exv10w3



 







Exhibit 10.3




COMMERCIAL VEHICLE GROUP, INC.

AMENDED AND RESTATED

EQUITY INCENTIVE PLAN




1. Purpose.




          This plan shall be known as the Commercial Vehicle Group, Inc. Amended and Restated Equity
Incentive Plan (the “Plan”). The purpose of the Plan shall be to promote the long-term growth and
profitability of Commercial Vehicle Group, Inc. (the “Company”) and its Subsidiaries by (i)
providing certain directors, officers and employees of, and certain other individuals who perform
services for, or to whom an offer of employment has been extended by, the Company and its
Subsidiaries with incentives to maximize stockholder value and otherwise contribute to the success
of the Company and (ii) enabling the Company to attract, retain and reward the best available
persons for positions of responsibility. Grants of incentive or non-qualified stock options, stock
appreciation rights (“SARs”), restricted stock units, restricted stock, performance awards or any
combination of the foregoing may be made under the Plan.




2. Definitions.




          (a) “Board of Directors” and “Board” mean the board of directors of the Company.




          (b) “Cause” shall, with respect to any participant, have the equivalent meaning as the term
“cause” or “for cause” in any employment, consulting, or independent contractor’s agreement between
the participant and the Company or any Subsidiary, or in the absence of such an agreement that
contains such a defined term, shall mean the occurrence of one or more of the following events:




               (i) Conviction of any felony or any crime or offense lesser than a felony involving the
property of the Company or a Subsidiary; or



               (ii) Deliberate or reckless conduct that has caused demonstrable and serious injury to the
Company or a Subsidiary, monetary or otherwise, or any other serious misconduct of such a nature
that the participant’s continued relationship with the Company or a Subsidiary may reasonably be
expected to adversely affect the business or properties of the Company or any Subsidiary; or



               (iii) Willful refusal to perform or reckless disregard of duties properly assigned, as
determined by the Company; or



               (iv) Breach of duty of loyalty to the Company or a Subsidiary or other act of fraud or
dishonesty with respect to the Company or a Subsidiary.



 









 





          For purposes of this Section 2(b), any good faith determination of “Cause” made by the
Committee shall be binding and conclusive on all interested parties.




          (c) “Change in Control” means the occurrence of one of the following events:




               (i) if any “person” or “group” as those terms are used in Sections 13(d) and 14(d) of the
Exchange Act or any successors thereto, other than an Exempt Person, is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act or any successor thereto), directly or
indirectly, of securities of the Company representing more than 50% of either the then outstanding
shares or the combined voting power of the then outstanding securities of the Company; or



               (ii) during any period of two consecutive years, individuals who at the beginning of such
period constitute the Board and any new directors whose election by the Board or nomination for
election by the Company’s stockholders was approved by at least two-thirds of the directors then
still in office who either were directors at the beginning of the period or whose election was
previously so approved, cease for any reason to constitute a majority thereof; or



               (iii) the consummation of a merger or consolidation of the Company with any other corporation
or other entity, other than a merger or consolidation which would result in all or a portion of the
voting securities of the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of the surviving
entity) more than 50% of the combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation; or



               (iv) the consummation of a plan of complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all the Company’s assets, other than a
sale to an Exempt Person.



          (d) “Code” means the Internal Revenue Code of 1986, as amended.




          (e) “Committee” means the Compensation Committee of the Board, which shall consist solely of
two or more members of the Board, and each member of the Committee shall be (i) a “non-employee
director” within the meaning of Rule 16b-3 under the Exchange Act, unless administration of the
Plan by “non-employee directors” is not then required in order for exemptions under Rule 16b-3 to
apply to transactions under the Plan, (ii) an “outside director” within the meaning of Section
162(m) of the Code, unless administration of the Plan by “outside directors” is not then required
in order to qualify for tax deductibility under Section 162(m) of the Code, and (iii) independent,
as defined by the rules of the Nasdaq National Market or any national securities exchange on which
any securities of the Company are listed for trading, and if not listed for trading, by the rules
of the Nasdaq National Market.




          (f) “Common Stock” means the Common Stock, par value $.01 per share, of the Company, and any
other shares into which such stock may be changed by reason of a
recapitalization, reorganization,
merger, consolidation or any other change in the corporate structure or capital
stock of the
Company.





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          (g) “Competition” is deemed to occur if a person whose employment with the Company or its
Subsidiaries has terminated obtains a position as a full-time or part-time employee of, as a member
of the board of directors of, or as a consultant or advisor with or to, or acquires an ownership
interest in excess of 2% of, a corporation, partnership, firm or other entity that engages, in any
state in which the Company or any Subsidiary is doing business at the time of such person’s
termination of employment, in any business which competes with any product or service of the
Company or any Subsidiary.




          (h) “Disability” means a disability that would entitle an eligible participant to payment of
monthly disability payments under any Company disability plan or any agreement between the eligible
participant and the Company as otherwise determined by the Committee.




          (i) “Exchange Act” means the Securities Exchange Act of 1934, as amended.




          (j) “Exempt Person” means (i) Onex Corporation, (ii) any person, entity or group controlled by
or under common control with any party included in clause (i), or (iii) any employee benefit plan
of the Company or any Subsidiary, or a trustee or other administrator or fiduciary holding
securities under an employee benefit plan of the Company or any Subsidiary.




          (k) “Family Member” has the meaning given to such term in General Instructions A.1(a)(5) to
Form S-8 under the Securities Act of 1933, as amended, and any successor thereto.




          (l) “Fair Market Value” of a share of Common Stock of the Company means, as of the date in
question, the officially-quoted closing selling price of the stock (or if no selling price is
quoted, the bid price) on the principal securities exchange on which the Common Stock is then
listed for trading (including for this purpose the Nasdaq National Market) (the “Market”) for the
applicable trading day or, if the Common Stock is not then listed or quoted in the Market, the Fair
Market Value shall be the fair value of the Common Stock determined in good faith by the Board;
provided, however, that when shares received upon exercise of an option are immediately sold in the
open market, the net sale price received may be used to determine the Fair Market Value of any
shares used to pay the exercise price or applicable withholding taxes and to compute the
withholding taxes.




