exv10w1






Exhibit 10.1




DRAFT — July 22, 2008




ALKERMES, INC.




2008 STOCK OPTION AND INCENTIVE PLAN





			
	SECTION 1.	 	GENERAL PURPOSE OF THE PLAN; DEFINITIONS





     The name of the plan is the Alkermes, Inc. 2008 Stock Option and Incentive Plan (the “Plan”).
The purpose of the Plan is to encourage and enable the officers, employees, Non-Employee Directors
and other key persons (including consultants and prospective employees) of Alkermes, Inc. (the
“Company”) and its Subsidiaries upon whose judgment, initiative and efforts the Company largely
depends for the successful conduct of its business to acquire a proprietary interest in the
Company. It is anticipated that providing such persons with a direct stake in the Company’s
welfare will assure a closer identification of their interests with those of the Company and its
stockholders, thereby stimulating their efforts on the Company’s behalf and strengthening their
desire to remain with the Company.



     The following terms shall be defined as set forth below:



     “Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.



     “Administrator” means the compensation committee of the Board or a similar committee
performing the functions of the compensation committee and which is comprised of not less than two
Non-Employee Directors who are independent.



     “Award” or “Awards,” except where referring to a particular category of grant under the Plan,
shall include Incentive Stock Options, Non-Qualified Stock Options, Restricted Stock Awards,
Restricted Stock Unit Awards, Cash-Based Awards and Performance Share Awards.



     “Award Certificate” means a written or electronic certificate setting forth the terms and
provisions applicable to an Award granted under the Plan. Each Award Certificate is subject to the
terms and conditions of the Plan.



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



     “Cash-Based Award” means an Award entitling the recipient to receive a cash-denominated
payment.



     “Code” means the Internal Revenue Code of 1986, as amended, and any successor Code, and
related rules, regulations and interpretations.



     “Covered Employee” means an employee who is a “Covered Employee” within the meaning of Section
162(m) of the Code.



     “Effective Date” means the date on which the Plan is approved by stockholders as set forth in
Section 18.



 









 





     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder.



     “Fair Market Value” of the Stock on any given date for purposes of the Plan, unless otherwise
required by any applicable provision of the Code or any regulations issued thereunder, means the
fair market value of the Stock determined in good faith by the Administrator; provided, however,
that if the Stock is admitted to quotation on the National Association of Securities Dealers
Automated Quotation System (“NASDAQ”), NASDAQ Global Market or another national securities
exchange, the determination shall be made by reference to the closing price reported by NASDAQ or
such other exchange. If the market is closed on such date, the determination shall be made by
reference to the last date preceding such date for which the market is open.



     “Incentive Stock Option” means any Stock Option designated and qualified as an “incentive
stock option” as defined in Section 422 of the Code.



     “Non-Employee Director” means a member of the Board who is not also an employee of the Company
or any Subsidiary.



     “Non-Qualified Stock Option” means any Stock Option that is not an Incentive Stock Option.



     “Option” or “Stock Option” means any option to purchase shares of Stock granted pursuant to
Section 5.



     “Performance-Based Award” means any Restricted Stock Award, Restricted Stock Unit Award,
Performance Share Award or Cash-Based Award granted to a Covered Employee that is intended to
qualify as “performance-based compensation” under Section 162(m) of the Code and the regulations
promulgated thereunder.



     “Performance Criteria” means the criteria that the Administrator selects for purposes of
establishing the Performance Goal or Performance Goals for an individual for a Performance Cycle.
The Performance Criteria (which shall be applicable to the organizational level specified by the
Administrator, including, but not limited to, the Company or a unit, division, group, or Subsidiary
of the Company) that will be used to establish Performance Goals are limited to the following:
earnings before interest, taxes, depreciation and amortization, net income (loss) (either before or
after interest, taxes, depreciation and/or amortization), changes in the market price of the Stock,
economic value-added, initiation or completion of clinical trials, results of clinical trials, drug
development or commercialization milestones, collaboration milestones, operational measures
including production capacity and capability, hiring and retention of key managers, expense
management, capital raising transactions, sales or revenue, acquisitions or strategic transactions,
operating income (loss), cash flow (including, but not limited to, operating cash flow and free
cash flow), return on capital, assets, equity, or investment, stockholder returns, gross or net
profit levels, operating margins, earnings (loss) per share of Stock and sales
or market shares, any of which may be measured either in absolute terms or as compared to any
incremental increase or as compared to results of a peer group.



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     “Performance Cycle” means one or more periods of time, which may be of varying and overlapping
durations, as the Administrator may select, over which the attainment of one or more Performance
Criteria will be measured for the purpose of determining a grantee’s right to and the payment of a
Restricted Stock Award, Restricted Stock Unit Award, Performance Share Award or Cash-Based Award.
Each such period shall not be less than 12 months.



     “Performance Goals” means the specific goals established in writing by the Administrator for a
Performance Cycle based upon the Performance Criteria.



     “Performance Share Award” means an Award entitling the recipient to acquire shares of Stock
upon the attainment of specified Performance Goals.



     “Restricted Stock Award” means an Award entitling the recipient to acquire, at such purchase
price (which may be zero) as determined by the Administrator, shares of Stock subject to such
restrictions and conditions as the Administrator may determine at the time of grant.



     “Restricted Stock Unit Award” means an Award of phantom stock units to a grantee.



     “Sale Event” shall mean (i) the sale of all or substantially all of the assets of the Company
on a consolidated basis to an unrelated person or entity, (ii) a merger, reorganization or
consolidation in which the outstanding shares of Stock are converted into or exchanged for
securities of the successor entity and the holders of the Company’s outstanding voting power
immediately prior to such transaction do not own a majority of the outstanding voting power of the
successor entity immediately upon completion of such transaction, or (iii) the sale of all of the
Stock of the Company to an unrelated person or entity.



