exhibit10_1.htm


    
    

    
      

    

    Exhibit 10.1

     

     

     

    
      2004 LONG-TERM INCENTIVE COMPENSATION
PLAN

       

      (As approved by shareholders on
October 30, 2008)

       

       

      ARTICLE
1—GENERAL PROVISIONS

      
         

        1.1      Establishment of Plan. Cree,
Inc., a North Carolina corporation (the “Company”), hereby establishes an
incentive compensation plan to be known as the “Cree, Inc. 2004 Long-Term
Incentive Compensation Plan” (the “Plan”), as set forth in this
document.

         

        1.2      Purpose of Plan. The
objectives of the Plan are to (i) attract and retain employees for the Company
and its affiliates and directors of the Company by providing competitive
compensation opportunities; (ii) provide incentives to those individuals who
contribute significantly to the long-term performance and growth of the Company
and its affiliates; and (iii) align the long-term financial interests of
employees and directors with those of the Company’s shareholders.

         

        1.3      Types of Awards. Awards under
the Plan may be made to Eligible Participants who are employees in the form of
(i) Incentive Stock Options, (ii) Nonqualified Stock Options, (iii) Stock
Appreciation Rights, (iv) Restricted Stock, (v) Stock Units, (vi) Performance
Units, or any combination of these. Awards under the Plan may be made to
Eligible Participants who are Outside Directors in the form of (i) Nonqualified
Stock Options, (ii) Stock Appreciation Rights, (iii) Restricted Stock, (iv)
Stock Units, or any combination of these, subject to and in accordance with
Section 4.2 and Article 10.

         

        1.4      Effective Date. The Plan
became effective upon approval of the Plan by the Company’s shareholders on
November 4, 2004, and the date of such approval is referred to herein as the
“Effective Date.”

         

        1.5      Predecessor Plan. Upon
approval of the Plan by the shareholders of the Company, no further grants may
be made under the Cree, Inc. Amended and Restated Equity Compensation Plan (the
“Predecessor Plan”).

         

        ARTICLE
2—DEFINITIONS

         

        Except where the context otherwise
indicates, the following definitions apply:

         

        2.1      “Award
Agreement” means the written agreement, whether in printed or electronic form,
between the Company and a Participant, evidencing an Award granted to the
Participant under the Plan. The Award Agreement may be in the form of a master
agreement between an Eligible Participant and the Company with respect to all or
any types of Awards supplemented, with respect to a particular Award, by a
notice of award issued by the Company.

         

        2.2      “Award” means
an award granted to a Participant under the Plan that is an Option, Stock
Appreciation Right, Restricted Stock, Stock Unit, Performance Unit or
combination of these.

         

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

         

        2.4      “Cause” means,
unless provided otherwise in the Award Agreement or the Plan: (i) “Cause” as
defined in an Individual Agreement to which a Participant is a party that is
then in effect, or (ii) if there is no such Individual Agreement or if it does
not define Cause, termination of the Participant’s employment by the Company or
any other Employer because of any conduct amounting to fraud, dishonesty,
willful misconduct, negligence, significant activities materially harmful to the
reputation of the Company or an Employer, insubordination or conviction of a
felony or a crime involving moral turpitude, all as determined by the Committee
in good faith, including but not limited to (as determined by the Committee in
good faith), (A) Participant’s breach of any agreement between Participant and
an Employer, (B) Participant’s intentional or 

         

         

        
          
            
            

          

          
             

            
              

            

          

          
            
            

          

        

         

        negligent
failure to perform a reasonably requested directive or assignment or to perform
his duties to the Employer substantially in accordance with the Employer’s
operating and personnel policies and procedures generally applicable to all of
its employees, or (C) Participant’s misappropriation or attempted
misappropriation of any of the Employer’s funds or property.

         

        2.5      “Change in
Control” means, unless provided otherwise in the Award Agreement, “Change in
Control” or “Change of Control”, as applicable, as defined in an Individual
Agreement to which a Participant is a party that is then in
effect.  If a Participant does not have an Individual Agreement, or if
it does not define Change in Control, no Termination of Employment for that
Participant shall be considered to be in connection with a Change in
Control.

         

        2.6      “Code” means
the Internal Revenue Code of 1986, as now in effect or as hereafter amended. All
citations to sections of the Code are to such sections as they may from time to
time be amended or renumbered.

         

        2.7      “Committee”
means a committee appointed by the Board to administer this Plan (or any
specific provisions hereunder) pursuant to Article 3.

         

        2.8      “Company”
means Cree, Inc., a North Carolina corporation, and its successors and
assigns.

         

        2.9      “Disability”
means, with respect to any Incentive Stock Option, disability as determined
under Section 22(e)(3) of the Code, and with respect to any other Award, unless
provided otherwise in the Award Agreement, (i) with respect to a Participant who
is eligible to participate in the Employer’s program of long-term disability
insurance, if any, a condition with respect to which the Participant is entitled
to commence benefits under such program of long-term disability insurance and
which results in Termination of Employment of the Participant, and (ii) with
respect to any Participant (including a Participant who is eligible to
participate in the Employer’s program of long-term disability insurance, if
any), a disability as determined under procedures established by the Committee
or in any Award.

         

        2.10    “Effective Date”
shall have the meaning ascribed to such term in Section 1.4 hereof.

         

        2.11    “Eligible
Participant” means any employee of the Employer and any Outside Director,
subject to such limitations as may be provided by the Code, the Exchange Act or
the Committee, as shall be determined by the Committee.

         

        2.12    “Employer” means the
Company and any corporation or entity in which the Company owns or controls,
directly or indirectly, fifty percent (50%) or more of the voting power or
economic interests of such corporation or entity.

         

        2.13    “Exchange Act” means
the Securities Exchange Act of 1934, as now in effect or as hereafter amended.
All citations to sections of the Exchange Act or rules thereunder are to such
sections or rules as they may from time to time be amended or
renumbered.

         

        2.14    “Fair Market Value”
means the fair market value of a Share, as determined in good faith by the
Committee; provided, however, that unless otherwise directed by the
Committee:

         

         (a) if the Shares are listed
for trading on a national securities exchange, Fair Market Value on any date
shall be the last sale price reported for the Shares on such exchange on such
date or, if no sale was reported on such date, on the last date preceding such
date on which a sale was reported;

         

         (b) if the Shares are listed
for trading on The Nasdaq Stock Market and have been designated as a “Nasdaq
Global Market” security (or such other name as The Nasdaq Stock Market may
hereafter adopt for such segment), Fair Market Value on any date shall be the
last sale price reported for the Shares on such system during the regular
trading session on such date or on the last day preceding such date on which a
sale was reported during the regular trading session;

         

         

        
          
            
            

          

          
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         (c) if the Shares are listed
for trading on The Nasdaq Stock Market and have not been designated under
subsection (b) above, Fair Market Value on any date shall be the average of the
highest bid and lowest asked prices of the Shares on such system during the
regular trading session on such date or on the last day preceding such date on
which a sale was reported during the regular trading session; or

         

         (d) if (a), (b) and (c) do not
apply, on the basis of the good faith determination of the
Committee.