          (m) “Good Reason” shall, with respect to any participant, have the equivalent meaning as the
term “good reason” or “for good reason” in any employment, consulting, or independent contractor’s
agreement between the participant and the Company or any Subsidiary, or in the absence of such an
agreement that contains such a defined term, shall mean (i) the assignment to the participant of
any duties materially inconsistent with the participant’s duties or responsibilities as assigned by
the Company (or a Subsidiary), or any other action by the Company (or a Subsidiary) which results
in a material diminution in such duties or responsibilities, excluding for this purpose any
isolated, insubstantial and inadvertent actions not
taken in bad faith and which are remedied by the Company (or a Subsidiary) promptly after
receipt of notice thereof given by the participant; (ii) any material failure by the Company (or a
Subsidiary) to make any payment of compensation or pay any benefits to the participant that have
been agreed upon between the Company (or a





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Subsidiary) and the participant in writing, other than
an isolated, insubstantial and inadvertent failure not occurring in bad faith and which is remedied
by the Company (or a Subsidiary) promptly after receipt of notice thereof given by the participant;
or (iii) the Company’s (or Subsidiary’s) requiring the participant to be based at any office or
location outside of fifty miles from the location of employment or service as of the date of award,
except for travel reasonably required in the performance of the participant’s responsibilities.




          (n) “Incentive Stock Option” means an option conforming to the requirements of Section 422 of
the Code and any successor thereto.




          (o) “Non-Employee Director” has the meaning given to such term in Rule 16b-3 under the
Exchange Act and any successor thereto.




          (p) “Non-qualified Stock Option” means any stock option other than an Incentive Stock Option.




          (q) “Other Company Securities” mean securities of the Company other than Common Stock, which
may include, without limitation, unbundled stock units or components thereof, debentures, preferred
stock, warrants and securities convertible into or exchangeable for Common Stock or other property.




          (r) “Performance Award” means a right, granted to a participant under Section 12 hereof, to
receive awards based upon performance criteria specified by the Committee.




          (s) “Retirement” means retirement as defined under any Company pension plan or retirement
program or termination of one’s employment on retirement with the approval of the Committee.




          (t) “Share” means a share of Common Stock that may be issued pursuant to the Plan.




          (u) “Subsidiary” means a corporation or other entity of which outstanding shares or ownership
interests representing 50% or more of the combined voting power of such corporation or other entity
entitled to elect the management thereof, or such lesser percentage as may be approved by the
Committee, are owned directly or indirectly by the Company.




3. Administration.




     The Plan shall be administered by the Committee; provided that the Board may, in its
discretion, at any time and from time to time, resolve to administer the Plan, in which case the
term “Committee” shall be deemed to mean the Board for all purposes herein. Subject to the
provisions of the Plan, the Committee shall be authorized to (i) select persons to participate
in the Plan, (ii) determine the form and substance of grants made under the Plan to each
participant, and the conditions and restrictions, if any, subject to which such grants will be
made, (iii) certify that the conditions and restrictions applicable to any grant have been met,
(iv) modify the terms of



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grants made under the Plan, (v) interpret the Plan and grants made
thereunder, (vi) make any adjustments necessary or desirable in connection with grants made under
the Plan to eligible participants located outside the United States and (vii) adopt, amend, or
rescind such rules and regulations, and make such other determinations, for carrying out the Plan
as it may deem appropriate. Decisions of the Committee on all matters relating to the Plan shall
be in the Committee’s sole discretion and shall be conclusive and binding on all parties. The
validity, construction, and effect of the Plan and any rules and regulations relating to the Plan
shall be determined in accordance with applicable federal and state laws and rules and regulations
promulgated pursuant thereto. No member of the Committee and no officer of the Company shall be
liable for any action taken or omitted to be taken by such member, by any other member of the
Committee or by any officer of the Company in connection with the performance of duties under the
Plan, except for such person’s own willful misconduct or as expressly provided by statute.




     The expenses of the Plan shall be borne by the Company. The Plan shall not be required to
establish any special or separate fund or make any other segregation of assets to assume the
payment of any award under the Plan, and rights to the payment of such awards shall be no greater
than the rights of the Company’s general creditors.



4. Shares Available for the Plan; Limit on Awards.




     Subject to adjustments as provided in Section 19, the number of Shares that may be issued
pursuant to the Plan as awards shall not exceed 1,000,000 in the aggregate. Such Shares may be in
whole or in part authorized and unissued or held by the Company as treasury shares. If any grant
under the Plan expires or terminates unexercised, becomes unexercisable or is forfeited as to any
Shares, or is tendered or withheld as to any Shares in payment of the exercise price of the grant
or the taxes payable with respect to the exercise, then such unpurchased, forfeited, tendered or
withheld Shares shall thereafter be available for further grants under the Plan.



     Without limiting the generality of the foregoing provisions of this Section 4 or the
generality of the provisions of Sections 3, 6 or 21 or any other section of this Plan, the
Committee may, at any time or from time to time, and on such terms and conditions (that are
consistent with and not in contravention of the other provisions of this Plan) as the Committee
may, in its sole discretion, determine, enter into agreements (or take other actions with respect
to the options) for new options containing terms (including exercise prices) more (or less)
favorable than the outstanding options.



     In any one calendar year, the Committee shall not grant to any one participant awards to
purchase or acquire a number of Shares in excess of twenty percent (20 %) of the total number of
Shares authorized under the Plan pursuant to this Section 4.



