2005 Cash Incentive Compensation Plan





Exhibit 10.7




MARVEL ENTERTAINMENT, INC.




2005 Cash Incentive Compensation Plan




As Amended and Restated on December 31, 2008




1. General




This 2005 Cash Incentive Compensation Plan (the “Plan”) of Marvel Entertainment, Inc. (the
“Company”) authorizes the grant of annual incentive and long-term incentive awards to executive
officers and sets forth certain terms and conditions of such Awards. The purpose of the Plan is to
help the Company attract and retain executive officers of outstanding ability and to motivate such
persons to exert their greatest efforts on behalf of the Company and its subsidiaries by providing
incentives directly linked to the measures of the financial success and performance of the Company
and its businesses. The Plan is intended to permit the Committee to qualify certain Awards as
“performance-based” compensation under Code Section 162(m).



2. Definitions




In addition to the terms defined in Section 1 and elsewhere in the Plan, the following are
defined terms under this Plan:



(a) “Annual Incentive Award” means an Award earned based on performance in a Performance
Period of one fiscal year or a portion thereof.



(b) “Award” means the amount of a Participant’s Award Opportunity in respect of a Performance
Period determined by the Committee to have been earned, and the Participant’s rights to current or
future payments in settlement thereof.



(c) “Award Opportunity” means the Participant’s opportunity to earn specified amounts based on
performance during a Performance Period. An Award Opportunity constitutes a conditional right to
receive settlement of an Award.



(d) “Cause” means “cause” as defined in an employment agreement between the Company and the
Participant in effect at the time of Termination of Employment. If, however, there is no such
employment agreement or no definition of “cause” therein, Cause means an individual’s (i)
intentional failure to perform reasonably assigned duties, (ii) dishonesty or willful misconduct in
the performance of duties, (iii) involvement in a transaction in connection with the performance of
duties to the Company or any of its Subsidiaries thereof which transaction is adverse to the
interests of the Company or any of its Subsidiaries and which is engaged in for personal profit,
(iv) knowing or grossly negligent misconduct which results in the Company being required to prepare
an accounting restatement due to the material noncompliance of the Company with any financial
reporting requirement under the securities laws, (v) willful violation of any law, rule or
regulation in connection with the performance of duties (other than traffic violations or similar
offenses), or (vi) the commission of an act of fraud or intentional misappropriation or conversion
of assets or opportunities of the Company or any Subsidiary; provided, however, that the Committee
may vary the definition of “Cause” in any agreement or document relating to an Award.


 


 









 





(e) “Code” means the Internal Revenue Code of 1986, as amended from time to time. References
to any provision of the Code include and successor provisions thereto and regulations thereunder.



(f) “Committee” means the Compensation Committee of the Board of Directors, or such other
Board committee as the Board may designate to administer the Plan.



(g) “Covered Employee” means a person designated by the Committee as likely, with respect to a
given fiscal year of the Company, to be the Chief Executive Officer or one of the four other most
highly compensated executive officers serving on the last day of such fiscal year. This
designation generally is required at the time an Award Opportunity is authorized. The Committee
may designate more than five persons as Covered Employees with respect to a given year.



(h) “Participant” means an employee participating in this Plan.



(i) “Performance Goal” means the Company or individual performance objective or accomplishment
required as a condition to the earning of an Award Opportunity.



(j) “Performance Period” means the period, specified by the Committee, over which an Award
Opportunity may be earned.



(k) “Retirement” means Termination of Employment deemed a retirement by the Committee.



(l) “Termination of Employment” means the termination of a Participant’s employment by the
Company or a subsidiary immediately after which the Participant is not employed by the Company or
any subsidiary; provided, however, that in the case of an Award that constitutes a deferral of
compensation under Code Section 409A, if the timing of payment relates to the termination of
employment, then termination of employment means a “separation from service” as defined in Treasury
Regulation § 1.409A-1(h).



