exv10w24






Exhibit 10.24




DOLE FOOD COMPANY, INC.

2009 STOCK INCENTIVE PLAN




1. Purpose




     The purpose of the Dole Food Company, Inc. 2009 Stock Incentive Plan is to advance the
interests of Dole Food Company, Inc. and its Affiliates by stimulating the efforts of employees,
officers, non-employee directors and other service providers, in each case who are selected to be
participants, by heightening the desire of such persons to continue working toward and contributing
to the success and progress of the Corporation. The Plan provides for the potential grant of
Incentive and Nonqualified Stock Options, Stock Appreciation Rights, Restricted Stock and
Restricted Stock Units, any of which may be performance-based, and for Incentive Bonuses, which may
be paid in cash or stock or a combination thereof, as determined by the Administrator.



2. Definitions




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



     (a) “Administrator” means the Administrator of the Plan in accordance with Section 18.



     (b) “Affiliate” shall have the meaning ascribed in Rule 12b-2 promulgated under the Exchange
Act.



     (c) “Associate” shall have the meaning ascribed in Rule 12b-2 promulgated under the Exchange
Act.



     (d) “Award” means an Incentive Stock Option, Nonqualified Stock Option, Stock Appreciation
Right, Restricted Stock, Restricted Stock Unit or Incentive Bonus granted to a Participant pursuant
to the provisions of the Plan, any of which the Administrator may structure to qualify in whole or
in part as a Performance Award.



     (e) “Award Agreement” means a written agreement or other instrument as may be approved from
time to time by the Administrator implementing the grant of each Award. An Agreement may be in the
form of an agreement to be executed by both the Participant and the Corporation (or an authorized
representative of the Corporation) or certificates, notices or similar instruments as approved by
the Administrator.



     (f) “Beneficially Owned” shall have the meaning ascribed in Rule 13d-3 under the Exchange Act.



     (g) “Beneficiary” means the person, persons, trust or trusts entitled, by will, the laws of
descent and distribution or by designation on a beneficiary designation form adopted by the
Administrator for such purpose, to receive the benefits specified under this Plan in the event of a
Participant’s death.



 









 





     (h) “Board” means the Board of Directors of the Corporation.



     (i) “Cause” means (unless otherwise expressly provided in the Award Agreement or another
contract, including an employment agreement) Dole’s termination of the Participant’s employment
with Dole pursuant (except under clause (5), below, in which case Dole need not send a Notice of
Termination) to a Notice of Termination given within 120 days following Dole becoming aware of the
occurrence of any one or more of the following to the extent (in the case of clause (2) or (3) if
remediable) not remedied in a reasonable period of time after receipt by the Participant of written
notice from Dole specifying such occurrence:




     (1) The Participant is convicted of, or plead guilty or nolo contendere to, a felony;




     (2) The Participant commits an act of gross misconduct in connection with the
performance of the Participant’s duties;




     (3) The Participant demonstrates habitual negligence in the performance of the
Participant’s duties;




     (4) The Participant commits an act of fraud, misappropriation of funds or embezzlement
in connection with the Participant’s employment by Dole;




     (5) The Participant’s death; or




     (6) The Participant’s Disability.


Notwithstanding the foregoing, the Participant shall not be deemed to have been terminated by the
Corporation for Cause under clauses (2)—(4) or (6) until the later to occur of (i) the 30th day
after Notice of Termination is given and (ii) the delivery to the Participant of a certified copy
of a resolution duly adopted by the affirmative vote of not less than a majority of the total
number of directors at a meeting duly called and held (after reasonable notice to the Participant),
and at which the Participant, together with the Participant’s counsel, was given an opportunity to
be heard, finding that one or more of the events described in clauses (2)—(4) or (6) above
occurred, and specifying the particulars thereof in detail; provided, however, the Corporation may
suspend the Participant and withhold payment and/or suspend vesting in connection with any Award
from the date that Notice of Termination is given until the earliest to occur of (i) termination by
the Corporation for Cause effected in accordance with the foregoing procedures (in which case the
Participant shall not be entitled to such compensation or benefits for such period), (ii) a
determination by a majority of our directors that none of the events described in clauses (2)—(4)
or (6) above occurred (in which case the Participant shall be reinstated and shall receive any of
the Participant’s previously withheld and/or suspended compensation and benefits for such period),
or (iii) the 90th day after Notice of Termination is given (in which case the Participant shall be
reinstated and shall receive any of the Participant’s previously withheld and/or suspended
compensation and benefits for such period).




     (j) “Change of Control” (unless otherwise expressly provided in the Award Agreement or another
contract, including an employment agreement) shall be deemed to occur if



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and as of the first day that any one or more of the following conditions are satisfied,
whether accomplished directly or indirectly, or in one or a series of related transactions:





     (1) any “Person” (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act), other than (a) David H. Murdock or (b) following the death of David H. Murdock, the
trustee or trustees of a trust created by David H. Murdock, becomes the “Beneficial Owner”
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Corporation representing 20% or more of the combined voting power of the Corporation’s
then outstanding securities;




     (2) individuals who, as of the Effective Date, constitute the Board (the “Incumbent
Board”) cease for any reason to constitute at least a majority of the Board; provided,
however, that any individual who becomes a director subsequent to the Effective Date whose
election, or nomination for election by the Corporation’s stockholders, was approved by a
vote of at least two-thirds of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, unless the
individual’s initial assumption of office occurs as a result of either an actual or
threatened election contest or other actual or threatened tender offer, solicitation of
proxies or consents by or on behalf of a Person other than the Board;




     (3) a reorganization, merger, consolidation, recapitalization, tender offer, exchange
offer or other extraordinary transaction involving Dole (a “Fundamental Transaction”)
becomes effective or is consummated, unless: (i) more than 50% of the outstanding voting
securities of the surviving or resulting entity (including, without limitation, an entity
(“Parent”) which as a result of such transaction owns the Corporation or all or
substantially all of the Corporation’s assets either directly or through one or more
subsidiaries) (“Resulting Entity”) are, or are to be, Beneficially Owned, directly or
indirectly, by all or substantially all of the Persons who were the Beneficial Owners of the
outstanding voting securities of the Corporation immediately prior to such Fundamental
Transaction (excluding, for such purposes, any Person who is or, within two years prior to
the consummation date of such Fundamental Transaction, was, an Affiliate or Associate (other
than an Affiliate of Dole Food Company, Inc. immediately prior to such consummation date)
(as each of Affiliate and Associate are defined in Rule 12b-2 promulgated under the Exchange
Act) of a party to the Fundamental Transaction) in substantially the same proportions as
their Beneficial Ownership, immediately prior to such Fundamental Transaction, of the
outstanding voting securities of the Corporation and (ii) more than half of the members of
the board of directors or similar body of the Resulting Entity (or its parent) were members
of the Incumbent Board at the time of the execution of the initial agreement providing for
such Fundamental Transaction;




     (4) A sale, transfer or any other disposition (including, without limitation, by way of
spin-off, distribution, complete liquidation or dissolution) of all or substantially all of
the Corporation’s business and/or assets (an “Asset Sale”) is consummated, unless,
immediately following such consummation, all of the requirements of clauses (3)(i) and
(3)(ii) of this definition of Change of Control are satisfied, both with respect to the



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Corporation and with respect to the entity to which such business and/or assets have
been sold, transferred or otherwise disposed of or its parent (a “Transferee Entity”); or




     (5) Any other significant corporate transaction determined by the Board or the
Corporate Compensation and Benefits Committee of the Board to be a change of control for
purposes of the Plan.