5. Participation.




     Participation in the Plan shall be limited to those directors (including Non-Employee
Directors), officers (including non-employee officers) and employees of, and other individuals
performing services for, or to whom an offer of employment has been extended by, the Company



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and
its Subsidiaries selected by the Committee (including participants located outside the United
States). Nothing in the Plan or in any grant thereunder shall confer any right on a participant to
continue in the employ as a director or officer of or in the performance of services for the
Company or shall interfere in any way with the right of the Company to terminate the employment or
performance of services or to reduce the compensation or responsibilities of a participant at any
time. By accepting any award under the Plan, each participant and each person claiming under or
through him or her shall be conclusively deemed to have indicated his or her acceptance and
ratification of, and consent to, any action taken under the Plan by the Company, the Board or the
Committee.




     Incentive Stock Options or Non-qualified Stock Options, SARs, restricted stock units,
restricted stock awards, performance awards, or any combination thereof, may be granted to such
persons and for such number of Shares as the Committee shall determine (such individuals to whom
grants are made being sometimes herein called “optionees” or “grantees,” as the case may be).
Determinations made by the Committee under the Plan need not be uniform and may be made selectively
among eligible individuals under the Plan, whether or not such individuals are similarly situated.
A grant of any type made hereunder in any one year to an eligible participant shall neither
guarantee nor preclude a further grant of that or any other type to such participant in that year
or subsequent years.



6. Incentive and Non-qualified Options and SARs.




     The Committee may from time to time grant to eligible participants Incentive Stock Options,
Non-qualified Stock Options, or any combination thereof; provided that the Committee may grant
Incentive Stock Options only to eligible employees of the Company or its subsidiaries (as defined
for this purpose in Section 424(f) of the Code or any successor thereto). The options granted
shall take such form as the Committee shall determine, subject to the following terms and
conditions.



     It is the Company’s intent that Non-qualified Stock Options granted under the Plan not be
classified as Incentive Stock Options, that Incentive Stock Options be consistent with and contain
or be deemed to contain all provisions required under Section 422 of the Code and any successor
thereto, and that any ambiguities in construction be interpreted in order to effectuate such
intent. If an Incentive Stock Option granted under the Plan does not qualify as such for any
reason, then to the extent of such non-qualification, the stock option represented thereby shall be
regarded as a Non-qualified Stock Option duly granted under the Plan, provided that such stock
option otherwise meets the Plan’s requirements for Non-qualified Stock Options.



          (a) Price. The price per Share deliverable
upon the exercise of each option (“exercise price”) shall be established by the Committee, except
that the exercise price may not be less than 100% of the Fair Market Value of a share of Common
Stock as of the date of grant of the option, and in the case of the grant of any Incentive Stock
Option to an employee who, at the time of the grant, owns more than 10% of the total combined
voting power of all classes of stock of the Company or any of its Subsidiaries, the exercise price
may not be less than 110% of the Fair Market Value of a share of Common Stock as of the date of
grant of the option, in each case unless otherwise permitted by Section 422 of the Code or any
successor thereto.





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          (b) Payment. Options may be exercised, in
whole or in part, upon payment of the exercise price of the Shares to be acquired. Unless otherwise
determined by the Committee, payment shall be made (i) in cash (including check, bank draft, money
order or wire transfer of immediately available funds), (ii) by delivery of outstanding shares of
Common Stock with a Fair Market Value on the date of exercise equal to the aggregate exercise price
payable with respect to the options’ exercise, (iii) by simultaneous sale through a broker
reasonably acceptable to the Committee of Shares acquired on exercise, as permitted under
Regulation T of the Federal Reserve Board, (iv), if the Shares are traded on an established
securities market at the time of exercise, by authorizing the Company to withhold from issuance a
number of Shares issuable upon exercise of the options which, when multiplied by the Fair Market
Value of a share of Common Stock on the date of exercise, is equal to the aggregate exercise price
payable with respect to the options so exercised, or (v) by any combination of the foregoing.




          In the event a grantee elects to pay the exercise price payable with respect to an option
pursuant to clause (ii) above, (A) only a whole number of share(s) of Common Stock (and not
fractional shares of Common Stock) may be tendered in payment, (B) such grantee must present
evidence acceptable to the Company that he or she has owned any such shares of Common Stock
tendered in payment of the exercise price (and that such tendered shares of Common Stock have not
been subject to any substantial risk of forfeiture) for at least six months prior to the date of
exercise, and (C) Common Stock must be delivered to the Company. Delivery for this purpose may, at
the election of the grantee, be made either by (A) physical delivery of the certificate(s) for all
such shares of Common Stock tendered in payment of the price, accompanied by duly executed
instruments of transfer in a form acceptable to the Company, or (B) direction to the grantee’s
broker to transfer, by book entry, such shares of Common Stock from a brokerage account of the
grantee to a brokerage account specified by the Company. When payment of the exercise price is
made by delivery of Common Stock, the difference, if any, between the aggregate exercise price
payable with respect to the option being exercised and the Fair Market Value of the shares of
Common Stock tendered in payment (plus any applicable taxes) shall be paid in cash. No grantee may
tender shares of Common Stock having a Fair Market Value exceeding the aggregate exercise price
payable with respect to the option being exercised (plus any applicable taxes).




          In the event a grantee elects to pay the exercise price payable with respect to an option
pursuant to clause (iv) above, (A) only a whole number of Share(s) (and not fractional Shares) may
be withheld in payment and (B) such grantee must present evidence acceptable to the Company that he
or she has owned a number of shares of Common Stock at least equal to the number of Shares to be
withheld in payment of the exercise price (and that such owned shares of Common Stock have not been
subject to any substantial risk of forfeiture) for at least six months prior to the date of
exercise. When payment of the exercise price is made by withholding of Shares, the difference, if
any, between the aggregate exercise price payable with respect to the option being exercised and
the Fair Market Value of the Shares withheld in payment (plus any applicable taxes) shall be paid
in cash. No grantee may authorize the withholding of Shares having a Fair Market Value exceeding
the aggregate exercise price payable with respect to the option being exercised (plus any
applicable taxes). Any withheld Shares shall no longer be issuable under such option (except
pursuant to any Reload Option (as defined below) with respect to any such withheld Shares).





