Exhibit 10.1


 


HERTZ GLOBAL HOLDINGS, INC.

2008 OMNIBUS INCENTIVE PLAN


 


(as amended and restated effective as of March 4,
2010)


 


ARTICLE I



PURPOSES


 


The purposes of the Plan are
to foster and promote the long-term financial success of the Company and the Subsidiaries
and materially increase shareholder value by (a) motivating
superior performance by Participants, (b) providing
Participants with an ownership interest in the Company, and (c) enabling the Company and the Subsidiaries to attract
and retain the services of outstanding Employees upon whose judgment, interest
and special effort the successful conduct of its operations is largely
dependent.


 


ARTICLE II



DEFINITIONS


 


2.1                                 Certain Definitions.  Capitalized terms used herein without
definition shall have the respective meanings set forth below:


 


“Adjustment
Event” means any dividend payable in capital stock, stock split,
share combination, extraordinary cash dividend, recapitalization,
reorganization, merger, consolidation, split-up, spin-off, combination,
exchange of shares or other similar event affecting the Common Stock.


 


“Affiliate”
means, with respect to any person, any other person controlled by, controlling
or under common control with such person.


 


“Alternative
Award” has the meaning given in Section 9.2.


 


“Award”
means any Option, Stock Appreciation Right, Performance Stock, Performance
Stock Unit, Performance Unit, Restricted Stock, Restricted Stock Unit, Share
Award or Deferred Stock Unit granted pursuant to the Plan, including an Award
combining two or more types in a single grant.


 


“Award
Agreement” means any written agreement, contract, or other
instrument or document evidencing any Award granted by the Committee pursuant
to the Plan.  The terms of any plan or
guideline adopted by the Committee and applicable to an Award shall be deemed
incorporated in and part of the related Award Agreement.  The Committee may provide for the


 


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use
of electronic, internet or other non-paper Award Agreements, and the use of
electronic, internet or other non-paper means for the Participant’s acceptance
of, or actions under, an Award Agreement unless otherwise expressly specified
herein.  In the event of any
inconsistency or conflict between the terms of the Plan and an Award Agreement,
the terms of the Plan shall govern.


 


“Business”
has the meaning given in Section 5.5.


 


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


 


“Carlyle
Investors” means, collectively, (i) Carlyle
Partners IV, L.P., (ii) CEP II
Participations S.àr.l., (iii) CP IV
Co-investment, L.P., and (iv) CEP II
U.S. Investments, L.P.


 


“Cause”
means, except as otherwise defined in an Award Agreement, with respect to any
Participant (as determined by the Committee) (i) willful
and continued failure to perform substantially the Participant’s material
duties with the Company (other than any such failure resulting from the
Participant’s incapacity as a result of physical or mental illness) after a
written demand for substantial performance specifying the manner in which the
Participant has not performed such duties is delivered to the Participant by
the person or entity that supervises or manages the Participant, (ii) engaging in willful and serious misconduct that is
injurious to the Company or any of its Subsidiaries, (iii) one
or more acts of fraud or personal dishonesty resulting in or intended to result
in personal enrichment at the expense of the Company or any of its
Subsidiaries, (iv) substantial abusive use
of alcohol, drugs or similar substances that, in the sole judgment of the
Company, impairs the Participant’s job performance, (v) material
violation of any Company policy that results in harm to the Company or any of
its Subsidiaries or (vi) indictment
for or conviction of (or plea of guilty or nolo contendere)
to a felony or of any crime (whether or not a felony) involving moral
turpitude.  A “Termination for Cause,”
shall include a determination by the Committee following a Participant’s
termination of employment for any other reason that, prior to such termination
of employment, circumstances constituting Cause existed with respect to such
Participant.


 


“CDR
Investors” means, collectively, (i) Clayton,
Dubilier & Rice Fund VII, L.P., (ii) CDR
CCMG Co-Investor L.P., and (iii) CD&R
Parallel Fund VII, L.P.


 


“Change in
Control” means the first occurrence of any of the following events
after the effective date of the Plan:


 


(a)                                  the
acquisition by any person, entity or “group” (as defined in Section 13(d) of
the Exchange Act), other than the Company, the Subsidiaries, any employee
benefit plan of the Company or the Subsidiaries, or any of the Investors, of
50% or more of the combined voting power of the Company’s then outstanding
voting securities;


 


(b)                                 within
any 24-month period, the Incumbent Directors shall cease to constitute at least
a majority of the Board or the board of directors of any successor to the
Company; provided


 


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that any
director elected to the Board, or nominated for election, by a majority of the
Incumbent Directors then still in office shall be deemed to be an Incumbent
Director for purposes of this clause (b);


 


(c)                                  the
merger or consolidation of the Company as a result of which persons who were
owners of the voting securities of the Company, immediately prior to such
merger or consolidation, or any or all of the Investors, do not, immediately
thereafter, own, directly or indirectly, more than 50% of the combined voting
power entitled to vote generally in the election of directors of the merged or
consolidated company.


 


(d)                                 the
approval by the Company’s shareholders of the liquidation or dissolution of the
Company other than a liquidation of the Company into any Subsidiary or a
liquidation a result of which persons who were stockholders of the Company
immediately prior to such liquidation, or any or all of the Investors, own,
directly or indirectly, more than 50% of the combined voting power entitled to
vote generally in the election of directors of the entity that holds substantially
all of the assets of the Company following such event; and


 


(e)                                  the
sale, transfer or other disposition of all or substantially all of the assets
of the Company to one or more persons or entities that are not, immediately
prior to such sale, transfer or other disposition, Affiliates of the Company.


 


Notwithstanding the
foregoing, a “Change in Control” shall not be deemed to occur if the Company
files for bankruptcy, liquidation or reorganization under the United States
Bankruptcy Code.


 


“Change in
Control Price” means the price per share on a fully diluted basis
offered in conjunction with any transaction resulting in a Change in Control,
as determined in good faith by the Committee as constituted before the Change
in Control, if any part of the offered price is payable other than in cash.


 


“Code”
means the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.


 


“Committee”
means the Compensation Committee of the Board or, if applicable, the delegate
of the Compensation Committee of the Board as permitted or required herein.


 


“Common Stock”
means the common stock, par value $0.01 per share, of the Company and any other
securities into which the Common Stock is changed or for which the Common Stock
is exchanged.


 


“Company”
means Hertz Global Holdings, Inc., a Delaware corporation, and any
successor thereto.


 


“Covered
Period” has the meaning given in Section 5.5.


 


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“Deferred
Annual Amount” has the meaning given in Section 8.1.


 


“Deferred
Stock Unit” means a Participant’s contractual right to receive a
stated number of shares of Common Stock or, if provided by the Committee on or
after the grant date, cash equal to the Fair Market Value of such shares of
Common Stock or any combination of shares of Common Stock and cash having an
aggregate Fair Market Value equal to such stated number of shares of Common
Stock, under the Plan at the end of a specified period of time.


 


“Disability”
means, unless otherwise provided in an Award Agreement, a physical or mental
disability or infirmity that prevents or is reasonably expected to prevent the
performance of a Participant’s employment-related duties for a period of six
months or longer and, within 30 days after the Company notifies the Participant
in writing that it intends to terminate his employment, the Participant shall
not have returned to the performance of his employment-related duties on a
full-time basis; provided, that (i) for purposes of Section 5.3(a) in respect
of ISOs, the term “Disability” shall have the meaning assigned to the term “Permanent
and Total Disability” by section 22(e)(3) of the Code (i.e., physical or mental disability or infirmity lasting not
less than 12 months), and (ii) with
respect to any Award that constitutes deferred compensation subject to section
409A of the Code, “Disability” shall have the meaning set forth in section
409A(a)(2)(c) of the Code.  The
Committee’s reasoned and good faith judgment of Disability shall be final,
binding and conclusive, and shall be based on such competent medical evidence
as shall be presented to it by such Participant and/or by any physician or
group of physicians or other competent medical expert employed by the
Participant or the Company to advise the Committee.  Notwithstanding the foregoing (but except in
the case of ISOs and awards subject to section 409A of the Code), with respect
to any Participant who is a party to an employment agreement with the Company
or any Subsidiary, “Disability” shall have the meaning, if any, specified in
such Participant’s employment agreement.


 


“Dividend
Equivalents” means an amount equal to any dividends and
distributions paid by the Company with respect to the number of shares of
Common Stock subject to an Award.


 


“Employee”
means any non-employee director, officer or employee of, or any natural person
who is a consultant to, the Company or any Subsidiary.


 


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


 


“Executive
Officer” means each person who is an officer of the Company or any
Subsidiary and who is subject to the reporting requirements under Section 16(a) of
the Exchange Act.


 


“Fair Market
Value” means, unless otherwise defined in an Award Agreement, as of
any date, the closing price of one share of Common Stock on the New York Stock
Exchange (or on such other recognized market or quotation system on which the
trading prices of Common Stock are traded or quoted at the relevant time) on
the date as of which such Fair Market Value is


 


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determined.  If there are no Common Stock transactions
reported on the New York Stock Exchange (or on such other exchange or system as
described above) on such date, Fair Market Value shall mean the closing price
for a share of Common Stock on the immediately preceding day on which Common
Stock transactions were so reported.


 


“Incumbent
Director” means, with respect to any period of time specified under
the Plan for purposes of determining a Change in Control, the persons who were
members of the Board at the beginning of such period; provided,
that a director elected, or nominated for election, to the Board in connection
with a proxy contest shall not be considered an Incumbent Director.


 


“Initial
Investors” means, collectively, the Carlyle Investors, the CDR
Investors and the Merrill Lynch Investors.


 


“Investors”
means, collectively, (i) the
Initial Investors, (ii) TC
Group L.L.C. (which operates under the trade name The Carlyle Group), (iii) Clayton, Dubilier & Rice, Inc., (iv) Merrill Lynch Global Partners, Inc., (v) any Affiliate of any of the foregoing, including any
investment fund or vehicle managed, sponsored or advised by any of the
foregoing, and (vi) any successor in
interest to any of the foregoing.