         

        For
purposes of subsection (a) above, if the Shares are traded on more than one
national securities exchange, then the following exchange shall be referenced to
determine Fair Market Value: (i) the New York Stock Exchange if the Shares are
then traded on such exchange and (ii) otherwise such other exchange on which
Shares are traded as may be designated by the Committee.

         

        2.15    “Good Reason” means a
Termination of Employment for “Good Reason” as defined in an Individual
Agreement to which the Participant is a party that is then in
effect.  If a Participant does not have an Individual Agreement, or if
it does not define Good Reason, no Termination of Employment for that
Participant shall be considered to be for “Good Reason.”

         

        2.16    “Incentive Stock
Option” or “ISO” means an Option granted to an Eligible Participant under
Article 5 of the Plan which meets the requirements of Section 422 of the
Code.

         

        2.17    “Individual
Agreement” means a written agreement between a Participant and the Company or
any other Employer relating to employment by the Company or other Employer or to
service as an Outside Director of the Company (other than an Award
Agreement).

         

        2.18    “Insider”
shall mean an individual who is, on the relevant date, subject to the reporting
requirements of Section 16(a) of the Exchange Act.

         

        2.19    “Nonqualified Stock
Option” or “NQSO” means an Option granted to an Eligible Participant under
Article 5 of the Plan that does not meet the requirements of Section 422 of the
Code.

         

        2.20    “Option” means an
Incentive Stock Option or a Nonqualified Stock Option. An Option shall be
designated in the applicable Award Agreement as either an Incentive Stock Option
or a Nonqualified Stock Option, and in the absence of such designation, shall be
treated as a Nonqualified Stock Option.

         

        2.21    “Option Price” means
the price at which a Participant may purchase a Share pursuant to an
Option.

         

        2.22    “Outside Director”
means a member of the Board who is not an employee of the Company or any other
Employer.

         

        2.23    “Participant” means
an Eligible Participant to whom an Award has been granted.

         

        2.24    “Payment Date” shall
have the meaning set forth in Section 5.6 of the Plan.

         

        2.25    “Performance Unit”
means an Award under Article 8 of the Plan that has a value set by the Committee
(or that is determined by reference to a valuation formula specified by the
Committee), 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
objectives during the relevant performance period as the Committee shall
establish at the time of such Award or thereafter, but not later than the time
permitted by Section 162(m) of the Code in the case of Awards intended to comply
with Section 162(m) of the Code.

         

        2.26    “Plan” means the
Cree, Inc. 2004 Long-Term Incentive Compensation Plan, as amended from time to
time.

         

         

        
          
            
            

          

          
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        2.27    “Restricted Stock”
means an Award of Shares under Article 7 of the Plan, which Shares are issued
with such restriction(s) as the Committee, in its sole discretion, may impose,
including without limitation, any restriction on the right to retain such
Shares, to sell, transfer, pledge or assign such Shares, to vote such Shares,
and/or to receive any cash dividends with respect to such Shares, which
restrictions may lapse separately or in combination at such time or times, in
installments or otherwise, as the Committee may deem appropriate.

         

        2.28    “Restriction Period”
means the period of any restriction applicable to an Award of Restricted Stock
or Stock Units, which period shall commence on the date an Award of Restricted
Stock or Stock Units is granted and end on such date as the Committee shall
determine (subject to Sections 7.2(b) and Section 14.2).

         

        2.29    “Retirement” means,
unless provided otherwise in the Award Agreement, Termination of Employment
other than for Cause after a Participant has reached the age of 55 years and has
completed at least five years of service (full-time or full-time
equivalent).

         

        2.30    “Share” means one
share of common stock, par value $0.00125 per share, of the Company, as such
Share may be adjusted pursuant to the provisions of Section 4.3 of the
Plan.

         

        2.31    “Stock Appreciation
Right” or “SAR” means an Award granted under Article 6 which provides for an
amount payable in Shares and/or cash, as determined by the Committee, equal to
the excess of the Fair Market Value of a Share on the day the Stock Appreciation
Right is exercised over the specified purchase price.

         

        2.32    “Stock Unit” means an
Award under Article 7 of the Plan that is valued by reference to a Share, 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, and that has such restriction(s) as the Committee, in its
sole discretion, may impose, including without limitation, any restriction on
the right to retain such Awards, to sell, transfer, pledge or assign such
Awards, and/or to receive any cash dividend equivalents with respect to such
Awards, which restrictions may lapse separately or in combination at such time
or times, in installments or otherwise, as the Committee may deem
appropriate.

         

        2.33    “Termination of
Employment” means, unless provided otherwise in the Award Agreement, the
discontinuance of employment of a Participant with the Employer for any reason,
whether voluntary or involuntary, or in the case of an Outside Director, the
discontinuance of services to the Company by an Outside Director, for any
reason, whether voluntary or involuntary.  If an Outside Director
becomes an employee of the Company or any other Employer before or upon
terminating service as an Outside Director, such employment will constitute a
continuation of service with respect to Awards granted to the Participant while
he or she served as a member of the Board.  The determination of
whether a Participant has discontinued employment or service shall be made by
the Committee in its sole discretion.  “Termination of Service” as
used in an Award Agreement shall mean Termination of Employment.

         

        ARTICLE
3—ADMINISTRATION

         

        3.1      Composition of Committee.
This Plan shall be administered by the Committee. The Committee shall consist of
two or more Outside Directors who shall be appointed by the Board. The Board
shall fill vacancies on the Committee and may from time to time remove or add
members of the Committee. The Board, in its sole discretion, may exercise any
authority of the Committee under this Plan in lieu of the Committee’s exercise
thereof and in such instances references herein to the Committee shall refer to
the Board of Directors. Unless the Board directs otherwise, the Compensation
Committee of the Board shall serve as the Committee.

         

        3.2      Authority of the
Committee.

         

         (a) The Committee shall have
the exclusive right to interpret, construe and administer the Plan, to select
the persons who are eligible to receive an Award, and to act in all matters
pertaining to the granting of an Award and the contents of the Award Agreement
evidencing the Award, including without limitation, the 

         

         

        
          
            
            

          

          
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        determination
of the number of Options, Stock Appreciation Rights, Restricted Stock, Stock
Units or Performance Units subject to an Award and the form, terms, conditions
and duration of each Award, and any amendment thereof consistent with the
provisions of the Plan. The Committee may adopt such rules, regulations and
procedures of general application for the administration of this Plan as it
deems appropriate. The Committee may correct any defect, supply any omission or
reconcile any inconsistency in the Plan or any Award Agreement in the manner and
to the extent it shall deem desirable to carry it into effect.

         

         (b) The Committee shall have
the discretion to determine the effect upon an Award and upon an individual’s
status as an employee or Outside Director under the Plan (including whether a
Participant shall be deemed to have experienced a Termination of Employment, or
other change in status) and upon the vesting, expiration or forfeiture of an
Award in the case of (i) any individual who is employed by an entity that ceases
to qualify as an Employer, (ii) any leave of absence, (iii) any transfer between
locations of employment with the Employer or between Employers, (iv) any change
in the Participant’s status from an employee to a consultant or member of the
Board of Directors, or vice versa, and (v) any employee who, at the request of
the Employer or the Company, becomes employed by any partnership, joint venture,
corporation or other entity not meeting the requirements of an
Employer.

