Exhibit
10.12


 


IAC/INTERACTIVECORP AMENDED AND RESTATED 

2000 STOCK AND ANNUAL INCENTIVE PLAN

(effective December 17, 2008)


 


SECTION 1. Purpose; Definitions.


 


The purpose of the Plan is to give the Corporation a competitive
advantage in attracting, retaining and motivating officers and employees and to
provide the Corporation and its subsidiaries with a stock plan providing
incentives more directly linked to the profitability of the Corporation and
increases in shareholder value.


 


For purposes of the Plan, the following terms are defined as set forth
below:


 


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


 


(b)           “Award” means
a Stock Appreciation Right, Stock Option, Restricted Stock, Performance Unit or
Bonus Award.


 


(c)           “Award Cycle”
shall mean a period of consecutive fiscal years or portion thereof designated
by the Committee over which Performance Units are to be earned.


 


(d)           “Board” means
the Board of Directors of the Corporation.


 


(e)           “Bonus Award”
means an annual bonus award made pursuant to Section 10.


 


(f)            “Bonus Period”
shall have the meaning set forth in Section 10(a).


 


(g)           “Cause”
means, except as otherwise determined by the Committee pursuant to an Award
agreement, the willful and continued failure on the part of a participant
substantially to perform his employment duties in any material respect, or such
other events as shall be determined by the Committee; provided, that “Cause”
includes, without limitation: (i) the plea of guilty or nolo contendere
to, or conviction for, the commission of a felony offense by a participant; (ii) a
material breach by a participant of a fiduciary duty owed to the Corporation or
any of its subsidiaries; (iii) a material breach by a participant of any
nondisclosure, non-solicitation or non-competition obligation owed to the
Corporation or any of its subsidiaries; and (iv) the willful or gross
neglect by a participant of his employment duties.   The Committee shall have the sole discretion
to determine whether “Cause” exists, and its determination shall be final.


 


(h)           “Change in
Control” and “Change in Control Price” have the meanings set forth
in Sections 11(b) and (c), respectively.


 


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


 


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


 


(k)           “Committee”
means the Committee referred to in Section 2.


 


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


 


(m)          “Corporation”
means IAC/InterActiveCorp (formerly USA Interactive), a Delaware corporation.


 


(n)           “Covered Employee”
means, with respect to an Award, a participant designated prior to the grant of
shares of Restricted Stock, Performance Units, Bonus Awards or Stock Options
(if subject to Performance Goals) by the Committee who will be or may be a “covered
employee” within the meaning of Section 162(m)(3) of the Code in the
year in which the Corporation is expected to be entitled to a federal income
tax deduction with respect to the Award.


 


(o)           “Disability”
means, except as otherwise determined by the Committee in an Award Agreement,
permanent and total disability as determined under procedures established by
the Committee for purposes of the Plan. 
Notwithstanding the forgoing, with respect to an Incentive Stock Option,
“Disability” shall mean Permanent and Total Disability as defined in Section 22(e)(3) of
the Code, and with respect to each Award that constitutes a “nonqualified
deferred compensation plan” within the meaning of Section 409A of the
Code, the foregoing definition shall apply for purposes of vesting of such
Award, provided that such Award shall not be settled until the earliest of: (i) the
Participant’s “disability” within the meaning of Section 409A of the Code,
(ii) the Participant’s “separation from service” within the meaning of Section 409A
of the Code and (iii) the date such Award would otherwise be settled pursuant
to the terms of the Award Agreement.


 


(p)           “Early Retirement”
means retirement from active employment with the Corporation, a subsidiary or
Affiliate pursuant to the early retirement provisions of the applicable pension
plan of such employer.


 


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


 


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


 


(s)           “Effective Date”
shall have the meaning set forth in Section 15.


 


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


 


(u)           “Fair Market
Value” means, as of any given date, the last reported sales price of the
Common Stock in the over-the-counter market, as reported by NASDAQ (or, if the
Common Stock is listed on a national securities exchange, as reported in the
principal consolidated transaction reporting system with respect to securities
listed on the principal national security exchange on which the Common Stock is
listed or admitted to trading) on the last preceding date or, if there are no
reported sales on that date, on the last day prior to that date on which there
are such reported sales.


 


(v)           “Incentive Stock
Option” means any Stock Option designated as, and qualified as, an “incentive
stock option” within the meaning of Section 422 of the Code.


 


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


 


(x)            “Normal
Retirement” means retirement from active employment with the Corporation, a
subsidiary or Affiliate at or after age 65.


 


(y)           “Option Price”
shall have the meaning set forth in Section 5(a).


 


(z)            “Performance
Goals” means the performance goals established by the Committee in
connection with the grant of Restricted Stock, Performance Units or Bonus
Awards.  In the case of
Qualified-Performance Based Awards, (i) such goals shall be based on the attainment
of one or any combination of the following: specified levels of earnings per
share from continuing operations, EBITDA, EBITA, operating income, revenues,
return on operating assets, return on equity, profits, total shareholder return
(measured in terms of stock price appreciation and/or dividend growth), and/or
stock price, with respect to the Corporation or such subsidiary, division or
department of the Corporation for or within which the participant performs
services and that are intended to qualify under Section 162(m)(4)(c) of
the Code and (ii) such Performance Goals shall be set by the Committee
within the time period prescribed by Section 162(m) of the Code and
related regulations.  Such Performance
Goals also may be based upon the attaining of 


 


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specified levels of Corporation performance under one or more of the
measures described above relative to the performance of other corporations.


 


(aa)         “Performance Units”
means an award made pursuant to Section 8.


 


(bb)         “Plan” means
the Amended and Restated IAC/InterActiveCorp 2000 Stock and Annual Incentive
Plan, as set forth herein and as hereinafter amended from time to time.


 


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


 


(dd)         “Qualified
Performance-Based Award” means an Award designated as such by the Committee
at the time of grant, based upon a determination that (i) the recipient is
or may be a “covered employee” within the meaning of Section 162(m)(3) of
the Code in the year in which the Corporation would expect to be able to claim
a tax deduction with respect to such Awards and (ii) the Committee wishes
such Award to qualify for the Section 162(m) Exemption.