3. Administration




(a) Administration by the Committee. The Plan will be administered by the Committee, provided
that the Committee may condition any of its actions on approval or ratification by the Board of
Directors or the independent directors of the Board. The Committee shall have full and final
authority to take all actions hereunder, subject to and consistent with the provisions of the Plan.
This authority includes authority to correct any defect or supply any omission or reconcile any
inconsistency in the Plan and to construe and interpret the Plan and any plan rules and
regulations, authorization of an Award Opportunity, Award, Award agreement, or other document
hereunder; and to make all other decisions and determinations as may be required under the terms of
the Plan or as the Committee may deem necessary or advisable for the administration of the Plan.



(b) Manner of Exercise of Authority. Any action by the Committee or the Board with respect to
the Plan shall be final, conclusive, and binding on all persons, including the Company,
subsidiaries or affiliates, Participants, any person claiming any rights under the Plan from or
through any Participant, and stockholders. The express grant of any specific power to the
Committee, and the taking of any action by the Committee, shall not be construed as limiting any
power or authority of the Committee. A memorandum signed by all members of the Committee shall
constitute the act of the Committee without the necessity, in such event, to hold a meeting.
At any time that a member of the Committee is not an “outside director” as defined under Code
Section 162(m), any action of the Committee relating to an Award intended by the Committee to
qualify as “performance-based compensation” within the meaning of Section 162(m) may be taken by a
subcommittee, designated by the Committee or the Board, composed solely of two or more “outside
directors.” Such action shall be the action of the Committee for purposes of the Plan. The
foregoing notwithstanding, no action of the Committee shall be void or deemed beyond the authority
of the Committee solely because, at the time such action was taken, one or more members of the
Committee failed to qualify as an “outside director.” The Committee may delegate to specified
officers or employees of the Company authority to perform administrative functions under the Plan,
to the extent permitted by law.


 


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(c) Limitation of Liability. Each member of the Committee and the Board of Directors, and any
person to whom authority or duties are delegated hereunder, shall be entitled to, in good faith,
rely or act upon any report or other information furnished to him or her by any officer or other
employee of the Company or any subsidiary or affiliate, the Company’s independent certified public
accountants, or any executive compensation consultant, legal counsel, or other professional
retained by the Company to assist in the administration of the Plan. No member of the Board or
Committee, nor any person to whom authority or duties are delegated hereunder, shall be personally
liable for any action, determination, or interpretation taken or made in good faith with respect to
the Plan, and any such person shall, to the extent permitted by law, be fully indemnified and
protected by the Company with respect to any such action, determination, or interpretation.



4. Eligibility




Employees of the Company or any subsidiary who are or may become executive officers of the
Company may be selected by the Committee to participate in this Plan.



5. Per-Person Award Limitation




Award Opportunities granted to any one eligible employee shall be limited such that the amount
potentially earnable of performance in any one calendar year shall not exceed the Participant’s
Annual Limit. For this purpose, the Annual Limit shall equal $10 million plus the amount of the
Participant’s unused Annual Limit as of the close of the previous fiscal year. For this purpose,
(i) “earning” means satisfying performance conditions so that an Award Opportunity becomes payable,
without regard to whether it is to be paid currently or on a deferred basis or continues to be
subject to any service requirement or other non-performance condition, and (ii) a Participant’s
Annual Limit is used to the extent an amount may be potentially earned or paid under an Award,
regardless of whether such amount is in fact earned or paid.



6. Designation and Earning of Award Opportunities




(a) Designation of Award Opportunities and Performance Goals. The Committee shall select
employees to participate in the Plan for a Performance Period and designate, for each such
Participant, the Award Opportunity such Participant may earn for such Performance Period, the
nature of the Performance Goal the achievement of which will result in the earning of the Award
Opportunity, and the levels of earning of the Award Opportunity corresponding to the levels of
achievement of the performance goal. The following terms will apply to Award Opportunities:


 


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(i) Specification of Amount Potentially Earnable. Unless otherwise determined
by the Committee, the Award Opportunity earnable by each Participant shall range from 0% to
a specified maximum percentage of a specified target Award Opportunity. The Committee
shall specify a table, grid, formula, or other information that sets forth the amount of a
Participant’s Award Opportunity that will be earned corresponding to the level of
achievement of a specified Performance Goal.




