exv10w2






Exhibit 10.2




Amended and Restated




2005 Omnibus Incentive Plan




MGM MIRAGE




Effective October 6, 2008




 









 





Contents




	 	 	 	 	 
	Article 1. Establishment, Purpose, and Duration
	 	 	1	 
	 
	 	 	 	 
	Article 2. Definitions
	 	 	1	 
	 
	 	 	 	 
	Article 3. Administration
	 	 	6	 
	 
	 	 	 	 
	Article 4. Shares Subject to this Plan and Maximum Awards
	 	 	6	 
	 
	 	 	 	 
	Article 5. Eligibility and Participation
	 	 	8	 
	 
	 	 	 	 
	Article 6. Stock Options
	 	 	8	 
	 
	 	 	 	 
	Article 7. Stock Appreciation Rights
	 	 	10	 
	 
	 	 	 	 
	Article 8. Restricted Stock and Restricted Stock Units
	 	 	11	 
	 
	 	 	 	 
	Article 9. Performance Units/Performance Shares
	 	 	13	 
	 
	 	 	 	 
	Article 10. Cash-Based Awards and Other Stock-Based Awards
	 	 	14	 
	 
	 	 	 	 
	Article 11. Transferability of Awards
	 	 	14	 
	 
	 	 	 	 
	Article 12. Performance Measures
	 	 	15	 
	 
	 	 	 	 
	Article 13. Dividend Equivalents
	 	 	16	 
	 
	 	 	 	 
	Article 14. Beneficiary Designation
	 	 	16	 
	 
	 	 	 	 
	Article 15. Rights of Participants
	 	 	17	 
	 
	 	 	 	 
	Article 16. Amendment, Modification, Suspension, and Termination
	 	 	17	 
	 
	 	 	 	 
	Article 17. Withholding
	 	 	18	 
	 
	 	 	 	 
	Article 18. Successors
	 	 	18	 
	 
	 	 	 	 
	Article 19. General Provisions
	 	 	18	 







 









 








Amended and Restated

MGM MIRAGE

2005 Omnibus Incentive Plan




Article 1. Establishment, Purpose, and Duration




     1.1 Establishment. MGM MIRAGE, a Delaware corporation (hereinafter referred to as the
“Company”), establishes an incentive compensation plan to be known as the MGM MIRAGE 2005 Omnibus
Incentive Plan (hereinafter referred to as the “Plan”), as set forth in this document.



     This Plan permits the grant of Nonqualified Stock Options, Incentive Stock Options, Stock
Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Shares, Performance
Units and Other Stock-Based Awards.



     This Plan shall become effective upon shareholder approval (the “Effective Date”) and shall
remain in effect as provided in Section 1.3 hereof.



     1.2 Purpose of this Plan. The purpose of this Plan is to provide a means whereby Employees,
Directors and Independent Marketing Agents of the Company develop a sense of proprietorship and
personal involvement in the development and financial success of the Company, and to encourage them
to devote their best efforts to the business of the Company, thereby advancing the interests of the
Company and its shareholders. A further purpose of this Plan is to provide a means through which
the Company may attract able individuals to become Employees or serve as Directors of the Company
and to provide a means for such individuals to acquire and maintain stock ownership in the Company,
thereby strengthening their concern for the welfare of the Company.



     1.3 Duration of this Plan. Unless sooner terminated as provided herein, this Plan shall
terminate ten (10) years from the Effective Date. After this Plan is terminated, no Awards may be
granted but Awards previously granted shall remain outstanding in accordance with their applicable
terms and conditions and this Plan’s terms and conditions. Notwithstanding the foregoing, no
Incentive Stock Options may be granted more than ten (10) years after the earlier of (a) adoption
of this Plan by the Board, or (b) the Effective Date.



Article 2. Definitions




     Whenever used in this Plan, the following terms shall have the meanings set forth below, and
when the meaning is intended, the initial letter of the word shall be capitalized.



     2.1 “Annual Award Limit” or “Annual Award Limits” have the meaning set forth in Section
4.3.



     2.2 “Associate” shall mean any corporation or other entity (including, but not limited
to, a partnership or a limited liability company), that the Company has or obtains,
directly or indirectly, a proprietary interest of less than fifty percent (50%), by reason
of stock ownership or otherwise, and is designated as an Associate for purposes of this
Plan by the Committee.








 









 











     2.3 “Award” means, individually or collectively, a grant under this Plan of Nonqualified
Stock Options, Incentive Stock Options, SARs, Restricted Stock, Restricted Stock Units,
Performance Shares, Performance Units, or Other Stock-Based Awards, in each case subject
to the terms of this Plan.



     2.4 “Award Agreement” means either (i) a written agreement entered into by the Company
and a Participant setting forth the terms and provisions applicable to an Award granted
under this Plan, or (ii) a written or electronic statement issued by the Company to a
Participant describing the terms and provisions of such Award, including any amendment or
modification thereof. The Committee may provide for the use of electronic, internet or
other non-paper Award Agreements, and the use of electronic, internet or other non-paper
means for the acceptance thereof and actions thereunder by a Participant.



     2.5 “Beneficial Owner” or “Beneficial Ownership” shall have the meaning ascribed to such
term in Rule 13d-3 of the General Rules and Regulations under the Exchange Act.



     2.6 “Board” or “Board of Directors” means the Board of Directors of the Company.



     2.7 “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time.
For purposes of this Plan, references to sections of the Code shall be deemed to include
references to any applicable regulations thereunder and any successor or similar
provision.



     2.8 “Committee” means the Compensation and Stock Option Committee of the Board or a
subcommittee thereof, or any other committee designated by the Board to administer this
Plan. The members of the Committee shall be appointed from time to time by and shall
serve at the discretion of the Board. If the Committee does not exist or cannot function
for any reason, the Board may take any action under the Plan that would otherwise be the
responsibility of the Committee.



     2.9 “Company” means MGM MIRAGE, a Delaware corporation, and any successor thereto as
provided in Article 18 herein.



     2.10 “Covered Employee” means any salaried Employee who is or may become a “Covered
Employee,” as defined in Code Section 162(m), and who is designated, either as an
individual Employee or class of Employees, by the Committee within the shorter of (i)
ninety (90) days after the beginning of the Performance Period, or (ii) twenty-five (25)
percent (25%) of the Performance Period has elapsed, as a “Covered Employee” under this
Plan for such applicable Performance Period.



     2.11 “Director” means any individual who is a member of the Board of Directors of the
Company.



     2.12 “Effective Date” has the meaning set forth in Section 1.1.