         

         (c) All actions, determinations
and decisions of the Committee made or taken pursuant to grants of authority
under the Plan or with respect to any questions arising in connection with the
administration and interpretation of the Plan, including the severability of any
and all of the provisions thereof, shall be conclusive, final and binding upon
all parties, including the Company, its shareholders, Participants, Eligible
Participants and their estates, beneficiaries and successors. The Committee
shall consider such factors as it deems relevant to making or taking such
actions, determinations and decisions including, without limitation, the
recommendations or advice of any director, officer or employee of the Company
and such attorneys, consultants and accountants as it may select. A Participant
or other holder of an Award may contest an action, determination or decision by
the Committee with respect to such person or Award only on the grounds that such
action, determination or decision was arbitrary or capricious or was unlawful,
and any review of such action, determination or decision shall be limited to
determining whether the Committee’s decision or action was arbitrary or
capricious or was unlawful.

         

        3.3      Rules for Foreign
Jurisdictions. Notwithstanding anything in the Plan to the contrary, the
Committee may, in its sole discretion, amend or vary the terms of the Plan in
order to conform such terms with the requirements of each non-U.S. jurisdiction
where an Eligible Participant is located or to meet the goals and objectives of
the Plan; establish one or more sub-plans for these purposes; and establish
administrative rules and procedures to facilitate the operation of the Plan in
such non-U.S. jurisdictions. For purposes of clarity, the terms and conditions
contained herein which are subject to variation in a non-U.S. jurisdiction shall
be reflected in a written addendum to the Plan for each Employer of a
Participant located in such non-U.S. jurisdiction.

         

        3.4      Delegation of Authority. The
Committee may, at any time and from time to time, to the extent permitted by law
and the Company’s Bylaws and subject to the applicable rules of any securities
exchange or quotation or trading system on which Shares are traded, delegate to
one or more members of the Committee or executive officers of the Company any or
all of its authority under Section 3.2 and 3.3, except that the Committee may
not delegate such authority with respect to Awards to members of the Board or to
executive officers of the Company. The Committee may delegate the administration
of the Plan to an officer or employee of the Company, and such administrator(s)
may have the authority to prepare, execute and distribute Award Agreements or
other documents relating to Awards granted by the Committee under the Plan, to
maintain records relating to the grant, vesting, exercise, forfeiture or
expiration of Awards, to process or oversee the issuance of Shares upon the
exercise, vesting and/or settlement of an Award, to interpret the terms of
Awards and to take such other actions as the Committee may specify, provided
that the actions and interpretations of any such administrator shall be subject
to review and approval, disapproval or modification by the
Committee.

         

        3.5      Award Agreements. Each Award
granted under the Plan shall be evidenced by an Award Agreement. Each Award
Agreement shall be subject to and incorporate, by reference or otherwise, the
applicable terms and 

         

         

        
          
            
            

          

          
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        conditions
of the Plan, and any other terms and conditions, not inconsistent with the Plan,
as may be directed by the Committee, including without limitation, provisions
related to the consequences of Termination of Employment. A copy of such
document shall be provided to the Participant, and the Committee may, but need
not, require that the Participant sign a copy of the Award Agreement or
otherwise confirm the Participant’s acceptance of the provisions of the Award
Agreement. The Participant shall in any event be deemed to have accepted the
provisions of an Award Agreement delivered to the Participant with respect to an
Award by exercising the Award or receiving any benefits thereunder.

         

        3.6      Indemnification. In addition
to such other rights of indemnification as they may have as directors or as
members of the Committee, the members of the Committee and any persons acting on
its behalf pursuant to authority delegated by the Committee shall be indemnified
by the Company against reasonable expenses, including attorneys’ fees, actually
and necessarily incurred in connection with the defense of any action, suit or
proceeding, or in connection with any appeal therein, to which they or any of
them may be a party by reason of any action taken or failure to act under or in
connection with the Plan or any Award granted thereunder, and against all
amounts paid by them in settlement thereof, provided such settlement is approved
by independent legal counsel selected by the Company, or paid by them in
satisfaction of a judgment in any such action, suit or proceeding, except as to
matters as to which the person seeking indemnification has been negligent or
engaged in misconduct in the performance of his or her duties; provided, that
within sixty (60) days after institution of any such action, suit or proceeding,
the person seeking indemnification shall in writing offer the Company the
opportunity, at its own expense, to handle and defend the same.

         

        ARTICLE
4—SHARES SUBJECT TO THE PLAN

         

        4.1      Aggregate
Limits.

         

         (a) Subject to adjustment as
provided in Section 4.3, the aggregate number of Shares which may be issued
pursuant to Awards under this Plan is (i) 8,200,000 plus (ii) the number of
Shares which, immediately prior to the Effective Date, were authorized for
issuance under the Predecessor Plan and are not thereafter used for awards under
the Predecessor Plan. Shares described in clause (ii) above include Shares
which, immediately prior to the Effective Date, were authorized for issuance
under the Predecessor Plan and either (x) were not subject to then outstanding
awards or (y) were subject to then outstanding awards that subsequently expire,
are canceled or otherwise terminate unexercised for any reason.

         

         (b) Subject to adjustment as
provided in Section 4.3, no more than an aggregate of 1,400,000 Shares
authorized by subsection (a) may be issued pursuant to Awards of Restricted
Stock, Stock Units or Performance Units.

         

         (c) If for any reason any
Shares awarded or subject to purchase under this Plan are not delivered or
purchased, or are reacquired by the Company, for reasons including, but not
limited to, a forfeiture of Restricted Stock or a Stock Unit or the termination,
expiration or cancellation of an Option, Stock Appreciation Right or Performance
Unit, such Shares shall again be available for issuance pursuant to an Award
under the Plan, except that Shares with respect to which a Stock Appreciation
Right is exercised, and Shares withheld for payment of taxes pursuant to Section
13.2, shall not thereafter be available for issuance under the
Plan.  The determination of the number of issued Shares that again
become available for issuance with respect to grants of Incentive Stock Options
pursuant to this Section 4.1 shall be made in accordance with the requirements
of Treas. Reg. section 1.422-2(b)(3).

         

        4.2      Individual
Limits.

         

         (a) Tax Code Limits. Except to
the extent the Committee determines that an Award shall not comply with the
performance-based compensation provisions of Section 162(m) of the Code: (i) the
aggregate number of Shares subject to Options or Stock Appreciation Rights
granted under this Plan in any one fiscal year to any one Participant shall not
exceed 300,000; (ii) the aggregate number of Shares subject to Restricted Stock
or Stock Unit Awards granted under this Plan in any one fiscal year to any one
Participant 

         

         

        
          
            
            

          

          
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        shall not
exceed 100,000; and (iii) the aggregate value of Performance Unit Awards (valued
as of the grant date) that may be granted in any one fiscal year to any one
Participant shall not exceed the Fair Market Value of 100,000
Shares.