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          (c) Terms of Options. The term during which
each option may be exercised shall be determined by the Committee, but if required by the Code and
except as otherwise provided herein, no option shall be exercisable in whole or in part more than
ten years from the date it is granted, and no Incentive Stock Option granted to an employee who at
the time of the grant owns more than 10% of the total combined voting power of all classes of stock
of the Company or any of its Subsidiaries shall be exercisable more than five years from the date
it is granted. All rights to purchase Shares pursuant to an option shall, unless sooner
terminated, expire at the date designated by the Committee. The Committee shall determine the date
on which each option shall become exercisable and may provide that an option shall become
exercisable in installments. The Shares constituting each installment may be purchased in whole or
in part at any time after such installment becomes exercisable, subject to such minimum exercise
requirements as may be designated by the Committee. Prior to the exercise of an option and
delivery of the Shares represented thereby, the optionee shall have no rights as a stockholder with
respect to any Shares covered by such outstanding option (including any dividend or voting rights).




          (d) Limitations on Grants. If required by the
Code, the aggregate Fair Market Value (determined as of the grant date) of Shares for which an
Incentive Stock Option is exercisable for the first time during any calendar year under all equity
incentive plans of the Company and its Subsidiaries (as defined in Section 422 of the Code or any
successor thereto) may not exceed $100,000.




          (e) Termination.




               (i) Death or Disability. Except as otherwise determined by the Committee, if a participant ceases to be a director,
officer or employee of, or to perform other services for, the Company and any Subsidiary due to
death or Disability, all of the participant’s options and SARs that were exercisable on the date of
such cessation shall remain so for a period of 180 days from the date of such death or Disability,
but in no event after the expiration date of the options or SARs; provided that the participant
does not engage in Competition during such 180-day period unless he or she received written consent
to do so from the Board or the Committee. Notwithstanding the foregoing, if the Disability giving
rise to the termination of employment is not within the meaning of Section 22(e)(3) of the Code or
any successor thereto, Incentive Stock Options not exercised by such participant within 90 days
after the date of termination of employment will cease to qualify as Incentive Stock Options and
will be treated as Non-qualified Stock Options under the Plan if required to be so treated under
the Code.



               (ii) Retirement. Except as otherwise
determined by the Committee, if a participant ceases to be a director, officer or employee of, or
to perform other services for, the Company or any Subsidiary upon the occurrence of his or her
Retirement, (A) all of the participant’s options and SARs that were exercisable on the date of
Retirement shall remain exercisable for, and shall otherwise terminate at the end of, a period of
90 days after the date of Retirement, but in no event after the expiration date of the options or
SARs; provided that the participant does not engage in Competition during such 90-day period unless
he or she receives written consent to do so from the Board or the Committee, and (B) all of the
participant’s options and SARs that were not exercisable on the date of Retirement shall be
forfeited immediately



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upon such Retirement; provided, however, that such options and SARs may
become fully vested and exercisable in the discretion of the Committee. Notwithstanding the
foregoing, Incentive Stock Options not exercised by such participant within 90 days after
Retirement will cease to qualify as Incentive Stock Options and will be treated as Non-qualified
Stock Options under the Plan if required to be so treated under the Code.




               (iii) Discharge for Cause. Except as
otherwise determined by the Committee, if a participant ceases to be a director, officer or
employee of, or to perform other services for, the Company or a Subsidiary due to Cause, or if a
participant does not become a director, officer or employee of, or does not begin performing other
services for, the Company or a Subsidiary for any reason, all of the participant’s options and SARs
shall expire and be forfeited immediately upon such cessation or non-commencement, whether or not
then exercisable.



               (iv) Other Termination. Except as otherwise
determined by the Committee, if a participant ceases to be a director, officer or employee of, or
to otherwise perform services for, the Company or a Subsidiary for any reason other than death,
Disability, Retirement or Cause, (A) all of the participant’s options and SARs that were
exercisable on the date of such cessation shall remain exercisable for, and shall otherwise
terminate at the end of, a period of 90 days after the date of
such cessation, but in no event after the expiration date of the options or SARs; provided
that the participant does not engage in Competition during such 90-day period unless he or she
receives written consent to do so from the Board or the Committee, and (B) all of the participant’s
options and SARs that were not exercisable on the date of such cessation shall be forfeited
immediately upon such cessation.



          (f) Grant of Reload Options. The Committee
may provide (either at the time of grant or exercise of an option), in its discretion, for the
grant to a grantee who exercises all or any portion of an option (“Exercised Options”) and who
pays all or part of such exercise price with shares of Common Stock, of an additional option (a
“Reload Option”) for a number of shares of Common Stock equal to the sum (the “Reload Number”) of
the number of shares of Common Stock tendered or withheld in payment of such exercise price for the
Exercised Options plus, if so provided by the Committee, the number of shares of Common Stock, if
any, tendered or withheld by the grantee or withheld by the Company in connection with the exercise
of the Exercised Options to satisfy any federal, state or local tax withholding requirements. The
terms of each Reload Option, including the date of its expiration and the terms and conditions of
its exercisability and transferability, shall be the same as the terms of the Exercised Option to
which it relates, except that (i) the grant date for each Reload Option shall be the date of
exercise of the Exercised Option to which it relates and (ii) the exercise price for each Reload
Option shall be the Fair Market Value of the Common Stock on the grant date of the Reload Option.




          (g) Options Exercisable for Restricted Stock.
The Committee shall have the discretion to grant options which are exercisable for Shares of
restricted stock. Should the participant cease to be a director, officer or employee of, or to
perform other services for, the Company or any Subsidiary while holding such Shares of restricted
stock, the Company shall have the right to repurchase, at the exercise price paid per share, any or
all of those Shares of restricted stock. The terms upon which such repurchase right shall be
exercisable (including the





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period and procedure for exercise and the appropriate vesting schedule
for the purchased shares) shall be established by the Committee and set forth in the document
evidencing such repurchase right.