 


(ee)         “Restricted Stock”
means an award granted under Section 7.


 


(ff)           “Retirement”
means Normal or Early Retirement.


 


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


 


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


 


(ii)           “Stock
Appreciation Right” means a right granted under Section 6.


 


(jj)           “Stock Option”
means an option granted under Section 5.


 


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(kk)         “Termination of
Employment” means the termination of the participant’s employment with, or
performance of services for, the Corporation and any of its subsidiaries or Affiliates.  A participant employed by, or performing
services for, a subsidiary or an Affiliate shall also be deemed to incur a
Termination of Employment if the subsidiary or Affiliate ceases to be such a
subsidiary or an Affiliate, as the case may be, and the participant does not
immediately thereafter become an employee of, or service-provider for, the
Corporation or another subsidiary or Affiliate. 
Temporary absences from employment because of illness, vacation or leave
of absence and transfers among the Corporation and its subsidiaries and
Affiliates shall not be considered Terminations of Employment.  For avoidance of doubt, a participant who is
eligible to participate in the Plan and, without a break-in-service, becomes
eligible to participate based upon providing another form of services to the
Corporation or any of its subsidiaries or Affiliates (e.g., an employee becomes a director)
shall not be treated as having a Termination of Employment under the Plan,
except for any such participant who becomes eligible to participate based upon
providing consulting services to the Corporation.  Notwithstanding the foregoing, with respect
to any Award that constitutes a “nonqualified deferred compensation plan”
within the meaning of Section 409A of the Code, “Termination of Employment”
shall mean a “separation from service” as defined under Section 409A of
the Code.


 


In addition, certain other terms used herein have definitions given to
them in the first place in which they are used.


 


SECTION 2. Administration.


 


The Plan shall be administered by the Compensation and Human Resources
Committee or such other committee of directors as the Board may from time to
time designate (the “Committee”), which shall be appointed by and serve
at the pleasure of the Board.


 


The Committee shall have plenary authority to grant Awards pursuant to
the terms of the Plan to officers and employees of the Corporation and its
subsidiaries and Affiliates.


 


Among other things, the Committee shall have the authority, subject to
the terms of the Plan:


 


(a)           To select the
officers and employees, to whom Awards may from time to time be granted;


 


(b)           Determine whether
and to what extent Incentive Stock Options, Nonqualified Stock Options, Stock
Appreciation Rights, Restricted Stock, Performance Units and Bonus Awards or
any combination thereof are to be granted hereunder;


 


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(c)           Determine the number
of shares of Common Stock to be covered by each Award granted hereunder;


 


(d)           Determine the terms
and conditions of any Award granted hereunder (including, but not limited to,
the option price (subject to Section 5(a)), any vesting condition,
restriction or limitation (which may be related to the performance of the
participant, the Corporation or any subsidiary or Affiliate) and any vesting
acceleration or forfeiture waiver regarding any Award and the shares of Common
Stock relating thereto, based on such factors as the Committee shall determine;


 


(e)           Modify, amend or
adjust the terms and conditions of any Award, at any time or from time to time,
including but not limited to Performance Goals; provided, however,
that the Committee may not adjust upwards the amount payable to a designated
Covered Employee with respect to a particular award upon the satisfaction of
applicable Performance Goals;


 


(f)            Determine to what
extent and under what circumstances Common Stock and other amounts payable with
respect to an Award shall be deferred; and


 


(g)           Determine under what
circumstances an Award may be settled in cash or Common Stock under Sections
5(j), 8(b)(i), 10(b), and 11(a)(iii).


 


The Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall
from time to time deem advisable, to interpret the terms and provisions of the
Plan and any Award issued under the Plan (and any agreement relating thereto)
and to otherwise supervise the administration of the Plan.


 


The Committee may act only by a majority of its members then in office,
except that the members thereof may, except to the extent prohibited by
applicable law or the applicable rules of NASDAQ or a stock exchange,
delegate to any one or more of its members or to an officer of the Corporation
all or any part of its responsibilities or powers (provided that no such
delegation may be made that would cause Awards or other transactions under the
Plan to cease to be exempt from Section 16(b) of the Exchange Act or
cause an Award designated as a Qualified Performance Based Award not to qualify
for, or to cease to qualify for, the Section 162(m) Exemption).  Any action permitted to be taken by the
Committee under the Plan may be taken by the full Board in its discretion, and
in such case the Board shall be treated as the Committee hereunder.  Any such delegation may be revoked by the
Committee at any time.


 


Any determination made by the Committee or pursuant to delegated
authority pursuant to the provisions of the Plan with respect to any Award
shall be made in the sole discretion of the Committee or such delegate at the
time of the grant of the Award or, unless in contravention of any express term
of the Plan, at any time thereafter.  All
decisions made by the Committee, the Board or any appropriately delegated
officer


 


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pursuant to the provisions of the Plan shall be final and binding on
all persons, including the Corporation and Plan participants.


 


SECTION 3. Common Stock Subject To
Plan.


 


(a)           The total number of
shares of Common Stock reserved and available for grant under the Plan shall be
20,000,000.  No participant may be
granted Awards pursuant to the Plan covering in excess of 16,000,000 shares of
Common Stock over the life of the Plan. 
Shares subject to an Award under the Plan may be authorized and unissued
shares or may be treasury shares.


