Control”
shall mean a change in ownership or control of the Company effected through any
of the following:


 


(a) Any
person or related group of persons (other than Walter or a person that, prior
to such transaction, directly of indirectly controls, is controlled by, or is
under common control with, Walter) directly or indirectly acquires beneficial
ownership of securities, possessing more than 40% of the total combined voting
power of the Company’s outstanding securities, or


 


(b) There
is a change in the composition of the Board over a period of 36 consecutive
months (or less) such that a majority of the Board members (rounded up to the
nearest whole 


 


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number) ceases to be
comprised of individuals who either (i) have been Board members
continuously since the beginning of such period, or (ii) have been elected
or nominated for election as Board members during such period by at least a
majority of the Board members described in clause (i) who were still in
office at the time such election or nomination was approved by the Board; or


 


(c) The
equity holders of the Company approve a merger or consolidation of the Company
with any other corporation (or other entity), other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 66 2/3% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation; provided, however, that a merger or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no person acquires more than 25% of the combined
voting power of the Company’s then outstanding securities shall not constitute
a Change in Control; or


 


(d) The
equity holders of the Company approve a plan of complete liquidation of the
Company of an agreement for the sale, lease or other disposition by the Company
of all or substantially all of the Company’s assets.


 


1.7. “Code” shall mean the Internal Revenue
Code of 1986, as amended.


 


1.8. “Committee” shall
mean the Compensation Committee of the Board, or another committee or
subcommittee of the Board, appointed as provided in Section 7.1.


 


1.9. “Common Equity”
shall mean the LLC Interests of the Company.


 


1.10. “Company” shall
mean JWH Holding Company, LLC, a Delaware limited liability company.


 


1.11. “Director” shall
mean a member of the Board.


 


1.12. “DRO” shall mean a
domestic relations order as defined by the Code or Title I of the Employee
Retirement Income Security Act of 1974, as amended, or the rules thereunder.


 


1.13. “Employee” shall
mean any officer, or other employee (as defined in accordance with Section 3401
(c) of the Code) of the Company, or of any Subsidiary.  An employee
may be a Director.


 


1.14. “Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended.


 


1.15. “Fair Market Value”
shall have the meaning assigned in the applicable Award Agreement. Fair Market
Value of the LLC Interests shall be established by the Administrator acting in
good faith based on a reasonable valuation method that is consistent with the
requirements of Section 409A of the Code and all other applicable rules and
regulations.


 


1.16. “Holder” shall mean
a person who has been granted or awarded an Award.


 


1.17. “Independent Director”
shall mean a member of the Board who is not an Employee of the Company.


 


1.18. “Option” shall mean
an equity option granted under Article IV of the Plan.


 


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119. “Plan” shall mean
the 2007 Long-Term Incentive Award Plan of JWH Holding Company, LLC.


 


1.20. “Rule 16b-3”
shall mean Rule 16b-3 promulgated under the Exchange Act, as such Rule may
be amended from time to time.


 


1.21. “Section 162(m) Participant”
shall mean any Employee whose compensation for a given fiscal year may be
subject to the limit on deductible compensation imposed by Section 162(m) of
the Code.


 


1.22. “Securities Act”
shall mean the Securities Act of 1933, as amended.


 


1.23. “Subsidiary” shall
mean any corporation in an unbroken chain of corporations beginning with the
Company if each of the corporations other than the last corporation in the
unbroken chain then owns equity possessing 50% or more of the total combined
voting power of all classes of equity in one of the other corporations in such
chain.


 


1.24. “Substitute Award”
shall mean an Option granted under this Plan upon the assumption of, or in
substitution for, outstanding equity awards previously granted by a company or
other entity in connection with a corporate transaction, such as a merger, combination,
consolidation or acquisition or property or equity; provided, however, that in no event shall the term “Substitute
Award” be construed to refer to an award made in connection with the
cancellation and repricing of an Option.


 


1.25. “Termination of Employment”
shall mean the time when the employee-employer relationship between a Holder
and the Company or any Subsidiary is terminated for any reason, with or without
cause, including, but not by way of limitation, a termination by resignation,
discharge, death, disability or retirement; but excluding (a) terminations
where there is a simultaneous reemployment or continuing employment of a Holder
by the Company or any Subsidiary, (b) at the discretion of the
Administrator, terminations which result in a temporary severance of the
employee-employer relationship, and (c) at the discretion of the
Administrator, terminations which are followed by the simultaneous
establishment of a consulting relationship by the Company or a Subsidiary with
the former employee. The Administrator, in its discretion, shall determine the
effect of all matters and questions relating to Terminations of Employment,
including, but not by way of limitation, the question of whether a Termination
of Employment resulted from a discharge for good cause, and all questions of
whether a particular leave of absence constitutes a Termination of Employment.


