Exhibit 4.1


 


REDDY ICE HOLDINGS, INC.


2005 LONG TERM INCENTIVE AND SHARE AWARD PLAN


(as Amended through March 19,
2010)


 


1.  Purposes.


 


The
purposes of the 2005 Long Term Incentive and Share Award Plan are to advance
the interests of Reddy Ice Holdings, Inc. and its shareholders by
providing a means to attract, retain, and motivate employees, consultants and
directors of the Company, its subsidiaries and affiliates, to provide for
competitive compensation opportunities, to encourage long term service, to recognize
individual contributions and reward achievement of performance goals, and to
promote the creation of long term value for stockholders by aligning the
interests of such persons with those of stockholders.


 


2.  Definitions.


 


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


 


(a)                                  “Affiliate”
means any entity other than the Company and its Subsidiaries that is designated
by the Board or the Committee as a participating employer under the Plan; provided, however, that the Company
directly or indirectly owns at least 20% of the combined voting power of all
classes of stock of such entity or at least 20% of the ownership interests in
such entity.


 


(b)                                 “Award” means
any Option, SAR, Restricted Share, Restricted Share Unit, Performance Share,
Performance Unit, Dividend Equivalent, or Other Share- Based Award granted to
an Eligible Person under the Plan.


 


(c)                                  “Award
Agreement” means any written agreement, contract, or other instrument or
document evidencing an Award.


 


(d)                                 “Beneficiary”
means the person, persons, trust or trusts which have been designated by an
Eligible Person in his or her most recent written beneficiary designation filed
with the Company to receive the benefits specified under this Plan upon the
death of the Eligible Person, or, if there is no designated Beneficiary or
surviving designated Beneficiary, then the person, persons, trust or trusts
entitled by will or the laws of descent and distribution to receive such
benefits.


 


(e)                                  “Board” means
the Board of Directors of the Company.


 


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


 


(g)                                 “Committee”
means the Compensation Committee of the Board, or such other Board committee
(which may include the entire Board) as may be designated by the Board to
administer the Plan; provided, however,
that, unless otherwise determined by the Board, the Committee shall consist of
two or more directors of the Company, each of whom is a “non-employee director”
within the meaning of Rule 16b-3 under the Exchange Act, to the extent
applicable, and each of whom is an “outside director” within the meaning of Section 162(m) of
the Code, to the extent applicable; provided,
further, that the mere fact that the Committee shall fail to qualify
under either of the foregoing requirements shall not invalidate any Award made
by the Committee which Award is otherwise validly made under the Plan.


 


(h)                                 “Company” means
Reddy Ice Holdings, Inc., a corporation organized under the laws of
Delaware, or any successor corporation.


 

















 


(i)                                     “Director”
means a member of the Board who is not an employee of the Company, a Subsidiary
or an Affiliate.


 


(j)                                     “Dividend
Equivalent” means a right, granted under Section 5(g), to receive cash,
Shares, or other property equal in value to dividends paid with respect to a
specified number of Shares. Dividend Equivalents may be awarded on a
free-standing basis or in connection with another Award, and may be paid
currently or on a deferred basis.


 


(k)                                  “Eligible
Person” means (i) an employee or consultant of the Company, a Subsidiary
or an Affiliate, including any director who is an employee, or (ii) a
Director. Notwithstanding any provisions of this Plan to the contrary, an Award
may be granted to an employee, consultant or Director, in connection with his
or her hiring or retention prior to the date the employee, consultant or
Director first performs services for the Company, a Subsidiary or an Affiliate;
provided, however, that any such
Award shall not become vested or exercisable prior to the date the employee,
consultant or Director first performs such services.


 


(l)                                     “Exchange Act”
means the Securities Exchange Act of 1934, as amended from time to time.
References to any provision of the Exchange Act shall be deemed to include
successor provisions thereto and regulations thereunder.


 


(m)                               “Fair Market
Value” means, with respect to Shares or other property, the fair market value
of such Shares or other property determined by such methods or procedures as
shall be established from time to time by the Committee. If the Shares are
listed on any established stock exchange or a national market system, unless
otherwise determined by the Committee in good faith, the Fair Market Value of
Shares shall mean the mean between the high and low selling prices per Share on
the immediately preceding date (or, if the Shares were not traded on that day,
the next preceding day that the Shares were traded) on the principal exchange
or market system on which the Shares are traded, as such prices are officially
quoted on such exchange.


 


(n)                                 “ISO” means any
Option intended to be and designated as an incentive stock option within the
meaning of Section 422 of the Code.


 


(o)                                 “NQSO” means
any Option that is not an ISO.


 


(p)                                 “Option” means
a right, granted under Section 5(b), to purchase Shares.


 


(q)                                 “Other Share-Based
Award” means a right, granted under Section 5(h), that relates to or is
valued by reference to Shares.


 


(r)                                    “Participant”
means an Eligible Person who has been granted an Award under the Plan.


 


(s)                                  “Performance
Share” means a performance share granted under Section 5(f).


 


(t)                                    “Performance
Unit” means a performance unit granted under Section 5(f).


 


(u)                                 “Plan” means
this 2005 Long Term Incentive and Share Award Plan.


 


(v)                                 “Restricted
Shares” means an Award of Shares under Section 5(d) that may be
subject to certain restrictions and to a risk of forfeiture.


 


(w)                               “Restricted
Share Unit” means a right, granted under Section 5(e), to receive Shares
or cash at the end of a specified deferral period.


 

















 


(x)                                   “Rule 16b-3”
means Rule 16b-3, as from time to time in effect and applicable to the
Plan and Participants, promulgated by the Securities and Exchange Commission
under Section 16 of the Exchange Act.