 


“ISOs”
has the meaning given in Section 5.1(a).


 


“Merrill
Lynch Investors” means, collectively, (i) ML
Global Private Equity Fund, L.P., (ii) Merrill
Lynch Ventures L.P. 2001, (iii) CMC-Hertz
Partners, L.P., and (iv) ML
Hertz Co-Investor, L.P.


 


“New Employer”
means a Participant’s employer, or the parent or a subsidiary of such employer,
immediately following a Change in Control.


 


“NSOs”
has the meaning given in Section 5.1(a).


 


“Option”
means the right granted to a Participant pursuant to the Plan to purchase a
stated number of shares of Common Stock at a stated price for a specified
period of time.


 


“Option/SAR
Financial Gain” has the meaning given in Section 5.5.


 


“Participant”
means any Employee or prospective Employee designated by the Committee to receive
an Award under the Plan.


 


“Performance
Period” means the period, as determined by the Committee, during
which the performance of the Company, any Subsidiary, any business unit and any
individual is measured to determine whether and the extent to which the
applicable performance measures have been achieved, provided  that each such period shall be no greater
than five years in length.


 


“Performance
Stock” means a grant of a stated number of shares of Common Stock to
a Participant under the Plan that is forfeitable by the Participant until the
attainment of specified


 


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performance
goals, or until otherwise determined by the Committee or in accordance with the
Plan, subject to the continuous employment of the Participant through the
completion of the applicable Performance Period (or such portion of the
applicable Performance Period as otherwise provided in Article VI).


 


“Performance
Stock Unit” means a Participant’s contractual right to receive a
stated number of shares of Common Stock or, if provided by the Committee on or
after the grant date, cash equal to the Fair Market Value of such shares of
Common Stock or any combination of shares of Common Stock and cash having an
aggregate Fair Market Value equal to such stated number of shares of Common
Stock, under the Plan at a specified time that is forfeitable by the
Participant until the attainment of specified performance goals, or until
otherwise determined by the Committee or in accordance with the Plan, subject
to the continuous employment of the Participant through the completion of the
applicable Performance Period (or such portion of the applicable Performance
Period as otherwise provided in Article VI).


 


“Performance
Unit” means a Participant’s contractual right to receive a
cash-denominated award, payable in cash or shares of Common Stock or a
combination thereof, under the Plan at a specified time that is forfeitable by
the Participant until the attainment of specified performance goals, or until otherwise
determined by the Committee or in accordance with the Plan, subject to the
continuous employment of the Participant through the applicable Performance
Period (or such portion of the applicable Performance Period as otherwise
provided in Article VI).


 


“Performance-Based
Financial Gain” has the meaning given in Section 6.7.


 


“Permitted
Transferee” has the meaning given in Section 11.1.


 


“Plan”
means this Hertz Global Holdings, Inc. 2008 Omnibus Incentive Plan, as the
same may be interpreted by the Committee and/or be amended from time to time.


 


“Prior Plans”
means the Hertz Global Holdings, Inc. Stock Incentive Plan and the Hertz
Global Holdings, Inc. Director Stock Incentive Plan.


 


“Replacement
Award” means an Award made to employees of companies or businesses
acquired by the Company to replace incentive awards and opportunities held by
such employees prior to such acquisition.


 


“Restricted
Stock” means a grant of a stated number of shares of Common Stock to
a Participant under the Plan that is forfeitable by the Participant until the
completion of a specified period of future service, or until otherwise
determined by the Committee or in accordance with the Plan.


 


“Restricted
Stock Unit” means a Participant’s contractual right to receive a
stated number of shares of Common Stock or, if provided by the Committee on or
after the grant date, cash equal to the Fair Market Value of such shares of
Common Stock or any combination of shares of


 


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Common
Stock and cash having an aggregate Fair Market Value equal to such stated
number of shares of Common Stock, under the Plan at the end of a specified
period of time that is forfeitable by the Participant until the completion of a
specified period of future service, or until otherwise determined by the
Committee or in accordance with the Plan.


 


“Restriction-Based
Financial Gain” has the same meaning given in Section 7.6.


 


“Restriction
Period” means (i) with
respect to any Performance Stock, Performance Stock Unit or Performance Unit,
the period beginning on the grant date of such Award and ending on the
certification by the Committee that the performance objectives or objectives
for the applicable Performance Period have been attained (in whole or in part)
in accordance with Section 6.2(d), (ii) with
respect to any Restricted Stock or Restricted Stock Unit, the Restriction
Period specified in the Award Agreement evidencing such Award, and (iii) with respect to any freestanding Deferred Stock
Unit as to which the Committee has specified a Restriction Period in accordance
with Section 8.4, the Restriction Period so specified.


 


“Retained
Award” has the meaning given in Section 6.6(a).


 


“Retained
Retirement Award” has the meaning given in Section 6.6(b).


 


“Retirement”
means, except as otherwise defined in an Award Agreement, a Participant’s
retirement from active employment with the Company and any Subsidiary at or
after such Participant attains age 65, or after such Participant attains age 55
and has provided, at minimum, 10 years of service to the Company or any
Subsidiary.


 


“Share Award”
means an Award of unrestricted shares of Common Stock pursuant to Section 7.8
of the Plan.


 


“Stock
Appreciation Right” means, with respect to shares of Common Stock,
the right to receive a payment from the Company in cash and/or shares of Common
Stock equal to the product of (i) the
excess, if any, of the Fair Market Value of one share of Common Stock on the
exercise date over a specified base price fixed by the Committee on the grant
date, multiplied by (ii) a stated number of shares of Common Stock.


 


“Subsidiary”
means any corporation in which the Company owns, directly or indirectly, stock
representing 50% or more of the combined voting power of all classes of stock
entitled to vote, and any other business organization, regardless of form, in
which the Company possesses, directly or indirectly, 50% or more of the total
combined equity interests in such organization.


 


“Vesting Date”
means (i) with respect to any Performance
Stock, Performance Stock Unit, Performance Unit, Restricted Stock or Restricted
Stock Unit, the expiration date of the applicable Restriction Period, and (ii) with respect to any Option or Stock Appreciation
Right, the date such Award first becomes exercisable in accordance with the
Plan and the Award Agreement evidencing such Award.


 


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“Wrongful
Conduct” has the meaning given in Section 5.5.


 


“Wrongful
Conduct Period” has the meaning given in Section 5.5.


 


2.2                                 Gender and Number.  Except when otherwise indicated by the
context, words in the masculine gender used in the Plan shall include the
feminine gender, the singular shall include the plural, and the plural shall
include the singular.


 


ARTICLE III



POWERS OF THE COMMITTEE


 


3.1                                 Eligibility and Participation.  Participants in the Plan shall be those
Employees designated by the Committee (or its delegate) to participate in the
Plan.


 


3.2                                 Power to Grant and Establish Terms of Awards.  The Committee shall have the authority, subject
to the terms of the Plan, to determine the Employees to whom Awards shall be
granted, the type or types of Awards to be granted and the terms and conditions
of any and all Awards including, but not limited to, the number of shares of
Common Stock subject to an Award, the time or times at which Awards shall be
granted, and the terms and conditions of applicable Award Agreements.  The Committee may establish different terms
and conditions for different types of Awards, for different Participants
receiving the same type of Award, and for the same Participant for each type of
Award such Participant may receive, whether or not granted at the same or
different times.


 


3.3                                 Administration.  The Committee shall be responsible for the
administration of the Plan.  Any Awards
granted by the Committee may be subject to such conditions, not inconsistent
with the terms of the Plan, as the Committee shall determine.  The Committee shall have authority to
prescribe, amend and rescind rules and regulations relating to the Plan,
to provide for conditions deemed necessary or advisable to protect the
interests of the Company, to interpret the Plan and to make all other
determinations necessary or advisable for the administration and interpretation
of the Plan and to carry out its provisions and purposes.  Any determination, interpretation or other
action made or taken (including any failure to make any determination or
interpretation, or take any other action) by the Committee pursuant to the
provisions of the Plan, shall, to the greatest extent permitted by law, be
within its sole and absolute discretion and shall be final, binding and
conclusive for all purposes and upon all persons and shall be given deference
in any proceeding with respect thereto. 
The Committee may appoint accountants, actuaries, counsel, advisors and
other persons that it deems necessary or desirable in connection with the
administration of the Plan.  The
Committee’s determinations under the Plan need not be uniform and may be made
by the Committee selectively among persons who receive, or are eligible to
receive, Awards under the Plan, whether or not such persons are similarly
situated.  To the maximum extent
permitted by law, no member of the Committee shall be liable for any action
taken or decision made in good faith relating to the Plan or any Award
hereunder.


 


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3.4                                 Delegation by the Committee.  The Committee may delegate, subject to such
terms or conditions or guidelines as it shall determine, to any officer or
group of officers, or director or group of directors of the Company (including
to a subcommittee of members of the Compensation Committee of the Board) or its
affiliates any portion of its authority and powers under the Plan with respect
to Participants who are not Executive Officers; provided,
that any delegation to one or more officers of the Company shall be subject to
section 157(c) of the Delaware General Corporation Law (or successor
provision).  Only the Committee may
select, grant, administer, or exercise any other discretionary authority under
the Plan in respect of Awards granted to such Participants who are Executive
Officers.  Notwithstanding the foregoing,
(i) with respect to any Award
intended to qualify as “performance-based” compensation under section 162(m) of
the Code, the Committee shall consist solely of two or more “outside directors”
within the meaning of the regulations promulgated under section 162(m) of
the Code, and (ii) with respect to any
award intended to qualify for the exemption contained in Rule 16b-3
promulgated under the Exchange Act, the Committee shall consist solely of two
or more “non-employee directors” within the meaning of such Rule, or, in the
alternative, of the entire Board.