         

         (b) Awards to Outside Directors.
Awards to Outside Directors may be in the form of Nonqualified Stock
Options, Stock Appreciation Rights, Restricted Stock, Stock Units or a
combination thereof. The aggregate number of Shares subject to Restricted Stock
or Stock Units granted under this Plan in any one fiscal year to any Outside
Director shall not exceed 10,000.  The aggregate number of Shares
subject to Awards of any type granted under this Plan in any one fiscal year to
any Outside Director shall not exceed 20,000.

         

        4.3      Adjustment of Shares. If any
change in corporate capitalization, such as a stock split, reverse stock split,
or stock dividend; or any corporate transaction such as a reorganization,
reclassification, merger or consolidation or separation, including a spin-off,
of the Company or sale or other disposition by the Company of all or a portion
of its assets, any other change in the Company’s corporate structure, or any
distribution to shareholders (other than a cash dividend) results in the
outstanding Shares, or any securities exchanged therefor or received in their
place, being exchanged for a different number or class of shares or other
securities of the Company, or for shares of stock or other securities of any
other corporation (including unpaired shares replacing paired Shares); or new,
different or additional shares or other securities of the Company or of any
other corporation being received by the holders of outstanding Shares; then
equitable adjustments shall be made by the Committee, as it determines are
necessary and appropriate, in:

         

         (a) the number of Shares that
may be awarded as set forth in Section 4.1;

         

         (b) the limitations on the
aggregate number of Shares that may be awarded to any one single Participant as
set forth in Section 4.2;

         

         (c) the number and class of
Shares that may be subject to an Award, and which have not been issued or
transferred under an outstanding Award;

         

         (d) the Option Price under
outstanding Options and the number of Shares to be transferred in settlement of
outstanding Stock Appreciation Rights; and

         

         (e) the terms, conditions or
restrictions of any Award and Award Agreement, including the price payable for
the acquisition of Shares; provided, however, that all such adjustments made in
respect of each ISO shall be accomplished so that such Option shall continue to
be an incentive stock option within the meaning of Section 422 of the
Code.

         

        ARTICLE
5—STOCK OPTIONS

         

        5.1      Grant of Options. Subject to
the provisions of the Plan, Options may be granted to Eligible Participants at
any time and from time to time as shall be determined by the Committee. The
Committee shall have sole discretion in determining the number of Shares subject
to Options granted to each Participant. The Committee may grant a Participant
ISOs, NQSOs or a combination thereof, and may vary such Awards among
Participants; provided that only an employee may be granted ISOs.

         

        5.2      Award Agreement. Each Option
grant shall be evidenced by an Award Agreement that shall specify the Option
Price, the duration of the Option, the number of Shares to which the Option
pertains and such other provisions as the Committee shall determine. The Award
Agreement shall further specify whether the Award is intended to be an ISO or an
NQSO. Any portion of an Option that is not designated as an ISO or otherwise
fails or is not qualified as an ISO (even if designated as an ISO) shall be an
NQSO.

         

        5.3      Option Price. The Option
Price for each grant of an Option shall not be less than the Fair Market Value
of a Share on the date the Option is granted.

         

        5.4      Duration of Options. Each
Option shall expire at such time as the Committee shall determine at the time of
grant; provided, however, that no Option shall be exercisable later than the
seventh (7th) anniversary of its grant date.

         

         

        
          
            
            

          

          
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        5.5      Exercise of Options. Options
granted under the Plan shall be exercisable at such times and be subject to such
restrictions and conditions as the Committee shall in each instance approve,
including conditions related to the employment of or provision of services by
the Participant with the Company or any Employer, which need not be the same for
each grant or for each Participant. The Committee may provide in the Award
Agreement and/or an Individual Agreement that vesting of the Award shall
accelerate or other restrictions applicable to the Award shall lapse
only:  (i) in the event of the Participant’s death, Disability, or
Retirement, in connection with a Change of Control, or pursuant to Section 14.5;
(ii) for any Award granted on or before June 29, 2008, in the event of the
Participant’s Termination of Employment by the Company without Cause or by the
Participant for Good Reason; or (iii) in any other circumstance, provided that
the number of Shares subject to Awards granted pursuant to this clause (iii),
plus the number of Shares subject to Awards granted pursuant to clause (ii) of
the third sentence of Section 6.4, clause (iii) of the first sentence of Section
7.2(b) and clause (ii) of the second sentence of Section 8.3, does not exceed
five percent (5%) of the number of shares authorized for grant under this
Plan.  In addition, the Committee may provide in the Award Agreement
for the deferral of gains related to an exercise or may establish a cap on the
maximum earnings a Participant can realize from exercise.

         

        5.6      Payment. Options shall be
exercised by the delivery of written or electronic notice of exercise to the
Company or its designated representative, setting forth the number of Shares
with respect to which the Option is to be exercised and satisfying any
requirements that the Committee may establish in or pursuant to the Award
Agreement from time to time. Unless otherwise authorized by the Committee, no
Shares shall be delivered, whether in certificated or uncertificated form, until
the full Option Price has been paid. Full payment of the Option Price (less any
amount previously received from the Participant to acquire the Option) must be
made on or prior to the Payment Date, as defined below. The Option Price shall
be payable to the Company either: (a) in cash, (b) in a cash equivalent approved
by the Committee, (c) if approved by the Committee, by tendering previously
acquired Shares (or delivering a certification or attestation of ownership of
such Shares) having an aggregate Fair Market Value at the time of exercise equal
to the total Option Price (provided that the tendered Shares must have been held
by the Participant for any period required by the Committee), or (d) by a
combination of (a), (b) or (c). The Committee also may allow cashless exercises
as permitted under Regulation T of the Federal Reserve Board, subject to
applicable securities law restrictions, or by any other means which the
Committee determines to be consistent with the Plan’s purpose and applicable
law. “Payment Date” shall mean the date on which a sale transaction in a
cashless exercise (whether or not payment is actually made pursuant to a
cashless exercise) would have settled in connection with the subject option
exercise.

         

        5.7      Nontransferability of
Options.

         

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

         

         (b) Nonqualified Stock Options.
Except as otherwise provided in a Participant’s Award Agreement consistent with
securities and other applicable laws, rules and regulations, no NQSO granted
under this Article 5 may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, other than by will or by the laws of descent and
distribution. Further, except as otherwise provided in a Participant’s Award
Agreement, all NQSOs granted to a Participant under this Article 5 shall be
exercisable during his or her lifetime only by such Participant.

         

        5.8      Special Rules for ISOs.
Notwithstanding the above, in no event shall any Participant who owns (within
the meaning of Section 424(d) of the Code) stock of the Company possessing more
than ten percent (10%) of the total combined voting power of all classes of
stock of the Company be eligible to receive an ISO at an Option Price less than
one hundred ten percent (110%) of the Fair Market Value of a share on the date
the ISO is granted or be eligible to receive an ISO that is exercisable later
than the fifth (5th) anniversary date of its grant. No Participant may be
granted ISOs (under the Plan and all other incentive stock option plans of the
Employer) which are first exercisable in any calendar year for Shares having an
aggregate Fair Market Value (determined as of the date an Option is granted)
that exceeds $100,000.