(ii) Denomination of Award Opportunity; Payment of Award. Award Opportunities
will be denominated in cash and Awards will be payable in cash, except that the Committee
may denominate an Award Opportunity in shares of Common Stock and/or to settle an Award
Opportunity in shares of Common Stock if and to the extent that shares of Common Stock are
authorized for use in incentive awards and available under the Company’s 1998 Stock
Incentive Plan, 2005 Stock Incentive Plan or any other equity compensation plan of the
Company.



(b) Limitations on Award Opportunities and Awards for Covered Employees. If the Committee
determines that an Award Opportunity to be granted to an eligible person who is designated a
Covered Employee by the Committee should qualify as “performance-based compensation” for purposes
of Code Section 162(m), the following provisions will apply:




(i) Performance Goal. The Performance Goal for such Award Opportunities 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 6(b). The performance goal shall be objective and shall otherwise meet the
requirements of Code Section 162(m) and regulations thereunder (including Treasury
Regulation 1.162-27 and successor regulations thereto), including the 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 the
Award Opportunity will be earned, or tentatively earned, based upon achievement of any one
measure of performance or that two or more measures of performance must be achieved. The
Committee may establish a “gate-keeper” Performance Goal that conforms to this Section 6(b)
while specifying or considering other types of performance (which need not meet the
requirements of this Section 6(b)) as a basis for reducing the amount of the Award deemed
earned upon achievement of the gate-keeper Performance Goal. Performance Goals may differ
for Award Opportunities granted to any one Participant or to different Participants.




(ii) Business Criteria. One or more of the following business criteria for
the Company, on a consolidated basis, and/or for specified subsidiaries or affiliates,
divisions or other business units of the Company shall be used by the Committee in
establishing the Performance Goal for such Award Opportunities: (1) net sales, revenues or
royalties; (2) gross profit or pre-tax profit; (3) operating income, earnings before or
after taxes, earnings before or after interest, depreciation, amortization, or
extraordinary or special items; (4) net income or net income per common share (basic or
fully diluted); (5) return measures, including, but not limited to, return on assets (gross
or net), return on investment, return on capital, or return on equity; (6) cash flow, free
cash flow, cash flow return on investment (discounted or otherwise), net cash provided by
operations, or cash flow in excess of cost of capital; (7) economic value created or
economic profit; (8) operating margin or profit margin; (9) stockholder value creation
measures, including but not limited to stock price or total stockholder return; (10)
royalties or revenues from specific assets, projects, fees or payments received or lines of
business; (11) targets


 


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relating to expense or operating expense, working capital targets, or operating efficiency;
and (12) strategic business criteria, consisting of one or more objectives based on meeting
specified goals relating to market penetration, new projects, new products, new ventures,
geographic business expansion, cost targets, customer satisfaction, employee satisfaction,
human resources management, supervision of litigation and information technology, and
acquisitions or divestitures of subsidiaries, affiliates or joint ventures. The targeted
level or levels of performance with respect to such business criteria may be established at
such levels and in such terms as the Committee may determine, in its discretion, including
in absolute terms, as a goal relative to performance in prior periods, or as a goal
compared to the performance of one or more comparable companies or an index covering
multiple companies.




(iii) Performance Period and Timing for Establishing Performance Goals. The
Committee will specify the Performance Period over which achievement of the Performance
Goal in respect of such Award Opportunities shall be measured. A Performance Goal shall be
established by the date which is the earlier of (A) 90 days after the beginning of the
applicable Performance Period or (B) the time 25% of such Performance Period has elapsed.




(iv) Annual Incentive Awards Granted to Covered Employees. The Committee may
grant an Annual Incentive Award, intended to qualify as “performance-based compensation” for
purposes of Code Section 162(m), to an eligible person who is designated a Covered Employee
for a given fiscal year.