 


3.5                                 Participants Based Outside the United States.  In order to conform with provisions of local
laws and regulations in foreign countries in which the Company or its
Subsidiaries operate, the Committee may (i) modify
the terms and conditions of Awards granted to Participants employed outside the
United States, (ii) establish subplans with
modified exercise procedures and such other modifications as may be necessary
or advisable under the circumstances presented by local laws and regulations,
and (iii) take any action which it deems
advisable to obtain, comply with or otherwise reflect any necessary
governmental regulatory procedures, exemptions or approvals with respect to the
Plan or any subplan established hereunder; provided, however, that the
Committee may not make any sub-plan that (a) increases the limitations
contained in Section 4.3, (b) increases the number of shares
available under the Plan, as set forth in Section 4.1; or (c) causes
the Plan to cease to satisfy any conditions under Rule 16b-3 under the
Exchange Act or causes the grant of any performance Award to fail to qualify
for an income tax deduction pursuant to section 162(m) of the Code.  Subject to the foregoing, the Committee may
amend, modify, administer or terminate such sub-plans, and prescribe, amend and
rescind rules and regulations relating to such sub-plans.


 


ARTICLE IV



STOCK SUBJECT TO PLAN


 


4.1                                 Number.  Subject to the provisions of this Article IV,
the maximum number of shares of Common Stock available for Awards under the
Plan shall not exceed 17,700,000 shares of Common Stock (all of which may be
the subject of ISOs granted under the Plan); provided, however, that if the
Company’s shareholders so approve at the 2010 shareholder meeting, the maximum
number of shares of Common Stock available for Awards under the Plan shall not
exceed 32,700,000 shares of Common Stock (all of which may be the subject of
ISOs granted under the Plan).  The shares
of Common Stock to be delivered under the Plan may consist, in


 


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whole or in
part, of Common Stock held in treasury or authorized but unissued shares of
Common Stock, not reserved for any other purpose.


 


4.2                                 Canceled, Terminated, or Forfeited Awards, etc.  Shares subject to any Award granted under the
Plan (other than Replacement Awards) that for any reason are canceled,
terminated, forfeited, settled in cash or otherwise settled without the
issuance of Common Stock after the effective date of the Plan shall be
available for grant under the Plan. 
Replacement Awards that for any reason are canceled, terminated,
forfeited, settled in cash or otherwise settled without the issuance of Common
Stock after the effective date of the Plan shall not be available for grant
under the Plan.  Without limiting the
generality of Section 4.1 hereof, (i) shares
of Common Stock tendered by a Participant or withheld by the Company to pay the
exercise price of any Options, or to satisfy any tax withholding obligations
pursuant to Section 11.4, shall be available for grant under the Plan, (ii) upon settlement of Stock Appreciation Rights, a
number of shares of Common Stock equal to (x) the number of shares subject
to the Stock Appreciation Rights minus (y) that number of shares delivered
to the Participant shall again be available for grant under the Plan, and (iii) shares of Common Stock issued in connection with
Awards that are assumed, converted or substituted pursuant to an Adjustment
Event or Change in Control (i.e.,
Alternative Awards), or issued in connection with Replacement Awards, shall not
be counted against the maximum limitation specified in Section 4.1.  For purposes of this Article IV, if a
Stock Appreciation Right is granted in tandem with an Option so that only one
may be exercised with the other being surrendered on such exercise in accordance
with Section 5.2(b), the number of shares subject to the tandem Option and
Stock Appreciation Right award shall only be taken into account once (and not
as to both Awards).


 


4.3                                 Individual Award Limitations.  Subject to the provisions of Sections 4.2 and
4.4, the following individual Award limits shall apply:


 


(a)                                  During
any 36-month period, no Participant shall receive Options or Stock Appreciation
Rights covering more than 5,000,000 shares of Common Stock;


 


(b)                                 During
any 36-month period, no Participant shall receive any awards of Performance
Stock or Performance Stock Units covering more than 5,000,000 shares of Common
Stock; and


 


(c)                                  During
any calendar year, the maximum dollar amount of cash which may be earned in
connection with the grant of Performance Units may not exceed $7,500,000.


 


4.4                                 Adjustment in Capitalization.  In the event of any Adjustment Event
affecting the Common Stock, the Committee shall make an equitable and
proportionate anti-dilution adjustment to offset any resultant change in the
pre-share price of the Common Stock and preserve the intrinsic value of Options
and any other Awards granted under the Plan. 
Such mandatory adjustment may include a change in any or all of (a) the number and kind of shares of Common Stock which
thereafter may be awarded or optioned and sold under the Plan (including, but
not limited to, adjusting any limits on the number and types of Awards that may
be made


 


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under the
Plan), (b) the number and kind of shares of
Common Stock subject to outstanding Awards, and (c) the
grant, exercise or conversion price with respect to any Award.  In addition, the Committee may make
provisions for a cash payment to a Participant or a person who has an
outstanding Award.  The number of shares
of Common Stock subject to any Award shall be rounded to the nearest whole
number.  Any such adjustment shall be
consistent with sections 424, 409A and 162(m) of the Code to the extent
the Awards subject to adjustment are subject to such sections of the Code.


 


4.5                                 Prohibition Against Repricing.  Except to the extent (i) approved
in advance by a majority of the shares of the Company entitled to vote
generally in the election of directors or (ii) as a
result of any Adjustment Event, the Committee shall not have the power or
authority to reduce, whether through amendment or otherwise, the exercise price
of any outstanding Option or base price of any outstanding Stock Appreciation
Right or to grant any new Award, or make any cash payment, in substitution for
or upon the cancellation of Options or Stock Appreciation Rights previously
granted.


 


ARTICLE V



STOCK OPTIONS AND STOCK APPRECIATION RIGHTS


 


5.1                                 Options.


 


(a)                                  Grant.  Options may be granted to Participants at
such time or times as shall be determined by the Committee.  Options pursuant to this Plan may be of two
types: (i) “incentive stock options” within
the meaning of section 422 of the Code (“ISOs”) and (ii) non-statutory stock options (“NSOs”),
which are not ISOs.  The grant date of an
Option under the Plan will be the date on which the Option is awarded by the
Committee or such other future date as the Committee shall determine.  Each Option shall be evidenced by an Award
Agreement that shall specify the type of Option granted, the exercise price,
the duration of the Option, the number of shares of Common Stock to which the
Option pertains, and such other conditions as the Committee shall determine,
including customary representations, warranties and covenants with respect to
securities law matters.  No Option shall
be an ISO unless so designated by the Committee at the time of grant or in the
Award Agreement evidencing such Option, and which otherwise meets the
requirements of section 422 of the Code.


 


(b)                                 Exercise Price.  Each Option granted pursuant to the Plan
shall have an exercise price per share of Common Stock determined by the
Committee; provided, that except in the case of
Replacement Awards, such per share exercise price may not be less than the Fair
Market Value of one share of Common Stock on the Option grant date.


 


(c)                                  Exercisability.  Each Option awarded to a Participant under
the Plan shall become exercisable based on the performance of a minimum period
of service or the occurrence of any event or events, including a Change in
Control, as the Committee shall determine, either at or after the grant
date.  No Option shall be exercisable on
or after the tenth anniversary of its grant


 


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date.  Except as otherwise provided in the Plan, the
applicable Award Agreement or as determined by the Committee at or after the
grant date, after becoming exercisable each installment of an Option shall
remain exercisable until expiration, termination or cancellation of the Option
and, until such time, may be exercised from time to time in whole or in part,
up to the total number of shares of Common Stock with respect to which it is
then exercisable.


 


(d)                                 Payment.  The Committee shall establish procedures
governing the exercise of Options, which procedures shall generally require
that written notice of exercise thereof be given and that the exercise price
thereof and any applicable withholding tax obligations be paid in full at the
time of exercise (i) in cash or cash
equivalents, including by personal check, (ii) through
delivery of shares of Common Stock (either in full or in part, and including
actual delivery or delivery by attestation), including, but not limited to, the
election by the Participant to reduce the number of shares of Common Stock that
are subject to the portion of the Options being exercised having a Fair Market
Value equal to such portion, or (iii) in
accordance with such other procedures or in such other forms as the Committee
shall from time to time determine, which may include a broker-assisted cashless
exercise arrangement.


 


5.2                                 Stock Appreciation Rights.


 


(a)                                  Grant.  Stock Appreciation Rights may be granted to
Participants at such time or times as shall be determined by the
Committee.  Stock Appreciation Rights may
be granted in tandem with Options which, unless otherwise determined by the
Committee at or after the grant date, shall have substantially similar terms
and conditions to such Options to the extent applicable, or may granted on a
freestanding basis, not related to any Option. 
The grant date of any Stock Appreciation Right under the Plan will be
the date on which the Stock Appreciation Right is awarded by the Committee or
such other future date as the Committee shall determine.  No Stock Appreciation Right shall be
exercisable on or after the tenth anniversary of its grant date.  Stock Appreciation Rights shall be evidenced
in writing, whether as part of the Award Agreement governing the terms of the
Options, if any, to which such Stock Appreciation Right relates or pursuant to
a separate Award Agreement with respect to freestanding Stock Appreciation
Rights, in each case, containing such conditions as the Committee shall
determine, including customary representations, warranties and covenants with
respect to securities law matters.


 


(b)                                 Exercise.  Stock Appreciation Rights awarded to a
Participant under the Plan shall become exercisable based on the performance of
a minimum period of service or the occurrence of any event or events, including
a Change in Control, as the Committee shall determine, either at or after the
grant date.  Stock Appreciation Rights
that are granted in tandem with an Option may only be exercised upon the
surrender of the right to exercise such Option for an equivalent number of
shares of Common Stock, and may be exercised only with respect to the shares of
Common Stock for which the related Option is then exercisable.


 


(c)                                  Settlement.  Subject to Section 11.4, upon exercise
of a Stock Appreciation Right, the Participant shall be entitled to receive
payment in the form, determined by the Committee, of


 


12
















 


cash or shares
of Common Stock having a Fair Market Value equal to such cash amount, or any
combination of shares of Common Stock and cash having an aggregate Fair Market
Value equal to such cash amount, determined by multiplying:


 


(i)                                     any
increase in the Fair Market Value of one share of Common Stock on the exercise
date over the price fixed by the Committee on the grant date of such Stock
Appreciation Right, which may not be less than the Fair Market Value of a share
of Common Stock on the grant date of such Stock Appreciation Right (except if
awarded in tandem with an Option but after the grant date of such Option, then
not less than the exercise price of such Option), by


 


(ii)                                  the
number of shares of Common Stock with respect to which the Stock Appreciation
Right is exercised.