7. Stock Appreciation Rights.




     The Committee shall have the authority to grant SARs under this Plan. SARs shall be subject
to such terms and conditions as the Committee may specify; provided that (1) the exercise price of
an SAR may never be less than the fair market value of the Shares subject to the SAR on the date
the SAR is granted, (2) the Shares are traded on an established securities market, (3) only Shares
may be delivered in settlement of the right upon exercise, and (4) no SAR may include any feature
for the deferral of compensation other than the deferral of recognition of income until the
exercise of the SAR.



     Prior to the exercise of the SAR and delivery of the Shares represented thereby, the
participant shall have no rights as a stockholder with respect to Shares covered by such
outstanding SAR (including any dividend or voting rights).



     Upon the exercise of an SAR, the participant shall be entitled to a distribution in an amount
equal to (A) the difference between the Fair Market Value of a share of Common Stock on the date of
exercise and the exercise price of the SAR multiplied by (B) the number of Shares as to which the
SAR is exercised. Such distribution shall be in Shares having a Fair Market Value equal to such
amount.



     All SARs will be exercised automatically on the last day prior to the expiration date of the
SAR so long as the Fair Market Value of a share of Common Stock on that date exceeds the exercise
price of the SAR.



8. Restricted Stock.




     The Committee may at any time and from time to time grant Shares of restricted stock under the
Plan to such participants and in such amounts as it determines. Each grant of restricted stock
shall specify the applicable restrictions on such Shares, the duration of such restrictions (which
shall be at least six months except as otherwise determined by the Committee or provided in the
third paragraph of this Section 8), and the time or times at which such restrictions shall lapse
with respect to all or a specified number of Shares that are part of the grant.



     The participant will be required to pay the Company the aggregate par value of any Shares of
restricted stock (or such larger amount as the Board may determine to constitute capital under
Section 154 of the Delaware General Corporation Law, as amended, or any successor thereto) within
ten days of the date of grant, unless such Shares of restricted stock are treasury shares. Unless
otherwise determined by the Committee, certificates representing Shares of restricted stock granted
under the Plan will be held in escrow by the Company on the participant’s behalf during any period
of restriction thereon and will bear an appropriate legend specifying the applicable restrictions
thereon, and the participant will be required to execute a blank stock power therefor. Except as
otherwise provided by the Committee, during such period



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of restriction the participant shall have all of the rights of a holder of Common Stock, including but not limited to the rights to receive
dividends and to vote, and any stock or other securities received as a distribution with respect to
such participant’s restricted stock shall be subject to the same restrictions as then in effect for
the restricted stock.




     At such time as a participant ceases to be a director, officer, or employee of, or to
otherwise perform services for, the Company and its Subsidiaries due to death, Disability or
Retirement during any period of restriction, all restrictions on Shares granted to such participant
shall lapse. At such time as a participant ceases to be, or in the event a participant does not
become, a director, officer or employee of, or otherwise performing services for, the Company or
its Subsidiaries for any other reason, all Shares of restricted stock granted to such participant
on which the restrictions have not lapsed shall be immediately forfeited to the Company.



9. Restricted Stock Units; Deferred Stock Units.




     The Committee may at any time and from time to time grant restricted stock units under the
Plan to such participants and in such amounts as it determines. Each grant of restricted stock
units shall specify the applicable restrictions on such units, the duration of such restrictions
(which shall be at least six months except as otherwise determined by the Committee or provided in
the third paragraph of this Section 9), and the time or times at which such restrictions shall
lapse with respect to all or a specified number of units that are part of the grant.



     Each restricted stock unit shall be equivalent in value to one share of Common Stock and shall
entitle the participant to receive one Share from the Company at the end of the vesting period (the
“Vesting Period”) of the applicable restricted stock unit, unless the participant elects in a
timely fashion, as provided below, to defer the receipt of such Shares with respect to the
restricted stock units. The Committee may require the payment by the participant of a specified
purchase price in connection with any restricted stock unit award.



     Except as otherwise provided by the Committee, during the Vesting Period the participant shall
not have any rights as a shareholder of the Company; provided that the participant shall have the
right to receive accumulated dividends or distributions with respect to the corresponding number of
shares of Common Stock underlying each restricted stock unit at the end of the Vesting Period,
unless the participant elects in a timely fashion, as provided below, to defer the receipt of the
Shares with respect to the restricted stock units, in which case such accumulated dividends or
distributions shall be paid by the Company to the participant at such time as the payment of the
Shares with respect to the deferred stock units.



     Except as otherwise provided by the Committee, immediately prior to a Change in Control or at
such time as a participant ceases to be a director, officer or employee of, or to otherwise perform
services for, the Company and any of its Subsidiaries due to death, Disability or Retirement during
any Vesting Period, all restrictions on restricted stock units granted to such participant shall
lapse and the participant shall be then entitled to receive payment in Shares with respect to the
applicable restricted stock units. At such time as a participant ceases to be a director, officer
or employee of, or otherwise performing services for, the Company and any of



11









 





its Subsidiaries for any other reason, all restricted stock units granted to such participant on which the restrictions
have not lapsed shall be immediately forfeited to the Company.




     A participant may elect by written notice to the Company, which notice must be made before the
later of (i) the close of the tax year preceding the year in which the restricted stock units are
granted or (ii) 30 days of first becoming eligible to participate in the Plan (or, if earlier, the
last day of the tax year in which the participant first becomes eligible to participate in the
plan) and on or prior to the date the restricted stock units are granted, to defer the receipt of
all or a portion of the Shares due with respect to the vesting of such restricted stock units;
provided that the Committee may impose such additional restrictions with respect to the time at
which a participant may elect to defer receipt of Shares subject to the deferral election, and any
other terms with respect to a grant of restricted stock units to the extent the Committee deems
necessary to enable the participant to defer recognition of income with respect to such units
until the Shares underlying such units are issued or distributed to the participant. Upon such
deferral, the restricted stock units so deferred shall be converted into deferred stock units.
Except as provided below, delivery of Shares with respect to deferred stock units shall be made at
the end of the deferral period set forth in the participant’s deferral election notice (the
“Deferral Period”). Deferral Periods shall be no less than one year after the vesting date of the
applicable restricted stock units.