     2.13 “Employee” means any person designated as an employee of the Company, its Associates,
and/or its Subsidiaries on the payroll records thereof. An Employee shall not



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include any individual during any period he or she is classified or treated by the
Company, Associate, and/or Subsidiary as an independent contractor, a consultant, or any
employee of an employment, consulting, or temporary agency or any other entity other
than the Company, Associate, and/or Subsidiary, without regard to whether such
individual is subsequently determined to have been, or is subsequently retroactively
reclassified as a common-law employee of the Company, Associate, and/or Subsidiary
during such period.



     2.14 “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to
time, or any successor act thereto.



     2.15 “Fair Market Value” or “FMV” means a price that is based on the opening, closing,
actual, high, low, or average selling prices of a Share reported on the New York Stock
Exchange (“NYSE”) or other established stock exchange (or exchanges) on the applicable
date, the preceding trading day, the next succeeding trading day, or an average of trading
days, as determined by the Committee in its discretion. Unless the Committee determines
otherwise. Fair Market Value shall be deemed to be equal to the reported closing price of
a Share on the most recent date on which Shares were publicly traded. In the event Shares
are not publicly determined at the time a determination of their value is required to be
made hereunder, the determination of their Fair Market Value shall be made by the
Committee in such manner as it deems appropriate. Such definition(s) of FMV shall be
specified in each Award Agreement and may differ depending on whether FMV is in reference
to the grant, exercise, vesting, settlement, or payout of an Award.



     2.16 “Family Members” of a Participant means any child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law of such
Participant, including adoptive relationships, any person sharing such Participant’s
household (other than a tenant or employee), a trust in which such individuals have more
than fifty percent of the beneficial interest, a foundation in which these individuals (or
the Participant) control the management of assets, and any other entity in which these
individuals (or the Participant) own more than fifty percent of the voting interest.



     2.17 “Freestanding SAR” means an SAR that is granted independently of any Options, as
described in Article 7.



     2.18 “Full Value Award” means an Award other than in the form of an ISO, NQSO or SAR, and
which is settled by the issuance of Shares.



     2.19 “Grant Price” means the price established at the time of grant of a SAR pursuant to
Article 7, used to determine whether there is any payment due upon exercise of the SAR.



     2.20 “Incentive Stock Option” or “ISO” means an Option to purchase Shares granted under
Article 6 to an Employee and that is designated as an Incentive Stock Option and that is
intended to meet the requirements of Code Section 422, or any successor provision.








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     2.21 “Independent Marketing Agent” means a representative hired as an independent agent of
the Company, and is treated as an independent contractor, to carry out duties related to
casino marketing activities.



     2.22 “Insider” means an individual who is, on the relevant date, an officer, or Director
of the Company, or a more than ten percent (10%) Beneficial Owner of any class of the
Company’s equity securities that is registered pursuant to Section 12 of the Exchange Act,
as determined by the Board in accordance with Section 16 of the Exchange Act.



     2.23 “Nonemployee Director” means a Director who is not an Employee.



     2.24 “Nonqualified Stock Option” or “NQSO” means an Option that is not intended to meet
the requirements of Code Section 422, or that otherwise does not meet such requirements.



     2.25 “Option” means an Incentive Stock Option or a Nonqualified Stock Option, as described
in Article 6.



     2.26 “Option Price” means the price at which a Share may be purchased by a Participant
pursuant to an Option.



     2.27 “Other Stock-Based Award” means an equity-based or equity-related Award not otherwise
described by the terms of this Plan, granted pursuant to Article 10.



     2.28 “Participant” means any eligible individual as set forth in Article 5 to whom an
Award is granted.



     2.29 “Performance-Based Compensation” means compensation under an Award that is intended
to satisfy the requirements of Code Section 162(m) for certain performance-based
compensation paid to Covered Employees. Notwithstanding the foregoing, nothing in this
Plan shall be construed to mean that an Award which does not satisfy the requirements for
performance-based compensation under Code Section 162(m) does not constitute
performance-based compensation for other purposes, including Code Section 409A.



     2.30 “Performance Measures” means measures as described in Article 12 on which the
performance goals are based and which are approved by the Company’s shareholders pursuant
to this Plan in order to qualify Awards as Performance-Based Compensation.



     2.31 “Performance Period” means the period of time during which the performance goals must
be met in order to determine the degree of payout and/or vesting with respect to an Award.



     2.32 “Performance Share” means an Award under Article 9 herein and subject to the terms of
this Plan, denominated in Shares, the value of which at the time it is payable is
determined as a function of the extent to which corresponding performance criteria have
been achieved.








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     2.33 “Performance Unit” means an Award under Article 9 herein and subject to the terms of
this Plan, denominated in units, the value of which at the time it is payable is
determined as a function of the extent to which corresponding performance criteria have
been achieved.



     2.34 “Period of Restriction” means the period when Restricted Stock or Restricted Stock
Units are subject to a substantial risk of forfeiture (based on the passage of time, the
achievement of performance goals, or upon the occurrence of other events as determined by
the Committee, in its discretion), as provided in Article 8.



     2.35 “Permitted Transfer” means any transfer of an Award, other than an ISO, by a
Participant to a Participant’s Family Member made by gift or domestic relations order if
such transfer is not for value; provided, however, that neither (i) a transfer under a
domestic relations order in settlement of marital property rights nor (ii) a transfer to
an entity in which more than fifty percent of the voting interests are owned by Family
Members or the Participant in exchange for an interest in that entity shall be deemed a
transfer for value for the purposes of determining whether a transfer is a Permitted
Transfer.



     2.36 “Plan” means the MGM MIRAGE 2005 Omnibus Incentive Plan.



     2.37 “Plan Year” means the Company’s fiscal year.



     2.38 “Prior Plans” means the MGM MIRAGE 1997 Nonqualified Stock Option Plan, amended and
restated May 13, 2003, and the MGM MIRAGE 1997 Incentive Stock Option Plan.



     2.39 “Restricted Stock” means an Award granted to a Participant pursuant to Article 8.



     2.40 “Restricted Stock Unit” means an Award granted to a Participant pursuant to Article
8, except no Shares are actually awarded to the Participant on the date of grant.



     2.41 “Share” means a share of common stock of the Company, $.01 par value per share.



     2.42 “Stock Appreciation Right” or “SAR” means an Award, designated as an SAR, pursuant to
the terms of Article 7 herein.



     2.43 “Subsidiary” means any corporation or other entity, whether domestic or foreign, in
which the Company has or obtains, directly or indirectly, a proprietary interest of more
than fifty percent (50%) by reason of stock ownership or otherwise.



     2.44 “Tandem SAR” means an SAR that is granted in connection with a related Option
pursuant to Article 7 herein, the exercise of which shall require forfeiture of the right
to purchase a Share under the related Option (and when a Share is purchased under the
Option, the Tandem SAR shall similarly be canceled).








