Exhibit
10.4


 


 


JOSTENS HOLDING CORP.


2003 STOCK INCENTIVE PLAN


 


 


EFFECTIVE AS OF OCTOBER 30, 2003


 

















 


Table of Contents


 


	
  1.

  	
  Purposes

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Number of Shares
  Subject to the Plan

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Administration of the Plan

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Eligibility

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Options

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  A.

  	
  Option Price and Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  B.

  	
  Terms
  of Options and Limitations on the Right of Exercise

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  C.

  	
  Termination of
  Employment or Service

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  D.

  	
  Exercise of Options

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  E.

  	
  Non-Transferability
  of Options

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  F.

  	
  Transfer
  Restrictions and Repurchase Rights

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Stock Awards

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Adjustment
  of Shares; Effect of Certain Transactions

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  Right to
  Terminate Employment or Service

  	
   

  
	
   

  	
   

  	
   

  
	
  9.

  	
  Compliance with
  Legal Requirements

  	
   

  
	
   

  	
   

  	
   

  
	
  10.

  	
  Issuance
  of Stock Certificates; Legends; Payment of Expenses

  	
   

  
	
   

  	
   

  	
   

  
	
  11.

  	
  Withholding Taxes

  	
   

  
	
   

  	
   

  	
   

  
	
  12.

  	
  Listing of Shares
  and Related Matters

  	
   

  
	
   

  	
   

  	
   

  
	
  13.

  	
  Amendment of the Plan

  	
   

  
	
   

  	
   

  	
   

  
	
  14.

  	
  Termination or
  Suspension of the Plan

  	
   

  
	
   

  	
   

  	
   

  
	
  15.

  	
  Governing Law

  	
   

  
	
   

  	
   

  	
   

  
	
  16.

  	
  Partial Invalidity

  	
   

  
	
   

  	
   

  	
   

  
	
  17.

  	
  Effective Date

  	
   

  



 

















 


JOSTENS HOLDING CORP.


2003 STOCK INCENTIVE PLAN


 


1.             Purposes


 


Jostens
Holding Corp., a Delaware corporation (the “Company”), desires to afford certain
employees, directors and other persons providing services for the Company or
any parent corporation or subsidiary corporation of the Company now existing or
hereafter formed or acquired who are responsible for the continued growth of
the Company an opportunity to acquire a proprietary interest in the Company,
and thereby create in such persons an increased interest in and a greater
concern for the welfare of the Company and its subsidiaries.


 


The
Company, by means of this 2003 Stock Incentive Plan (the “Plan”), seeks to retain for itself and any
parent corporation or subsidiary corporation of the Company the services of
persons now holding key positions and also to secure and retain the services of
persons capable of filling such positions.


 


The
stock options (“Options”)
and stock awards (“Awards”)
offered pursuant to the Plan are a matter of separate inducement and are not in
lieu of any salary or other compensation for the services of any key employee,
non-employee director or consultant.


 


The
Options granted under the Plan are intended to be either incentive stock
options (“Incentive Options”)
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the “Code”),
or options that do not meet the requirements for Incentive Options (“Non-Qualified Options”).  The Company makes no warranty, however, as
to the qualification of any Option as an Incentive Option.


 


2.             Number of Shares Subject to the Plan


 


Options
and Awards granted under the Plan shall be exercisable for shares of Class B
Common Stock, $0.01 par value per share (the “Class B Common Stock” and together with the
Company’s Class A Common Stock, par value $0.01 per share, the “Common Stock”).  Subject to Section 7 hereof, the total
number of shares of Class B Common Stock of the Company authorized for issuance
upon the exercise of Options or in connection with Awards granted under the Plan
to employees of the Company or any parent corporation or subsidiary corporation
of the Company shall not exceed, in the aggregate, 288,023 shares of the Class
B Common Stock (the “Employee Shares”) and the total number of shares of
Class B Common Stock of the Company authorized for issuance upon the exercise
of Options or in connection with Awards granted under the Plan to directors and
other persons providing services for the Company or any parent corporation or
subsidiary corporation of the Company shall not exceed, in the aggregate,
10,000 shares of the Class B Common Stock (the “Non-Employee Shares” and, together


 

















 


with
the Employee Shares, the “Shares”); provided, that the maximum number of Shares
that may be purchased or acquired upon the exercise of Options or in connection
with Awards granted under the Plan to any one person shall not exceed, in the
aggregate, 70,400 Shares.


 


Shares
available for issuance under the Plan may be either authorized but unissued
Shares, Shares of issued stock held in the Company’s treasury, or both, at the
discretion of the Company.  If and to
the extent that Options or Awards expire or are cancelled or otherwise
terminated under the Plan, the Shares covered by the unexercised portion of
such Options or Awards may again be subject to an Option or Award under the
Plan.