     “Sale Price” means the value as determined by the Administrator of the consideration payable,
or otherwise to be received by stockholders, per share of Stock pursuant to a Sale Event.



     “Section 409A” means Section 409A of the Code and the regulations and other guidance
promulgated thereunder.



     “Stock” means the Common Stock, par value $.01 per share, of the Company, subject to
adjustments pursuant to Section 3.



     “Subsidiary” means any corporation or other entity (other than the Company) in which the
Company has at least a 50 percent interest, either directly or indirectly.



     “Ten Percent Owner” means an employee who owns or is deemed to own (by reason of the
attribution rules of Section 424(d) of the Code) more than 10 percent of the combined voting power
of all classes of stock of the Company or any parent or subsidiary corporation.




			
	SECTION 2.	 	ADMINISTRATION OF PLAN; ADMINISTRATOR AUTHORITY TO SELECT GRANTEES AND DETERMINE
AWARDS





     (a) Administration of Plan. The Plan shall be administered by the Administrator.



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     (b) Powers of Administrator. The Administrator shall have the power and authority to
grant Awards consistent with the terms of the Plan, including the power and authority:




     (i) to select the individuals to whom Awards may from time to time be granted;




     (ii) to determine the time or times of grant, and the extent, if any, of Incentive Stock
Options, Non-Qualified Stock Options, Restricted Stock Awards, Restricted Stock Unit Awards,
Cash-Based Awards and Performance Share Awards, or any combination of the foregoing, granted
to any one or more grantees;




     (iii) to determine the number of shares of Stock to be covered by any Award;




     (iv) to determine and modify from time to time the terms and conditions, including
restrictions, not inconsistent with the terms of the Plan, of any Award, which terms and
conditions may differ among individual Awards and grantees, and to approve the form of written
(or electronic) instruments evidencing the Awards;




     (v) subject to the provisions of Sections 6(d) and 7(a), to accelerate at any time the
exercisability or vesting of all or any portion of any Award;




     (vi) subject to the provisions of Section 5(a)(ii), to extend at any time the period in
which Stock Options may be exercised; and




     (vii) at any time to adopt, alter and repeal such rules, guidelines and practices for
administration of the Plan and for its own acts and proceedings as it shall deem advisable; to
interpret the terms and provisions of the Plan and any Award (including related written and
electronic instruments); to make all determinations it deems advisable for the administration
of the Plan; to decide all disputes arising in connection with the Plan; and to otherwise
supervise the administration of the Plan.



     All decisions and interpretations of the Administrator shall be binding on all persons,
including the Company and Plan grantees.



     (c) Delegation of Authority to Grant Options. Subject to applicable law, the
Administrator, in its discretion, may delegate to a subcommittee comprised of one or more members
of the Board of the Company all or part of the Administrator’s authority and duties with respect to
the granting of Options to employees who are not subject to the reporting and other provisions of
Section 16 of the Exchange Act. Any such delegation by the Administrator shall include a
limitation as to the amount of Options that may be granted during the period of the delegation and
shall contain guidelines as to the determination of the exercise price and the vesting criteria.
The Administrator may revoke or amend the terms of a delegation at any time
but such action shall not invalidate any prior actions of the Administrator’s delegate or
delegates that were consistent with the terms of the Plan.



     (d) Award Certificates. Awards under the Plan shall be evidenced by Award
Certificates that set forth the terms, conditions and limitations for each Award which may
include, without limitation, the term of an Award and the provisions applicable in the event employment or
service terminates.



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     (e) Indemnification. Neither the Board nor the Administrator, nor any member of
either or any delegate thereof, shall be liable for any act, omission, interpretation, construction
or determination made in good faith in connection with the Plan, and the members of the Board and
the Administrator (and any delegate thereof) shall be entitled in all cases to indemnification and
reimbursement by the Company in respect of any claim, loss, damage or expense (including, without
limitation, reasonable attorneys’ fees) arising or resulting therefrom to the fullest extent
permitted by law and/or under the Company’s articles or bylaws or any directors’ and officers’
liability insurance coverage which may be in effect from time to time and/or any indemnification
agreement between such individual and the Company.



     (f) Foreign Award Recipients. Notwithstanding any provision of the Plan to the
contrary, in order to comply with the laws in other countries in which the Company and its
Subsidiaries operate or have employees or other individuals eligible for Awards, the Administrator,
in its sole discretion, shall have the power and authority to: (i) determine which Subsidiaries
shall be covered by the Plan; (ii) determine which individuals outside the United States are
eligible to participate in the Plan; (iii) modify the terms and conditions of any Award granted to
individuals outside the United States to comply with applicable foreign laws; (iv) establish
subplans and modify exercise procedures and other terms and procedures, to the extent the
Administrator determines such actions to be necessary or advisable (and such subplans and/or
modifications shall be attached to this Plan as appendices); provided, however, that no such
subplans and/or modifications shall increase the share limitations contained in Section 3(a)
hereof; and (v) take any action, before or after an Award is made, that the Administrator
determines to be necessary or advisable to obtain approval or comply with any local governmental
regulatory exemptions or approvals. Notwithstanding the foregoing, the Administrator may not take
any actions hereunder, and no Awards shall be granted, that would violate the Exchange Act or any
other applicable United States securities law, the Code, or any other applicable United States
governing statute or law.