 


(y)                                 “SAR” or “Share
Appreciation Right” means the right, granted under Section 5(c), to be
paid an amount measured by the difference between the exercise price of the
right and the Fair Market Value of Shares on the date of exercise of the right,
with payment to be made in cash, Shares, or property as specified in the Award
or determined by the Committee.


 


(z)                                   “Shares” means
common stock, $0.01 par value per share, of the Company, and such other
securities as may be substituted for Shares pursuant to Section 4(c) hereof.


 


(aa)                            “Subsidiary”
means any corporation (other than the Company) in an unbroken chain of
corporations beginning with the Company if each of the corporations (other than
the last corporation in the unbroken chain) owns shares possessing 50% or more
of the total combined voting power of all classes of stock in one of the other
corporations in the chain.


 


(bb)                          “Termination of
Service” means the termination of the Participant’s employment, consulting
services or directorship with the Company, its Subsidiaries and its Affiliates,
as the case may be. A Participant employed by a Subsidiary of the Company or
one of its Affiliates shall also be deemed to incur a Termination of Service if
the Subsidiary of the Company 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 or director of, or a consultant to, the Company,
another Subsidiary of the Company or an Affiliate. Temporary absences from
employment because of illness, vacation or leave of absence and transfers among
the Company and its Subsidiaries and Affiliates shall not be considered a
Termination of Service.


 


3. 
Administration.


 


(a)  Authority of the Committee.  The Plan shall be administered by the
Committee, and the Committee shall have full and final authority to take the
following actions, in each case subject to and consistent with the provisions
of the Plan:


 


(i)                                     to select
Eligible Persons to whom Awards may be granted;


 


(ii)                                  to designate
Affiliates;


 


(iii)         to determine
the type or types of Awards to be granted to each Eligible Person;


 


(iv)                              to determine
the type and number of Awards to be granted, the number of Shares to which an
Award may relate, the terms and conditions of any Award granted under the Plan
(including, but not limited to, any exercise price, grant price, or purchase
price, any restriction or condition, any schedule for lapse of restrictions or
conditions relating to transferability or forfeiture, exercisability, or
settlement of an Award, and waiver or accelerations thereof, and waivers of
performance conditions relating to an Award, based in each case on such
considerations as the Committee shall determine), and all other matters to be
determined in connection with an Award;


 


(v)                                 to determine
whether, to what extent, and under what circumstances an Award may be settled,
or the exercise price of an Award may be paid, in cash, Shares, other Awards,
or other property, or an Award may be canceled, forfeited, exchanged, or
surrendered;


 


(vi)                              to determine
whether, to what extent, and under what circumstances cash, Shares, other
Awards, or other property payable with respect to an Award will be deferred
either automatically, at the election of the Committee, or at the election of
the Eligible Person;


 

















 


(vii)                           to prescribe
the form of each Award Agreement, which need not be identical for each Eligible
Person;


 


(viii)                        to adopt,
amend, suspend, waive, and rescind such rules and regulations and appoint
such agents as the Committee may deem necessary or advisable to administer the
Plan;


 


(ix)                                to correct any
defect or supply any omission or reconcile any inconsistency in the Plan and to
construe and interpret the Plan and any Award, rules and regulations,
Award Agreement, or other instrument hereunder;


 


(x)                                   to accelerate
the exercisability or vesting of all or any portion of any Award or to extend
the period during which an Award is exercisable;


 


(xi)                                to determine
whether uncertificated Shares may be used in satisfying Awards and otherwise in
connection with the Plan; and


 


(xii)                             to make all
other decisions and determinations as may be required under the terms of the
Plan or as the Committee may deem necessary or advisable for the administration
of the Plan.


 


(b)  Manner of Exercise of Committee Authority.  The Committee shall have sole discretion in
exercising its authority under the Plan. Any action of the Committee with
respect to the Plan shall be final, conclusive, and binding on all persons,
including the Company, Subsidiaries, Affiliates, Eligible Persons, any person
claiming any rights under the Plan from or through any Eligible Person, and
shareholders. The express grant of any specific power to the Committee, and the
taking of any action by the Committee, shall not be construed as limiting any
power or authority of the Committee. The Committee may delegate to other
members of the Board or officers or managers of the Company or any Subsidiary
or Affiliate the authority, subject to such terms as the Committee shall
determine, to perform administrative functions and, with respect to Awards
granted to persons not subject to Section 16 of the Exchange Act, to
perform such other functions as the Committee may determine, to the extent permitted
under Rule 16b-3 (if applicable) and applicable law.


 


(c)  Limitation of Liability.  Each member of the Committee shall be
entitled to, in good faith, rely or act upon any report or other information
furnished to him or her by any officer or other employee of the Company or any
Subsidiary or Affiliate, the Company’s independent certified public
accountants, or other professional retained by the Company to assist in the
administration of the Plan. No member of the Committee, and no officer or
employee of the Company acting on behalf of the Committee, shall be personally
liable for any action, determination, or interpretation taken or made in good
faith with respect to the Plan, and all members of the Committee and any
officer or employee of the Company acting on their behalf shall, to the extent
permitted by law, be fully indemnified and protected by the Company with
respect to any such action, determination, or interpretation.


 


(d)  Limitation on Committee’s Discretion.  Anything in this Plan to the contrary
notwithstanding, in the case of any Award which is intended to qualify as “performance-based
compensation” within the meaning of Section 162(m)(4)(C) of the Code,
if the Award Agreement so provides, the Committee shall have no discretion to
increase the amount of compensation payable under the Award to the extent such
an increase would cause the Award to lose its qualification as such performance-based
compensation.