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Article 3. Administration




     3.1 General. The Committee shall be responsible for administering this Plan, subject to this
Article 3 and the other provisions of this Plan. The Committee may employ attorneys, consultants,
accountants, agents, and other individuals, any of whom may be an Employee, and the Committee, the
Company, and its officers and Directors shall be entitled to rely upon the advice, opinions, or
valuations of any such individuals. All actions taken and all interpretations and determinations
made by the Committee shall be final and binding upon the Participants, the Company, and all other
interested individuals.



     3.2 Authority of the Committee. The Committee shall have full and exclusive discretionary
power to interpret the terms and the intent of this Plan and any Award Agreement or other agreement
or document ancillary to or in connection with this Plan, to determine eligibility for Awards and
to adopt such rules, regulations, forms, instruments, and guidelines for administering this Plan as
the Committee may deem necessary or proper. Such authority shall include, but not be limited to,
selecting Award recipients, establishing all Award terms and conditions, including the terms and
conditions set forth in Award Agreements, granting Awards as an alternative to or as the form of
payment for grants or rights earned or due under compensation plans or arrangements of the Company,
construing any ambiguous provision of the Plan or any Award Agreement, and, subject to Article 16,
adopting modifications and amendments to this Plan or any Award Agreement, including without
limitation, any that are necessary to comply with the laws of the countries and other jurisdictions
in which the Company, its Associates, and/or its Subsidiaries operate.



     3.3 Delegation. The Committee may delegate to one or more of its members or to one or more
officers of the Company, and/or its Subsidiaries and Associates or to one or more agents or
advisors such administrative duties or powers as it may deem advisable, and the Committee or any
individuals to whom it has delegated duties or powers as aforesaid may employ one or more
individuals to render advice with respect to any responsibility the Committee or such individuals
may have under this Plan. The Committee may, by resolution, authorize one or more officers of the
Company to do one or both of the following on the same basis as can the Committee: (a) designate
Employees to be recipients of Awards; and (b) determine the size of any such Awards; provided,
however, (i) the Committee shall not delegate such responsibilities to any such officer for Awards
granted to an Employee who is considered an Insider; (ii) the resolution providing such
authorization sets forth the total number of Awards such officer(s) may grant; and (iii) the
officer(s) shall report periodically to the Committee regarding the nature and scope of the Awards
granted pursuant to the authority delegated.



Article 4. Shares Subject to this Plan and Maximum Awards




     4.1 Number of Shares Available for Awards. Subject to adjustment as provided in Section
4.4 herein, the maximum number of Shares available for issuance to Participants under this Plan
(the
“Share Authorization”) shall be Thirty-five million (35,000,000) Shares.



     4.2 Share Usage. Shares covered by an Award shall only be counted as used to the extent
they are actually issued. Any Shares related to Awards which terminate by expiration, forfeiture,
cancellation, or otherwise without the issuance of such Shares, are settled in cash in lieu of
Shares, or



6









 







are exchanged with the Committee’s permission, prior to the issuance of Shares, for Awards not
involving Shares, shall be available again for grant under this Plan. Moreover, if the Option
Price of
any Option granted under this Plan or the tax withholding requirements with respect to any Award
granted under this Plan are satisfied by tendering Shares to the Company (by either actual delivery
or
by attestation), or if an SAR is exercised, only the number of Shares issued, net of the Shares
tendered, if any, will be deemed delivered for purposes of determining the maximum number of
Shares available for delivery under this Plan. The Shares available for issuance under this Plan
may
be authorized and unissued Shares or treasury Shares.



     4.3 Annual Award Limits. Unless and until the Committee determines that an Award to a Covered
Employee shall not be designed to qualify as Performance-Based Compensation, the following limits
(each an “Annual Award Limit” and, collectively, “Annual Award Limits”) shall apply to grants of
such Awards under this Plan:




	 	(a)	 	Options: The maximum aggregate number of Shares subject to Options
granted in any one Plan Year to any one Participant shall be one million
(1,000,000).
	 
	 	(b)	 	SARs: The maximum number of Shares subject to Stock Appreciation
Rights granted in any one Plan Year to any one Participant shall be one million
(1,000,000).
	 
	 	(c)	 	Restricted Stock or Restricted Stock Units: The maximum aggregate
grant with respect to Awards of Restricted Stock or Restricted Stock Units in any
one Plan Year to any one Participant shall be three hundred fifty thousand
(350,000).
	 
	 	(d)	 	Performance Units or Performance Shares: The maximum aggregate Award
of Performance Units or Performance Shares that a Participant may receive in any
one Plan Year shall be three hundred fifty thousand (350,000) Shares, or equal to
the value of three hundred fifty thousand (350,000) Shares determined as of the
date of vesting or payout, as applicable.
	 
	 	(e)	 	Other Stock-Based Awards: The maximum aggregate grant with respect to
Other Stock-Based Awards pursuant to Article 10 in any one Plan Year to any one
Participant shall be three hundred fifty thousand (350,000).





     4.4 Adjustments in Authorized Shares. If the outstanding securities of the class then subject
to this Plan are increased, decreased or exchanged for or converted into cash, property or a
different number or kind of securities, or if cash, property or securities are distributed in
respect of those outstanding securities, in any case as a result of a reorganization, merger
consolidation, recapitalization, restructuring , reclassification, extraordinary dividend or other
distribution, stock split, reverse stock split or the like, or if substantially all of the property
and assets of the Company are sold, then, the Committee will make appropriate and proportionate
adjustments in (a) the number and type of shares or other securities or cash or other property that
may be acquired pursuant to Options or are the basis for determining the value of other Awards
previously granted under this Plan, (b) the maximum number and type of shares or other securities
or cash or other property that may be issued pursuant to Awards thereafter granted under this Plan,
and (c) the maximum number of Shares for which Awards may be granted during any one calendar year;
provided, however, that



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no adjustment may be made to the number of Shares that may be acquired pursuant to outstanding
Incentive Stock Options or the maximum number of Shares with respect to which Incentive Stock
Options may be granted under this Plan to the extent the adjustment would result in those options
being treated as other than Incentive Stock Options.



     Subject to Section 16.3, the Committee, in its sole discretion, may also make appropriate
adjustments in the terms of any Awards under this Plan to reflect or related to such changes or
distributions and to modify any other terms of outstanding Awards, including modifications of
performance goals and changes in the length of Performance Periods. Subject to Section 16.3, the
determination of the Committee as to the foregoing adjustments, if any, shall be conclusive and
binding on Participants under this Plan.



