Exhibit 10.1





Exhibit 10.1




ENERGY CONVERSION DEVICES, INC.

2010 OMNIBUS INCENTIVE COMPENSATION PLAN




Section 1. Purpose.




The purpose of this Energy Conversion Devices, Inc. 2010 Omnibus Incentive Compensation Plan
(the “Plan”) is to promote the interests of the Company (as defined below), and its
stockholders by (a) attracting and retaining exceptional directors, officers, employees and
consultants (including prospective directors, officers, employees and consultants) of the Company
and its Subsidiaries (as defined below) and (b) enabling such individuals to participate in the
long-term growth and financial success of the Company. This Plan is intended to replace the Energy
Conversion Devices, Inc. 2006 Stock Incentive Plan (the “Prior Stock Plan”) and the Energy
Conversion Devices Annual Incentive Program (the “Prior Bonus Plan”, and together with the Prior
Stock Plan, the “Prior Plans”) which Prior Plans shall be automatically terminated and replaced
and superseded by this Plan on the date on which this Plan is approved by the Company’s
stockholders, except that any awards granted under the Prior Plans shall remain in effect pursuant
to their terms.



Section 2. Definitions.





As used herein, the following terms shall have the meanings set forth below:




“Award” means any award that is permitted under Section 6 and granted under the Plan.



“Award Agreement” means any written agreement, contract or other instrument or
document evidencing any Award, which may, but need not, require execution or acknowledgment by a
Participant.




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




“Cash Incentive Award” means an Award granted pursuant to Section 6(f).



“Change of Control” shall (a) have the meaning set forth in an Award Agreement,
provided, however, that any definition of Change of Control set forth in an Award Agreement shall
provide that a Change of Control shall not occur until consummation or effectiveness of a change of
control of the Company, rather than upon the announcement, commencement, stockholder approval or
other potential occurrence of any event or transaction that, if completed, would result in a change
of control of the Company, or (b) if there is no definition set forth in an Award Agreement, mean
the occurrence of any of the following events:



(i) the acquisition by any individual, entity or group (a “Person”), including any
“person” within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act, of beneficial
ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act, of 40% or more of
either (1) the then outstanding Shares of the Company (the “Outstanding Shares”) or (2) the
combined voting power of the then outstanding securities of the Company entitled to vote generally
in the election of directors (the “Outstanding Voting Securities”); excluding, however, the
following: (A) any acquisition directly from the Company (excluding any acquisition resulting from
the exercise of an exercise, conversion or exchange privilege unless the security being so
exercised, converted or exchanged was acquired directly from the Company), (B) any acquisition by
the Company, (C) any acquisition by an employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, or (D) any acquisition by
any corporation pursuant to a transaction which complies with clauses (1), (2) and (3) of paragraph
(iii), below, of this definition; provided further, that for purposes of clause (B), if any Person
(other than the Company or any employee benefit plan (or related trust) sponsored or maintained by
the Company or any corporation controlled by the Company) shall become the beneficial owner of
40% or more of the Outstanding Shares or 40% or more of the Outstanding Voting Securities by
reason of an acquisition by the Company, and such Person shall, after such acquisition by the
Company, become the beneficial owner of any additional Outstanding Shares or any additional
Outstanding Voting Securities and such beneficial ownership is publicly announced, such additional
beneficial ownership shall constitute a Change of Control;


 


 









 





(ii) individuals who, as of the date hereof, constitute the Board (the “Incumbent
Board”) cease for any reason to constitute at least a majority of such Board; provided that any
individual who becomes a director of the Company subsequent to the date hereof whose election, or
nomination for election, by the Company’s stockholders was approved by the vote of at least a
majority of the directors then comprising the Incumbent Board shall be deemed a member of the
Incumbent Board;



(iii) the consummation of a reorganization, merger or consolidation, or sale or other
disposition of all or substantially all of the assets, of the Company (a “Corporate
Transaction”); excluding, however, a Corporate Transaction pursuant to which (1) all or
substantially all of the individuals or entities who are the beneficial owners, respectively, of
the Outstanding Shares and the Outstanding Voting Securities immediately prior to such Corporate
Transaction will beneficially own, directly or indirectly, more than 60% of, respectively, the
outstanding Shares, and the combined voting power of the outstanding securities entitled to vote
generally in the election of directors, as the case may be, of the corporation resulting from such
Corporate Transaction (including, without limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all of the Company’s assets either directly or
indirectly) in substantially the same proportions relative to each other as their ownership,
immediately prior to such Corporate Transaction, of the Outstanding Shares and the Outstanding
Voting Securities, as the case may be, (2) no Person (other than: the Company; any employee benefit
plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the
Company; the corporation resulting from such Corporate Transaction; and any Person which
beneficially owned, immediately prior to such Corporate Transaction, directly or indirectly, 40% or
more of the Outstanding Shares or the Outstanding Voting Securities, as the case may be) will
beneficially own, directly or indirectly, 40% or more of, respectively, the outstanding Shares of
the corporation resulting from such Corporate Transaction or the combined voting power of the
outstanding securities of such corporation entitled to vote generally in the election of directors
and (3) individuals who were members of the Incumbent Board will constitute at least a majority of
the members of the board of directors of the corporation resulting from such Corporate Transaction;
or




(4) the consummation of a plan of complete liquidation or dissolution of the Company.



“Code” means the Internal Revenue Code of 1986, as amended from time to time, or any
successor statute thereto, and the regulations promulgated thereunder.



“Committee” means the compensation committee of the Board, or such other committee of
the Board as may be designated by the Board to administer the Plan, as described in Section 3(a).




Company” means Energy Conversion Devices, Inc. and any successor thereto.



“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to
time, or any successor statute thereto, and the regulations promulgated thereunder.



“Exercise Price” means (a) in the case of Options, the price specified in the
applicable Award Agreement as the price-per-Share at which Shares may be purchased pursuant to such
Option or (b) in the case of SARs, the price specified in the applicable Award Agreement as the
reference price-per-Share used to calculate the amount payable to the Participant.


 


2









 





“Fair Market Value” means shall mean the closing price of a Share on The Nasdaq Global
Select Market on the date of grant or, if the Shares are not listed on The Nasdaq Global Select
Market, the average of the high and low transaction prices of a Share on the principal market on
which the Shares are traded on the date of grant, or if there shall be no reported transaction for
such date, on the next preceding date for which a transaction was reported; provided, however, that
if Fair Market Value for any date cannot be so determined, Fair Market Value shall be determined by
the Committee by whatever means or method as the Committee, in the good faith exercise of its
discretion, shall at such time deem appropriate.



“Incentive Stock Option” means an option to purchase Shares from the Company that (a)
is granted under Section 6(b) and (b) is intended to qualify for special Federal income tax
treatment pursuant to Sections 421 and 422 of the Code, as now constituted or subsequently amended,
or pursuant to a successor provision of the Code, and which is so designated in the applicable
Award Agreement.



“Independent Director” means a member of the Board (a) who is neither an employee of
the Company nor an employee of any Subsidiary, and (b) who, at the time of acting, is a
“Non-Employee Director” under Rule 16b-3.



“IRS” means the Internal Revenue Service or any successor thereto and includes the
staff thereof.



“NASDAQ” means the National Association of Securities Dealers Automated Quotation
system.



“Nonqualified Stock Option” means an option to purchase Shares from the Company that
(a) is granted under Section 6(b) and (b) is not an Incentive Stock Option.



“Option” means an Incentive Stock Option or a Nonqualified Stock Option or both, as
the context requires.



“Participant” means any director, officer, employee or consultant (including any
prospective director, officer, employee or consultant) of the Company or its Subsidiaries who is
eligible for an Award under Section 5 and who is selected by the Committee to receive an Award
under the Plan or who receives a Substitute Award pursuant to Section 4(c).



“Performance Compensation Award” means any Award designated by the Committee as a
Performance Compensation Award pursuant to Section 6(i).