(v) Performance Award Pool. The Committee may establish a performance Award
pool, which shall be an unfunded pool, for purposes of measuring performance of the Company
in connection with Award Opportunities. The amount of such performance Award pool shall be
based upon the achievement of a Performance Goal or Goals based on one or more of the
business criteria set forth in Section 6(b)(ii) during the given Performance Period, as
specified by the Committee. The Committee may specify the amount of the performance Award
pool as a percentage of any of such business criteria, a percentage thereof in excess of a
threshold amount, or as another amount which need not bear a strictly mathematical
relationship to such business criteria. The Committee may specify Award Opportunities for
individual Participants, in accordance with Section 6(a) and other provisions of this Section
6(b), as a percentage or other portion or amount of the performance Award pool.




(vi) Changes to Amounts Payable Under Awards During Deferral Periods. Any
settlement or other event that would change the form of payment from that originally
specified shall be implemented in a manner such that the Award does not, solely for that
reason, fail to qualify as “performance-based compensation” for purposes of Code Section
162(m).



(c) Additional Participants and Award Opportunity Designations During a Performance Period.
At any time during a Performance Period the Committee may select a new employee or a newly promoted
employee to participate in the Plan for that Performance Period and/or designate, for any such
Participant, an Award Opportunity (or additional Award Opportunity) amount for such Performance
Period. In determining the amount of the Award Opportunity for such Participant under this Section
6(c), the Committee may take into account the portion of the Performance Period already elapsed,
the performance achieved during such elapsed portion of the Performance Period, and such other
considerations as the Committee may deem relevant.


 


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(d) Determination of Award. The Committee shall determine the extent to which the Performance
Goal for the earning of Award Opportunities was achieved during such Performance Period and the
resulting Award to the Participant for such Performance Period. The Committee may adjust upward or
downward the amount of an Award, in its sole discretion, in light of such considerations as the
Committee may deem relevant, except that (i) no such discretionary upward adjustment of an Award
authorized under Section 6(b) is permitted, and (ii) any discretionary adjustment is subject to
Section 5 and other applicable limitations of the Plan. Unless otherwise determined by the
Committee, the Award shall be deemed earned and vested at the time the Committee makes the
determination pursuant to this Section 6(d). In all cases, the Committee’s determination under
this Section 6(d) shall be made, and resulting Awards paid, between January 1 and March 15
following the end of a Performance Period that ends on the last day of the Company’s fiscal year,
and shall be made within 75 days following the end of any Performance Period ending at a date other
than the last day of the Company’s fiscal year, unless the Committee, at the time the performance
goals were set, specified a different date for payment (compliant with Code Section 409A).



(e) Written Determinations. Determinations by the Committee as to the establishment of
Performance Goals, the amount potentially payable in respect of Award Opportunities, the level of
actual achievement of the Performance Goals and the amount of any final Award earned shall be
recorded in writing in the case of Performance Awards intended to qualify under Section 162(m).
Specifically, the Committee shall certify in writing, in a manner conforming to applicable
regulations under Section 162(m), with respect to any Covered Employee prior to any settlement of
each such Award, that the Performance Goal relating to the Award and other material terms of the
Award upon which settlement was conditioned have been satisfied.



(f) Other Terms of Award Opportunities and Awards. Subject to the terms of this Plan, the
Committee may specify the circumstances in which Award Opportunities and Awards shall be paid or
forfeited in the event of a change in control, Termination of Employment in circumstances other
than those specified in Section 8, or other event prior to the end of a Performance Period or
settlement of an Award. With respect to Award Opportunities and Awards under Section 6(b), any
payments resulting from a change in control or Termination of Employment need not qualify as
performance-based compensation under Section 162(m) if the authorization of such non-qualifying
payments would not otherwise disqualify the Award Opportunity or Award from Section 162(m)
qualification in cases in which no change in control or Termination of Employment occurred.