     Subject to the provisions of Article 16 and notwithstanding anything else herein to the
contrary, without affecting the number of Shares reserved or available hereunder, the Committee may
authorize the issuance or assumption of benefits under this Plan in connection with any merger,
consolidation, acquisition of property or stock, or reorganization upon such terms and conditions
as it may deem appropriate (including, but not limited to, a conversion of equity awards into
Awards under this Plan in a manner consistent with paragraph 53 of FASB Interpretation No. 44),
subject to compliance with the rules under Code Sections 422 and 424, as and where applicable.



Article 5. Eligibility and Participation




     5.1 Eligibility. Individuals eligible to participate in this Plan include all Employees,
Directors and Independent Marketing Agents.



     5.2 Actual Participation. Subject to the provisions of this Plan, the Committee may, from
time to time, select from all eligible individuals, those individuals to whom Awards shall be
granted and shall determine, in its sole discretion, the nature of, any and all terms permissible
by law, and the amount of each Award.



Article 6. Stock Options




     6.1 Grant of Options. Subject to the terms and provisions of this Plan, Options may be
granted to Participants in such number, and upon such terms, and at any time and from time to time
as shall be determined by the Committee, in its sole discretion; provided that ISOs may be granted
only to eligible Employees of the Company or of any parent or subsidiary corporation (as permitted
under Code Sections 422 and 424).



     6.2 Award Agreement. Each Option grant shall be evidenced by an Award Agreement that shall
specify the Option Price, the maximum duration of the Option, the number of Shares to which the
Option pertains, the conditions upon which an Option shall become vested and exercisable, and such
other provisions as the Committee shall determine which are not inconsistent with the terms of this
Plan. The Award Agreement also shall specify whether the Option is intended to be an ISO or an
NQSO.




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     6.3 Option Price. The Option Price for each grant of an Option under this Plan shall be
determined by the Committee in its sole discretion and shall be specified in the Award Agreement;
provided, however, the Option Price on the date of grant must be at least equal to one hundred
percent (100%) of the FMV of the Shares as determined on the date of grant. Notwithstanding the
foregoing, the price at which shares of stock may be purchased under an ISO granted to a
Participant who is a ten-percent owner shall not be less than one hundred ten percent (110%) of the
FMV of the Shares as determined on the date of grant. For this purpose, a “ten-percent owner”
shall mean a person who, at the time the ISO is granted, owns stock with more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company.



     6.4 Term of Options. Each Option granted to a Participant shall expire at such time as the
Committee shall determine at the time of grant; provided, however, no Option shall be exercisable
later than the tenth (10th) anniversary date of its grant. Notwithstanding the
foregoing, the period during which an ISO may be exercised by a ten percent owner shall expire not
later than five years from the date the ISO is granted.



     6.5 Exercise of Options. Options granted under this Article 6 shall be exercisable at such
times and be subject to such restrictions and conditions as the Committee shall in each instance
approve, which terms and restrictions need not be the same for each grant or for each Participant.



     6.6 Payment. Options granted under this Article 6 shall be exercised by the delivery of a
notice of exercise to the Company or an agent designated by the Company in a form specified or
accepted by the Committee, or by complying with any alternative procedures which may be authorized
by the Committee, setting forth the number of Shares with respect to which the Option is to be
exercised, accompanied by full payment for the Shares.



     A condition of the issuance of the Shares as to which an Option shall be exercised shall be
the payment of the Option Price. The Option Price of any Option shall be payable to the Company in
full either: (a) in cash or its equivalent; (b) by tendering (either by actual delivery or
attestation) previously acquired Shares having an aggregate Fair Market Value at the time of
exercise equal to the Option Price (provided that except as otherwise determined by the Committee,
the Shares that are tendered must have been held by the Participant for at least six (6) months (or
such other period, if any, as the Committee may permit) prior to their tender to satisfy the Option
Price if acquired under this Plan or any other compensation plan maintained by the Company or have
been purchased on the open market); (c) by a cashless exercise (broker-assisted exercise) through a
“same day sale” commitment; (d) by a combination of (a), (b), and (c); or (e) any other method
approved or accepted by the Committee in its sole discretion.



     Subject to any governing rules or regulations, as soon as practicable after receipt of written
notification of exercise and full payment (including satisfaction of any applicable tax
withholding), the Company shall deliver to the Participant evidence of book entry Shares, or upon
the Participant’s request, Share certificates in an appropriate amount based upon the number of
Shares purchased under the Option(s).



     Unless otherwise determined by the Committee, all payments under all of the methods indicated
above shall be paid in United States dollars.



9









 








     6.7 Restrictions on Share Transferability. The Committee may impose such restrictions on any
Shares acquired pursuant to the exercise of an Option granted under this Article 6 as it may deem
advisable, including, without limitation, minimum holding period requirements, restrictions under
applicable federal securities laws, under the requirements of any stock exchange or market upon
which such Shares are then listed and/or traded, or under any blue sky or state securities laws
applicable to such Shares.



     6.8 Termination of Employment. Each Participant’s Award Agreement shall set forth the extent
to which the Participant shall have the right to exercise the Option following termination of the
Participant’s employment or provision of services to the Company, its Associates, and/or its
Subsidiaries, as the case may be. Such provisions shall be determined in the sole discretion of
the Committee, shall be included in the Award Agreement entered into with each Participant, need
not be uniform among all Options issued pursuant to this Article 6, and may reflect distinctions
based on the reasons for termination.



     6.9 Notification of Disqualifying Disposition. If any Participant shall make any disposition
of Shares issued pursuant to the exercise of an ISO under the circumstances described in Code
Section 421(b) (relating to certain disqualifying dispositions), such Participant shall notify the
Company of such disposition within ten (10) days thereof.



Article 7. Stock Appreciation Rights




     7.1 Grant of SARs. Subject to the terms and conditions of this Plan, SARs may be granted to
Participants at any time and from time to time as shall be determined by the Committee. The
Committee may grant Freestanding SARs, Tandem SARs, or any combination of these forms of SARs.



     Subject to the terms and conditions of this Plan, the Committee shall have complete discretion
in determining the number of SARs granted to each Participant and, consistent with the provisions
of this Plan, in determining the terms and conditions pertaining to such SARs.



     The Grant Price for each grant of a Freestanding SAR shall be determined by the Committee and
shall be specified in the Award Agreement; provided, however, the Grant Price on the date of grant
must be at least equal to one hundred percent (100%) of the FMV of the Shares as determined on the
date of grant. The Grant Price of Tandem SARs shall be equal to the Option Price of the related
Option.



     7.2 SAR Agreement. Each SAR Award shall be evidenced by an Award Agreement that shall specify
the Grant Price, the term of the SAR, and such other provisions as the Committee shall determine.



     7.3 Term of SAR. The term of an SAR granted under this Plan shall be determined by the
Committee, in its sole discretion, and except as determined otherwise by the Committee and
specified in the SAR Award Agreement, no SAR shall be exercisable later than the tenth
(10th) anniversary date of its grant.