 


Except
as provided in Sections 14 and 17 hereof, the Company may, from time to time
during the period beginning on October 30, 2003 (the “Effective Date”), the date of approval of the
Plan by the Company’s Board of Directors (the “Board”), and ending on July 29, 2013 (the “Termination Date”),
grant to certain employees, directors and other persons providing services for
the Company or any parent corporation or subsidiary corporation of the Company
now existing or hereafter formed or acquired Incentive Options, Non-Qualified
Options, and/or Awards under the terms hereinafter set forth.


 


As
used in the Plan, the term “parent corporation” and “subsidiary corporation” shall mean a
corporation within the definitions of such terms contained in Sections 424(e)
and 424(f) of the Code, respectively.


 


3.             Administration of the Plan


 


The
Board shall administer the Plan, provided that the Board may, from time to
time, designate from among its members a compensation committee, which may also
be any other committee of the Board (the “Committee”), to administer the Plan.  Whenever the Company shall have any class of
equity securities registered pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), the Committee shall be composed solely
of two or more members who are “Non-Employee Directors” within the meaning of Rule
16b-3, as amended (“Rule 16b-3”)
promulgated under the Exchange Act and “Outside Directors” within the meaning of Treasury
Regulation Section 1.162-27(e)(3) under Section 162(m) of the Code, and shall
meet such other conditions as required by Rule 16b-3 or other applicable rules
under Section 16(b) of the Exchange Act. 
A majority of the members of the Committee shall constitute a quorum and
the act of a majority of the members of the Committee shall be the act of the
Committee.  If the Board administers the
Plan, then any reference herein, or in any agreement granting Options or Awards
pursuant to the Plan, to the Committee shall, unless the context otherwise
requires, include references to the Board, as appropriate.


 


Subject
to the express provisions of the Plan, the Committee shall have the authority,
in its sole discretion, to determine the employees, directors and service
providers to the Company or any parent corporation or subsidiary corporation to
whom


 


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Options
or Awards shall be granted (the “Optionholders”), the time when such persons shall be
granted Options or Awards, the number of Shares which shall be subject to each
Option or Award, the purchase price of each Share which shall be subject to
each Option or Award, the period(s) during which such Options shall be
exercisable (whether in whole or part), and the other terms and provisions
thereof (which need not be identical). 
In determining the persons to whom Options or Awards shall be granted
and the number of Shares for which Options or Awards are to be granted to each
person, the Committee shall give due consideration to, among other things, the
length of service, performance and the responsibilities and duties of such
person.


 


Subject
to the express provisions of the Plan, the Committee also shall have the
authority to construe the Plan and the Options and Awards granted hereunder, to
prescribe, amend and rescind rules and regulations relating to the Plan, to
determine the terms and provisions of the Options and Awards (which need not be
identical) and to make all other determinations necessary or advisable for
administering the Plan.


 


The
Committee may establish performance standards for determining the periods
during which Options or Awards shall be granted or exercisable, including
without limitation, standards based on the earnings of the Company and its
subsidiaries for various fiscal periods. 
The Committee shall define such performance criteria and, from time to
time, the Committee in its sole discretion and in administering the Plan may
make such adjustments to such performance criteria for any fiscal period so
that extraordinary or unusual charges or credits, changes to capital
expenditure plans, acquisitions, mergers, consolidations, and other corporate
transactions and other elements of or factors influencing the calculations of
earnings or any other performance standard do not distort or affect the
operation of the Plan in an a manner inconsistent with the achievement of its
purpose.


 


Any
determination of the Committee on the matters referred to in this Section 3
shall be conclusive.


 


The
Committee may delegate to one or more of its members, or to one or more agents,
such administrative duties as it may deem advisable, and the Committee, or any
person to whom it has delegated duties as aforesaid, may employ one or more
persons to render advice with respect to any responsibility the Committee or
such person may have under the Plan. 
The Committee may employ such legal or other counsel, consultants and
agents as it may deem desirable for the administration of the Plan and may rely
upon any opinion or computation received from any such counsel, consultant or
agent.  Expenses incurred by the
Committee in the engagement of such counsel, consultant or agent shall be paid
by the Company or such subsidiary corporation or parent corporation of the
Company whose employees have benefited from the Plan, as determined by the
Committee.  No member or former member
of the Board or the Committee shall be liable for any action or determination
made in good faith with respect to the Plan or any Awards or Options granted
hereunder.


 


3

















 


4.             Eligibility


 


Options
or Awards may be granted only to key employees, non-employee directors and
consultants providing services to the Company or any parent corporation or
subsidiary corporation of the Company now existing or hereafter formed or
acquired; provided, however that Incentive Options may only be
granted to key employees of the Company or any parent corporation or subsidiary
corporation of the Company now existing or hereafter formed or acquired.  The Plan does not create a right in any
person to participate in, or be granted Options or Awards under, the Plan.