 


(b)           If any Award is
forfeited, or if any Stock Option (and related Stock Appreciation Right, if
any) terminates, expires or lapses without being exercised, or if any Stock
Appreciation Right is exercised for cash, shares of Common Stock subject to
such Awards shall again be available for distribution in connection with Awards
under the Plan.  If the Option Price of
any Stock Option granted under the Plan is satisfied by delivering shares of
Common Stock to the Corporation (by either actual delivery or by attestation),
only the number of shares of Common Stock issued net of the shares of Common
Stock delivered or attested to shall be deemed delivered for purposes of
determining the maximum numbers of shares of Common Stock available for
delivery pursuant to Awards other than Incentive Stock Options under the
Plan.  To the extent any shares of Common
Stock subject to an Award are not delivered to a participant because such
shares are used to satisfy an applicable tax-withholding obligation, such
shares shall not be deemed to have been delivered for purposes of determining
the maximum number of shares of Common Stock available for delivery under the
Plan.  The maximum number of shares of
Common Stock that may be issued, pursuant to Stock Options intended to be
Incentive Stock Options shall be 16,000,000 shares.


 


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


 


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


 


(d)           Notwithstanding the
foregoing: (i) any adjustments made pursuant to Section 3(c) to
Awards that are considered “deferred compensation” within the meaning of Section 409A
of the Code shall be made in compliance with the requirements of Section 409A
of the Code; (ii) any adjustments made pursuant to Section 3(c) to
Awards that are not considered “deferred compensation” subject to Section 409A
of the Code shall be made in such a manner as to ensure that after such
adjustment, the Awards either (A) continue not to be subject to Section 409A
of the Code or (B) comply with the requirements of Section 409A of
the Code; and (iii) in any event, neither the Committee


 


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nor the Board shall have the authority to make any adjustments pursuant
to Section 3(c) to the extent the existence of such authority would
cause an Award that is not intended to be subject to Section 409A of the
Code at the grant date to be subject thereto.


 


SECTION 4. Eligibility.


 


Persons who serve or agree to serve as officers, employees, directors
or consultants of the Corporation (including prospective officers, employees or
consultants), its subsidiaries and Affiliates who are responsible for or
contribute to the management, growth and profitability of the business of the
Corporation, its subsidiaries and Affiliates are eligible to be granted Awards
under the Plan.


 


SECTION 5. Stock Options.


 


Stock Options may be granted alone or in addition to other Awards
granted under the Plan and may be of two types: Incentive Stock Options and
Nonqualified Stock Options.  Any Stock Option
granted under the Plan shall be in such form as the Committee may from time to
time approve.


 


The Committee shall have the authority to grant any participant
Incentive Stock Options, Nonqualified Stock Options or both types of Stock
Options (in each case with or without Stock Appreciation Rights); provided,
however, that grants hereunder are subject to the aggregate limit on
grants to individual participants set forth in Section 3.  Incentive Stock Options may be granted only
to employees of the Corporation and its “subsidiaries” and “parent”, if any
(within the meaning of Section 424(f) of the Code).  To the extent that any Stock Option is not
designated as an Incentive Stock Option or even if so designated does not
qualify as an Incentive Stock Option, it shall constitute a Nonqualified Stock
Option.


 


Stock Options shall be evidenced by option agreements, the terms and
provisions of which may differ.  An
option agreement shall indicate on its face whether it is intended to be an
agreement for an Incentive Stock Option or a Nonqualified Stock Option.  The grant of a Stock Option shall occur on
the date the Committee by resolution selects an individual to be a participant
in any grant of a Stock Option, determines the number of shares of Common Stock
to be subject to such Stock Option to be granted to such individual and
specifies the terms and provisions of the Stock Option.  The Corporation shall notify a participant of
any grant of a Stock Option, and a written option agreement or agreements shall
be duly executed and delivered by the Corporation to the participant.  Such grant shall become effective upon the
date of grant (subject to conditions set forth therein), and the execution of
the option agreements(s) may occur following the grant of the Stock Option.


 


Stock Options granted under the Plan shall be subject to the following
terms and conditions and shall contain such additional terms and conditions as
the Committee shall deem desirable:


 


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(a)           Option Price.  The option price per share of Common Stock
purchasable under a Stock Option shall be determined by the Committee and set
forth in the option agreement (the “Option Price”), and shall not be
less than the Fair Market Value of the Common Stock subject to the Stock Option
on the date of grant.


 


(b)           Option Term.  The term of each Stock Option shall be fixed
by the Committee, but no Incentive Stock Option shall be exercisable more than
10 years after the date the Incentive Stock Option is granted.


 


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


 


(d)           Method of
Exercise.  Subject to the provisions
of this Section 5, Stock Options may be exercised, in whole or in part, at
any time during the option term by giving written notice of exercise to the
Corporation specifying the number of shares of Common Stock subject to the
Stock Option to be purchased.


 


Such notice shall be accompanied by payment in full of the purchase
price by certified or bank check or such other instrument as the Corporation
may accept.  If approved by the
Committee, payment, in full or in part, may also be made in the form of
unrestricted Common Stock already owned by the optionee of the same class as
the Common Stock subject to the Stock Option (based on the Fair Market Value of
the Common Stock on the date the Stock Option is exercised); provided, however,
that, in the case of an Incentive Stock Option the right to make a payment in
the form of already owned shares of Common Stock of the same class as the
Common Stock subject to the Stock Option may be authorized only at the time the
Stock Option is granted.


 


In the discretion of the Committee and to the extent permitted by
applicable law, payment for any shares subject to a Stock Option may also be
made by delivering a properly executed exercise notice to the Corporation,
together with a copy of irrevocable instructions to a broker to deliver
promptly to the Corporation the amount of sale or loan proceeds from shares of
Common Stock owned by the optionee necessary to pay the Option Price, and, if
requested, to pay the amount of any federal, state, local or foreign
withholding taxes.  To facilitate the
foregoing, the Corporation may enter into agreements for coordinated procedures
with one or more brokerage firms.


 


In addition, in the discretion of the Committee, payment for any shares
subject to a Stock Option may also be made by instructing the Committee to
withhold a number of such shares having a Fair Market Value on the date of
exercise equal to the aggregate Option Price of such Stock Option.


