exv10w1



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Exhibit 10.1




BEAZER HOMES USA, INC.




2010 EQUITY INCENTIVE PLAN



 









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TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	1.01 409A Award
	 	 	1	 
	1.02 Affiliate
	 	 	1	 
	1.03Agreement
	 	 	1	 
	1.04 Award
	 	 	1	 
	1.05 Beneficial Ownership
	 	 	1	 
	1.06 Board
	 	 	1	 
	1.07 Cause
	 	 	1	 
	1.08 Change in Control
	 	 	2	 
	1.09 Code
	 	 	3	 
	1.10 Committee
	 	 	3	 
	1.11 Common Stock
	 	 	3	 
	1.12 Company
	 	 	3	 
	1.13 Control Change Date
	 	 	3	 
	1.14 Corresponding SAR
	 	 	3	 
	1.15 Dividend Equivalent
	 	 	4	 
	1.16 Exchange Act
	 	 	4	 
	1.17 Fair Market Value
	 	 	4	 
	1.18 Full Value Award
	 	 	4	 
	1.19 Incentive Award
	 	 	4	 
	1.20 Incumbent Board Member
	 	 	4	 
	1.21 Initial Value
	 	 	5	 
	1.22 Named Executive Officer
	 	 	5	 
	1.23 Non-409A Award
	 	 	5	 
	1.24 Option
	 	 	5	 
	1.25 Other Stock-Based Award
	 	 	5	 
	1.26 Participant
	 	 	5	 
	1.27 Plan
	 	 	6	 
	1.28 Person
	 	 	6	 
	1.29 Restricted Stock Award
	 	 	6	 






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	 	 	Page
	1.30 Restricted Stock Unit
	 	 	6	 
	1.31 SAR
	 	 	6	 
	1.32 Ten Percent Shareholder
	 	 	6	 
	 
	 	 	 	 
	ARTICLE II PURPOSES
	 	 	6	 
	 
	 	 	 	 
	ARTICLE III TYPES OF AWARDS
	 	 	7	 
	 
	 	 	 	 
	ARTICLE IV ADMINISTRATION
	 	 	7	 
	 
	 	 	 	 
	4.01 General Administration
	 	 	7	 
	4.02 Delegation of Authority
	 	 	7	 
	4.03 Indemnification of Committee
	 	 	8	 
	 
	 	 	 	 
	ARTICLE V ELIGIBILITY
	 	 	8	 
	 
	 	 	 	 
	ARTICLE VI COMMON STOCK SUBJECT TO PLAN
	 	 	9	 
	 
	 	 	 	 
	6.01 Common Stock Issued
	 	 	9	 
	6.02 Aggregate Limit
	 	 	9	 
	6.03 Individual Limit
	 	 	10	 
	6.04 Reissue of Awards and Shares
	 	 	10	 
	 
	 	 	 	 
	ARTICLE VII OPTIONS
	 	 	10	 
	 
	 	 	 	 
	7.01 Grant
	 	 	10	 
	7.02 Option Price
	 	 	11	 
	7.03 Maximum Term of Option
	 	 	11	 
	7.04 Exercise
	 	 	11	 
	7.05 Payment
	 	 	11	 
	7.06 Stockholder Rights
	 	 	12	 
	7.07 Disposition of Shares
	 	 	12	 
	7.08 No Liability of Company
	 	 	12	 
	 
	 	 	 	 
	ARTICLE VIII SARS
	 	 	12	 
	 
	 	 	 	 
	8.01 Grant
	 	 	12	 
	8.02 Maximum Term of SAR
	 	 	12	 
	8.03 Exercise
	 	 	13	 
	8.04 Settlement
	 	 	13	 
	8.05 Stockholder Rights
	 	 	13	 
	 
	 	 	 	 
	ARTICLE IX RESTRICTED STOCK AWARDS
	 	 	13	 
	 
	 	 	 	 
	9.01 Award
	 	 	13	 
	9.02 Vesting
	 	 	13	 
	9.03 Maximum Restriction Period
	 	 	14	 






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	 	 	Page
	9.04 Stockholder Rights
	 	 	14	 
	 
	 	 	 	 
	ARTICLE X RESTRICTED STOCK UNITS
	 	 	15	 
	 
	 	 	 	 
	10.01 Grant
	 	 	15	 
	10.02 Earning the Award
	 	 	15	 
	10.03 Maximum Restricted Stock Unit Award Period
	 	 	15	 
	10.04 Payment
	 	 	15	 
	10.05 Stockholder Rights
	 	 	15	 
	 
	ARTICLE XI INCENTIVE AWARDS
	 	 	16	 
	11.01 Grant
	 	 	16	 
	11.02 Earning the Award
	 	 	16	 
	11.03 Maximum Incentive Award Period
	 	 	16	 
	11.04 Payment
	 	 	16	 
	11.05 Stockholder Rights
	 	 	17	 
	 
	 	 	 	 
	ARTICLE XII OTHER STOCK-BASED AWARDS
	 	 	17	 
	 
	 	 	 	 
	12.01 Other Stock-Based Awards
	 	 	17	 
	12.02 Bonus Stock and Awards in Lieu of Other Obligations
	 	 	17	 
	 
	 	 	 	 
	ARTICLE XIII DIVIDEND EQUIVALENTS
	 	 	18	 
	 
	 	 	 	 
	ARTICLE XIV TERMS APPLICABLE TO ALL AWARDS
	 	 	18	 
	 
	 	 	 	 
	14.01 Written Agreement
	 	 	18	 
	14.02 Nontransferability
	 	 	18	 
	14.03 Transferable Awards
	 	 	18	 
	14.04 Participant Status
	 	 	19	 
	14.05 Change in Control
	 	 	19	 
	14.06 Stand-Alone, Additional, Tandem and Substitute Awards
	 	 	21	 
	14.07 Form and Timing of Payment; Deferrals
	 	 	21	 
	14.08 Time and Method of Exercise or Settlement
	 	 	21	 
	 
	 	 	 	 
	ARTICLE XV QUALIFIED PERFORMANCE-BASED COMPENSATION
	 	 	22	 
	 
	 	 	 	 
	15.01 Performance Conditions
	 	 	22	 
	15.02 Establishing the Amount of the Award
	 	 	23	 
	15.03 Earning the Award
	 	 	23	 
	15.04 Performance Awards
	 	 	24	 
	 
	 	 	 	 
	ARTICLE XVI ADJUSTMENT UPON CHANGE IN COMMON STOCK
	 	 	25	 
	 
	 	 	 	 
	16.01 General Adjustments
	 	 	25	 
	16.02 Substitute Awards
	 	 	25	 






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	 	 	Page
	16.03 Limitation On Adjustments
	 	 	25	 
	 
	 	 	 	 
	ARTICLE XVII COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES
	 	 	26	 
	 
	 	 	 	 
	17.01 Compliance
	 	 	26	 
	17.02 Forfeiture of Payment
	 	 	26	 
	 
	 	 	 	 
	ARTICLE XVIII LIMITATION ON BENEFITS
	 	 	26	 
	 
	 	 	 	 
	ARTICLE XIX GENERAL PROVISIONS
	 	 	27	 
	 
	 	 	 	 
	19.01 Effect on Employment and Service
	 	 	27	 
	19.02 Unfunded Plan
	 	 	27	 
	19.03 Rules of Construction
	 	 	28	 
	19.04 Tax Withholding and Reporting
	 	 	28	 
	19.05 Code Section 83(b) Election
	 	 	28	 
	19.06 Reservation of Shares
	 	 	29	 
	19.07 Governing Law
	 	 	29	 
	19.08 Other Actions
	 	 	29	 
	19.09 Forfeiture Provisions
	 	 	29	 
	19.10 Repricing of Awards
	 	 	29	 
	19.11 Right of Setoff
	 	 	30	 
	19.12 Fractional Shares
	 	 	30	 
	 
	 	 	 	 
	ARTICLE XX CLAIMS PROCEDURES
	 	 	30	 
	 
	 	 	 	 
	20.01 Initial Claim
	 	 	30	 
	20.02 Appeal of Claim
	 	 	31	 
	20.03 Time to File Suit
	 	 	31	 
	 
	 	 	 	 
	ARTICLE XXI AMENDMENT
	 	 	31	 
	 
	 	 	 	 
	21.01 Amendment of Plan
	 	 	31	 
	21.02 Amendment of Awards
	 	 	32	 
	 
	 	 	 	 
	ARTICLE XXII OMNIBUS SECTION 409A PROVISION
	 	 	32	 
	 
	 	 	 	 
	22.01 Intent of Awards
	 	 	32	 
	22.02 409A Awards
	 	 	32	 
	22.03 Election Requirements
	 	 	32	 
	22.04 Time of Payment
	 	 	33	 
	22.05 Acceleration or Deferral
	 	 	34	 
	22.06 Distribution Requirements
	 	 	34	 
	22.07 Key Employee Rule
	 	 	34	 






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	 	 	Page
	22.08 Distributions Upon Vesting
	 	 	34	 
	22.09 Scope and Application of this Provision
	 	 	35	 
	 
	 	 	 	 
	ARTICLE XXIII EFFECTIVE DATE OF PLAN
	 	 	35	 
	 
	 	 	 	 
	ARTICLE XXIV DURATION OF PLAN
	 	 	35	 











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ARTICLE I

DEFINITIONS








1.01 409A Award




     409A Award means an Award that is intended to be subject to Code Section 409A.







1.02 Affiliate




     Affiliate, as it relates to any limitations or requirements with respect to Incentive Stock
Options, means any “subsidiary” or “parent” corporation (as such terms are defined in Code Section
424) of the Company. Affiliate otherwise means any entity that is part of a controlled group of
corporations or is under common control with the Company within the meaning of Code Sections
1563(a), 414(b) or 414(c), except that, in making any such determination, fifty percent (50%) shall
be substituted for eighty percent (80%) under such Code Sections and the related regulations.







1.03 Agreement




     Agreement means a written agreement (including any amendment or supplement thereto) between
the Company and a Participant specifying the terms and conditions of an Award granted to such
Participant.







1.04 Award




     Award means an Option, SAR, Restricted Stock Award, Restricted Stock Unit, Incentive Award,
Other Stock-Based Award or Dividend Equivalent granted under this Plan.







1.05 Beneficial Ownership




     Beneficial Ownership means “beneficial ownership” as such term is used in Rule 13d-3
promulgated under the Exchange Act.







1.06 Board




     Board means the Board of Directors of the Company.







1.07 Cause




     Cause has the same definition as under any employment or service agreement between the Company
or any Affiliate and the Participant or, if no such employment or service agreement exists or if
such employment or service agreement does not contain any such definition, Cause means (a) the
Participant’s act or failure to act amounting to gross negligence or willful misconduct to the
detriment of the Company or any Affiliate; (b) the Participant’s dishonesty, fraud, theft or
embezzlement of funds or properties in the course of Participant’s employment or service; (c) the
Participant’s commission of or pleading guilty to or confessing to any felony; or (d) the
Participant’s breach of any restrictive covenant agreement with the Company or any



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Affiliate, including, but not limited to, covenants not to compete, non-solicitation covenants
and non-disclosure covenants.