 


Notwithstanding the
foregoing, on the grant date the Committee may establish a maximum amount per
share which will be payable upon exercise of a Stock Appreciation Right.  To the extent permitted by applicable law (including
section 409A of the Code), upon such terms and conditions as the Committee may
establish from time to time, a Participant may be permitted to defer the
receipt of cash and/or shares of Common Stock otherwise deliverable upon
exercise of a Stock Appreciation Right.


 


5.3                                 Termination of Employment.


 


(a)                                  Death or Disability.  Unless otherwise determined by the Committee
at or after the grant date, if a Participant’s employment terminates by reason
of such Participant’s death or Disability, any Options and Stock Appreciation
Rights granted to such Participant, whether or not exercisable on or prior to
the date of such termination, shall, subject to Section 9.1, be
exercisable by the Participant (or the Participant’s designated beneficiary, as
applicable) at any time prior to the first anniversary of the Participant’s
termination of employment or the expiration of the term of the Options and
Stock Appreciation Rights, whichever period is shorter, and thereafter any
Options and Stock Appreciation Rights that have not been exercised shall be
forfeited and canceled.


 


(b)                                 Retirement.  Unless otherwise determined by the Committee
at or after the grant date or as provided in the next following paragraph, if a
Participant’s employment terminates as a result of his or her Retirement, then (x) the
Participant may exercise any Options and Stock Appreciation Rights that are
exercisable on the date of such Retirement until the earlier of (i) the 90th day following the date of such Retirement
or, if later, the 90th day following expiration of any blackout period in
effect with respect to such Options or Stock Appreciation Rights, and (ii) the expiration of the term of such Options or
Stock Appreciation Rights, and (y) any Options and Stock Appreciation
Rights that are not exercisable upon the Participant’s Retirement shall be
forfeited and canceled as of the date of such Retirement.


 


Notwithstanding
the foregoing, if the Committee in its discretion requests, and the Participant
agrees to, a release of claims and to be bound by restrictive covenants in such
form and having


 


13

















 


such terms as
the Committee shall determine, which may include non-competition,
non-solicitation, non-disclosure and non-disparagement covenants, then, during
the three-year period following the Participant’s Retirement, subject to Section 9.1,
(i) the Options and Stock
Appreciation Rights granted to such Participant that are not exercisable on the
date of his or her Retirement shall continue to become exercisable in
accordance with their respective terms during such three-year period as if such
Participant’s employment had not terminated, and (ii) the
Options and Stock Appreciation Rights that are exercisable on the date of the
Participant’s Retirement plus those Options and Stock Appreciation Rights that
become exercisable pursuant to the immediately preceding clause may be
exercised by the Participant (or the Participant’s beneficiary or legal
representative) until the earlier of (A) (i) the
third anniversary of the Participant’s Retirement or (ii) if
the Participant dies prior to the third anniversary of the Participant’s
Retirement, the twelve-month anniversary following the date of the Participant’s
death, and (B) the expiration of the term of
such Options or Stock Appreciation Rights. 
Upon the expiration of such period, all Options and Stock Appreciation
Rights not previously exercised by the Participant shall be forfeited and
canceled.  If the Participant violates
any such restrictive covenants during such three-year period, as determined by
the Committee in its sole discretion, all Options and Stock Appreciation Rights
granted to such Participant, whether or not then exercisable, shall be
immediately forfeited and canceled as of the date of such violation.


 


(c)                                  For Cause.  If a Participant’s employment with the
Company or any Subsidiary is terminated for Cause, all Options and Stock
Appreciation Rights granted to such Participant which are then outstanding
(whether or not exercisable on or prior to the date of such termination) shall
be immediately forfeited and canceled.


 


(d)                                 Without Cause.  If a Participant’s employment with the
Company or any Subsidiary is terminated by the Company without Cause, then (x) the
Participant may exercise any Options and Stock Appreciation Rights that are
exercisable on the date of such termination until the earlier of (i) the 90th day following the date of such termination
or, if later, the 90th day following expiration of any blackout period in
effect with respect to such Options or Stock Appreciation Rights, and (ii) the expiration of the term of such Options or
Stock Appreciation Rights, and (y) any Options and Stock Appreciation
Rights that are not exercisable upon the Participant’s termination shall be
forfeited and canceled as of the date of such termination.


 


(e)                                  Any Other Reason.  Unless otherwise determined by the Committee
at or after the grant date, if a Participant’s employment is terminated for any
reason other than the ones described in Section 5.3(a), (b), (c), or (d) the
Participant may exercise any Options and Stock Appreciation Rights that are
exercisable on the date of such termination until the earlier of (i) the 30th day following the date of such termination
or, if later, the 30th day following expiration of any blackout period in
effect with respect to such Options or Stock Appreciation Rights, and (ii) the expiration of the term of such Options or
Stock Appreciation Rights.  Any Options
and Stock Appreciation Rights that are not exercisable upon termination of a
Participant’s employment shall be forfeited and canceled as of the date of such
termination.


 


14

















 


5.4                                 Committee Discretion.  Notwithstanding anything to the contrary
contained in this Article V, the Committee may, at or after the date of
grant, accelerate or waive any conditions to the exercisability of any Option
or Stock Appreciation Right granted under the Plan, and may permit all or any
portion of any such Option or Stock Appreciation Right to be exercised
following a Participant’s termination of employment for any reason on such
terms and subject to such conditions as the Board shall determine for a period
up to and including, but not beyond, the expiration of the term of such Options
or Stock Appreciation Rights.


 


5.5                                 Forfeiture.  Unless otherwise determined by the Committee
at or after the grant date, notwithstanding anything contained in this Plan to
the contrary, if, during the period commencing with a Participant’s employment
with the Company or any Subsidiary, and continuing until the first anniversary
of the later of (i) the Participant’s
employment termination and (ii) the
expiration of any post-termination exercise period (the “Covered
Period”) the Participant, except with the prior written consent of
the Committee,


 


(a)                                  directly
or indirectly, owns any interest in, operates, joins, controls or participates
as a partner, director, principal, officer, or agent of, enters into the
employment of, acts as a consultant to, or performs any services for any entity
which has operations that compete with any business of the Company and the
Subsidiaries in which the Participant was employed (in any capacity) in any
jurisdiction in which such business is engaged, or in which any of the Company
and the Subsidiaries have documented plans to become engaged of which the
Participant has knowledge at the time of the Participant’s termination of
employment (the “Business”), except where (x) the Participant’s interest or association with such
entity is unrelated to the Business, (y) such
entity’s gross revenue from the Business is less than 10% of such entity’s
total gross revenue, and ( z ) the
Participant’s interest is directly or indirectly less than two percent (2%) of
the Business;


 


(b)                                 directly
or indirectly, solicits for employment, employs or otherwise interferes with
the relationship of the Company or any of its Affiliates with any natural
person throughout the world who is or was employed by or otherwise engaged to
perform services for the Company or any of its Affiliates at any time during
the Participant’s employment with the Company or any Subsidiary (in the case of
any such activity during such time) or during the twelve-month period preceding
such solicitation, employment or interference (in the case of any such activity
after the termination of the Participant’s employment); or


 


(c)                                  directly
or indirectly, discloses or misuses any confidential information of the Company
or any of its Affiliate (such activities in subsections (a), (b) and (c) hereof
to be collectively and individually referred to as “Wrongful
Conduct”),


 


then any Options and Stock
Appreciation Rights granted to the Participant hereunder, to the extent they
remain unexercised, shall automatically terminate and be canceled upon the date
on which the Participant first engaged in such Wrongful Conduct and, in such
case or in the case of the Participant’s termination for Cause, the Participant
shall pay to the Company in cash any Option/SAR Financial Gain the Participant
realized from exercising all or a portion of the


 


15

















 


Options and Stock
Appreciation Rights granted hereunder within the twelve-month period ending on
the date of the Participant’s violation (or such other period as determined by
the Committee) (such period, the “Wrongful Conduct Period”).  For purposes of this Section 5.5, “Option/SAR Financial Gain” shall equal, on each date of
exercise during the Wrongful Conduct Period, (I) with
respect to Options, the excess of (A) the
greater of (i) the Fair Market Value on the
date of exercise and (ii) the
Fair Market Value on the date of sale of the Option shares, over (B) the exercise price, multiplied by the number of
shares of Common Stock subject to such Award (without reduction for any shares
of Common Stock surrendered or attested to), and (II) with
respect to Stock Appreciation Rights, the excess of (A) the
Fair Market Value on the date of exercise, over (B) the
exercise price, multiplied by the number of shares of Common Stock subject to such
Stock Appreciation Right.  Unless
otherwise determined by the Committee at or after the grant date, each Award
Agreement evidencing the grant of Options and/or Stock Appreciation Rights
shall provide for the Participant’s consent to and authorization of the Company
and the Subsidiaries to deduct from any amounts payable by such entities to
such Participant any amounts the Participant owes to the Company under this Section 5.5.  This right of set-off is in addition to any
other remedies the Company may have against the Participant for the Participant’s
breach of this Section 5.5.  The
Participant’s obligations under this Section 5.5 shall be cumulative (but
not duplicative) of any similar obligations the Participant has under this
Plan, any Award Agreement, any Company policy, standard or code (including,
without limitation, the Company’s Standards of Business Conduct), or any other
agreement with the Company or any Subsidiary.