 


(e)  No Option or SAR Repricing Without Shareholder
Approval.  Except as provided
in the first sentence of Section 4(c) hereof relating to certain
antidilution adjustments, unless the approval of shareholders of the Company is
obtained, Options and SARs issued under the Plan shall not be amended to lower
their exercise price and Options and SARs issued under the Plan will not be
exchanged for other Options or SARs with lower exercise prices.


 


4.  Shares
Subject to the Plan.


 


(a)                                  Subject to
adjustment as provided in Section 4(c) hereof, the total number of
the Shares reserved for issuance in connection with Awards under the Plan shall
not exceed an aggregate of 4,750,000; provided, 


 

















 


however, that with respect
to grants on or after April 14, 2009, no more than 2,000,000 Shares may be
issued in a form of an Award other than an Option or SAR. No Award may be
granted if the number of Shares to which such Award relates, when added to the
number of Shares previously issued under the Plan, exceeds the number of Shares
reserved under the applicable provisions of the preceding sentence. If any Awards
are forfeited, canceled, terminated, exchanged or surrendered or such Award is
settled or otherwise terminates without a distribution of Shares to the
Participant, any Shares counted against the number of Shares reserved and
available under the Plan with respect to such Award shall, to the extent of any
such forfeiture, settlement, termination, cancellation, exchange or surrender,
be again available for Awards under the Plan; provided, however, that any
Shares surrendered or withheld as payment of either the exercise price of an
Award and/or withholding taxes with respect to an Award shall not again be made
available for Awards under the Plan. The Company may not make available for
future Awards Shares that are purchased using the proceeds from the exercise of
Options. Notwithstanding anything to the contrary contained herein, all Shares
covered by an SAR, to the extent that it is exercised and settled in Shares,
shall be considered issued or transferred pursuant to the Plan. Upon the
exercise of any Award granted in tandem with any other Awards, such related
Awards shall be cancelled to the extent the number of Shares as to which the
Award is exercised.


 


(b)                                 Subject to
adjustment as provided in Section 4(c) hereof, the maximum number of
Shares (i) with respect to which Options or SARs may be granted during a
calendar year to any Eligible Person under this Plan shall be 500,000 Shares,
and (ii) with respect to Performance Shares, Performance Units, Restricted
Shares or Restricted Share Units intended to qualify as performance-based
compensation within the meaning of Section 162(m)(4)(C) of the Code
shall be the equivalent of 500,000 Shares during a calendar year to any
Eligible Person under this Plan.


 


(c)                                  In the event
that the Committee shall determine that any dividend in Shares,
recapitalization, Share split, reverse split, reorganization, merger,
consolidation, spin-off, combination, repurchase, or share exchange, or other
similar corporate transaction or event, affects the Shares such that an
adjustment is appropriate in order to prevent dilution or enlargement of the
rights of Eligible Persons under the Plan, then the Committee shall make such
equitable changes or adjustments as it deems appropriate and, in such manner as
it may deem equitable, adjust any or all of (i) the number and kind of
shares which may thereafter be issued under the Plan, (ii) the number and
kind of shares, other securities or other consideration issued or issuable in
respect of outstanding Awards, and (iii) the exercise price, grant price,
or purchase price relating to any Award; provided,
however, in each case that, with respect to ISOs, such adjustment
shall be made in accordance with Section 424(a) of the Code, unless
the Committee determines otherwise. In addition, the Committee is authorized to
make adjustments in the terms and conditions of, and the criteria and
performance objectives, if any, included in, Awards in recognition of unusual
or non-recurring events (including, without limitation, events described in the
preceding sentence) affecting the Company or any Subsidiary or Affiliate or the
financial statements of the Company or any Subsidiary or Affiliate, or in
response to changes in applicable laws, regulations, or accounting principles; provided, however, that, if an Award
Agreement specifically so provides, the Committee shall not have discretion to
increase the amount of compensation payable under the Award to the extent such
an increase would cause the Award to lose its qualification as performance-based
compensation for purposes of Section 162(m)(4)(C) of the Code and the
regulations thereunder.


 


(d)                                 Any Shares
distributed pursuant to an Award may consist, in whole or in part, of
authorized and unissued Shares or treasury Shares including Shares acquired by
purchase in the open market or in private transactions.


 


5.  Specific
Terms of Awards.


 


(a)  General. 
Awards may be granted on the terms and conditions set forth in this Section 5.
In addition, the Committee may impose on any Award or the exercise thereof, at
the date of grant or thereafter (subject to Section 9(d)), such additional
terms and conditions, not inconsistent with the provisions of the Plan, as the
Committee shall determine, including terms regarding forfeiture of Awards or
continued exercisability of Awards in the event of Termination of Service by
the Eligible Person.


 


(b)  Options. 
The Committee is authorized to grant Options, which may be NQSOs or
ISOs, to Eligible Persons on the following terms and conditions:


 

















 


(i)  Exercise Price.  The exercise price per Share purchasable
under an Option shall be determined by the Committee; provided, however, that the exercise price
per Share of an Option shall not be less than the Fair Market Value of a Share
on the date of grant of the Option. The Committee may, without limitation, set
an exercise price that is based upon achievement of performance criteria if
deemed appropriate by the Committee.


 


(ii)  Option Term.  The term of each Option shall be determined
by the Committee; provided, however,
that such term shall not be longer than ten years from the date of grant of the
Option.