			
	SECTION 3.	 	STOCK ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION





     (a) Stock Issuable. The maximum number of shares of Stock reserved and available for
issuance under the Plan shall be the sum of (i) 6,400,000 shares, plus (ii) the number of shares of
Stock available for grant on the Effective Date under the Alkermes, Inc. 1999 Stock Option Plan,
the Alkermes, Inc. 2002 Restricted Stock Award Plan and the Alkermes, Inc. 2006 Stock Option Plan
For Non-Employee Directors (together, the “Old Stock Plans”), plus (iii) the number of shares of
Stock underlying any grants pursuant to the Old Stock Plans that are forfeited, cancelled,
repurchased or are terminated (other than by exercise) from and after the Effective Date, plus (iv)
the number of shares of Stock underlying any grants under this Plan that are forfeited, cancelled,
repurchased or are terminated (other than by exercise). For purposes of
this limitation, the shares of Stock underlying any Awards that are forfeited, canceled or
otherwise terminated (other than by exercise) shall be added back to the shares of Stock available
for issuance under the Plan. Shares tendered or held back upon exercise of an Option or settlement
of an Award to cover the exercise price or tax withholding shall not be available for future
issuance under the Plan. In addition, upon net exercise of Options, the gross number of



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shares
exercised shall be deducted from the total number of shares remaining available for issuance under
the Plan. Subject to such overall limitations, shares of Stock may be issued up to such maximum
number pursuant to any type or types of Award; provided, however, that Stock Options with respect
to no more than 4,000,000 shares of Stock may be granted to any one individual grantee during any
one calendar year period and no more than 6,400,000 shares of the Stock may be issued in the form
of Incentive Stock Options. The shares available for issuance under the Plan may be authorized but
unissued shares of Stock or shares of Stock reacquired by the Company.



     (b) Effect of Awards. The grant of any full value Award (i.e., an Award other than an
Option) shall be deemed, for purposes of determining the number of shares of Stock available for
issuance under Section 3(a), as an Award of two shares of Stock for each such share of Stock
actually subject to the Award and shall be treated similarly if returned to reserve status when
forfeited or canceled as provided in Section 3(a). The grant of an Option shall be deemed, for
purposes of determining the number of shares of Stock available for issuance under Section 3(a), as
an Award for one share of Stock for each such share of Stock actually subject to the Award.



     (c) Changes in Stock. Subject to Section 3(d) hereof, if, as a result of any
reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock
split or other similar change in the Company’s capital stock, the outstanding shares of Stock are
increased or decreased or are exchanged for a different number or kind of shares or other
securities of the Company, or additional shares or new or different shares or other securities of
the Company or other non-cash assets are distributed with respect to such shares of Stock or other
securities, or, if, as a result of any merger or consolidation, sale of all or substantially all of
the assets of the Company, the outstanding shares of Stock are converted into or exchanged for
securities of the Company or any successor entity (or a parent or subsidiary thereof), the
Administrator shall make an appropriate or proportionate adjustment in (i) the maximum number of
shares reserved for issuance under the Plan, including the maximum number of shares that may be
issued in the form of Incentive Stock Options, (ii) the number of Stock Options that can be granted
to any one individual grantee and the maximum number of shares that may be granted under a
Performance-Based Award, (iii) the number and kind of shares or other securities subject to any
then outstanding Awards under the Plan, (iv) the repurchase price, if any, per share subject to
each outstanding Restricted Stock Award, (v) the number of Stock Options automatically granted to
Non-Employee Directors, and (vi) the price for each share subject to any then outstanding Stock
Options under the Plan, without changing the aggregate exercise price (i.e., the exercise price
multiplied by the number of Stock Options) as to which such Stock Options remain exercisable. The
Administrator shall also make equitable or proportionate adjustments in the number of shares
subject to outstanding Awards and the exercise price and the terms of outstanding Awards to take
into consideration cash dividends paid other than in the ordinary course or any other extraordinary
corporate event. The adjustment by the Administrator shall be final, binding and conclusive. No
fractional shares of Stock shall be issued under the
Plan resulting from any such adjustment, but the Administrator in its discretion may make a
cash payment in lieu of fractional shares.



     (d) Mergers and Other Transactions. Except as the Administrator may otherwise specify
with respect to particular Awards in the relevant Award documentation, in the case of and subject
to the consummation of a Sale Event, all Options that are not exercisable



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immediately prior to the
effective time of the Sale Event shall become fully exercisable as of the effective time of the
Sale Event, all other Awards with time-based vesting, conditions or restrictions shall become fully
vested and nonforfeitable as of the effective time of the Sale Event and all other Awards with
conditions and restrictions relating to the attainment of performance goals may become vested and
nonforfeitable in connection with a Sale Event in the Administrator’s discretion. Upon the
effective time of the Sale Event, the Plan and all outstanding Awards granted hereunder shall
terminate, unless provision is made in connection with the Sale Event in the sole discretion of the
parties thereto for the assumption or continuation of Awards theretofore granted by the successor
entity, or the substitution of such Awards with new Awards of the successor entity or parent
thereof, with appropriate adjustment as to the number and kind of shares and, if appropriate, the
per share exercise prices, as such parties shall agree (after taking into account any acceleration
hereunder). In the event of such termination, the Company shall make or provide for a cash payment
to the grantees holding Options, in exchange for the cancellation thereof, in an amount equal to
the difference between (A) the Sale Price multiplied by the number of shares of Stock subject to
outstanding Options (to the extent then exercisable (after taking into account any acceleration
hereunder) at prices not in excess of the Sale Price) and (B) the aggregate exercise price of all
such outstanding Options.



     (e) Substitute Awards. The Administrator may grant Awards under the Plan in
substitution for stock and stock based awards held by employees, directors or other key persons of
another corporation in connection with the merger or consolidation of the employing corporation
with the Company or a Subsidiary or the acquisition by the Company or a Subsidiary of property or
stock of the employing corporation. The Administrator may direct that the substitute awards be
granted on such terms and conditions as the Administrator considers appropriate in the
circumstances. Any substitute Awards granted under the Plan shall not count against the share
limitation set forth in Section 3(a).




			
	SECTION 4.	 	ELIGIBILITY





     Grantees under the Plan will be such full or part-time officers and other employees,
Non-Employee Directors and key persons (including consultants and prospective employees) of the
Company and its Subsidiaries as are selected from time to time by the Administrator in its sole
discretion.




			
	SECTION 5.	 	STOCK OPTIONS





     Any Stock Option granted under the Plan shall be in such form as the Administrator may from
time to time approve.