 


5.6                                 Financial Restatements.  An Award Agreement may provide that, in the
event that a Participant commits misconduct, fraud or gross negligence (whether
or not such misconduct, fraud or gross negligence is deemed or could be deemed
to be an event constituting Cause) and as a result of, or in connection with,
such misconduct, fraud or gross negligence the Company restates any of its
financial statements, the Committee may require any or all of the following:


 


(a)                                  that
the Participant forfeit some or all of the Options and Stock Appreciation
Rights held by such Participant at the time of such restatement,


 


(b)                                 that
the Participant forfeit (or pay to the Company) some or all of the shares of
Common Stock or cash held by the Participant at the time of such restatement in
respect of Options and Stock Appreciation Rights, as applicable, that have been
exercised during the twelve-month period prior to the financial restatement (or
such other period as determined by the Committee), reduced (in the case of
Options) by a number of shares with a Fair Market Value equal to the aggregate
exercise price paid by the Participant, and


 


(c)                                  that
the Participant pay to the Company in cash all or a portion of the proceeds
that the Participant realized from the sale of shares of Common Stock subject
to any Options and Stock Appreciation Rights that had been exercised by the
Participant within the period commencing twelve months prior to the financial
restatement (or such other period as determined by the Committee), reduced (in
the case of Options) by an amount of cash equal to the aggregate exercise price
paid by the Participant.


 


16

















 


ARTICLE VI



PERFORMANCE STOCK, PERFORMANCE STOCK UNITS

AND PERFORMANCE UNITS


 


6.1                                 Grant.  Performance Stock, Performance Stock Units
and Performance Units may be granted to Participants at such time or times as
shall be determined by the Committee. 
The grant date of any Performance Stock, Performance Stock Units or
Performance Units under the Plan will be the date on which such Performance Stock,
Performance Stock Units or Performance Units are awarded by the Committee or on
such other future date as the Committee shall determine.  Performance Stock, Performance Stock Units
and Performance Units shall be evidenced by an Award Agreement that shall
specify the number of shares of Performance Stock, the number of Performance
Stock Units, or the dollar amount of any Performance Units, as the case may be,
to which such Award pertains, the Restriction Period, the Performance Period,
and such other conditions as the Committee shall determine, including customary
representations, warranties and covenants with respect to securities law
matters.  No shares of Common Stock will
be issued at the time an Award of Performance Stock Units or Performance Units
is made, and the Company shall not be required to set aside a fund for the
payment of any such Award.


 


6.2                                 Vesting.


 


(a)                                  In General.  Performance Stock, Performance Stock Units
and Performance Units granted to a Participant under the Plan shall be subject
to a Restriction Period, which shall lapse upon the attainment of specified
performance objectives or the occurrence of any event or events, including a
Change in Control, as the Committee shall determine, either at or after the
grant date.  The Committee shall
establish the performance objectives upon which the Restriction Period shall
lapse, which, in the case of any such Award intended to qualify as “performance-based”
compensation under section 162(m) of the Code, shall be established no
later than the 90th day after the applicable Performance Period
begins (or such other date as may be required or permitted under section 162(m) of
the Code).


 


(b)                                 Performance Objectives.  The performance objectives for any grant of
Performance Stock, Performance Stock Units, Performance Units or any other Award
intended to qualify as “performance-based” compensation under section 162(m) of
the Code will be based upon the relative or comparative achievement of one or
more of the following criteria, as determined by the Committee: net sales;
revenue; revenue growth or product revenue growth; operating income (before or
after taxes); pre- or after-tax income (before or after allocation of corporate
overhead and bonus); net earnings; earnings per share; net income (before or
after taxes); return on equity; total shareholder return; return on assets or
net assets; appreciation in and/or maintenance of share price; market share;
gross profits; earnings (including adjusted pre-tax earnings, earnings before
taxes, earnings before interest and taxes or earnings before interest, taxes,
depreciation and amortization); economic value-added models or equivalent
metrics; comparisons with various stock market indices; reductions in costs;
total net cash flow; cash flow


 


17

















 


or cash flow
per share (before or after dividends); return on capital (including return on
total capital or return on invested capital); cash flow return on investment;
improvement in or attainment of expense levels or working capital levels;
operating margins, gross margins or cash margin; year-end cash; debt
reductions; shareholder equity; market share; regulatory achievements; and
implementation, completion or attainment of measurable objectives with respect
to customer satisfaction, research, development, products or projects and
recruiting and maintaining personnel. 
The performance objectives for any grant of Performance Stock,
Performance Stock Units or Performance Units not intended to qualify as “performance-based”
compensation under section 162(m) of the Code will be based on the
foregoing or such other criteria as may be determined by the Committee.


 


(c)                                  Special Rules Relating to Performance
Objectives.  Performance objectives may be established on
a Company-wide basis or with respect to one or more Company business units or
divisions, or Subsidiaries; and either in absolute terms, relative to the
performance of one or more similarly situated companies, or relative to the
performance of an index covering a peer group of companies.  When establishing performance objectives for
the applicable Performance Period, the Committee may exclude any or all “extraordinary
items” as determined under U.S. generally acceptable accounting principles
including, without limitation, the charges or costs associated with restructurings
of the Company, discontinued operations, other unusual or non-recurring items,
and the cumulative effects of accounting changes, and as identified in the
Company’s financial statements, notes to the Company’s financial statements or
management’s discussion and analysis of financial condition and results of
operations contained in the Company’s most recent report filed with the U.S.
Securities and Exchange Commission pursuant to the Exchange Act; provided, that the Committee shall have no discretion with
respect to any Award intended to qualify as “performance-based” compensation
under section 162(m) of the Code if the exercise of such discretion or the
ability to exercise such discretion would cause such Award to fail to qualify
as “performance-based” compensation under section 162(m) of the Code.


 


(d)                                 Certification of Attainment of Performance
Objectives.  The Restriction Period with respect to any
Performance Stock, Performance Stock Units, Performance Units or any other
Award intended to qualify as “performance-based” compensation under section 162(m) of
the Code shall lapse upon the written certification by the Committee that the
performance objective or objectives for the applicable Performance Period have
been attained.  The Committee may provide
at the time of grant that if the performance objective or objectives are
attained in part, the Restriction Period with respect to a specified portion
(which may be zero) of the any Performance Stock, Performance Stock Units or
Performance Units will lapse and any remaining portion shall be cancelled; provided, that the Committee shall have no discretion to
take such action with respect to any Award intended to qualify as “performance-based”
compensation under section 162(m) of the Code if the exercise of such
action or the ability to exercise such action would cause such Award to fail to
qualify as “performance-based” compensation under section 162(m) of the
Code.


 


18

















 


(e)                                  Newly Eligible Participants.  Notwithstanding anything in this Article VI
to the contrary, the Committee shall be entitled to make such rules,
determinations and adjustments as it deems appropriate with respect to any
Participant who becomes eligible to receive an Award of Performance Stock,
Performance Stock Units or Performance Units after the commencement of a
Performance Period.


 


6.3                                 Additional Provisions Relating to Performance Stock.


 


(a)                                  Restrictions on Transferability.  Except as otherwise provided in Section 6.6(a),
no Performance Stock may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated until the lapse of the Restriction Period.  Thereafter, Performance Stock may be sold,
transferred, pledged, assigned or otherwise alienated or hypothecated in compliance
with all applicable securities laws, the Award Agreement and any other
agreement to which the Performance Stock is subject.  The Committee shall require that any stock
certificates evidencing any Performance Stock be held in the custody of the
Secretary of the Company until the applicable Restriction Period lapses, and
that, as a condition of any grant of Performance Stock,  the
Participant shall have delivered a stock power, endorsed in blank, relating to
the shares of Common Stock covered by such Award.  Any attempt by a Participant, directly or
indirectly, to offer, transfer, sell, pledge, hypothecate or otherwise dispose
of any Performance Stock or any interest therein or any rights relating thereto
without complying with the provisions of the Plan, including this Section 6.3,
shall be void and of no effect.


 


(b)                                 Legend.  Each certificate evidencing shares of Common
Stock subject to an Award of Performance Stock shall be registered in the name
of the Participant holding such Performance Stock and shall bear the following
(or similar) legend:


 


“THE SHARES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS (INCLUDING FORFEITURE)
CONTAINED IN THE HERTZ GLOBAL HOLDINGS, INC. 2008 OMNIBUS INCENTIVE PLAN AND
THE RELATED AWARD AGREEMENT AND NEITHER THIS CERTIFICATE NOR THE SHARES
REPRESENTED BY IT ARE ASSIGNABLE OR OTHERWISE TRANSFERABLE EXCEPT IN ACCORDANCE
WITH SUCH PLAN, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.”


 


(c)                                  Rights as a Stockholder.  The Committee shall determine whether and to
what extent dividends and distributions will be credited to the account of a
Participant receiving an Award of Performance Stock.  Unless otherwise determined by the Committee
at or after the grant date, (i) any
cash dividends or distributions credited to the Participant’s account shall be
deemed to have been invested in additional Performance Stock on the payment
date established for the related dividend or distribution in an amount per
share of Performance Stock equal to the greatest whole number which may be
obtained by dividing (A) the
value of such dividend or distribution on the record date by (B) the Fair Market Value of one share of Common Stock
on such date, and any such additional Performance Stock shall be subject to the
same terms and conditions as are applicable in respect of the Performance Stock
with respect to which such


 


19

















 


dividends or
distributions were payable, and, (ii) if any
such dividends or distributions are paid in shares of Common Stock or other
securities, such shares and other securities shall be subject to the same
Restriction Period and other restrictions as apply to the Performance Stock
with respect to which they were paid.  A
Participant holding outstanding Performance Stock shall be entitled to exercise
full voting rights and other rights as a stockholder with respect to the shares
of Common Stock underlying such Award during the period in which such shares
remain subject to the Restriction Period.


 


6.4                                 Additional Provisions Relating to Performance Stock
Units.


 


(a)                                  Restrictions on Transferability.  Except as otherwise provided in Section 6.6(a) or
with the consent of the Committee, Performance Stock Units may not be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated.  Any attempt by a Participant, directly or
indirectly, to offer, transfer, sell, pledge, hypothecate or otherwise dispose
of any Performance Stock Units or any interest therein or any rights relating
thereto other than as provided in the Plan shall be void and of no effect.