 


(iii)  Time and Method of
Exercise.  The Committee shall
determine at the date of grant or thereafter the time or times at which an
Option may be exercised in whole or in part (including, without limitation,
upon achievement of performance criteria if deemed appropriate by the
Committee), the methods by which such exercise price may be paid or deemed to
be paid (including, without limitation, broker-assisted exercise arrangements),
the form of such payment (including, without limitation, cash, Shares, notes or
other property), and the methods by which Shares will be delivered or deemed to
be delivered to Eligible Persons; provided,
however, that in no event may any portion of the exercise price be
paid with Shares acquired either under an Award granted pursuant to this Plan,
upon exercise of a stock option granted under another Company plan or as a
stock bonus or other stock award granted under another Company plan unless, in
any such case, the Shares were acquired and vested more than six months in
advance of the date of exercise.


 


(iv)  Early Exercise.  The Committee may provide at the time of
grant or any time thereafter, in its sole discretion, that any Option shall be
exercisable with respect to Shares that otherwise would not then be
exercisable, provided that, in connection with such exercise, the Participant
enters into a form of Restricted Share agreement approved by the Committee.


 


(v)  ISOs.  The terms of any ISO granted under the Plan
shall comply in all respects with the provisions of Section 422 of the
Code, including but not limited to the requirement that the ISO shall be
granted within ten years from the earlier of the date of adoption or
shareholder approval of the Plan. ISOs may only be granted to employees of the
Company or a Subsidiary.


 

















 


(c)  SARs. 
The Committee is authorized to grant SARs (Share Appreciation Rights) to
Eligible Persons on the following terms and conditions:


 


(i)  Right to Payment.  A SAR shall confer on the Eligible Person to
whom it is granted a right to receive with respect to each Share subject
thereto, upon exercise thereof, the excess of (1) the Fair Market Value of
one Share on the date of exercise (or, if the Committee shall so determine in the
case of any such right, the Fair Market Value of one Share at any time during a
specified period before or after the date of exercise) over (2) the
exercise price per Share of the SAR as determined by the Committee as of the
date of grant of the SAR (which shall not be less than the Fair Market Value
per Share on the date of grant of the SAR and, in the case of a SAR granted in
tandem with an Option, shall be equal to the exercise price of the underlying
Option).


 


(ii)  Other Terms.  The Committee shall determine, at the time of
grant or thereafter, the time or times at which a SAR may be exercised in whole
or in part (which shall not be more than ten years after the date of grant of
the SAR), the method of exercise, method of settlement, form of consideration
payable in settlement, method by which Shares will be delivered or deemed to be
delivered to Eligible Persons, whether or not a SAR shall be in tandem with any
other Award, and any other terms and conditions of any SAR. Unless the
Committee determines otherwise, a SAR (1) granted in tandem with an NQSO
may be granted at the time of grant of the related NQSO or at any time
thereafter and (2) granted in tandem with an ISO may only be granted at
the time of grant of the related ISO.


 


(d)  Restricted Shares.  The Committee is authorized to grant
Restricted Shares to Eligible Persons on the following terms and conditions:


 


(i)  Issuance and Restrictions.  Restricted Shares shall be subject to such
restrictions on transferability and other restrictions, if any, as the
Committee may impose at the date of grant or thereafter, which restrictions may
lapse separately or in combination at such times, under such circumstances
(including, without limitation, upon achievement of performance criteria if
deemed appropriate by the Committee), in such installments, or otherwise, as
the Committee may determine. Except to the extent restricted under the Award
Agreement relating to the Restricted Shares, an Eligible Person granted
Restricted Shares shall have all of the rights of a shareholder including,
without limitation, the right to vote Restricted Shares and the right to
receive dividends thereon.


 


(ii)  Forfeiture.  Except as otherwise determined by the
Committee, at the date of grant or thereafter, upon Termination of Service
during the applicable restriction period, Restricted Shares and any accrued but
unpaid dividends or Dividend Equivalents that are at that time subject to
restrictions shall be forfeited; provided,
however, that the Committee may provide, by rule or regulation
or in any Award Agreement, or may determine in any individual case, that
restrictions or forfeiture conditions relating to Restricted Shares will be
waived in whole or in part in the event of Termination of Service resulting
from specified causes, and the Committee may in other cases waive in whole or
in part the forfeiture of Restricted Shares.


 


(iii)  Certificates for Shares.  Restricted Shares granted under the Plan may
be evidenced in such manner as the Committee shall determine. If certificates
representing Restricted Shares are registered in the name of the Eligible
Person, such certificates shall bear an appropriate legend referring to the
terms, conditions, and restrictions applicable to such Restricted Shares, the
Company shall retain physical possession of the certificate and the Participant
shall deliver a stock power to the Company, endorsed in blank, relating to the
Restricted Shares.


 


(iv)  Dividends.  Dividends paid on Restricted Shares shall be
either paid at the dividend payment date, or deferred for payment to such date
as determined by the Committee, in cash or in unrestricted Shares having a Fair
Market Value equal to the amount of such dividends. Shares distributed in
connection with a Share split or dividend in Shares, and other property
distributed as 


 

















 


a
dividend, shall be subject to restrictions and a risk of forfeiture to the same
extent as the Restricted Shares with respect to which such Shares or other
property has been distributed.


 


(v)  Early Exercise Options.  The Committee shall award Restricted Shares
to a Participant upon the Participant’s early exercise of an Option under Section 5(b)(iv) hereof.
Unless otherwise determined by the Committee, the lapse of restrictions with
respect to such Restricted Shares shall occur on the same schedule as the
exercisability of the Option for which the Restricted Shares were exercised.