“Performance Criteria” means the criterion or criteria that the Committee shall select
for purposes of establishing a Performance Goal for a Performance Period with respect to any
Performance Compensation Award, Performance Unit or Cash Incentive Award under the Plan.
Performance Criteria shall be limited to the following: (A) net income before or after taxes, (B)
earnings before or after taxes (including earnings before interest, taxes, depreciation and
amortization), (C) operating income, (D) earnings per share, (E) return on stockholders’ equity,
(F) return on investment or capital, (G) return on assets, (H) net assets, (I) total shareholder
return, (J) share price, (K) market capitalization, (L) profitability and profit margins, (M)
market share (in the aggregate or by segment), (N) revenues or sales (based on units or dollars),
(O) costs (including bill of material costs), (P) cash flow, (Q) working capital, (R) cost per
watt, (S) watts produced, (T) watts shipped, (U) watts per module, (V) conversion efficiency, (W)
modules produced, (X) modules shipped, (Y) production throughput rates, (Z) solar project velocity,
(AA) solar project volume, (BB) production yields, (CC) solar projects developed (number or watts),
(DD) solar projects financed (by value or watts), (EE) solar projects sold (by value or watts),
(FF) operation or maintenance contracts signed or maintained (by value or watts), (GG) production
expansion build and
ramp times, (HH) module field performance, (II) average sales price, (JJ) budgeted expenses
(operating and/or capital), (KK) inventory turns, (LL) accounts receivable levels, (MM) completion
of projects within a specified time frame, (NN) development of product, (OO) level or amount of
acquisitions, and (PP) except with respect to an award intended to qualify as “qualified
performance-based compensation” under Section 162(m) of the Code, any other measure of performance
that the Committee may approve in its discretion.


 


3









 





“Performance Formula” means, for a Performance Period, the one or more objective
formulas applied against the relevant Performance Goal to determine, with regard to the Performance
Compensation Award, Performance Unit or Cash Incentive Award of a particular Participant, whether
all, a portion or none of the Award has been earned for the Performance Period.



“Performance Goal” means, for a Performance Period, the one or more goals established
by the Committee for the Performance Period based upon the Performance Criteria.



“Performance Period” means the one or more periods of time as the Committee may select
over which the attainment of one or more Performance Goals will be measured for the purpose of
determining a Participant’s right to and the payment of a Performance Compensation Award,
Performance Unit or Cash Incentive Award.



“Performance Unit” means an Award under Section 6(e) that has a value set by the
Committee (or that is determined by reference to a valuation formula specified by the Committee or
the Fair Market Value of Shares), which value may be paid to the Participant by delivery of such
property as the Committee shall determine, including without limitation, cash or Shares, or any
combination thereof, upon achievement of such Performance Goals during the relevant Performance
Period as the Committee shall establish at the time of such Award or thereafter.




“Plan” shall have the meaning specified in Section 1.



“Restricted Share” means a Share that is granted under Section 6(d) that is subject to
certain transfer restrictions, forfeiture provisions and/or other terms and conditions specified
herein and in the applicable Award Agreement.



“RSU” means a restricted stock unit Award that is granted under Section 6(d) and is
designated as such in the applicable Award Agreement and that represents an unfunded and unsecured
promise to deliver Shares, cash, other securities, other Awards or other property in accordance
with the terms of the applicable Award Agreement.



“Rule 16b-3” means Rule 16b-3 as promulgated and interpreted by the SEC under the
Exchange Act or any successor rule or regulation thereto as in effect from time to time.



“SAR” means a stock appreciation right Award that is granted under Section 6(c) and
that represents an unfunded and unsecured promise to deliver Shares, cash, other securities, other
Awards or other property equal in value to the excess, if any, of the Fair Market Value per Share
over the Exercise Price per Share of the SAR, subject to the terms of the applicable Award
Agreement.



“SEC” means the Securities and Exchange Commission or any successor thereto and shall
include the staff thereof.



“Shares” means shares of common stock of the Company, $0.01 par value, or such other
securities of the Company (a) into which such shares shall be changed by reason of a
recapitalization,
merger, consolidation, split-up, combination, exchange of shares or other similar transaction
or (b) as may be determined by the Committee pursuant to Section 4(b).


 


4









 





“Subsidiary” means any corporation, limited liability company, partnership, joint
venture or similar entity in which the Company owns, directly or indirectly, an equity interest
possessing more than 25% of the combined voting power of the total outstanding equity interests of
such entity.




“Substitute Awards” shall have the meaning specified in Section 4(c).



“Ten-Percent Holder” means an employee who, at the time of the grant of an Award, owns
stock representing more than 10% of the voting power of the Company or a Subsidiary (as determined
under Section 422(b)(6) of the Code).



“Treasury Regulations” means all proposed, temporary and final regulations promulgated
under the Code, as such regulations may be amended from time to time (including corresponding
provisions of succeeding regulations).




Section 3. Administration.



(a) Composition of Committee. The Plan shall be administered by the Committee, which
shall be composed of one or more directors, as determined by the Board; provided that, to
the extent necessary to comply with the rules of NASDAQ or any successor exchange on which the
Shares may be listed and Rule 16b-3 and to satisfy any applicable requirements of Section 162(m) of
the Code and any other applicable laws or rules, the Committee shall be composed of two or more
directors, all of whom shall be Independent Directors and all of whom shall (i) qualify as “outside
directors” under Section 162(m) of the Code and (ii) meet the independence requirements of NASDAQ
or any successor exchange.



(b) Authority of Committee. Subject to the terms of the Plan and applicable law
(including, where intended, Section 162(m) of the Code), and in addition to other express powers
and authorizations conferred on the Committee by the Plan, the Committee shall have sole and
plenary authority to administer the Plan, including, but not limited to, the authority to (i)
designate Participants, (ii) determine the type or types of Awards to be granted to a Participant,
(iii) determine the number of Shares to be covered by, or with respect to which payments, rights or
other matters are to be calculated in connection with, Awards, (iv) determine the terms and
conditions of any Awards, (v) determine the vesting schedules of Awards and, if certain performance
criteria must be attained in order for an Award to vest or be settled or paid, establish such
performance criteria and certify whether, and to what extent, such performance criteria have been
attained, (vi) determine whether, to what extent and under what circumstances Awards may be settled
or exercised in cash, Shares, other securities, other Awards or other property, or canceled,
forfeited or suspended and the method or methods by which Awards may be settled, exercised,
canceled, forfeited or suspended, (vii) determine whether, to what extent and under what
circumstances cash, Shares, other securities, other Awards, other property and other amounts
payable with respect to an Award shall be deferred either automatically or at the election of the
holder thereof or of the Committee, (viii) interpret, administer, reconcile any inconsistency in,
correct any default in and supply any omission in, the Plan and any instrument or agreement
relating to, or Award made under, the Plan, (ix) establish, amend, suspend or waive such rules and
regulations and appoint such agents as it shall deem appropriate for the proper administration of
the Plan, (x) accelerate the vesting or exercisability of, payment for or lapse of restrictions on,
Awards, (xi) amend an outstanding Award or grant a replacement Award for an Award previously
granted under the Plan if, in its sole discretion, the Committee determines that (A) the tax
consequences of such Award to the Company or the Participant differ from those consequences that
were expected to occur on the date the Award was granted or (B) clarifications or interpretations
of, or changes to, tax law or regulations permit Awards to be granted that have more favorable tax
consequences than initially anticipated and (xii) make any other determination and take any other
action that the Committee deems necessary or desirable for the administration of the Plan.


 


5









 





(c) Committee Decisions. Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations and other decisions under or with respect to the Plan
or any Award shall be within the sole and plenary discretion of the Committee, may be made at any
time and shall be final, conclusive and binding upon all persons, including the Company, any
Subsidiary, any Participant, any holder or beneficiary of any Award and any stockholder. A
majority of the Committee shall constitute a quorum. The acts of the Committee shall be either (1)
acts of a majority of the members of the Committee present at any meeting at which a quorum is
present or (2) acts approved in writing by all of the members of the Committee without a meeting.