         

         

        
          
            
            

          

          
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        ARTICLE
6—STOCK APPRECIATION RIGHTS

         

        6.1      Grant of SARs. A Stock
Appreciation Right may be granted to an Eligible Participant in connection with
an Option granted under Article 5 of this Plan or may be granted independently
of any Option. A Stock Appreciation Right shall entitle the holder, within the
specified period, to exercise the SAR and receive in exchange a payment having
an aggregate value equal to the amount by which the Fair Market Value of a Share
exceeds the exercise price, times the number of Shares with respect to which the
SAR is exercised. A SAR granted in connection with an Option (a “Tandem SAR”)
shall entitle the holder of the related Option, within the period specified for
the exercise of the Option, to surrender the unexercised Option, or a portion
thereof, and to receive in exchange therefore a payment having an aggregate
value equal to the amount by which the Fair Market Value of a Share exceeds the
Option price per Share, times the number of Shares under the Option, or portion
thereof, which is surrendered.

         

        6.2      Tandem SARs. Each Tandem SAR
shall be subject to the same terms and conditions as the related Option,
including limitations on transferability, shall be exercisable only to the
extent such Option is exercisable and shall terminate or lapse and cease to be
exercisable when the related Option terminates or lapses. The grant of Stock
Appreciation Rights related to ISOs must be concurrent with the grant of the
ISOs. With respect to NQSOs, the grant either may be concurrent with the grant
of the NQSOs, or in connection with NQSOs previously granted under Article 5,
which are unexercised and have not terminated or lapsed.

         

        6.3      Payment. The Committee shall
have sole discretion to determine in each Award Agreement whether the payment
with respect to the exercise of an SAR will be in the form of cash, Shares, or
any combination thereof. If payment is to be made in Shares, the number of
Shares shall be determined based on the Fair Market Value of a Share on the date
of exercise. If the Committee elects to make full payment in Shares, no
fractional Shares shall be issued and cash payments shall be made in lieu of
fractional shares. The Committee shall have sole discretion to determine in each
Award Agreement the timing of any payment made in cash or Shares, or a
combination thereof, upon exercise of SARs. Payment may be made in a lump sum,
in annual installments or may be otherwise deferred; and the Committee shall
have sole discretion to determine in each Award Agreement whether any deferred
payments may bear amounts equivalent to interest or cash dividends.

         

        6.4      Duration, Exercise Price and
Exercise of SARs. Each SAR shall expire at such time as the Committee
shall determine at the time of grant; provided, however, that no SAR shall be
exercisable later than the seventh (7th) anniversary of its grant
date.  The exercise price for each grant of an SAR shall not be less
than the Fair Market Value of a Share on the date the SAR is granted. Upon
exercise of an SAR, the number of Shares subject to exercise under any related
Option shall automatically be reduced by the number of Shares represented by the
Option or portion thereof which is surrendered.  SARs granted under
the Plan shall be exercisable at such times and be subject to such restrictions
and conditions as the Committee shall in each instance approve, including
conditions related to the employment of or provision of services by the
Participant with the Company or any Employer, which need not be the same for
each grant or for each Participant. The Committee may provide in the Award
Agreement and/or an Individual Agreement that vesting of the Award shall
accelerate or other restrictions applicable to the Award shall lapse
only:  (i) in the event of the Participant’s death, Disability, or
Retirement, in connection with a Change of Control, or pursuant to Section 14.5;
or (ii) in any other circumstance, provided that the number of Shares subject to
Awards granted pursuant to this clause (ii), plus the number of Shares subject
to Awards granted pursuant to clause (iii) of the first sentence of Section 5.5,
clause (iii) of the first sentence of Section 7.2(b), and clause (ii) of the
second sentence of Section 8.3, does not exceed five percent (5%) of the number
of shares authorized for grant under this Plan.

         

        ARTICLE
7—RESTRICTED STOCK AND STOCK UNITS

         

        7.1      Grants of Restricted Stock and Stock
Units. Restricted Stock Awards and Stock Unit Awards may be made to
Eligible Participants as an incentive for the performance of future services
that the Committee in its sole discretion determines will contribute materially
to the successful operation of the Employer. Subject to 

         

         

        
          
            
            

          

          
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        Section
4.2 with respect to grants to Outside Directors, Awards of Restricted Stock or
Stock Units may be made either alone or in addition to or in tandem with other
Awards granted under the Plan and may be current grants of Restricted Stock or
Stock Units or deferred grants of Restricted Stock or Stock Units.

         

        7.2      Restricted Stock/Stock Unit Award
Agreement.

         

         (a) In General. The Restricted
Stock Award Agreement or the Stock Unit Award Agreement, as applicable, shall
set forth the terms of the Award, as determined by the Committee, including,
without limitation, the purchase price, if any, to be paid for such Restricted
Stock or Stock Unit, which may be more than, equal to, or less than Fair Market
Value of a Share and may be zero, subject to such minimum consideration as may
be required by applicable law; any restrictions applicable to the Restricted
Stock or Stock Unit such as continued service or achievement of performance
goals; the length of the Restriction Period and whether any circumstances will
shorten or terminate the Restriction Period; and rights of the Participant
during the Restriction Period to vote and receive dividends in the case of
Restricted Stock, or to receive dividend equivalents in the case of Stock Units
that accrue dividend equivalents.

         

         (b) Minimum Restriction Periods.
All grants of Restricted Stock or Stock Units shall have a Restriction Period of
at least three (3) years (or one (1) year in the case of Restricted Stock or
Stock Unit Awards with restrictions based solely on achievement of performance
goals), except that the Committee may provide in the Award Agreement and/or an
Individual Agreement for vesting of the Award on a pro rata basis during the
Restriction Period and/or that the Restriction Period for any Award may
otherwise be shortened only:  (i) in the event of the Participant’s
death, Disability, or Retirement, in connection with a Change of Control, or
pursuant to Section 14.5; (ii) for any Award granted on or before June 29, 2008,
in the event of the Participant’s Termination of Employment by the Company
without Cause or by the Participant for Good Reason; or (iii) in any other
circumstance, provided that the number of Shares subject to Awards granted
pursuant to this clause (iii), plus the number of Shares subject to Awards
granted pursuant to clause (iii) of the first sentence of Section 5.5, clause
(ii) of the third sentence of Section 6.4, and clause (ii) of the second
sentence of Section 8.3, does not exceed five percent (5%) of the number of
shares authorized for grant under this Plan.