(g) Adjustments. The Committee is authorized to make adjustments in the terms and conditions
of, and the criteria included in, Award Opportunities and related Performance Goals in recognition
of unusual or nonrecurring events, including stock splits, stock dividends, reorganizations,
mergers, consolidations, large, special and non-recurring dividends, and acquisitions and
dispositions of businesses and assets, affecting the Company and its subsidiaries or other business
unit, or the financial statements of the Company or any subsidiary, or in response to changes in
applicable laws, regulations, accounting principles, tax rates and regulations or business
conditions or in view of the Committee’s assessment of the business strategy of the Company, any
subsidiary or affiliate or business unit thereof, performance of comparable organizations, economic
and business conditions, personal performance of a Participant, and any other circumstances deemed
relevant; provided, however, that no such adjustment shall be authorized or made if and to the
extent that the existence or exercise of such authority (i) would cause an Award Opportunity or
Award granted under Section 6(b) and intended to qualify as “performance-based compensation” under



 


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Code
Section 162(m) and regulations thereunder to otherwise fail to so qualify, or (ii) would cause the Committee to
be deemed to have authority to change the targets, within the meaning of Treasury Regulation
1.162-27(e)(4)(vi), under the Performance Goals relating to an Award Opportunity under Section 6(b)
intended to qualify as “performance-based compensation” under Code Section 162(m) and regulations
thereunder. In furtherance of the foregoing, in the event of an equity restructuring, as defined
in FAS 123R, which affects the Company’s common stock, a Participant shall have a legal right to an
adjustment to the Participant’s Award or Award Opportunity which shall preserve without enlarging
the value of the Award or Award Opportunity, with the manner of such adjustment to be determined by
the Committee in its discretion, and subject to any limitation on this right set forth in the
applicable Award documentation. Any fractional share resulting from such adjustment may be
eliminated.



(h) Compliance with Section 409A of the Code. Any vesting and settlement of Awards provided
for hereunder or in a separate agreement between the Participant and the Company shall be subject
to the rules for compliance with Code Section 409A set forth in Exhibit A and Exhibit B to the
Company’s 2005 Stock Incentive Plan, and to the terms and provisions of such separate agreement
(consistent with Code Section 409A).



7. Settlement of Awards.




(a) Deferrals. The Committee may specify, at the time the Award Opportunity is authorized,
that an Award will be deferred as to settlement after it is earned. In addition, a Participant
will be permitted to elect to defer settlement of an Award if and to the extent such Participant is
selected to participate in a Company deferral program covering such Awards and the Participant has
made a valid deferral election in accordance with that plan. Deferrals must comply with applicable
requirements of Section 409A of the Code, including those set forth on Exhibit B to the Company’s
2005 Stock Incentive Plan (relating to the time of election of deferrals) and Exhibit A, Section
(i), to the Company’s 2005 Stock Incentive Plan (relating to permitted distribution dates).



(b) Settlement of Award. Any non-deferred Award shall be paid and settled by the Company
within the time specified under Section 6(d) hereof. With respect to any deferred amount of a
Participant’s Award, such amount will be credited to the Participant’s deferral account under the
governing deferral plan of the Company at the date of determination by the Committee under Section
6(d) hereof.



(c) Tax Withholding. The Company shall deduct from any payment in settlement of a
Participant’s Award or other payment to the Participant any Federal, state, or local withholding or
other tax or charge which the Company is then required to deduct under applicable law with respect
to the Award. The Committee may specify other withholding terms relating to an Award that will be
settled by delivery of shares of Stock or other property.



(d) Non-Transferability. An Award Opportunity, any resulting Award, including any deferred
cash amount resulting from an Award, and any other right hereunder (i) shall be non-assignable and
non-transferable, and shall not be pledged, encumbered, or hypothecated to or in favor of any party
or subject to any lien, obligation, or liability of the Participant to any party other than the
Company or a subsidiary or affiliate; and (ii), if and to the extent that it constitutes a deferral
of compensation under Code Section 409A, shall be subject to the restrictions on transferability
set forth in Exhibit A, Section (i)(H), to the Company’s 2005 Stock Incentive Plan.


 


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8. Effect of Termination of Employment.