(d) Indemnification. No member of the Board, the Committee or any employee of the
Company (each such person, a “Covered Person”) shall be liable for any action taken or
omitted to be taken or any determination made in good faith with respect to the Plan or any Award
hereunder. Each Covered Person shall be indemnified and held harmless by the Company against and
from (i) any loss, cost, liability or expense (including attorneys’ fees) that may be imposed upon
or incurred by such Covered Person in connection with or resulting from any action, suit or
proceeding to which such Covered Person may be a party or in which such Covered Person may be
involved by reason of any action taken or omitted to be taken under the Plan or any Award Agreement
and (ii) any and all amounts paid by such Covered Person, with the Company’s approval, in
settlement thereof, or paid by such Covered Person in satisfaction of any judgment in any such
action, suit or proceeding against such Covered Person; provided that the Company shall
have the right, at its own expense, to assume and defend any such action, suit or proceeding, and,
once the Company gives notice of its intent to assume the defense, the Company shall have sole
control over such defense with counsel of the Company’s choice. The foregoing right of
indemnification shall not be available to a Covered Person to the extent that a court of competent
jurisdiction in a final judgment or other final adjudication, in either case not subject to further
appeal, determines that the acts or omissions of such Covered Person giving rise to the
indemnification claim resulted from such Covered Person’s bad faith, fraud or willful criminal act
or omission or that such right of indemnification is otherwise prohibited by law or by the
Company’s Certificate of Incorporation or Bylaws. The foregoing right of indemnification shall not
be exclusive of any other rights of indemnification to which Covered Persons may be entitled under
the Company’s Certificate of Incorporation or Bylaws, as a matter of law, or otherwise, or any
other power that the Company may have to indemnify such persons or hold them harmless. However,
indemnification shall not be provided under this Section 3(d) to the extent provided in the
Company’s Restated Certificate of Incorporation and/or Bylaws, and under any directors’ and
officers’ liability insurance that may be in effect from time to time.



(e) Delegation of Authority to Senior Officers. The Committee may delegate, on such
terms and conditions as it determines in its sole and plenary discretion, to one or more senior
officers of the Company the authority to make grants of Awards to officers (other than any officer
subject to Section 16 of the Exchange Act), employees and consultants of the Company and its
Subsidiaries (including any prospective officer (other than any such officer who is expected to be
subject to Section 16 of the Exchange Act), employee or consultant) and all necessary and
appropriate decisions and determinations with respect thereto.



(f) Awards to Independent Directors. Notwithstanding anything to the contrary
contained herein, the Board may, in its sole and plenary discretion, at any time and from time to
time, grant Awards to Independent Directors or administer the Plan with respect to such Awards. In
any such case, the Board shall have all the authority and responsibility granted to the Committee
herein.



Section 4. Shares Available for Awards; Cash Payable Pursuant to Awards.




(a) (a) Shares and Cash Available. (i) Subject to adjustment as provided in Section
4(b), the maximum aggregate number of Shares that may be delivered pursuant to Awards granted under
the Plan shall be equal to the sum of (A) four million one hundred thousand (4,100,000), plus (B)
any of the awards outstanding under the Prior Stock Plans and the 1995 Non-Qualified Stock Option
and 2000
Non-Qualified Stock Option Plans (1,494,778 share awards outstanding as of October 5, 2010),
but only to the extent that such outstanding awards are forfeited, expire, or otherwise terminate
without the issuance of Shares on or after the effective date of the Plan.


 


6









 





(ii) The maximum number of Shares that may be delivered pursuant to Incentive Stock Options
granted under the Plan shall be four million one hundred thousand (4,100,000).



(iii) If, after the effective date of the Plan, any Award granted under the Plan (A) is
forfeited or otherwise expires, terminates or is canceled without the delivery of all Shares
subject thereto or (B) is settled other than by the delivery of Shares (including cash settlement),
then, in the case of clauses (A) and (B), the number of Shares subject to such Award that were not
issued with respect to such Award shall again become available to be delivered pursuant to Awards
under the Plan.



(iv) If Shares issued upon exercise, vesting or settlement of an Award, or Shares owned by a
Participant (which are not subject to any pledge or other security interest), are surrendered or
tendered to the Company in payment of the Exercise Price of an Award or any taxes required to be
withheld in respect of an Award in accordance with the terms and conditions of the Plan and any
applicable Award Agreement, such surrendered or tendered Shares shall become available to be
delivered pursuant to Awards under the Plan; provided, however, that in no event
shall such Shares increase the number of Shares that may be delivered pursuant to Incentive Stock
Options granted under the Plan.



(v) Subject to adjustment as provided in Section 4(b), (1) in the case of Awards that are
settled in Shares, the maximum aggregate number of Shares with respect to which Awards (other than
Options and SARs) may be granted under the Plan to any Participant in any fiscal year of the
Company shall be six hundred thousand (600,000), (2) the maximum aggregate number of Shares subject
to Options granted in any one fiscal year to any one Participant shall be 1 million (1,000,000),
(3) the maximum aggregate number of Shares subject to SARs granted in any one fiscal year to any
one Participant shall be 1 million (1,000,000), and (4) in the case of Awards that are settled in
cash based on the Fair Market Value of a Share, the maximum aggregate amount of cash that may be
paid pursuant to Awards granted under the Plan to any Participant in any fiscal year of the Company
shall be equal to the per Share Fair Market Value as of the relevant vesting, payment or settlement
date multiplied by the number of Shares described in the preceding clause (1). In the case of all
Awards other than those described in the preceding sentence, the maximum aggregate amount of cash
and other property (valued at its Fair Market Value) other than Shares that may be paid or
delivered pursuant to Awards under the Plan to any Participant in any fiscal year of the Company
shall be $3 million ($3,000,000).



(b) Adjustments for Changes in Capitalization and Similar Events. (i) In the event of
any extraordinary dividend or other extraordinary distribution (whether in the form of cash,
Shares, other securities or other property), recapitalization, stock split, reverse stock split,
split-up or spin-off, the Committee shall, in order to preserve the value of the Award and in the
manner determined by the Committee, adjust any or all of (A) the number of Shares or other
securities of the Company (or number and kind of other securities or property) with respect to
which Awards may be granted, including (1) the maximum aggregate number of Shares that may be
delivered pursuant to Awards granted under the Plan (including pursuant to Incentive Stock Options)
and (2) the maximum number of Shares or other securities of the Company (or number and kind of
other securities or property) with respect to which Awards may be granted to any Participant in any
fiscal year of the Company, in each case as provided in Section 4(a), and (B) the terms of any
outstanding Award, including (1) the number of Shares or other securities of the Company (or number
and kind of other securities or property) subject to outstanding Awards or to which outstanding
Awards relate and (2) the Exercise Price, if applicable, with respect to any Award.


 


7









 





(ii) In the event that the Committee determines that any reorganization, merger,
consolidation, combination, repurchase or exchange of Shares or other securities of the Company,
issuance of warrants or other rights to purchase Shares or other securities of the Company, or
other similar corporate transaction or event affects the Shares such that an adjustment is
determined by the Committee in its
discretion to be appropriate or desirable, then the Committee may (A) in such manner as it may
deem equitable or desirable, adjust any or all of (1) the number of Shares or other securities of
the Company (or number and kind of other securities or property) with respect to which Awards may
be granted, including (x) the maximum aggregate number of Shares that may be delivered pursuant to
Awards granted under the Plan (including pursuant to Incentive Stock Options) and (y) the maximum
number of Shares or other securities of the Company (or number and kind of other securities or
property) with respect to which Awards may be granted to any Participant in any fiscal year of the
Company, in each case as provided in Section 4(a), and (2) the terms of any outstanding Award,
including (x) the number of Shares or other securities of the Company (or number and kind of other
securities or property) subject to outstanding Awards or to which outstanding Awards relate and (y)
the Exercise Price, if applicable, with respect to any Award, (B) if deemed appropriate or
desirable by the Committee, make provision for a cash payment to the holder of an outstanding Award
in consideration for the cancellation of such Award, including, in the case of an outstanding
Option or SAR, a cash payment to the holder of such Option or SAR in consideration for the
cancellation of such Option or SAR in an amount equal to the excess, if any, of the Fair Market
Value (as of a date specified by the Committee) of the Shares subject to such Option or SAR over
the aggregate Exercise Price of such Option or SAR and (C) if deemed appropriate or desirable by
the Committee, cancel and terminate any Option or SAR having a per Share Exercise Price equal to,
or in excess of, the Fair Market Value of a Share subject to such Option or SAR without any payment
or consideration therefor.