1.08 Change in Control




     Change in Control means the occurrence of any of the following events:



     (a) The accumulation in any number of related or unrelated transactions by any Person of
Beneficial Ownership of twenty-five percent (25%) or more of the combined voting power of the
Company’s voting stock; provided that for purposes of this subsection (a), a Change in Control will
not be deemed to have occurred if the accumulation of twenty-five percent (25%) or more of the
Beneficial Ownership of the combined voting power of the Company’s voting stock resulted from (i)
any acquisition of voting stock by the Company or by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any Affiliate or (ii) any acquisition of voting stock
directly from the Company provided the Person’s Beneficial Ownership of the combined voting power
of the Company’s voting stock at no time thereafter equals thirty-five percent (35%) or more of the
combined voting power of the Company’s voting stock; or



     (b) Consummation of a merger, consolidation, reorganization or similar transaction (a
“Business Combination”), unless, immediately following that Business Combination, (i) all or
substantially all of the Persons who had Beneficial Ownership of the voting stock of the Company
immediately prior to that Business Combination have Beneficial Ownership, directly or indirectly,
of more than fifty percent (50%) of the combined voting power of the Company’s or the surviving
entity’s voting stock resulting from that Business Combination (including, without limitation, an
entity that as a result of that transaction owns the Company or all or substantially all of the
Company’s assets either directly or through one or more subsidiaries), in substantially the same
proportions relative to each other as their Beneficial Ownership, immediately prior to that
Business Combination, of the voting stock of the Company, (ii) no Person acquires Beneficial
Ownership of twenty five percent (25%) or more of the combined voting power of the Company’s or the
surviving entity’s voting stock resulting from that Business Combination (including, without
limitation, an entity that as a result of that transaction owns the Company or all or substantially
all of the Company’s assets either directly or through one or more subsidiaries) and (iii) the
Business Combination does not result in a Change in Control under subsection (c) below; provided
that for purposes of this subsection (b), a Change in Control will not be deemed to have occurred
as the result of any Person’s accumulation of Beneficial Ownership of twenty-five percent (25%) or
more, but less than thirty-five percent (35%), of the combined voting power of the Company’s or the
surviving entity’s voting stock resulting from that Business Combination so long as the Board
approved the Business Combination; or



     (c) Less than a majority of the members of the Board of Directors of the Company or any entity
resulting from a Business Combination are Incumbent Board Members; or



     (d) A sale or other disposition of all or substantially all of the assets of the Company,
except pursuant to a Business Combination that would not cause a Change in Control under subsection
(b) above; or



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     (e) Approval by the shareholders of the Company of a complete liquidation or dissolution of
the Company, except pursuant to a Business Combination that would not cause a Change in Control
under subsection (b) above.



     Notwithstanding the foregoing, a Change in Control shall only be deemed to have occurred with
respect to a Participant and the Participant’s 409A Award if the Change in Control otherwise
constitutes a change in the ownership or effective control of the Company, or in the ownership of a
substantial portion of the assets of the Company, within the meaning of Code Section 409A (except
that, with respect to vesting of the 409A Award, Change in Control shall have the same meaning as
described above).







1.09 Code




     Code means the Internal Revenue Code of 1986 and any amendments thereto.







1.10 Committee




     Committee means the Compensation Committee of the Board, or the Board itself if no
Compensation Committee exists. If such Compensation Committee exists, if and to the extent deemed
necessary by the Board, such Compensation Committee shall consist of two or more directors, all of
whom are (i) “non-employee directors” within the meaning of Rule 16b-3 under the Exchange Act, (ii)
“outside directors” within the meaning of Code Section 162(m) and (iii) independent directors under
the rules of any stock exchange on which the Company’s securities are traded.







1.11 Common Stock




     Common Stock means the common stock, $.001 par value per share, of the Company.







1.12 Company




     Company means Beazer Homes USA, Inc., a Delaware corporation, and any successor thereto.







1.13 Control Change Date




     Control Change Date means the date on which a Change in Control occurs. If a Change in
Control occurs on account of a series of transactions, the “Control Change Date” is the date of the
last of such transactions.







1.14 Corresponding SAR




     Corresponding SAR means a SAR that is granted in relation to a particular Option and that can
be exercised only upon the surrender to the Company, unexercised, of that portion of the Option to
which the SAR relates.



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1.15 Dividend Equivalent




     Dividend Equivalent means the right, granted under the Plan, to receive shares of Common Stock
or other Awards equal in value to all or a specified portion of dividends paid with respect to a
specified number of shares of Common Stock.







1.16 Exchange Act




     Exchange Act means the Securities Exchange Act of 1934, as amended.







1.17 Fair Market Value




     Fair Market Value of a share of Common Stock means, on any given date, the fair market value
of a share of Common Stock as the Committee, in its discretion, shall determine; provided, however,
that the Committee shall determine Fair Market Value without regard to any restriction other than a
restriction which, by its terms, will never lapse and, if the shares of Common Stock are traded on
any national stock exchange or quotation system, the Fair Market Value of a share of Common Stock
shall be the closing price of a share of Common Stock as reported on such stock exchange or
quotation system on such date, or if the shares of Common Stock are not traded on such stock
exchange or quotation system on such date, then on the next preceding day that the shares of Common
Stock were traded on such stock exchange or quotation system, all as reported by such source as the
Committee shall select. The Fair Market Value that the Committee determines shall be final,
binding and conclusive on the Company, any Affiliate and each Participant. Fair Market Value
relating to the exercise price, Initial Value or purchase price of any Non-409A Award that is an
Option, SAR or Other Stock-Based Award in the nature of purchase rights shall conform to the
requirements for exempt stock rights under Code Section 409A.







1.18 Full Value Award




     Full Value Award means an Award other than an Option, SAR or Other Stock-Based Award in the
nature of purchase rights.







1.19 Incentive Award




     Incentive Award means an Award stated with reference to a specified dollar amount or number of
shares of Common Stock which, subject to such terms and conditions as may be prescribed by the
Committee, entitles the Participant to receive shares of Common Stock from the Company.







1.20 Incumbent Board Member




     Incumbent Board Member means an individual who either is (a) a member of the Company’s Board
as of the effective date of the adoption of this Plan or (b) a member who becomes a member of the
Company’s Board subsequent to the date of the adoption of this Plan whose election, or nomination
for election by the Company’s shareholders, was approved by a vote of a majority of the then
Incumbent Board Members (either by a specific vote or by



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approval of the proxy statement of the Company in which that Person is named as a nominee for
director, without objection to that nomination), but excluding, for that purpose, any individual
whose initial assumption of office occurs as a result of an actual or threatened election contest
(within the meaning of Rule 14a-11 of the Exchange Act) with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board of Directors.








1.21 Initial Value




     Initial Value means, with respect to a Corresponding SAR, the Option price per share of the
related Option and, with respect to a SAR granted independently of an Option, the amount determined
by the Committee on the date of grant which shall not be less than the Fair Market Value of one
share of Common Stock on the date of grant.







1.22 Named Executive Officer




     Named Executive Officer means a Participant who, as of the last day of a taxable year, is the
Chief Executive Officer of the Company (or is acting in such capacity) or one of the three highest
compensated officers of the Company (other than the Chief Executive Officer or the Chief Financial
Officer) or is otherwise one of the group of “covered employees,” all as defined in the regulations
promulgated under Code Section 162(m).







1.23 Non-409A Award




     Non-409A Award means an Award that is not intended to be subject to Code Section 409A.







1.24 Option




     Option means a stock option that entitles the holder to purchase from the Company a stated
number of shares of Common Stock at the price set forth in an Agreement.







1.25 Other Stock-Based Award




     Other Stock-Based Award means an Award granted to the Participant under Article XII of the
Plan.







1.26 Participant




     Participant means an employee of the Company or an Affiliate, a member of the Board or Board
of Directors of an Affiliate (whether or not an employee), a Person who provides services to the
Company or an Affiliate or any entity which is a wholly-owned alter ego of such employee, member of
the Board or Board of Directors of an Affiliate or other such Person and who satisfies the
requirements of Article V and is selected by the Committee to receive an Award.



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1.27 Plan




     Plan means this Beazer Homes USA, Inc. 2010 Equity Incentive Plan, in its current form and as
hereafter amended.







1.28 Person




     Person means any individual, corporation, partnership, limited liability company, joint
venture, incorporated or unincorporated association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof or any other entity of
any kind.







1.29 Restricted Stock Award




     Restricted Stock Award means shares of Common Stock granted to a Participant under Article IX.







1.30 Restricted Stock Unit




     Restricted Stock Unit means an Award, stated with respect to a specified number of shares of
Common Stock, that entitles the Participant to receive one share of Common Stock with respect to
each Restricted Stock Unit that becomes payable under the terms and conditions of the Plan and the
applicable Agreement.







1.31 SAR




     SAR means a stock appreciation right that in accordance with the terms of an Agreement
entitles the holder to receive a number of shares of Common Stock based on the increase in the Fair
Market Value of the shares underlying the stock appreciation right during a stated period specified
by the Committee over the Initial Value. References to “SARs” include both Corresponding SARs and
SARs granted independently of Options, unless the context requires otherwise.







1.32 Ten Percent Shareholder 




     Ten Percent Shareholder means any individual who (considering the stock attribution rules
described in Code Section 424(d)) owns stock possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or any Affiliate.







ARTICLE II

PURPOSES




     The Plan is intended to assist the Company and its Affiliates in recruiting and retaining
individuals with ability and initiative by enabling such Persons to participate in the future
success of the Company and its Affiliates by aligning their interests with those of the Company and
its stockholders.



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ARTICLE III

TYPES OF AWARDS




     The Plan is intended to permit the grant of Options qualifying under Code Section 422
(“Incentive Stock Options”) and Options not so qualifying, SARs, Restricted Stock Awards,
Restricted Stock Units, Incentive Awards, Other Stock-Based Awards and Dividend Equivalents in
accordance with the Plan and procedures that may be established by the Committee. No Option that
is intended to be an Incentive Stock Option shall be invalid for failure to qualify as an Incentive
Stock Option. The proceeds received by the Company from the sale of shares of Common Stock
pursuant to this Plan may be used for general corporate purposes.







ARTICLE IV

ADMINISTRATION








4.01 General Administration




     The Plan shall be administered by the Committee. The Committee shall have authority to grant
Awards upon such terms (not inconsistent with the provisions of this Plan) as the Committee may
consider appropriate. Such terms may include conditions (in addition to those contained in this
Plan) on the grant, exercisability, transferability, forfeitability and settlement of all or any
part of an Award, among other terms. Notwithstanding any such conditions, the Committee may, in
its discretion, accelerate the time at which an Award may be exercised, become transferable or
nonforfeitable or earned and settled only (i) in the event of the Participant’s death, disability,
retirement or involuntary termination of employment or service or (ii) in connection with a Change
in Control. In addition, the Committee shall have complete authority to interpret all provisions
of this Plan including, without limitation, the discretion to interpret any terms used in the Plan
that are not defined herein; to prescribe the form of Agreements; to adopt, amend and rescind rules
and regulations pertaining to the administration of the Plan; and to make all other determinations
necessary or advisable for the administration of this Plan. The express grant in the Plan of any
specific power to the Committee shall not be construed as limiting any power or authority of the
Committee. Any decision made, or action taken, by the Committee in connection with the
administration of this Plan shall be final and conclusive. The members of the Committee shall not
be liable for any act done in good faith with respect to this Plan or any Agreement or Award.
Unless otherwise provided by the Bylaws of the Company, by resolution of the Board or applicable
law, a majority of the members of the Committee shall constitute a quorum, and acts of the majority
of the members present at any meeting at which a quorum is present, and any acts approved in
writing by all members of the Committee without a meeting, shall be the acts of the Committee.