 


5.             Options


 


A.    Option
Price and Payment


 


The
price for each Share purchasable under any Option granted hereunder shall be determined
by the Committee; provided, however, that in the case of an
Incentive Option, the purchase price for each Share shall not be less than one
hundred percent (100%) of the Fair Market Value (as defined below) per Share at
the date the Option is granted; and provided further, that in the case
of an Incentive Option granted to a key employee who, at the time such Option
is granted, owns stock possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or any subsidiary
corporation or parent corporation, the purchase price for each Share shall be
not less than one hundred ten percent (110%) of the Fair Market Value per Share
at the date the Option is granted.  In
determining the stock ownership of a key employee for any purpose under the
Plan, the rules of Section 424(d) of the Code shall be applied, and the
Committee may rely on representations of fact made to it by the key employee
and believed by it to be true.


 


For
purposes of the Plan, the “Fair Market Value” of the Shares with respect to any
date of determination, means:


 


(i)            $87.12 per Share as of
the date hereof;


 


(ii)           if the Shares are
listed or admitted to trading on a national securities exchange in the United
States or reported through The Nasdaq Stock Market (“Nasdaq”) then the closing sale price on such
exchange or Nasdaq on such date or, if no trading occurred or quotations were
available on such date, then the closest preceding date on which such Shares
were traded or quoted; or


 


(iii)          if not so listed or
reported but a regular, active public market for the Shares exists (as
determined in the sole discretion of the Committee, whose discretion shall be
conclusive and binding), then the average of the closing bid and ask quotations
per Share in the over-the-counter market for such Shares in the United States
on such date or, if no such quotations are available on such date, then on the
closest date preceding such date.  For
purposes of the foregoing, a market in which trading is sporadic and the ask
quotations generally exceed the bid quotations by more than fifteen percent
(15%) shall not be deemed to be a “regular, active public market.”


 


4

















 


If the
Board determines that a regular, active public market does not exist for the
Shares, the Board shall determine the Fair Market Value of the Shares in its
good faith judgment based on the total number of shares of Common Stock then
outstanding, taking into account all outstanding options, warrants, rights or
other securities exercisable or exchangeable for, or convertible into, shares
of Common Stock.  The Board shall make
its determination of Fair Market Value from time to time not less than annually
(the “Valuation”)
and such determination shall remain in effect until the Board makes the next
Valuation (provided that, at any relevant date of determination, the Valuation
approximates the Fair Market Value at that date and, if it does not, the Board
shall make a new determination of Fair Market Value which shall apply
retroactively at such date of determination). 
Notwithstanding the foregoing, if an investment banker or appraiser
appointed by the Company makes a determination of Fair Market Value subsequent
to a Valuation, such subsequent determination shall supersede the Valuation
then in effect and shall establish the Fair Market Value until the next
Valuation.


 


For
purposes of this Plan, the determination of the Board of the Fair Market Value
shall be conclusive.


 


Upon
the exercise of an Option granted hereunder, the Company shall cause the
purchased Shares to be issued only when it shall have received the full
purchase price therefor in cash; provided, however, that in lieu
of cash, the holder of an Option may, if the terms of such Option so provide and
to the extent permitted by applicable law, exercise an Option (a) in whole or
in part, by delivering to the Company shares of Class B Common Stock (in proper
form for transfer and accompanied by all requisite stock transfer tax stamps or
cash in lieu thereof) owned by such holder having a Fair Market Value equal to
the cash exercise price applicable to that portion of the Option being
exercised, the Fair Market Value of the shares of Class B Common Stock so
delivered to be determined as of the date immediately preceding the date of
exercise, or as otherwise may be required to comply with or conform to the
requirements of any applicable law or regulations, or (b) by delivering to the
Company such other form of payment as the Committee shall permit in its sole
discretion at the time of grant of the Option; provided that any such shares of
Class B Common Stock to be delivered by the holder of an Option shall have been
owned by such holder for at least six (6) months.


 


B.    Terms
of Options and Limitations on the Right of Exercise


 


Any
Option granted hereunder shall be exercisable at such times, in such amounts
and during such period or periods as the Committee shall determine at the date
of the grant of such Option; provided, however, that an Incentive
Option shall not be exercisable after the expiration of ten (10) years from the
date such Option is granted; and provided further, that in the case of
an Incentive Option granted to a key employee who, at the time such Incentive
Option is granted, owns stock possessing more than ten percent (10%) of the
total combined voting power of all classes of stock of the Company or of any
subsidiary corporation or parent corporation of the Company, such Incentive
Option shall not be exercisable after the expiration of five (5) years from the
date such Incentive Option is granted.


 


5

















 


The
Committee shall have the right to accelerate, in whole or in part, from time to
time, conditionally or unconditionally, rights to exercise any Option granted
hereunder.