 


1.26. “Walter” shall mean
Walter Industries, Inc.


 


ARTICLE II.


LLC
INTERESTS SUBJECT TO PLAN


 


2.1. LLC Interests Subject to Plan.


 


(a) The
LLC Interests subject to Awards shall be Common Equity. Subject to adjustment
as provided in Section 8.3, the aggregate number of such LLC Interests
which may be issued upon exercise of Awards under the Plan shall not exceed
0.2.


 


(b) The
maximum number of LLC Interests which may be subject to Awards granted under
the Plan to any individual in any calendar year shall not exceed the Award
Limit.


 


2.2 Add-back of Options and Other
Rights; Certain Acquired Entities


 


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(a) If
any Option expires or is canceled without having been fully exercised, or is
exercised in whole or in part for cash as permitted by the Plan, the number of
LLC Interests subject to such Options but as to which such Option was not
exercised prior to its expiration, cancellation or exercise may again be
optioned, granted or awarded hereunder, subject to the limitations of Section 2.1.
Furthermore, any LLC Interests subject to Award which are adjusted pursuant to Section 8.3
and become exercisable with respect to equity of another corporation shall be
considered cancelled and may again be optioned, granted or awarded hereunder
subject to the limitations of Section 2.1. LLC Interests which are
delivered by the Holder or withheld by the company upon the exercise of any
Award under the Plan, in payment of the exercise price thereof or tax
withholding thereon, may again be optioned, granted or awarded hereunder,
subject to the limitations of Section 2.1.


 


(b) Subject
to Sections 3.2(d) and 3.3, any LLC Interests that are issued by the
Company, and any Awards that are granted as a result of the assumption of, or
in substitution for, outstanding awards previously granted by an acquired
entity shall not be counted against the limitations set forth in Section 2.1.


 


ARTICLE
III.


GRANTING OF
AWARDS


 


3.1 Award Agreement. Each
Award shall be evidenced by an Award Agreement.


 


3.2. Provisions Applicable to Section 162(m) Participants.


 


(a) The
Committee, in its discretion, may determine whether an Award is to qualify as
performance-based compensation as described in Section 162(m) (4) (C) of
the Code.


 


(b) Notwithstanding
anything in the Plan to the contrary, the Committee may grant any Award to a Section 162(m) Participant.


 


(c) Furthermore,
notwithstanding any other provision of the Plan, any Award which is granted to
a Section 162(m) Participant and is intended to qualify as
performance-based compensation as described in Section 162(m)(4)(C) of
the Code shall be subject to any additional limitations set forth in Section 162(m) of
the Code (including any amendment to Section 162(m) of the Code) or
any regulations or rulings issued thereunder that are requirements for
qualification as performance-based compensation as described in Section 162(m)(4)(C) of
the Code, and the Plan shall be deemed amended to the extent necessary to
conform to such requirements.


 


3.3. Limitations Applicable to Section 16
Persons. Notwithstanding any other provisions of the Plan, the Plan,
and any Award granted or awarded to any individual who is then subject to Section 16
of the Exchange Act, shall be subject to any additional limitations set forth
in any applicable exemptive rule under Section 16 of the Exchange Act
(including any amendment to Rule 16b-3 of the Exchange Act) that are requirements
for the application of such exemptive rule. To the extent permitted by
applicable law, the Plan and Awards granted or awarded hereunder shall be
deemed amended to the extent necessary to conform to such applicable exemptive
rule.


 


3.4. Consideration. In
consideration of the granting of an Award under the Plan, the Holder shall
agree, in the Award Agreement, to remain in the employ of the Company or any
Subsidiary for a period of at least one year (of such shorter period as may be
fixed in the Award Agreement of by action of the Administrator following grant
of the Award) after the Award is granted.