The consummation or effectiveness of a Fundamental Transaction or an Asset Sale shall be deemed not
to constitute a Change of Control if more than 50% of the outstanding voting securities of the
Resulting Entity or the Transferee Entity, as appropriate, are, or are to be, Beneficially Owned by
David H. Murdock. For the avoidance of doubt, the consummation of the Initial Public Offering
shall not be considered a Change of Control or Fundamental Transaction for any purpose under this
Plan or any Award. If, in the Initial Public Offering, any Person (other than David H. Murdock)
becomes the Beneficial Owner, directly or indirectly, of securities of the Corporation representing
20% or more of the combined voting power of the Corporation’s then outstanding securities, no
Change of Control shall be deemed to have then occurred, and no Change of Control shall be deemed
to occur thereafter solely as a result of such Person’s Beneficial Ownership of the Corporation’s
securities unless and until (if ever) such Person becomes the Beneficial Owner, directly or
indirectly, of securities of the Corporation representing at least 1% more of the combined voting
power of the Corporation’s then outstanding securities than the percentage of the Corporation’s
outstanding securities Beneficially Owned by such Person upon the consummation of the Initial
Public Offering.




     (k) “Code” means the Internal Revenue Code of 1986, as amended from time to time, and the
rulings and regulations issues thereunder.



     (l) “Common Stock” means the Corporation’s common stock, par value $0.001, subject to
adjustment as provided in Section 12.



     (m) “Corporation” means Dole Food Company, Inc., a Delaware corporation, and its successors.
For purposes of this definition of Corporation, after the consummation of a Fundamental Transaction
or an Asset Sale, the term “successor” shall include, without limitation, the Resulting Entity or
Transferee Entity, respectively.



     (n) “Dole” means the Corporation and/or its Subsidiaries.



     (o) “Disability” shall have the meaning ascribed to such term in the Participant’s governing
long-term disability plan, or if no such plan exists, shall mean a Participant’s absence from, or
inability to perform duties for, the Corporation on a full-time basis for 90 consecutive business
days or 120 business days in any period of 180 business days as a result of mental or physical
illness or injury that is total and permanent, as determined by a physician selected by the
Corporation or its insurers and acceptable to the Participant or the Participant’s legal
representative (such agreement as to acceptability not to be withheld unreasonably) and that is not
susceptible to reasonable accommodation.



     (p) “Effective Date” means the date the Plan becomes effective pursuant to Section 4.



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     (q) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.



     (r) “Fair Market Value” means, as of any given date, the closing sales price on such date
during normal trading hours (or, if there are no reported sales on such date, on the last date
prior to such date on which there were sales) of the Shares on the New York Stock Exchange
Composite Tape or, if not listed on such exchange, on any other national securities exchange on
which the Shares are listed or on NASDAQ, in any case, as reported in such source as the
Administrator shall select. If there is no regular public trading market for such Common Shares,
the Fair Market Value of the Shares shall be determined by the Administrator in good faith and in
compliance with Section 409A of the Code.



     (s) “Good Reason” means (unless otherwise expressly provided in the Award Agreement or another
contract, including an employment agreement) a Participant’s resignation of employment with Dole
within 120 days following the occurrence of one or more of the following to the extent not remedied
in a reasonable period of time after receipt by Dole of written notice from the Participant
specifying such occurrence, without the Participant’s express written consent:




     (1) Whether direct or indirect, a significant diminution of the Participant’s
authority, duties, responsibilities or status inconsistent with and below those held,
exercised and assigned in the ordinary course during the 90 day period immediately preceding
the Change of Control, excluding any such significant diminution that (i) begins prior, and
ends on or prior, to the date on which a Fundamental Transaction or Asset Sale becomes
effective or is consummated that constitutes a Change of Control, and (ii) results from the
affirmative and negative pre-closing operating covenants applicable to Dole contained in the
definitive transaction agreements providing for such Fundamental Transaction or Asset Sale;




     (2) The assignment to the Participant of duties that are inconsistent (in any
significant respect) with, or that impair (in any significant respect) the Participant’s
ability to perform, the duties customarily assigned to an individual holding the position
the Participant held immediately prior to the Change of Control in a corporation of the size
and nature of Dole, or, if the Participant was employed prior to termination by a Subsidiary
or business unit of the Corporation, in a subsidiary or business unit of the size and nature
of the Subsidiary or business unit of the Corporation in which the Participant was employed;




     (3) Relocation of the Participant’s primary office more than 35 miles from the
Participant’s current office at the time of the Change of Control;




     (4) Any material breach by the Corporation of any employment or other agreement between
the Corporation and the Participant;




     (5) Any reduction in the Participant’s base salary below the Participant’s base salary
in effect immediately prior to the Change of Control (or if the Participant’s base



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salary was reduced within 180 days before the Change of Control, the base salary in
effect immediately prior to such reduction);




     (6) The failure of Dole or any successor to continue in effect any equity-based or
non-equity based incentive compensation plan (whether annual or long-term) in effect
immediately prior to the Change of Control, or a non de minimis reduction, in the aggregate,
in the Participant’s participation in any such plans (based upon (x) in the case of equity
based plans, the average grant date fair value of the Participant’s awards under such plans
over the three years preceding the Change of Control (or such lesser period following the
Dole’s initial public offering that the Participant was employed by Dole or any successor)
or (y) in the case of non-equity based plans, the Participant’s target award under such
plans for the performance period in which the Change of Control occurs), unless the
Participant is afforded the opportunity to participate in an alternative incentive
compensation plan of reasonably equivalent value; provided that a reduction in the aggregate
value of the Participant’s participation in any such plans of not more than 5% in connection
with across-the-board reductions or modifications affecting all similarly situated
Participants of comparable rank in Dole or a combined organization shall not constitute Good
Reason (all determinations under this clause (6) shall be made in good faith by the
corporate compensation and benefits committee of the board of directors of Dole or any
successor in its sole discretion); or




     (7) Any reduction in the aggregate value of benefits provided to the Participant, as in
effect at the time of the Change of Control; provided that a reduction in the aggregate
value of benefits of not more than 5% in connection with across-the-board reductions or
modifications affecting all similarly situated Participants of comparable rank in Dole or a
combined organization shall not constitute Good Reason. All determinations under this
clause (7) shall be made in good faith by the corporate compensation and benefits committee
of the board of directors of Dole or any successor in its sole discretion. As used herein,
“benefits” shall include all deferred compensation, retirement, pension, health, medical,
dental, disability, insurance, automobile, and similar benefits.



     (t) “Incentive Bonus” means a bonus opportunity awarded under Section 9 pursuant to which a
Participant may become entitled to receive an amount based on satisfaction of such performance
criteria as are specified in the Award Agreement. Nothing herein shall be construed as creating
any limitations on Dole’s ability to adopt such other incentive arrangements as either may deem
desirable, including without limitation, annual and/or long-term cash-based incentive compensation
plans.