 


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No shares of Common Stock shall be issued until full payment therefor
has been made.  An optionee shall have
all of the rights of a shareholder of the Corporation holding the class or
series of Common Stock that is subject to such Stock Option (including, if
applicable, the right to vote the shares and the right to receive dividends),
when the optionee has given written notice of exercise, has paid in full for
such shares and, if requested, has given the representation described in Section 14(a).


 


(e)           Nontransferability
of Stock Options.  No Stock Option
shall be transferable by the optionee other than (i) by will or by the
laws of descent and distribution; or (ii) in the case of a Nonqualified
Stock Option, pursuant to (a) a qualified domestic relations order (as
defined in the Code, or the regulations thereunder), (b) a gift to a “family
member” of such optionee or other specified individuals or entities, whether
directly or indirectly or by means of a trust, partnership, limited liability
corporation or otherwise, if expressly permitted under the applicable option
agreement or (c) a gift to a charitable organization, if expressly
permitted under the applicable option agreement.  All Stock Options shall be exercisable,
subject to the terms of this Plan, during the optionee’s lifetime, only by the
optionee or any person to whom the Stock Option is transferred by will or the
laws of descent and distribution or, in the case of a Nonqualified Stock
Option, pursuant to a qualified domestic relations order or a gift permitted
under the applicable option agreement. 
For purposes of this Section 5(e), “family member” shall have the
meaning given to such term in General Instructions A.1(a)(5) to form S-8
under the Securities Act of 1933, as amended, or any successor thereto, except
as otherwise defined by the Committee. 
Such transferees may transfer a Stock Option only by will or the laws of
descent and distribution. 
Notwithstanding any transfer under this Section 5(e), Termination
of Employment under the Plan shall refer to Termination of Employment of the
original participant.


 


(f)            Termination by
Death.  Unless otherwise determined
by the Committee (in the option agreement or otherwise), if an optionee’s
Termination of Employment is by reason of death, any Stock Option held by such
optionee may thereafter be exercised, to the extent then exercisable, or on
such accelerated basis as the Committee may determine, for a period of one year
(or such other period as the Committee may specify in the option agreement)
from the date of such death or until the expiration of the stated term of such
Stock Option, whichever period is the shorter.


 


(g)           Termination by
Reason of Disability.  Unless
otherwise determined by the Committee (in the option agreement or otherwise),
if an optionee’s Termination of Employment is by reason of Disability, any
Stock Option held by such optionee may thereafter be exercised by the optionee,
to the extent it was exercisable at the time of termination, or on such
accelerated basis as the Committee may determine, for a period of 3 years from
the date of such Termination of Employment or until the expiration of the
stated term of such Stock Option, whichever period is the shorter; provided, however,
that if the optionee dies within such period, any unexercised Stock Option held
by such optionee shall, notwithstanding the expiration of such period, continue
to be exercisable


 


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to the extent to which it was exercisable at the time of death for a
period of 12 months from the date of such death or until the expiration of the
stated term of such Stock Option, whichever period is the shorter.  In the event of Termination of Employment by
reason of Disability, if an Incentive Stock Option is exercised after the
expiration of the exercise periods that apply for purposes of Section 422
of the Code, such Stock Option will thereafter be treated as a Nonqualified
Stock Option.


 


(h)           Termination by
Reason of Retirement.  Unless
otherwise determined by the Committee (in the option agreement or otherwise),
if an optionee’s Termination of Employment is by reason of Retirement, any
Stock Option held by such optionee may thereafter be exercised by the optionee,
to the extent it was exercisable at the time of such Retirement, or on such
accelerated basis as the Committee may determine, for a period of 5 years from
the date of such termination of employment or until the expiration of the
stated term of such Stock Option, whichever period is the shorter; provided,
however, that if the optionee dies within such period any unexercised
Stock Option held by such optionee shall, notwithstanding the expiration of
such period, continue to be exercisable to the extent to which it was
exercisable at the time of death for a period of 12 months from the date of
such death or until the expiration of the stated term of such Stock Option,
whichever period is the shorter.  In the
event of Termination of Employment by reason of Retirement, if an Incentive
Stock Option is exercised after the expiration of the exercise periods that
apply for purposes of Section 422 of the Code, such Stock Option will
thereafter be treated as a Nonqualified Stock Option.


 


(i)            Other
Termination.  Unless otherwise
determined by the Committee (in the option agreement or otherwise): (A) if
an optionee incurs a Termination of Employment for Cause, all Stock Options
held by such optionee shall thereupon terminate; and (B) if an optionee
incurs a Termination of Employment for any reason other than death, Disability,
Retirement or Cause, any Stock Option held by such optionee, to the extent then
exercisable, or on such accelerated basis as the Committee may determine, may
be exercised for the lesser of 3 months from the date of such Termination of
Employment or the balance of such Stock Option’s term; provided, however,
that if the optionee dies within such three-month period, any unexercised Stock
Option held by such optionee shall, notwithstanding the expiration of such
3-month period, continue to be exercisable to the extent to which it was
exercisable at the time of death for a period of 12 months from the date of
such death or until the expiration of the stated term of such Stock Option,
whichever period is the shorter. 
Notwithstanding the foregoing, unless otherwise determined by the
Committee (in the option agreement or otherwise), if an optionee incurs a
Termination of Employment at or after a Change in Control (as defined in Section 11(b)),
other than by reason of death, Disability or Retirement, any Stock Option held
by such optionee shall be exercisable for the lesser of (1) 6 months and
one day from the date following such Termination of Employment, and (2) the
balance of such Stock Option’s term.  In
the event of Termination of Employment, if an Incentive Stock Option is
exercised after the expiration of the exercise periods that


 


12

















 


apply for purposes of Section 422 of the Code, such Stock Option
will thereafter be treated as a Nonqualified Stock Option.


 


(j)            Cashing Out of
Stock Option.  On receipt of written
notice of exercise, the Committee may elect to cash out all or part of the
portion of the shares of Common Stock for which a Stock Option is being
exercised by paying the optionee an amount, in cash or Common Stock, equal to
the excess of the Fair Market Value of the Common Stock over the Option Price
times the number of shares of Common Stock for which the Option is being
exercised on the effective date of such cash-out.