 


To the
extent that an Option granted hereunder is not exercised within the period of
exercisability specified therein, it shall expire as to the then unexercised
part.


 


Except
as otherwise provided under the Code, to the extent that the aggregate Fair
Market Value of stock for which Incentive Options (under all stock option plans
of the Company and of any parent corporation or subsidiary corporation of the
Company) are exercisable for the first time by a key employee during any calendar
year exceeds one hundred thousand dollars ($100,000), such Options shall be
treated as Non-Qualified Options.  For
purposes of this limitation, (a) the Fair Market Value of stock is determined
as of the time the Option is granted and (b) Options will be taken into account
in the order in which they were granted.


 


In no
event shall an Option granted hereunder be exercised for a fraction of a Share.


 


A
person entitled to receive Shares upon the exercise of an Option granted
hereunder shall not have the rights of a stockholder with respect to such
Shares until the date of issuance of a stock certificate to him or her for such
Shares; provided, however, that until such stock certificate is
issued, any holder of an Option using previously acquired shares of Common
Stock in payment of the exercise price shall continue to have the rights of a
stockholder with respect to such previously acquired shares of Common Stock.


 


C.    Termination
of Employment or Service


 


Upon
termination of employment of any employee or termination of service of any
non-employee director or of any consultant with the Company and all subsidiary
corporations and parent corporations of the Company, any Option previously
granted to such person, unless otherwise specified by the Committee in the
agreement granting such Option or otherwise, to the extent not theretofore
exercised, shall terminate and become null and void; provided, however,
that:


 


(i)            if any Optionholder
shall die while in the employ or service of such corporation or during either
the ninety (90) day or thirty (30) day period, whichever is applicable,
specified in clauses (ii) and (iii) below, any Option granted hereunder, unless
otherwise specified by the Committee in the letter granting such Option, shall
be exercisable for any or all of such number of Shares that such Optionholder
is entitled to purchase at the time of death, by the legal representative of
such Optionholder or by such person who acquired such Option by bequest or
inheritance or by reason of the death of such Optionholder, at any time up to
and including ninety (90) days after the date of death;


 


(ii)           if the employment or
service of any Optionholder shall terminate by reason of such Optionholder’s
Disability (as defined below), any Option granted


 


6

















 


hereunder, unless otherwise specified by the Committee
in the letter granting such Option, shall be exercisable for any or all of such
number of Shares that such Optionholder is entitled to purchase at the
effective date of termination of employment or service by reason of Disability,
at any time up to and including ninety (90) days after the effective date of
such termination of employment or service;


 


(iii)          (x) in the case of an
employee, if the employment of such employee shall terminate (i) by reason of
the employee’s retirement (at such age or upon such conditions as shall be
specified by the Committee in the letter granting such Option) or (ii) by the
Company or a subsidiary corporation or parent corporation of the Company other
than for Cause, and (y) in the case of a non-employee director or consultant,
if the service of such director or consultant shall terminate (i) by reason of
the non-employee director’s voluntary retirement from service as a director,
(ii) due to failure on the part of the Company or a subsidiary corporation or
parent corporation of the Company to retain or nominate for re-election such
director who is otherwise eligible, unless due to an act of (a) fraud or
intentional misrepresentation or (b) embezzlement, misappropriation or
conversion of assets or opportunities of the Company or any subsidiary
corporation or parent corporation of the Company, or (iii) by the Company or a
subsidiary corporation or parent corporation of the Company other than for
Cause, any Option granted hereunder, unless otherwise specified by the
Committee in the letter granting such Option, shall be exercisable for any or
all of such number of Shares that such Optionholder is entitled to exercise at
the effective date of termination of employment or service, at any time up to
and including thirty (30) days after the effective date of such termination of
employment or service; and


 


(iv)          if the employment or
service of any Optionholder shall terminate by any reason other than that
provided for in clauses (i), (ii) or (iii) above, any Option granted hereunder,
unless otherwise specified by the Committee in the letter granting such Option
shall, to the extent not theretofore exercised, become null and void.


 


None
of the events described in clauses (i), (ii) or (iii) above shall extend the
period of exercisability of the Option beyond the expiration date thereof.


 


If an
Option granted hereunder shall be exercised by the legal representative of a
deceased Optionholder or by a person who acquired an Option granted hereunder
by bequest or inheritance or by reason of the death of any current or former
employee, non-employee director or consultant, written notice of such exercise
shall be accompanied by a certified copy of letters testamentary or equivalent
proof of the right of such legal representative or other person to exercise
such Option.


