exv10w25






Exhibit 10.25




USA MOBILITY, INC.




2009 LONG-TERM INCENTIVE PLAN




Adopted by the Board of Directors




Upon Recommendation of the Compensation Committee




on January 6, 2009




To Be Effective as of January 1, 2009




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 1.

	 	      BACKGROUND, PURPOSE AND DURATION
	 	 	1	 
	 
	 	 	 	 	 	 
	1.1

	 	Effective Date
	 	 	1	 
	 
	 	 	 	 	 	 
	1.2

	 	Purposes of the Plan
	 	 	1	 
	 
	 	 	 	 	 	 
	SECTION 2.

	 	      DEFINITIONS
	 	 	1	 
	 
	 	 	 	 	 	 
	2.1

	 	Actual Award
	 	 	1	 
	 
	 	 	 	 	 	 
	2.2

	 	Affiliate
	 	 	1	 
	 
	 	 	 	 	 	 
	2.3

	 	Award Agreement
	 	 	1	 
	 
	 	 	 	 	 	 
	2.4

	 	Beneficial Owner
	 	 	1	 
	 
	 	 	 	 	 	 
	2.5

	 	Board
	 	 	2	 
	 
	 	 	 	 	 	 
	2.6

	 	Bonus Pool
	 	 	2	 
	 
	 	 	 	 	 	 
	2.7

	 	Cause
	 	 	2	 
	 
	 	 	 	 	 	 
	2.8

	 	Change of Control
	 	 	2	 
	 
	 	 	 	 	 	 
	2.9

	 	Code
	 	 	3	 
	 
	 	 	 	 	 	 
	2.10

	 	Committee
	 	 	3	 
	 
	 	 	 	 	 	 
	2.11

	 	Common Stock
	 	 	3	 
	 
	 	 	 	 	 	 
	2.12

	 	Company
	 	 	3	 
	 
	 	 	 	 	 	 
	2.13

	 	Continuing Directors
	 	 	3	 
	 
	 	 	 	 	 	 
	2.14

	 	Effective Date
	 	 	3	 
	 
	 	 	 	 	 	 
	2.15

	 	Employee
	 	 	3	 
	 
	 	 	 	 	 	 
	2.16

	 	Long Range Plan
	 	 	3	 
	 
	 	 	 	 	 	 
	2.17

	 	Participant
	 	 	3	 
	 
	 	 	 	 	 	 
	2.18

	 	Performance Goals
	 	 	3	 
	 
	 	 	 	 	 	 
	2.19

	 	Performance Period
	 	 	4	 
	 
	 	 	 	 	 	 
	2.20

	 	Person
	 	 	4	 
	 
	 	 	 	 	 	 
	2.21

	 	Plan
	 	 	4	 
	 
	 	 	 	 	 	 
	2.22

	 	Restricted Stock Unit
	 	 	4	 
	 
	 	 	 	 	 	 
	2.23

	 	Separation from Service
	 	 	4	 
	 
	 	 	 	 	 	 
	2.24

	 	Target Award
	 	 	4	 
	 
	 	 	 	 	 	 
	SECTION 3.

	 	     SELECTION OF PARTICIPANTS AND DETERMINATION OF

     AWARDS
	 	 	4	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	3.1

	 	Selection of Participants
	 	 	4	 
	 
	 	 	 	 	 	 
	3.2

	 	Determination of Target Awards
	 	 	4	 
	 
	 	 	 	 	 	 
	3.3

	 	Award Agreements
	 	 	5	 
	 
	 	 	 	 	 	 
	3.4

	 	Bonus Pool
	 	 	5	 
	 
	 	 	 	 	 	 
	3.5

	 	Dividend Equivalent Rights
	 	 	5	 
	 
	 	 	 	 	 	 
	SECTION 4.

	 	      VESTING AND PAYMENT OF AWARDS
	 	 	6	 
	 
	 	 	 	 	 	 
	4.1

	 	Attainment of Performance Goals
	 	 	6	 
	 
	 	 	 	 	 	 
	4.2

	 	Vesting
	 	 	6	 
	 
	 	 	 	 	 	 
	4.3

	 	Time and Form of Payment
	 	 	7	 
	 
	 	 	 	 	 	 
	4.4

	 	Proration or Forfeiture of Target Award
	 	 	7	 
	 
	 	 	 	 	 	 
	SECTION 5.