     Stock Options granted under the Plan may be either Incentive Stock Options or Non-Qualified
Stock Options. Incentive Stock Options may be granted only to employees of the
Company or any Subsidiary that is a “subsidiary corporation” within the meaning of Section
424(f) of the Code. To the extent that any Option does not qualify as an Incentive Stock Option,
it shall be deemed a Non-Qualified Stock Option.



     (a) Stock Options Granted to Employees and Key Persons. The Administrator in its
discretion may grant Stock Options to eligible employees and key persons of the Company or



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any Subsidiary. Stock Options granted pursuant to this Section 5(a) shall be subject to the following
terms and conditions and shall contain such additional terms and conditions, not inconsistent with
the terms of the Plan, as the Administrator shall deem desirable. If the Administrator so
determines, Stock Options may be granted in lieu of cash compensation at the optionee’s election,
subject to such terms and conditions as the Administrator may establish.




     (i) Exercise Price. The exercise price per share for the Stock covered by a
Stock Option granted pursuant to this Section 5(a) shall be determined by the Administrator at
the time of grant but shall not be less than 100 percent of the Fair Market Value on the date
of grant. In the case of an Incentive Stock Option that is granted to a Ten Percent Owner,
the option price of such Incentive Stock Option shall be not less than 110 percent of the Fair
Market Value on the grant date.




     (ii) Option Term and Termination. The term of each Stock Option shall be fixed
by the Administrator, but no Stock Option shall be exercisable more than ten years after the
date the Stock Option is granted. In the case of an Incentive Stock Option that is granted to
a Ten Percent Owner, the term of such Stock Option shall be no more than five years from the
date of grant. Unless otherwise determined by the Administrator on or after the date of
grant, if a grantee’s employment (or other service relationship) with the Company and its
Subsidiaries terminates for any reason, the portion of each Stock Option held by the grantee
that is not then exercisable shall be immediately forfeited. Unless otherwise determined by
the Administrator on or after the date of grant, the grantee may exercise the exercisable
portion of his Stock Options until the earlier of three months after such date of termination
or the expiration of the stated term of such Stock Option.




     (iii) Exercisability; Rights of a Stockholder. Stock Options shall become
exercisable at such time or times, whether or not in installments, as shall be determined by
the Administrator at or after the grant date. The Administrator may at any time accelerate
the exercisability of all or any portion of any Stock Option. An optionee shall have the
rights of a stockholder only as to shares acquired upon the exercise of a Stock Option and not
as to unexercised Stock Options.




     (iv) Method of Exercise. Stock Options may be exercised in whole or in part, by
giving written or electronic notice of exercise to the Company’s delegate, specifying the
number of shares to be purchased. In the case of a Stock Option that is not an Incentive
Stock Option, unless otherwise determined by the Administrator on or after the date of grant,
payment of the purchase price must be made by reduction in the number of shares of Stock
issuable upon such exercise, based, in each case, on the Fair Market Value of the Stock on the
date of exercise. If the Administrator determines not to use the above payment method, then
payment of the purchase price may be made by one or more of the following methods:




     (A) In cash, by certified or bank check or other instrument acceptable to the
Administrator;




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     (B) Through the delivery (or attestation to the ownership) of shares of Stock owned by
the optionee. Such surrendered shares shall be valued at Fair Market Value on the exercise
date; or




     (C) By the optionee delivering to the Company a properly executed exercise notice
together with irrevocable instructions to a broker to promptly deliver to the Company cash
or a check payable and acceptable to the Company for the purchase price; provided that in
the event the optionee chooses to pay the purchase price as so provided, the optionee and
the broker shall comply with such procedures and enter into such agreements of indemnity and
other agreements as the Administrator shall prescribe as a condition of such payment
procedure.


Payment instruments will be received subject to collection. The transfer to the optionee on the
records of the Company or of the transfer agent of the shares of Stock to be purchased pursuant to
the exercise of a Stock Option will be contingent upon receipt from the optionee (or a purchaser
acting in his stead in accordance with the provisions of the Stock Option) by the Company of the
full purchase price for such shares and the fulfillment of any other requirements contained in the
Option Award Certificate or applicable provisions of laws (including the satisfaction of any
withholding taxes that the Company is obligated to withhold with respect to the optionee). In the
event an optionee chooses to pay the purchase price by previously-owned shares of Stock through the
attestation method, the number of shares of Stock transferred to the optionee upon the exercise of
the Stock Option shall be net of the number of attested shares. In the event that the Company
establishes, for itself or using the services of a third party, an automated system for the
exercise of Stock Options, such as a system using an internet website or interactive voice
response, then the paperless exercise of Stock Options may be permitted through the use of such an
automated system.





     (v) Annual Limit on Incentive Stock Options. To the extent required for
“incentive stock option” treatment under Section 422 of the Code, the aggregate Fair Market
Value (determined as of the time of grant) of the shares of Stock with respect to which
Incentive Stock Options granted under this Plan and any other plan of the Company or its
parent and subsidiary corporations become exercisable for the first time by an optionee during
any calendar year shall not exceed $100,000. To the extent that any Stock Option exceeds this
limit, it shall constitute a Non-Qualified Stock Option.



     (b) Stock Options Granted to Non-Employee Directors.




     (i) Automatic Grant of Options.




     (A) Upon becoming a member of the Board, each Non-Employee Director who is not then a
consultant to the Company shall be granted on such day a Non-Qualified Stock Option to
acquire 20,000 shares of Stock, plus an additional Stock Option to acquire a number of
shares of Stock equal to the product of 20,000 multiplied by a fraction, the numerator of
which equals the number of months remaining until the
next annual meeting of shareholders of the Company and the denominator of which equals
12.



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     (B) Each Non-Employee Director who is serving as Director of the Company on each annual
meeting of stockholders, beginning with the 2008 annual meeting, shall automatically be
granted on such day a Non-Qualified Stock Option to acquire 20,000 shares of Stock;
provided, however, that no grant shall be made to an individual who ceases to be a member of
the Board on such day.