 


For
purposes of the Plan, the term “for Cause” shall mean (a) with respect to an employee
who is a party to a written employment agreement with the Company or a
subsidiary corporation or parent corporation of the Company, which agreement
contains a definition of “for cause” or “cause” (or words of like import) for
purposes of termination of employment or services thereunder by the Company or
such subsidiary corporation or parent corporation of the Company, “for cause”
or “cause” as defined therein; or (b) in all other cases, as determined by the
Committee or the Board in its sole discretion, (i) the


 


7

















 


intentional
or willful commission or failure due to bad faith by an Optionholder of an act
that causes or may cause substantial damage or significant injury to the
Company or a subsidiary corporation or parent corporation of the Company; (ii)
the commission by an Optionholder of an act of fraud or willful dishonesty in
the performance of such Optionholder’s duties on behalf of the Company or a
subsidiary corporation or parent corporation of the Company; (iii) conviction
of an Optionholder for commission of a felony or a plea of guilty or nolo
contendere to a felony; (iv) the breach by an Optionholder of any
non-competition, non-solicitation or confidentiality provision or agreement
entered into with the Company or a subsidiary corporation or parent corporation
of the Company; (v) the Optionholder’s being repeatedly under the influence of
illegal drugs and alcohol while performing his duties to the Company or a
subsidiary corporation or parent corporation of the Company, or (vi) the
continuing willful failure of an Optionholder to perform the duties of such
Optionholder to the Company or a subsidiary corporation or parent corporation
of the Company that has not been cured within fifteen (15) days after written
notice thereof has been given to the Optionholder by the Committee or its
designee.


 


For
purposes of the Plan, the term “Disability” means (i) with respect to an Optionholder
who is a party to a written employment agreement with the Company, which
agreement contains a definition for “disability” or “permanent disability” (or
words of like import) for purposes of termination of employment thereunder by
the Company, “disability” or “permanent disability” in the most recent
agreements, or (ii) in all other cases, means, as determined by the Committee
or the Board in its sole discretion, such Optionholder’s inability to perform
substantially his or her duties and responsibilities to the Company or any
subsidiary corporation or parent corporation any reason of physical or mental
illness, injury, infirmity or condition for a continuous period of six (6)
months or one or more periods aggregating twelve (12) months in any two-year
period.


 


For
purposes of the Plan, an employment relationship shall be deemed to exist
between an individual and a corporation if, at the time of determination, the
individual is an “employee” of such corporation for purposes of Section 422(a)
of the Code.  An employment relationship
shall be deemed to continue while an individual is on a bona fide leave of
absence if the period of such leave does not exceed ninety (90) days or, if
longer, if such individual’s right to reemployment is guaranteed by statute or
contract.


 


A
termination of employment shall not be deemed to occur by reason of (i) the
transfer of an employee from employment by the Company to employment by a
subsidiary corporation or a parent corporation of the Company or (ii) the
transfer of an employee from employment by a subsidiary corporation or a parent
corporation of the Company to employment by the Company or by another subsidiary
corporation or parent corporation of the Company.


 


8

















 


D.    Exercise of Options


 


Subject
to the limitations on exercise referred to in Sections 5.B and 5.C hereof,
Options granted under the Plan shall be exercised by the Optionholder as to all
or part of the Shares covered thereby by giving written notice of exercise to
the Corporate Secretary of the Company at the principal business office of the
Company, specifying the number of Shares to be purchased (including the class
of such Shares), and specifying a business day not more than ten (10) days from
the date such notice is given for the payment of the purchase price against
delivery of the Shares being purchased. 
Subject to the terms of Sections 9, 10 and 11 hereof, the Company shall
cause certificates for the Shares so purchased to be delivered at the principal
business office of the Company, against payment of the full purchase price, on
the date specified in the notice of exercise.


 


E.     Non-Transferability
of Options


 


An
Option granted hereunder shall not be transferable, whether by operation of law
or otherwise, other than, in the case of Non-Qualified Options, to (a) any
spouse, lineal descendant, sibling, parent, heir, executor, administrator, testamentary
trustee, legatee or beneficiary of such Optionholder or (B) a trust that is for
the exclusive benefit of such Optionholder or the person set forth under clause
(a) above (each a “Permitted Transferee”),
and any Option granted hereunder shall be exercisable, during the lifetime of
the holder, only by such holder.  Except
to the extent provided above, Options may not be assigned, transferred,
pledged, hypothecated or disposed of in any way (whether by operation of law or
otherwise) and shall not be subject to execution, attachment or similar
proceeding.  Any attempted assignment,
transfer, pledge, hypothecation or other disposition of an Option granted
hereunder contrary to the provisions hereof, and the levy of any attachment or
similar proceeding upon such Option, shall be null and void and without effect.


 


F.     Transfer
Restrictions and Repurchase Rights


 


It
shall be a condition to the grant of any Option hereunder that the Optionholder
agrees to become bound by certain transfer restrictions and repurchase rights
set forth in the agreement granting such Option, which provisions may be
amended or modified from time to time as more fully specified by the Committee
in connection with the grant of the Option.