 


(e)  Restricted Share Units.  The Committee is authorized to grant
Restricted Share Units to Eligible Persons, subject to the following terms and
conditions:


 


(i)  Award and Restrictions.  Delivery of Shares or cash, as the case may
be, will occur upon expiration of the deferral period specified for Restricted
Share Units by the Committee (or, if permitted by the Committee, as elected by
the Eligible Person). In addition, Restricted Share Units shall be subject to
such restrictions as the Committee may impose, if any (including, without
limitation, the achievement of performance criteria if deemed appropriate by
the Committee), at the date of grant or thereafter, which restrictions may
lapse at the expiration of the deferral period or at earlier or later specified
times, separately or in combination, in installments or otherwise, as the
Committee may determine.


 


(ii)  Forfeiture.  Except as otherwise determined by the
Committee at date of grant or thereafter, upon Termination of Service during
the applicable deferral period or portion thereof to which forfeiture
conditions apply (as provided in the Award Agreement evidencing the Restricted
Share Units), or upon failure to satisfy any other conditions precedent to the
delivery of Shares or cash to which such Restricted Share Units relate, all
Restricted Share Units that are at that time subject to deferral or restriction
shall be forfeited; provided, however,
that the Committee may provide, by rule or regulation or in any Award
Agreement, or may determine in any individual case, that restrictions or
forfeiture conditions relating to Restricted Share Units will be waived in
whole or in part in the event of Termination of Service resulting from
specified causes, and the Committee may in other cases waive in whole or in
part the forfeiture of Restricted Share Units.


 


(iii)  Dividend Equivalents.  Unless otherwise determined by the Committee
at date of grant, Dividend Equivalents on the specified number of Shares
covered by a Restricted Share Unit shall be either (A) paid with respect
to such Restricted Share Unit at the dividend payment date in cash or in
unrestricted Shares having a Fair Market Value equal to the amount of such
dividends, or (B) deferred with respect to such Restricted Share Unit and
the amount or value thereof automatically deemed reinvested in additional
Restricted Share Units or other Awards, as the Committee shall determine or
permit the Participant to elect.


 


(f)  Performance Shares and Performance Units.  The Committee is authorized to grant
Performance Shares or Performance Units or both to Eligible Persons on the
following terms and conditions:


 


(i)  Performance Period.  The Committee shall determine a performance
period (the “Performance Period”) of one or more years and shall determine the
performance objectives for grants of Performance Shares and Performance Units.
Performance objectives may vary from Eligible Person to Eligible Person and
shall be based upon the performance criteria as the Committee may deem
appropriate. The performance objectives may be determined by reference to the
performance of the Company, or of a Subsidiary or Affiliate, or of a division
or unit of any of the foregoing. Performance Periods may overlap and Eligible
Persons may participate simultaneously with respect to Performance Shares and
Performance Units for which different Performance Periods are prescribed.


 


(ii)  Award Value.  At the beginning of a Performance Period, the
Committee shall determine for each Eligible Person or group of Eligible Persons
with respect to that Performance Period the range of number of Shares, if any,
in the case of Performance Shares, and the range of dollar values, if any, in
the case of Performance Units, which may be fixed or may vary in 


 

















 


accordance
with such performance or other criteria specified by the Committee, which shall
be paid to an Eligible Person as an Award if the relevant measure of Company
performance for the Performance Period is met.


 


(iii)  Significant Events.  If during the course of a Performance Period
there shall occur significant events as determined by the Committee which the
Committee expects to have a substantial effect on a performance objective
during such period, the Committee may revise such objective; provided, however, that, if an Award
Agreement so provides, the Committee shall not have any discretion to increase
the amount of compensation payable under the Award to the extent such an increase
would cause the Award to lose its qualification as performance-based
compensation for purposes of Section 162(m)(4)(C) of the Code and the
regulations thereunder.


 


(iv)  Forfeiture.  Except as otherwise determined by the
Committee, at the date of grant or thereafter, upon Termination Service during
the applicable Performance Period, Performance Shares and Performance Units for
which the Performance Period was prescribed shall be forfeited; provided, however, that the Committee may
provide, by rule or regulation or in any Award Agreement, or may determine
in an individual case, that restrictions or forfeiture conditions relating to
Performance Shares and Performance Units will be waived in whole or in part in
the event of Terminations of Service resulting from specified causes, and the
Committee may in other cases waive in whole or in part the forfeiture of
Performance Shares and Performance Units.


 


(v)  Payment.  Each Performance Share or Performance Unit
may be paid in whole Shares, or cash, or a combination of Shares and cash
either as a lump sum payment or in installments, all as the Committee shall
determine, at the time of grant of the Performance Share or Performance Unit or
otherwise, commencing as soon as practicable after the end of the relevant Performance
Period.


 


(g)  Dividend Equivalents.  The Committee is authorized to grant Dividend
Equivalents to Eligible Persons. The Committee may provide, at the date of
grant or thereafter, that Dividend Equivalents shall be paid or distributed
when accrued or shall be deemed to have been reinvested in additional Shares,
or other investment vehicles as the Committee may specify; provided, however, that Dividend
Equivalents (other than freestanding Dividend Equivalents) shall be subject to
all conditions and restrictions of the underlying Awards to which they relate.