 


3.5. At-Will Employment.
Nothing in the Plan or in any Award Agreement hereunder shall confer upon any
Holder any right to continue in the employ of the Company or any Subsidiary, or
as a director 


 


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of
the Company, or shall interfere with or restrict in any way the rights of the
Company and any Subsidiary, which are hereby expressly reserved, to discharge
any Holder at any time for any reason whatsoever, with or without cause, except
to the extent expressly provided otherwise in a written employment agreement
between the Holder and the Company or any Subsidiary.


 


3.6 Non-Qualified Deferred Compensation. In
the event that any Award granted under the Plan is determined to constitute
nonqualified deferred compensation within the meaning of Section 409A of
the Code (a “NQDC Award”), in whole or in part, the Award Agreement evidencing
such NQDC Award shall contain such terms and conditions as may be necessary to
meet the applicable provisions of Section 409A of the Code.


 


ARTICLE IV.


GRANTING OF
OPTIONS


 


4.1. Eligibility. Any
Employee selected by the Administrator pursuant to Section 4.4(a)(i) shall
be eligible to be granted an Option.


 


4.2. Granting of Options to
Employees.


 


(a) The
Administrator shall from time to time, in its discretion, and subject to
applicable limitations of the Plan:


 


(i) Select
from among the Employees (including Employees who have previously received
Awards under the Plan) such of them as in its opinion should be granted
Options;


 


(ii) Subject
to the Award Limit, determine the number of LLC Interests to be subject to such
Options granted to the selected Employees;


 


(iii) Subject
to Section 4.3, determine whether such Options are to be Incentive Equity
Options or Non-Qualified Equity Options and determine whether such Options are
to qualify as performance-based compensation as described in Section 162(m)(4)(C) of
the Code; and


 


(iv) Determine
the terms and conditions of such Options, consistent with the Plan; provided, however, that the terms and
conditions of Options intended to qualify as performance-based compensation as
described in Section 162(m)(4)(C) of the Code shall include, but not
be limited to, such terms and conditions as may be necessary to meet the
applicable provisions of Section 162(m) of the Code.


 


(b) Upon
the selection of an Employee to be granted an Option, the Administrator shall
instruct the Secretary of the Company to issue the Option and may impose such
conditions on the grant of the Option as it deems appropriate.


 


ARTICLE V.


TERMS OF
OPTIONS


 


5.1. Option Price; Options Exempt
from Section 409A.


 


(a) The
exercise price of the LLC Interests subject to each Option granted to Employees
shall be set by the Administrator, provided,
however, that in the case of Options intended to 


 


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qualify as performance-based
compensation as described in Section 162(m)(4)(C) of the Code, such
exercise price shall not be less than 100% of the Fair Market Value of the LLC
Interests subject to the Award on the date the Option is granted.


 


(b) In
the case of a Option that is intended not to provide for a deferral of
compensation within the meaning of Section 409A (and is therefore intended
to qualify for the exemption from the requirements of Section 409A of the
Code for non-qualified stock options under Treasury Regulations Section 1.409A-1(b)(5)):
(i) the exercise price of the Option shall not be less than 100% of the
Fair Market Value of the LLC Interests subject to the Option on the date the
Option is granted, (ii) the number of LLC Interests subject to the Option
shall be fixed on the date the Option is granted, and (iii) the Option
shall not include any feature for the deferral of compensation within the
meaning of Treasury Regulations Section 1.409A-1(b)(5) other than the
deferral of recognition of income until the later of the exercise or
disposition of the Option under Treasury Regulation Section 1.83-7, or the
time the LLC Interests acquired pursuant to the exercise of the Option becomes
substantially vested within the meaning of Treasury Regulations Section 1.83-3(b).


 


5.2. Option Term. 
The term of an Option granted to an Employee shall be set by the Administrator
in its discretion.  The Administrator may in its discretion (a) extend
the term of any outstanding Option in connection with any Termination of
Employment, or amend any other term or condition of such Option relating to
such a termination or (b) grant an Option for a term of less than 10 years
and subsequently extend the term of such Option to 10 years without
consideration. Notwithstanding the foregoing, the Administrator shall not
permit the modification or extension (in each case as defined under Section 409A)
of an Option that is exempt from the requirements of Section 409A of the
Code in a manner that would cause such Option to become subject to the
requirements of Section 409A of the Code, or would otherwise violate any applicable
requirement of Section 409A of the Code.