 


(k)           Change in Control
Cash-Out.  Notwithstanding any other
provision of the Plan, during the 60-day period from and after a Change in
Control (the “Exercise  Period”), unless the Committee shall
determine otherwise at the time of grant, an optionee shall have the right,
whether or not the Stock Option is fully exercisable and in lieu of the payment
of the Option Price for the shares of Common Stock being purchased under the
Stock Option and by giving notice to the Corporation, to elect (within the
Exercise Period) to surrender all or part of the Stock Option to the
Corporation and to receive cash, within 10 days of such notice, in an amount
equal to the amount by which the Change in Control Price per share of Common
Stock on the date of such election shall exceed the Option Price per share of
Common Stock under the Stock Option (the “Spread”) multiplied by the
number of shares of Common Stock granted under the Stock Option as to which the
right granted under this Section 5(k) shall have been exercised.  Notwithstanding the foregoing, if the
exercise of any right granted pursuant to this Section 5(k) would
make a Change in Control transaction ineligible for pooling of interests
accounting under APB No. 16 that but for this Section 5(k) would
otherwise be eligible for such accounting treatment, the Committee shall have
the ability to substitute the cash payable pursuant to this Section 5(k) with
Common Stock (or shares of common stock of the entity surviving the Change in
Control transaction, or its parent corporation, if applicable) with a Fair
Market Value equal to the cash that would otherwise be payable hereunder.


 


SECTION 6. Stock Appreciation Rights.


 


(a)           Grant and
Exercise.  Stock Appreciation Rights
may be granted in conjunction with all or part of any Stock Option granted
under the Plan.  In the case of a
Nonqualified Stock Option, such rights may be granted either at or after the
time of grant of such Stock Option.  In
the case of an Incentive Stock Option, such rights may be granted only at the
time of grant of such Stock Option.  A
Stock Appreciation Right shall terminate and no longer be exercisable upon the
termination or exercise of the related Stock Option.


 


A Stock Appreciation Right may be exercised by an optionee in
accordance with Section 6(b) by surrendering the applicable portion
of the related Stock Option in accordance with procedures established by the
Committee.  Upon such exercise and
surrender, the optionee shall be entitled to receive an amount determined in
the manner


 


13

















 


prescribed in Section 6(b). 
Stock Options which have been so surrendered shall no longer be
exercisable to the extent the related Stock Appreciation Rights have been
exercised.


 


(b)           Terms and
Conditions.  Stock Appreciation
Rights shall be subject to such terms and conditions as shall be determined by
the Committee, including the following:


 


(i)            Stock Appreciation
Rights shall be exercisable only at such time or times and to the extent that
the Stock Options to which they relate are exercisable in accordance with the
provisions of Section 5 and this Section 6.


 


(ii)           Upon the exercise
of a Stock Appreciation Right, an optionee shall be entitled to receive an
amount in cash, shares of Common Stock or both, in value equal to the excess of
the Fair Market Value of one share of Common Stock over the Option Price per
share specified in the related Stock Option multiplied by the number of shares
in respect of which the Stock Appreciation Right shall have been exercised,
with the Committee having the right to determine the form of payment.


 


(iii)          Stock Appreciation
Rights shall be transferable only to permitted transferees of the underlying
Stock Option in accordance with Section 5(e).


 


(iv)          Upon the exercise of
a Stock Appreciation Right, the Stock Option or part thereof to which such
Stock Appreciation Right is related shall be deemed to have been exercised for
the purpose of the limitation set forth in Section 3 on the number of
shares of Common Stock to be issued under the Plan, but only to the extent of
the number of shares in respect of which the Stock Appreciation Right has been
exercised.


 


SECTION 7. Restricted Stock.


 


(a)           Administration.  Shares of Restricted Stock may be awarded
either alone or in addition to other Awards granted under the Plan.  The Committee shall determine the officers
and employees to whom and the time or times at which grants of Restricted Stock
will be awarded, the number of shares to be awarded to any participant (subject
to the aggregate limit on grants to individual participants set forth in Section 3),
the conditions for vesting, the time or times within which such Awards may be
subject to forfeiture and any other terms and conditions of the Awards, in
addition to those contained in Section 7(c).


 


The Committee may, prior to or at the time of grant, condition the
vesting of or grant of Restricted Stock upon the continued service of the
participant, the attainment of Performance Goals, or both, and may designate an
Award of Restricted Stock as a Qualified Performance-Based Award.  The provisions of Restricted Stock Awards
(including the applicable Performance Goals) need not be the same with respect
to each recipient.


 


14

















 


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


 


“The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions (including
forfeiture) of the Amended and Restated IAC/InterActiveCorp 2000 Stock and
Annual Incentive Plan and a Restricted Stock Agreement.  Copies of such Plan and Agreement are on file
at the offices of IAC/InterActiveCorp.”


 


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


 


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


 


(i)            Subject to the
provisions of the Plan and the Restricted Stock Agreement referred to in Section 7(c)(vi),
during the period, if any, set by the Committee, commencing with the date of
such Award for which such participant’s continued service is required (the “Restriction
Period”), and until the later of (i) the expiration of the Restriction
Period and (ii) the date the applicable Performance Goals (if any)
are  satisfied, the participant shall not
be permitted to sell, assign, transfer, pledge or otherwise encumber shares of
Restricted Stock; provided, that, to the extent permitted by applicable
law, the foregoing shall not prevent a participant from pledging Restricted
Stock as security for a loan, the sole purpose of which is to provide funds to
pay the Option Price for Stock Options. 
Within these limits, the Committee may provide for the lapse of
restrictions based upon period of service in installments or otherwise and may
accelerate or waive, in whole or in part, restrictions based upon period of
service or upon performance; provided, however, that in the case
of Restricted Stock subject to Performance Goals granted to a participant who
is a Covered Employee, the applicable Performance Goals have been satisfied.