 


(h)  Other Share-Based Awards.  The Committee is authorized, subject to
limitations under applicable law, to grant to Eligible Persons such other
Awards that may be denominated or payable in, valued in whole or in part by
reference to, or otherwise based on, or related to, Shares, as deemed by the
Committee to be consistent with the purposes of the Plan, including, without
limitation, unrestricted shares awarded purely as a “bonus” and not subject to
any restrictions or conditions, other rights convertible or exchangeable into
Shares, purchase rights for Shares, Awards with value and payment contingent
upon performance of the Company or any other factors designated by the
Committee, and Awards valued by reference to the performance of specified
Subsidiaries or Affiliates. The Committee shall determine the terms and
conditions of such Awards at date of grant or thereafter. Shares delivered
pursuant to an Award in the nature of a purchase right granted under this Section 5(h) shall
be purchased for such consideration, paid for at such times, by such methods,
and in such forms, including, without limitation, cash, Shares, notes or other
property, as the Committee shall determine. Cash awards, as an element of or
supplement to any other Award under the Plan, shall also be authorized pursuant
to this Section 5(h).


 


6.  Certain
Provisions Applicable to Awards.


 


(a)  Stand-Alone, Additional, Tandem and Substitute
Awards.  Awards granted under
the Plan may, in the discretion of the Committee, be granted to Eligible
Persons either alone or in addition to, in tandem with, or in exchange or
substitution for, any other Award granted under the Plan or any award granted
under any other plan or agreement of the Company, any Subsidiary or Affiliate,
or any business entity to be acquired by the Company or a Subsidiary or
Affiliate, or any other right of an Eligible Person to receive payment from the
Company or any Subsidiary or Affiliate. Awards may be granted in addition to or
in tandem with such other Awards or awards, and may be granted either as of the
same time as or a different time from the grant of such other Awards or awards.
Subject to the provisions of Section 3(e) hereof prohibiting Option
and SAR repricing without shareholder approval, 


 

















 


the
per Share exercise price of any Option, or grant price of any SAR, which is
granted, in connection with the substitution of awards granted under any other
plan or agreement of the Company or any Subsidiary or Affiliate or any business
entity to be acquired by the Company or any Subsidiary or Affiliate, shall be
determined by the Committee, in its discretion.


 


(b)  Term of Awards.  The term of each Award granted to an Eligible
Person shall be for such period as may be determined by the Committee; provided, however, that in no event shall
the term of any Option or SAR exceed a period of ten years from the date of its
grant (or such shorter period as may be applicable under Section 422 of
the Code).


 


(c)  Form of Payment Under Awards.  Subject to the terms of the Plan and any
applicable Award Agreement, payments to be made by the Company or a Subsidiary
or Affiliate upon the grant, maturation, or exercise of an Award may be made in
such forms as the Committee shall determine at the date of grant or thereafter,
including, without limitation, cash, Shares, notes or other property, and may
be made in a single payment or transfer, in installments, or on a deferred
basis. The Committee may make rules relating to installment or deferred
payments with respect to Awards, including the rate of interest to be credited
with respect to such payments, and the Committee may require deferral of
payment under an Award if, in the sole judgment of the Committee, it may be
necessary in order to avoid nondeductibility of the payment under Section 162(m) of
the Code.


 


(d)  Nontransferability.  Unless otherwise set forth by the Committee
in an Award Agreement, Awards shall not be transferable by an Eligible Person
except by will or the laws of descent and distribution (except pursuant to a
Beneficiary designation) and shall be exercisable during the lifetime of an
Eligible Person only by such Eligible Person or his guardian or legal
representative. An Eligible Person’s rights under the Plan may not be pledged,
mortgaged, hypothecated, or otherwise encumbered, and shall not be subject to
claims of the Eligible Person’s creditors.


 


(e)  Noncompetition.  The Committee may, by way of the Award
Agreements or otherwise, establish such other terms, conditions, restrictions
and/or limitations, if any, of any Award, provided they are not inconsistent
with the Plan, including, without limitation, the requirement that the
Participant not engage in competition with the Company.


 


7.  Performance
Awards.


 


(a)  Performance Awards Granted to Covered Employees.  If the Committee determines that an Award
(other than an Option or SAR) to be granted to an Eligible Person should
qualify as “performance-based compensation” for purposes of Section 162(m) of
the Code, the grant, vesting, exercise and/or settlement of such Award (each, a
“Performance Award”) shall be contingent upon achievement of preestablished
performance goals and other terms set forth in this Section 7(a).


 


(i)  Performance Goals
Generally.  The performance
goals for such Performance Awards shall consist of one or more business
criteria and a targeted level or levels of performance with respect to each of
such criteria, as specified by the Committee consistent with this Section 7(a).
The performance goals shall be objective and shall otherwise meet the
requirements of Section 162(m) of the Code and regulations thereunder
(including Treasury Regulation 1.162-27 and successor regulations
thereto), including the requirement that the level or levels of performance
targeted by the Committee result in the achievement of performance goals being “substantially
uncertain.” The Committee may determine that such Performance Awards shall be
granted, vested, exercised and/or settled upon achievement of any one
performance goal or that two or more of the performance goals must be achieved
as a condition to grant, vesting, exercise and/or settlement of such
Performance Awards. Performance goals may differ for Performance Awards granted
to any one Participant or to different Participants.