(c) Substitute Awards. Subject to the restrictions on “repricing” of Options and SARs
as set forth in Section 7(b), Awards may, in the discretion of the Committee, be granted under the
Plan in assumption of, or in substitution for, outstanding awards previously granted by the Company
or any of its Subsidiaries or a company acquired by the Company or any of its Subsidiaries or with
which the Company or any of its Subsidiaries combines (“Substitute Awards”). The number of
Shares underlying any Substitute Awards shall be counted against the maximum aggregate number of
Shares available for Awards under the Plan; provided, however, that Substitute
Awards issued in connection with the assumption of, or in substitution for, outstanding awards
previously granted by an entity that is acquired by the Company or any of its Subsidiaries or with
which the Company or any of its Subsidiaries combines shall not be counted against the maximum
aggregate number of Shares available for Awards under the Plan; provided further,
however, that Substitute Awards issued in connection with the assumption of, or in
substitution for, outstanding stock options intended to qualify for special tax treatment under
Sections 421 and 422 of the Code that were previously granted by an entity that is acquired by the
Company or any of its Subsidiaries or with which the Company or any of its Subsidiaries combines
shall be counted against the maximum aggregate number of Shares available for Incentive Stock
Options under the Plan. No substitution of an Option or SAR shall occur that would cause the
Option or SAR to be subject to Section 409A of the Code.



(d) Sources of Shares Deliverable Under Awards. Any Shares delivered pursuant to an
Award may consist, in whole or in part, of authorized and unissued Shares or of treasury Shares.



Section 5. Eligibility.




Participants in this Plan shall consist of such officers, other employees, non-employee
directors, consultants, advisors, independent contractors and agents, and persons expected to
become officers, other employees, non-employee directors, consultants, advisors, independent
contractors and agents, of the Company or a Subsidiary as the Committee in its sole discretion may
select from time to time. For purposes of this Plan, references to employment shall also mean an
agency or independent contractor relationship and references to employment by the Company shall
also mean employment by a Subsidiary. The Committee’s selection of a person to participate in this
Plan at any time shall not require the Committee to select such person to participate in this Plan
at any other time.


 


8









 





Section 6. Awards.




(a) Types of Awards. Awards may be made under the Plan in the form of (i) Options,
(ii) SARs,
(iii) Restricted Shares, (iv) RSUs, (v) Performance Units, (vi) Cash Incentive Awards, (vii)
Performance Compensation Awards and (viii) other equity-based or equity-related Awards that the
Committee determines are consistent with the purpose of the Plan and the interests of the Company.
Awards may be granted in tandem with other Awards. No Incentive Stock Option (other than an
Incentive Stock Option that may be assumed or issued by the Company in connection with a
transaction to which Section 424(a) of the Code applies) may be granted to a person who is
ineligible to receive an Incentive Stock Option under the Code.



(b) Options. (i) Grant. Subject to the provisions of the Plan, the Committee
shall have sole and plenary authority to determine (A) the Participants to whom Options shall be
granted, (B) subject to Section 4(a), the number of Shares subject to Options to be granted to each
Participant, (C) whether each Option will be an Incentive Stock Option or a Nonqualified Stock
Option and (D) the conditions and limitations applicable to the vesting and exercise of each
Option. In the case of Incentive Stock Options, the terms and conditions of such grants shall be
subject to and comply with such rules as may be prescribed by Section 422 of the Code and any
regulations related thereto, as may be amended from time to time. All Options granted under the
Plan shall be Nonqualified Stock Options unless the applicable Award Agreement expressly states
that the Option is intended to be an Incentive Stock Option. If an Option is intended to be an
Incentive Stock Option, and if, for any reason, such Option (or any portion thereof) shall not
qualify as an Incentive Stock Option, then, to the extent of such nonqualification, such Option (or
portion thereof) shall be regarded as a Nonqualified Stock Option appropriately granted under the
Plan; provided that such Option (or portion thereof) otherwise complies with the Plan’s
requirements relating to Nonqualified Stock Options.



(ii) Exercise Price. Except as otherwise established by the Committee at the time an
Option is granted and set forth in the applicable Award Agreement, the Exercise Price of each Share
covered by an Option shall be not less than 100% of the Fair Market Value of such Share (determined
as of the date the Option is granted); provided, however, that in the case of an
Incentive Stock Option granted to a Ten-Percent Holder, the per Share Exercise Price shall be no
less than 110% of the Fair Market Value per Share on the date of the grant. Options are intended to
qualify as “qualified performance-based compensation” under Section 162(m) of the Code.



(iii) Vesting and Exercise. Each Option shall be vested and exercisable at such
times, in such manner and subject to such terms and conditions as the Committee may, in its sole
and plenary discretion, specify in the applicable Award Agreement or thereafter. Except as
otherwise specified by the Committee in the applicable Award Agreement, an Option may only be
exercised to the extent that it has already vested at the time of exercise. An Option shall be
deemed to be exercised when written or electronic notice of such exercise has been given to the
Company in accordance with the terms of the Award by the person entitled to exercise the Award and
full payment pursuant to Section 6(b)(iv) for the Shares with respect to which the Award is
exercised has been received by the Company. Exercise of an Option in any manner shall result in a
decrease in the number of Shares that thereafter may be available for sale under the Option and,
except as expressly set forth in Sections 4(a) and 4(c), in the number of Shares that may be
available for purposes of the Plan, by the number of Shares as to which the Option is exercised.
The Committee may impose such conditions with respect to the exercise of Options, including,
without limitation, any conditions relating to the application of Federal or state securities laws,
as it may deem necessary or advisable.


 


9









 





(iv) Payment.(A) No Shares shall be delivered pursuant to any exercise of an Option
until payment in full of the aggregate Exercise Price therefor is received by the Company, and the
Participant has paid to the Company (or the Company has withheld in accordance with Section 9(d))
an amount equal to any Federal, state, local and foreign income and employment taxes required to be
withheld. Such payments may be made in cash (or its equivalent) or, in the Committee’s sole and
plenary discretion, (1) by exchanging Shares owned by the Participant (which are not the subject of
any pledge or other security interest), (2) if there shall be a public market for the Shares at
such time, subject to such rules as may be established by the Committee, through delivery of
irrevocable instructions to a broker to
sell the Shares otherwise deliverable upon the exercise of the Option and to deliver promptly
to the Company an amount equal to the aggregate Exercise Price or (3) through any other method (or
combination of methods) as approved by the Committee; provided that the combined value of
all cash and cash equivalents and the Fair Market Value of any such Shares so tendered to the
Company, together with any Shares withheld by the Company in accordance with Section 9(d), as of
the date of such tender, is at least equal to such aggregate Exercise Price and the amount of any
Federal, state, local and foreign income and employment taxes required to be withheld.



(B) Wherever in the Plan or any Award Agreement a Participant is permitted to pay the Exercise
Price of an Option or taxes relating to the exercise of an Option by delivering Shares, the
Participant may, subject to procedures satisfactory to the Committee, satisfy such delivery
requirement by presenting proof of beneficial ownership of such Shares, in which case the Company
shall treat the Option as exercised without further payment and shall withhold such number of
Shares from the Shares acquired by the exercise of the Option.



(v) Expiration. Except as otherwise set forth in the applicable Award Agreement, each
Option shall expire immediately, without any payment, upon the tenth anniversary of the date the
Option is granted (or, with respect to Incentive Stock Options granted to a Ten-Percent Holder, the
fifth anniversary of the date the Option is granted).



(c) SARs. (i) Grant. Subject to the provisions of the Plan, the Committee
shall have sole and plenary authority to determine (A) the Participants to whom SARs shall be
granted, (B) subject to Section 4(a), the number of SARs to be granted to each Participant, (C) the
Exercise Price thereof and (D) the conditions and limitations applicable to the exercise thereof.



(ii) Exercise Price. Except as otherwise established by the Committee at the time a
SAR is granted and set forth in the applicable Award Agreement, the Exercise Price of each Share
covered by a SAR shall be not less than 100% of the Fair Market Value of such Share (determined as
of the date the SAR is granted). SARs are intended to qualify as “qualified performance-based
compensation” under Section 162(m) of the Code.



(iii) Exercise. A SAR shall entitle the Participant to receive an amount upon
exercise equal to the excess, if any, of the Fair Market Value of a Share on the date of exercise
of the SAR over the Exercise Price thereof. The Committee shall determine, in its sole and plenary
discretion, whether a SAR shall be settled in cash, Shares, other securities, other Awards, other
property or a combination of any of the foregoing.