4.02 Delegation of Authority




     The Committee may act through subcommittees, in which case the subcommittee shall be subject
to and have the authority hereunder applicable to the Committee, and the acts of the subcommittee
shall be deemed to be the acts of the Committee hereunder. Additionally, to the extent applicable
law so permits, the Committee, in its discretion, may delegate to one or more officers of the
Company all or part of the Committee’s authority and duties with respect to



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Awards to be granted to individuals who are not subject to the reporting and other provisions
of Section 16 of the Exchange Act nor members of the Board or the Board of Directors of an
Affiliate. The Committee may revoke or amend the terms of any delegation at any time but such
action shall not invalidate any prior actions of the Committee’s delegate or delegates that were
consistent with the terms of the Plan and the Committee’s prior delegation. If and to the extent
deemed necessary by the Board, (a) all Awards granted to any individual who is subject to the
reporting and other provisions of Section 16 of the Exchange Act shall be made by a Committee
comprised solely of two or more directors, all of whom are “non-employee directors” within the
meaning of Rule 16b-3 under the Exchange Act, to the extent necessary to exempt the Award from the
short-swing profit rules of Section 16(b) of the Exchange Act and (b) all Awards granted to an
individual who is a Named Executive Officer shall be made by a Committee comprised solely of two or
more directors, all of whom are “outside directors” within the meaning of Code Section 162(m), to
the extent necessary to preserve any deduction under Code Section 162(m). An Award granted to an
individual who is a member of the Committee may be approved by the Committee in accordance with the
applicable Committee charters then in effect and other applicable law.








4.03 Indemnification of Committee




     The Company shall bear all expenses of administering this Plan. The Company shall indemnify
and hold harmless each Person who is or shall have been a member of the Committee acting as
administrator of the Plan, or any delegate of such, against and from any cost, liability, loss or
expense that may be imposed upon or reasonably incurred by such Person in connection with or
resulting from any action, claim, suit or proceeding to which such Person may be a party or in
which such Person may be involved by reason of any action taken or not taken under the Plan and
against and from any and all amounts paid by such Person in settlement thereof, with the Company’s
approval, or paid by such Person in satisfaction of any judgment in any such action, suit or
proceeding against such Person, provided he or she shall give the Company an opportunity, at its
own expense, to handle and defend the same before he or she undertakes to handle and defend it on
his or her own behalf. Notwithstanding the foregoing, the Company shall not indemnify and hold
harmless any such Person if (a) applicable law or the Company’s Articles of Incorporation or Bylaws
prohibit such indemnification or (b) such Person did not act in good faith and in a manner that
such Person believed to be consistent with the Plan or (c) such Person’s conduct constituted gross
negligence or willful misconduct. The foregoing right of indemnification shall not be exclusive of
any other rights of indemnification to which such Persons may be entitled under the Company’s
Articles of Incorporation or Bylaws, as a matter of law or otherwise, or under any other power that
the Company may have to indemnify such Person or hold him or her harmless. The provisions of the
foregoing indemnity shall survive indefinitely the term of this Plan.







ARTICLE V

ELIGIBILITY




     Any employee of the Company or an Affiliate (including an entity that becomes an Affiliate
after the adoption of this Plan), a member of the Board or the Board of Directors of an Affiliate
(including an entity that becomes an Affiliate after the adoption of the Plan) (whether or



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not such Board member is an employee), any other Person who provides services to the Company
or an Affiliate (including an entity that becomes an Affiliate after the adoption of the Plan) and
any entity which is a wholly-owned alter ego of such employee, member of the Board or Board of
Directors of an Affiliate or other such Person is eligible to participate in this Plan if the
Committee, in its sole discretion, determines that such Person or entity has contributed
significantly or can be expected to contribute significantly to the profits or growth of the
Company or any Affiliate or if it is otherwise in the best interest of the Company or any Affiliate
for such Person or entity to participate in this Plan. With respect to any Board member who is (i)
designated or nominated to serve as a Board member by a stockholder of the Company and (ii) an
employee of such stockholder of the Company, then, at the irrevocable election of the employing
stockholder, the Person or entity who shall be eligible to participate in this Plan on behalf of
the service of the respective Board member shall be the employing stockholder (or one of its
Affiliates). To the extent such election is made, the respective Board member shall have no rights
hereunder as a Participant with respect to such Board member’s participation in this Plan. An
Award may be granted to a Person or entity who has been offered employment or service by the
Company or an Affiliate and who would otherwise qualify as eligible to receive the Award to the
extent that Person or entity commences employment or service with the Company or an Affiliate,
provided that such Person or entity may not receive any payment or exercise any right relating to
the Award, and the grant of the Award will be contingent, until such Person or entity has commenced
employment or service with the Company or an Affiliate.








ARTICLE VI

COMMON STOCK SUBJECT TO PLAN








6.01 Common Stock Issued




     Upon the issuance of shares of Common Stock pursuant to an Award, the Company may deliver to
the Participant (or the Participant’s broker if the Participant so directs) shares of Common Stock
from its authorized but unissued Common Stock, treasury shares or reacquired shares, whether
reacquired on the open market or otherwise.







6.02 Aggregate Limit




     The maximum aggregate number of shares of Common Stock that may be issued under this Plan and
to which Awards may relate is 6,000,000 shares of Common Stock. All 6,000,000 of such shares may
be issued pursuant to Options that are intended to be Incentive Stock Options, Options that are not
intended to be Incentive Stock Options, SARs and/or Other Stock-Based Awards in the nature of
purchase rights; provided, however, that to the extent shares of Common Stock not issued under an
Award must be counted against this limit as a condition to satisfying the rules applicable to
Incentive Stock Options, such rule shall apply only to the limit on Incentive Stock Options granted
under the Plan. Only 3,000,000 of such shares may be issued pursuant to Full Value Awards. The
maximum number of shares of Common Stock that may be issued in each instance shall be subject to
adjustment as provided in Article XVI.



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6.03 Individual Limit




     The maximum number of shares of Common Stock that may be covered by Awards granted to any one
Participant during any period of three consecutive calendar years shall be 2,100,000 shares of
Common Stock, of which no more than 1,050,000 shares of such Common Stock may be covered by Full
Value Awards during such period of three consecutive calendar years (regardless of whether
settlement of the Award is to occur prior to, at the time of, or after the time of vesting). For
purposes of the foregoing limit, an Option and its corresponding SAR shall be treated as a single
Award. For any Award stated with reference to a specified dollar amount, for purposes of applying
the foregoing limit, the specified dollar amount of the Award will be converted into an equivalent
number of shares of Common Stock based upon the Fair Market Value of the Common Stock on the date
of grant of the Award. If an Award that a Participant holds is cancelled or subject to a repricing
within the meaning of the regulations under Code Section 162(m) (after shareholder approval as
required herein), the cancelled Award shall continue to be counted against the maximum number of
shares of Common Stock for which Awards may be granted to the Participant in any calendar year as
required under Code Section 162(m). The maximum number of shares that may be granted in any
calendar year to any Participant shall be subject to adjustment as provided in Article XVI.







6.04 Reissue of Awards and Shares




     Shares of Common Stock covered by an Award shall only be counted as used to the extent they
are actually used. A share of Common Stock issued in connection with any Award under the Plan
shall reduce the total number of shares of Common Stock available for issuance under the Plan by
one; provided, however, that a share of Common Stock covered under a stock-settled SAR shall reduce
the total number of shares of Common Stock available for issuance under the Plan by one even though
the shares of Common Stock are not actually issued in connection with settlement of the SAR.
Except as otherwise provided herein, any shares of Common Stock related to an Award which
terminates by expiration, forfeiture, cancellation or otherwise without issuance of shares of
Common Stock shall again be available for issuance under the Plan. The following shares of Common
Stock, however, may not again be made available for issuance as Awards under the Plan: (i) shares
of Common Stock not issued or delivered as a result of the net settlement of an outstanding Award,
(ii) shares of Common Stock tendered or withheld to pay the exercise price, purchase price or
withholding taxes relating to an outstanding Award, or (iii) shares of Common Stock repurchased on
the open market with the proceeds of the exercise or purchase price of an Award.







ARTICLE VII

OPTIONS 








7.01 Grant




     Subject to the eligibility provisions of Article V, the Committee will designate each
individual or entity to whom an Option is to be granted and will specify the number of shares of
Common Stock covered by such grant and whether the Option is an Incentive Stock Option or a
nonqualified stock option. Notwithstanding any other provision of the Plan or any Agreement,



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the Committee may only grant an Incentive Stock Option to an individual who is an employee of
the Company or an Affiliate. An Option may be granted with or without a Corresponding SAR.








7.02 Option Price 




     The price per share of Common Stock purchased on the exercise of an Option shall be determined
by the Committee on the date of grant, but shall not be less than the Fair Market Value of a share
of Common Stock on the date the Option is granted. However, if at the time of grant of an Option
that is intended to be an Incentive Stock Option, the Participant is a Ten Percent Shareholder, the
price per share of Common Stock purchased on the exercise of such Option shall not be less than one
hundred ten percent (110%) of the Fair Market Value of a share of Common Stock on the date the
Option is granted.







7.03 Maximum Term of Option




     The maximum time period in which an Option may be exercised shall be determined by the
Committee on the date of grant, except that no Option shall be exercisable after the expiration of
ten (10) years from the date such Option was granted (or five (5) years from the date such Option
was granted in the event of an Incentive Stock Option granted to a Ten Percent Shareholder).







7.04 Exercise




     Subject to the provisions of this Plan and the applicable Agreement, an Option may be
exercised in whole at any time or in part from time to time at such times and in compliance with
such requirements as the Committee shall determine; provided, however, that Incentive Stock Options
(granted under the Plan and all plans of the Company and its Affiliates) may not be first
exercisable in a calendar year for shares of Common Stock having a Fair Market Value (determined as
of the date the Option is granted) exceeding $100,000. If the limitation is exceeded, the Options
that cause the limitation to be exceeded shall be treated as nonqualified stock options. An Option
granted under this Plan may be exercised with respect to any number of whole shares less than the
full number for which the Option could be exercised. A partial exercise of an Option shall not
affect the right to exercise the Option from time to time in accordance with this Plan and the
applicable Agreement with respect to the remaining shares subject to the Option. The exercise of
an Option shall result in the termination of the Corresponding SAR to the extent of the number of
shares with respect to which the Option is exercised.







7.05 Payment




     Subject to rules established by the Committee and unless otherwise provided in an Agreement,
payment of all or part of the Option price shall be made in cash or cash equivalent acceptable to
the Committee. If the Agreement so provides, the Committee, in its discretion and provided
applicable law so permits, may allow a Participant to pay all or part of the Option price (a) by
surrendering (actually or by attestation) shares of Common Stock to the Company that the
Participant already owns and, if necessary to avoid adverse accounting consequences, has held for
at least six (6) months; (b) by a cashless exercise through a broker; (c) by means of a “net



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exercise” procedure; (d) by such other medium of payment as the Committee, in its discretion,
shall authorize; or (e) by any combination of the aforementioned methods of payment. If shares of
Common Stock are used to pay all or part of the Option price, the sum of the cash and cash
equivalent and the Fair Market Value (determined as of the day preceding the date of exercise) of
the shares surrendered must not be less than the Option price of the shares for which the Option is
being exercised.








7.06 Stockholder Rights




     No Participant shall have any rights as a stockholder with respect to shares subject to his or
her Option until the date of exercise of such Option and the issuance of the shares of Common
Stock.







7.07 Disposition of Shares




     A Participant shall notify the Company of any sale or other disposition of shares of Common
Stock acquired pursuant to an Option that was designated an Incentive Stock Option if such sale or
disposition occurs (a) within two (2) years of the grant of an Option or (b) within one (1) year of
the issuance of shares of Common Stock to the Participant. Such notice shall be in writing and
directed to the Secretary of the Company.







7.08 No Liability of Company




     The Company shall not be liable to any Participant or any other Person if the Internal Revenue
Service or any court or other authority having jurisdiction over such matter determines for any
reason that an Option intended to be an Incentive Stock Option and granted hereunder does not
qualify as an Incentive Stock Option.