     (C) The exercise price per share for the Stock covered by a Stock Option granted under
this Section 5(b) shall be equal to the Fair Market Value of the Stock on the date the Stock
Option is granted.




     (D) The Administrator, in its discretion, may grant additional Non-Qualified Stock
Options to Non-Employee Directors. Any such grant may vary among individual Non-Employee
Directors.




     (ii) Exercise; Termination.




     (A) Unless otherwise determined by the Administrator, an Option granted under Section
5(b) shall be exercisable in full six months after the grant date. An Option issued under
this Section 5(b) shall not be exercisable after the expiration of ten years from the date
of grant.




     (B) Options granted under this Section 5(b) may be exercised only by notice to the
Company (or the Company’s delegate) specifying the number of shares to be purchased.
Payment of the full purchase price of the shares to be purchased may be made by one or more
of the methods specified in Section 5(a)(iv). An optionee shall have the rights of a
stockholder only as to shares acquired upon the exercise of a Stock Option and not as to
unexercised Stock Options.




     (C) Unless otherwise determined by the Administrator on or after the date of grant, if
a Non-Employee Director’s relationship with the Company and its Subsidiaries terminates for
any reason, the portion of each Stock Option held by the Non-Employee Director that is not
then exercisable shall be immediately forfeited. Unless otherwise determined by the
Administrator on or after the date of grant, the Non-Employee Director may exercise the
exercisable portion of his Stock Options only to the extent set forth in his Option Award
Certificates.




			
	SECTION 6.	 	RESTRICTED STOCK AWARDS





     (a) Nature of Restricted Stock Awards. The Administrator shall determine the
restrictions and conditions applicable to each Restricted Stock Award at the time of grant.
Conditions may be based on continuing employment (or other service relationship) and/or achievement
of pre-established performance goals and objectives. The terms and conditions of each Restricted
Stock Award Certificate shall be determined by the Administrator, and such terms and conditions may
differ among individual Awards and grantees.



     (b) Rights as a Stockholder. Upon the grant of a Restricted Stock Award and payment
of any applicable purchase price, a grantee shall have the rights of a stockholder with respect to
the voting of the Restricted Stock, subject to such conditions contained in the



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Restricted Stock Award Certificate. Unless the Administrator shall otherwise determine, (i) uncertificated
Restricted Stock shall be accompanied by a notation on the records of the Company or the transfer
agent to the effect that they are subject to forfeiture until such Restricted Stock are vested as
provided in Section 6(d) below, and (ii) certificated Restricted Stock shall remain in the
possession of the Company until such Restricted Stock is vested as provided in Section 6(d) below,
and the grantee shall be required, as a condition of the grant, to deliver to the Company such
instruments of transfer as the Administrator may prescribe.



     (c) Restrictions. Restricted Stock may not be sold, assigned, transferred, pledged or
otherwise encumbered or disposed of except as specifically provided herein or in the Restricted
Stock Award Certificate. If a grantee’s employment (or other service relationship) with the
Company and its Subsidiaries terminates for any reason, any Restricted Stock that has not vested at
the time of termination shall automatically, without any requirement of notice to such grantee
from, or other action by or on behalf of, the Company, be deemed to have been reacquired by the
Company at its original purchase price (if any) from such grantee or such grantee’s legal
representative simultaneously with such termination of employment (or other service relationship),
and thereafter shall cease to represent any ownership of the Company by the grantee or rights of
the grantee as a stockholder. Following such deemed reacquisition of unvested Restricted Stock
that are represented by physical certificates, a grantee shall surrender such certificates to the
Company upon request without consideration.



     (d) Vesting of Restricted Stock. The Administrator at the time of grant shall specify
the date or dates and/or the attainment of pre-established performance goals, objectives and other
conditions on which the non-transferability of the Restricted Stock and the Company’s right of
repurchase or forfeiture shall lapse. Notwithstanding the foregoing, in the event that any such
Restricted Stock granted to employees shall have a performance-based goal, the restriction period
with respect to such shares shall not be less than one year, and in the event any such Restricted
Stock granted to employees shall have a time-based restriction, the total restriction period with
respect to such shares shall not be less than three years; provided, however, that Restricted Stock
with a time-based restriction may become vested incrementally over such three-year period. The
Administrator may waive the foregoing restriction in the case of a grantee’s death, disability or
retirement or upon a Sale Event. Subsequent to such date or dates and/or the attainment of such
pre-established performance goals, objectives and other conditions, the shares on which all
restrictions have lapsed shall no longer be Restricted Stock and shall be deemed “vested.” Except
as may otherwise be provided by the Administrator pursuant to the authority reserved in this
Section 6, a grantee’s rights in any shares of Restricted Stock that have not vested shall
automatically terminate upon the grantee’s termination of employment (or other service
relationship) with the Company and its Subsidiaries and such shares shall be subject to the
provisions of Section 6(c) above.




			
	SECTION 7.	 	RESTRICTED STOCK UNIT AWARDS





     (a) Nature of Restricted Stock Unit Awards. The Administrator shall determine the
restrictions and conditions applicable to each Restricted Stock Unit Award at the time of grant.
Conditions may be based on continuing employment (or other service relationship) and/or
achievement of pre-established performance goals and objectives. The terms and conditions of each
Restricted Stock Unit Award Certificate shall be determined by the Administrator, and such



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terms and conditions may differ among individual Awards and grantees. Notwithstanding the foregoing, in
the event that any such Restricted Stock Unit Award granted to employees shall have a
performance-based goal, the restriction period with respect to such Award shall not be less than
one year, and in the event any such Restricted Stock Unit Award granted to employees shall have a
time-based restriction, the total restriction period with respect to such Award shall not be less
than three years; provided, however, that any Restricted Stock Unit Award with a time-based
restriction may become vested incrementally over such three-year period. The Administrator may
waive the foregoing restriction in the case of a grantee’s death, disability or retirement or upon
a Sale Event. At the end of the deferral period, the Restricted Stock Unit Award, to the extent
vested, shall be settled in the form of shares of Stock. To the extent that a Restricted Stock
Unit Award is subject to Section 409A, it may contain such additional terms and conditions as the
Administrator shall determine in its sole discretion in order for such Award to comply with the
requirements of Section 409A.