 


(ii)           Except as provided
in this paragraph (ii) and Section 7(c)(i) and the Restricted
Stock Agreement, the participant shall have, with respect to the shares of
Restricted Stock, all of the rights of a stockholder of the Corporation holding
the class or series of Common Stock that is the subject of the Restricted
Stock, including, if applicable, the right to vote the shares and the right to
receive any cash dividends.  If so
determined by the Committee in the applicable Restricted Stock Agreement and
subject to Section 14(e) of the Plan, (1) cash dividends on the
class or series of Common Stock that is the subject of the Restricted Stock
Award shall be automatically reinvested in


 


15

















 


additional
Restricted Stock, held subject to the vesting of the underlying Restricted
Stock, or held subject to meeting Performance Goals applicable only to
dividends, (2) dividends payable in Common Stock shall be paid in the form
of Restricted Stock of the same class as the Common Stock with which such
dividend was paid, held subject to the vesting of the underlying Restricted
Stock, or held subject to meeting Performance Goals applicable only to
dividends and (3) dividends payable in shares of a subsidiary of the
Corporation upon a spin-off transaction shall be held as restricted shares
subject to the vesting provisions of the underlying Restricted Stock.


 


(iii)          Except to the
extent otherwise provided in the applicable Restricted Stock Agreement and
Sections 7(c)(i), 7(c)(iv) and 11(a)(ii), upon a participant’s Termination
of Employment for any reason during the Restriction Period or before the
applicable Performance Goals are satisfied, all shares still subject to
restriction shall be forfeited by the participant.


 


(iv)          In the event of a
participant’s Retirement or a participant’s involuntary Termination of
Employment (other than for Cause), the Committee shall have the discretion to
waive, in whole or in part, any or all remaining restrictions (other than, in
the case of Restricted Stock with respect to which a participant is a Covered
Employee, satisfaction of the applicable Performance Goals, unless the
participant’s employment is terminated by reason of death or Disability) with
respect to any or all of such participant’s shares of Restricted Stock.


 


(v)           If and when the
Restriction Period expires without a prior forfeiture of the Restricted Stock,
unlegended certificates for such shares shall be delivered to the participant
upon surrender of the legended certificates.


 


(vi)          Each Award shall be
confirmed by, and be subject to, the terms of a Restricted Stock Agreement.


 


SECTION 8. Performance Units.


 


(a)           Performance Units
may be awarded either alone or in addition to other Awards granted under the
Plan.  The Committee shall determine the
officers and employees to whom and the time or times at which Performance Units
shall be awarded, the number of Performance Units to be awarded to any
participant (subject to the aggregate limit on grants to individual
participants set forth in Section 3), the duration of the Award Cycle and
any other terms and conditions of the Award, in addition to those contained in Section 8(b).


 


The Committee may condition the settlement of or grant of Performance
Units upon the continued service of the participant, the attainment of
Performance Goals, or both, and may designate an Award of Performance Units as
a Qualified Performance-Based Award.  The
provisions of such Awards (including the applicable Performance Goals) need not
be the same with respect to each recipient.


 


16

















 


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


 


(i)            Subject to the
provisions of the Plan and the Performance Units Agreement referred to in Section 8(b)(vi),
Performance Units may not be sold, assigned, transferred, pledged or 11 otherwise
encumbered during the Award Cycle.  At
the expiration of the Award Cycle, the Committee shall evaluate the Corporation’s
performance in light of the Performance Goals for such Award to the extent
applicable, and shall determine the number of Performance Units granted to the
participant which have been earned, and the Committee may then elect to deliver
(1) a number of shares of Common Stock equal to the number of Performance
Units determined by the Committee to have been earned, or (2) cash equal
to the Fair Market Value of such number of shares of Common Stock to the
participant.  Except as otherwise
provided in Section 8(b)(iii) or in the Award, a Performance Unit
shall be settled if and when the Performance Units vest (but no in event later
than two and a half months after the end of the fiscal year in which the
Performance Units vest).


 


(ii)           Except to the
extent otherwise provided in the applicable Performance Unit Agreement and
Sections 8(b)(iii) and 11(a)(iii), upon a participant’s Termination of Employment
for any reason during the Award Cycle or before any applicable Performance
Goals are satisfied, the rights to the shares still covered by the Performance
Units Award shall be forfeited by the participant.


 


(iii)          Except to the
extent otherwise provided in Section 11(a)(iii), upon a participant’s
Termination of Employment (other than for Cause), or in the event of a
participant’s Retirement, the Committee shall have the discretion to waive, in
whole or in part, any or all remaining payment limitations (other than, in the
case of Performance Units with respect to which a participant is a Covered
Employee, satisfaction of any applicable Performance Goals, unless the
participant’s Termination of Employment is by reason of death or Disability)
with respect to any or all of such participant’s Performance Units; provided,
however, if any of such participant’s Performance Units constitute a “nonqualified
deferred compensation plan” within the meaning of Section 409A of the
Code, settlement of such Performance Units shall not occur until the earliest
of (1) date such Performance Units would otherwise be settled pursuant to
the terms of the Performance Unit Agreement and (2) the Participant’s “separation
of service” within the meaning of Section 409A of the Code.


 


(iv)          Each Award shall be
confirmed by, and be subject to, the terms of a Performance Unit Agreement.


 


(v)           The Committee may
determine in the applicable Performance Unit Agreement (or otherwise), whether
and, the manner in which, dividend equivalents shall be payable on the shares
of Common Stock with respect to which Performance Units have been awarded.  In the event that the Committee determines to
provide for the payment of dividend equivalents, such dividend equivalents
shall be subject to vesting


 


17

















 


and payment
restrictions (including the form of payment in cash or Common Stock) as
provided in the underlying Performance Unit.


 


SECTION 9. Tax Offset Bonuses.