ARTICLE VIII

SARS








8.01 Grant




     Subject to the eligibility provisions of Article V, the Committee will designate each
individual or entity to whom SARs are to be granted and will specify the number of shares of Common
Stock covered by such grant. In addition, no Participant may be granted Corresponding SARs (under
this Plan and all other Incentive Stock Option plans of the Company and its Affiliates) that are
related to Incentive Stock Options which are first exercisable in any calendar year for shares of
Common Stock having an aggregate Fair Market Value (determined as of the date the related Option is
granted) that exceeds $100,000.







8.02 Maximum Term of SAR 




     The maximum term of a SAR shall be determined by the Committee on the date of grant, except
that no SAR shall have a term of more than ten (10) years from the date such SAR was granted (or
five (5) years for a Corresponding SAR that is related to an Incentive Stock Option and that is
granted to a Ten Percent Shareholder). No Corresponding SAR shall be exercisable



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or continue in existence after the expiration of the Option to which the Corresponding SAR
relates.








8.03 Exercise




     Subject to the provisions of this Plan and the applicable Agreement, a SAR may be exercised in
whole at any time or in part from time to time at such times and in compliance with such
requirements as the Committee shall determine; provided, however, that a SAR may be exercised only
when the Fair Market Value of the Common Stock that is subject to the exercise exceeds the Initial
Value of the SAR and a Corresponding SAR may be exercised only to the extent that the related
Option is exercisable. A SAR granted under this Plan may be exercised with respect to any number
of whole shares less than the full number for which the SAR could be exercised. A partial exercise
of a SAR shall not affect the right to exercise the SAR from time to time in accordance with this
Plan and the applicable Agreement with respect to the remaining shares subject to the SAR. The
exercise of a Corresponding SAR shall result in the termination of the related Option to the extent
of the number of shares with respect to which the SAR is exercised.







8.04 Settlement




     The amount payable to the Participant by the Company as a result of the exercise of a SAR
shall be settled by the issuance of shares of Common Stock with a Fair Market Value that equals the
amount payable. No fractional share will be deliverable upon the exercise of a SAR.







8.05 Stockholder Rights




     No Participant shall, as a result of receiving a SAR, have any rights as a stockholder of the
Company or any Affiliate until the date that the SAR is exercised and then only to the extent that
the SAR is settled by the issuance of Common Stock.







ARTICLE IX

RESTRICTED STOCK AWARDS








9.01 Award




     Subject to the eligibility provisions of Article V, the Committee will designate each
individual or entity to whom a Restricted Stock Award is to be granted and will specify the number
of shares of Common Stock covered by such grant.







9.02 Vesting




     Subject to the Plan, the Committee, on the date of grant may, but need not, prescribe that a
Participant’s rights in the Restricted Stock Award shall be forfeitable and nontransferable for a
period of time or subject to such conditions as may be set forth in the Agreement. Notwithstanding
any provision herein to the contrary, the Committee, in its sole discretion, may grant Restricted
Stock Awards that are nonforfeitable and transferable immediately upon grant. By way of example
and not of limitation, the Committee may prescribe that a Participant’s rights



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in a Restricted Stock Award shall be forfeitable and nontransferable, subject to the Plan and
any applicable Agreement, upon (a) the attainment of objectively determinable performance
conditions based on the criteria described in Article XV, (b) the Participant’s completion of a
specified period of employment or service with the Company or an Affiliate, (c) the Participant’s
death, disability or retirement or (d) satisfaction of a combination of any of the foregoing
factors. Notwithstanding the preceding sentences, if and to the extent deemed necessary by the
Committee, Restricted Stock Awards granted to Named Executive Officers shall be forfeitable and
nontransferable subject to attainment of objectively determinable performance conditions based on
the criteria described in Article XV and shall be subject to the other requirements set forth in
Article XV so as to enable such Restricted Stock Award to qualify as “qualified performance-based
compensation” under the regulations promulgated under Code Section 162(m). A Restricted Stock
Award can only become nonforfeitable and transferable during the Participant’s lifetime in the
hands of the Participant.








9.03 Maximum Restriction Period




     To the extent the Participant’s rights in a Restricted Stock Award are forfeitable and
nontransferable for a period of time, the Committee on the date of grant shall determine the
maximum period over which the rights may become nonforfeitable and transferable, except that such
period shall not exceed ten (10) years from the date of grant.







9.04 Stockholder Rights




     Prior to their forfeiture (in accordance with the Plan and any applicable Agreement and while
the shares of Common Stock granted pursuant to the Restricted Stock Award may be forfeited and are
nontransferable), a Participant will have all rights of a stockholder with respect to a Restricted
Stock Award, including the right to receive dividends and vote the shares; provided, however, that
during such period (a) a Participant may not sell, transfer, pledge, exchange, hypothecate or
otherwise dispose of shares granted pursuant to a Restricted Stock Award, (b) the Company shall
retain custody of any certificates evidencing shares granted pursuant to a Restricted Stock Award
and (c) the Participant will deliver to the Company a stock power, endorsed in blank, with respect
to each Restricted Stock Award. In lieu of retaining custody of the certificates evidencing shares
granted pursuant to a Restricted Stock Award, the shares of Common Stock granted pursuant to the
Restricted Stock Award may, in the Committee’s discretion, be held in escrow by the Company or
recorded as outstanding by notation on the stock records of the Company until the Participant’s
interest in such shares of Common Stock vest. Notwithstanding the preceding sentences, dividends
payable with respect to Restricted Stock Awards shall accumulate (without interest) and become
payable in shares of Common Stock to the Participant at the time, and only to the extent that, the
portion of the Restricted Stock Award to which the dividends relate has become transferable and
nonforfeitable. The limitations set forth in the preceding sentences shall not apply after the
shares granted under the Restricted Stock Award are transferable and are no longer forfeitable.



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ARTICLE X

RESTRICTED STOCK UNITS








10.01 Grant




     Subject to the eligibility provisions of Article V, the Committee will designate each
individual or entity to whom a grant of Restricted Stock Units is to be made and will specify the
number of shares covered by such grant.







10.02 Earning the Award




     Subject to the Plan, the Committee, on the date of grant of the Restricted Stock Units, shall
prescribe that the Restricted Stock Units will be earned and become payable subject to such
conditions as are set forth in the Agreement. By way of example and not of limitation, the
Committee may prescribe that the Restricted Stock Units will be earned and become payable upon (a)
the satisfaction of objectively determinable performance conditions based on the criteria described
in Article XV, (b) the Participant’s completion of a specified period of employment or service with
the Company or an Affiliate, (c) the Participant’s death, disability or retirement or (d)
satisfaction of a combination of any of the foregoing factors. If and to the extent deemed
necessary by the Committee, Restricted Stock Units granted to Named Executive Officers shall become
payable upon the satisfaction of objectively determinable performance conditions based on the
criteria described in Article XV and shall be subject to the other requirements set forth in
Article XV so as to enable such Restricted Stock Units to qualify as “qualified performance-based
compensation” under the regulations promulgated under Code Section 162(m).







10.03 Maximum Restricted Stock Unit Award Period




     The Committee, on the date of grant, shall determine the maximum period over which Restricted
Stock Units may be earned, except that such period shall not exceed ten (10) years from the date of
grant.







10.04 Payment




     The amount payable to the Participant by the Company when an Award of Restricted Stock Units
is earned shall be settled by the issuance of one share of Common Stock for each Restricted Stock
Unit that is earned. A fractional share of Common Stock shall not be deliverable when an Award of
Restricted Stock Units is earned.







10.05 Stockholder Rights




     No Participant shall, as a result of receiving a grant of Restricted Stock Units, have any
rights as a stockholder until and then only to the extent that the Restricted Stock Units are
earned and settled in shares of Common Stock. However, notwithstanding the foregoing, subject to
the Plan, the Committee, in its sole discretion, may set forth in the Agreement that, for so long
as the Participant holds any Restricted Stock Units, if the Company pays any cash dividends on its
Common Stock, then the number of outstanding Restricted Stock Units covered by the Agreement shall
be increased by the number of Restricted Stock Units, rounded down to the



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nearest whole number, equal to (i) the product of the number of the Participant’s outstanding
Restricted Stock Units as of the record date for such dividend multiplied by the per share amount
of the dividend divided by (ii) the Fair Market Value of a share of Common Stock on the payment
date of such dividend. In the event such additional Restricted Stock Units are awarded, such
Restricted Stock Units shall be subject to the same terms and conditions set forth in the Plan and
the Agreement as the outstanding Restricted Stock Units with respect to which they were granted.
The limitations set forth in the preceding sentences shall not apply after the Restricted Stock
Units become earned and payable and shares are issued thereunder.








ARTICLE XI

INCENTIVE AWARDS 








11.01 Grant




     Subject to the eligibility provisions of Article V, the Committee will designate each
individual or entity to whom Incentive Awards are to be granted. All Incentive Awards shall be
determined exclusively by the Committee under the procedures established by the Committee.







11.02 Earning the Award 




     Subject to the Plan, the Committee, on the date of grant of an Incentive Award, shall specify
in the applicable Agreement the terms and conditions which govern the grant, including, without
limitation, whether the Participant to be entitled to payment must be employed or providing
services to the Company or an Affiliate at the time the Incentive Award is to be paid. By way of
example and not of limitation, the Committee may prescribe that the Incentive Award shall be earned
and payable upon (a) the satisfaction of objectively determinable performance conditions based on
the criteria described in Article XV, (b) the Participant’s completion of a specified period of
employment or service with the Company or an Affiliate, (c) the Participant’s death, disability or
retirement or (d) satisfaction of a combination of any of the foregoing factors. If and to the
extent deemed necessary by the Committee, Incentive Awards granted to Named Executive Officers
shall be earned and become payable upon the satisfaction of objectively determinable performance
conditions based on the criteria described in Article XV and shall be subject to the other
requirements set forth in Article XV so as to enable the Incentive Awards to qualify as “qualified
performance-based compensation” under the regulations promulgated under Code Section 162(m).







11.03 Maximum Incentive Award Period




     The Committee, at the time an Incentive Award is made, shall determine the maximum period over
which the Incentive Award may be earned, except that such period shall not exceed ten (10) years
from the date of grant.







11.04 Payment




     The amount payable to the Participant by the Company when an Incentive Award is earned shall
be settled by the issuance of shares of Common Stock with a Fair Market Value that



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equals the amount payable. A fractional share of Common Stock shall not be deliverable when
an Incentive Award is earned.








11.05 Stockholder Rights




     No Participant shall, as a result of receiving an Incentive Award, have any rights as a
stockholder of the Company or any Affiliate on account of such Incentive Award, unless and then
only to the extent that the Incentive Award is earned and settled in shares of Common Stock.







ARTICLE XII

OTHER STOCK-BASED AWARDS








12.01 Other Stock-Based Awards




     The Committee is authorized, subject to limitations under applicable law, to grant to a
Participant such other Awards that may be denominated or payable in, valued in whole or in part by
reference to or otherwise based on shares of Common Stock, including, without limitation,
convertible or exchangeable securities and other rights convertible or exchangeable into shares of
Common Stock or the cash value of shares of Common Stock. Subject to the Plan, the Committee shall
determine the terms and conditions of any such Other Stock-Based Awards. Common Stock delivered
pursuant to an Other Stock-Based Award in the nature of purchase rights shall be purchased for such
consideration not less than the Fair Market Value of the shares of Common Stock as of the date the
Other Stock-Based Award is granted, and may be paid for at such times, by such methods, and in the
form of shares of Common Stock or other Awards, as the Committee shall determine. The maximum time
period in which an Other Stock-Based Award in the nature of purchase rights may be exercised shall
be determined by the Committee on the date of grant, except that no Other Stock-Based Award in the
nature of purchase rights shall be exercisable after the expiration of ten (10) years from the date
such Other Stock-Based Award was granted. Cash Awards, as an element of or supplement to any other
Award under the Plan, may not be granted pursuant to this Plan.