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     7.4 Exercise of Freestanding SARs. Freestanding SARs may be exercised upon whatever terms and
conditions the Committee, in its sole discretion, imposes.



     7.5. Exercise of Tandem SARs. Tandem SARs may be exercised for all or part of the Shares
subject to the related Option upon the surrender of the right to exercise the equivalent portion of
the related Option. A Tandem SAR may be exercised only with respect to the Shares for which its
related Option is then exercisable.



     Notwithstanding any other provision of this Plan to the contrary, with respect to a Tandem SAR
granted in connection with an ISO: (a) the Tandem SAR will expire no later than the expiration of
the underlying ISO; (b) the value of the payout with respect to the Tandem SAR may be for no more
than one hundred percent (100%) of the excess of the Fair Market Value of the Shares subject to the
underlying ISO at the time the Tandem SAR is exercised over the Option Price of the underlying ISO;
and (c) the Tandem SAR may be exercised only when the Fair Market Value of the Shares subject to
the ISO exceeds the Option Price of the ISO.



     7.6 Settlement of SAR Amount. Subject to Section 19.11 herein, upon the exercise of an SAR, a
Participant shall be entitled to receive payment from the Company of Shares in an amount determined
by multiplying:




	 	(a)	 	The excess of the Fair Market Value of a Share on the date of exercise
over the Grant Price, less applicable tax withholding; by
	 
	 	(b)	 	The number of Shares with respect to which the SAR is exercised.





     7.7 Termination of Employment. Each Award Agreement shall set forth the extent to which the
Participant shall have the right to exercise the SAR following termination of the Participant’s
employment with or provision of services to the Company, its Associates, and/or its Subsidiaries,
as the case may be. Such provisions shall be determined in the sole discretion of the Committee,
shall be included in the Award Agreement entered into with Participants, need not be uniform among
all SARs issued pursuant to this Plan, and may reflect distinctions based on the reasons for
termination.



     7.8 Other Restrictions. The Committee shall impose such other conditions and/or restrictions
on any Shares received upon exercise of an SAR granted pursuant to this Plan as it may deem
advisable or desirable. These restrictions may include, but shall not be limited to, a requirement
that the Participant hold the Shares received upon exercise of an SAR for a specified period of
time.



Article 8. Restricted Stock and Restricted Stock Units




     8.1 Grant of Restricted Stock or Restricted Stock Units. Subject to the terms and provisions
of this Plan, the Committee, at any time and from time to time, may grant Shares of Restricted
Stock and/or Restricted Stock Units to Participants in such amounts as the Committee shall
determine. Restricted Stock Units shall be similar to Restricted Stock except that no Shares are
actually awarded to the Participant on the date of grant.



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     8.2 Restricted Stock or Restricted Stock Unit Agreement. Each Restricted Stock and/or
Restricted Stock Unit grant shall be evidenced by an Award Agreement that shall specify the
Period(s) of Restriction, the number of Shares of Restricted Stock or the number of Restricted
Stock Units granted, and such other provisions as the Committee shall determine.



     8.3 Other Restrictions. The Committee shall impose such other conditions and/or restrictions
on any Shares of Restricted Stock or Restricted Stock Units granted pursuant to this Plan as it may
deem advisable including, without limitation, a requirement that Participants pay a stipulated
purchase price for each Share of Restricted Stock or each Restricted Stock Unit, restrictions based
upon the achievement of specific performance goals, time-based restrictions on vesting following
the attainment of the performance goals, time-based restrictions, restrictions under applicable
laws or under the requirements of any stock exchange or market upon which such Shares are listed or
traded, and/or holding requirements or sale restrictions placed on the Shares by the Company upon
vesting of such Restricted Stock or Restricted Stock Units.



     To the extent deemed appropriate by the Committee, the Company may retain the certificates
representing Shares of Restricted Stock in the Company’s possession until such time as all
conditions and/or restrictions applicable to such Shares have been satisfied or lapse.



     Except as otherwise provided in this Article 8, Shares of Restricted Stock covered by each
Restricted Stock Award shall become freely transferable by the Participant after all conditions and
restrictions applicable to such Shares have been satisfied or lapse (including satisfaction of any
applicable tax withholding obligations), and Restricted Stock Units shall be paid in cash, Shares,
or a combination of cash and Shares as the Committee, in its sole discretion shall determine.



     8.4 Certificate Legend. In addition to any legends placed on certificates pursuant to Section
8.3, each certificate representing Shares of Restricted Stock granted pursuant to this Plan may
bear a legend such as the following or as otherwise determined by the Committee in its sole
discretion:



     The sale or transfer of Shares of stock represented by this certificate, whether voluntary,
involuntary, or by operation of law, is subject to certain restrictions on transfer as set forth in
the MGM MIRAGE 2005 Omnibus Incentive Plan, and in the associated Award Agreement. A copy of this
Plan and such Award Agreement may be obtained from MGM MIRAGE.



     8.5 Voting Rights. Unless otherwise determined by the Committee and set forth in a
Participant’s Award Agreement, to the extent permitted or required by law, as determined by the
Committee, Participants holding Shares of Restricted Stock granted hereunder may be granted the
right to exercise full voting rights with respect to those Shares during the Period of Restriction.
A Participant shall have no voting rights at any time with respect to any Restricted Stock Units
granted hereunder.



     8.6 Termination of Employment. Each Award Agreement shall set forth the extent to which the
Participant shall have the right to retain Restricted Stock and/or Restricted Stock Units following
termination of the Participant’s employment with or provision of services to the Company, its
Associates, and/or its Subsidiaries, as the case may be. Such provisions shall be determined in
the sole discretion of the Committee, shall be included in the Award Agreement entered into with
each



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Participant, need not be uniform among all Shares of Restricted Stock or Restricted Stock
Units issued pursuant to this Plan, and may reflect distinctions based on the reasons for
termination.



     8.7 Section 83(b) Election. The Committee may provide in an Award Agreement that the Award of
Restricted Stock is conditioned upon the Participant making or refraining from making an election
with respect to the Award under Code Section 83(b). If a Participant makes an election pursuant to
Code Section 83(b) concerning a Restricted Stock Award, the Participant shall be required to file
promptly a copy of such election with the Company.



Article 9. Performance Units/Performance Shares




     9.1 Grant of Performance Units/Performance Shares. Subject to the terms and provisions of
this Plan, the Committee, at any time and from time to time, may grant Performance Units and/or
Performance Shares to Participants in such amounts and upon such terms as the Committee shall
determine.