 


6.             Stock Awards


 


The
Committee may, in its discretion, grant Awards (which may include mandatory
payment of bonus incentive compensation in stock) consisting of Class B Common
Stock issued or transferred to participants with or without other payments
therefor.  Awards may be subject to such
terms and conditions as the Committee determines appropriate, including,
without limitation, restrictions on the sale or other disposition of such
Shares, and the right of the Company to reacquire such Shares for no
consideration upon termination of the participant’s employment or service
within specified periods.  The Committee
may require the participant to deliver a duly signed


 


9

















 


stock
power, endorsed in blank, relating to the Class B Common Stock covered by such
an Award.  The Committee may also
require that the stock certificates evidencing such Shares be held in custody
or bear restrictive legends until the restrictions thereon shall have lapsed.  The Award shall specify whether the
participant shall have, with respect to the Shares subject to an Award, all of
the rights of a holder of Class B Common Stock, including the right to receive
dividends and to vote the Shares.  It
shall be a condition to the grant of any Award hereunder that the participant
agree to become bound by certain transfer restrictions and repurchase rights
set forth in the agreement granting such Award, which provisions may be amended
or modified from time to time as more fully specified by the Committee in
connection with the grant of the Award.


 


7.             Adjustment of Shares; Effect of Certain
Transactions


 


If by
reason of a corporate merger, consolidation, acquisition of property or stock,
separation, reorganization, recapitalization or liquidation the Board shall
authorize the issuance or assumption of a stock option in a transaction to
which Section 424(a) of the Code applies, then, notwithstanding any other
provision of this Plan, the Board may grant an option upon such terms and
conditions as it may deem appropriate for the purpose of assumption of old
option, or substitution of a new option for the old option, in conformity with
the provisions of said Section 424(a) of the Code and the Treasury Regulations
thereunder.


 


Notwithstanding
any other provision contained herein, in the event of any change in the Shares
subject to the Plan or to any Option or other right to acquire Shares granted
under the Plan (through merger, consolidation, reorganization,
recapitalization, stock dividend, stock split, split-up, split-off, spin-off,
combination of shares, exchange of shares, or other like change in the capital
structure of the Company), an adjustment shall be made to each outstanding
Option or other right to acquire Shares under the Plan such that each such
Option or right shall thereafter be exercisable for such securities, cash
and/or other property as would have been received in respect of the Shares
subject to such Option or right had such Option or right been exercised in full
immediately prior to such change, and such an adjustment shall be made
successively each time any such change shall occur.  The term “Shares” after any such change shall refer to the
securities, cash and/or property then receivable upon exercise of an Option or
other right to acquire Shares under the Plan. 
In addition, in the event of any such change, the Committee shall make
any further adjustment to the maximum number of Shares which may be acquired
under the Plan pursuant to the exercise of Options or other right to acquire
Shares, the maximum number of Shares for which Options or Awards may be granted
to any one participant and the number of Shares and exercise price per Share
subject to outstanding Options or other right to acquire Shares under the Plan
as shall be equitable to prevent dilution or enlargement of rights under such
Options or rights, and the determination of the Committee as to these matters
shall be conclusive and binding on the Optionholder; provided, however,
that (a) each such adjustment with respect to an Incentive Option shall comply
with the rules of Section 424(a) of the Code (or any successor provision) and
(b) in no event shall any adjustment be made which would render any Incentive
Option granted hereunder other than an “incentive stock option” as defined in
Section 422 of the Code.


 


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Except
as specifically provided in the agreement granting the Option or Award, in the
event of a Change in Control (as defined below), and in anticipation thereof if
required by the circumstances, the Board, in its sole discretion may also (i)
accelerate the exercisability, prior to the effective date of such change in
control, of additional percentages of all outstanding Options granted under
this Plan (and redesignate as Non-Qualified Options any Options or portions
thereof that were originally designated as Incentive Options but that no longer
so qualify under Section 422 of the Code), (ii) arrange, if there is a
surviving or acquiring corporation, subject to the consummation of a change in
control, to have that corporation or an affiliate of that corporation grant to
employees and other optionholders replacement options with substantially
similar or, if not adverse to the optionholders, different provisions with
respect to exercisability (upon which grant the Options granted under this Plan
shall immediately terminate and be of no further force or effect) which,
however, in the case of Incentive Options, satisfy, in the determination of the
Board, the requirements of Section 424(a) of the Code, (iii) cancel all outstanding
Options in exchange for consideration in cash or in kind in an amount equal to
the value of the Shares, as determined by the Board in good faith, the
optionholder would have received had the Option been exercised (to the extent
then exercisable or to a greater extent, including in full, as the Board may
determine) less the option price therefor (upon which cancellation such Options
shall immediately terminate and be of no further force or effect), (iv) cancel
all outstanding options to the extent then exercisable for no consideration,
(v) permit the purchaser of the Company’s stock or assets to deliver to the
optionholders the same kind of consideration that is delivered to the
stockholders of the Company in cancellation of such Options in an amount equal
to the value of the Shares as determined by the Board in good faith, the
optionholder would have received had the Option been exercised (to the extent
then exercisable or to a greater extent, including in full, as the Board may
determine), less the option price therefor, or (vi) take any combination (or
none) of the foregoing actions.