     Except as otherwise provided by the Committee, during such Deferral Period the participant
shall not have any rights as a shareholder of the Company; provided that, the participant shall
have the right to receive accumulated dividends or distributions with respect to the corresponding
number of shares of Common Stock underlying each deferred stock unit at the end of the Deferral
Period.



     Except as otherwise provided by the Committee, if a participant ceases to be a director,
officer or employee of, or to otherwise perform services for, the Company or any Subsidiary due to
his or her death prior to the end of the Deferral Period, the participant shall receive payment in
Shares in respect of such participant’s deferred stock units which would have matured or been
earned at the end of such Deferral Period as if the applicable Deferral Period had ended as of the
date of such participant’s death.



     Except as otherwise provided by the Committee, if a participant ceases to be a director,
officer or employee of, or to otherwise perform services for, the Company or any Subsidiary upon
becoming disabled (as defined under Section 409A(a)(2)(C) of the Code) or Retirement or for any
other reason except termination for Cause prior to the end of the Deferral Period, the participant
shall receive payment in Shares in respect of such participant’s deferred stock units at the end of
the applicable Deferral Period or on such accelerated basis as the Committee may determine, to the
extent permitted by regulations issued under Section 409A(a)(3) of the Code.



     Except as otherwise provided by the Committee, if a participant ceases to be a director,
officer or employee of, or to otherwise perform services for, the Company or any Subsidiary due to
termination for Cause such participant shall immediately forfeit any deferred stock units which
would have matured or been earned at the end of the applicable Deferral Period.



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     Except as otherwise provided by the Committee, in the event of a Change in Control that also
constitutes a “change in the ownership or effective control of” the Company, or a “change in the
ownership of a substantial portion of the assets” of the Company (in each case as determined under
IRS Notice 2005-1, as amended or supplemented from time to time, or regulations issued pursuant to
Section 409A(a)(2)(A)(v) of the Code), a participant shall receive payment in Shares in respect of
such participant’s deferred stock units which would have matured or been earned at the end of the
applicable Deferral Period as if such Deferral Period had ended immediately prior to the Change in
Control; provided, however, that if an event that constitutes a Change in Control hereunder does
not constitute a “change in control” under Section 409A of the Code (or the regulations promulgated
thereunder), no payments with respect to the deferred stock units shall be made under this
paragraph to the extent such payments would constitute an impermissible acceleration under Section
409A of the Code.



10. Dividend Equivalents.




     The Committee is authorized to grant dividend equivalents to a participant entitling the
participant to receive cash, Shares, other awards, or other property equal in value to dividends
paid with respect to a specified number of shares of Common Stock of the Company, or other periodic
payments. Dividend equivalents may be awarded on a free-standing basis or in connection with
another award. The Committee may provide that dividend equivalents shall be paid or distributed
when accrued or shall be deemed to have been reinvested in additional shares of Common Stock of the
Company, awards, or other investment vehicles, and subject to such restrictions on transferability
and risks of forfeiture, as the Committee may specify.



11. Other Stock-Based Awards.




     The Committee is authorized, subject to limitations under applicable law, to grant to
participants such other awards that may be denominated or payable in, valued in whole or in part by
reference to, or otherwise based on, or related to, shares of Common Stock of the Company, as
deemed by the Committee to be consistent with the purposes of the Plan, including, without
limitation, convertible or exchangeable debt securities, other rights convertible or exchangeable
into Shares, purchase rights for Shares, awards with value and payment contingent upon performance
of the Company or any other factors designated by the Committee, and awards valued by reference to
the book value of Shares or the value of securities of or the performance of specified
Subsidiaries. The Committee shall determine the terms and conditions of such awards. Shares
delivered pursuant to an award in the nature of a purchase right granted under this Section 11
shall be purchased for such consideration (including without limitation loans from the Company or a
Subsidiary to the extent permissible under the Sarbanes Oxley Act of 2002 and other applicable
law), paid for at such times, by such methods, and in such forms, including, without limitation,
cash, Shares, other awards or other property, as the Committee shall determine. Cash awards, as an
element of or supplement to any other award under the Plan, may also be granted pursuant to this
Section 11.



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12. Performance Awards.




     The Committee is authorized to make Performance Awards payable in cash, Shares, or other
awards, on terms and conditions established by the Committee, subject to the provisions of this
Section 12.



     The performance goals for such Performance Awards shall consist of one or more business
criteria and a targeted level or levels of performance with respect to each of such criteria, or
such other personal or business goals and objectives, as the Committee shall determine. The
Committee may determine that such Performance Awards shall be granted, exercised and/or settled
upon achievement of any one performance goal or that two or more of
the performance goals must be achieved as a condition to grant, exercise and/or settlement of
such Performance Awards. Performance goals may differ for Performance Awards granted to any one
participant or to different participants.



     Achievement of performance goals in respect of such Performance Awards shall be measured over
any performance period determined by the Committee. During the performance period, the Committee
shall have the authority to adjust the performance goals and objectives for such performance period
for such reasons as it deems equitable. A performance award shall be paid no later than two and
one-half months after the last day of the tax year in which a performance period is completed.



     The Committee may establish a Performance Award pool, which shall be an unfunded pool, for
purposes of measuring Company performance in connection with Performance Awards. The amount of
such Performance Award pool shall be based upon the achievement of a performance goal or goals
during the given performance period, as specified by the Committee. The Committee may specify the
amount of the Performance Award pool as a percentage of any of such business criteria, a percentage
thereof in excess of a threshold amount, or as another amount which need not bear a strictly
mathematical relationship to such business criteria.