 


5.3. Option Vesting.


 


(a) The
period during which the right to exercise, in whole or in part, an Option
granted to an Employee vests in the Holder shall be set by the Administrator
and the Administrator may determine that an Option may not be exercised in
whole or in part for a specified period after it is granted.  At any time
after grant of an Option, the Administrator may, in its discretion and subject
to whatever terms and conditions it selects, accelerate the period during which
an Option granted to an Employee vests.


 


(b) No
portion of an Option granted to an Employee which is unexercisable at
Termination of Employment shall thereafter become exercisable, except as may be
otherwise provided by the Administrator either in the Award Agreement or by
action of the Administrator following the grant of the Option.


 


5.4. Substitute Awards. 
Notwithstanding the foregoing provisions of this Article V to the
contrary, but subject to compliance with the applicable requirements of Section 409A
of the Code, in the case of an Option that is a Substitute Award, the price per
share of the LLC Interests subject to such Option may be less than the Fair
Market Value per share on the date of grant, provided, that the excess of:


 


(a) The
aggregate Fair Market Value (as of the date such Substitute Award is granted)
of the LLC Interests subject to the Substitute Award; over


 


(b) The aggregate exercise price thereof; does
not exceed the excess of:


 


(c) The
aggregate fair market value (as of the time immediately preceding the
transaction giving rise to the Substitute Award, such fair market value to be
determined by the Administrator) 


 


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of the LLC Interests of the
predecessor entity that were subject to the grant assumed or substituted for by
the Company; over


 


(d) The
aggregate exercise price of such LLC Interests.


 


ARTICLE VI.


EXERCISE OF
OPTIONS


 


6.1. Partial Exercise. An
exercisable Option may be exercised in whole or in part.  However, the
Administrator may require that by the terms of the Option, a partial exercise
be with respect to a minimum number of LLC Interests.


 


6.2. Manner of Exercise. 
All or a portion of an exercisable Option shall be deemed exercised upon
delivery of all of the following to the Secretary of the Company or his or her
office;


 


(a) A
written notice complying with the applicable rules established by the
Administrator stating that the Option, or a portion thereof, is
exercised.  The notice shall be signed by the Holder or other person then
entitled to exercise the Option or such portion of the Option;


 


(b) Such
representations and documents as the Administrator, in its discretion, deems
necessary or advisable to effect compliance with all applicable provisions of
the Securities Act and any other federal or state securities laws or
regulations.   The Administrator may, in its discretion, also take
whatever additional actions it deems appropriate to effect such compliance
including, without limitation, placing legends on share certificates and
issuing stop-transfer notices to agents and registrars;


 


(c) Any
form or forms of identification requested by the Administrator and, in the
event that the Option shall be exercised pursuant to Section 8.1 by any
person or persons other than the Holder, appropriate proof of the right of such
person or persons to exercise the Option; and


 


(d) Full
cash payment to the Secretary of the Company for the LLC Interests with respect
to which the Option, or portion thereof, is exercised.  However, the
Administrator may, in its discretion, (i) allow payment, in whole or in
part, through the delivery of LLC Interests which have been owned by the Holder
for at least six months with a Fair Market Value on the date of delivery equal
to the aggregate exercise price of the Option or exercised portion thereof; (ii) allow
payment, in whole or in part, through the surrender of LLC Interests then
issuable upon exercise of the Option having a Fair Market Value on the date of
Option exercise equal to the aggregate exercise price of the Option or
exercised portion thereof; (iii) allow payment, in whole or in part,
through the delivery of property of any kind which continues good and valuable
consideration, or (iv) allow payment through any combination of the
consideration provided in the foregoing subparagraphs (i), (ii) and (iii).


 


6.3. Conditions to Issuance of LLC
Interests.  The Company shall not be required to issue or
deliver any LLC Interests purchased upon the exercise of any Option or portion
thereof prior to fulfillment of all of the following conditions:


 


(a) The
completion of any registration or other qualification of such LLC Interests
under any state or federal law, or under the rulings or regulations of the
Securities and Exchange Commission or any other governmental regulatory body
which the Administrator shall, in its discretion, deem necessary or advisable;


 


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(b) The
obtaining of any approval or other clearance from any state or federal
governmental agency which the Administrator shall, in its discretion, determine
to be necessary or advisable;


 


(c) The
lapse of such reasonable period of time following the exercise of the Option as
the Administrator may establish from time to time for reasons of administrative
convenience; and


 


(d) The
receipt by the Company of full payment for such LLC Interests, including
payment of any applicable withholding tax, which in the discretion of the
Administrator may be in the form of consideration used by the Holder to pay for
such LLC Interests under Section 6.2(d).