     (u) “Incentive Stock Option” means a stock option that is intended to qualify as an “incentive
stock option” within the meaning of Section 422 of the Code.



     (v) “Initial Public Offering” means the transactions leading up to, and including, the initial
sale by the Underwriters of the shares of the Common Stock pursuant to the Corporation’s
Registration Statement on Form S-1 filed with the Securities and Exchange Commission on August 14,
2009, as amended (the “Form S-1”). For purposes of this definition, the term



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“Underwriters” shall have the meaning ascribed thereto in that certain Underwriting Agreement
attached as Exhibit 1.1 to the Form S-1, as amended.




     (w) “Nonemployee Director” means each person who is, or is elected to be, a member of the
Board and who is not an employee of the Corporation or any Subsidiary.



     (x) “Nonqualified Stock Option” means a stock option that is not intended to qualify as an
“incentive stock option” within the meaning of Section 422 of the Code.



     (y) “Notice of Termination” means a written notice which (1) indicates the specific
termination provision in the Plan relied upon, and (2) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for termination of the
Participant’s employment under the provision so indicated.



     (z) “Option” means an Incentive Stock Option and/or a Nonqualified Stock Option granted
pursuant to Section 6 of the Plan.



     (aa) “Participant” means any individual described in Section 3 to whom Awards have been
granted from time to time by the Administrator and any authorized transferee of such individual.



     (bb) “Performance Award” means an Award, the grant, issuance, retention, vesting or settlement
of which is subject to satisfaction of one or more performance criteria established pursuant to
Section 13.



     (cc) “Plan” means the Dole Food Company, Inc. 2009 Stock Incentive Plan as set forth herein
and as amended from time to time.



     (dd) “Restricted Stock” means Shares granted pursuant to Section 8 of the Plan.



     (ee) “Restricted Stock Unit” means an Award granted to a Participant pursuant to Section 8
pursuant to which Shares or cash in lieu thereof may be issued in the future.



     (ff) “Retirement” means retirement from active employment or service with Dole either (1) at
or after age 65 or (2) at or after age 55 with at least 5 years of full-time employment or service
with Dole.



     (gg) “Share” means a share of the Common Stock, subject to adjustment as provided in Section
12.



     (hh) “Stock Appreciation Right” means a right granted pursuant to Section 7 of the Plan that
entitles the Participant to receive, in cash or Shares or a combination thereof, as determined by
the Administrator, value equal to or otherwise based on the excess of (i) the Fair Market Value of
a specified number of Shares at the time of exercise over (ii) the exercise price of the right, as
established by the Administrator on the date of grant.



     (ii) “Subsidiary” means any corporation or other entity a majority or more of the outstanding
voting stock or voting power of which is beneficially owned directly or indirectly by



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the Corporation, and if specifically determined by the Administrator in the context other than
with respect to Incentive Stock Options, may include an entity in which the Corporation has a
significant ownership interest or that is directly or indirectly controlled by the Corporation.




     (jj) “Termination of Employment” means ceasing to serve as an employee of the Corporation or
any Subsidiary or, with respect to a Nonemployee Director or other service provider, ceasing to
serve as such for the Corporation, except that with respect to all or any Awards held by a
Participant (i) the Administrator may determine, subject to Section 6(c), that an approved leave of
absence or approved employment on a less than full-time basis shall be considered a Termination of
Employment, (ii) the Administrator may determine that a transition of employment to service with a
partnership, joint venture or corporation not meeting the requirements of a Subsidiary in which the
Corporation or a Subsidiary is a party is not considered a Termination of Employment, (iii) service
as a member of the Board or other service provider shall constitute continued employment with
respect to Awards granted to a Participant while he or she served as an employee and (iv) service
as an employee of the Corporation or a Subsidiary shall constitute continued employment with
respect to Awards granted to a Participant while he or she served as a member of the Board or other
service provider. The Administrator shall determine whether any corporate transaction, such as a
sale or spin-off of a division or subsidiary that employs a Participant, shall be deemed to result
in a Termination of Employment with the Corporation or any Subsidiary for purposes of any affected
Participant’s Options, and the Administrator’s decision shall be final and binding.



3. Eligibility




     Any person who is a current or prospective officer or employee of the Corporation or of any
Subsidiary shall be eligible for selection by the Administrator for the grant of Awards hereunder.
In addition, Nonemployee Directors and any other service providers who have been retained to
provide consulting, advisory or other services to the Corporation or to any Subsidiary shall be
eligible for the grant of Awards hereunder as determined by the Administrator. Options intending
to qualify as Incentive Stock Options may only be granted to employees of the Corporation or any
corporate Subsidiary within the meaning of the Code, as selected by the Administrator.



4. Effective Date and Termination of Plan




     This Plan was adopted by the Board and approved by the Corporation’s stockholders by written
consent in accordance with the laws of the State of Delaware as of October 8, 2009 (the “Effective
Date”). The Plan shall remain available for the grant of Awards until the tenth (10th) anniversary
of the Effective Date. Notwithstanding the foregoing, the Plan may be terminated at such earlier
time as the Board may determine. Termination of the Plan will not affect the rights and
obligations of the Participants and the Corporation arising under Awards theretofore granted and
then in effect.



5. Shares Subject to the Plan and to Awards




     (a) Aggregate Limits. The aggregate number of Shares issuable pursuant to all Awards shall
not exceed 6,000,000. The aggregate number of Shares that may be issued



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pursuant to the exercise of Incentive Stock Options granted under this Plan shall not exceed
6,000,000, which number shall be calculated and adjusted pursuant to Section 12 only to the extent
that such calculation or adjustment will not affect the status of any option intended to qualify as
an Incentive Stock Option under Section 422 of the Code.




     (b) Adjustment. The aggregate number of Shares available for grant under this Plan and the
number of Shares subject to outstanding Awards shall be subject to adjustment as provided in
Section 12. The Shares issued pursuant to Awards granted under this Plan may be shares that are
authorized and unissued or shares that were reacquired by the Corporation, including shares
purchased in the open market.



     (c) Issuance of Shares. For purposes of Section 5(a), the aggregate number of Shares issued
under this Plan at any time shall equal only the number of Shares actually issued upon exercise or
settlement of an Award. The aggregate number of Shares available for Awards under this Plan at any
time shall not be reduced by (i) Shares subject to Awards that have been terminated, expired
unexercised, forfeited or settled in cash, (ii) Shares subject to Awards that have been retained or
withheld by the Corporation in payment or satisfaction of the exercise price, purchase price or tax
withholding obligation of an Award, or (iii) Shares subject to Awards that otherwise do not result
in the issuance of Shares in connection with payment or settlement thereof. In addition, Shares
that have been delivered (either actually or by attestation) to the Corporation in payment or
satisfaction of the exercise price, purchase price or tax withholding obligation of an Award shall
be available for Awards under this Plan.



6. Options




     (a) Option Awards. Options may be granted at any time and from time to time prior to the
termination of the Plan to Participants as determined by the Administrator. No Participant shall
have any rights as a stockholder with respect to any Shares subject to an Option hereunder until
said Shares have been issued. Each Option shall be evidenced by an Award Agreement. Options
granted pursuant to the Plan need not be identical but each Option must contain and be subject to
the terms and conditions set forth below.