     Settlement of Performance Awards shall be in cash, Shares, other awards or other property, in
the discretion of the Committee. The Committee may, in its discretion, reduce the amount of a
settlement otherwise to be made in connection with such Performance Awards. The Committee shall
specify the circumstances in which such Performance Awards shall be paid or forfeited in the event
of termination of the participant’s employment or service prior to the end of a performance period
or settlement of Performance Awards.



13. Change in Control.




     Unless otherwise determined by the Committee, if there is a Change in Control of the Company
and a participant’s employment or service as a director, officer, or employee of the Company or a
Subsidiary, is terminated (1) by the Company without Cause, (2) by reason of the participant’s
death, Disability, or Retirement, or (3) by the participant for Good Reason, within twelve months
after such Change in Control:



14









 





               (i) any award carrying a right to exercise that was not previously vested and exercisable as
of the time of the Change in Control, shall become immediately vested and exercisable, and shall
remain so for up to 180 days after the date of termination (but in no event after the expiration
date of the award), subject to applicable restrictions;



               (ii) any restrictions, deferral of settlement, and forfeiture conditions applicable to any
other award granted under the Plan shall lapse and such awards shall be deemed fully vested as of
the time of the Change in Control, except to the extent of any waiver by the participant, and
subject to applicable restrictions; and



               (iii) with respect to any outstanding Performance Award, the Committee may, within its
discretion, deem the performance goals and other conditions relating to the Performance Award as
having been met as of the date of the Change in Control. Such performance award shall be paid no
later than two and one-half months after the last day of the tax year in which such Change of
Control occurred (or in the event that such Change in Control causes the tax year to end, no later
than two and one-half months after the closing of such Change in Control).



     Notwithstanding the foregoing, or any other provision of this Plan to the contrary, in
connection with any transaction of the type specified by clause (iii) of the definition of a Change
in Control in Section 2(c), the Committee may, in its discretion, (i) cancel any or all outstanding
options under the Plan in consideration for payment to the holders thereof of an amount equal to
the portion of the consideration that would have been payable to such holders pursuant to such
transaction if their options had been fully exercised immediately prior to such transaction, less
the aggregate exercise price that would have been payable therefor, or (ii) if the amount that
would have been payable to the option holders pursuant to such transaction if their options had
been fully exercised immediately prior thereto would be equal to or less than the aggregate
exercise price that would have been payable therefor, cancel any or all such options for no
consideration or payment of any kind. Payment of any amount payable pursuant to the preceding
sentence may be made in cash or, in the event that the consideration to be received in such
transaction includes securities or other property, in cash and/or securities or other property in
the Committee’s discretion.



14. Withholding Taxes.




          (a) Participant Election. Unless otherwise determined by the Committee, a participant may elect to deliver shares of Common Stock (or have the
Company withhold shares acquired upon exercise of an option or SAR or deliverable upon grant or
vesting of restricted stock, as the case may be) to satisfy, in whole or in part, the amount the
Company is required to withhold for taxes in connection with the exercise of an option or SAR or
the delivery of restricted stock upon grant or vesting, as the case may be. Such election must be
made on or before the date the amount of tax to be withheld is determined. Once made, the election
shall be irrevocable. The fair market value of the shares to be withheld or delivered will be the
Fair Market Value as of the date the amount of tax to be withheld is determined. In the event a
participant elects to deliver or have the Company withhold shares of Common Stock pursuant to this
Section 14(a), such delivery or withholding must be made subject to the conditions and



15









 





pursuant to the procedures set forth in Section 6(b) with respect to the delivery or withholding of Common
Stock in payment of the exercise price of options.




          (b) Company Requirement. The Company may require, as a condition to any grant or exercise under the Plan or to the
delivery of certificates for Shares issued hereunder, that the grantee make provision for the
payment to the Company, either pursuant to Section 14(a) or this Section 14(b), of federal, state
or local taxes of any kind required by law to be withheld with respect to any grant or delivery of
Shares. The Company, to the extent permitted or required by law, shall have the right to deduct
from any payment of any kind (including salary or bonus) otherwise due to a grantee, an amount
equal to any federal, state or local taxes of any kind required by law to be withheld with respect
to any grant or delivery of Shares under the Plan.



15. Written Agreement; Vesting.




          Each employee to whom a grant is made under the Plan shall enter into a written agreement with
the Company that shall contain such provisions, including without limitation vesting requirements,
consistent with the provisions of the Plan, as may be approved by the Committee. Unless the
Committee determines otherwise and except as otherwise provided in Sections 6, 7, and 8 in
connection with a Change in Control or certain occurrences of termination, no grant under this Plan
may be exercised, and no restrictions relating thereto may lapse, within six months of the date
such grant is made.



16. Transferability.




     Unless the Committee determines otherwise, no award granted under the Plan shall be
transferable by a participant other than by will or the laws of descent and distribution or to a
participant’s Family Member by gift or a qualified domestic relations order as defined by the Code.
Unless the Committee determines otherwise, an option, SAR or performance award may be exercised
only by the optionee or grantee thereof; by his or her Family Member if such person has acquired
the option, SAR or performance award by gift or qualified domestic relations order; by the executor
or administrator of the estate of any of the foregoing or any person to whom the Option is
transferred by will or the laws of descent and distribution; or by the guardian or legal
representative of any of the foregoing; provided that Incentive Stock Options may be exercised by
any Family Member, guardian or legal representative only if permitted by the Code and any
regulations thereunder. All provisions of this Plan shall in any event continue to apply to any
option, SAR, performance award or restricted stock granted under the Plan and transferred as
permitted by this Section 16, and any transferee of any such option, SAR, performance award or
restricted stock shall be bound by all provisions of this Plan as and to the same extent as the
applicable original grantee.