 


6.4. Rights as Equity Holders. 
Holders shall not be, nor have any of the rights or privileges of, equity
holders of the Company in respect of any LLC Interests purchasable upon the
exercise of any part of an Option unless and such LLC Interests have been
issued by the Company to such Holders.


 


6.5. Ownership and Transfer
Restrictions.  The Administrator, in its discretion, may impose
such restrictions on the ownership and transferability of the LLC Interests
purchasable upon the exercise of an Option as it deems appropriate; provided, however, that with respect to any LLC Interests
purchasable on the exercise of an Option intended to be exempt from the
requirements of Section 409A of the Code, the Administrator shall not
impose any restrictions that would cause such LLC Interests to fail to qualify
as “service recipient stock” within the meaning of Section 409A of the Code. 
Any such restrictions shall be set forth in the respective Award Agreement.


 


6.6. Additional Limitations on
Exercise of Options.  Holders may be required to comply with
any timing or other restrictions with respect to the settlement or exercise of
an Option, including a window-period limitation, as may be imposed in the
discretion of the Administrator.


 


ARTICLE
VII.


ADMINISTRATION


 


7.1. Compensation Committee.
The Compensation Committee (or one or more other committees or subcommittees of
the Board assuming the functions of the Committee under the Plan) shall consist
solely of two or more Independent Directors appointed by and holding office at
the pleasure of the Board, each of whom is both a “non-employee director” as
defined by Rule 16b-3 and an “outside director” for purposes of Section 162(m) of
the Code.  Appointment of Committee members shall be effective upon
acceptance of appointment.  Committee members may resign at any time by
delivering written notice to the Board.  Vacancies in the Committee may be
filled by the Board.


 


7.2. Duties and Powers of
Administrator.  It shall be the duty of the Administrator to
conduct the general administration of the Plan in accordance with its
provisions.  The administrator shall have the power to interpret the Plan
and the Award Agreements, and to adopt such rules for the administration,
interpretation and application of the Plan as are consistent therewith, to
interpret, amend or revoke any such rules and to amend any Award Agreement
provided that the rights or obligations of the Holder of the Award that is the
subject of any such Award Agreement are not affected adversely.  Any such
grant or award under the Plan need not be the same with respect to each
Holder.  In its discretion, the Board may at any time and from time to
time exercise any and all rights and duties of the Administrator under the Plan
except with respect to matters which under Rule 16b-3 or Section 162(m) of
the Code, or any regulations or rules issued thereunder, are required to
be determined in the discretion of the Committee.


 


7.3. Majority Rule; Unanimous
Written Consent.  The Committee shall act by a majority of its
members in attendance at a meeting at which a quorum is present or by a
memorandum or other written instrument signed by all members of the Committee.


 


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7.4. Compensation; Professional
Assistance; Good Faith Actions.  Members of the Committee shall
receive such compensation, if any, for their services as members as may be determined
by the Board.  All expenses and liabilities which members of the Committee
incur in connection with the administration of the Plan shall be borne by the
Company.  The Committee may, with the approval of the Board, employ
attorneys, consultants, accountants, appraisers, brokers or other
persons.  The Committee, the Company and the Company’s officers and
Directors shall be entitled to rely upon the advice, opinions or valuations of
any such persons.  All actions shall be taken and all interpretations and
determinations shall be made by the Administrator reasonably and in good
faith.  No member of the Administrator shall be personally liable for any
action, determination or interpretation made in good faith with respect to the
Plan or Awards, and all members of the Administrator shall be fully protected
by the Company in respect of any such action, determination or interpretation.


 


7.5. Delegation of Authority to
Grant Awards.  The Committee may, but need not, delegate from
time to time some or all of its authority to grant Awards under the Plan to a
committee consisting of one or more members of the Committee or of one or more
officers of the Company; provided, however,
that the Committee may not delegate its authority to grant Awards to
individuals (a) who are subject on the date of the grant to the reporting rule under
Section 16(a) of the Exchange Act, (b) who are Section 162(m) Participants,
or (c) who are officers of the Company who are delegated authority by the
Committee hereunder.  Any delegation hereunder shall be subject to the
restrictions and limits that the Committee specifies at the time of such
delegation of authority and may be rescinded at any time by the
Committee.  At all times, any committee appointed under this Section 7.5
shall serve in such capacity at the pleasure of the Committee.