	 	      ADMINISTRATION
	 	 	8	 
	 
	 	 	 	 	 	 
	5.1

	 	Committee is the Administrator
	 	 	8	 
	 
	 	 	 	 	 	 
	5.2

	 	Committee Authority
	 	 	8	 
	 
	 	 	 	 	 	 
	5.3

	 	Decisions Binding
	 	 	8	 
	 
	 	 	 	 	 	 
	5.4

	 	Delegation by the Committee
	 	 	8	 
	 
	 	 	 	 	 	 
	SECTION 6.

	 	      GENERAL PROVISIONS
	 	 	9	 
	 
	 	 	 	 	 	 
	6.1

	 	Unsecured General Creditor
	 	 	9	 
	 
	 	 	 	 	 	 
	6.2

	 	Tax Withholding
	 	 	9	 
	 
	 	 	 	 	 	 
	6.3

	 	No Rights as Employee
	 	 	9	 
	 
	 	 	 	 	 	 
	6.4

	 	Participation
	 	 	9	 
	 
	 	 	 	 	 	 
	6.5

	 	Successors
	 	 	9	 
	 
	 	 	 	 	 	 
	6.6

	 	Payment in the Event of Death
	 	 	9	 
	 
	 	 	 	 	 	 
	6.7

	 	Nontransferability of Awards
	 	 	9	 
	 
	 	 	 	 	 	 
	SECTION 7.

	 	      AMENDMENT, TERMINATION AND DURATION
	 	 	9	 
	 
	 	 	 	 	 	 
	7.1

	 	Amendment, Suspension or Termination
	 	 	9	 
	 
	 	 	 	 	 	 
	7.2

	 	Duration of the Plan
	 	 	10	 
	 
	 	 	 	 	 	 
	SECTION 8.

	 	      LEGAL CONSTRUCTION
	 	 	10	 
	 
	 	 	 	 	 	 
	8.1

	 	Code Section 409A
	 	 	10	 
	 
	 	 	 	 	 	 
	8.2

	 	Gender and Number
	 	 	10	 
	 
	 	 	 	 	 	 
	8.3

	 	Severability
	 	 	10	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	8.4

	 	Requirements of Law
	 	 	10	 
	 
	 	 	 	 	 	 
	8.5

	 	Governing Law
	 	 	10	 
	 
	 	 	 	 	 	 
	8.6

	 	Captions
	 	 	10	 






-iii-









 






USA MOBILITY, INC.




2009 LONG-TERM INCENTIVE PLAN




SECTION 1.

BACKGROUND, PURPOSE AND DURATION




          1.1 Effective Date. The Board adopted the Plan upon the recommendation of the
Compensation Committee of the Board to be effective as of January 1, 2009.




          1.2 Purposes of the Plan. The purposes of the Plan are to promote the success of
the Company’s business, advance the interests of the Company, attract and retain the best
available personnel for positions of substantial responsibility, and provide additional
incentives to selected key employees for outstanding performance. The Plan permits the award
of cash incentives and Restricted Stock Units to key employees as the Committee may determine.
Upon attainment of Performance Goals for the Performance Period, Participants will receive a
cash incentive payment, vested Restricted Stock Units will be paid in Common Stock, and
dividend equivalent rights (if any) with respect to vested Restricted Stock Units will be paid
in cash.




SECTION 2.

DEFINITIONS




     The following words and phrases shall have the following meanings unless a different
meaning is plainly required by the context:



          2.1 “Actual Award” means the vested portion of the Target Award (if any) payable
to a Participant.




          2.2 “Affiliate” means any corporation or other entity (including, but not limited
to, partnerships and joint ventures) controlled by, controlling, or under common control with,
the Company where “control” means the right to elect or appoint at least fifty percent (50%)
of the directors, managing members, general partners, trustees or entities exercising similar
powers with respect to the Company or the applicable entity whether by beneficial ownership of
securities or other interests, by proxy or agreement, or both. Notwithstanding the preceding,
an Affiliate that is not an affiliate within the meaning of the regulations under Code section
409A shall not constitute an Affiliate under this Plan.