17. Listing, Registration and Qualification.




     If the Committee determines that the listing, registration or qualification upon any
securities exchange or under any law of Shares subject to any option, SAR, performance award,
restricted stock unit, or restricted stock grant is necessary or desirable as a condition of,
or in connection with, the granting of same or the issue or purchase of Shares thereunder, no such



16









 





option or SAR may be exercised in whole or in part, no such performance award may be paid out, and
no Shares may be issued, unless such listing, registration or qualification is effected free of any
conditions not acceptable to the Committee.




18. Transfers Between Company and Subsidiaries.




     The transfer of an employee, consultant or independent contractor from the Company to a
Subsidiary, from a Subsidiary to the Company, or from one Subsidiary to another shall not be
considered a termination of employment or services; nor shall it be considered a termination of
employment if an employee is placed on military or sick leave or such other leave of absence which
is considered by the Committee as continuing intact the employment relationship.



19. Adjustments.




     In the event of a reorganization, recapitalization, stock split, stock dividend, combination
of shares, merger, consolidation, distribution of assets, or any other change in the corporate
structure or shares of the Company, the Committee shall make such adjustment as it deems
appropriate in the number and kind of Shares or other property available for issuance under the
Plan (including, without limitation, the total number of Shares available for issuance under the
Plan pursuant to Section 4), in the number and kind of options, SARs, Shares or other property
covered by grants previously made under the Plan, and in the exercise price of outstanding options
and SARs; provided, however, that the Committee shall not be required to make any adjustment that
would (i) require the inclusion of any compensation deferred pursuant to provisions of the Plan (or
an award thereunder) in a participant’s gross income pursuant to Section 409A of the Code and the
regulations issued thereunder from time to time and/or (ii) cause any award made pursuant to the
Plan to be treated as providing for the deferral of compensation pursuant to such Code section and
regulations. Any such adjustment shall be final, conclusive and binding for all purposes of the
Plan. In the event of any merger, consolidation or other reorganization in which the Company is
not the surviving or continuing corporation or in which a Change in Control is to occur, all of the
Company’s obligations regarding awards that were granted hereunder and that are outstanding on the
date of such event shall, on such terms as may be approved by the Committee prior to such event, be
(a) canceled in exchange for cash or other property (but, with respect to deferred stock units,
only if such merger, consolidation, other reorganization, or Change in Control constitutes a
“change in ownership or control” of the Company or a “change in the ownership of a substantial
portion of the assets” of the Company, as determined pursuant to regulations issued under Section
409A(a)(2)(A)(v) of the Code) or (b) assumed by the surviving or continuing corporation.



20. Amendment and Termination of the Plan.




     The Board of Directors or the Committee, without approval of the stockholders, may amend or
terminate the Plan, except that no amendment shall become effective without prior approval of the
stockholders of the Company if stockholder approval would be required by applicable law or
regulations, including if required for continued compliance with the performance-based compensation
exception of Section 162(m) of the Code or any successor



17









 





thereto, under the provisions of Section 422 of the Code or any successor thereto, or by any listing requirement of the principal stock exchange on which the Common Stock is then listed.




     Notwithstanding any other provisions of the Plan, and in addition to the powers of amendment
set forth in this Section 20 and Section 21 hereof or otherwise, the provisions hereof and the
provisions of any award made hereunder may be amended unilaterally by the Committee from time to
time to the extent necessary (and only to the extent necessary) to prevent the implementation,
application or existence (as the case may be) of any such provision from (i) requiring the
inclusion of any compensation deferred pursuant to the provisions of the Plan (or an award
thereunder) in a participant’s gross income pursuant to Section 409A of the Code, and the
regulations issued thereunder from time to time and/or (ii) inadvertently causing any award
hereunder to be treated as providing for the deferral of compensation pursuant to such Code section
and regulations.



21. Amendment or Substitution of Awards under the Plan.




     The terms of any outstanding award under the Plan may be amended from time to time by the
Committee in its discretion in any manner that it deems appropriate, including, but not limited to,
any acceleration of the date of exercise of any award and/or payments (but, with respect to
deferred stock units, only to the extent permitted by regulations issued under Section 409A(a)(3)
of the Code) thereunder or of the date of lapse of restrictions on Shares; provided that, except as
otherwise provided in Section 16, no such amendment shall adversely affect in a material manner any
right of a participant under the award without his or her written consent. The Committee may, in
its discretion, permit holders of awards under the Plan to surrender outstanding awards in order to
exercise or realize rights under other awards, or in exchange for the grant of new awards, or
require holders of awards to surrender outstanding awards as a condition precedent to the grant of
new awards under the Plan, but only if such surrender, exercise, realization, exchange, or grant
(a) would not constitute a distribution of deferred compensation for purposes of Section 409A(a)(3)
of the Code or (b) constitutes a distribution of deferred compensation that is permitted under
regulations issued pursuant to Section 409A(a)(3) of the Code.



22. Commencement Date; Termination Date.




     The date of commencement of the Plan shall be the date of the closing of the Company’s initial
public offering of its Common Stock. If required by the Code, the Plan will also be subject to
reapproval by the shareholders of the Company prior to the fifth anniversary of such commencement
date.



     Unless previously terminated upon the adoption of a resolution of the Board terminating the
Plan, the Plan shall terminate at the close of business on the tenth anniversary of the date of
commencement. No termination of the Plan shall materially and adversely affect any of the rights
or obligations of any person, without his or her written consent, under any grant of options or
other incentives theretofore granted under the Plan.



18









 





23. Severability.




     Whenever possible, each provision of the Plan shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of the Plan is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of the Plan.



24. Governing Law.




     The Plan shall be governed by the corporate laws of the State of Delaware, without giving
effect to any choice of law provisions that might otherwise refer construction or interpretation of
the Plan to the substantive law of another jurisdiction.




19