 


7.6 No Warranty as to Tax Treatment.  It is the intention of the Company that
the Awards granted under the Plan will be exempt from, or will comply with the
requirements of, Section 409A of the Code, and the Plan and the terms and
conditions of all Awards shall be interpreted, construed and administered
consistent with such intent. Although the Company intends for the Awards to be
in compliance with Section 409A of the Code or an exemption thereto, the
Company does not warrant that the terms of any Award or the Company’s
administration thereof will be exempt from, or will comply with the
requirements of, Section 409A of the Code. The Company shall not be liable
to any Holder or any other person for any tax, interest, or penalties that the
person may incur as a result of an Award or the Company’s administration
thereof not satisfying any of the requirements of Section 409A of the Code
or an exemption thereto.


 


ARTICLE
VIII.


MISCELLANEOUS
PROVISIONS


 


8.1. Transferability of Awards.


 


(a)           Except as otherwise provided in Section 8.1(b),
and subject to compliance with the applicable requirements of Section 409A
of the Code:


 


(i) No
Award under the Plan may be sold, pledged, assigned or transferred in any
manner other than by will or the laws of descent and distribution or, subject
to the consent of the Administrator, pursuant to a DRO, unless and until such
Award has been exercised, or the LLC Interests underlying such Award have been
issued, and all restrictions applicable to such LLC Interests have lapsed;


 


(ii) No
Award or interest or right therein shall be liable for the debts, contracts or
engagements of the Holder or his or her successors in interest or shall be
subject to disposition by transfer, alienation, anticipation, pledge,
encumbrance, assignment or any other means whether such disposition be
voluntary or involuntary or by operation of law by judgment, levy, attachment,
garnishment or any other legal or equitable proceedings 


 


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(including bankruptcy), and
any attempted disposition is permitted by the preceding sentence; and


 


(iii) During
the lifetime of the Holder, only he or she may exercise an Option (or any
portion thereof) granted to him or her under the Plan, unless it has been
disposed of pursuant to a DRO; after the death of the Holder, any exercisable
portion of an Option may, prior to the time when such portions becomes
unexercisable under the Plan or the applicable Award Agreement, be exercised by
his or her personal representative or by any person empowered to do so under
the deceased Holder’s will or under the then applicable laws of descent and
distributions.


 


(b) Notwithstanding
Section 8.1(a), the Administrator, in its discretion, may determine to
permit a Holder to transfer an Option to any one or more Permitted Transferees
(as defined below), subject to the following terms and conditions: (i) an
Option transferred to a Permitted Transferee shall not be assignable or
transferable by the Permitted Transferee other than by will of the laws of
descent and distribution; (ii) any Option which is transferred to a
Permitted Transferee shall continue to be subject to all the terms and
conditions of the Option as applicable to the original Holder (other than the
ability to further transfer the Option); and (iii) the Holder and the
Permitted Transferee shall execute any and all documents requested by the
Administrator, including, without limitation documents to (A) confirm the
status of the transferee as a Permitted Transferee, (B) satisfy any
requirements for an exemption for the transfer under applicable federal and
state securities laws and (C) evidence the transfer. For purposed of this Section 8.1(b),
“Permitted Transferee” shall mean with respect to a Holder, any child,
stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse,
sibling, niece, nephew, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, or sister-in-law, including adoptive
relationships, and person sharing the Holder’s household (other than a tenant
or employee), a trust in which these persons (or the Holder) control the
management of assets, and any other entity in which these persons (or the
Holder) own more than fifty percent of the voting interests, or any other
transferee specifically approved by the Administrator after taking into account
any state or federal tax or securities laws applicable to transferable Options.


 


8.2. Amendments, Suspension, or
Termination of the Plan. Except as otherwise provided in this Section 8.2,
the Plan may be wholly or partially amended or otherwise modified, suspended or
terminated at any time or from time to time by the Administrator. However,
without approval of the Company’s equity holders, no action of the Administrator
may, except as provided in Section 8.3, increase the limits imposed in Section 8.1
on the maximum number of LLC Interests which may be issued under the Plan. No
amendment, suspension or termination of the Plan shall, without the consent of
the Holder, alter or impair any rights or obligations under any Award
theretofore granted or awarded, unless the Award itself otherwise expressly so
provides. No awards may be granted or awarded during any period of suspension
or after termination of the Plan.