     (b) Election to Receive Restricted Stock Unit Awards in Lieu of Compensation. The
Administrator may, in its sole discretion, permit a grantee to elect to receive a portion of future
cash compensation otherwise due to such grantee in the form of a Restricted Stock Unit Award. Any
such election shall be made in writing and shall be delivered to the Company no later than the date
specified by the Administrator and in accordance with Section 409A and such other rules and
procedures established by the Administrator. Any such future cash compensation that the grantee
elects to defer shall be converted to a fixed number of phantom stock units (which may be fully
vested) based on the Fair Market Value of Stock on the date the compensation would otherwise have
been paid to the grantee if such payment had not been deferred as provided herein. The
Administrator shall have the sole right to determine whether and under what circumstances to permit
such elections and to impose such limitations and other terms and conditions thereon as the
Administrator deems appropriate.



     (c) Rights as a Stockholder. A grantee shall have the rights as a stockholder only as
to shares of Stock acquired by the grantee upon settlement of a Restricted Stock Unit Award;
provided, however, that the grantee may be credited with dividend equivalent rights with respect to
the phantom stock units underlying his Restricted Stock Unit Award, subject to such terms and
conditions as the Administrator may determine.



     (d) Termination. Except as may otherwise be provided by the Administrator pursuant to
the authority reserved in Section 7(a), a grantee’s right in all Restricted Stock Unit Awards that
have not vested shall automatically terminate upon the grantee’s termination of employment (or
cessation of service relationship) with the Company and its Subsidiaries for any reason.




			
	SECTION 8.	 	CASH-BASED AWARDS





     Grant of Cash-Based Awards. The Administrator may, in its sole discretion, grant
Cash-Based Awards to any grantee in such number or amount and upon such terms, and subject to such
conditions, as the Administrator shall determine at the time of grant. The Administrator shall
determine the maximum duration of the Cash-Based Award, the amount of cash to which
the Cash-Based Award pertains, the conditions upon which the Cash-Based Award shall become
vested or payable, and such other provisions as the Administrator shall determine. Each Cash-Based
Award shall specify a cash-denominated payment amount, formula or payment ranges as determined by
the Administrator. Payment, if any, with respect to a Cash-Based Award shall be made in accordance
with the terms of the Award and may be made in cash or in shares of Stock, as the Administrator
determines.



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	SECTION 9.	 	PERFORMANCE SHARE AWARDS





     (a) Nature of Performance Share Awards. The Administrator may, in its sole
discretion, grant Performance Share Awards independent of, or in connection with, the granting of
any other Award under the Plan. The Administrator shall determine whether and to whom Performance
Share Awards shall be granted, the Performance Goals, the periods during which performance is to be
measured, which may not be less than one year, and such other limitations and conditions as the
Administrator shall determine.



     (b) Rights as a Stockholder. A grantee receiving a Performance Share Award shall have
the rights of a stockholder only as to shares actually received by the grantee under the Plan and
not with respect to shares subject to the Award but not actually received by the grantee. A
grantee shall be entitled to receive shares of Stock under a Performance Share Award only upon
satisfaction of all conditions specified in the Performance Share Award Certificate (or in a
performance plan adopted by the Administrator).



     (c) Termination. Except as may otherwise be provided by the Administrator either in
the Award Certificate or, subject to Section 15 below, in writing after the Award Certificate is
issued, a grantee’s rights in all Performance Share Awards shall automatically terminate upon the
grantee’s termination of employment (or cessation of service relationship) with the Company and its
Subsidiaries for any reason.




			
	SECTION 10.	 	PERFORMANCE-BASED AWARDS TO COVERED EMPLOYEES





     (a) Performance-Based Awards. Any employee or other key person providing services to
the Company and who is selected by the Administrator may be granted one or more Performance-Based
Awards in the form of a Restricted Stock Award, Restricted Stock Unit Award, Performance Share
Awards or Cash-Based Award payable upon the attainment of Performance Goals that are established by
the Administrator and relate to one or more of the Performance Criteria, in each case on a
specified date or dates or over any period or periods determined by the Administrator. The
Administrator shall define in an objective fashion the manner of calculating the Performance
Criteria it selects to use for any Performance Cycle. Depending on the Performance Criteria used
to establish such Performance Goals, the Performance Goals may be expressed in terms of overall
Company performance or the performance of a division, business unit, or an individual. The
Administrator, in its discretion, may adjust or modify the calculation of Performance Goals for
such Performance Cycle in order to prevent the dilution or enlargement of the rights of an
individual (i) in the event of, or in anticipation of, any unusual or extraordinary corporate item,
transaction, event or development, (ii) in recognition of, or in anticipation of, any other unusual
or nonrecurring events affecting the Company, or the financial statements of the Company, or (iii)
in response to, or in anticipation
of, changes in applicable laws, regulations, accounting principles, or business conditions
provided however, that the Administrator may not exercise such discretion in a manner that would
increase the Performance-Based Award granted to a Covered Employee. Each Performance-Based Award
shall comply with the provisions set forth below.



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     (b) Grant of Performance-Based Awards. With respect to each Performance-Based Award
granted to a Covered Employee, the Administrator shall select, within the first 90 days of a
Performance Cycle (or, if shorter, within the maximum period allowed under Section 162(m) of the
Code) the Performance Criteria for such grant, and the Performance Goals with respect to each
Performance Criterion (including a threshold level of performance below which no amount will become
payable with respect to such Award). Each Performance-Based Award will specify the amount payable,
or the formula for determining the amount payable, upon achievement of the various applicable
performance targets. The Performance Criteria established by the Administrator may be (but need
not be) different for each Performance Cycle and different Performance Goals may be applicable to
Performance-Based Awards to different Covered Employees.