 


(ii)  Business Criteria.  One or more of the following business
criteria for the Company, on a consolidated basis, and/or for specified
Subsidiaries or Affiliates or other business units or lines of business of the
Company shall be used by the Committee in establishing performance goals for
such Performance Awards: (1) earnings per share (basic or fully diluted); (2) revenues;



 

















 


(3) earnings,
before or after taxes, from operations (generally or specified operations), or
before or after interest expense, depreciation, amortization, incentives, or
extraordinary or special items; (4) cash flow, free cash flow, cash flow
return on investment (discounted or otherwise), net cash provided by
operations, or cash flow in excess of cost of capital; (5) return on net
assets, return on assets, return on investment, return on capital, return on
equity; (6) economic value added; (7) operating margin or operating
expense; (8) net income; (9) Share price or total stockholder return;
(10) earnings before income taxes, interest, depreciation and amortization
expenses as further adjusted to give effect to unusual items, non-cash items
and other adjustments, (11) earned distributable cash per share and
(12) strategic business criteria, consisting of one or more objectives
based on meeting specified market penetration, geographic business expansion
goals, cost targets, customer satisfaction, supervision of litigation and
information technology, and goals relating to acquisitions or divestitures of
Subsidiaries, Affiliates or joint ventures. The targeted level or levels of
performance with respect to such business criteria may be established at such
levels and in such terms as the Committee may determine, in its discretion,
including in absolute terms, as a goal relative to performance in prior
periods, or as a goal compared to the performance of one or more comparable
companies or an index covering multiple companies.


 


(iii)  Performance Period;
Timing for Establishing Performance Goals; Per-Person Limit.  Achievement of performance goals in respect
of such Performance Awards shall be measured over a performance period, as
specified by the Committee. A performance goal shall be established not later
than the earlier of (A) 90 days after the beginning of any performance
period applicable to such Performance Award or (B) the time 25% of such
performance period has elapsed. In all cases, the maximum Performance Award of
any Participant shall be subject to the limitation set forth in Section 4(b).


 


(iv)  Settlement of Performance
Awards; Other Terms. 
Settlement of such Performance Awards shall be in cash, Shares, other
Awards or other property, in the discretion of the Committee. The Committee
may, in its discretion, reduce the amount of a settlement otherwise to be made
in connection with such Performance Awards, but may not exercise discretion to
increase any such amount payable to the Participant in respect of a Performance
Award subject to this Section 7(a). Any settlement which changes the form
of payment from that originally specified shall be implemented in a manner such
that the Performance Award and other related Awards do not, solely for that
reason, fail to qualify as “performance-based compensation” for purposes of Section 162(m) of
the Code. The Committee shall specify the circumstances in which such
Performance Awards shall be paid or forfeited in the event of Termination of
Service of the Participant or other event (including a Change of Control) prior
to the end of a performance period or settlement of such Performance Awards.


 


(v)  Maximum Annual Cash Award.  The maximum amount payable upon settlement of
a cash-settled Performance Unit (or other cash-settled Award) granted under
this Plan for any calendar year to any Eligible Person that is intended to
satisfy the requirements for “performance- based compensation” under Section 162(m) of
the Code shall not exceed $2.0 million.


 


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


 


8.  Change of
Control Provisions.


 


(a)  Acceleration of Exercisability and Lapse of
Restrictions.  Unless
otherwise provided by the Committee at the time of the Award grant, in the
event of a Change of Control, (i) all outstanding Awards pursuant to which
the Participant may have rights the exercise of which is restricted or limited,
shall become fully exercisable at the time 


 

















 


of
the Change of Control, and (ii) unless the right to lapse of restrictions
or limitations is waived or deferred by a Participant prior to such lapse, all
restrictions or limitations (including risks of forfeiture and deferrals) on
outstanding Awards subject to restrictions or limitations under the Plan shall
lapse, and all performance criteria and other conditions to payment of Awards
under which payments of cash, Shares or other property are subject to
conditions shall be deemed to be achieved or fulfilled and shall be waived by
the Company at the time of the Change of Control.


 


(b)  Definition of Change of Control.  For purposes of this Plan, “Change of Control”
shall mean:


 


(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 (a “Person”), of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than
50% of either (1) the outstanding shares of common stock of the Company
(the “Outstanding Company Common Stock”) or (2) the combined voting power
of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the “Outstanding Company Voting
Securities”); provided, however,
that the following acquisitions shall not constitute a Change of Control: (i) any
acquisition directly from the Company (other than by exercise of a conversion
privilege); (ii) any acquisition by the Company or any of its
Subsidiaries; (iii) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any of its
Subsidiaries; (iv) any acquisition by any Person who owns 10% or more of
the Outstanding Company Common Stock or the Outstanding Company Voting
Securities on the Effective Date; or (v) any acquisition by any
corporation with respect to which, following such acquisition, more than 70%
of, respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding voting securities
of such corporation entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by all or substantially all of
the individuals and entities who were the beneficial owners, respectively, of
the outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such acquisition in substantially the same proportions as
their ownership, immediately prior to such acquisition, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, as the case may
be;


 


(ii)                                  during any
period of two consecutive years, individuals who, as of the beginning of such
period, 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
beginning of such period whose election, or nomination for election by the
Company’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 either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act);


 


(iii)                               consummation of
a reorganization, merger or consolidation, in each case, with respect to which
all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Common Stock and
outstanding Company Voting Securities immediately prior to such reorganization,
merger or consolidation, do not, following such reorganization, merger or
consolidation, beneficially own, directly or indirectly, more than 70% of,
respectively, the then outstanding shares of common stock and the combined
voting power of the outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the corporation resulting
from such reorganization, merger or consolidation;


 


(iv)                              consummation of
a sale or other disposition of all or substantially all of the assets of the
Company, other than to a corporation with respect to which following such sale
or other disposition, more than 70% of, respectively, the then outstanding
shares of common stock of such corporation and the combined voting power of the
then outstanding voting securities of such corporation entitled to vote generally
in the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to such sale
or other disposition in substantially the same proportions as their ownership,
immediately prior to such sale or other disposition; or


 

















 


(v)                                 approval by the
shareholders of the Company of a complete liquidation or dissolution of the
Company.