     9.2 Value of Performance Units/Performance Shares. Each Performance Unit shall have an
initial value that is established by the Committee at the time of grant. Each Performance Share
shall have an initial value equal to the Fair Market Value of a Share on the date of grant. The
Committee shall set performance goals in its discretion which, depending on the extent to which
they are met, will determine the value and/or number of Performance Units/Performance Shares that
will be paid out to the Participant.



     9.3 Earning of Performance Units/Performance Shares. Subject to the terms of this Plan, after
the applicable Performance Period has ended, the holder of Performance Units/Performance Shares
shall be entitled to receive payout on the value and number of Performance Units/Performance Shares
earned by the Participant over the Performance Period, to be determined as a function of the extent
to which the corresponding performance goals have been achieved.



     9.4 Form and Timing of Payment of Performance Units/Performance Shares. Payment of earned
Performance Units/Performance Shares shall be as determined by the Committee and as evidenced in
the Award Agreement. Subject to the terms of this Plan, the Committee, in its sole discretion, may
pay earned Performance Units/Performance Shares in the form of cash or in Shares (or in a
combination thereof) equal to the value of the earned Performance Units/Performance Shares at the
close of the applicable Performance Period, or as soon as practicable after the end of the
Performance Period. Any Shares may be granted subject to any restrictions deemed appropriate by
the Committee. The determination of the Committee with respect to the form of payout of such
Awards shall be set forth in the Award Agreement pertaining to the grant of the Award.



     9.5 Termination of Employment. Each Award Agreement shall set forth the extent to which the
Participant shall have the right to retain Performance Units and/or Performance Shares following
termination of the Participant’s employment with or provision of services to the Company, its
Associates, and/or its Subsidiaries, as the case may be. Such provisions shall be determined in
the sole discretion of the Committee, shall be included in the Award Agreement entered into with
each Participant, need not be uniform among all Awards of Performance Units or Performance Shares
issued pursuant to this Plan, and may reflect distinctions based on the reasons for termination.



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Article 10. Other Stock-Based Awards




     10.1 Other Stock-Based Awards. The Committee may grant other types of equity-based or
equity-related Awards not otherwise described by the terms of this Plan (including the grant or
offer for sale of unrestricted Shares) in such amounts and subject to such terms and conditions, as
the Committee shall determine. Such Awards may involve the transfer of actual Shares to
Participants, and may include, without limitation, Awards designed to comply with or take advantage
of the applicable local laws of jurisdictions other than the United States.



     10.2 Value of Other Stock-Based Awards. Each Other Stock-Based Award shall be expressed in
terms of Shares or units based on Shares, as determined by the Committee. The Committee may
establish performance goals in its discretion. If the Committee exercises its discretion to
establish performance goals, the number and/or value of Other Stock-Based Awards that will be paid
out to the Participant will depend on the extent to which the performance goals are met.



     10.4 Payment of Other Stock-Based Awards. Payment, if any, with respect to an Other
Stock-Based Award shall be made in accordance with the terms of the Award, in cash or Shares as the
Committee determines.



     10.5 Termination of Employment. The Committee shall determine the extent to which the
Participant shall have the right to receive Other Stock-Based Awards following termination of the
Participant’s employment with or provision of services to the Company, its Associates, and/or its
Subsidiaries, as the case may be. Such provisions shall be determined in the sole discretion of
the Committee, and may be included in an agreement entered into with each Participant, but need not
be uniform among all Other Stock-Based Awards issued pursuant to the Plan, and may reflect
distinctions based on the reasons for termination.



Article 11. Transferability of Awards




     11.1 Transferability of Incentive Stock Options. No ISO granted under this Plan may be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by
the laws of descent and distribution. Further, all ISOs granted to a Participant under Article 6
shall be exercisable during his or her lifetime only by such Participant.



     11.2 All Other Awards. Except for any Permitted Transfers provided for in a Participant’s
Award Agreement, which Permitted Transfers may be subject to additional restrictions determined by
the Committee and as set forth in the Award Agreement, no other Award granted under this Plan may
be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will
or by the laws of descent and distribution. Further, except with respect to interests in Awards
which have been subject to a Permitted Transfer provided for in a Participant’s Award Agreement,
all Awards granted to a Participant under this Plan shall be exercisable during his or her lifetime
only by such Participant. With respect to those Awards (other than ISOs), if any, that are subject
to Permitted Transfers, references in this Plan to exercise or payment related to such Awards by or
to the Participant shall be deemed to include, as determined by the Committee, the Participant’s
Family Members to whom such Permitted Transfers were made.



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Article 12. Performance Measures




     12.1 Performance Measures. The performance goals upon which the payment or vesting of an
Award to a Covered Employee that is intended to qualify as Performance-Based Compensation shall be
limited to the following Performance Measures:




	 	(a)	 	Net earnings or net income (before or after taxes);
	 
	 	(b)	 	Earnings per share;
	 
	 	(c)	 	Net sales or revenue growth;
	 
	 	(d)	 	Net operating profit;
	 
	 	(e)	 	Return measures (including, but not limited to, return on assets, capital, invested
capital, equity, sales, or revenue);
	 
	 	(f)	 	Cash flow (including, but not limited to, operating cash flow, free cash flow, cash
flow return on equity, and cash flow return on investment);
	 
	 	(g)	 	Earnings before or after taxes, interest, depreciation, and/or amortization;
	 
	 	(h)	 	Gross or operating margins;
	 
	 	(i)	 	Productivity ratios;
	 
	 	(j)	 	Share price (including, but not limited to, growth measures and total shareholder
return);
	 
	 	(k)	 	Expense targets;
	 
	 	(l)	 	Margins;
	 
	 	(m)	 	Operating efficiency;
	 
	 	(n)	 	Market share;
	 
	 	(o)	 	Customer satisfaction;
	 
	 	(p)	 	Working capital targets; and
	 
	 	(q)	 	Economic value added or EVA® (net operating profit after tax minus the sum
of capital multiplied by the cost of capital).





     Any Performance Measure(s) may be used to measure the performance of the Company, Subsidiary,
and/or Associate as a whole or any business unit of the Company, Subsidiary, and/or Associate or
any combination thereof, as the Committee may deem appropriate, or any of the above Performance
Measures as compared to the performance of a group of comparator companies, or published or special
index that the Committee, in its sole discretion, deems appropriate, or the



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Company may select Performance Measure (j) above as compared to various stock market indices.
The Committee also has the authority to provide for accelerated vesting of any Award based on the
achievement of performance goals pursuant to the Performance Measures specified in this Article 12.