     (b) Price. The Administrator will establish the exercise price per Share under each Option,
which, in no event will be less than the Fair Market Value of the Shares on the date of grant;
provided, however, that the exercise price per Share with respect to an Option that is granted in
connection with a merger or other acquisition as a substitute or replacement award for options held
by optionees of the acquired entity may be less than 100% of the Fair Market Value of the Shares on
the date such Option is granted if such exercise price is based on a formula set forth in the terms
of the options held by such optionees or in the terms of the agreement providing for such merger or
other acquisition. The exercise price of any Option may be paid in Shares, cash or a combination
thereof, as determined by the Administrator, including an irrevocable commitment by a broker to pay
over such amount from a sale of the Shares issuable under an Option, the delivery of previously
owned Shares and withholding of Shares deliverable upon exercise.



     (c) Provisions Applicable to Options. The date on which Options become exercisable shall be
determined at the sole discretion of the Administrator and set forth in an Award



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Agreement. Unless provided otherwise in the applicable Award Agreement, to the extent that
the Administrator determines that an approved leave of absence is not a Termination of Employment,
the vesting period and/or exercisability of an Option may be adjusted by the Administrator during
or to reflect the effects of any period during which the Participant is on an approved leave of
absence or is employed on a less than full-time basis. The Administrator shall establish the term
of each Option, which in no case shall exceed a period of ten (10) years from the date of grant.




     (d) Incentive Stock Options. Notwithstanding anything to the contrary in this Section 6, in
the case of the grant of an Option intending to qualify as an Incentive Stock Option: (i) if the
Participant owns stock possessing more than 10% of the combined voting power of all classes of
stock of the Corporation (a “10% Stockholder”), the exercise price of such Option must be at least
110% of the Fair Market Value of the Shares on the date of grant and the Option must expire within
a period of not more than five (5) years from the date of grant, and (ii) Termination of Employment
will occur when the person to whom an Award was granted ceases to be an employee (as determined in
accordance with Section 3401(c) of the Code and the regulations promulgated thereunder) of the
Corporation or any Subsidiary. Notwithstanding anything in this Section 6 to the contrary, options
designated as Incentive Stock Options shall not be eligible for treatment under the Code as
Incentive Stock Options (and will be deemed to be Nonqualified Stock Options) to the extent that
either (1) the aggregate Fair Market Value of Shares (determined as of the time of grant) with
respect to which such Options are exercisable for the first time by the Participant during any
calendar year (under all plans of the Corporation and any Subsidiary) exceeds $100,000, taking
Options into account in the order in which they were granted, or (2) such Options otherwise remain
exercisable but are not exercised within three (3) months of Termination of Employment (or such
other period of time provided in Section 422 of the Code). If the requirements for an Option to
qualify for incentive stock option tax treatment are changed, this Section 6(d) shall be deemed to
be automatically amended to reflect such requirements.



     (e) Effect of Termination of Employment. Unless an Option earlier expires upon the expiration
date established pursuant to Section 6(c), upon a Termination of Employment (i) any portion of the
Option that is not exercisable at the time of such Termination of Employment shall be forfeited and
canceled as of the date of such Termination of Employment and (ii) a Participant’s (or his or her
Beneficiary’s) rights to exercise any portion of the Option that is exercisable at the time of such
Termination of Employment shall be only as follows, in each case, unless otherwise expressly
provided in the Award Agreement or another contract, including an employment agreement:




     (1) Death. If a Participant incurs a Termination of Employment by reason of death, any
Option held by such Participant, to the extent then exercisable, may thereafter be exercised
by the Participant’s Beneficiary for a period of twelve months from the date of such death
or until the expiration of the stated term of such Option, whichever period is the shorter.




     (2) Retirement, Disability. If a Participant incurs a Termination of Employment by
reason of Retirement or Disability, any Option held by such Participant, to the extent then
exercisable, may thereafter be exercised by the Participant for a period



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of twelve months from the date of such Termination of Employment or until the
expiration of the stated term of such Option, whichever period is the shorter.




     (3) Cause. If a Participant incurs a Termination of Employment by reason of a
termination by the Company for Cause, the entire Option, whether or not then exercisable,
shall be immediately forfeited and canceled as of the date of such Termination of
Employment.




     (4) Termination for Reasons other than Death, Retirement, Disability or Cause. If a
Participant incurs a Termination of Employment for any reason other than death, Retirement,
Disability or for Cause, any Option held by such Participant, to the extent then
exercisable, may thereafter be exercised by the Participant for a period of three months
from the date of such Termination of Employment or until the expiration of the stated term
of such Option, whichever period is the shorter.



7. Stock Appreciation Rights




     Stock Appreciation Rights may be granted to Participants from time to time either in tandem
with or as a component of other Awards granted under the Plan (“tandem SARs”) or not in conjunction
with other Awards (“freestanding SARs”) and may, but need not, relate to a specific Option granted
under Section 6. The provisions of Stock Appreciation Rights need not be the same with respect to
each grant or each recipient. Any Stock Appreciation Right granted in tandem with an Award may be
granted at the same time such Award is granted or at any time thereafter before exercise or
expiration of such Award. All freestanding SARs shall be granted subject to the same terms and
conditions applicable to Options as set forth in Section 6 and all tandem SARs shall have the same
exercise price, vesting, exercisability, forfeiture and termination provisions as the Award to
which they relate. Subject to the provisions of Section 6 and the immediately preceding sentence,
the Administrator may impose such other conditions or restrictions on any Stock Appreciation Right
as it shall deem appropriate. Stock Appreciation Rights may be settled in Shares, cash or a
combination thereof, as determined by the Administrator and set forth in the applicable Award
Agreement.



8. Restricted Stock and Restricted Stock Units




     (a) Restricted Stock and Restricted Stock Unit Awards. Restricted Stock and Restricted Stock
Units may be granted at any time and from time to time prior to the termination of the Plan to
Participants as determined by the Administrator. Restricted Stock is an award or issuance of
Shares the grant, issuance, retention, vesting and/or transferability of which is subject during
specified periods of time to such conditions (including continued employment or performance
conditions) and terms as the Administrator deems appropriate. Restricted Stock Units are Awards
denominated in units of Shares under which the issuance of Shares is subject to such conditions
(including continued employment or performance conditions) and terms as the Administrator deems
appropriate. Each grant of Restricted Stock and Restricted Stock Units shall be evidenced by an
Award Agreement. Unless determined otherwise by the Administrator, each Restricted Stock Unit will
be equal to one Share and will entitle a Participant to either the issuance of Shares or payment of
an amount of cash determined with reference to the value of Shares. To the extent determined by
the Administrator, Restricted Stock and Restricted Stock



11









 




Units may be satisfied or settled in Shares, cash or a combination thereof. Restricted Stock
and Restricted Stock Units granted pursuant to the Plan need not be identical but each grant of
Restricted Stock and Restricted Stock Units must contain and be subject to the terms and conditions
set forth below.