 


Notwithstanding anything to the contrary, the Administrator shall have
the right to amend the Plan and any outstanding Awards or adopt other policies
and procedures applicable to the Plan and Awards (including amendments,
policies and procedures with retroactive effect) without Holder consent as may
be necessary or appropriate to comply with the requirements of Section 409A
of the Code or an exemption thereto.


 


8.3. Changes in Common Equity or
Assets of the Company, Acquisition or Liquidation of the Company and Other
Corporate Events.


 


(a) Subject
to Section 8.3(d), in the event that the Administrator determines that any
dividend or other distribution (whether in the form of cash, Common Equity,
other securities or other property), recapitalization, reclassification, equity
split, reverse equity split, reorganization, 


 


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merger, consolidation,
split-up, spin-off, combination, repurchase, liquidation, dissolution, or sale,
transfer, exchange or other disposition of all or substantially all of the
assets of the Company, or exchange of Common Equity or other securities of the
company, issuance of warrants or other rights to purchase Common Equity or
other securities of the Company, or other similar corporate transaction or
event, in the Administrator’s discretion, affects the Common Equity such that
an adjustment is determined by the Administrator to be appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits intended
to be made available under the Plan or with respect to an Award, then the
Administrator shall, in such manner as it may deem equitable, adjust any or all
of:


 


(i) The
number and kind of LLC Interests (or other securities or property) with respect
to which Awards may be granted or awarded (including, but not limited to,
adjustments of the limitations in Section 8.1 on the maximum number and
kind of LLC Interests which may be issued and adjustments of the Award
limited);


 


(ii) The
number and kind of LLC Interests (or other securities or property) subject to
outstanding Awards; and


 


(iii) The grant or exercise price with respect
to any Award.


 


(b) Subject
to Sections 8.3(b)(vi) and 8.3(d), in the event of any transaction or
event described in Section 8.3(a) or any unusual or nonrecurring
transactions or events affecting the Company, any affiliate of the Company, or
the financial statements of the Company or any affiliate, or of changes in
applicable laws, regulations or accounting principles, the Administrator, in its
discretion, and on such terms and conditions as it deems appropriate, either by
the terms of the Award or by action taken prior to the occurrence of such
transaction or event and either automatically or upon the Holder’s request, is
hereby authorized to take any one or more of the following actions whenever the
Administrator determines that such action is appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made available under the Plan or with respect to any Award under the Plan, to
facilitate such transactions or events or to give effect to such changes in
laws, regulations or principles:


 


(i) To
provide for either the purchase of any such Award for an amount of cash equal
to the amount that could have been attained upon the exercise of such Award or
realization of the Holder’s rights had such Award been currently exercisable or
payable or fully vested or the replacement of such Award with other rights or
property selected by the Administrator in its discretion;


 


(ii) To
provide that the Award cannot vest, be exercised or become payable after such
event;


 


(iii) To
provide that such Award shall be exercisable as to all LLC Interests covered
thereby, notwithstanding anything to the contrary in Section 5.3 or 5.4 or
the provisions of such Award;


 


(iv) To
provide that such Award be assumed by the successor or survivor corporation, or
a parent of subsidiary thereof, or shall be substituted for by similar options,
rights or awards covering the equity of the successor or survivor corporation,
or a parent or subsidiary thereof, with appropriate adjustments as to the
number and kind of LLC Interests and prices; and


 


(v) To
make adjustments in the number and type of LLC Interests (or other securities
or property) subject to outstanding Awards and/or in the terms and conditions 


 


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of (including the grant or
exercise price), and the criteria included in, outstanding options, and options
that may be granted in the future.


 


(vi) Notwithstanding
any other provision of the Plan, but subject to compliance with the applicable
requirements of Section 409A of the Code, in the event of a Change in
Control, each outstanding Award shall, immediately prior to the effective date
of the Change in Control, automatically become fully exercisable for all of the
LLC Interests at the time subject to such rights and may be exercised for any
or all of those LLC Interests as fully-vested LLC Interests.


 


(c) Subject
to Sections 8.3(d), the Administrator may, in its discretion, include such
further provisions and limitations in any Award, agreement or certificate, as
it may deem equitable and in the best interests of the Company.