12.02 Bonus Stock and Awards in Lieu of Other Obligations




     The Committee also is authorized (i) to grant to a Participant shares of Common Stock as a
bonus, (ii) to grant shares of Common Stock or other Awards in lieu of other obligations of the
Company or any Affiliate to pay cash or to deliver other property under any other plans or
compensatory arrangements of the Company or any Affiliate, (iii) to use available shares of Common
Stock as the form of payment for compensation, grants or rights earned or due under any other
compensation plans or arrangements of the Company or any Affiliate, and (iv) to grant as
alternatives to or replacements of Awards granted or outstanding under the Plan or any other plan
or arrangement of the Company or any Affiliate, subject to the Plan and such terms as shall be
determined by the Committee and the overall limitation on the number of shares of Common Stock that
may be issued under the Plan. Notwithstanding any other provision hereof, shares of Common Stock
or other securities delivered to a Participant pursuant to a purchase right granted under this Plan
shall be purchased for consideration, the Fair Market Value of which shall not be




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less than the Fair Market Value of such shares of Common Stock or other securities as of the
date such purchase right is granted.








ARTICLE XIII

DIVIDEND EQUIVALENTS




     The Committee is authorized to grant Dividend Equivalents to a Participant which may be
awarded on a free-standing basis or in connection with another Award. Subject to the Plan, the
Committee may provide that Dividend Equivalents shall be paid or distributed in shares of Common
Stock when accrued or shall be deemed to have been reinvested in additional shares of Common Stock
or other Awards, subject to restrictions on transferability, risk of forfeiture and such other
terms as the Committee may specify and set forth in the applicable Agreement. Notwithstanding the
foregoing, no Dividend Equivalents may be awarded in connection with an Option, SAR or Other
Stock-Based Award in the nature of purchase rights.







ARTICLE XIV

TERMS APPLICABLE TO ALL AWARDS








14.01 Written Agreement




     Each Award shall be evidenced by a written Agreement (including any amendment or supplement
thereto) between the Company and the Participant specifying the terms and conditions of the Award
granted to such Participant. Each Agreement should specify whether the Award is intended to be a
Non-409A Award or a 409A Award.







14.02 Nontransferability




     Except as provided in Section 14.03 below, each Award granted under this Plan shall be
nontransferable except by will or by the laws of descent and distribution or pursuant to the terms
of a valid qualified domestic relations order. In the event of any transfer of an Option or
Corresponding SAR (by the Participant or his transferee), the Option and Corresponding SAR that
relates to such Option must be transferred to the same Person or Persons or entity or entities.
Except as provided in Section 14.03 below, during the lifetime of the Participant to whom the
Option or SAR is granted, the Option or SAR may be exercised only by the Participant. No right or
interest of a Participant in any Award shall be liable for, or subject to, any lien, obligation, or
liability of such Participant or his transferee.







14.03 Transferable Awards




     Section 14.02 to the contrary notwithstanding, if the Agreement so provides, an Award that is
not an Incentive Stock Option or a Corresponding SAR that relates to an Incentive Stock Option may
be transferred by a Participant to any of such class of transferees who can be included in the
class of transferees who may rely on a Form S-8 Registration Statement under the Securities Act of
1933 to sell shares issuable upon exercise or payment of such Awards granted under the Plan. Any
such transfer will be permitted only if (a) the Participant does not receive any consideration for
the transfer, (b) the Committee expressly approves the transfer and (c) the transfer is on such
terms and conditions as are appropriate for the class of transferees who may



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rely on the Form S-8 Registration Statement. The holder of the Award transferred pursuant to
this Section shall be bound by the same terms and conditions that governed the Award during the
period that it was held by the Participant; provided, however, that such transferee may not
transfer the Award except by will or the laws of descent and distribution. In the event of any
transfer of an Option that is not an Incentive Stock Option or a Corresponding SAR that relates to
an Incentive Stock Option (by the Participant or his transferee), the Option and Corresponding SAR
that relates to such Option must be transferred to the same Person or Persons or entity or
entities. Unless transferred as provided in Section 9.04, a Restricted Stock Award may not be
transferred prior to becoming non-forfeitable and transferable.








14.04 Participant Status




     If the terms of any Award provide that it may be exercised or paid only during employment or
continued service or within a specified period of time after termination of employment or continued
service, the Committee may decide to what extent leaves of absence for governmental or military
service, illness, temporary disability or other reasons shall not be deemed interruptions of
continuous employment or service. For purposes of the Plan, employment and continued service shall
be deemed to exist between the Participant and the Company and/or an Affiliate if, at the time of
the determination, the Participant is a director, officer, employee, consultant or advisor of the
Company or an Affiliate. A Participant on military leave, sick leave or other bona fide leave of
absence shall continue to be considered an employee for purposes of the Plan during such leave if
the period of leave does not exceed three (3) months, or, if longer, so long as the individual’s
right to re-employment with the Company or any of its Affiliates is guaranteed either by statute or
by contract. If the period of leave exceeds three (3) months, and the individual’s right to
re-employment is not guaranteed by statute or by contract, the employment shall be deemed to be
terminated on the first day after the end of such three (3) month period. Except as may otherwise
be expressly provided in an Agreement, Awards granted to a director, officer, employee, consultant
or advisor shall not be affected by any change in the status of the Participant so long as the
Participant continues to be a director, officer, employee, consultant or advisor to the Company or
any of its Affiliates (regardless of having changed from one to the other or having been
transferred from one entity to another). The Participant’s employment or continued service shall
not be considered interrupted in the event the Committee, in its discretion, and as specified at or
prior to such occurrence, determines there is no interruption in the case of a spin-off, sale or
disposition of the Participant’s employer from the Company or an Affiliate, except that if the
Committee does not otherwise specify such at or such prior to such occurrence, the Participant will
be deemed to have a termination of employment or continuous service to the extent the Affiliate
that employs the Participant is no longer the Company or an entity that qualifies as an Affiliate.
The foregoing provisions apply to a 409A Award only to the extent Code Section 409A does not
otherwise treat the Participant as continuing in service or employment or as having a separation
from service at an earlier time.







14.05 Change in Control




     Notwithstanding any provision of any Agreement to the contrary, in the event of or in
anticipation of a Change in Control (and only to the extent permitted by Code Section 409A for a
409A Award), the Committee, in its discretion, may (a) declare that some or all outstanding



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Awards previously granted under the Plan, whether or not then exercisable or payable, shall
terminate as of a date before or on the Change in Control without any payment to the holder of the
Award, provided the Committee gives prior written notice to the Participants of such termination
and gives such Participants the right to exercise their outstanding Awards for a reasonable time
before such date to the extent then exercisable (or to the extent such Awards would be exercisable
as of the Control Change Date), (b) terminate before or on the Control Change Date some or all
outstanding Awards previously granted under the Plan, whether or not then exercisable or payable,
in consideration of payment to the holder of the Award, with respect to each share of Common Stock
for which the Award is then exercisable or payable (or for which the Award would have been
exercisable or payable as of the Control Change Date), of the excess, if any, of the Fair Market
Value on such date of the Common Stock subject to such portion of the Award over the Option price
or Initial Value (if applicable) (provided that outstanding Awards that are not then exercisable or
payable and that would not become exercisable or payable on the Control Change Date, and Options
and SARs with respect to which the Fair Market Value of the Common Stock subject to the Options or
SARs does not exceed the Option price or Initial Value, shall be cancelled without any payment
therefor) or (c) take such other action as the Committee determines to be reasonable under the
circumstances to permit the Participant to realize the value of the Award (which value for purposes
of Awards that are not then exercisable or payable and that would not become exercisable or payable
as of the Control Change Date, and Options and SARs with respect to which the Fair Market Value of
the Common Stock subject to the Award does not exceed the Option price or Initial Value, shall be
deemed to be zero). The payment described in (b) above shall be made only in cash, shares of stock
or some combination thereof. The Committee may take the actions described in (a), (b) or (c) above
with respect to Awards that are not then exercisable or payable whether or not the Participant will
receive any payment therefor. The Committee, in its discretion, may take any of the actions
described in this Section contingent on consummation of the Change in Control and with respect to
some or all outstanding Awards, whether or not then exercisable or payable, or on an Award-by-Award
basis, which actions need not be uniform with respect to all outstanding Awards. However, Awards
shall not be terminated to the extent that written provision is made for their continuance,
assumption or substitution by the Company or a successor employer or its parent or subsidiary in
connection with the Change in Control. Except as otherwise provided in the Agreement covering the
Award, if a Participant who is employed by (or a director of or other service provider to) the
Company or any Affiliate at the time of the Change in Control then holds (i) one or more Options,
SARs or Other Stock-Based Awards that are in the nature of purchase rights, all such Options, SARs
and Other Stock-Based Awards shall become fully exercisable on and after the Change in Control
(subject to the expiration provisions otherwise applicable to such Awards), and any shares of
Common Stock purchased by the Participant under such Awards following such Change of Control shall
be fully vested upon exercise, and (ii) one or more Full Value Awards, such Full Value Awards shall
become fully vested on the date of the Change of Control; provided, however, that, if the amount of
the Award where the vesting is to be determined is based on the level of performance achieved, the
target level performance shall be deemed to have been achieved.








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14.06 Stand-Alone, Additional, Tandem and Substitute Awards




     Subject to Section 19.10 below, Awards granted under the Plan may, in the discretion of the
Committee, be granted either alone or in addition to, in tandem with or in substitution or exchange
for, any other Award or any Award granted under another plan of the Company or any Affiliate or any
entity acquired by the Company or any Affiliate or any other right of a Participant to receive
payment from the Company or any Affiliate; provided, however, that a 409A Award may not be granted
in tandem with a Non-409A Award. Awards granted in addition to or in tandem with another Award or
Awards may be granted either at the same time as or at a different time from the grant of such
other Award or Awards. Subject to applicable law and the restrictions on 409A Awards and
repricings in Section 19.10 below, the Committee may determine that, in granting a new Award, the
in-the-money value or Fair Market Value of any surrendered Award or Awards or the value of any
other right to payment surrendered by the Participant may be applied to the purchase of any other
Award or Awards.







14.07 Form and Timing of Payment; Deferrals




     Subject to the terms of the Plan and any applicable Agreement, payments to be made by the
Company or an Affiliate upon the exercise of an Option or settlement of any other Award may be made
in the form of shares of Common Stock or other Awards, as the Committee may determine and set forth
in the applicable Agreement, and may be made in a single payment or transfer, in installments or on
a deferred basis. The settlement of an Award may be accelerated, in the discretion of the
Committee or upon the occurrence of one or more specified events set forth in the applicable
Agreement (and to the extent permitted by the Plan and Code Section 409A). Subject to the Plan,
installment or deferred payments may be required by the Committee or permitted at the election of
the Participant on the terms and conditions established by the Committee. Payments may include,
without limitation, provisions for the payment or crediting of reasonable interest on installments
or deferred payments or the grant or crediting of Dividend Equivalents or other amounts in respect
of installment or deferred payments denominated in shares of Common Stock. In the case of any 409A
Award that is vested and no longer subject to a substantial risk of forfeiture (within the meaning
of Code Sections 83 and 409A), such Award may be distributed to the Participant, upon application
of the Participant to the Committee, if the Participant has an unforeseeable emergency within the
meaning of Code Section 409A. Notwithstanding any other provision of the Plan, however, no
dividends payable with respect to an Award or Dividend Equivalents may be paid in connection with
any Awards or Dividend Equivalents that are to become nonforfeitable and transferable or earned and
payable based upon performance conditions unless and until the performance conditions are
satisfied, and any such dividends and Dividend Equivalents will accumulate (without interest) and
become payable to the Participant at the time, and only to the extent that, the applicable Awards
or Dividend Equivalents have become non-forfeitable and transferable or earned and payable upon
satisfaction of the relevant performance conditions.