     (b) Contents of Agreement. Each Award Agreement shall contain provisions regarding (i) the
number of Shares or Restricted Stock Units subject to such Award or a formula for determining such
number, (ii) the purchase price of the Shares, if any, and the means of payment, (iii) the
performance criteria, if any, and level of achievement versus these criteria that shall determine
the number of Shares or Restricted Stock Units granted, issued, retainable and/or vested, (iv) such
terms and conditions on the grant, issuance, vesting and/or forfeiture of the Shares or Restricted
Stock Units as may be determined from time to time by the Administrator, (v) the term of the
performance period, if any, as to which performance will be measured for determining the number of
such Shares or Restricted Stock Units, and (vi) restrictions on the transferability of the Shares
or Restricted Stock Units. Shares issued under a Restricted Stock Award may be issued in the name
of the Participant and held by the Participant or held by the Corporation, in each case as the
Administrator may provide.



     (c) Vesting and Performance Criteria. The grant, issuance, retention, vesting and/or
settlement of shares of Restricted Stock and Restricted Stock Units will occur when and in such
installments as the Administrator determines or under criteria the Administrator establishes, which
may include performance criteria.



     (d) Discretionary Adjustments and Limits. Subject to the limits imposed under Section 162(m)
of the Code for Awards that are intended to qualify as “performance-based compensation,”
notwithstanding the satisfaction of any performance goals, the number of Shares granted, issued,
retainable and/or vested under an Award of Restricted Stock or Restricted Stock Units on account of
either financial performance or personal performance evaluations may, to the extent specified in
the Award Agreement, be reduced, but not increased, by the Administrator on the basis of such
further considerations as the Administrator shall determine.



     (e) Voting Rights. Unless otherwise determined by the Administrator, Participants holding
shares of Restricted Stock granted hereunder may exercise full voting rights with respect to those
shares during the period of restriction. Participants shall have no voting rights with respect to
Shares underlying Restricted Stock Units unless and until such Shares are reflected as issued and
outstanding shares on the Corporation’s stock ledger.



     (f) Dividends and Distributions. Participants in whose name Restricted Stock is granted shall
be entitled to receive all dividends and other distributions paid with respect to those Shares,
unless determined otherwise by the Administrator. The Administrator will determine whether any
such dividends or distributions will be automatically reinvested in additional shares of Restricted
Stock and subject to the same restrictions on transferability as the Restricted Stock with respect
to which they were distributed or whether such dividends or distributions will be paid in cash.
Shares underlying Restricted Stock Units shall be entitled to dividends or dividend equivalents
only to the extent provided by the Administrator.



12









 





     (g) Effect of Termination of Employment. Upon a Participant’s Termination of Employment for
any reason (including by reason of death, Retirement or Disability), any then unvested Restricted
Stock or Restricted Stock Units held by the Participant shall be forfeited and canceled as of the
date of such Termination of Employment, unless otherwise expressly provided in the Award Agreement
or another contract, including an employment agreement.



9. Incentive Bonuses




     (a) General. Each Incentive Bonus Award will confer upon the Participant the opportunity to
earn a future payment tied to the level of achievement with respect to one or more performance
criteria established for a performance period established by the Administrator.



     (b) Incentive Bonus Document. The terms of any Incentive Bonus will be set forth in an Award
Agreement. Each Award Agreement evidencing an Incentive Bonus shall contain provisions regarding
(i) the target and maximum amount payable to the Participant as an Incentive Bonus, (ii) the
performance criteria and level of achievement versus these criteria that shall determine the amount
of such payment, (iii) the term of the performance period as to which performance shall be measured
for determining the amount of any payment, (iv) the timing of any payment earned by virtue of
performance, (v) restrictions on the alienation or transfer of the Incentive Bonus prior to actual
payment, (vi) forfeiture provisions and (vii) such further terms and conditions, in each case not
inconsistent with this Plan as may be determined from time to time by the Administrator.



     (c) Performance Criteria. The Administrator shall establish the performance criteria and
level of achievement versus these criteria that shall determine the target and maximum amount
payable under an Incentive Bonus, which criteria may be based on financial performance and/or
personal performance evaluations. The Administrator may specify the percentage of the target
Incentive Bonus that is intended to satisfy the requirements for “performance-based compensation”
under Section 162(m) of the Code.



     (d) Timing and Form of Payment. The Administrator shall determine the timing of payment of
any Incentive Bonus. Payment of the amount due under an Incentive Bonus may be made in cash or in
Shares, as determined by the Administrator. The Administrator may provide for or, subject to such
terms and conditions as the Administrator may specify, may permit a Participant to elect for the
payment of any Incentive Bonus to be deferred to a specified date or event.



     (e) Discretionary Adjustments. Notwithstanding satisfaction of any performance goals, the
amount paid under an Incentive Bonus on account of either financial performance or personal
performance evaluations may, to the extent specified in the Award Agreement, be reduced, but not
increased, by the Administrator on the basis of such further considerations as the Administrator
shall determine.



     (f) Subplans. Incentive Bonuses payable hereunder may be pursuant to one or more subplans.



     (g) Effect of Termination of Employment. Upon a Participant’s Termination of Employment for
any reason (including by reason of death, Retirement or Disability), the



13









 




Participant shall receive payment in respect of any Incentive Bonuses only to the extent
specified by the Administrator, unless otherwise expressly provided in the Award Agreement or
another contract, including an employment agreement. Payments in respect of any such Incentive
Bonuses shall be made at the time specified by the Administrator and set forth in the Award
Agreement.




10. Deferral of Gains




     The Administrator may, in an Award Agreement or otherwise, provide for the deferred delivery
of Shares upon settlement, vesting or other events with respect to Restricted Stock or Restricted
Stock Units, or in payment or satisfaction of an Incentive Bonus. Notwithstanding anything herein
to the contrary, in no event will any deferral of the delivery of Shares or any other payment with
respect to any Award be allowed if the Administrator determines, in its sole discretion, that the
deferral would result in the imposition of the additional tax under Section 409A(a)(1)(B) of the
Code. No award shall provide for deferral of compensation that does not comply with Section 409A
of the Code, unless the Board, at the time of grant, specifically provides that the Award is not
intended to comply with Section 409A of the Code. The Corporation shall have no liability to a
Participant, or any other party, if an Award that is intended to be exempt from, or compliant with,
Section 409A of the Code is not so exempt or compliant or for any action taken by the Board.



11. Conditions and Restrictions Upon Securities Subject to Awards




     The Administrator may provide that the Shares issued upon exercise of an Option or Stock
Appreciation Right or otherwise subject to or issued under an Award shall be subject to such
further agreements, restrictions, conditions or limitations as the Administrator in its discretion
may specify prior to the exercise of such Option or Stock Appreciation Right or the grant, vesting
or settlement of such Award, including without limitation, conditions on vesting or
transferability, forfeiture or repurchase provisions and method of payment for the Shares issued
upon exercise, vesting or settlement of such Award (including the actual or constructive surrender
of Shares already owned by the Participant) or payment of taxes arising in connection with an
Award. Without limiting the foregoing, such restrictions may address the timing and manner of any
resales by the Participant or other subsequent transfers by the Participant of any Shares issued
under an Award, including without limitation (i) restrictions under an insider trading policy or
pursuant to applicable law, (ii) restrictions designed to delay and/or coordinate the timing and
manner of sales by Participant and holders of other Corporation equity compensation arrangements,
(iii) restrictions as to the use of a specified brokerage firm for such resales or other transfers
and (iv) provisions requiring Shares to be sold on the open market or to the Corporation in order
to satisfy tax withholding or other obligations.