(iv) Other Terms and Conditions. Subject to the terms of the Plan and any applicable
Award Agreement, the Committee shall determine, at or after the grant of a SAR, the vesting
criteria, term, methods of exercise, methods and form of settlement and any other terms and
conditions of any SAR. Any determination by the Committee that is made pursuant to this Section
6(c)(iv) may be changed by the Committee from time to time and may govern the exercise of SARs
granted or exercised thereafter.



(d) Restricted Shares and RSUs. (i) Grant. Subject to the provisions of the
Plan, the Committee shall have sole and plenary authority to determine (A) the Participants to whom
Restricted Shares and RSUs shall be granted, (B) subject to Section 4(a), the number of Restricted
Shares and RSUs to be granted to each Participant, (C) the duration of the period during which, and
the conditions, if any, under which, the Restricted Shares and RSUs may vest or may be forfeited to
the Company and (D) the other terms and conditions of such Awards.


 


10









 





(ii) Transfer Restrictions. Restricted Shares and RSUs may not be sold, assigned,
transferred, pledged or otherwise encumbered except as provided in the Plan or as may be provided
in the applicable
Award Agreement. Restricted Shares may be evidenced in such manner as the Committee shall
determine. All certificates registered in the holder’s name shall be deposited with the Company,
together with stock powers or other instruments of assignment (including a power of attorney), each
endorsed in blank with a guarantee of signature if deemed necessary or appropriate by the Company,
which would permit transfer to the Company of all or a portion of the Shares subject to the Award
in the event such award is forfeited in whole or in part.



(iii) Payment/Lapse of Restrictions. Each RSU shall be granted with respect to one
Share or shall have a value equal to the Fair Market Value of one Share. RSUs shall be paid in
cash, Shares, Restricted Shares, other securities, other Awards or other property, as determined in
the sole and plenary discretion of the Committee, upon the lapse of restrictions applicable
thereto, or otherwise in accordance with the applicable Award Agreement. A Restricted Share or an
RSU intended to qualify as “qualified performance-based compensation” under Section 162(m) of the
Code shall provide that the restrictions of the Award lapse and/or vesting occurs (or the grant of
the Award is contingent) upon the satisfaction of the requirements for the payment of “qualified
performance-based compensation” under Section 162(m) of the Code (whether through the application
of Section 6(i) of the Plan or otherwise).



(e) Performance Units. (i) Grant. Subject to the provisions of the Plan, the
Committee shall have sole and plenary authority to determine the Participants to whom Performance
Units shall be granted and the terms and conditions thereof.



(ii) Value of Performance Units. Each Performance Unit shall have an initial value
that is established by the Committee at the time of grant. The Committee shall set Performance
Goals in its discretion that, depending on the extent to which they are met during a Performance
Period, will determine, in accordance with Section 4(a), the number and value of Performance Units
that will be paid out to the Participant.



(iii) Earning of Performance Units. Subject to the provisions of the Plan, after the
applicable Performance Period has ended, the holder of Performance Units shall be entitled to
receive a payout of the number and value of Performance Units earned by the Participant over the
Performance Period, to be determined by the Committee, in its sole and plenary discretion, as a
function of the extent to which the corresponding Performance Goals have been achieved.



(iv) Form and Timing of Payment of Performance Units. Subject to the provisions of
the Plan, the Committee, in its sole and plenary discretion, may pay earned Performance Units in
the form of cash or in Shares (or in a combination thereof) that have an aggregate Fair Market
Value equal to the value of the earned Performance Units at the close of the applicable Performance
Period. Such Shares may be granted subject to any restrictions in the applicable Award Agreement
deemed appropriate by the Committee. The determination of the Committee with respect to the form
and timing of payout of such Awards shall be set forth in the applicable Award Agreement. A
Performance Unit intended to qualify as “qualified performance-based compensation” under Section
162(m) of the Code shall provide that the restrictions of the Performance Unit lapse (or the grant
of the Performance Unit is contingent) upon the satisfaction of the requirements for the payment of
“qualified performance-based compensation” under Section 162(m) of the Code (whether through the
application of Section 6(i) of the Plan or otherwise).



(f) Cash Incentive Awards. Subject to the provisions of the Plan, the Committee, in
its sole and plenary discretion, shall have the authority to grant Cash Incentive Awards. Subject
to Section 4(a), the Committee shall establish Cash Incentive Award levels to determine the amount
of a Cash Incentive Award payable upon the attainment of Performance Goals. A Cash Incentive Award
intended to qualify as “qualified performance-based compensation” under Section 162(m) of the Code
shall provide that the Award vests (or the grant of the Award is contingent) upon satisfaction of
the requirements for the payment of “qualified performance-based compensation” under Section 162(m)
of the Code (whether through the application of Section 6(i) of the Plan or otherwise).


 


11









 





(g) Other Stock-Based Awards. Subject to the provisions of the Plan, the Committee
shall have the sole and plenary authority to grant to Participants other equity-based or
equity-related Awards (including, but not limited to, fully-vested Shares) (whether payable in
cash, equity or otherwise) in such amounts and subject to such terms and conditions as the
Committee shall determine. An Award under this Section 6(g) intended to qualify as “qualified
performance-based compensation” under Section 162(m) of the Code shall provide that the Award vests
(or the grant or payment of the Award is contingent) upon satisfaction of the requirements for the
payment of “qualified performance-based compensation” under Section 162(m) of the Code (whether
through the application of Section 6(i) or otherwise).



(h) Dividends and Dividend Equivalents. In the sole and plenary discretion of the
Committee, an Award, other than an Option, SAR or Cash Incentive Award, may provide the Participant
with dividends or dividend equivalents, payable in cash, Shares, other securities, other Awards or
other property, on a current or deferred basis, on such terms and conditions as may be determined
by the Committee in its sole and plenary discretion, including, without limitation, (i) payment
directly to the Participant, (ii) withholding of such amounts by the Company subject to vesting of
the Award or (iii) reinvestment in additional Shares, Restricted Shares or other Awards. However,
with respect to Awards subject to performance conditions, any dividend equivalents shall be paid
only to the extent that the Shares underlying the Award are also paid.



(i) Performance Compensation Awards. (i) General. The Committee shall have
the authority, at the time of grant of any Award, to designate such Award (other than Options and
SARs) as a Performance Compensation Award in order for such Award to qualify as “qualified
performance-based compensation” under Section 162(m) of the Code.



(ii) Eligibility. The Committee shall, in its sole discretion, designate within the
first 90 days of a Performance Period (or, if earlier, by the latest date allowed under Section
162(m) of the Code) which Participants will be eligible to receive Performance Compensation Awards
in respect of such Performance Period. However, designation of a Participant as eligible to receive
an Award hereunder for a Performance Period shall not in any manner entitle such Participant to
receive payment in respect of any Performance Compensation Award for such Performance Period. The
determination as to whether or not such Participant becomes entitled to payment in respect of any
Performance Compensation Award shall be decided solely in accordance with the provisions of this
Section 6(i). Moreover, designation of a Participant as eligible to receive an Award hereunder for
a particular Performance Period shall not require designation of such Participant as eligible to
receive an Award hereunder in any subsequent Performance Period and designation of one person as a
Participant eligible to receive an Award hereunder shall not require designation of any other
person as a Participant eligible to receive an Award hereunder in such period or in any other
period.



(iii) Discretion of Committee with Respect to Performance Compensation Awards. With
regard to a particular Performance Period, the Committee shall have full discretion to select (A)
the length of such Performance Period, (B) the types of Performance Compensation Awards to be
issued, (C) the Performance Goals, (D) the kinds and levels of the Performance Goals that are to
apply to the Company or any of its Subsidiaries, divisions or operational units, or any combination
of the foregoing, and (E) the Performance Formula. Within the first 90 days of a Performance Period
(or, if earlier, by the latest date allowed under Section 162(m) of the Code), the Committee shall,
with regard to the Performance Compensation Awards to be issued for such Performance Period,
exercise its discretion with respect to each of the matters enumerated in the immediately preceding
sentence and record the same in writing.