 


For
purposes of the Plan, a “Change in Control” shall occur if (a) any person or
other entity (other than any of the Company’s subsidiaries), including any
person as defined in Section 13(d)(3) of the Exchange Act, other than (1) (A) DLJ Merchant Banking Partners III, L.P., DLJ
Offshore Partners III-1, C.V., DLJ Offshore Partners III-2, C.V., DLJ Offshore
Partners III, C.V., DLJMB Partners III GmbH & Co. KG, Millennium Partners
II, L.P. and MBP III Plan Investors, L.P. (the “DLJMB Funds”), (B) any shareholder,
member or general or limited partner of any DLJMB Fund (a “DLJMB  Partner”), and any corporation, partnership, limited
liability company, or other entity that is an Affiliate (as defined below) of
any DLJMB Partner (collectively, “DLJMB  Affiliates”), (C) any managing director, general
partner, director, limited partner, officer or employee of any DLJMB Fund or
any DLJMB Affiliate, or any spouse, lineal descendant, sibling, parent, heir,
executor, administrator, testamentary trustee, legatee or beneficiary of any of
the foregoing persons described in this clause (C) (collectively, “DLJMB  Associates”), or (D)
any trust the beneficiaries of which, or any corporation, limited liability
company or partnership the stockholders, members or general or limited partners
of which, include only such DLJMB Funds, DLJMB Affiliates, DLJMB Associates,
their spouses or other lineal descendants, or (2) any “group” (within the
meaning of Section 13(d)(3) of the Exchange Act) of which any DLJMB Fund is
part, becomes the beneficial owner, as defined in Rule 13d-3 of the


 


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Exchange
Act, directly or indirectly, in a single transaction or a series of related
transactions, by way of merger, consolidation or other business combination,
securities of the Company representing more than fifty-one percent (51%) of the
total combined voting power of all classes of capital stock of the Company (or
its successor) normally entitled to vote for the election of directors of the
Company or (b) the sale of all or substantially all of the property or assets
of the Company to any unaffiliated person or entity other than one of the
Company’s subsidiaries is consummated. 
For purposes of this Plan, an “Affiliate” means, with respect to any person, any other
person directly or indirectly controlling, controlled by or under common
control with such person; provided that no securityholder of the Company or any
parent corporation or subsidiary corporation of the Company shall be deemed an
Affiliate of any person solely by reason of an investment in the Company or any
parent corporation or subsidiary corporation of the Company.  For the purposes of this Plan, the term “control” (including,
with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as used with respect to any
person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such person,
whether through the ownership of voting securities, by contract or otherwise.


 


8.             Right to Terminate Employment or
Service


 


The
Plan shall not impose any obligation on the Company or on any subsidiary
corporation or parent corporation thereof to continue the employment or service
of any Optionholder and it shall not impose any obligation on the part of any
Optionholder to remain in the employ or service of the Company or any
subsidiary corporation or parent corporation thereof.


 


9.             Compliance with Legal Requirements


 


The
Committee may refuse to issue or transfer any Shares or other consideration
under an Option if, acting in its sole discretion, it determines that the
issuance or transfer of such Shares or such other consideration might violate
any applicable law or regulation or entitle the Company to recover the same
under Section 16(b) of the Exchange Act, and any payment tendered to the
Company by an Optionholder in connection therewith shall be promptly refunded
to the relevant Optionholder.  Without
limiting the generality of the foregoing, no Option granted hereunder shall be
construed as an offer to sell securities of the Company, unless and until the
Committee in its sole discretion has determined that any such offer, if made,
would be in compliance with all applicable requirements of the federal and
state securities laws and any other laws to which such offer, if made, would be
subject.


 


10.          Issuance of Stock Certificates;
Legends; Payment of Expenses


 


Upon
any exercise of an Option or acquisition of Shares granted hereunder and
payment of the purchase price therefor, a certificate or certificates
representing the Shares shall be issued by the Company in the name of the
person exercising the Option and shall be delivered to or upon the order of
such person.


 


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The
Company may endorse such legend or legends upon the certificates for Shares
issued pursuant to the Plan and may issue such “stop transfer” instructions to
its transfer agent in respect of such Shares as the Committee, in its sole
discretion, determines to be necessary or appropriate to (a) prevent a
violation of, or to comply with the procedures for an exemption from, the
registration requirements of the Securities Act, (b) implement the provisions
of the Plan and any agreement between the Company and the Optionholder with
respect to such Shares or (c) permit the Company to determine the occurrence of
a disqualifying disposition, as described in Section 421(b) of the Code, of
Shares transferred upon exercise of an Incentive Option granted under the Plan.