 


9.  General
Provisions.


 


(a)  Compliance with Legal and Trading Requirements.  The Plan, the granting and exercising of
Awards thereunder, and the other obligations of the Company under the Plan and
any Award Agreement, shall be subject to all applicable federal, state and
foreign laws, rules and regulations, and to such approvals by any stock
exchange, regulatory or governmental agency as may be required. The Company, in
its discretion, may postpone the issuance or delivery of Shares under any Award
until completion of such stock exchange or market system listing or
registration or qualification of such Shares or other required action under any
state, federal or foreign law, rule or regulation as the Company may consider
appropriate, and may require any Participant to make such representations and
furnish such information as it may consider appropriate in connection with the
issuance or delivery of Shares in compliance with applicable laws, rules and
regulations. No provisions of the Plan shall be interpreted or construed to
obligate the Company to register any Shares under federal, state or foreign
law. The Shares issued under the Plan may be subject to such other restrictions
on transfer as determined by the Committee.


 


(b)  No Right to Continued Employment or Service.  Neither the Plan nor any action taken
thereunder shall be construed as giving any employee, consultant or director
the right to be retained in the employ or service of the Company or any of its
Subsidiaries or Affiliates, nor shall it interfere in any way with the right of
the Company or any of its Subsidiaries or Affiliates to terminate any employee’s,
consultant’s or director’s employment or service at any time.


 


(c)  Taxes. 
The Company or any Subsidiary or Affiliate is authorized to withhold
from any Award granted, any payment relating to an Award under the Plan,
including from a distribution of Shares, or any payroll or other payment to an
Eligible Person, amounts of withholding and other taxes due in connection with
any transaction involving an Award, and to take such other action as the
Committee may deem advisable to enable the Company and Eligible Persons to
satisfy obligations for the payment of withholding taxes and other tax
obligations relating to any Award. This authority shall include authority to
withhold or receive Shares or other property and to make cash payments in
respect thereof in satisfaction of an Eligible Person’s tax obligations.


 


(d)  Changes to the Plan and Awards.  The Board may amend, alter, suspend,
discontinue, or terminate the Plan or the Committee’s authority to grant Awards
under the Plan without the consent of shareholders of the Company or
Participants, except that any such amendment or alteration shall be subject to
the approval of the Company’s shareholders (i) to the extent such
shareholder approval is required under the rules of any stock exchange or
automated quotation system on which the Shares may then be listed or quoted, or
(ii) as it applies to ISOs, to the extent such shareholder approval is
required under Section 422 of the Code; provided,
however, that, without the consent of an affected Participant, no
amendment, alteration, suspension, discontinuation, or termination of the Plan
may materially and adversely affect the rights of such Participant under any
Award theretofore granted to him or her. The Committee may waive any conditions
or rights under, amend any terms of, or amend, alter, suspend, discontinue or
terminate, any Award theretofore granted, prospectively or retrospectively; provided, however, that, without the
consent of a Participant, no amendment, alteration, suspension, discontinuation
or termination of any Award may materially and adversely affect the rights of
such Participant under any Award theretofore granted to him or her.


 


(e)  No Rights to Awards; No Shareholder Rights.  No Eligible Person or employee shall have any
claim to be granted any Award under the Plan, and there is no obligation for
uniformity of treatment of Eligible Persons and employees. No Award shall
confer on any Eligible Person any of the rights of a shareholder of the Company
unless and until Shares are duly issued or transferred to the Eligible Person
in accordance with the terms of the Award.


 


(f)  Unfunded Status of Awards.  The Plan is intended to constitute an “unfunded”
plan for incentive compensation. With respect to any payments not yet made to a
Participant pursuant to an Award, nothing contained in the Plan or any Award
shall give any such Participant any rights that are greater than those of a
general creditor of the Company; provided,
however, that the Committee may authorize the creation of trusts or
make other arrangements to meet the Company’s obligations under the Plan to
deliver cash, Shares, other Awards, or other 


 

















 


property
pursuant to any Award, which trusts or other arrangements shall be consistent
with the “unfunded” status of the Plan unless the Committee otherwise
determines with the consent of each affected Participant.


 


(g)  Nonexclusivity of the Plan.  Neither the adoption of the Plan by the Board
nor its submission to the shareholders of the Company for approval shall be
construed as creating any limitations on the power of the Board to adopt such
other incentive arrangements as it may deem desirable, including, without
limitation, the granting of options and other awards otherwise than under the
Plan, and such arrangements may be either applicable generally or only in
specific cases.


 


(h)  Not Compensation for Benefit Plans.  No Award payable under this Plan shall be
deemed salary or compensation for the purpose of computing benefits under any
benefit plan or other arrangement of the Company for the benefit of its
employees, consultants or directors unless the Company shall determine
otherwise.


 


(i)  No Fractional Shares.  No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award. The Committee shall determine
whether cash, other Awards, or other property shall be issued or paid in lieu
of such fractional Shares or whether such fractional Shares or any rights
thereto shall be forfeited or otherwise eliminated.


 


(j)  Governing Law.  The validity, construction, and effect of the
Plan, any rules and regulations relating to the Plan, and any Award
Agreement shall be determined in accordance with the laws of New York without
giving effect to principles of conflict of laws thereof.


 


(k)  Effective Date; Plan Termination.  The Plan became effective as of August 8,
2005 (the “Effective Date”). The Plan shall terminate as to future awards on
the date which is ten (10) years after the Effective Date.


 


(l)  Titles and Headings.  The titles and headings of the sections in
the Plan are for convenience of reference only. In the event of any conflict,
the text of the Plan, rather than such titles or headings, shall control.