 


(d) No
adjustment or action described in this Section 8.3 or in any other
provision of the Plan shall be authorized to the extent such adjustment or
action would result in short-swing profits liability under Section 16 or
violate the exemptive conditions of Rule 16b-3 unless the Administrator
determines that the Award is not to comply with such exemptive conditions.
Furthermore, no adjustment or action described in this Section 8.3 or in
any other provision of the Plan shall be authorized to the extent such
adjustment or action would cause any Award that is otherwise exempt from the
requirements of Section 409A of the Code to become subject to Section 409A
of the Code, or would cause any Award that is subject to Section 409A of
the Code to fail to satisfy any requirement of Section 409A of the Code.


 


(e) The
existence of the plan, the Award Agreement and the Awards granted hereunder
shall not affect or restrict in any way the right or power of the Company or
the equity holders of the Company to make or authorize any adjustment,
recapitalization, reorganization or other change in the Company’s capital
structure or its business, any merger or consolidation of the Company, any
issue of equity or of options, warrants or rights to purchase equity or of
bonds, debentures, preferred or prior preference equitys whose rights are superior
to or affect the Common Equity or the rights thereof or which are convertible
into or exchangeable for Common Equity, or the dissolution or liquidation of
the company, or any sale or transfer of all or any part of its assets or
business, or any other corporate act or proceeding, whether of a similar
character or otherwise.


 


8.4. Tax Withholding. 
The company shall be entitled to require payment in cash or deduction from
other compensation payable to each Holder of any sums required by federal,
state or local tax law to be withheld with respect to any Award.


 


8.5. Forfeiture Provisions. 
Pursuant to its general authority to determine the terms and conditions
applicable to Awards under the Plan, the Administrator shall have the right to
provide, in the terms of Awards made under the plan, or to require a Holder to
agree by separate written instrument, that (a)(i) any proceeds, gains or
other economic benefit actually or constructively received by the Holder upon
any receipt or exercise of the Award, or upon the receipt or resale of any
Common Equity underlying the Award, must be paid to the Company, and (ii) the
Award shall terminate and any unexercised portion of the Award (whether or not
vested) shall be forfeited, if (b)(i) a Termination of Employment occurs
prior to a specified date, or within a specified time period following receipt
or exercise of the Award, or (ii) the Holder at any time, or during a
specified time period, engages in any activity in competition with the Company,
or which is inimical, contrary or harmful to the interests of the Company, as
further defined by the Administrator or (iii) the Holder incurs a
Termination of Employment for cause.


 


8.6. Effect of Plan Upon Options and
Compensation Plans.  The adoption of the Plan shall not affect
any other compensation or incentive plans in effect for the Company or any
Subsidiary.  Nothing in 


 


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the
Plan shall be construed to limit the right of the Company (a) to establish
any other forms of incentives or compensation for Employees of the Company or
any Subsidiary, or (b) to grant or assume options or other rights or
awards otherwise than under the Plan in connection with any proper corporate
purpose including but not by way of limitation, the grant or assumption of
options in connection with the acquisition by purchase, lease, merger,
consolidation or otherwise, of the business, equity or assets of any
corporation, partnership, limited liability company, firm or association.


 


8.7. Compliance with Laws. 
The Plan, the granting and vesting of Awards under the Plan and the issuance
and delivery of LLC Interests and the payment of money under the Plan or under
Awards granted or awarded hereunder are subject to compliance with all
applicable federal and state laws, rules and regulations (including but
not limited to state and federal securities law and federal margin
requirements) and to such approvals by any listing, regulatory or governmental
authority as may, in the option of counsel for the Company, be necessary or
advisable in connection therewith.  Any securities delivered under the
Plan shall be subject to such restrictions, and the person acquiring such
securities shall, if requested by the Company, provide such assurances and
representations to the Company as the Company may deem necessary or desirable
to assure compliance with all applicable legal requirements.  To the
extent permitted by applicable law, the Plan and Awards granted or awarded
hereunder shall be deemed amended to the extent necessary to conform to such
laws, rules and regulations.


 


8.8. Titles.  Titles
are provided herein for convenience only and are not to serve as a basis for
interpretation or construction of the Plan.


 


8.9. Governing Law. 
The Plan and any agreements hereunder shall be administered, interpreted and
enforced under the internal laws of the State of Delaware without regard to
conflicts of laws thereof.


 


8.10 Effective Date. The Plan was
originally adopted by the Company effective as of March 1, 2007. The Plan was
amended and restated by the Company effective as of December 17, 2008.


 


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