     (c) Payment of Performance-Based Awards. Following the completion of a Performance
Cycle, the Administrator shall meet to review and certify in writing whether, and to what extent,
the Performance Goals for the Performance Cycle have been achieved and, if so, to also calculate
and certify in writing the amount of the Performance-Based Awards earned for the Performance Cycle.
The Administrator shall then determine the actual size of each Covered Employee’s
Performance-Based Award, and, in doing so, may reduce or eliminate the amount of the
Performance-Based Award for a Covered Employee if, in its sole judgment, such reduction or
elimination is appropriate.



     (d) Maximum Award Payable. The maximum Performance-Based Award payable to any one
Covered Employee under the Plan for a Performance Cycle is 4,000,000 Shares (subject to adjustment
as provided in Section 3(b) hereof) or $25 million in the case of a Performance-Based Award that is
a Cash-Based Award.




			
	SECTION 11.	 	TRANSFERABILITY OF AWARDS





     (a) Transferability. Except as provided in Section 11(b) below, during a grantee’s
lifetime, his or her Awards shall be exercisable only by the grantee, or by the grantee’s legal
representative or guardian in the event of the grantee’s incapacity. No Awards shall be sold,
assigned, transferred or otherwise encumbered or disposed of by a grantee other than by will or by
the laws of descent and distribution or pursuant to a domestic relations order. No Awards shall be
subject, in whole or in part, to attachment, execution, or levy of any kind, and any purported
transfer in violation hereof shall be null and void.



     (b) Administrator Action. Notwithstanding Section 11(a), the Administrator, in its
discretion, may provide either in the Award Certificate regarding a given Award or by subsequent
written approval that the grantee (who is an employee or director) may transfer his or her
Non-Qualified Stock Options to his or her immediate family members, to trusts for the benefit of
such family members, or to partnerships in which such family members are the only
partners, provided that the transferee agrees in writing with the Company to be bound by all
of the terms and conditions of this Plan and the applicable Award.



14









 





     (c) Family Member. For purposes of Section 11(b), “family member” shall mean a
grantee’s 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, including adoptive relationships, any person sharing the grantee’s household
(other than a tenant of the grantee), a trust in which these persons (or the grantee) have more
than 50 percent of the beneficial interest, a foundation in which these persons (or the grantee)
control the management of assets, and any other entity in which these persons (or the grantee) own
more than 50 percent of the voting interests.



     (d) Designation of Beneficiary. Each grantee to whom an Award has been made under the
Plan may designate a beneficiary or beneficiaries to exercise any Award or receive any payment
under any Award payable on or after the grantee’s death. Any such designation shall be on a form
provided for that purpose by the Administrator and shall not be effective until received by the
Administrator. If no beneficiary has been designated by a deceased grantee, or if the designated
beneficiaries have predeceased the grantee, the beneficiary shall be the grantee’s estate.




			
	SECTION 12.	 	TAX WITHHOLDING





     (a) Payment by Grantee. Each grantee shall, no later than the date as of which the
value of an Award or of any Stock or other amounts received thereunder first becomes includable in
the gross income of the grantee for Federal income tax purposes, pay to the Company, or make
arrangements satisfactory to the Administrator regarding payment of, any Federal, state, or local
taxes of any kind required by law to be withheld by the Company with respect to such income. The
Company and its Subsidiaries shall, to the extent permitted by law, have the right to deduct any
such taxes from any payment of any kind otherwise due to the grantee. The Company’s obligation to
deliver evidence of book entry (or stock certificates) to any grantee is subject to and conditioned
on tax withholding obligations being satisfied by the grantee.



     (b) Payment in Stock. In connection with its obligations to withhold Federal, state,
city or other taxes from amounts paid to grantees, the Company may make any arrangements that are
consistent with the Plan as it may deem appropriate. Without limitation of the preceding sentence,
the Company shall have the right to reduce the number of shares of Stock otherwise required to be
issued to a grantee (or other recipient) in an amount that would have a Fair Market Value on the
date of such issuance equal to all Federal, state, city or other taxes as shall be required to be
withheld by the Company pursuant to any statute or other governmental regulation or ruling and paid
to any Federal, state, city or other taxing authority.




			
	SECTION 13.	 	SECTION 409A AWARDS. 





     To the extent that any Award is determined to constitute “nonqualified deferred compensation”
within the meaning of Section 409A (a “409A Award”), the Award shall be subject to such additional
rules and requirements as specified by the Administrator from time to
time in order to comply with Section 409A. In this regard, if any amount under a 409A Award
is payable upon a “separation from service” (within the meaning of Section 409A) to a grantee who
is then considered a “specified employee” (within the meaning of Section 409A), then no such



15









 







payment shall be made prior to the date that is the earlier of (i) six months and one day after the
grantee’s separation from service, or (ii) the grantee’s death, but only to the extent such delay
is necessary to prevent such payment from being subject to interest, penalties and/or additional
tax imposed pursuant to Section 409A. Further, the settlement of any such Award may not be
accelerated except to the extent permitted by Section 409A.




			
	SECTION 14.	 	TRANSFER, LEAVE OF ABSENCE, ETC.





     For purposes of the Plan, the following events shall not be deemed a termination of
employment:



     (a) a transfer to the employment of the Company from a Subsidiary or from the Company to a
Subsidiary, or from one Subsidiary to another;



     (b) an approved leave of absence for military service or sickness, or for any other purpose
approved by the Company, if the employee’s right to re-employment is guaranteed either by a statute
or by contract or under the policy pursuant to which the leave of absence was granted or if the
Administrator otherwise so provides in writing; or



     (c) the transfer in status from one eligibility category under Section 4 hereof to another
category.