 


12









 





(iv) Performance Criteria. Notwithstanding the foregoing, the Performance Criteria
that will be used to establish the Performance Goals with respect to Performance Compensation
Awards shall be based on the attainment of specific levels of performance of the Company or any of
its Subsidiaries,
divisions or operational units, or any combination of the foregoing. Such performance
criteria may be applied on an absolute basis and/or be relative to one or more peer companies of
the Company or indices or any combination thereof. To the extent required under Section 162(m) of
the Code, the Committee shall, within the first 90 days of the applicable Performance Period (or,
if earlier, by the latest date allowed under Section 162(m) of the Code), define in an objective
manner the method of calculating the Performance Criteria it selects to use for such Performance
Period.



(v) Modification of Performance Goals. The Committee is authorized at any time during
the first 90 days of a Performance Period (or, if shorter, within the maximum period allowed under
Section 162(m) of the Code), or any time thereafter (but only to the extent the exercise of such
authority after such 90-day period (or by such earlier deadline, if applicable) would not cause the
Performance Compensation Awards granted to any Participant for the Performance Period to fail to
qualify as “qualified performance-based compensation” under Section 162(m) of the Code), in its
sole and plenary discretion, to adjust or modify the calculation of a Performance Goal for such
Performance Period to the extent permitted under Section 162(m) of the Code (A) in the event of, or
in anticipation of, any unusual or extraordinary corporate item, transaction, event or development
affecting the Company or any of its Subsidiaries, divisions or operating units (to the extent
applicable to such Performance Goal) or (B) in recognition of, or in anticipation of, any other
unusual or nonrecurring events affecting the Company or any of its Subsidiaries, divisions or
operating units (to the extent applicable to such Performance Goal), or the financial statements of
the Company or any of its Subsidiaries, divisions or operating units (to the extent applicable to
such Performance Goal), or of changes in applicable rules, rulings, regulations or other
requirements of any governmental body or securities exchange, accounting principles, law or
business conditions.



(vi) Payment of Performance Compensation Awards. (A) Condition to Receipt of
Payment. A Participant must be employed by the Company or one of its Subsidiaries on the last
day of a Performance Period to be eligible for payment in respect of a Performance Compensation
Award for such Performance Period. Notwithstanding the foregoing, in the discretion of the
Committee, Performance Compensation Awards may be paid to Participants who have retired or whose
employment has terminated prior to the last day of the Performance Period for which a Performance
Compensation Award is made, or to the designee or estate of a Participant who died prior to the
last day of a Performance Period; provided, however, that if the Committee so elects and such
election causes the award to fail to qualify as “qualified performance-based compensation” under
Section 162(m) of the Code it shall no longer be treated as a Performance Compensation Award under
the Plan.



(B) Limitation. Except as otherwise permitted by Section 162(m) of the Code for
“qualified performance-based compensation”, a Participant shall be eligible to receive payments in
respect of a Performance Compensation Award only to the extent that (1) the Performance Goals for
the relevant Performance Period are achieved and certified by the Committee in accordance with
Section 6(i)(vi)(C) and (2) the Performance Formula as applied against such Performance Goals
determines that all or some portion of such Participant’s Performance Compensation Award has been
earned for such Performance Period.



(C) Certification. Following the completion of a Performance Period, the Committee
shall meet to review and certify in writing whether, and to what extent, the Performance Goals for
the Performance Period have been achieved and, if so, to calculate and certify in writing that
amount of the Performance Compensation Awards earned for the period based upon the Performance
Formula. (For purposes of this certification, approved minutes of the Committee meeting in which
the certification is made are treated as a written certification.) The Committee shall then
determine the actual size of each Participant’s Performance Compensation Award for the Performance
Period and, in so doing, may apply negative discretion as authorized by Section 6(i)(vi)(D).


 


13









 





(D) Negative Discretion. In determining the actual size of an individual Performance
Compensation Award for a Performance Period, the Committee may, in its sole and plenary discretion,
reduce or eliminate the amount of the Award earned in the Performance Period, even if
applicable Performance Goals have been attained.



(E) Discretion. Except as otherwise permitted by Section 162(m) of the Code for
“qualified performance-based compensation”, in no event shall any discretionary authority granted
to the Committee by the Plan be used to (1) grant or provide payment in respect of Performance
Compensation Awards for a Performance Period if the Performance Goals for such Performance Period
have not been attained, (2) increase a Performance Compensation Award for any Participant at any
time after the first 90 days of the Performance Period (or, if shorter, the maximum period allowed
under Section 162(m) of the Code) or (3) increase a Performance Compensation Award above the
maximum amount payable under Section 4(a) of the Plan.



(F) Timing of Award Payments. The Performance Compensation Awards granted for a
Performance Period shall be paid to Participants as soon as administratively possible following
completion of the certifications required by Section 6(i)(vi)(C), unless the Committee shall
determine that any Performance Compensation Award shall be deferred.



(G) Form of Payment. In the case of any Performance Compensation Award other than a
Restricted Share, RSU or other equity-based Award that is subject to performance-based vesting
conditions, such Performance Compensation Award shall be payable, in the discretion of the
Committee, in cash or in Restricted Shares, RSUs or fully vested Shares of equivalent value and
shall be paid on such terms as determined by the Committee in its discretion. Any Restricted Shares
and RSUs shall be subject to the terms of this Plan (or any successor equity-compensation plan) and
any applicable Award Agreement. The number of Restricted Shares, RSUs or Shares that is equivalent
in value to a dollar amount shall be determined in accordance with a methodology specified by the
Committee within the first 90 days of the relevant Performance Period (or, if shorter, within the
maximum period allowed under Section 162(m) of the Code).



Section 7. Amendment and Termination.




(a) Amendments to the Plan. Subject to any applicable law or government regulation, to
any requirement that must be satisfied if the Plan is intended to be a stockholder-approved plan
for purposes of Section 162(m) of the Code and to the rules of NASDAQ or any successor exchange or
quotation system on which the Shares may be listed or quoted, the Plan may be amended, modified or
terminated by the Board without the approval of the stockholders of the Company, except that
stockholder approval shall be required for any amendment that would (i) increase the maximum number
of Shares for which Awards may be granted under the Plan or increase the maximum number of Shares
that may be delivered pursuant to Incentive Stock Options granted under the Plan; provided,
however, that any adjustment under Section 4(b) shall not constitute an increase for
purposes of this Section 7(a), or (ii) change the class of employees or other individuals eligible
to participate in the Plan. No amendment, modification or termination of the Plan may, without the
consent of the Participant to whom any Award shall theretofor have been granted, materially and
adversely affect the rights of such Participant (or his or her transferee) under such Award, unless
otherwise provided by the Committee in the applicable Award Agreement. For purposes of the
preceding sentence and Section 7(b), any change to the date on which an Award is included in the
Participant’s income and/or wages is not considered to adversely affect the rights of a
Participant.


 


14









 





(b) Amendments to Awards. The Committee may waive any conditions or rights under,
amend any terms of, or alter, suspend, discontinue, cancel or terminate any Award theretofor
granted, prospectively or retroactively; provided, however, that, except as set
forth in the Plan, unless otherwise provided by the Committee in the applicable Award Agreement,
any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination
that would materially and adversely impair the rights of any Participant or any holder or
beneficiary of any Award theretofor granted shall not to that
extent be effective without the consent of the applicable Participant, holder or beneficiary.
Notwithstanding the preceding sentence, in no event may any Option or SAR (i) be amended to
decrease the Exercise Price thereof, (ii) be cancelled at a time when its Exercise Price exceeds
the Fair Market Value of the underlying Shares in exchange for another Option or SAR or any
Restricted Share, RSU, other equity-based Award, award under any other equity-compensation plan or
any cash payment or (iii) be subject to any action that would be treated, for accounting purposes,
as a “repricing” of such Option or SAR, unless such amendment, cancellation or action is approved
by the Company’s stockholders. For the avoidance of doubt, an adjustment to the Exercise Price of
an Option or SAR that is made in accordance with Section 4(b) or Section 8 shall not be considered
a reduction in the Exercise Price or a “repricing” of such Option or SAR.