Except to the extent set forth in subsections (a) and (b) of this Section 8, upon a
Participant’s Termination of Employment prior to completion of a Performance Period or, after
completion of a Performance Period but prior to the Committee’s determination of the extent to
which an Award has been earned for such Performance Period, the Participant’s Award Opportunity
relating to such Performance Period shall cease to be earnable and shall be canceled, and the
Participant shall have no further rights or opportunities hereunder:



(a) Disability, Death or Retirement. If Termination of Employment is due to the permanent
disability, death or Retirement of the Participant, the Participant or his or her beneficiary shall
be deemed to have earned and shall be entitled to receive an Award for any Performance Period for
which Termination occurs prior to the date of determination under Section 6(d) hereof equal to the
Award which would have been earned had Participant’s employment not terminated multiplied by a
fraction the numerator of which is the number of calendar days from the beginning of the
Performance Period to the date of Participant’s Termination of Employment and the denominator of
which is the number of calendar days in the Performance Period (but such fraction shall in no event
be greater than one). Such pro rata Award will be determined at the same time as Awards for
continuing Participants are determined (i.e., normally following the end of the Performance Period
in accordance with Section 6(d) hereof). Upon its determination, such pro rata Award shall be paid
and settled promptly in cash, except to the extent the settlement has been validly deferred in
accordance with Section 7(a). The portion of the Participant’s Award Opportunity not earned will
cease to be earnable and will be canceled. For purposes of the Plan, the existence of a “permanent
disability” shall be determined by, or in accordance with criteria and standards adopted by, the
Committee. The foregoing notwithstanding, the Committee may limit or expand the Participant’s
rights upon disability, death or Retirement with respect to a given Award Opportunity.



(b) Other Terminations. In connection with any Termination of Employment other than due to
death, disability or retirement, the Committee may determine that the Participant shall be deemed
to have earned none, a portion, or all of an Award Opportunity for a Performance Period in which
Termination occurred or for which the Committee has not yet determined the extent to which an Award
has been earned for such Performance Period, in the Committee’s sole discretion. This
determination may be specified at the time the Award Opportunity is established or made at any time
thereafter.



9. Additional Forfeiture Provisions Applicable to Awards.




(a) Forfeiture Resulting from Actions Harmful to the Company. Unless otherwise determined by
the Committee, Award Opportunities Awards, and amounts paid in settlement of Awards hereunder shall
be subject to the following additional forfeiture conditions, to which the Participant, by
participating in the Plan, agrees. If any of the events specified in Section 9(b)(i), (ii), (iii)
or (iv) occurs (a “Forfeiture Event”), all of the following forfeitures will result:




	 	(i)	 	Any outstanding Award Opportunity authorized for the Participant and any
Award granted to the Participant and not yet settled will be immediately forfeited and
canceled upon the occurrence of the Forfeiture Event; and






	 	(ii)	 	The Participant will be obligated to repay to the Company, in cash, within
five business days after demand is made therefor by the Company, an amount equal to
the total amount of cash plus the fair market value of Stock or other property (as
of the date of occurrence of the Forfeiture Event) previously paid to the
Participant in settlement of any Award since the date that is 12 months prior to
the occurrence of the forfeiture event or, in the case of a Forfeiture Event
specified in Section 9(b)(iv), the period specified in Section 9(b)(iv).




 


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(b) Events Triggering Forfeiture. The forfeitures specified in Section 9(a) will be triggered
upon the occurrence of any one of the following Forfeiture Events at any time during the
Participant’s employment by the Company or a subsidiary or affiliate or during the one-year period
following Termination of Employment (except as otherwise provided in Section 9(b)(iv)):




	 	(i)	 	The Participant, acting alone or with others, directly or indirectly, prior
to a Change in Control, (A) engages, either as employee, employer, consultant,
advisor, or director, or as an owner, investor, partner, or stockholder unless the
Participant’s interest is insubstantial, in the United States or in any other area or
region in which the Company conducts business at the date the event occurs, which is
directly in competition with a business then conducted by the Company or a subsidiary
or affiliate; (B) induces any customer or supplier of the Company or a subsidiary or
affiliate, or an entertainment or media company with which the Company or a subsidiary
or affiliate has a business relationship, to curtail, cancel, not renew, or not
continue his or her or its business with the Company or any subsidiary or affiliate;
or (C) induces, or attempts to influence, any employee of or service provider to the
Company or a subsidiary or affiliate to terminate such employment or service. The
Committee shall, in its discretion, determine which lines of business the Company
conducts on any particular date and which third parties may reasonably be deemed to be
in competition with the Company. For purposes of this Section 9(b)(i), a
Participant’s interest as a stockholder is insubstantial if it represents beneficial
ownership of less than five percent of the outstanding class of stock, and a
Participant’s interest as an owner, investor, or partner is insubstantial if it
represents ownership, as determined by the Committee in its discretion, of less than
five percent of the outstanding equity of the entity;