 


The
Company shall pay all issue or transfer taxes with respect to the issuance or
transfer of Shares, as well as all fees and expenses necessarily incurred by
the Company in connection with such issuance or transfer, except fees and
expenses which may be necessitated by the filing or amending of a registration
statement under the Securities Act, which fees and expenses shall be borne by
the recipient of the Shares unless such registration statement has been filed
by the Company for its own corporate purposes (and the Company so states).


 


All
Shares issued as provided herein shall be fully paid and nonassessable to the
extent permitted by law.


 


11.          Withholding Taxes


 


All
payments or distributions of Options or Awards made pursuant to the Plan shall
be net of any amounts required to be withheld pursuant to applicable federal,
state and local tax withholding requirements. 
If the Company proposes or is required to distribute Class B Common
Stock pursuant to the Plan, it may require the recipient to remit to it or to
the corporation that employs such recipient an amount sufficient to satisfy
such tax withholding requirements prior to the delivery of any certificates for
such Class B Common Stock.  In lieu
thereof, the Company or the employing corporation shall have the right to
withhold the amount of such taxes from any other sums due or to become due from
such corporation to the recipient as the Committee shall prescribe.  The Committee may, in its discretion and
subject to such rules as it may adopt (including any as may be required to
satisfy applicable tax and/or non-tax regulatory requirements), permit an
optionee or award or right holder to pay all or a portion of the federal, state
and local withholding taxes arising in connection with any Option or Award
consisting of shares of Class B Common Stock by electing to have the Company
withhold shares of Class B Common Stock having a Fair Market Value equal to the
amount of tax to be withheld, such tax calculated at rates required by statute
or regulation; provided that any such shares withheld shall have been owned by
the optionee or award or right holder for at least six (6) months.


 


12.          Listing of Shares and Related Matters


 


If at
any time the Committee shall determine that the listing, registration or
qualification of the Shares subject to an Option or other right to acquire
Shares on any securities exchange or under any applicable law, or the consent
or approval of any


 


13

















 


governmental
regulatory authority, is necessary or desirable as a condition of, or in
connection with, the granting of an Option or Award, or the issuance of Shares
thereunder, such Option or Award may not be exercised in whole or in part
unless such listing, registration, qualification, consent or approval shall
have been effected or obtained free of any conditions not acceptable to the
Committee.


 


13.          Amendment of the Plan


 


The
Board may, from time to time, amend the Plan, provided that no amendment shall
be made, without the approval of the stockholders of the Company, that will (a)
increase the total number of Shares issuable under the Plan or the maximum
number of Shares for which Options and Awards may be granted to any one
Optionholder (other than an increase resulting from an adjustment provided for
in Section 7 hereof), (b) reduce the exercise price of any Incentive Option
granted hereunder or (c) modify the provisions of the Plan relating to
eligibility.  The Committee shall be
authorized to amend the Plan and the Options granted thereunder to permit the
Incentive Options granted thereunder to qualify as “incentive stock options”
within the meaning of Section 422 of the Code and the Treasury Regulations
promulgated thereunder.  The rights and
obligations under any Option or Award granted before amendment of the Plan or
any unexercised portion of such Option or Award shall not be adversely affected
by amendment of the Plan or the Option or Award without the consent of the
holder of such Option or Award.


 


14.          Termination or Suspension of the Plan


 


The
Board may at any time suspend or terminate the Plan.  The Plan, unless sooner terminated under Section 17 or by action
of the Board, shall terminate at the close of business on the Termination
Date.  Options or Awards may not be
granted while the Plan is suspended or after it is terminated.  Rights and obligations under any Option or
Award granted while the Plan is in effect shall not be altered or impaired by
suspension or termination of the Plan, except upon the consent of the person to
whom the Option or other right was granted. 
The power of the Committee to construe and administer any Options or Awards
under Section 3 that are granted prior to the termination or suspension of the
Plan shall continue after such termination or during such suspension.


 


15.          Governing Law


 


The
Plan, the Options and Awards granted hereunder and all related matters shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware from time to time obtaining.


 


16.          Partial Invalidity


 


The
invalidity or illegality of any provision herein shall not be deemed to affect
the validity of any other provision.


 


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17.          Effective Date


 


The
Plan shall become effective at 5:00 P.M., New York City time, on the Effective
Date; provided, however, that if the Plan is not approved by a vote of the
stockholders of the Company at an annual meeting or any special meeting, or by
unanimous written consent of the stockholders, within (12) months after the
Effective Date, the Plan and any Options and Awards granted thereunder shall
terminate.


 


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