          2.3 “Award Agreement” means any written agreement, contract or other instrument
or document evidencing a Target Award, including through an electronic medium.




          2.4 “Beneficial Owner” shall have the meaning given to such term in Rule 13d-3
issued under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); provided,
however, that Beneficial Owner shall exclude any Person becoming a Beneficial Owner by reason
of the stockholders of the Company approving a merger of the Company with another entity.




 









 








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




          2.6 “Bonus Pool” means the pool of funds available for the payment of cash
incentive awards to Participants.




          2.7 “Cause” unless otherwise defined in an employment agreement between the
Participant and the Company or an Affiliate, means (a) dishonesty of a material nature that
relates to the performance of services for the Company by Participants; (b) criminal conduct
(other than minor infractions and traffic violations) that relates to the performance of
services for the Company by Participant; (c) the Participant’s willfully breaching or failing
to perform his or her duties as an employee of the Company (other than any such failure
resulting from the Participant having a disability (as defined herein)), within a reasonable
period of time after a written demand for substantial performance is delivered to the
Participant by the Board, which demand specifically identifies the manner in which the Board
believes that the Participant has not substantially performed his or her duties; or (d) the
willful engaging by the Participant in conduct that is demonstrably and materially injurious
to the Company, monetarily or otherwise. No act or failure to act on the Participant’s part
shall be deemed “willful” unless done, or omitted to be done, by the Participant not in good
faith and without reasonable belief that such action or omission was in the reasonable best
interests of the Company. Disability as used herein means a condition or circumstance such
that the Participant has become totally and permanently disabled as defined or described in
the Company’s long term disability benefit plan applicable to executive officers as in effect
at the time the Participant incurs a disability.




          2.8 “Change of Control” shall be deemed to occur upon the earliest to occur after
the Effective Date of any of the following events:




                (a) Any Person (excluding any employee benefit plan of the Company or any Affiliate) is
or becomes the Beneficial Owner, directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the combined voting power of the Company’s
outstanding securities then entitled ordinarily to vote for the election of directors; or



               (b) During any period of two (2) consecutive years commencing on or after the Effective
Date, the individuals who at the beginning of such period constitute the Board or any
individuals who would be Continuing Directors (as defined below) cease for any reason to
constitute at least a majority thereof; or



               (c) The Board shall approve a sale of all or substantially all of the assets of the
Company; or



2









 







                 (d) The Board shall approve any merger, consolidation, or like business combination or
reorganization of the Company, the consummation of which would result in the occurrence of
any event described in clause (a) or (b), above.


Notwithstanding the forgoing, a Change of Control shall not occur as a result of any sale or
other transaction that results in management taking the Company private.




          2.9 “Code” means the Internal Revenue Code of 1986, as amended, and the
regulations and other guidance issued by the Treasury Department and Internal Revenue Service
thereunder.




          2.10 “Committee” means the committee appointed by the Board to administer the
Plan. Until otherwise determined by the Board, (a) the Company’s Compensation Committee of
the Board shall constitute the Committee, and (b) for administrative convenience, the
independent, nonemployee members of the Board also may act as the Committee from time to time.




          2.11 “Common Stock” means the common stock of the Company, par value $0.0001 per
share.




          2.12 “Company” means USA Mobility, Inc., a Delaware corporation, or any successor
thereto.




          2.13 “Continuing Directors” means the directors of the Company in office on the
Effective Date and any successor to any such director and any additional director who after
the Effective Date (i) was nominated or selected by a majority of the Continuing Directors in
office at the time of his or her nomination or selection and (ii) who is not an “affiliate” or
“associate” (as defined in Regulation 12B promulgated under the Exchange Act) of any person
who is the beneficial owner, directly or indirectly, of securities representing ten percent
(10%) or more of the combined voting power of the Company’s outstanding securities then
entitled ordinarily to vote for the election of directors.




          2.14 “Effective Date” means January 1, 2009.




          2.15 “Employee” means any key employee of the Company or Affiliate, whether such
individual is so employed at the time the Plan is adopted or becomes so employed subsequent to
the adoption of the Plan.