12. Adjustment of and Changes in the Stock; Certain Transactions; Change of Control




     (a) In the event that any dividend or other distribution (whether in the form of cash, Shares,
other securities or other property, but excluding regular, quarterly and other periodic cash
dividends), stock split or a combination or consolidation of the outstanding Shares into a lesser
number of shares, is declared with respect to the Shares, the authorization limits under Sections
5(a) and 5(c) shall be increased or decreased proportionately, and the Shares then



14









 




subject to each Award shall be increased or decreased proportionately without any change in the aggregate
purchase price therefore. In the event: (1) the Shares shall be changed into or exchanged for a
different number or class of shares of stock or securities of the Corporation or of another
corporation, whether through recapitalization, reorganization, reclassification, merger,
consolidation, split-up, spin-off, combination, repurchase or exchange of Shares or other
securities of the Corporation, issuance of warrants or other rights to purchase Shares or other
securities of the Corporation; or (2) any other corporate transaction or event affects the Shares
such that an equitable adjustment would be required in order to prevent dilution or enlargement of
the benefits or potential benefits intended to be made available under the Plan, then, in either
case (1) or case (2), the authorization limits under Sections 5(a) and 5(c) shall be adjusted
proportionately, and an equitable adjustment shall be made to each Share subject to an Award such
that no dilution or enlargement of the benefits or potential benefits occurs. Each such Share then
subject to each Award shall be adjusted to the number and class of shares into which each
outstanding Share shall be so exchanged such that no dilution or enlargement of the benefits
occurs, all without change in the aggregate purchase price for the Shares then subject to each
Award. Action by the Administrator pursuant to this Section 12(a) may include adjustment to any or
all of: (i) the number and type of Shares (or other securities or other property) that thereafter
may be made the subject of Awards or be delivered under the Plan; (ii) the number and type of
Shares (or other securities or other property) subject to outstanding Awards; (iii) the purchase
price or exercise price of a Share under any outstanding Award or the measure to be used to
determine the amount of the benefit payable on an Award; and (iv) any other adjustments the
Administrator determines to be equitable. No right to purchase fractional shares shall result from
any adjustment in Awards pursuant to this Section 12. In case of any such adjustment, the Shares
subject to the Award shall be rounded down to the nearest whole share. The Corporation shall
notify Participants holding Awards subject to any adjustments pursuant to this Section 12(a) of
such adjustment, but (whether or not notice is given) such adjustment shall be effective and
binding for all purposes of the Plan.




     (b) Unless otherwise expressly provided in the Award Agreement or another contract, including
an employment agreement, in the case of an Award that the acquiring or surviving company in the
transaction assumes upon and maintains immediately following the Change of Control (which Award
shall be adjusted as to the number and kind of shares as may be determined appropriate by the
Administrator prior to the Change of Control), if the Participant incurs a Termination of
Employment by the Corporation (or the acquiring or surviving company, as applicable) without Cause
or by the Participant for Good Reason within twenty four months following the Change of Control,
then the Awards held by the Participant at the time of such Termination of Employment shall be
treated as follows: (i) in the case of an Option or Stock Appreciation Right, the Award shall
become fully vested and the Participant shall have the ability to exercise such Option or Stock
Appreciation Right, including any portion of the Option or Stock Appreciation Right not previously
exercisable, (ii) in the case of an Incentive Bonus, the Participant shall have the right to
receive a payment equal to the target amount payable or, if greater, a payment based on actual
performance through a date determined by the Administrator, and (iii) in the case of Restricted
Stock or Restricted Stock Units, the Award shall become fully vested and shall be settled in full.



     (c) Unless otherwise expressly provided in the Award Agreement or another contract, including
an employment agreement, in the event of a Change of Control in which the acquiring



15









 




or surviving company in the transaction does not assume or continue outstanding Awards in
connection with the Change of Control, all Awards that are not assumed or continued shall be
treated as follows effective immediately prior to the Change of Control: (i) in the case of an
Option or Stock Appreciation Right, the Award shall become fully vested and the Participant shall
have the ability to exercise such Option or Stock Appreciation Right, including any portion of the
Option or Stock Appreciation Right not previously exercisable, (ii) in the case of an Incentive
Bonus, the Participant shall have the right to receive a payment equal to the target amount payable
or, if greater, a payment based on actual performance through a date determined by the
Administrator, and (iii) in the case of Restricted Stock or Restricted Stock Units, the Award shall
become fully vested and shall be settled in full.




     (d) In addition to the above, in connection with a Change of Control the Administrator may
provide for the conversion of any outstanding Award, or portion thereof, into a right to receive
cash or other property upon or following the consummation of the Change of Control in an amount
equal to the value of the consideration to be received by holders of Common Stock in connection
with such transaction for one Share, less the per share purchase or exercise price of such Award,
if any, multiplied by the number of Shares subject to such Award, or a portion thereof.



13. Performance-Based Compensation




     The Administrator may establish performance criteria and level of achievement versus such
criteria that shall determine the number of Shares to be granted, retained, vested, issued or
issuable under or in settlement of or the amount payable pursuant to an Award. Notwithstanding
satisfaction of any performance goals, the number of Shares issued under or the amount paid under
an award may, to the extent specified in the Award Agreement, be reduced, but not increased, by the
Administrator on the basis of such further considerations as the Administrator in its sole
discretion shall determine.



14. Transferability




     No Award may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated
by a Participant other than by will or the laws of descent and distribution, and, during his or her
lifetime, each Option or Stock Appreciation Right shall be exercisable only by the Participant;
provided that the designation of a Beneficiary shall not constitute a sale, transfer, pledge,
assignment, alienation or hypothecation of an Award. Notwithstanding the foregoing, to the extent
permitted by the Administrator, the person to whom an Award is initially granted (the “Grantee”)
may transfer an Award to any “family member” of the Grantee (as such term is defined in Section
1(a)(5) of the General Instructions to Form S-8 under the Securities Act of 1933, as amended (“Form
S-8”)), to trusts solely for the benefit of such family members and to partnerships in which such
family members and/or trusts are the only partners; provided that, (i) as a condition thereof, the
transferor and the transferee must execute a written agreement containing such terms as specified
by the Administrator, and (ii) the transfer is pursuant to a gift or a domestic relations order to
the extent permitted under the General Instructions to Form S-8. Except to the extent specified
otherwise in the agreement the Administrator provides for the Grantee and transferee to execute,
all vesting, exercisability and forfeiture provisions that are conditioned on the Grantee’s
continued employment, performance or service shall continue to be



16









 




determined with reference to the Grantee’s employment, performance or service (and not to the
status of the transferee) after any transfer of an Award pursuant to this Section 14, and the
responsibility to pay any taxes in connection with an Award shall remain with the Grantee
notwithstanding any transfer other than by will or intestate succession. Any attempted sale,
transfer, pledge, assignment, alienation or hypothecation of an Award by a Participant in violation
of this Section 14 shall result in forfeiture of such Award.