 


(b)                                 Rights as a Stockholder.  The Committee shall determine whether and to
what extent Dividend Equivalents will be credited to the account of a
Participant receiving an Award of Performance Stock Units.  Unless otherwise determined by the Committee
at or after the grant date, (i) any
cash dividends or distributions credited to the Participant’s account shall be
deemed to have been invested in additional Performance Stock Units on the
payment date established for the related dividend or distribution in an amount
per Performance Stock Unit equal to the greatest whole number which may be
obtained by dividing (A) the
value of such dividend or distribution on the record date by (B) the Fair Market Value of one share of Common Stock
on such date, and any such additional Performance Stock Units shall be subject
to the same terms and conditions as are applicable in respect of the
Performance Stock Units with respect to which such dividends or distributions were
payable, and (ii) if any such dividends or
distributions are paid in shares of Common Stock or other securities, such
shares of Common Stock and other securities shall be subject to the same
Restriction Period and Performance Period and other restrictions as apply to
the Performance Stock Units with respect to which they were paid.  Unless and until the Company issues a
certificate or certificates to a Participant for shares of Common Stock in
respect of his or her Award of Performance Stock Units, or otherwise determined
by the Committee at or after the grant date, a Participant holding outstanding
Performance Stock Units shall not be entitled to exercise any voting rights and
any other rights as a stockholder with respect to the shares of Common Stock underlying
such Award.


 


(c)                                  Settlement of Performance Stock Units.  Unless the Committee determines otherwise at
or after the grant date, as soon as reasonably practicable after the lapse of
the Restriction Period with respect to any Performance Stock Units then held by
a Participant, the Company shall issue to the Participant the shares of Common
Stock underlying such Performance Stock Units (plus additional shares of Common
Stock for each Performance Stock Units credited in respect of dividends or
distributions) or, if the Committee so determines in its sole discretion, an
amount in cash equal to the Fair Market Value of such shares of Common


 


20

















 


Stock or any
combination of shares of Common Stock and cash having an aggregate Fair Market
Value equal to such shares of Common Stock. 
To the extent permitted by applicable law (including section 409A of the
Code), upon such terms and conditions as the Committee may establish from time
to time, a Participant may be permitted to defer the receipt of the shares of
Common Stock or cash otherwise deliverable upon settlement of Performance Stock
Units.  Upon issuance of shares of Common
Stock underlying Performance Stock Units following lapse of the Restriction
Period, such shares may be sold, transferred, pledged, assigned or otherwise
alienated or hypothecated in compliance with all applicable securities laws,
the Award Agreement and any other agreement to which such shares are subject.


 


6.5                                 Additional Provisions Relating to Performance Units.


 


(a)                                  Restrictions on Transferability.  Except as otherwise provided in Section 6.6(a),
no Performance Units may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated.  Any attempt
by a Participant, directly or indirectly, to offer, transfer, sell, pledge,
hypothecate or otherwise dispose of any Performance Units or any interest
therein or any rights relating thereto shall be void and of no effect.


 


(b)                                 Settlement of Performance Units.  Unless the Committee determines otherwise at
or after the grant date, as soon as reasonably practicable after the lapse of
the Restriction Period with respect to any Performance Units then held by a
Participant, the Company shall deliver to the Participant a cash payment equal
to the value of such Award or, if the Committee has so determined, a number of
shares of Common Stock, which shares shall have a Fair Market Value equal to
the value of such Award, or any combination of shares of Common Stock and cash
having an aggregate Fair Market Value equal to the value of such Award.  To the extent permitted by applicable law
(including section 409A of the Code), upon such terms and conditions as the
Committee may establish from time to time, a Participant may be permitted to
defer the receipt of cash or the shares of Common Stock otherwise deliverable
upon settlement of Performance Units. 
Upon issuance of shares of Common Stock underlying Performance Units
following lapse of the Restriction Period, such shares may be sold,
transferred, pledged, assigned or otherwise alienated or hypothecated in
compliance with all applicable securities laws, the Award Agreement and any
other agreement to which such shares are subject.


 


6.6                                 Termination of Employment.


 


(a)                                  Death or Disability.  Unless otherwise determined by the Committee
at or after the grant date, if a Participant’s employment terminates by reason
of such Participant’s death or Disability, the Participant or, as the case may
be, the Participant’s estate, shall retain a portion of his or her Performance
Stock, Performance Stock Units and Performance Units equal to the number of
shares or units underlying each Award multiplied by a fraction, the numerator
of which is the number of days elapsed from the commencement of the applicable
Performance Period through the date of termination, and the denominator of
which is the number of days in such Performance Period (each a “Retained Award”), and the remainder of each Award shall be
forfeited and canceled as of the date of such termination.  The Restriction Period on a Retained


 


21

















 


Award shall
lapse upon completion of the applicable Performance Period to the extent that
applicable performance objectives are attained. 
Settlement of a Retained Award shall be made at the time and in the
manner provided in Sections 6.4(c) and 6.5(b) except that no
additional deferrals shall be permitted.


 


(b)                                 Retirement.  Unless otherwise determined by the Committee
at or after the grant date, if a Participant’s employment terminates as a
result of his or her Retirement, any Performance Stock, Performance Stock Units
and Performance Units for which the Performance Period has not then lapsed
shall be forfeited and canceled as of the date of such termination of
employment; provided, that the Committee may
authorize that, if the Participant agrees to a release of claims and to be
bound by restrictive covenants in such form and having such terms as the
Committee shall determine, which may include non-competition, non-solicitation,
non-disclosure and non-disparagement covenants, then the Participant shall
retain a portion of his or her Performance Stock, Performance Stock Units and
Performance Units equal to the number of shares or units underlying each Award
multiplied by a fraction, the numerator of which is the number of days elapsed
from the commencement of the applicable Performance Period through the date of
his or her Retirement, and the denominator of which is the number of days in
such Performance Period (each a “Retained Retirement Award”),
and the remainder of each Award shall be forfeited and canceled as of the date
of such Retirement; provided, further, that the Committee shall have no
discretion to take such preceding action with respect to any Award intended to
qualify as “performance-based” compensation under section 162(m) of the
Code if the exercise of such action or the ability to exercise such action
would cause such Award to fail to qualify as “performance-based” compensation
under section 162(m) of the Code.  Subject
to the Participant’s compliance with such covenants, and, to the extent that
applicable performance objectives are attained, the Restriction Period on the
Retained Retirement Awards shall lapse upon completion of the applicable
Performance Period for such Retained Retirement Award.  If the Participant violates any restrictive
covenants during the remaining Performance Period, as determined by the
Committee in its sole discretion, all Performance Stock, Performance Stock
Units and Performance Units for which the Performance Period has not then
lapsed shall be immediately forfeited and canceled as of the date of such
violation or termination.


 


(c)                                  Any Other Reason.  Unless otherwise determined by the Committee
at or after the grant date, if a Participant’s employment is terminated for any
reason other than one described in Sections 6.6(a) and (b), any
then-outstanding Performance Stock, Performance Stock Units and Performance
Units granted to such Participant shall be immediately forfeited and canceled as
of the date of such termination of employment.


 


6.7                                 Forfeiture.  Unless otherwise determined by the Committee
at or after the grant date, notwithstanding anything contained in this Plan to
the contrary, if, during the Covered Period, the Participant, except with the
prior written consent of the Committee, engages in Wrongful Conduct, then any
Performance Stock, Performance Stock Units and Performance Units granted to the
Participant hereunder, for which the Restriction Period has not then lapsed
shall automatically terminate and be canceled upon the date on which the
Participant first


 


22

















 


engaged in such
Wrongful Conduct and, in such case or in the case of the Participant’s
termination for Cause, the Participant shall pay to the Company in cash any
Performance-Based Financial Gain the Participant realized from the vesting of
all or a portion of the Performance Stock, Performance Stock Units and
Performance Units granted hereunder and having a Vesting Date within the
Wrongful Conduct Period.  For purposes of
this Section 6.7, “Performance-Based
Financial Gain” shall equal, in the case of each Vesting Date during
the Wrongful Conduct Period, (I) the
greater of (A) the Fair Market Value of a share
of the underlying Common Stock on the Vesting Date of such Award and (B) the per share Fair Market Value on the date of any
sale of such underlying Common Stock, multiplied by (II) the
number of shares of Common Stock subject to such Award (without reduction for
any shares of Common Stock surrendered or attested to).  Unless otherwise determined by the Committee
at or after the grant date, each Award Agreement evidencing the grant of
Performance Stock, Performance Stock Units and Performance Units shall provide
for the Participant’s consent to and authorization of the Company and the
Subsidiaries to deduct from any amounts payable by such entities to such
Participant any amounts the Participant owes to the Company under this Section 6.7.  This right of set-off is in addition to any
other remedies the Company may have against the Participant for the
Participant’s breach of this Section 6.7. 
The Participant’s obligations under this Section 6.7 shall be
cumulative (but not duplicative) of any similar obligations the Participant has
under this Plan, any Award Agreement, any Company policy, standard or code
(including, without limitation, the Company’s Standards of Business Conduct),
or any other agreement with the Company or any Subsidiary.


 


6.8                                 Financial Restatements.  An Award Agreement may provide that, in the
event that a Participant commits misconduct, fraud or gross negligence (whether
or not such misconduct, fraud or gross negligence is deemed or could be deemed
to be an event constituting Cause) and as a result of, or in connection with,
such misconduct, fraud or gross negligence the Company restates any of its
financial statements, then the Committee may require any or all of the
following:


 


(a)                                  that
the Participant forfeit some or all of the Performance Stock, Performance Stock
Units and Performance Units held by such Participant at the time of such
restatement,


 


(b)                                 that
the Participant forfeit (or pay to the Company) some or all of the cash or
shares of Common Stock held by the Participant at the time of such restatement
that had been received in settlement of Performance Stock, Performance Stock
Units and Performance Units, as applicable, during the twelve-month period
prior to the financial restatement (or such other period as determined by the
Committee), and


 


(c)                                  that
the Participant pay to the Company in cash all or a portion of the proceeds
that the Participant realized from the sale of shares of Common Stock that had
been received in settlement of any Performance Stock, Performance Stock Units
and Performance Units within the period commencing twelve months prior to the
financial restatement (or such other period as determined by the Committee).