	 	(ii)	 	The Participant discloses, uses, sells, or otherwise transfers, except in the
course of employment with or other service to the Company or any subsidiary or
affiliate, any confidential or proprietary information of the Company or any
subsidiary or affiliate, including but not limited to information regarding the
Company’s current and potential customers, organization, employees, finances, and
methods of operations and investments or its concepts, ideas, products, movies,
characters, or toys, so long as such information has not otherwise been disclosed to
the public or is not otherwise in the public domain, except as required by law or
pursuant to legal process, or the Participant makes statements or representations, or
otherwise communicates, directly or indirectly, in writing, orally, or otherwise, or
takes any other action which may, directly or indirectly, disparage or be damaging to
the Company or any of its subsidiaries or affiliates or their respective officers,
directors, employees, advisors, businesses or reputations, except as required by law
or pursuant to legal process;






	 	(iii)	 	The Participant fails to cooperate with the Company or any subsidiary or
affiliate in any way, including, without limitation, by making himself or herself
available to testify on behalf of the Company or such subsidiary or affiliate in any
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, or
otherwise fails to assist the Company or any subsidiary or affiliate in any way,
including, without limitation, in connection with any such action, suit, or
proceeding by providing information and meeting and consulting with members of
management of, other representatives of, or counsel to, the Company or such
subsidiary or affiliate, as reasonably requested; or




 


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	 	(iv)	 	The Company is required to prepare an accounting restatement due to the
material noncompliance of the Company, as a result of misconduct, with any financial
reporting requirement under the securities laws, if the Participant knowingly or
grossly negligently engaged in the misconduct, or knowingly or grossly negligently
failed to prevent the misconduct, or if the Participant is one of the persons subject
to automatic forfeiture under Section 304 of the Sarbanes-Oxley Act of 2002.
Forfeitures under this Section 9(b)(iv) shall apply to outstanding Award Opportunities
and Awards and to amounts paid in settlement of an Award Opportunity earned or accrued
in whole or in part during the 12-month period following the first public issuance or
filing with the Securities and Exchange Commission (whichever first occurred) of the
financial document embodying such financial reporting requirement. .





(c) Provision Does Not Prohibit Competition or Other Participant Activities. Although the
conditions set forth in this Section 9 shall be deemed to be incorporated into an Award Opportunity
and Award, a Participant is not thereby prohibited from engaging in any activity, including but not
limited to competition with the Company and its subsidiaries and affiliates. Rather, the
non-occurrence of the Forfeiture Events set forth in Section 9(b)(i) — (iii) is a condition to the
Participant’s right to realize and retain value from his or her compensatory Award Opportunities
and Awards, and the consequence under the Plan if the Participant engages in an activity giving
rise to any such Forfeiture Event are the forfeitures specified herein. The Company and the
Participant shall not be precluded by this provision or otherwise from entering into other
agreements concerning the subject matter of Sections 9(a) and 9(b).



(d) Committee Discretion. The Committee may, in its discretion, waive in whole or in part the
Company’s right to forfeiture under this Section (except as limited by applicable law), but no such
waiver shall be effective unless evidenced by a writing signed by a duly authorized officer of the
Company. In addition, the Committee may impose additional conditions on Award Opportunities and
Awards, by inclusion of appropriate provisions in any document authorizing an Award Opportunity or
evidencing or governing any Award.