(c) Adjustment of Awards Upon the Occurrence of Certain Unusual or Nonrecurring
Events. Subject to Section 6(i)(v) and the penultimate sentence of Section 7(b), the Committee
is hereby authorized to 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(b) or the occurrence of a Change of Control) affecting the Company,
any Subsidiary or the financial statements of the Company or any Subsidiary, or of changes in
applicable rules, rulings, regulations or other requirements of any governmental body or securities
exchange, accounting principles or law (i) whenever the Committee, in its sole and plenary
discretion, determines that such adjustments are appropriate or desirable, including, without
limitation, providing for a substitution or assumption of Awards, accelerating the exercisability
of, lapse of restrictions on, or termination of, Awards or providing for a period of time for
exercise prior to the occurrence of such event, (ii) if deemed appropriate or desirable by the
Committee, in its sole and plenary discretion, by providing for a cash payment to the holder of an
Award in consideration for the cancellation of such Award, including, in the case of an outstanding
Option or SAR, a cash payment to the holder of such Option or SAR in consideration for the
cancellation of such Option or SAR in an amount equal to the excess, if any, of the Fair Market
Value (as of a date specified by the Committee) of the Shares subject to such Option or SAR over
the aggregate Exercise Price of such Option or SAR and (iii) if deemed appropriate or desirable by
the Committee, in its sole and plenary discretion, by canceling and terminating any Option or SAR
having a per Share Exercise Price equal to, or in excess of, the Fair Market Value of a Share
subject to such Option or SAR without any payment or consideration therefor.



Section 8. Change of Control.




Notwithstanding any provision in this Plan, unless otherwise specified in the Award Agreement,
in the event of a Change of Control, in the Committee’s discretion, either (1) (a) all outstanding
Options and SARs shall immediately become exercisable in full, (b) the restriction period and any
Performance Criteria applicable to any outstanding Restricted Share or RSU shall lapse, and (c)
there shall be substituted for each Share available under this Plan, whether or not then subject to
an outstanding award, the number and class of shares into which each outstanding Share shall be
converted pursuant to such Change of Control, if any; provided that in the event of any such
substitution, the Exercise Price per share in the case of an Option or SAR shall be appropriately
adjusted by the Committee (whose determination shall be final, binding and conclusive), such
adjustments to be made in the case of outstanding Options and SARs without an increase in the
aggregate Exercise Price, or (2) each outstanding award shall be surrendered to the Company by the
holder thereof, and each such award shall immediately be canceled by the Company, and the holder
shall receive, within ten days of the occurrence of a Change of Control, a cash payment from the
Company in an amount equal to (a) in the case of an Option or SAR, the number of Common Shares then
subject to such Option or SAR, multiplied by the excess, if any, of the Fair Market Value of a
Share on the date of occurrence of the Change of Control over the Exercise Price per Share subject
to the Option or SAR, and (b) in the case of a Restricted Share or RSU, the number of Shares or the
number of RSUs, as the case may be, then subject to such award, multiplied by the greater of (A)
the highest per share price offered to stockholders of the Company in any transaction whereby the
Change of Control takes place or (B) the Fair Market Value of a Share on the date of occurrence of
the Change of Control.


 


15









 





Section 9. General Provisions.




(a) Nontransferability. Except as otherwise specified in the applicable Award
Agreement, during the Participant’s lifetime each Award (and any rights and obligations thereunder)
shall be exercisable only by the Participant, or, if permissible under applicable law, by the
Participant’s legal guardian or representative, and no Award (or any rights and obligations
thereunder) may be assigned, alienated, pledged, attached, sold or otherwise transferred or
encumbered by a Participant otherwise than by will or by the laws of descent and distribution, and
any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall
be void and unenforceable against the Company or any Subsidiary; provided that (i) the
designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment,
sale, transfer or encumbrance and (ii) the Board or the Committee may permit further
transferability, on a general or specific basis, and may impose conditions and limitations on any
permitted transferability; provided, however, that Incentive Stock Options granted
under the Plan shall not be transferable in any way that would violate Section 1.422-2(a)(2) of the
Treasury Regulations. All terms and conditions of the Plan and all Award Agreements shall be
binding upon any permitted successors and assigns. Upon any attempt to so sell, transfer, assign,
pledge, hypothecate, encumber or otherwise dispose of any Award (except as permitted pursuant to
the Plan and the Award Agreement), such award and all rights thereunder shall immediately become
null and void.



(b) No Rights to Awards. No Participant or other person shall have any claim to be
granted any Award, and there is no obligation for uniformity of treatment of Participants or
holders or beneficiaries of Awards. The terms and conditions of Awards and the Committee’s
determinations and interpretations with respect thereto need not be the same with respect to each
Participant and may be made selectively among Participants, whether or not such Participants are
similarly situated.



(c) Restrictions on Shares. Each Award shall be subject to the requirement that if at
any time the Company determines that the listing, registration or qualification of the Shares
subject to such Award upon any securities market or under any law, or the consent or approval of
any governmental body, or the taking of any other action is necessary or desirable as a condition
of, or in connection with, the exercise or settlement of such award or the delivery of shares
thereunder, such award shall not be exercised or settled and such shares shall not be delivered
unless such listing, registration, qualification, consent, approval or other action shall have been
effected or obtained, free of any conditions not acceptable to the Company. The Company may require
that certificates evidencing Common Shares delivered pursuant to any award made under this Plan
bear a legend indicating that the sale, transfer or other disposition thereof by the holder is
prohibited except in compliance with the Securities Act of 1933, as amended, and the rules and
regulations thereunder.



(d) Withholding. The Company shall have the right to require, prior to the issuance
or delivery of any Shares or the payment of any cash pursuant to an Award, payment by the holder of
such award of any Federal, state, local or other taxes which may be required to be withheld or paid
in connection with such award, and, if the holder of such Award fails to make such required
payment, the Award may, in the discretion of the Company, be forfeited. The Company or any
Subsidiary shall have the right and is hereby authorized to withhold from any Award, from any
payment due or transfer made under any Award or under the Plan or from any compensation or other
amount owing to a Participant, the amount (in cash, Shares, other securities, other Awards or other
property) of any applicable withholding taxes in respect of an Award, its exercise or any payment
or transfer under an Award or under the Plan and to take such other action as may be necessary in
the opinion of the Committee or the Company to satisfy all obligations for the payment of such
taxes. The Participant shall remain responsible at all times for paying any federal, state, and
local income or employment tax due with respect to any Award, and neither the Company nor any
Subsidiary shall be liable for any interest or penalty that a Participant incurs by failing to make
timely payments of tax.


 


16









 





(e) Section 409A. (i) It is intended that the provisions of the Plan comply with
Section 409A of the Code, and all provisions of the Plan shall be construed and interpreted in a
manner consistent with
the requirements for avoiding taxes or penalties under Section 409A of the Code. In that
regard if the application of Section 8 causes an Award determined by the Committee to be
nonqualified deferred compensation (within the meaning of Section 409A of the Code) to become
payable on a Change of Control which is not a permissible payment event or time (as described in §
1.409A-3) then for purposes of payment of such Award, no Change of Control shall be deemed to have
occurred with respect to that Award unless and until there occurs a change in the ownership or
effective control of the Company, or in the ownership of a substantial portion of the assets of the
Company (within the meaning in accordance with § 1.409A-3(i)(5)).



(ii) No Participant or creditors or beneficiaries of a Participant shall have the right to
subject any deferred compensation (within the meaning of Section 409A of the Code) payable under
the Plan to any anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment, except as required by applicable law. Except as permitted under Section
409A of the Code, any deferred compensation (within the meaning of Section 409A of the Code)
payable to any Participant or for the benefit of any Participant under the Plan may not be reduced
by, or offset against, any amount owing by any such Participant to the Company or any of its
Subsidiaries.



(iii) If an Award is subject to Section 409A of the Code and payment is due upon a termination
of employment, payment shall be made upon a separation from service (within the meaning of Section
409A of the Code).



(iv) If, at the time of a Participant’s separation from service (within the meaning of Section
409A of the Code), (A) such Participant shall be a specified employee (within the meaning of
Section 409A of the Code) and (B) the Company shall make a good faith determination that an amount
payable pursuant to an Award constitutes nonqualified deferred compensation (within the meaning of
Section 409A of the Code) the payment of which is required to be delayed pursuant to the six-month
delay rule set forth in Section 409A of the Code in order to avoid taxes or penalties under Section
409A of the Code, then the Company shall not pay such amount on the otherwise scheduled payment
date but shall instead pay it, without interest, on the first day of the seventh month following
such separation from service.