         

         (c) Execution of Award
Agreements. Notwithstanding Section 3.5, a Restricted Stock or Stock Unit
Award must be accepted within a period of sixty (60) days after receipt, or such
other period as the Committee may specify, by executing a Restricted Stock/Stock
Unit Award Agreement and paying whatever price, if any, is required. The
prospective recipient of a Restricted Stock or Stock Unit Award shall not have
any rights with respect to such Award, unless and until such recipient has
executed a Restricted Stock/Stock Unit Award Agreement and has delivered a fully
executed copy thereof to the Company, and has otherwise complied with the
applicable terms and conditions of such Award.

         

        7.3      Nontransferability. Except as
otherwise provided in this Article 7 or in a Participant’s Award Agreement, no
shares of Restricted Stock or Stock Units received by a Participant shall be
sold, exchanged, transferred, pledged, assigned, hypothecated or otherwise
disposed of during the Restriction Period or, in the case of Stock Units, either
during or after the Restriction Period, other than by will or by the laws of
descent and distribution. Further, except as otherwise provided in a
Participant’s Award Agreement, a Participant’s rights under an Award of
Restricted Stock or Stock Units shall be exercisable during the Participant’s
lifetime only by the Participant or the Participant’s legal
representative.

         

        7.4      Certificates. Upon an Award
of Restricted Stock to a Participant, Shares of Restricted Stock shall be
registered in the Participant’s name. Certificates, if issued, may either be
held in custody by the Company until the Restriction Period expires or until
restrictions thereon otherwise lapse and/or be issued to the Participant and
registered in the name of the Participant, bearing an appropriate restrictive
legend and remaining subject to appropriate stop-transfer orders. If required by
the Committee, the Participant shall deliver to the Company one or more stock
powers endorsed in blank relating to the Restricted Stock. If and when the
Restriction Period expires without a prior forfeiture of the Restricted Stock
subject to such Restriction Period, unrestricted certificates for such shares
shall be delivered to the Participant; provided, however, that the Committee may


         

         

        
          
            
            

          

          
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        cause
such legend or legends to be placed on any such certificates as it may deem
advisable under the rules, regulations and other requirements of the Securities
and Exchange Commission and any applicable federal or state law.

         

        7.5      Dividends and Other
Distributions. Except as provided in this Article 7 or in the Award
Agreement, a Participant receiving a Restricted Stock Award shall have, with
respect to such Restricted Stock Award, all of the rights of a shareholder of
the Company, including the right to vote the Shares to the extent, if any, such
Shares possess voting rights and the right to receive any dividends; provided,
however, the Committee may require that any dividends on such Shares of
Restricted Stock shall be automatically deferred and reinvested in additional
Restricted Stock subject to the same restrictions as the underlying Award, or
may require that dividends and other distributions on Restricted Stock shall be
paid to the Company for the account of the Participant and held pending and
subject to the vesting of the applicable Shares. The Committee shall determine
whether interest shall be paid on such amounts, the rate of any such interest,
and the other terms applicable to such amounts. A Participant receiving a Stock
Unit Award shall not possess voting rights and shall accrue dividend equivalents
on such Units to the extent provided in the Award Agreement relating to the
Award. The Committee may require that such dividend equivalents shall be subject
to the same restrictions on vesting and payment as the underlying Award. In
addition, with respect to Awards intended to qualify for the performance-based
compensation provisions of Section 162(m) of the Code, the Committee may apply
any restrictions it deems appropriate to the payment of dividends declared with
respect to Restricted Stock such that the dividends and/or Restricted Stock
maintain eligibility for such provisions.

         

        ARTICLE
8—PERFORMANCE UNITS

         

        8.1      Grant of Performance Units.
Performance Units may be granted to Participants in such amounts and upon such
terms, and at any time and from time to time, as shall be determined by the
Committee.

         

        8.2      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 which, depending on the extent to which they are met, will determine
the number and/or value of Performance Units that will be paid out to the
Participant. For purposes of this Article 8, the time period during which the
performance goals must be met shall be called a “Performance
Period.”

         

        8.3      Earning of Performance Units.
Subject to the terms of this 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 as a function of the extent to which the
corresponding performance goals have been achieved.  The Committee may
provide in the Award Agreement and/or an Individual Agreement that the
Performance Units are earned notwithstanding achievement of the performance
goals only:  (i) in the event of the Participant’s death, Disability,
or Retirement, in connection with a Change of Control, or pursuant to Section
14.5; or (ii) in any other circumstance, provided that the number of Shares
subject to Awards granted pursuant to this clause (ii), plus the number of
Shares subject to Awards granted pursuant to clause (iii) of the first sentence
of Section 5.5, clause (ii) of the third sentence of Section 6.4, and clause
(iii) of the first sentence of Section 7.2(b), does not exceed five percent (5%)
of the number of shares authorized for grant under this Plan.

         

        8.4      Form and Timing of Payment of
Performance Units. Subject to the terms of this Plan, the Committee, in
its sole discretion, may pay earned Performance Units in the form of cash or in
Shares (or in a combination thereof) that has 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 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 Award Agreement pertaining to the grant of
the Award. Except as otherwise provided in the Participant’s Award Agreement, a
Participant shall be entitled to receive any dividends declared with respect to
earned grants of Performance Units that are being settled in Shares


         

         

        
          
            
            

          

          
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        and that
have not yet been distributed to the Participant (such dividends may be subject
to the same accrual, forfeiture, and payout restrictions as apply to dividends
earned with respect to Stock Units, as set forth in Section 7.5 herein). In
addition, unless otherwise provided in the Participant’s Award Agreement, a
Participant shall be entitled to exercise full voting rights with respect to
such Shares.

         

        8.5      Nontransferability. Except as
otherwise provided in a Participant’s Award Agreement, Performance Units may not
be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated,
other than by will or by the laws of descent and distribution.

         

        ARTICLE
9—PERFORMANCE MEASURES

         

        9.1      Approved Measures. Until the
Committee proposes for shareholder vote and shareholders approve a change in the
general performance measures set forth in this Article 9, the attainment of
which may determine the degree of payout and/or vesting with respect to Awards
that are intended to qualify under the performance-based compensation provisions
of Section 162(m) of the Code, the performance measure(s) to be used for
purposes of such Awards shall be chosen from among the following: earnings,
earnings per share, consolidated pre-tax earnings, net earnings, operating
income, EBIT (earnings before interest and taxes), EBITDA (earnings before
interest, taxes, depreciation and amortization), gross margin, revenues, revenue
growth, market value added, economic value added, return on equity, return on
investment, return on assets, return on net assets, return on capital employed,
total shareholder return, profit, economic profit, after-tax profit, pre-tax
profit, cash flow measures, cash flow return, sales, sales volume, stock price,
cost, and/or unit cost. The Committee can establish other performance measures
for Awards granted to Eligible Participants that are not intended to qualify
under the performance-based compensation provisions of Section 162(m) of the
Code.