15. Suspension or Termination of Awards




     Except as otherwise provided by the Administrator, if at any time (including after a notice of
exercise has been delivered or an award has vested) the Chief Executive Officer or any other person
designated by the Administrator (each such person, an “Authorized Officer”) reasonably believes
that a Participant may have committed any act constituting Cause for termination of employment, or
a violation of any non-competition covenant, the Authorized Officer, Administrator or the Board may
suspend the Participant’s rights to exercise any Option, to vest in an Award, and/or to receive
payment for or receive Shares in settlement of an Award pending a determination of whether such an
act has been committed.



     If the Administrator or an Authorized Officer determines a Participant has committed any act
constituting Cause for termination of employment or a violation of any non-competition covenant,
then except as otherwise provided by the Administrator, (a) neither the Participant nor his or her
estate nor transferee shall be entitled to exercise any Option or Stock Appreciation Right
whatsoever, vest in or have the restrictions on an Award lapse, or otherwise receive payment of an
Award, (b) the Participant will forfeit all outstanding Awards and (c) the Participant may be
required, at the Administrator’s sole discretion, to return and/or repay to the Corporation any
then unvested Shares previously issued under the Plan. In making such determination, the
Administrator or an Authorized Officer shall give the Participant an opportunity to appear and
present evidence on his or her behalf at a hearing before the Administrator or its designee or an
opportunity to submit written comments, documents, information and arguments to be considered by
the Administrator.



16. Compliance with Laws and Regulations




     This Plan, the grant, issuance, vesting, exercise and settlement of Awards thereunder, and the
obligation of the Corporation to sell, issue or deliver Shares under such Awards, shall be subject
to all applicable foreign, federal, state and local laws, rules and regulations, stock exchange
rules and regulations, and to such approvals by any governmental or regulatory agency as may be
required. The Corporation shall not be required to register in a Participant’s name or deliver any
Shares prior to the completion of any registration or qualification of such shares under any
foreign, federal, state or local law or any ruling or regulation of any government body which the
Administrator shall determine to be necessary or advisable. To the extent the Corporation is
unable to or the Administrator deems it infeasible to obtain authority from any regulatory body
having jurisdiction, which authority is deemed by the Corporation’s counsel to be necessary to the
lawful issuance and sale of any Shares hereunder, the Corporation and its Subsidiaries shall be
relieved of any liability with respect to the failure to issue or sell such Shares as to which such
requisite authority shall not have been obtained. No Option shall be exercisable and no Shares
shall be issued and/or transferable under any other Award unless a



17









 




registration statement with respect to the Shares underlying such Award is effective and
current or the Corporation has determined that such registration is unnecessary.




     In the event an Award is granted to or held by a Participant who is employed or providing
services outside the United States, the Administrator may, in its sole discretion, modify the
provisions of the Plan or of such Award as they pertain to such individual to comply with
applicable foreign law or to recognize differences in local law, currency or tax policy. The
Administrator may also impose conditions on the grant, issuance, exercise, vesting, settlement or
retention of Awards in order to comply with such foreign law and/or to minimize the Corporation’s
obligations with respect to tax equalization for Participants employed outside their home country.



17. Withholding




     To the extent required by applicable federal, state, local or foreign law, a Participant shall
be required to satisfy, in a manner satisfactory to the Corporation, any withholding tax
obligations that arise by reason of an Option exercise, disposition of Shares issued under an
Incentive Stock Option, the vesting of or settlement of an Award, an election pursuant to Section
83(b) of the Code or otherwise with respect to an Award. To the extent a Participant makes an
election under Section 83(b) of the Code, within ten (10) days of filing such election with the
Internal Revenue Service, the Participant must notify the Corporation in writing of such election.
The Corporation and its Subsidiaries shall not be required to issue Shares, make any payment or to
recognize the transfer or disposition of Shares until all such obligations are satisfied. The
Administrator may provide for or permit these obligations to be satisfied through the mandatory or
elective sale of Shares and/or by having the Corporation withhold a portion of the Shares that
otherwise would be issued to him or her upon exercise of the Option or the vesting or settlement of
an Award, or by tendering Shares previously acquired.



18. Administration of the Plan




     (a) Administrator of the Plan. The Plan shall be administered by the Administrator who shall
be the Compensation & Benefits Committee of the Board or, in the absence of a Compensation &
Benefits Committee, the Board itself. Any power of the Administrator may also be exercised by the
Board, except to the extent that the grant or exercise of such authority would cause any Award or
transaction to become subject to (or lose an exemption under) the short-swing profit recovery
provisions of Section 16 of the Securities Exchange Act of 1934 or cause an Award designated as a
Performance Award not to qualify for treatment as performance-based compensation under Section
162(m) of the Code. To the extent that any permitted action taken by the Board conflicts with
action taken by the Administrator, the Board action shall control. The Compensation & Benefits
Committee may by resolution authorize one or more officers of the Corporation to perform any or all
things that the Administrator is authorized and empowered to do or perform under the Plan, and for
all purposes under this Plan, such officer or officers shall be treated as the Administrator;
provided, however, that the resolution so authorizing such officer or officers shall specify the
total number of Awards (if any) such officer or officers may award pursuant to such delegated
authority, and any such Award shall be subject to the form of Award Agreement theretofore approved
by the Compensation & Benefits Committee. No such officer shall designate himself or herself as a
recipient of any Awards



18









 




granted under authority delegated to such officer. The Compensation & Benefits Committee
hereby designates the Secretary of the Corporation and the head of the Corporation’s human resource
function to assist the Administrator in the administration of the Plan and execute agreements
evidencing Awards made under this Plan or other documents entered into under this Plan on behalf of
the Administrator or the Corporation. In addition, the Compensation & Benefits Committee may
delegate any or all aspects of the day-to-day administration of the Plan to one or more officers
or employees of the Corporation or any Subsidiary, and/or to one or more agents.




     (b) Powers of Administrator. Subject to the express provisions of this Plan, the
Administrator shall be authorized and empowered to do all things that it determines to be necessary
or appropriate in connection with the administration of this Plan, including, without limitation:
(i) to prescribe, amend and rescind rules and regulations relating to this Plan and to define terms
not otherwise defined herein; (ii) to determine which persons are Participants, to which of such
Participants, if any, Awards shall be granted hereunder and the timing of any such Awards; (iii) to
grant Awards to Participants and determine the terms and conditions thereof, including the number
of Shares subject to Awards and the exercise or purchase price of such Shares and the circumstances
under which Awards become exercisable or vested or are forfeited or expire, which terms may but
need not be conditioned upon the passage of time, continued employment, the satisfaction of
performance criteria, the occurrence of certain events (including a Change of Control), or other
factors; (iv) to establish and verify the extent of satisfaction of any performance goals or other
conditions applicable to the grant, issuance, exercisability, vesting and/or ability to retain any
Award; (v) to prescribe and amend the terms of the agreements or other documents evidencing Awards
made under this Plan (which need not be identical) and the terms of or form of any document or
notice required to be delivered to the Corporation by Participants under this Plan; (vi) to
determine the extent to which adjustments are required pursuant to Section 12; (vii) to interpret
and construe this Plan, any rules and regulations under this Plan and the terms and conditions of
any Award granted hereunder, and to make exceptions to any such provisions if the Administrator, in
good faith, determines that it is necessary to do so in light of extraordinary circumstances and
for the benefit of the Corporation; (viii) to approve corrections in the documentation or
administration of any Award; (ix) to reduce the exercise price of any Option or Stock Appreciation
Right to the Fair Market Value of the Shares at the time of the reduction if the Fair Market Value
of the Shares covered by that Option or Stock Appreciation Right has declined since the date it was
granted, either directly or through cancellation and regrant of the Option or Stock Appreciation
Right; (x) to exchange Options and Stock Appreciation Rights for other Awards; (xi) to cause the
Corporation to purchase outstanding Options and Stock Appreciation Rights for cash or other
consideration; (xii) to require or permit Participant elections and/or consents under this Plan to
be made by means of such electronic media as the Administrator may prescribe; and (xiii) to make
all other determinations deemed necessary or advisable for the administration of this Plan. The
Administrator may, in its sole and absolute discretion, without amendment to the Plan, waive or
amend the operation of Plan provisions respecting exercise after termination of employment or
service to the Corporation or an Affiliate and, except as otherwise provided herein, adjust any of
the terms of any Award. The Administrator may also (A) accelerate the date on which any Award
granted under the Plan becomes exercisable or (B) accelerate the vesting date or waive or adjust
any condition imposed hereunder with respect to the vesting or exercisability of an Award,