14.08 Time and Method of Exercise or Settlement




     The Committee shall determine and set forth in the Agreement the time or times at which Awards
granted under the Plan may be exercised or settled in whole or in part and shall set forth in the
Agreement the rules regarding the exercise, settlement and/or termination of Awards upon



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the Participant’s death, disability, termination of employment or ceasing to be a director.
Notwithstanding any other provision of the Plan, however, if an Award is to become exercisable,
nonforfeitable and transferable or earned and payable on the completion of a specified period of
employment or service with the Company or any Affiliate, without the achievement of any performance
conditions being required, and the Award is not being granted in lieu of any other vested
compensation the participant is to receive, then the required period of employment or service for
the Award to become exercisable, non-forfeitable and transferable or earned and payable shall be
not less than three (3) years or ratably (whether monthly, quarterly, annually or otherwise) over
not less than three (3) years (subject to acceleration of vesting, to the extent permitted by the
Plan and the Committee, in the event of a Change in Control or the Participant’s death, disability,
retirement or involuntary termination of employment or service); provided, however, that the
foregoing limitation will not apply to any Award that is granted as an inducement to a person being
hired or rehired by the Company or any Affiliate; and provided, further, that the Committee in its
discretion may modify or accelerate the vesting schedule of an Award (subject to the other
provisions of the Plan) only so long as the revised vesting schedule will not be any more rapid
than the minimum vesting schedule described above (subject to permitted accelerations).








ARTICLE XV

QUALIFIED PERFORMANCE-BASED COMPENSATION








15.01 Performance Conditions




     In accordance with the Plan, the Committee may prescribe that Awards will become exercisable,
nonforfeitable and transferable and earned and payable based on objectively determinable
performance conditions. Objectively determinable performance conditions are performance conditions
(a) that are established in writing (i) at the time of grant or (ii) no later than the earlier of
(x) ninety (90) days after the beginning of the period of service to which they relate and (y)
before the lapse of twenty-five percent (25%) of the period of service to which they relate; (b)
that are uncertain of achievement at the time they are established; and (c) the achievement of
which is determinable by a third party with knowledge of the relevant facts. The performance
conditions may include any or any combination of the following: (a) total return to shareholders;
(b) cash flow (including, but not limited to, operating cash flow, free cash flow and cash flow
return on capital); (c) return on assets (net or otherwise), capital, equity or sales; (d) stock
price (including, but not limited to, growth measures); (e) basic or diluted earnings per share
(before or after taxes); (f) reduction of outstanding debt; (g) extension of maturity dates of
outstanding debt; (h) gross, operating or net earnings (income or other revenues) before or after
taxes; (i) tangible net worth; (j) return on investments; (k) cash flow per share; (l) book value
per share; (m) gross or operating margins; (n) customers; (o) Fair Market Value of the Company or
any Affiliate; (p) market share; (q) level of expenses or other costs; (r) gross, operating or net
revenue; (s) earnings before interest, taxes, depreciation and/or amortization (“EBITDA”); (t)
EBITDA adjusted for restructuring and exit charges, stock-based compensation, material severance
obligations and/or unusual or extraordinary events; (u) earnings before interest and taxes
(“EBIT”); (v) adjusted EBIT; (w) EBITDA or EBIT less capital expenditures; (x) productivity ratios;
(y) expense targets; (z) objective measures of customer satisfaction; (aa) working capital targets;
(bb) objective measures of economic value added; (cc) inventory



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control; (dd) customer retention; (ee) competitive market metrics; (ff) employee retention;
(gg) timely completion of new product rollouts; (hh) timely launch of new facilities; (ii)
objective measures of personal targets, goals or completion of projects; or (jj) peer group
comparisons of any of the aforementioned performance conditions. Performance conditions may be
related to a specific customer or group of customers or geographic region. The form of the
performance conditions may be measured on a Company, Affiliate, division, business unit, service
line, segment or geographic basis or any combination thereof. Performance goals may reflect
absolute entity performance or a relative comparison of entity performance to the performance of a
peer group of entities or other external measure of the selected performance conditions. Profits,
earnings and revenues used for any performance condition measurement may exclude any extraordinary
or non-recurring items. The performance conditions may, but need not, be based upon an increase or
positive result under the aforementioned business criteria and could include, for example and not
by way of limitation, maintaining the status quo or limiting the economic losses (measured, in each
case, by reference to the specific business criteria). The performance conditions may not include
solely the mere continued employment of the Participant. However, the Award may become
exercisable, nonforfeitable and transferable or earned and payable contingent on the Participant’s
continued employment or service, and/or employment or service at the time the Award becomes
exercisable, nonforfeitable and transferable or earned and payable, in addition to the performance
conditions described above. The Committee shall have the sole discretion to select one or more
periods of time over which the attainment of one or more of the foregoing performance conditions
will be measured for the purpose of determining a Participant’s right to, and the settlement of, an
Award that will become exercisable, nonforfeitable and transferable or earned and payable based on
performance conditions, except that the length of the performance period shall not be less than one
year, except in the case of newly-hired or newly-promoted employees and, to the extent permitted by
the Committee, in the event of the Participant’s death, disability, retirement or involuntary
termination of employment or service.








15.02 Establishing the Amount of the Award




     The amount of the Award that will become exercisable, nonforfeitable and transferable or
earned and payable if the performance conditions are obtained (or an objective formula for, or
method of, computing such amount) also must be established at the time set forth in Section 15.01
above. Notwithstanding the preceding sentence, the Committee may, in its sole discretion, reduce
the amount of the Award that will become exercisable, nonforfeitable and transferable or earned and
payable, as applicable, if the Committee determines that such reduction is appropriate under the
facts and circumstances. In no event shall the Committee have the discretion to increase the
amount of the Award that will become exercisable, nonforfeitable and transferable or earned and
payable.







15.03 Earning the Award




     If the Committee, on the date of grant, prescribes that an Award shall become exercisable,
nonforfeitable and transferable or earned and payable only upon the attainment of any of the above
performance conditions, the Award shall become exercisable, nonforfeitable and transferable or
earned and payable only to the extent that the Committee certifies in writing



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that such conditions have been achieved. An Award will not satisfy the requirements of this
Article XV to constitute “qualified performance-based compensation” if the facts and circumstances
indicate the Award will become exercisable, nonforfeitable and transferable or earned and payable
regardless of whether the performance conditions are attained. However, an Award does not fail to
meet the requirements of this Article XV merely because the Award would become exercisable,
nonforfeitable and transferable or earned and payable upon the Participant’s death or disability or
upon a Change in Control, although an Award that actually becomes exercisable, nonforfeitable and
transferable or earned and payable on account of those events prior to the attainment of the
performance conditions would not constitute “qualified performance-based compensation” under Code
Section 162(m). In determining if the performance conditions have been achieved, the Committee may
adjust the performance targets in the event of any unbudgeted acquisition, divestiture or other
unexpected fundamental change in the business of the Company, an Affiliate or business unit or in
any product that is material taken as a whole as appropriate to fairly and equitably determine if
the Award is to become exercisable, nonforfeitable and transferable or earned and payable pursuant
to the conditions set forth in the Award. Additionally, in determining if such performance
conditions have been achieved, the Committee also may adjust the performance targets in the event
of any (a) unanticipated asset write-downs or impairment charges, (b) litigation or claim judgments
or settlements thereof, (c) changes in tax laws, accounting principles or other laws or provisions
affecting reported results, (d) accruals for reorganization or restructuring programs, or
extraordinary non-reoccurring items as described in Accounting Principles Board Opinion No. 30 or
as described in management’s discussion and analysis of the financial condition and results of
operations appearing in the Company’s Annual Report on Form 10-K for the applicable year, (e)
acquisitions or dispositions or (f) foreign exchange gains or losses. To the extent any such
adjustments affect Awards, the intent is that they shall be in a form that allows the Award to
continue to meet the requirements of Code Section 162(m) for deductibility.








15.04 Performance Awards




     The purpose of this Article XV is to permit the grant of Awards that constitute “qualified
performance-based compensation” within the meaning of Code Section 162(m). The Committee may
specify that the Award is intended to constitute “qualified performance-based compensation” by
conditioning the right of the Participant to exercise the Award or have it settled, and the timing
thereof, upon achievement or satisfaction of any of the performance criteria and conditions set
forth in this Article XV. Notwithstanding the foregoing, the Committee may grant an Award that is
subject to the achievement or satisfaction of performance conditions that are not set forth herein
to the extent the Committee does not intend for such Award to constitute “qualified
performance-based compensation” within the meaning of Code Section 162(m).



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ARTICLE XVI

ADJUSTMENT UPON CHANGE IN COMMON STOCK








16.01 General Adjustments




     The maximum number of shares of Common Stock that may be issued pursuant to Awards, the terms
of outstanding Awards and the per individual limitations on the number of shares of Common Stock
that may be issued pursuant to Awards shall be adjusted as the Committee shall determine to be
equitably required in the event (a) there occurs a reorganization, recapitalization, stock split,
spin-off, split-off, stock dividend, issuance of stock rights, combination of shares, merger,
consolidation or distribution to stockholders other than a cash dividend; (b) the Company engages
in a transaction Code Section 424 describes; or (c) there occurs any other transaction or event
which, in the judgment of the Committee, necessitates such action to prevent an enlargement or
dilution of Participants’ rights as a result of any such transaction or event. In that respect,
the Committee shall make such adjustments as are necessary in the number or kind of shares of
Common Stock or securities which are subject to the Award, the exercise price or Initial Value of
the Award and such other adjustments as are appropriate in the discretion of the Committee. Such
adjustments may provide for the elimination of fractional shares that might otherwise be subject to
Awards without any payment therefor. Notwithstanding the foregoing, the conversion of one or more
outstanding shares of preferred stock or convertible debentures that the Company may issue from
time to time into Common Stock shall not in and of itself require any adjustment under this Article
XVI. Any determination made under this Article XVI by the Committee shall be final and conclusive.







16.02 Substitute Awards




     The Committee may grant Awards in substitution for Options, SARs, restricted stock, Restricted
Stock Units, Incentive Awards or similar Awards held by an individual who becomes an employee of
the Company or an Affiliate in connection with a transaction described in the first paragraph of
this Article XVI. Notwithstanding any provision of the Plan (other than the limitation of Section
6.02), the terms of such substituted Awards shall be as the Committee, in its discretion,
determines is appropriate.







16.03 Limitation On Adjustments




     Notwithstanding the foregoing, no adjustment hereunder shall be authorized or made if and to
the extent the existence of such authority or action (a) would cause Awards under the Plan that are
intended to qualify as “qualified performance-based compensation” under Code Section 162(m) to
otherwise fail to qualify as “qualified performance-based compensation,” (b) would cause the
Committee to be deemed to have the authority to change the targets, within the meaning of Code
Section 162(m), under performance goals or relating to Awards granted to Named Executive Officers
and intended to qualify as “qualified performance-based compensation” under Code Section 162(m),
(c) would cause a Non-409A Award to be subject to Code Section 409A or (d) would violate Code
Section 409A for a 409A Award, unless the Committee determines that such adjustment is necessary
and specifically acknowledges that the adjustment will be made notwithstanding any such result.