     12.2 Evaluation of Performance. The Committee may provide in any such Award that any
evaluation of performance may include or exclude any of the following events that occurs during a
Performance Period: (a) asset write-downs, (b) litigation or claim judgments or settlements, (c)
the effect of changes in tax laws, accounting principles, or other laws or provisions affecting
reported results, (d) any reorganization and restructuring programs, (e) extraordinary nonrecurring
items as described in Accounting Principles Board Opinion No. 30 and/or in management’s discussion
and analysis of financial condition and results of operations appearing in the Company’s annual
report to shareholders for the applicable year, (f) acquisitions or divestitures, and (g) foreign
exchange gains and losses. To the extent such inclusions or exclusions affect Awards to Covered
Employees, they shall be prescribed in a form that meets the requirements of Code Section 162(m)
for deductibility.



     12.3 Adjustment of Performance-Based Compensation. Awards that are intended to qualify as
Performance-Based Compensation may not be adjusted upward. The Committee shall retain the
discretion to adjust such Awards downward, either on a formula or discretionary basis or any
combination, as the Committee determines.



     12.4 Committee Discretion. In the event that applicable tax and/or securities laws change to
permit Committee discretion to alter the governing Performance Measures without obtaining
stockholder approval of such changes, the Committee shall have sole discretion to make such changes
without obtaining stockholder approval. In addition, in the event that the Committee determines
that it is advisable to grant Awards that shall not qualify as Performance-Based Compensation, the
Committee may make such grants without satisfying the requirements of Code Section 162(m) and base
vesting on Performance Measures other than those set forth in Section 12.1.



Article 13. Dividend Equivalents




     Any Participant selected by the Committee may be granted dividend equivalents based on the
dividends declared on Shares that are subject to any Award, to be credited as of dividend payment
dates, during the period between the date the Award is granted and the date the Award is exercised,
vests or expires, as determined by the Committee. Such dividend equivalents shall be converted to
cash or additional Shares by such formula and at such time and subject to such limitations as may
be determined by the Committee.



Article 14. Beneficiary Designation




     Each Participant under this Plan may, from time to time, name any beneficiary or beneficiaries
(who may be named contingently or successively) to whom any benefit under this Plan is to be paid
in case of his death before he receives any or all of such benefit. Each such designation shall
revoke all prior designations by the same Participant, shall be in a form prescribed by the
Committee, and will be effective only when filed by the Participant in writing with the Company
during the Participant’s lifetime. In the absence of any such beneficiary designation, benefits
remaining unpaid or rights remaining unexercised at the Participant’s death shall be paid or
exercised by the Participant’s executor, administrator, or legal representative.



16









 





Article 15. Rights of Participants




     15.1 Employment. Nothing in this Plan or an Award Agreement shall interfere with or limit in
any way the right of the Company, its Associates, and/or its Subsidiaries, to terminate any
Participant’s employment or service on the Board or to the Company at any time or for any reason
not prohibited by law, nor confer upon any Participant any right to continue his employment or
service as a Director or Independent Marketing Agent for any specified period of time.



     Neither an Award nor any benefits arising under this Plan shall constitute an employment
contract with the Company, its Associates, and/or its Subsidiaries and, accordingly, subject to
Articles 3 and 16, this Plan and the benefits hereunder may be terminated at any time in the sole
and exclusive discretion of the Committee without giving rise to any liability on the part of the
Company, its Associates, and/or its Subsidiaries.



     15.2 Participation. No individual shall have the right to be selected to receive an Award
under this Plan, or, having been so selected, to be selected to receive a future Award.



     15.3 Rights as a Stockholder. Except as otherwise provided herein, a Participant shall have
none of the rights of a stockholder with respect to Shares covered by any Award until the
Participant becomes the record holder of such Shares.



Article 16. Amendment, Modification, Suspension, and Termination




     16.1 Amendment, Modification, Suspension, and Termination. Subject to Section 16.3, the
Committee may, at any time and from time to time, alter, amend, modify, suspend, or terminate this
Plan and any Award Agreement in whole or in part; provided, however, that, without the prior
approval of the Company’s stockholders and except as provided in Section 4.4, Options or SARs
issued under this Plan will not be repriced, replaced, or regranted through cancellation, or by
lowering the Option Price of a previously granted Option or the Grant Price of a previously granted
SAR, and no material amendment of this Plan shall be made without stockholder approval if
stockholder approval is required by law, regulation, or stock exchange rule.



     16.2 Adjustment of Awards Upon the Occurrence of Certain Unusual or Nonrecurring Events. The
Committee may make adjustments in the terms and conditions of, and the criteria included in, Awards
in recognition of unusual or nonrecurring events (including, without limitation, the events
described in Section 4.4 hereof) affecting the Company or the financial statements of the Company
or of changes in applicable laws, regulations, or accounting principles, whenever the Committee
determines that such adjustments are appropriate in order to prevent unintended dilution or
enlargement of the benefits or potential benefits intended to be made available under this Plan.
The determination of the Committee as to the foregoing adjustments, if any, shall be conclusive and
binding on Participants under this Plan.



     16.3 Awards Previously Granted. Notwithstanding any other provision of this Plan to the
contrary (other than Section 16.4), no termination, amendment, suspension, or modification of this
Plan or an Award Agreement shall adversely affect in any material way any Award previously granted
under this Plan, without the written consent of the Participant holding such Award.



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     16.4 Amendment to Conform to Law. Notwithstanding any other provision of this Plan to the
contrary, the Board of Directors may amend the Plan or an Award Agreement, to take effect
retroactively or otherwise, as deemed necessary or advisable for the purpose of conforming the Plan
or an Award Agreement to any present or future law relating to plans of this or similar nature
(including, but not limited to, Code Section 409A), and to the administrative regulations and
rulings promulgated thereunder.



Article 17. Withholding




     17.1 Tax Withholding. The Company shall have the power and the right to deduct or withhold,
or require a Participant to remit to the Company, the minimum statutory amount to satisfy federal,
state, and local taxes, domestic or foreign, required by law or regulation to be withheld with
respect to any taxable event arising as a result of this Plan.



     17.2 Share Withholding. With respect to withholding required upon the exercise of Options or
SARs, upon the lapse of restrictions on Restricted Stock and Restricted Stock Units, or upon the
achievement of performance goals related to Performance Shares, or any other taxable event arising
as a result of an Award granted hereunder, Participants may elect, subject to the approval of the
Committee, to satisfy the withholding requirement, in whole or in part, by having the Company
withhold Shares having a Fair Market Value on the date the tax is to be determined equal to the
minimum statutory total tax that could be imposed on the transaction. All such elections shall be
irrevocable, made in writing, and signed by the Participant, and shall be subject to any
restrictions or limitations that the Committee, in its sole discretion, deems appropriate.



Article 18. Successors




     All obligations of the Company under this Plan with respect to Awards granted hereunder shall
be binding on any successor to the Company, whether the existence of such successor is the result
of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all
of the business and/or assets of the Company.