19









 




provided that the Administrator, in good faith, determines that such acceleration, waiver or
other adjustment is necessary or desirable in light of extraordinary circumstances.




     (c) Determinations by the Administrator. All decisions, determinations and interpretations by
the Administrator regarding the Plan, any rules and regulations under the Plan and the terms and
conditions of or operation of any Award granted hereunder, shall be final and binding on all
Participants, beneficiaries, heirs, assigns or other persons holding or claiming rights under the
Plan or any Award. The Administrator shall consider such factors as it deems relevant, in its sole
and absolute discretion, to making such decisions, determinations and interpretations including,
without limitation, the recommendations or advice of any officer or other employee of the
Corporation and such attorneys, consultants and accountants as it may select.



     (d) Subsidiary Awards. In the case of a grant of an Award to any Participant employed by a
Subsidiary, such grant may, if the Administrator so directs, be implemented by the Corporation
issuing any subject Shares to the Subsidiary, for such lawful consideration as the Administrator
may determine, upon the condition or understanding that the Subsidiary will transfer the Shares to
the Participant in accordance with the terms of the Award specified by the Administrator pursuant
to the provisions of the Plan. Notwithstanding any other provision hereof, such Award may be
issued by and in the name of the Subsidiary and shall be deemed granted on such date as the
Administrator shall determine.



19. Amendment of the Plan or Awards




     The Board may amend, alter or discontinue this Plan and the Administrator may amend or alter
any agreement or other document evidencing an Award made under this Plan but, except as provided
pursuant to the provisions of Section 12, no such amendment shall, without the approval of the
stockholders of the Corporation:



     (a) increase the maximum number of Shares for which Awards may be granted under this Plan;



     (b) reduce the price at which Options may be granted below the price provided for in Section
6(b);



     (c) change the class of persons eligible to be Participants; or



     (d) otherwise amend the Plan in any manner requiring stockholder approval by law or under
stock exchange listing requirements.



     No amendment or alteration to the Plan or an Award or Award Agreement shall be made which
would impair the rights of the holder of an Award, without such holder’s consent, provided that no
such consent shall be required if the Administrator determines in its sole discretion and prior to
the date of any Change of Control that such amendment or alteration either is required or advisable
in order for the Corporation, the Plan or the Award to satisfy any law or regulation or to meet the
requirements of or avoid adverse financial accounting consequences under any accounting standard.



20









 





20. No Liability of Corporation




     The Corporation and any Subsidiary or affiliate which is in existence or hereafter comes into
existence shall not be liable to a Participant or any other person as to: (i) the non-issuance or
sale of Shares as to which the Corporation has been unable to obtain from any regulatory body
having jurisdiction the authority deemed by the Corporation’s counsel to be necessary to the lawful
issuance and sale of any Shares hereunder; and (ii) any tax consequence expected, but not realized,
by any Participant or other person due to the receipt, exercise or settlement of any Award granted
hereunder.



21. Non-Exclusivity of Plan




     Neither the adoption of this Plan by the Board nor the submission of this Plan to the
stockholders of the Corporation for approval shall be construed as creating any limitations on the
power of the Board or the Administrator to adopt such other incentive arrangements as either may
deem desirable, including without limitation, the granting of restricted stock or stock options
otherwise than under this Plan or an arrangement not intended to qualify under Code Section 162(m),
and such arrangements may be either generally applicable or applicable only in specific cases.



22. No Right to Employment, Reelection or Continued Service




     Nothing in this Plan or an Award Agreement shall interfere with or limit in any way the right
of the Corporation, its Subsidiaries and/or its affiliates to terminate any Participant’s
employment, service on the Board or service for the Corporation at any time or for any reason not
prohibited by law, nor shall this Plan or an Award itself confer upon any Participant any right to
continue his or her employment or service for any specified period of time. Neither an Award nor
any benefits arising under this Plan shall constitute an employment contract with the Corporation,
any Subsidiary and/or its affiliates. Subject to Sections 4 and 19, this Plan and the benefits
hereunder may be terminated at any time in the sole and exclusive discretion of the Board without
giving rise to any liability on the part of the Corporation, its Subsidiaries and/or its
affiliates.



23. Unfunded Plan




     The Plan is intended to be an unfunded plan. Participants are and shall at all times be
general creditors of the Corporation with respect to their Awards. If the Administrator or the
Corporation chooses to set aside funds in a trust or otherwise for the payment of Awards under the
Plan, such funds shall at all times be subject to the claims of the creditors of the Corporation in
the event of its bankruptcy or insolvency.



24. Code Section 409A




     It is intended that any Incentive and Nonqualified Stock Options, Stock Appreciation Rights,
and Restricted Stock issued pursuant to this Plan and any Award Agreement shall not constitute
“Deferrals of Compensation” within the meaning of Code section 409A and, as a result, shall not be
subject to the requirements of Code section 409A. It is further intended that any Restricted Stock
Units and Incentive Bonuses issued pursuant to this Plan and any Award



21









 




Agreement (which may or may not constitute “deferrals of compensation,” depending on the terms
of each Award) shall avoid any “plan failures” within the meaning of Code section 409A(a)(1). The
Plan is to be interpreted and administered in a manner consistent with these intentions. However,
no guarantee or commitment is made that the Plan or any Award Agreement shall be administered in
accordance with the requirements of Code section 409A, with respect to amounts that are subject to
such requirements, or that the Plan or any Award Agreement shall be administered in a manner that
avoids the application of Code section 409A, with respect to amounts that are not subject to such
requirements.




25. Required Delay in Payment on Account of a Separation from Service




     Notwithstanding any other provision in this Plan or any Award Agreement, if any Award
recipient is a “specified employee,” as defined in Treasury Regulations section 1.409A-1(i), as of
the date of his or her “Separation from Service” (as defined in authoritative IRS guidance under
Code section 409A), then, to the extent required by Treasury Regulations section 1.409A-3(i)(2),
any payment made to the Award recipient on account of his or her Separation from Service shall not
be made before a date that is six months after the date of his or her Separation from Service. The
Administrator may elect any of the methods of applying this rule that are permitted under Treasury
Regulations section 1.409A-3(i)(2)(ii).




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