          2.16 “Long Range Plan” means the Long Range Plan in effect as of January 1, 2009,
which may be adjusted in the event of a Change of Control or other corporate reorganization,
merger or similar transaction.




          2.17 “Participant” means an Employee who has been selected by the Committee for
participation in the Plan. Employees who have been selected to participate as of January 15,
2009 are listed on Exhibit A.




          2.18 “Performance Goals” means that the annual Operating Expenses for the fiscal
year 2012 shall not be more than $[***] million and Earnings Before Interest Taxes



3









 






Depreciation
and Amortization (EBITDA) for fiscal year 2012 shall not be less
than $[***]
million. For this purpose, the calculation of Operating Expenses will include (i) service,
rent and maintenance expenses, (ii) selling and marketing expenses, and (iii) general and
administrative expenses, but will not include (iv) severance costs, (v) product costs or (vi)
depreciation, amortization and accretion expenses. Achievement of the Operating Expense and
EBIDTA goals will be given equal weight in determining Actual Awards. The Committee may
revise the Performance Goals in the event of a Change of Control or other corporate
reorganization, merger, similar transaction, to take into account extraordinary events or as
the Committee determines is in the best interests of the Company.




          2.19 “Performance Period” means the period commencing January 1, 2009 and ending
December 31, 2012 unless otherwise determined by the Committee or specified in an Award
Agreement or an employment agreement between the Participant and the Company.




          2.20 “Person” shall have the meaning set forth in Sections 13(d) and 14(d) of the
Exchange Act; provided, however, that Person shall exclude (i) the Company and (ii) any
trustee or other fiduciary holding securities under an employee benefit plan of the Company or
Affiliate.




          2.21 “Plan” means the USA Mobility, Inc. 2009 Long-Term Incentive Plan, as set
forth in this instrument and as hereafter amended from time to time.




          2.22 “Restricted Stock Unit” means the right to receive a share of Company Common
Stock upon the attainment of the Performance Goals.




          2.23 “Separation from Service” means separation from service as defined in the
Treasury Regulations under Code section 409A. “Separates from Service” shall have a
consistent meaning.




          2.24 “Target Award” means the target award, at one hundred percent (100%)
achievement of the Performance Goals payable under the Plan, as determined by the Committee in
its sole discretion.




SECTION 3.

SELECTION OF PARTICIPANTS AND DETERMINATION OF AWARDS




          3.1 Selection of Participants. The Committee, in its sole discretion, shall
select the Employees who shall be Participants in the Plan and the Committee may, in its sole
discretion, select Employees to participate in the Plan at any time during any Performance
Period.




          3.2 Determination of Target Awards. The Committee, in its sole discretion, shall
establish a Target Award that may be earned by each Participant based on a multiple of the
2009 annual bonus for each Participant (or, with respect to Participants selected to
participate in the Plan after the commencement of a Performance Period, the annual bonus for
the year in which the Participant commenced participation in the Plan). Fifty percent (50%)
of the Target Award shall be paid in cash and fifty percent (50%) of the Target





 




			
	[***]	 	Means that certain confidential information has been deleted from this document and filed
separately with the Securities and Exchange Commission.




4









 







Award shall be paid in Restricted Stock Units. The number of Restricted Stock Units
granted shall be based on the fair market value of the Company’s Common Stock on December 31,
2008; provided, for purposes of determining the number of Restricted Stock Units granted to an
Employee who becomes a Participant after the first day of the Performance Period, the number
of Restricted Stock Units may be determined, in the sole discretion of the Committee, based on
(a) the fair market value of the Company’s Common Stock on December 31, 2008, reduced by the
value of any cash dividends or cash distributions (regular or otherwise) that are paid with
respect to the Company’s Common Stock from that date to the date of grant or (b) the fair
market value of the Company’s Common Stock on the date on which the Participant commenced
participation in the Plan. Restricted Stock Units shall be granted pursuant to the USA
Mobility, Inc. Equity Incentive Plan. Further, if at any time the Common Stock ceases to be
registered as a class of equity securities under the Exchange Act, whether as a result of a
Change of Control or otherwise, the Committee may in its sole discretion convert any
Restricted Stock Units into a right to receive cash in lieu of shares of Common Stock based
upon the fair market value of a share of Common Stock at the time of or immediately prior to
the time the Common Stock was no longer registered under the Exchange Act.