Article 19. General Provisions




     19.1 Legend. The certificates for Shares may include any legend which the Committee deems
appropriate to reflect any restrictions on transfer of such Shares.



     19.2 Gender and Number. Except where otherwise indicated by the context, any masculine term
used herein also shall include the feminine, the plural shall include the singular, and the
singular shall include the plural.



     19.3 Severability. In the event any provision of this Plan shall be held illegal or invalid
for any reason, the illegality or invalidity shall not affect the remaining parts of this Plan, and
this Plan shall be construed and enforced as if the illegal or invalid provision had not been
included.



18









 





     19.4 Requirements of Law. The granting of Awards and the issuance of Shares under this Plan
shall be subject to all applicable laws, rules, and regulations, and to such approvals by any
governmental agencies or national securities exchanges as may be required.



     19.5 Delivery of Title. The Company shall have no obligation to issue or deliver evidence of
title for Shares issued under this Plan prior to:




	 	(a)	 	Obtaining any approvals from governmental agencies that the Company
determines are necessary or advisable; and
	 
	 	(b)	 	Completion of any registration or other qualification of the Shares
under any applicable national or foreign law or ruling of any governmental body
that the Company determines to be necessary or advisable.





     19.6 Inability to Obtain Authority. The inability of the Company to obtain authority from any
regulatory body having jurisdiction, which authority is deemed by the Company’s counsel to be
necessary or advisable to the lawful issuance and sale of any Shares hereunder, shall relieve the
Company of any liability in respect of the failure to issue or sell such Shares as to which such
requisite authority shall not have been obtained.



     19.7 Investment Representations. The Committee may require any individual receiving Shares
pursuant to an Award under this Plan to represent and warrant in writing that the individual is
acquiring the Shares for investment and without any present intention to sell or distribute such
Shares.



     19.8 Employees Based Outside of the United States. Notwithstanding any provision of this Plan
to the contrary, in order to comply with the laws in other countries in which the Company, its
Associates, and/or its Subsidiaries operate or have Employees, Directors, or Independent Marketing
Agents, the Committee, in its sole discretion, shall have the power and authority to:




	 	(a)	 	Determine which Associates and Subsidiaries shall be covered by this
Plan;
	 
	 	(b)	 	Determine which Employees and/or Directors or Independent Marketing
Agents outside the United States are eligible to participate in this Plan;
	 
	 	(c)	 	Modify the terms and conditions of any Award granted to Employees
and/or Directors or Independent Marketing Agents outside the United States to
comply with applicable foreign laws;
	 
	 	(d)	 	Establish subplans and modify exercise procedures and other terms and
procedures, to the extent such actions may be necessary or advisable. Any
subplans and modifications to Plan terms and procedures established under this
Section 19.8 by the Committee shall be attached to this Plan document as
appendices; and





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	 	(e)	 	Take any action, before or after an Award is made, that it deems
advisable to obtain approval or comply with any necessary local government
regulatory exemptions or approvals.





          Notwithstanding the above, the Committee may not take any actions hereunder, and no Awards
shall be granted, that would violate applicable law.




     19.9 Uncertificated Shares. To the extent that this Plan provides for issuance of
certificates to reflect the transfer of Shares, the transfer of such Shares may be effected on a
noncertificated basis, to the extent not prohibited by applicable law or the rules of any stock
exchange.



     19.10 Unfunded Plan. Participants shall have no right, title, or interest whatsoever in or to
any investments that the Company, and/or its Subsidiaries, and/or its Associates may make to aid it
in meeting its obligations under this Plan. Nothing contained in this Plan, and no action taken
pursuant to its provisions, shall create or be construed to create a trust of any kind, or a
fiduciary relationship between the Company and any Participant, beneficiary, legal representative,
or any other individual. To the extent that any person acquires a right to receive payments from
the Company, its Subsidiaries, and/or its Associates under this Plan, such right shall be no
greater than the right of an unsecured general creditor of the Company, a Subsidiary, or an
Associate, as the case may be. All payments to be made hereunder shall be paid from the general
funds of the Company, a Subsidiary, or an Associate, as the case may be and no special or separate
fund shall be established and no segregation of assets shall be made to assure payment of such
amounts except as expressly set forth in this Plan.



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



     19.12 Retirement and Welfare Plans. Neither Awards made under this Plan nor Shares or cash
paid pursuant to such Awards may be included as “compensation” for purposes of computing the
benefits payable to any Participant under the Company’s or any Subsidiary’s or Associate’s
retirement plans (both qualified and non-qualified) or welfare benefit plans unless such other plan
expressly provides that such compensation shall be taken into account in computing a Participant’s
benefit.



     19.13 Deferred Compensation. No deferral of compensation (as defined under Code Section 409A
or guidance thereto) is intended under this Plan. However, the Committee may permit deferrals of
compensation pursuant to the terms of a Participant’s Award Agreement, a separate plan or a subplan
which meets the requirements of Code Section 409A and any related guidance. Employees who are
subject to Code Section 409A shall only be granted Awards under this Plan that meet the
requirements of Code Section 409A or qualify for an exemption under Code Section 409A or any
related guidance. If any Employee who is subject to Code Section 409A receives an Award that does
not comply with Code Section 409A or qualify for an exemption thereto, such Award shall be null and
void and shall be deemed to have never been granted. Additionally, to the extent any Award is
subject to Code Section 409A, notwithstanding any provision herein to the contrary, the Plan does
not permit the acceleration of the time or schedule of any distribution related to such



20









 







Award, except as permitted by Code Section 409A, the regulations thereunder, and/or the
Secretary of the United States Treasury.



     19.14 Nonexclusivity of this Plan. The adoption of this Plan shall not be construed as
creating any limitations on the power of the Board or Committee to adopt such other compensation
arrangements as it may deem desirable for any Participant.



     19.15 No Constraint on Corporate Action. Nothing in this Plan shall be construed to: (i)
limit, impair, or otherwise affect the Company’s or a Subsidiary’s or an Associate’s right or power
to make adjustments, reclassifications, reorganizations, or changes of its capital or business
structure, or to merge or consolidate, or dissolve, liquidate, sell, or transfer all or any part of
its business or assets; or, (ii) limit the right or power of the Company or a Subsidiary or an
Associate to take any action which such entity deems to be necessary or appropriate.



     19.16 Governing Law. The Plan and each Award Agreement shall be governed by the laws of the
State of Delaware, excluding any conflicts or choice of law rule or principle that might otherwise
refer construction or interpretation of this Plan to the substantive law of another jurisdiction.
Unless otherwise provided in the Award Agreement, recipients of an Award under this Plan are deemed
to submit to the exclusive jurisdiction and venue of the federal or state courts of Delaware, to
resolve any and all issues that may arise out of or relate to this Plan or any related Award
Agreement.




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