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ARTICLE XVII

COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES








17.01 Compliance




     No Option or SAR shall be exercisable, no Restricted Stock Award, Restricted Stock Unit,
Incentive Award, Other Stock-Based Award or Dividend Equivalents shall be granted or settled, no
shares of Common Stock shall be issued, no certificates for shares of Common Stock shall be
delivered and no payment shall be made under this Plan except in compliance with all applicable
federal and state laws and regulations (including, without limitation, withholding tax
requirements), any listing agreement to which the Company is a party and the rules of all domestic
stock exchanges on which the Company’s shares may be listed. The Company shall have the right to
rely on an opinion of its counsel as to such compliance. Any stock certificate evidencing shares
of Common Stock issued pursuant to an Award may bear such legends and statements as the Committee
may deem advisable to assure compliance with federal and state laws and regulations and to reflect
any other restrictions applicable to such shares as the Committee otherwise deems appropriate. No
Option or SAR shall be exercisable, no Restricted Stock Award, Restricted Stock Unit, Incentive
Award, Other Stock-Based Award or Dividend Equivalents shall be granted or settled, no shares of
Common Stock shall be issued, no certificate for shares of Common Stock shall be delivered and no
payment shall be made under this Plan until the Company has obtained such consent or approval as
the Committee may deem advisable from regulatory bodies having jurisdiction over such matters.







17.02 Forfeiture of Payment




     A Participant shall be required to forfeit any and all rights under Awards or to reimburse the
Company for any payment under any Award (with interest as necessary to avoid imputed interest or
original issue discount under the Code or as otherwise required by applicable law) to the extent
applicable law requires such forfeiture or reimbursement.







ARTICLE XVIII

LIMITATION ON BENEFITS




     Despite any other provisions of this Plan to the contrary, if the receipt of any payments or
benefits under this Plan would subject a Participant to tax under Code Section 4999, the Committee
may determine whether some amount of payments or benefits would meet the definition of a “Reduced
Amount.” If the Committee determines that there is a Reduced Amount, the total payments or benefits
to the Participant under all Awards must be reduced to such Reduced Amount, but not below zero. If
the Committee determines that the benefits and payments must be reduced to the Reduced Amount, the
Company must promptly notify the Participant of that determination, with a copy of the detailed
calculations by the Committee. All determinations of the Committee under this Article XVIII are
final, conclusive and binding upon the Company and the Participant. It is the intention of the
Company and the Participant to reduce the payments under this Plan only if the aggregate Net After
Tax Receipts to the Participant would thereby be increased. As result of the uncertainty in the
application of Code Section 4999 at the time of the initial determination by the Committee under
this Article XVIII,



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however, it is possible that amounts will have been paid under the Plan to or for the benefit
of a Participant which should not have been so paid (“Overpayment”) or that additional amounts
which will not have been paid under the Plan to or for the benefit of a Participant could have been
so paid (“Underpayment”), in each case consistent with the calculation of the Reduced Amount. If
the Committee, based either upon the assertion of a deficiency by the Internal Revenue Service
against the Company or the Participant, which the Committee believes has a high probability of
success, or controlling precedent or other substantial authority, determines that an Overpayment
has been made, any such Overpayment must be treated for all purposes as a loan, to the extent
permitted by applicable law, which the Participant must repay to the Company together with interest
at the applicable federal rate under Code Section 7872(f)(2); provided, however, that no such loan
may be deemed to have been made and no amount shall be payable by the Participant to the Company if
and to the extent such deemed loan and payment would not either reduce the amount on which the
Participant is subject to tax under Code Sections 1, 3101 or 4999 or generate a refund of such
taxes. If the Committee, based upon controlling precedent or other substantial authority,
determines that an Underpayment has occurred, the Committee must promptly notify the Company of the
amount of the Underpayment, which then shall be paid promptly to the Participant but no later than
the end of the Participant’s taxable year next following the Participant’s taxable year in which
the determination is made that the Underpayment has occurred. For purposes of this Section, (a)
“Net After Tax Receipt” means the Present Value of a payment under this Plan net of all taxes
imposed on Participant with respect thereto under Code Sections 1, 3101 and 4999, determined by
applying the highest marginal rate under Code Section 1 which applies to the Participant’s taxable
income for the applicable taxable year; (b) “Present Value” means the value determined in
accordance with Code Section 280G(d)(4); and (c) “Reduced Amount” means the smallest aggregate
amount of all payments and benefits under this Plan which (i) is less than the sum of all payments
and benefits under this Plan and (ii) results in aggregate Net After Tax Receipts which are equal
to or greater than the Net After Tax Receipts which would result if the aggregate payments and
benefits under this Plan were any other amount less than the sum of all payments and benefits to be
made under this Plan.








ARTICLE XIX

GENERAL PROVISIONS








19.01 Effect on Employment and Service 




     Neither the adoption of this Plan, its operation nor any documents describing or referring to
this Plan (or any part thereof), shall confer upon any individual or entity any right to continue
in the employ or service of the Company or an Affiliate or in any way affect any right and power of
the Company or an Affiliate to terminate the employment or service of any individual or entity at
any time with or without assigning a reason therefor.







19.02 Unfunded Plan




     This Plan, insofar as it provides for Awards, shall be unfunded, and the Company shall not be
required to segregate any assets that may at any time be represented by Awards under this Plan.
Any liability of the Company to any Person with respect to any Award under this Plan



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shall be based solely upon any contractual obligations that may be created pursuant to this
Plan. No such obligation of the Company shall be deemed to be secured by any pledge of, or other
encumbrance on, any property of the Company.








19.03 Rules of Construction 




     Headings are given to the articles and sections of this Plan solely as a convenience to
facilitate reference. The reference to any statute, regulation or other provision of law shall be
construed to refer to any amendment to or successor of such provision of law.







19.04 Tax Withholding and Reporting




     Unless an Agreement provides otherwise, each Participant shall be responsible for satisfying
in cash or by check (bank check, certified check or personal check), money order or wire transfer
any income and employment (including, without limitation, Social Security and Medicare) tax
withholding obligations, if applicable, attributable to participation in the Plan and the grant,
exercise, vesting or payment of Awards granted hereunder (including the making of a Code Section
83(b) election with respect to an Award). In accordance with procedures that the Committee
establishes, the Committee, to the extent applicable law permits, may allow a Participant to pay
any such applicable amounts (a) by surrendering (actually or by attestation) shares of Common Stock
that the Participant already owns and, if necessary to avoid adverse accounting consequences, has
held for at least six (6) months (but only for the minimum required withholding); (b) by a cashless
exercise, or surrender of shares of Common Stock already owned, through a broker; (c) by means of a
“net exercise” procedure by the surrender of shares of Common Stock to which the Participant is
otherwise entitled under the Award; (d) by such other medium of payment as the Committee, in its
discretion, shall authorize; or (e) by any combination of the aforementioned methods of payment.
The Company shall comply with all such reporting and other requirements relating to the
administration of this Plan and the grant, exercise, vesting or payment of any Award hereunder as
applicable law requires. Nevertheless, shares of Common Stock that the Company reacquires in
connection with any tax withholding will still be deemed issued and will not be available for
issuance pursuant to future Awards under the Plan.







19.05 Code Section 83(b) Election




     No election under Code Section 83(b) (to include in gross income in the year of transfer the
amounts specified in Code Section 83(b)) or under similar laws may be made unless expressly
permitted by the terms of the Award or by action of the Committee in writing prior to the making of
such election. In any case in which a Participant is permitted to make such an election in
connection with an Award, the Participant shall notify the Company of such election within ten (10)
days of filing notice of the election with the Internal Revenue Service or other governmental
authority, in addition to any filing and notification required pursuant to regulations issued under
Code Section 83(b) or other applicable provisions.



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19.06 Reservation of Shares




     The Company, during the term of this Plan, shall at all times reserve and keep available such
number of shares of Common Stock as shall be sufficient to satisfy the requirements of the Plan.
Additionally, the Company, during the term of this Plan, shall use its best efforts to seek to
obtain from appropriate regulatory agencies any requisite authorizations needed in order to issue
and to sell such number of shares of Common Stock as shall be sufficient to satisfy the
requirements of the Plan. However, the inability of the Company to obtain from any such regulatory
agency the requisite authorizations the Company’s counsel deems to be necessary for the lawful
issuance and sale of any shares of Common Stock hereunder, or the inability of the Company to
confirm to its satisfaction that any issuance and sale of any shares of Common Stock hereunder will
meet applicable legal requirements, shall relieve the Company of any liability in respect to the
failure to issue or to sell such shares of Common Stock as to which such requisite authority shall
not have been obtained.







19.07 Governing Law




     This Plan and all Awards granted hereunder shall be governed by the laws of the State of
Delaware, except to the extent federal law applies.







19.08 Other Actions




     Nothing in the Plan shall be construed to limit the authority of the Company to exercise its
corporate rights and powers, including, by way of illustration and not by way of limitation, the
right to grant Options, SARs, Restricted Stock Awards, Restricted Stock Units, Incentive Awards,
Other Stock-Based Awards or Dividend Equivalents for proper corporate purposes otherwise than under
the Plan to any employee or to any other Person, firm, corporation, association or other entity, or
to grant Options, SARs, Restricted Stock Awards, Restricted Stock Units, Incentive Awards, Other
Stock-Based Awards or Dividend Equivalents to, or assume such Awards of any Person in connection
with, the acquisition, purchase, lease, merger, consolidation, reorganization or otherwise, of all
or any part of the business and assets of any Person, firm, corporation, association or other
entity.







19.09 Forfeiture Provisions




     Notwithstanding any other provisions of the Plan or any Agreement, all rights to any Award
that a Participant has will be immediately discontinued and forfeited, and the Company shall not
have any further obligation hereunder to the Participant with respect to any Award and the Award
will not be exercisable (whether or not previously exercisable) or become vested or payable on and
after the time the Participant is discharged from employment or service with the Company or any
Affiliate for Cause.







19.10 Repricing of Awards




     Notwithstanding any other provisions of this Plan, except for adjustments pursuant to Article
XVI or to the extent approved by the Company’s stockholders and consistent with the rules of any
stock exchange on which the Company’s securities are traded, this Plan does not



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permit (a) any decrease in the exercise or purchase price or base value of any outstanding
Awards, (b) the issuance of any replacement Options, SARs or Other Stock-Based Awards in the nature
of purchase rights, which shall be deemed to occur if a Participant agrees to forfeit an existing
Option, SAR or Other Stock-Based Award in the nature of purchase rights in exchange for a new
Option, SAR or Other Stock-Based Award in the nature of purchase rights with a lower exercise or
purchase price or base value, (c) the Company to repurchase underwater or out-of-the-money Options,
SARs or Other Stock-Based Awards in the nature of purchase rights, which shall be deemed to be
those Options, SARs or Other Stock-Based Awards in the nature of purchase rights with exercise or
purchase prices or base values in excess of the current Fair Market Value of the shares of Common
Stock underlying the Option, SAR or Other Stock-Based Award in the nature of purchase rights, (d)
the issuance of any replacement or substitute Awards or the payment of cash in exchange for, or in
substitution of, underwater or out-of-the-money Options, SARs or Other Stock-Based Awards in the
nature of purchase rights, (e) the Company to repurchase any Award if the Award has not become
exercisable, vested or payable prior to the repurchase or (f) any other action that is treated as a
repricing under generally accepted accounting principles.








19.11 Right of Setoff




     The Company or an Affiliate may, to the extent permitted by applicable law, deduct from and
setoff against any amounts the Company or Affiliate may owe the Participant from time to time,
including amounts payable in connection with any Award, owed as wages, fringe benefits or other
compensation owed to the Participant, such amounts as may be owed by the Participant to the Company
or Affiliate, including but not limited to any amounts owed under the Plan, although the
Participant shall remain liable for any part of the Participant’s obligation not satisfied through
such deduction and setoff. By accepting any Award granted hereunder, the Participant agrees to any
deduction or setoff hereunder.