 


At the time an Award, other than a Stock Option or Stock Appreciation
Right,is made hereunder or at any time thereafter, the Committee may grant to
the participant receiving such Award the right to receive a cash payment in an
amount specified by the Committee, to be paid at such time or times (if ever)
as the Award results in compensation income to the participant, for the purpose
of assisting the participant to pay the resulting taxes, all as determined by
the Committee and on such other terms and conditions as the Committee shall
determine; provided that any such cash payment shall be structured either (i) to
comply with Section 409A of the Code or (b) to be exempt from Section 409A
of the Code.


 


SECTION 10. Bonus Awards.


 


(a)           Determination of
Awards.  The Committee shall
determine the Bonus Awards for each Plan Year or shorter period, if applicable
(the “Bonus Period”).  Prior to
the beginning of the Bonus Period (or such later date as may be prescribed by
the Internal Revenue Service under Section 162(m) of the Code), the
Committee shall establish Performance Goals for Bonus Awards for the Bonus
Period; provided, that such Performance Goals may be established at a
later date for participants who are not Covered Employees.  Bonus amounts payable to any individual
participant with respect to any calendar year will be limited to a maximum of
$10 million.


 


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


 


(c)           Termination of
Employment.  A participant shall not
be entitled to receive payment of a Bonus Award, unless the annual Performance
Goals for the Bonus Period are satisfied or as otherwise set forth in Section 11,
if at any time prior to the end of the Bonus Period the participant has a
Termination Employment for any reason other than death or Disability.


 


18

















 


SECTION 11. Change In Control
Provisions.


 


(a)           Impact of Event.  Notwithstanding any other provision of the
Plan to the contrary, subject to Section 16, upon a Change in Control:


 


(i)            Any Stock Options
and Stock Appreciation Rights outstanding as of the date of such Change in
Control, and which are not then exercisable and vested, shall become
immediately fully exercisable and vested.


 


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


 


(iii)          All Performance
Units shall be considered to be immediately earned and payable in full, and any
restrictions shall lapse and such Performance Units shall be settled in cash or
shares of Common Stock, as determined by the Committee, as promptly as is
practicable; provided, however, that with respect to any Performance Unit that
constitutes a “nonqualified deferred compensation plan” within the meaning of Section 409A
of the Code, the settlement of such Performance Units pursuant to this Section 10(a)(iii) shall
not occur until the earliest of (1) the Change in Control if such Change
in Control constitutes a “change in the ownership of the corporation,” a “change
in effective control of the corporation” or a “change in the ownership of a
substantial portion of the assets of the corporation,” within the meaning of Section 409A(a)(2)(A)(v) of
the Code, (2) the date such Performance Units would otherwise be settled
pursuant to the terms of the Award Agreement and (3) the Participant’s “separation
of service” within the meaning of Section 409A of the Code.


 


(iv)          To the extent
determined by the Committee, Bonus Awards may be paid in whole or in part to
participants notwithstanding the attainment of Performance Goals.


 


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


 


(i)            The acquisition by
any individual entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act), other than Barry Diller, Liberty Media
Corporation, and their respective Affiliates (a “Person”) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of equity securities of the Corporation representing more than 50% of the
voting power of the then outstanding equity securities of the Corporation
entitled to vote generally in the election of directors (the “Outstanding
Corporation Voting Securities”); provided, however, that for
purposes of this subsection (i), the following acquisitions shall not
constitute a Change of Control: (A) any acquisition by the Corporation, (B) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Corporation or any corporation


 


19

















 


controlled by
the Corporation, or (C) any acquisition by any corporation pursuant to a
transaction which complies with clauses (A), (B) and (C) of
subsection (iii); or


 


(ii)           Individuals who, as
of the Effective Date, constitute the Board (the “Incumbent Board”)
cease for any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the
Effective Date, whose election, or nomination for election by the Corporation’s
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board; or


 


(iii)          Consummation of a
reorganization, merger or consolidation or sale or other disposition of all or
substantially all of the assets of the Corporation or the purchase of assets or
stock of another entity (a “Business Combination”), in each case, unless
immediately following such Business Combination, (A) all or substantially
all of the individuals and entities who were the beneficial owners of the
Outstanding Corporation Voting Securities immediately prior to such Business
Combination will beneficially own, directly or indirectly, more than 50% of the
then outstanding combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors (or
equivalent governing body, if applicable) of the entity resulting from such
Business Combination (including, without limitation, an entity which as a
result of such transaction owns the Corporation or all or substantially all of
the Corporation’s assets either directly or through one or more subsidiaries)
in substantially the same proportions as their ownership, immediately prior to
such Business Combination of the Outstanding Corporation Voting Securities, (B) no
Person (excluding Barry Diller, Liberty Media Corporation, and their respective
Affiliates, any employee benefit plan (or related trust) of the Corporation or
such entity resulting from such Business Combination) will beneficially own,
directly or indirectly, more than a majority of the combined voting power of
the then outstanding voting securities of such entity except to the extent that
such ownership of the Corporation existed prior to the Business Combination and
(C) at least a majority of the members of the board of directors (or
equivalent governing body, if applicable) of the entity resulting from such
Business Combination will have been members of the Incumbent Board at the time
of the initial agreement, or action of the Board, providing for such Business
Combination; or


 


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


 


20

















 


(c)           Change in Control
Price.  For purposes of the Plan, “Change
in Control Price” means the higher of (i) the highest reported sales
price, regular way, of a share of Common Stock in any transaction reported on
the New York Stock Exchange Composite Tape or other national exchange on which
such shares are listed or on NASDAQ during the 60-day period prior to and
including the date of a Change in Control or (ii) if the Change in Control
is the result of a tender or exchange offer or a Business Combination, the
highest price per share of Common Stock paid in such tender or exchange offer
or Business Combination; provided, however, that in the case of
Incentive Stock Options and Stock Appreciation Rights relating to Incentive
Stock Options, the Change in Control Price shall be in all cases the Fair
Market Value of the Common Stock on the date the right set forth in Section 5(k) is
exercised.  To the extent that the
consideration paid in any such transaction described above consists all or in
part of securities or other noncash consideration, the value of such securities
or other noncash consideration shall be determined in the sole discretion of
the Board in compliance with the requirements of Section 409A of the Code.