         

        9.2      Adjustments to Measures. The
Committee shall be authorized to make adjustments in performance-based criteria
or in the terms and conditions of other Awards in recognition of unusual or
nonrecurring events affecting the Company or its financial statements or changes
in applicable laws, regulations or accounting principles. In the case of Awards
that are intended to qualify under the performance-based compensation provisions
of Section 162(m) of the Code, such adjustments shall be made in accordance with
guidelines established by the Committee at the time the performance-based Award
is granted (or within such period thereafter as may be permissible under Section
162(m) of the Code). The Committee shall also have the discretion to adjust the
determinations of the degree of attainment of the pre-established performance
goals; provided, however, that Awards which are designed to qualify for the
performance-based compensation exception from the deductibility limitations of
Section 162(m) of the Code, and which are held by executive officers, may not be
adjusted upward (the Committee shall retain the discretion to adjust such Awards
downward).

         

        9.3      Use of Other Measures. If
changes in applicable laws or regulations permit the Committee, in the case of
Awards intended to qualify under the performance-based compensation provisions
of Section 162(m) of the Code, discretion to use performance measures other than
those listed in Section 9.1 without obtaining shareholder approval of such
changes, the Committee may make such changes without obtaining shareholder
approval. In addition, in the event that the Committee determines that it is
advisable to grant Awards which shall not qualify for the performance-based
compensation exception from the deductibility limitations of Section 162(m) of
the Code, the Committee may make such grants without satisfying the requirements
of Section 162(m) of the Code.

         

        ARTICLE
10—AWARDS TO NON-EMPLOYEE DIRECTORS

         

        An Outside Director may be granted
one or more Awards of Nonqualified Stock Options, Stock Appreciation Rights,
Restricted Stock, Stock Units or a combination thereof in any fiscal year,
subject to the limitations of Section 4.2. The number of Shares subject to such
Awards, any formula pursuant to which such number shall be determined, the date
of grant and the vesting, expiration and other terms applicable to such Awards
shall be approved from time to time by the Committee and shall be subject to the
terms of this Plan applicable to Awards in general. Outside Directors may
receive Awards under the Plan only as provided in this Article 10.

         

         

        
          
            
            

          

          
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        ARTICLE
11—BENEFICIARY DESIGNATION

         

        If and to the extent permitted by the
Committee, each Participant under the Plan may, from time to time, name any
beneficiary or beneficiaries (who may be named contingently or successively) to
whom any benefit under the Plan is to be paid in case of his or her death before
he or she receives any or all of such benefit. If any such designation is
permitted, the Committee shall, in its sole discretion, establish rules and
procedures for such designations. Unless different rules and procedures are
established by the Committee, each such designation shall revoke all prior
designations by the same Participant, shall be in a form prescribed by the
Company, and will be effective only when filed by the Participant in writing
with a designated representative of the Committee during the Participant’s
lifetime. In the absence of any such designation, benefits remaining unpaid at
the Participant’s death shall be paid to the Participant’s estate.

         

        ARTICLE
12—DEFERRALS

         

        The Committee may permit or require a
Participant to defer such Participant’s receipt of the payment of cash or the
delivery of Shares that would otherwise be due to such Participant by virtue of
the exercise of an Option or SAR, the lapse or waiver of restrictions with
respect to Restricted Stock, or the satisfaction of any requirements or goals
with respect to Stock Units. If any such deferral election is required or
permitted, the Committee shall, in its sole discretion, establish rules and
procedures for such deferrals, and the Committee may provide for such
arrangements, including conversion to another form of Award that is available
under the Plan and has equivalent value, as it deems necessary in order to
permit the deferral of taxes in connection with such deferral by the
Participant.

         

        ARTICLE
13—WITHHOLDING

         

        13.1    Tax Withholding. The Company
shall have the power and the right to deduct or withhold, or require a
Participant to remit to the Company, an amount sufficient to satisfy federal,
state, and local taxes, domestic or foreign, required by law or regulation to be
withheld with respect to any taxable event arising as a result of this Plan. The
Company shall not be required to issue Shares or to recognize the disposition of
such Shares until such obligations are satisfied.

         

        13.2    Share Withholding. With
respect to withholding required upon the exercise of Options or SARs, upon the
lapse of restrictions on Restricted Stock, or upon any other taxable event
arising as a result of Awards granted hereunder, to the extent permitted or
required by the Committee, these obligations may or shall be satisfied by having
the Company withhold Shares having a Fair Market Value on the date the tax is to
be determined equal to not more than the minimum amount of tax required to be
withheld with respect to the transaction. All such elections shall be subject to
any restrictions or limitations that the Committee, in its sole discretion,
deems appropriate.

         

        ARTICLE
14—AMENDMENT AND TERMINATION

         

        14.1    Amendment of Plan. Except as
otherwise provided in this Section 14.1, the Committee or the Board may at any
time terminate or from time to time amend the Plan in whole or in part, but no
such action shall adversely affect any rights or obligations with respect to any
Awards previously granted under the Plan, unless the affected Participants
consent in writing. Neither the Committee nor the Board may, without approval of
the shareholders of the Company, amend the Plan to (i) materially increase
benefits accruing to Participants under the Plan, (ii) materially increase the
number of Shares which may be issued under the Plan or (iii) materially modify
the requirements for participation in the Plan. The Company will also obtain the
approval of the shareholders before amending the Plan to the extent required by
Section 162(m) or Section 422 of the Code or the rules of any securities
exchange or quotation or trading system on which Shares are traded or other
applicable law.

         

         

        
          
            
            

          

          
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        14.2    Amendment of Award;
Repricing. The Committee may, at any time, amend outstanding Awards in a
manner not inconsistent with the terms of the Plan; provided, however, that: (i)
if such amendment is adverse to the Participant, as determined by the Committee,
the amendment shall not be effective unless and until the Participant consents,
in writing, to such amendment, except as provided in Section 14.4 or in the
Award Agreement; and (ii) the Committee shall not have the authority to decrease
the exercise price of any outstanding Option or SAR, nor award any Option or SAR
in replacement of a canceled Option or SAR with a higher exercise price, except
in accordance with Section 4.3 or unless such an amendment is approved by the
shareholders of the Company. To the extent not inconsistent with the terms of
the Plan and the foregoing, the Committee may, at any time, amend an outstanding
Award Agreement in a manner that is not unfavorable to the Participant without
the consent of such Participant.  Neither the Committee nor the Board
may amend, waive, lapse or otherwise modify any conditions or restrictions in
any outstanding Award without approval of the shareholders of the Company,
except to the extent the Awards so modified would have been permitted by clause
(iii) of the first sentence of Section 5.5, clause (ii) of the third sentence of
Section 6.4, clause (iii) of the first sentence of Section 7.2(b), or clause
(ii) of the second sentence of Section 8.3.

         

        14.3    Termination of Plan. No
Awards shall be granted under the Plan after November 3, 2015, but Awards
theretofore granted may extend beyond that date.