 


23

















 


ARTICLE VII



RESTRICTED STOCK AND RESTRICTED STOCK UNITS; SHARE AWARDS


 


7.1                                 Grant.  Restricted Stock and Restricted Stock Units
may be granted to Participants at such time or times as shall be determined by
the Committee.  The grant date of any
Restricted Stock or Restricted Stock Units under the Plan will be the date on which
such Restricted Stock or Restricted Stock Units are awarded by the Committee or
on such other future date as the Committee shall determine.  Restricted Stock and Restricted Stock Units
shall be evidenced by an Award Agreement that shall specify the number of
shares of Common Stock to which the Restricted Stock and the Restricted Stock
Units pertain (and, if applicable, whether such Award may be payable in cash),
the Restriction Period, and such terms and conditions as the Committee shall
determine, including customary representations, warranties and covenants with
respect to securities law matters.  No
shares of Common Stock will be issued at the time an Award of Restricted Stock
Units is made and the Company shall not be required to set aside a fund for the
payment of any such Award.


 


7.2                                 Vesting.  Restricted Stock and Restricted Stock Units
granted to a Participant under the Plan shall be subject to a Restriction
Period, which shall lapse upon the performance of a minimum period of service,
or the occurrence of any event or events, including a Change in Control, as the
Committee shall determine, either at or after the grant date.  The Restriction Period on any Restricted
Stock or Restricted Stock Units shall not fully lapse prior to a Participant’s
completion of three years of service to the Company or any Subsidiary from the
date of the Award grant; provided, that
the Committee may provide for a Restriction Period to lapse in pro rata or
graded installments over such three-year period; provided
further, that the Committee may grant Awards for Restricted Stock
and Restricted Stock Units for an aggregate number of shares of Common Stock
not to exceed 5% of the total number of shares of Common Stock available for
issuance under this Plan that have a Restriction Period which lapses in full
prior to a Participant’s completion of three years of service to the Company or
any Subsidiary from the date of the Award grant; and provided
further, that the minimum Restriction Period for any such Award
granted to a newly eligible individual or a Replacement Award shall instead be
one year, and the minimum Restriction Period for any such Award to a
non-employee director of the Company or its Subsidiaries shall be as determined
by the Committee.


 


7.3                                 Additional Provisions Relating to Restricted Stock.


 


(a)                                  Restrictions on Transferability.  Unless otherwise determined by the Committee,
no Restricted Stock may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated until the lapse of the Restriction Period.  Thereafter, Restricted Stock may be sold,
transferred, pledged, assigned or otherwise alienated or hypothecated in
compliance with all applicable securities laws, the Award Agreement, and any
other agreement to which the Restricted Stock is subject.  The Committee shall require that any stock
certificates evidencing any Restricted Stock be held in the custody of the
Secretary of the Company until the applicable Restriction Period lapses, and
that, as a condition of any grant of Restricted Stock, the Participant


 


24
















 


shall have
delivered a stock power, endorsed in blank, relating to the share covered by
such Award.  Any attempt by a
Participant, directly or indirectly, to offer, transfer, sell, pledge,
hypothecate or otherwise dispose of any Restricted Stock or any interest
therein or any rights relating thereto without complying with the provisions of
the Plan, including this Section 7.3, shall be void and of no effect.


 


(b)           Legend.  Each certificate evidencing shares of Common
Stock subject to an Award of Restricted Stock shall be registered in the name
of the Participant holding such Restricted Stock and shall bear the legend (or
similar legend) as specified in Section 6.3(b).


 


(c)           Rights as a Stockholder.  Unless otherwise determined by the Committee
at or after the grant date, a Participant holding outstanding Restricted Stock
shall be entitled to (i) receive
all dividends and distributions paid in respect of shares of Common Stock
underlying such Award; provided,
that, if any such dividends or distributions are paid in shares of Common Stock
or other securities, such shares and other securities shall be subject to the
same Restriction Period and other restrictions as apply to the Restricted Stock
with respect to which they were paid, and (ii) exercise
full voting rights and other rights as a stockholder with respect to the shares
of Common Stock underlying such Award during the period in which such shares
remain subject to the Restriction Period.


 


7.4           Additional Provisions
Relating to Restricted Stock Units.


 


(a)           Restrictions on
Transferability.  No
Restricted Stock Units may be sold, transferred, pledged, assigned, or
otherwise alienated or hypothecated.  Any
attempt by a Participant, directly or indirectly, to offer, transfer, sell,
pledge, hypothecate or otherwise dispose of any Restricted Stock Units or any
interest therein or any rights relating thereto without complying with the
provisions of the Plan, including this Section 7.4, shall be void and of
no effect.


 


(b)           Rights as a Stockholder.  The Committee shall determine whether and to
what extent Dividend Equivalents will be credited to the account of, or will be
paid currently to, a Participant receiving an Award of Restricted Stock
Units.  Unless otherwise determined by the
Committee at or after the grant date, (i) any
cash dividends or distributions credited to the Participant’s account shall be
deemed to have been invested in additional Restricted Stock Units on the
payment date established for the related dividend or distribution in an amount
equal to the greatest whole number which may be obtained by dividing (A) the value of such dividend or distribution on the
record date by (B) the Fair Market Value of
one share of Common Stock on such date, and any such additional Restricted
Stock Units shall be subject to the same terms and conditions as are applicable
in respect of the Restricted Stock Units with respect to which such dividends
or distributions were payable, and (ii) if any
such dividends or distributions are paid in shares of Common Stock or other
securities, such shares and other securities shall be subject to the same
Restriction Period and other restrictions as apply to the Restricted Stock
Units with respect to which they were paid. 
Unless and until the Company issues a certificate or certificates to a
Participant for shares of Common Stock in respect of his or her Award of
Restricted Stock 


 


25

















 


Units, or
otherwise determined by the Committee at or after the grant date, a Participant
holding outstanding Restricted Stock Units shall not be entitled to exercise
any voting rights and any other rights as a stockholder with respect to the
shares of Common Stock underlying such Award.


 


(c)           Settlement of Restricted
Stock Units.  Unless the
Committee determines otherwise at or after the grant date, as soon as
reasonably practicable after the lapse of the Restriction Period with respect
to any Restricted Stock Units, the Company shall issue the shares of Common
Stock underlying such Restricted Stock Units (plus additional shares of Common
Stock for Restricted Stock Unit credited in respect of dividends or
distributions) or, if the Committee so determines in its sole discretion, an
amount in cash equal to the Fair Market Value of such shares of Common Stock or
any combination of shares of Common Stock and cash having an aggregate Fair
Market Value equal to such shares of Common Stock.  To the extent permitted by applicable law
(including section 409A of the Code), upon such terms and conditions as the
Committee may establish from time to time, a Participant may be permitted to
defer the receipt of the shares of Common Stock or cash otherwise deliverable
upon settlement of Restricted Stock Units. 
Upon issuance of shares of Common Stock following lapse of the Restriction
Period, such shares may be sold, transferred, pledged, assigned or otherwise
alienated or hypothecated in compliance with all applicable securities law, the
Award Agreement and any other agreement to which such shares are subject.


 


7.5           Termination of Employment.


 


(a)           Death or Disability.  Unless otherwise determined by the Committee
at or after the grant date, if a Participant’s employment terminates by reason
of such Participant’s death or Disability, the Participant or, as the case may
be, the Participant’s estate, shall retain a portion of his or her Restricted
Stock and Restricted Stock Units equal to the number of shares or units
underlying each Award multiplied by a fraction, the numerator of which is the
number of days elapsed from the commencement of the applicable Restriction
Period through the date of termination, and the denominator of which is the
number of days in such Restriction Period (each a “Retained
Restricted Award”), and the remainder of each Award shall be
forfeited and canceled as of the date of such termination.  The Restriction Period on a Retained
Restricted Award shall lapse upon the Participant’s termination of
employment.  Settlement of a Retained
Restricted Award shall be made at the time and in the manner provided in Sections
7.3 and 7.4 except that no additional deferrals shall be permitted.


 


(b)           Any Other Reason.  Unless otherwise determined by the Committee
at or after the grant date, if a Participant’s employment is terminated for any
reason during the Restriction Period other than as described in Section 7.5(a),
any Restricted Stock and Restricted Stock Units granted to such Participant for
which the Restriction Period has not then expired shall be forfeited and
canceled as of the date of such termination.


 


7.6           Forfeiture.  Unless otherwise determined by the Committee
at or after the grant date, notwithstanding anything contained in this Plan to
the contrary, if, during the Covered 


 


26

















 


Period the
Participant, except with the prior written consent of the Committee, engages in
Wrongful Conduct, then any Restricted Stock and Restricted Stock Units granted
to the Participant hereunder, for which the Restriction Period has not lapsed,
shall automatically terminate and be canceled upon the date on which the
Participant first engaged in such Wrongful Conduct and, in such case and in the
case of the Participant’s termination for Cause, the Participant shall pay to
the Company in cash (i) any
Restriction-Based Financial Gain the Participant realized from all or a portion
of the Restricted Stock and Restricted Stock Units granted hereunder having a
Vesting Date within the Wrongful Conduct Period, and (ii) any
Share-Based Financial Gain the Participant realized from all or a portion of
the Share Awards granted hereunder having a grant date within the Wrongful
Conduct Period.  For purposes of this Section 7.6,
“Restriction-Based Financial Gain” shall
equal, on each Vesting Date during the Wrongful Conduct Period, (I) the greater of (A) the
Fair Market Value of a share of the underlying Common Stock on the Vesting Date
and (B) the per share Fair Market Value
on the date of sale of such underlying Common Stock, multiplied by (II) the number of shares of Common Stock subject to
such Award (without reduction for any shares of Common Stock surrendered or
attested to).  For purposes of this Section 7.6,
“Share-Based Financial Gain” shall equal,
in the case of each grant date during the Wrongful Conduct Period, (I) the greater of (A) the
Fair Market Value of a share of the underlying Common Stock on the grant date
of such Award and (B) the per
share Fair Market Value on the date of any sale of such underlying Common
Stock, multiplied by (II) the
number of shares of Common Stock subject to such Award (without reduction for
any shares of Common Stock surrendered or attested to).  Unless otherwise determined by the Committee
at or after the grant date, each Award Agreement evidencing the grant of
Restricted Stock and/or Restricted Stock Units shall provide for the
Participant’s consent to and authorization of the Company and the Subsidiaries
to deduct from any amounts payable by such entities to such Participant any
amounts the Participant owes to the Company under this Section 7.6.  This right of set-off is in addition to any
other remedies the Company may have against the Participant for the Participant’s
breach of this Section 7.6.  The
Participant’s obligations under this Section 7.6 shall be cumulative (but
not duplicative) of any similar obligations the Participant has under this
Plan, any Award Agreement, any Company policy, standard or code (including,
without limitation, the Company’s Standards of Business Conduct), or any other
agreement with the Company or any Subsidiary.