          3.3 Award Agreements. Target Awards granted pursuant to the Plan shall be
evidenced by Award Agreements. Award Agreements may be amended by the Committee with the
consent of the germane Participant from time to time and need not contain uniform provisions.




          3.4 Bonus Pool. The Committee, in its sole discretion, shall establish a Bonus
Pool to pay cash awards.




          3.5 Dividend Equivalent Rights. A Participant shall be entitled to dividend
equivalent rights with respect to Restricted Stock Units to the extent that any cash dividends
or cash distributions (regular or otherwise) are paid with respect to the Company’s Common
Stock during the Performance Period. The dividend equivalent rights will be subject to the
vesting restrictions and the other terms and conditions under this Plan that are applicable to
the Restricted Stock Units until such time, if ever, as the Restricted Stock Units with
respect to which the dividend equivalent rights are paid vest.




5









 








SECTION 4.

VESTING AND PAYMENT OF AWARDS




          4.1 Attainment of Performance Goals. In order for Actual Awards to be earned and
paid, the Company must attain the Performance Goals. If the Performance Goals are not met on
or before the last day of the Performance Period, the Committee, in its sole discretion, may
direct the Company to pay less than the Target Award to reflect actual performance.




          4.2 Vesting.




               (a) Target Awards shall vest upon the Committee’s reasonable determination that the
Performance Goals have been achieved. If the Performance Goals are met, Participants will be
entitled to the vested portion of a Target Award.



               (b) In the event of a Change of Control, vesting shall be accelerated as follows
provided that the Company is on track to meet the objectives in the Company’s Long Range Plan
as reasonably determined by the Committee (as comprised immediately prior to the Change of
Control).



                    (i) If a Change of Control occurs during either of the first two years of the Performance
Period, fifty percent (50%) of the Participant’s Target Award shall vest.



                    (ii) If a Change of Control occurs during the third year of the Performance Period,
seventy-five percent (75%) of the Participant’s Target Award shall vest.



                    (iii) If a Change of Control occurs during the final year of the Performance Period, the
Participant’s Target Award shall vest in full.


With respect to an employee who becomes a Participant after January 15, 2009, the accelerated
vesting described above will apply on a prorated basis based on the number of days worked
during the Performance Period. For clarity, if an employee becomes a Participant in the
second year of the Performance Period, accelerated vesting of his Target Award (prorated as
described in section 4.4, below) will be calculated as follows: fifty percent (50%) of a
Participant’s unvested Target Award will be multiplied by a fraction, the numerator of which
is the number of days the Employee was a Participant in the Plan during the Performance
Period, and the denominator of which is the total number of days in the Performance Period.




               (c) The Committee, in its sole discretion, may accelerate the time at which Target
Awards will vest provided that the Company is on target to meet the objectives in the
Company’s Long Range Plan.



               (d) All Actual Awards will be paid at the time provided in Section 4.3.



6









 





          4.3 Time and Form of Payment.




               (a) Each Actual Award, including dividend equivalent rights, shall be paid in cash (or
its equivalent) in a single lump sum and Common Stock pursuant to the Award Agreements,
subject to any required withholding for income and employment taxes.



               (b) Actual Awards will be paid on or after the third business day after the Company’s
annual audit for fiscal year 2012 has been completed and the Company’s fiscal year 2012 annual
report on Form 10-K has been filed with the Securities and Exchange Commission, but in no
event later than December 31, 2013.



               (c) Notwithstanding 4.3(b), in the event of a Participant’s death, the Participant’s
estate will be eligible to receive an amount not greater than one-hundred percent (100%) of
the Participant’s Target Award, prorated to reflect the number of days he or she worked
during the Performance Period, and such amount, which will be determined in the Committee’s
sole discretion, will be paid in the year following Participant’s death. For clarity,
prorated awards will be calculated as follows: one-hundred percent (100%) of a Participant’s
Target Award will be multiplied by a fraction, the numerator of which is the number of days
the Participant was continuously providing services to the Company during the Performance
Period through the date immediately prior to the Participant’s death, and the denominator of
which is the total number of days in the Performance Period.