         

        14.4    Cancellation of
Awards.

         

         (a) The Committee may, in its
sole discretion, provide in the Award Agreement that if a Participant engages in
any “Detrimental Activity” (as defined below), the Committee may,
notwithstanding any other provision in this Plan to the contrary, cancel,
rescind, suspend, withhold or otherwise restrict or limit any unexpired,
unexercised, unpaid or deferred Award as of the first date the Participant
engages in the Detrimental Activity, unless sooner terminated by operation of
another term of this Plan or any other agreement. Without limiting the
generality of the foregoing, the Award Agreement may also provide that if the
Participant exercises an Option or SAR, receives a Performance Unit payout,
receives or vests in Shares under an Award or vests in or receives a payout
under a Stock Unit at any time during the period beginning six months prior to
the date the Participant first engages in Detrimental Activity and ending six
months after the date the Participant ceases to engage in any Detrimental
Activity, the Participant shall be required to pay to the Company the excess of
the then fair market value of the Shares subject to the Award over the total
price paid by the Participant for such Shares.

         

         (b) For purposes of this
Section, except to the extent provided otherwise in the Award Agreement,
“Detrimental Activity” means any of the following, as determined by the
Committee in good faith: (i) the violation of any agreement between the Company
or any Employer and the Participant relating to the disclosure of confidential
information or trade secrets, the solicitation of employees, customers,
suppliers, licensees, licensors or contractors, or the performance of
competitive services; (ii) conduct that constitutes Cause (as defined in Section
2.4 above without regard to any definition of Cause in any Individual
Agreement), whether or not the Participant’s employment is terminated for Cause;
(iii) making, or causing or attempting to cause any other person to make, any
statement, either written or oral, or conveying any information about the
Company or any other Employer which is disparaging or which in any way reflects
negatively upon the Company or the Employer; (iv) improperly disclosing or
otherwise misusing any confidential information regarding the Company or any
Employer; or (v) the refusal or failure of a Participant to provide, upon the
request of the Company, a certification, in a form satisfactory to the Company,
that he or she has not engaged in any activity described in clauses
(i)-(iv).

         

        14.5    Assumption or Acceleration of
Awards. In the event of a proposed sale of all or substantially all of
the assets or stock of the Company, the merger of the Company with or into
another corporation such that shareholders of the Company immediately prior to
the merger exchange their shares of stock in the Company for cash and/or shares
of another entity or any other corporate transaction to which the Committee
deems this provision applicable, each Award shall be assumed or an equivalent
Award shall be substituted by the successor corporation or a parent or
subsidiary of such successor corporation (and adjusted as appropriate), unless
such 

         

         

        
          
            
            

          

          
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        successor
corporation does not agree to assume the Award or to substitute an equivalent
award, in which case the Committee may, in lieu of such assumption or
substitution, provide for the Participant to have the right to exercise the
Option or other Award as to all Shares, including Shares as to which the Option
or other Award would not otherwise be exercisable (or with respect to Restricted
Stock or Stock Units, provide that all restrictions shall lapse). If the
Committee makes an Option or other Award fully exercisable in lieu of assumption
or substitution in the event of a merger or sale of assets or stock or other
corporate transaction, the Committee shall notify the Participant that, subject
to rescission if the merger, sale of assets or stock or other corporate
transaction is not successfully completed within a certain period, the Option or
other Award shall be fully exercisable for a period of fifteen (15) days from
the date of such notice (or such other period as provided by the Committee),
and, to the extent not exercised, the Option or other Award will terminate upon
the expiration of such period.

         

        ARTICLE
15—MISCELLANEOUS PROVISIONS

         

        15.1    Restrictions on Shares. All
certificates for Shares delivered under the Plan shall be subject to such
stop-transfer orders and other restrictions as the Committee may deem advisable
under the rules and regulations of the Securities and Exchange Commission, any
securities exchange or quotation or trading system on which Shares are traded
and any applicable federal, state, local or foreign laws, and the Committee may
cause a legend or legends to be placed on any such certificates to make
appropriate reference to such restrictions. In making such determination, the
Committee may rely upon an opinion of counsel for the Company. Notwithstanding
any other provision of the Plan, the Company shall have no liability to deliver
any Shares under the Plan or make any other distribution of the benefits under
the Plan unless such delivery or distribution would comply with all applicable
laws (including, without limitation, the requirements of the Securities Act of
1933), and the applicable requirements of any securities exchange or quotation
or trading system on which Shares are traded.

         

        15.2    Rights of a Shareholder.
Except as otherwise provided in Article 7 of the Plan and in the Restricted
Stock Award Agreement, each Participant who receives an Award of Restricted
Stock shall have all of the rights of a shareholder with respect to such Shares,
including the right to vote the Shares to the extent, if any, such Shares
possess voting rights and receive dividends and other distributions. Except as
provided otherwise in the Plan or in an Award Agreement, no Participant shall
have any rights as a shareholder with respect to any Shares covered by an Award
prior to the date of issuance to him or her of a certificate or certificates for
such Shares.

         

        15.3    No Implied Rights. Nothing in
the Plan or any Award granted under the Plan shall confer upon any Participant
any right to continue in the service of the Employer, or to serve as a member of
the Board, or interfere in any way with the right of the Employer to terminate
his or her employment or other service relationship at any time. Except to the
extent approved by the Board, no Award granted under the Plan shall be deemed
salary or compensation for the purpose of computing benefits under any employee
benefit plan, severance program, or other arrangement of the Employer for the
benefit of its employees. No Participant shall have any claim to an Award until
it is actually granted under the Plan. To the extent that any person acquires a
right to receive payments from the Company under the Plan, such right shall,
except as otherwise provided by the Committee, be no greater than the right of
an unsecured general creditor of the Company.

         

        15.4    Compliance with Laws. At all
times when the Committee determines that compliance with Section 162(m) of the
Code is required or desirable, all Awards granted under this Plan shall comply
with the requirements of Section 162(m) of the Code. In addition, in the event
that changes are made to Section 162(m) of the Code to permit greater
flexibility with respect to any Awards under the Plan, the Committee may,
subject to the requirements of Article 14, make any adjustments it deems
appropriate. The Plan and the grant of Awards shall be subject to all applicable
federal, state local and foreign laws, rules, and regulations and to such
approvals by any government or regulatory agency as may be
required.

         

        15.5    Successors. The terms of the
Plan shall be binding upon the Company, and its successors and
assigns.

         

         

        
          
            
            

          

          
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        15.6    Tax Elections. Each
Participant shall give the Committee prompt written notice of any election made
by such Participant under Section 83(b) of the Code or any similar provision
thereof. Notwithstanding the preceding sentence, the Committee may condition any
award on the Participant’s not making an election under Section 83(b) of the
Code.

         

        15.7    Legal
Construction.

         

         (a) Severability. If any
provision of this Plan or an Award Agreement is or becomes or is deemed invalid,
illegal or unenforceable in any jurisdiction, or would result in the Plan or any
Award Agreement not complying with any law deemed applicable by the Committee,
such provision shall be construed or deemed amended to conform to 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 Agreement, it shall be stricken and the remainder of the Plan or the
Award Agreement shall remain in full force and effect.

         

         (b) Gender and Number. Where the
context permits, words in any gender shall include the other gender, words in
the singular shall include the plural and words in the plural shall include the
singular.

         

         (c) Governing Law. To the extent
not preempted by federal law, the Plan and all Award Agreements hereunder, shall
be construed in accordance with and governed by the substantive laws of the
State of North Carolina.



      
        
          
          

        

        
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