19.12 Fractional Shares




     No fractional shares of Common Stock shall be issued or delivered pursuant to the Plan or any
Award. The Committee shall determine whether other Awards may be issued or paid in lieu of such
fractional shares or whether such fractional shares or any rights thereof shall be forfeited or
otherwise eliminated.







ARTICLE XX

CLAIMS PROCEDURES 








20.01 Initial Claim




     If a Participant has exercised an Option or SAR or if shares of Restricted Stock have become
vested or Restricted Stock Units, Incentive Awards, Other Stock-Based Awards or Dividend
Equivalents have become payable, and the Participant has not received the benefits to which the
Participant believes he or she is entitled under such Award, then the Participant must submit a
written claim for such benefits to the Committee within ninety (90) days of the date the
Participant tried to exercise the Option or SAR, the date the Participant contends the Restricted
Stock vested or the date the Participant contends the Restricted Stock Units, Incentive Awards,



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Other Stock-Based Awards or Dividend Equivalents became payable or the claim will be forever
barred.








20.02 Appeal of Claim




     If a claim of a Participant is wholly or partially denied, the Participant or his duly
authorized representative may appeal the denial of the claim to the Committee. Such appeal must be
made at any time within thirty (30) days after the Participant receives written notice from the
Company of the denial of the claim. In connection therewith, the Participant or his duly
authorized representative may request a review of the denied claim, may review pertinent documents
and may submit issues and comments in writing. Upon receipt of an appeal, the Committee shall make
a decision with respect to the appeal and, not later than sixty (60) days after receipt of such
request for review, shall furnish the Participant with the decision on review in writing, including
the specific reasons for the decision written in a manner calculated to be understood by the
Participant, as well as specific references to the pertinent provisions of the Plan upon which the
decision is based.







20.03 Time to File Suit




     The Committee has the discretionary and final authority under the Plan to determine the
validity of a claim. Accordingly, any decision the Committee makes on a Participant’s appeal will
be administratively final. If a Participant disagrees with the Committee’s final decision, the
Participant may sue, but only after the claim on appeal has been denied. Any lawsuit must be filed
within ninety (90) days of receipt of the Committee’s final written denial of the Participant’s
claim or the claim will be forever barred.







ARTICLE XXI

AMENDMENT








21.01 Amendment of Plan




     The Board may amend or terminate this Plan at any time; provided, however, that no amendment
to the Plan may adversely impair the rights of a Participant with respect to outstanding Awards
without the Participant’s consent. In addition, an amendment will be contingent on approval of the
Company’s stockholders, to the extent required by law or any tax or regulatory requirement
applicable to the Plan or by the rules of any stock exchange on which the Company’s securities are
traded, or if the amendment would (i) increase the benefits accruing to Participants under the
Plan, including without limitation, any amendment to the Plan or an Agreement to permit a repricing
or decrease in the exercise or purchase price or base value of an Award, (ii) increase the
aggregate number of shares of Common Stock that may be issued under the Plan, (iii) modify the
requirements as to eligibility for participation in the Plan, (iv) change the performance
conditions set forth in Article XV of the Plan or (v) accelerate the time at which an Award may be
exercised, become transferable or non-forfeitable or become earned and payable except in connection
with a Change in Control or, to the extent permitted by the Committee, in the event of the
Participant’s death, disability, retirement, or involuntary termination of employment or service.
Additionally, to the extent the Board deems necessary to continue to comply with the
performance-based exception to the deduction limits of Code



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Section 162(m), the Board will resubmit the material terms of the performance conditions set
forth in Article XV to the Company’s stockholders for approval no later than the first stockholder
meeting that occurs in the fifth (5th) year following the year in which the stockholders
previously approved the performance objectives. Notwithstanding any other provision of the Plan,
any termination of the Plan shall comply with the requirements of Code Section 409A with regard to
any 409A Awards.








21.02 Amendment of Awards




     The Committee may amend any outstanding Awards to the extent it deems appropriate; provided,
however, that no amendment to an outstanding Award may adversely impair the rights of a Participant
without the Participant’s consent.







ARTICLE XXII

OMNIBUS SECTION 409A PROVISION








22.01 Intent of Awards




     It is intended that Awards that are granted under the Plan shall be exempt from treatment as
“deferred compensation” subject to Code Section 409A unless otherwise specified by the Committee.
Towards that end, all Awards under the Plan are intended to contain such terms as will qualify the
Awards for an exemption from Code Section 409A unless otherwise specified by the Committee. The
terms of the Plan and all Awards granted hereunder shall be construed consistent with the foregoing
intent. Notwithstanding any other provision hereof, the Committee may amend any outstanding Award
without Participant’s consent if, as determined by the Committee, in its sole discretion, such
amendment is required either to (a) confirm exemption under Code Section 409A, (b) comply with Code
Section 409A or (c) prevent the Participant from being subject to any tax or penalty under Code
Section 409A. Notwithstanding the foregoing, however, neither the Company nor any of its
Affiliates nor the Committee shall be liable to a Participant or any other Person if an Award that
is subject to Code Section 409A or the Participant or any other Person is otherwise subject to any
additional tax, interest or penalty under Code Section 409A. Each Participant is solely
responsible for the payment of any tax liability (including any taxes, penalties and interest that
may arise under Code Section 409A) that may result from an Award.







22.02 409A Awards




     The Committee may grant Awards under the Plan that are intended to be 409A Awards that comply
with Code Section 409A. The terms of such 409A Award, including any authority by the Company and
the rights of the Participant with respect to such 409A Award, will be subject to such rules and
limitations and shall be interpreted in a manner as to comply with Code Section 409A.







22.03 Election Requirements




     If a Participant is permitted to elect to defer an Award or any payment under an Award, such
election shall be made in accordance with the requirements of Code Section 409A. Each



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initial deferral election (an “Initial Deferral Election”) must be received by the Committee
prior to the following dates or will have no effect whatsoever:




     (a) Except as otherwise provided below, the December 31 immediately preceding the year in
which the compensation is earned;



     (b) With respect to any annual or long-term incentive pay which qualifies as
“performance-based compensation” within the meaning of Code Section 409A, by the date six (6)
months prior to the end of the performance measurement period applicable to such incentive pay
provided such additional requirements set forth in Code Section 409A are met;



     (c) With respect to “fiscal year compensation” as defined under Code Section 409A, by the last
day of the Company’s fiscal year immediately preceding the year in which the fiscal year
compensation is earned; or



     (d) With respect to mid-year Awards or other legally binding rights to a payment of
compensation in a subsequent year that is subject to a forfeiture condition requiring the
Participant’s continued service for a period of at least twelve (12) months, on or before the
thirtieth (30th) day following the grant of such Award, provided that the election is
made at least twelve (12) months in advance of the earliest date at which the forfeiture condition
could lapse.



     The Committee may, in its sole discretion, permit Participants to submit additional deferral
elections in order to delay, but not to accelerate, a payment, or to change the form of payment of
an amount of deferred compensation (a “Subsequent Deferral Election”), if, and only if, the
following conditions are satisfied: (a) the Subsequent Deferral Election must not take effect until
twelve (12) months after the date on which it is made, (b) in the case of a payment other than a
payment attributable to the Participant’s death, disability or an unforeseeable emergency (all
within the meaning of Code Section 409A) the Subsequent Deferral Election further defers the
payment for a period of not less than five (5) years from the date such payment would otherwise
have been made and (c) the Subsequent Deferral Election is received by the Committee at least
twelve (12) months prior to the date the payment would otherwise have been made. In addition,
Participants may be further permitted to revise the form of payment they have elected, or the
number of installments elected, provided that such revisions comply with the requirements of a
Subsequent Deferral Election.







22.04 Time of Payment




     The time and form of payment of a 409A Award shall be as set forth in an applicable Agreement.
A 409A Award may only be paid in connection with a separation from service, a fixed time, death,
disability, Change in Control or an unforeseeable emergency within the meaning of Code Section
409A. The time of distribution of the 409A Award must be fixed by reference to the specified
payment event. For purposes of Code Section 409A, each installment payment will be treated as the
entitlement to a single payment.



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22.05 Acceleration or Deferral




     The Company shall have no authority to accelerate or delay or change the form of any
distributions relating to 409A Awards except as permitted under Code Section 409A.







22.06 Distribution Requirements




     Any distribution of a 409A Award triggered by a Participant’s termination of employment shall
be made only at the time that the Participant has had a separation from service within the meaning
of Code Section 409A. A separation from service shall occur where it is reasonably anticipated
that no further services will be performed after that date or that the level of bona fide services
the Participant will perform after that date (whether as an employee or independent contractor of
the Company or an Affiliate) will permanently decrease to less than fifty percent (50%) of the
average level of bona fide services performed over the immediately preceding thirty-six (36) month
period. A Participant shall be considered to have continued employment and to not have a
separation from service while on a leave of absence if the leave does not exceed six (6)
consecutive months (twenty-nine (29) months for a disability leave of absence) or, if longer, so
long as the Participant retains a right to reemployment with the Company or Affiliate under an
applicable statute or by contract. For this purpose, a “disability leave of absence” is an absence
due to any medically determinable physical or mental impairment that can be expected to result in
death or can be expected to last for a continuous period of not less than six (6) months, where
such impairment causes the Participant to be unable to perform the duties of Participant’s position
of employment or a substantially similar position of employment. Continued services solely as a
director of the Company or an Affiliate shall not prevent a separation from service from occurring
by an employee as permitted by Code Section 409A.







22.07 Key Employee Rule




     Notwithstanding any other provision of the Plan, any distribution of a 409A Award that would
be made within six (6) months following a separation from service of a “specified employee” as
defined under Code Section 409A and as determined under procedures adopted by the Board or its
delegate shall instead occur on the first day of the seventh month following the separation from
service (or upon the Participant’s death, if earlier) to the extent required by Code Section 409A.
In the case of installments, this delay shall not affect the timing of any installment otherwise
payable after the six (6) month delay period.







22.08 Distributions Upon Vesting




     In the case of any Award providing for a distribution upon the lapse of a substantial risk of
forfeiture, if the timing of such distribution is not otherwise specified in the Plan or the
applicable Agreement, the distribution shall be made not later than two and one-half (21/2) months
after the calendar year in which the risk of forfeiture lapsed.



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22.09 Scope and Application of this Provision




     For purposes of this Article XXII, references to a term or event (including any authority or
right of the Company or a Participant) being “permitted” under Code Section 409A means that the
term or event will not cause the Participant to be deemed to be in constructive receipt of
compensation relating to the 409A Award prior to the distribution of shares of Common Stock or
other Awards or to be liable for payment of interest or a tax penalty under Code Section 409A.







ARTICLE XXIII

EFFECTIVE DATE OF PLAN




     The Plan is effective on February 4, 2010, the date of adoption by the Board, contingent,
however, on approval of the Plan by the Company’s stockholders within twelve (12) months of such
date. Awards, other than Restricted Stock, may be granted under this Plan as of the effective
date, provided that no Award shall be effective, exercisable, vested, earned or payable unless the
Company’s stockholders approve the Plan within twelve (12) months of the Board’s adoption of the
Plan. Restricted Stock may only be granted after the Company’s stockholders approve the Plan.







ARTICLE XXIV

DURATION OF PLAN




     No Award may be granted under this Plan after February 3, 2020 (ten (10) years following the
effective date of the Plan). Awards granted before that date shall remain valid in accordance with
their terms.




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