10. General Provisions.




(a) Changes to this Plan. The Committee may at any time amend, alter, suspend, discontinue,
or terminate this Plan without the consent of stockholders or Participants; provided, however, that
any such action beyond the scope of the Committee’s authority shall be subject to the approval of
the Board of Directors; provided further, that any such action shall be submitted to the Company’s
stockholders for approval not later than the earliest annual meeting for which the record date is
at or after the date of such Committee or Board action if such stockholder approval is required by
any federal or state law or regulation or the rules of the New York Stock Exchange or any other
stock exchange or automated quotation system on which the Stock may then be listed or quoted, and
the Board may otherwise, in its discretion, determine to submit other amendments to the Plan to
stockholders for approval; and provided further, that, without the consent of an affected
Participant, no such Committee or Board action may materially and adversely affect the rights of
such Participant under any outstanding Award (this restriction does
not apply to an Award Opportunity, however, which remains subject to the discretion of the
Committee).


 


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(b) Long-Term Incentives Not Annual Bonus for Purposes of Other Plans. Amounts earned or
payable under the Plan in connection with Awards not designated by the Committee as “Annual
Incentive Awards” shall not be deemed to be annual incentive or annual bonus compensation
(regardless of whether an Award is earned in respect of a period of one year or less or disclosed
as annual bonus compensation under Securities and Exchange Commission disclosure rules) for
purposes of any retirement or supplemental pension plan of the Company or any employment agreement
or change in control agreement between the Company and any Participant, or for purposes of any
other plan, unless the Company shall in writing specifically identify this Plan by name and specify
that amounts earned or payable hereunder shall be considered to be annual incentive or annual bonus
compensation.



(c) Unfunded Status of Participant Rights. Awards, accounts, deferred amounts, and related
rights of a Participant represent unfunded deferred compensation obligations of the Company for
ERISA and federal income tax purposes and, with respect thereto, the Participant shall have rights
no greater than those of an unsecured creditor of the Company.



(d) Nonexclusivity of the Plan. The adoption of this Plan shall not be construed as creating
any limitations on the power of the Board or Committee to adopt such other compensation
arrangements as it may deem desirable for any Participant.



(e) No Right to Continued Employment. Neither the Plan, the authorization of an Award
Opportunity, the grant of an Award nor any other action taken hereunder shall be construed as
giving any employee the right to be retained in the employ of the Company or any of its
subsidiaries or affiliates, nor shall it interfere in any way with the right of the Company or any
of its subsidiaries or affiliates to terminate any employee’s employment at any time.



(f) Severability. The invalidity of any provision of the Plan or a document hereunder shall
not deemed to render the remainder of this Plan or such document invalid.



(g) Successors. The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise, and whether or not the corporate existence of the
Company continues) to all or substantially all of the business and/or assets of the Company to
expressly assume and agree to perform the Company’s obligations under the Plan in the same manner
and to the same extent that the Company would be required to perform it if no such succession had
taken place; provided, however, that such successor may replace the Plan with a plan substantially
equivalent in opportunity and achievability, as determined by a nationally recognized compensation
consulting firm, and covering the participants at the time of such succession. Any successor and
the ultimate parent company of such successor shall in any event be subject to the requirements of
this Section 10(g) to the same extent as the Company. Subject to the foregoing, the Company may
transfer and assign its rights and obligations hereunder.



 


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(h) Governing Law. The validity, construction, and effect of the Plan and any rules and
regulations or document hereunder shall be determined in accordance with the laws of the State of
New York, without giving effect to principles of conflicts of laws, and applicable provisions of
federal law.



(i) Effective Date of Plan; Stockholder Approval; Termination of Plan. This Plan shall be
effective as of January 1, 2005. The Company shall submit the Plan, including the material terms
of the Plan specified in Treasury Regulation 1.162-27(e)(4), to stockholders for approval at the
Company’s 2005 Annual Meeting of Stockholders, and the Plan shall be terminated without any Award
being deemed earned in the event stockholders decline to approve it at that Annual Meeting. If
approved by stockholders, the Plan will terminate at such time as may be determined by the Board of
Directors or the Committee.




 


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