			
	SECTION 15.	 	AMENDMENTS AND TERMINATION





     The Board may, at any time, amend or discontinue the Plan and the Administrator may, at any
time, amend or cancel any outstanding Award for the purpose of satisfying changes in law or for any
other lawful purpose, but no such action shall adversely affect rights under any outstanding Award
without the holder’s consent. Except as provided in Section 3(c) or 3(d), without prior
stockholder approval, in no event may the Administrator exercise its discretion to reduce the
exercise price of outstanding Stock Options or effect repricing through cancellation and re-grants.
To the extent required under the rules of any securities exchange or market system on which the
Stock is listed, to the extent determined by the Administrator to be required by the Code to ensure
that Incentive Stock Options granted under the Plan are qualified under Section 422 of the Code, or
to ensure that compensation earned under Awards qualifies as performance-based compensation under
Section 162(m) of the Code, Plan amendments shall be subject to approval by the Company
stockholders entitled to vote at a meeting of stockholders. Nothing in this Section 15 shall limit
the Administrator’s authority to take any action permitted pursuant to Section 3(d).




			
	SECTION 16.	 	STATUS OF PLAN





     With respect to the portion of any Award that has not been exercised and any payments in cash,
Stock or other consideration not received by a grantee, a grantee shall have no rights greater than
those of a general creditor of the Company unless the Administrator shall otherwise expressly
determine in connection with any Award or Awards. In its sole discretion, the
Administrator may authorize the creation of trusts or other arrangements to meet the Company’s
obligations to deliver Stock or make payments with respect to Awards hereunder, provided that the
existence of such trusts or other arrangements is consistent with the foregoing sentence.



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	SECTION 17.	 	GENERAL PROVISIONS





     (a) No Distribution. The Administrator may require each person acquiring Stock
pursuant to an Award to represent to and agree with the Company in writing that such person is
acquiring the shares without a view to distribution thereof.



     (b) Delivery of Stock Certificates. Stock certificates to grantees under this Plan
shall be deemed delivered for all purposes when the Company or a stock transfer agent of the
Company shall have mailed such certificates in the United States mail, addressed to the grantee, at
the grantee’s last known address on file with the Company. Uncertificated Stock shall be deemed
delivered for all purposes when the Company or a Stock transfer agent of the Company shall have
given to the grantee by electronic mail (with proof of receipt) or by United States mail, addressed
to the grantee, at the grantee’s last known address on file with the Company, notice of issuance
and recorded the issuance in its records (which may include electronic “book entry” records).
Notwithstanding anything herein to the contrary, the Company shall not be required to issue or
deliver any certificates evidencing shares of Stock pursuant to the exercise of any Award, unless
and until the Administrator has determined, with advice of counsel (to the extent the Administrator
deems such advice necessary or advisable), that the issuance and delivery of such certificates is
in compliance with all applicable laws, regulations of governmental authorities and, if applicable,
the requirements of any exchange on which the shares of Stock are listed, quoted or traded. All
Stock certificates delivered pursuant to the Plan shall be subject to any stop-transfer orders and
other restrictions as the Administrator deems necessary or advisable to comply with federal, state
or foreign jurisdiction, securities or other laws, rules and quotation system on which the Stock is
listed, quoted or traded. The Administrator may place legends on any Stock certificate to
reference restrictions applicable to the Stock. In addition to the terms and conditions provided
herein, the Administrator may require that an individual make such reasonable covenants,
agreements, and representations as the Administrator, in its discretion, deems necessary or
advisable in order to comply with any such laws, regulations, or requirements. The Administrator
shall have the right to require any individual to comply with any timing or other restrictions with
respect to the settlement or exercise of any Award, including a window-period limitation, as may be
imposed in the discretion of the Administrator.



     (c) Stockholder Rights. Until Stock is deemed delivered in accordance with Section
17(b), no right to vote or receive dividends or any other rights of a stockholder will exist with
respect to shares of Stock to be issued in connection with an Award, notwithstanding the exercise
of a Stock Option or any other action by the grantee with respect to an Award.



     (d) Other Compensation Arrangements; No Employment Rights. Nothing contained in this
Plan shall prevent the Board from adopting other or additional compensation arrangements, including
trusts, and such arrangements may be either generally applicable or applicable only in specific
cases. The adoption of this Plan and the grant of Awards do not
confer upon any employee any right to continued employment with the Company or any Subsidiary.



17









 





     (e) Trading Policy Restrictions. Option exercises and other Awards under the Plan
shall be subject to the Company’s insider trading policies and procedures, as in effect from time
to time.



     (f) Forfeiture of Awards under Sarbanes-Oxley Act. If the Company is required to
prepare an accounting restatement due to the material noncompliance of the Company, as a result of
misconduct, with any financial reporting requirement under the securities laws, then any grantee
who is one of the individuals subject to automatic forfeiture under Section 304 of the
Sarbanes-Oxley Act of 2002 shall reimburse the Company for the amount of any Award received by such
individual under the Plan during the 12-month period following the first public issuance or filing
with the United States Securities and Exchange Commission, as the case may be, of the financial
document embodying such financial reporting requirement.




			
	SECTION 18.	 	EFFECTIVE DATE OF PLAN





     This Plan shall become effective upon approval by the holders of a majority of the votes cast
at a meeting of stockholders at which a quorum is present. No grants of Stock Options and other
Awards may be made hereunder after the tenth anniversary of the Effective Date and no grants of
Incentive Stock Options may be made hereunder after the tenth anniversary of the date the Plan is
approved by the Board.




			
	SECTION 19.	 	GOVERNING LAW





     This Plan and all Awards and actions taken thereunder shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Pennsylvania, applied without regard to conflict
of law principles.



DATE APPROVED BY BOARD OF DIRECTORS: JULY 15, 2008




DATE APPROVED BY STOCKHOLDERS: OCTOBER 7, 2008





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