 


SECTION 12. Term, Amendment And
Termination.


 


The Plan will terminate 10 years after the Effective Date of the Plan; provided,
that the Awards outstanding as of such date shall not be affected or impaired
by the termination of the Plan.


 


The Board may amend, alter, or discontinue the Plan, but no amendment,
alteration or discontinuation shall be made which would impair the rights of an
optionee under a Stock Option or a recipient of a Stock Appreciation Right,
Restricted Stock Award, Performance Unit Award or Bonus Award theretofore
granted without the optionee’s or recipient’s consent, except as required by
applicable law (including without limitation Section 409A of the Code),
NASDAQ or stock exchange rules, tax rules or accounting rules.  In addition, no such amendment shall be made
without the approval of the Corporation’s stockholders to the extent such
approval is required by applicable law, NASDAQ or stock exchange rules or
by agreement.  Notwithstanding anything
to the contrary herein, the Committee or Board may amend or alter the Plan (or
set up a program under the Plan) in such manner as may be necessary so as to
have the Plan conform to local rules and regulations in any jurisdiction
outside the United States.


 


The Committee may amend the terms of any Stock Option or other Award
theretofore granted, but no such amendment shall impair the rights of any
holder of such Award without the holder’s consent, except as required by
applicable law (including without limitation Section 409A of the Code),
NASDAQ or stock exchange rules, tax rules or accounting rules.  No amendment of the Plan or any Award shall
cause a Qualified Performance-Based Award to cease to qualify for the Section 162(m) Exemption
(taking into consideration the deferral of any vesting, settlement or payment
of an Award until a participant is no longer a Covered Employee).  Notwithstanding any provision of the Plan or
an Award Agreement to the contrary, in the event that any term


 


21

















 


of any agreements or other documents evidencing Awards under this Plan
conflicts with any provision of the Plan that specifically pertains to Section 409A
of the Code, the provision of the Plan shall govern.


 


Subject to the above provisions, the Board shall have authority to amend
the Plan to take into account changes in law and tax and accounting rules as
well as other developments, and to grant Awards which qualify for beneficial
treatment under such rules without stockholder approval.


 


SECTION 13. Unfunded Status Of Plan.


 


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


 


SECTION 14. General Provisions.


 


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


 


Notwithstanding any other provision of the Plan or agreements made
pursuant thereto, the Corporation shall not be required to issue or deliver any
certificate or certificates for shares of Common Stock under the Plan prior to
fulfillment of all of the following conditions:


 


(1) Listing or approval for listing upon notice of issuance, of
such shares on NASDAQ or on the New York Stock Exchange, Inc., or such
other securities exchange as may at the time be the principal market for the
Common Stock;


 


(2) Any registration or other qualification of such shares of the
Corporation under any state or federal law or regulation or the maintaining in
effect of any such registration or other qualification which the Committee
shall, in its absolute discretion upon the advice of counsel, deem necessary or
advisable; and


 


22

















 


(3) Obtaining any other consent, approval, or permit from any
state or federal governmental agency which the Committee shall, in its absolute
discretion after receiving the advice of counsel, determine to be necessary or
advisable.


 


(b)           Nothing contained in
the Plan shall prevent the Corporation or any subsidiary or Affiliate from
adopting other or additional compensation arrangements for its employees.


 


(c)           Adoption of the Plan
shall not confer upon any employee any right to continued employment, nor shall
it interfere in any way with the right of the Corporation or any subsidiary or
Affiliate to terminate the employment of any employee at any time.


 


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


 


(e)           Reinvestment of
dividends in additional Restricted Stock or Performance Units at the time of
any dividend payment with respect to Restricted Stock or Performance Units,
respectively, shall only be permissible if sufficient shares of Common Stock
are available under Section 3 for such reinvestment (taking into account
then outstanding Stock Options and other Awards).


 


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


 


(g)           In the case of a
grant of an Award to any employee of a subsidiary or other Affiliate of the
Corporation, the Corporation may, if the Committee so directs, issue or
transfer the shares of Common Stock, if any, covered by the Award to the
subsidiary or such other Affiliate, for such lawful consideration as the
Committee may specify, upon the condition or understanding that the subsidiary
will transfer the shares of Common Stock to the employee in accordance with the
terms of the Award specified by the Committee pursuant to the provisions of the
Plan.


 


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(h)           The Plan and all
Awards made and actions taken thereunder shall be governed by and construed in
accordance with the laws of the State of Delaware, without reference to
principles of conflict of laws.


 


(i)            In the event an
Award is granted to a participant who is employed or providing services outside
the United States and who is not compensated from a payroll maintained in the
United States, the Committee may, in its sole discretion, modify the provisions
of the Plan as they pertain to such individual to comply with applicable
foreign law or to recognize differences in local law, currency or tax policy.  The Committee may also impose conditions on
the exercise or vesting of Awards in order to minimize the Corporation’s
obligations with respect to tax equalization for participants on assignments
outside their home country.


 


SECTION 15. Effective Date Of Plan


 


The Plan shall be effective as of March 11, 2003, the date it was
approved by the Board (the “Effective Date”), subject to later approval
by the Corporation’s stockholders.


 


SECTION 16. Section 409A of the
Code.


 


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


 


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


 


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


 


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SECTION 17. Electronic Distribution
and Acceptance of Award Agreements.


 


Notwithstanding anything to the contrary contained in the Plan with
respect to requirements for written agreements or other documents evidencing
Awards and the execution thereof by the Corporation, the Committee or, except
to the extent prohibited under applicable law, its delegate(s) may
establish that such agreements or other documents evidencing Awards under this
Plan be in electronic form and may, but need not, require as a condition to any
such agreement’s or document’s effectiveness that such agreement or document be
executed by the participant, including by electronic indication of acceptance,
and that such participant agree to such further terms and conditions as
specified in such agreement or document.


 


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