               (d) Notwithstanding anything to the contrary in this Plan, no payments contemplated by
this Plan will be paid during the six-month period following a Participant’s Separation from
Service unless the Company determines, in its good faith judgment, that paying such amounts
at the times indicated in paragraphs 4.3(b) and (c) would not cause the Participant to incur
an additional tax under Code section 409A, in which case the Actual Award shall be paid
following the end of the six-month period.



          4.4 Proration or Forfeiture of Target Award.




               (a) Newly hired or promoted employees who are selected to participate in the Plan after
January 15, 2009 will participate in the Plan on a prorated basis based on the number of days
worked during the Performance Period after being selected to participate in the Plan. The
prorated award will be calculated as follows: one-hundred percent (100%) of a Participant’s
unvested Target Award will be multiplied by a fraction, the numerator of which is the number
of days the Employee was a Participant in the Plan during the Performance Period, and the
denominator of which is the total number of days in the Performance Period.



               (b) If the Participant involuntarily Separates from Service without Cause or due to
disability, he or she will be eligible to receive a prorated Target Award if the Performance
Goals are met provided that, in the event Participant involuntarily Separates from Service
without Cause, he or she has executed a release, any waiting period in connection with such
release has expired, he or she has not exercised any rights to revoke the release and he or
she has followed any other applicable and customary



7









 




termination procedures, as determined by the Company in its sole discretion. The
unvested Target Award will be prorated to the date of Separation from Service, and the
prorated award will be calculated as follows: one-hundred percent (100%) of a Participant’s
unvested Target Award will be multiplied by a fraction, the numerator of which is the number
of days the Participant was continuously providing services to the Company during the
Performance Period through the date immediately prior to the Participant’s Separation from
Service, and the denominator of which is the total number of days in the Performance Period.
Prorated awards will be paid to the Participant at the time provided in Sections 4.3.




               (c) Notwithstanding Section 4.4(b), any Participant who involuntarily Separates from
Service without Cause during his or her first year of participation in the Plan shall forfeit
any right to receive an Actual Award.



               (d) Any Participant whose employment is terminated for Cause or voluntarily Separates
from Service prior to the date Actual Awards are paid shall forfeit any right to receive an
Actual Award.



SECTION 5.

ADMINISTRATION




          5.1 Committee is the Administrator. The Plan shall be administered by the
Committee. The Committee shall consist of not less than two (2) members of the Board, and no
member of the Committee shall be a Participant. The members of the Committee shall be
appointed from time to time by, and serve at the pleasure of, the Board.




          5.2 Committee Authority. It shall be the duty of the Committee to administer the
Plan in accordance with the Plan’s provisions. The Committee shall have all powers and
discretion necessary or appropriate to administer the Plan and to control its operation,
including, but not limited to, the power to (a) determine which Employees shall be granted
awards, (b) prescribe the terms and conditions of awards, (c) interpret the Plan and the
awards, (d) adopt such procedures and subplans as are necessary or appropriate to permit
participation in the Plan by Employees who are foreign nationals or employed outside of the
United States, (e) adopt rules or principles for the administration, interpretation and
application of the Plan as are consistent therewith, and (f) interpret, amend or revoke any
such rules or principles. No member of the Committee shall be personally liable for any
action, determination or interpretation made in good faith with respect to an award granted
pursuant to this Plan.




          5.3 Decisions Binding. All determinations and decisions made by the Committee,
the Board, and any delegate of the Committee pursuant to the provisions of the Plan shall be
final, conclusive, and binding on all persons, and shall be given the maximum deference
permitted by law.




          5.4 Delegation by the Committee. The Committee, in its sole discretion and on
such terms and conditions as it may provide, may delegate all or part of its authority and
powers under the Plan to one or more directors and/or officers of the Company.




8









 








SECTION 6.