(v) Notwithstanding any provision of the Plan to the contrary, the Company reserves the right
to make amendments to any Award as the Company deems necessary or desirable to avoid the imposition
of taxes or penalties under Section 409A of the Code. In any case, a Participant shall be solely
responsible and liable for the satisfaction of all taxes and penalties that may be imposed on such
Participant or for such Participant’s account in connection with an Award (including any taxes and
penalties under Section 409A of the Code), and neither the Company nor any of its Subsidiaries
shall have any obligation to indemnify or otherwise hold such Participant harmless from any or all
of such taxes or penalties.



(f) Award Agreements. Each Award hereunder shall be evidenced by an Award Agreement,
which shall be delivered to the Participant and shall specify the terms and conditions of the Award
and any rules applicable thereto, including, but not limited to, the effect on such Award of the
death, disability or termination of employment or service of a Participant and the effect, if any,
of such other events as may be determined by the Committee.



(g) No Limit on Other Compensation Arrangements. Nothing contained in the Plan shall
prevent the Company or any Subsidiaries from adopting or continuing in effect other compensation
arrangements, which may, but need not, provide for the grant of options, restricted stock, shares,
other types of equity-based awards (subject to stockholder approval if such approval is required)
and cash incentive awards, and such arrangements may be either generally applicable or applicable
only in specific cases; provided, however, that unless specifically stated otherwise in the Award
documentation, equity grants of the Company to any individual eligible for grants under this Plan
shall be presumed to have been made under this Plan.


 


17









 





(h) No Right to Employment. The grant of an Award shall not be construed as giving a
Participant the right to be retained as a director, officer, employee or consultant of or to the
Company or any Subsidiary, nor shall it be construed as giving a Participant any rights to
continued service on the Board. Further, the Company or a Subsidiary may at any time dismiss a
Participant from employment or discontinue any directorship or consulting relationship, free from
any liability or any claim under the Plan, unless otherwise expressly provided in the Plan or in
any Award Agreement.



(i) No Rights as Stockholder. No Participant or holder or beneficiary of any Award
shall have any rights as a stockholder with respect to any Shares to be distributed under the Plan
until he or she has become the holder of such Shares. In connection with each grant of Restricted
Shares, except as provided in the applicable Award Agreement, the Participant shall be entitled to
the rights of a stockholder (including the right to vote) in respect of such Restricted Shares.
Except as otherwise provided in Section 4(b), Section 7(c) or the applicable Award Agreement, no
adjustments shall be made for dividends or distributions on (whether ordinary or extraordinary, and
whether in cash, Shares, other securities or other property), or other events relating to, Shares
subject to an Award for which the record date is prior to the date such Shares are delivered.



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



(k) Severability. If any provision of the Plan or any Award is or becomes or is
deemed to be invalid, illegal or unenforceable in any jurisdiction or as to any person or Award, or
would disqualify the Plan or any Award under any law deemed applicable by the Committee, such
provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot
be construed or deemed amended without, in the determination of the Committee, materially altering
the intent of the Plan or the Award, such provision shall be construed or deemed stricken as to
such jurisdiction, person or Award and the remainder of the Plan and any such Award shall remain in
full force and effect.



(l) Other Laws; Restrictions on Transfer of Shares. The Committee may refuse to issue
or transfer any Shares or other consideration under an Award if, acting in its sole and plenary
discretion, it determines that the issuance or transfer of such Shares or such other consideration
might violate any applicable law or regulation or entitle the Company to recover the same under
Section 16(b) of the Exchange Act, and any payment tendered to the Company by a Participant, other
holder or beneficiary in connection with the exercise of such Award shall be promptly refunded to
the relevant Participant, holder or beneficiary. Without limiting the generality of the foregoing,
no Award granted hereunder shall be construed as an offer to sell securities of the Company, and no
such offer shall be outstanding, unless and until the Committee in its sole and plenary discretion
has determined that any such offer, if made, would be in compliance with all applicable
requirements of the U.S. Federal and any other applicable securities laws.



(m) No Trust or Fund Created. Neither the Plan nor any Award shall create or be
construed to create a trust or separate fund of any kind or a fiduciary relationship between the
Company or any Subsidiary, on one hand, and a Participant or any other person, on the other hand.
To the extent that any person acquires a right to receive payments from the Company or any
Subsidiary pursuant to an Award, such right shall be no greater than the right of any unsecured
general creditor of the Company or such Subsidiary.



(n) No Fractional Shares. No fractional Shares shall be issued or delivered pursuant
to the Plan or any Award, and the Committee shall determine whether cash, other securities or other
property shall be paid or transferred in lieu of any fractional Shares or whether such fractional
Shares or any rights thereto shall be canceled, terminated or otherwise eliminated.


 


18









 





(o) Requirement of Consent and Notification of Election Under Section 83(b) of the
Code or Similar Provision. No election under Section 83(b) of the Code (to include in gross
income in the year of transfer the amounts specified in Section 83(b) of the Code) or under a
similar provision of law may be made unless expressly permitted by the terms of the applicable
Award Agreement or by action of the Committee in writing prior to the making of such election. If
an Award recipient, in connection with the acquisition of Shares under the Plan or otherwise, is
expressly permitted under the terms of the applicable Award Agreement or by such Committee action
to make such an election and the Participant makes the election, the Participant shall notify the
Committee of such election within ten days of filing notice of the election with the IRS or other
governmental authority, in addition to any filing and notification required pursuant to regulations
issued under Section 83(b) of the Code or any other applicable provision.



(p) Requirement of Notification Upon Disqualifying Disposition Under Section 421(b) of the
Code. If any Participant shall make any disposition of Shares delivered pursuant to the
exercise of an Incentive Stock Option under the circumstances described in Section 421(b) of the
Code (relating to certain disqualifying dispositions) or any successor provision of the Code, such
Participant shall notify the Company of such disposition within ten days of such disposition.



(q) Headings. Headings are given to the Sections and subsections of the Plan solely
as a convenience to facilitate reference. Such headings shall not be deemed in any way material or
relevant to the construction or interpretation of the Plan or any provision thereof.



(r) Designation of Beneficiary. (i) If permitted by the Company, a Participant may
file with the Committee a written designation of one or more persons as such Participant’s
beneficiary or beneficiaries (both primary and contingent) in the event of the Participant’s death.
To the extent an outstanding Option or SAR granted under this Plan is exercisable after the
Participant’s death, such beneficiary or beneficiaries shall be entitled to exercise such Option or
SAR pursuant to procedures prescribed by the Committee.



(ii) Each beneficiary designation shall become effective only when filed in writing with the
Committee during the Participant’s lifetime on a form prescribed by the Committee. The spouse of a
married Participant domiciled in a community property jurisdiction shall join in any designation of
a beneficiary other than such spouse. The filing with the Committee of a new beneficiary
designation shall cancel all previously filed beneficiary designations.



(iii) If a Participant fails to designate a beneficiary, or if all designated beneficiaries of
a Participant predecease the Participant, then each outstanding option under this Plan held by such
Participant at the time of the Participant’s death, to the extent then or thereafter exercisable,
may be exercised by such Participant’s executor, administrator, legal representative or similar
person, or as otherwise prescribed under the laws of descent and distribution.



Section 10. Term of the Plan.




(a) Effective Date. The Plan shall be effective as of the date of its adoption by the
Board, provided that the stockholders of the Company approve the Plan within 12 months after its
adoption. If this Plan is not approved by the stockholders of the Company, this Plan and any
awards granted under this Plan shall be null and void.



(b) Expiration Date. No Award shall be granted under the Plan after the tenth
anniversary of the date the Board adopts the Plan under Section 10(a). Unless otherwise expressly
provided in the Plan or in an applicable Award Agreement, any Award granted hereunder, and the
authority of the Board or the Committee to amend, alter, adjust, suspend, discontinue or terminate
any such Award or to waive any conditions or rights under any such Award, shall nevertheless
continue thereafter.




 


19