GENERAL PROVISIONS




          6.1 Unsecured General Creditor. Actual Awards shall be paid solely from the
general assets of the Company. Nothing in this Plan shall be construed to create a trust or
to establish or evidence any Participant’s claim of any right other than as an unsecured
general creditor having the status of an employee of the Company or an Affiliate thereof with
respect to any payment to which he or she may be entitled.




          6.2 Tax Withholding. The Company shall be entitled to withhold from, or in
respect of, any payment to be made an amount sufficient to satisfy all federal, state, local
or foreign tax withholding requirements (including, but not limited to, the Participant’s FICA
and Social Security obligations). The Committee may permit a Participant to satisfy all or
part of his or her tax withholding obligations by having the Company withhold an amount from
any cash amounts otherwise due or to become due from the Company to the Participant or, with
respect to Restricted Stock Units, having the Company withhold a number of shares of Common
Stock that become vested having a fair market value equal to the tax withholding obligations.
The fair market value of the shares to be withheld or delivered will be determined as of the
date that the taxes are required to be withheld.




          6.3 No Rights as Employee. Nothing in the Plan or any documents relating to the
Plan shall (a) confer on a Participant any right to continue in the employ of the Company; (b)
constitute any contract or agreement of employment; or (c) interfere in any way with the
Company’s right to terminate the Participant’s employment at any time, with or without cause.
For purposes of the Plan, transfer of employment of a Participant between the Company and any
one of its Affiliates (or between Affiliates) shall not be deemed a Separation from Service.




          6.4 Participation. No Employee shall have the right to be selected to receive an
award under this Plan.




          6.5 Successors. This Plan shall be binding upon and inure to the benefit of the
Company and any successor to the Company and the Participant’s heirs, executors,
administrators and legal representatives.




          6.6 Payment in the Event of Death. In the event of a Participant’s death, any
vested benefits remaining unpaid shall be paid to the Participant’s estate.




          6.7 Nontransferability of Awards. No award granted under the Plan may be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by the laws
of descent and distribution. All rights with respect to an award granted to a Participant
shall be available during his or her lifetime only to the Participant.




SECTION 7.

AMENDMENT, TERMINATION AND DURATION




          7.1 Amendment, Suspension or Termination. The Board, in its sole discretion and
without prior notice to Participants, may amend or terminate the Plan, or any part



9









 






thereof, at any time and for any reason, to the extent such action will not cause adverse
tax consequences to a Participant under Code section 409A. Except as provided in Section
2.18, the amendment, suspension or termination of the Plan shall not, without the consent of
the Participant, alter or materially impair any rights or obligations under any Award
Agreement. No award may be granted during any period of suspension or after termination of
the Plan.




          7.2 Duration of the Plan. The Plan shall commence on January 1, 2009 and,
subject to Section 7.1 (regarding the Board’s right to amend or terminate the Plan), shall
remain in effect thereafter.




SECTION 8.

LEGAL CONSTRUCTION




          8.1 Code Section 409A. The Plan is intended to be a nonqualified deferred
compensation plan within the meaning of Code section 409A and shall be interpreted to meet the
requirements of Code section 409A. To the extent that any provision of the Plan would cause a
conflict with the requirements of Code section 409A, or would cause the administration of the
Plan to fail to satisfy Code section 409A, such provision shall be deemed null and void to the
extent permitted by applicable law. Nothing herein shall be construed as a guarantee of any
particular tax treatment to a Participant.




          8.2 Gender and Number. Except where otherwise indicated by the context, any
masculine term used herein also shall include the feminine; the plural shall include the
singular and the singular shall include the plural.




          8.3 Severability. In the event any provision of the Plan shall be held illegal
or invalid for any reason, the illegality or invalidity shall not affect the remaining parts
of the Plan, and the Plan shall be construed and enforced as if the illegal or invalid
provision had not been included.




          8.4 Requirements of Law. The granting of awards under the Plan shall be subject
to all applicable laws, rules and regulations, and to such approvals by any governmental
agencies or national securities exchanges as may be required.




          8.5 Governing Law. The Plan and all awards shall be construed in accordance with
and governed by the laws of the State of Delaware, but without regard to its conflict of law
provisions.




          8.6 Captions. Captions are provided herein for convenience only, and shall not
serve as a basis for interpretation or construction of the Plan.




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