 


7.7           Financial Restatements.  An Award Agreement may provide that, in the
event that a Participant commits misconduct, fraud or gross negligence (whether
or not such misconduct, fraud or gross negligence is deemed or could be deemed
to be an event constituting Cause) and as a result of, or in connection with,
such misconduct, fraud or gross negligence the Company restates any of its
financial statements, then the Committee may require any or all of the
following:


 


(a)           that the Participant forfeit some or
all of the Restricted Stock and Restricted Stock Units held by such Participant
at the time of such restatement,


 


27

















 


(b)           that the Participant forfeit (or pay
to the Company) some or all of the cash or shares of Common Stock held by the
Participant at the time of such restatement that had been received as Share
Awards and/or in settlement of Restricted Stock and Restricted Stock Units, as
applicable, during the twelve-month period prior to the financial restatement
(or such other period as determined by the Committee), and


 


(c)           that the Participant pay to the
Company in cash all or a portion of the proceeds that the Participant realized
from the sale of shares of Common Stock that had been received as Share Awards
and/or in settlement of any Restricted Stock and Restricted Stock Units within
the period commencing twelve months prior to the financial restatement (or such
other period as determined by the Committee).


 


7.8           Share Awards.  Share Awards may be granted to Participants
at such time or times as shall be determined by the Committee on such terms and
conditions as the Committee may determine in its discretion.  Share Awards may be made as additional
compensation for services rendered by a Participant to the Company or any
Subsidiary or may be in lieu of cash or other compensation to which the
Participant may be entitled from the Company or any Subsidiary.


 


ARTICLE VIII



DEFERRED STOCK UNITS


 


8.1           In General.  Freestanding Deferred Stock Units may be
granted to Participants at such time or times as shall be determined by the
Committee without regard to any election by the Participant to defer receipt of
any compensation or bonus amount payable to him.  The grant date of any freestanding Deferred
Stock Units under the Plan will be the date on which such freestanding Deferred
Stock Units are awarded by the Committee or on such other future date as the
Committee shall determine.  In addition,
to the extent permitted by applicable law (including section 409A of the Code),
on fixed dates established by the Committee and subject to such terms and
conditions as the Committee shall determine, the Committee may permit a
Participant to elect to defer receipt of all or a portion of his annual
compensation and/or incentive bonus (“Deferred Annual Amount”)
payable by the Company or a Subsidiary and receive in lieu thereof an Award of
elective Deferred Stock Units equal to the greatest whole number which may be
obtained by dividing (i) the
amount of the Deferred Annual Amount by (ii) the
Fair Market Value of one share of Common Stock on the date of payment of such
compensation and/or annual bonus. 
Deferred Stock Units shall be evidenced by an Award Agreement that shall
specify the number of shares of Common Stock to which the Deferred Stock Units
pertains, and such terms and conditions as the Committee shall determine,
including customary representations, warranties and covenants with respect to
securities law matters.  Upon the grant
of Deferred Stock Units pursuant to the Plan, the Company shall establish a
notional account for the Participant and will record in such account the number
of shares of Deferred Stock Units awarded to the Participant.  No shares of Common Stock will be issued to
the Participant at the time an award of Deferred Stock Units is granted.


 


28

















 


8.2           Rights as a Stockholder.  The Committee shall determine whether and to
what extent Dividend Equivalents will be credited to the account of, or will be
paid currently to, a Participant receiving an Award of Deferred Stock
Units.  Unless otherwise provided by the
Committee at or after the grant date, (i) any
cash dividends or distributions credited to the Participant’s account shall be
deemed to have been invested in additional Deferred Stock Units on the payment
date established for the related dividend or distribution in an amount equal to
the greatest whole number which may be obtained by dividing (A) the value of such dividend or distribution on the
record date by (B) the Fair Market Value of
one share of Common Stock on such date, and such additional Deferred Stock
Units shall be subject to the same terms and conditions as are applicable in
respect of the Deferred Stock Units with respect to which such dividends or
distributions were payable, and (ii) if any
such dividends or distributions are paid in shares of Common Stock or other
securities, such shares and other securities shall be subject to the terms,
conditions and restrictions as apply to the Deferred Stock Units with respect
to which they were paid.  A Participant
shall not have any rights as a stockholder in respect of Deferred Stock Units
awarded pursuant to the Plan (including, but not limited to, the right to vote
on any matter submitted to the Company’s stockholders) until such time as the
shares of Common Stock attributable to such Deferred Stock Units have been
issued to such Participant or his beneficiary.


 


8.3           Restrictions on
Transferability.  No Deferred
Stock Units may be sold, transferred, pledged, assigned, or otherwise alienated
or hypothecated.  Any attempt by a
Participant, directly or indirectly, to offer, transfer, sell, pledge,
hypothecate or otherwise dispose of any Deferred Stock Units or any interest
therein or any rights relating thereto without complying with the provisions of
the Plan shall be void and of no effect.


 


8.4           Settlement.  Unless the Committee determines otherwise at
or after the grant date, the Company shall issue the shares of Common Stock
underlying any of a Participant’s freestanding Deferred Stock Units (and
related Dividend Equivalents) for which the Restriction Period shall have
lapsed on or prior to the date of such Participant’s termination of employment
with the Company and any Subsidiary, other than a termination for Cause, as
soon as administratively practicable, but not later than 90 days, following the
date of such termination of employment (or on such earlier date as the
Committee shall permit or such later date as may be elected by the Participant
in accordance with section 409A of the Code and the rules and procedures
of the Board or as may be required by applicable law).  Unless the Committee determines otherwise at
or after the grant date, in the event of the termination of a Participant’s
employment with the Company and the Subsidiaries for Cause, the Participant
shall immediately forfeit all rights with respect to any shares of freestanding
Deferred Stock Units (and related Dividend Equivalents) credited to his
account, whether or not the Restriction Period shall have then lapsed.  Subject to Article IX and Article XI,
and the last sentence of Section 8.1, unless the Committee determines
otherwise at or after the grant date, the Company shall issue the shares of
Common Stock underlying any of a Participant’s elective Deferred Stock Units
(and related Dividend Equivalents) credited to such Participant’s account under
the Plan as soon as administratively practicable, but not later than 90 days,
following the date of such Participant’s termination of employment (or such
later date as may be elected by the Participant in accordance 


 


29

















 


with the rules and
procedures of the Committee or as may be required by applicable law).  The Committee may provide in the Award
Agreement applicable to any Award of Deferred Stock Units that, in lieu of
issuing shares of Common Stock in settlement of any Deferred Stock Units, the
Committee may direct the Company to pay to the Participant the Fair Market
Value of the shares of Common Stock corresponding to such Deferred Stock Units
in cash, or in any combination of shares of Common Stock and cash having an
aggregate Fair Market Value equal to such shares of Common Stock.


 


8.5           Further Deferral
Elections.  To the extent
permitted by applicable law (including section 409A of the Code), upon such
terms and conditions as the Committee may establish from time to time, a
Participant may elect to further defer receipt of shares of Common Stock
issuable in respect of Deferred Stock Units (or an installment of an Award) for
a specified period or until a specified event.


 


ARTICLE IX



CHANGE IN CONTROL


 


9.1           Accelerated Vesting and
Payment.


 


(a)           In General.  Unless the Committee otherwise determines in
the manner set forth in Section 9.2, upon the occurrence of a Change in Control,
(i) all Options and Stock
Appreciation Rights shall become immediately exercisable, (ii) the
Restriction Period on all Restricted Stock, Restricted Stock Units and
freestanding Deferred Stock Units shall lapse immediately prior to such Change
in Control and (iii) shares of Common Stock
underlying Awards of Restricted Stock Units and Deferred Stock Units shall be
issued to each Participant then holding such Award immediately prior to such
Change in Control; provided, that, at the
discretion of the Committee (as constituted immediately prior to the Change in
Control), each such Option, Stock Appreciation Right, Restricted Stock Unit
and/or Deferred Stock Unit may be canceled in exchange for an amount equal to
the product of (A)(I) in
the case of Options and Stock Appreciation Rights, the excess, if any, of the
product of the Change in Control Price over the exercise price for such Award,
and (II) in the case of other such
Awards, the Change in Control Price multiplied by (B) the
aggregate number of shares of Common Stock covered by such Award; provided,
further, that where the Change in Control does not constitute a “change in
control event” as defined under section 409A of the Code, the shares to be
issued, or the amount to be paid, for each Award that constitutes deferred
compensation subject to section 409A of the Code shall be paid at the time or
schedule applicable to such Awards (assuming for these payment purposes (but
not the lapsing of the Restriction Period) that no such Change in Control had occurred).  Notwithstanding the foregoing, the Committee
may, in its discretion, instead terminate any outstanding Options or Stock
Appreciation Rights if either (x) the
Company provides holders of such Options and Stock Appreciation Rights with
reasonable advance notice to exercise their outstanding and unexercised Options
and Stock Appreciation Rights or (y) the
Committee reasonably determines that the Change in Control Price is equal to or
less than the exercise price for such Options or Stock Appreciation Rights.


 


30

















 


(b)           Performance Stock,
Performance Stock Units and Performance Units.  Performance Stock, Performance Stock Units,
Performance Units and elective Deferred Stock Units that are outstanding in the
event of a Change in Control shall be treated as provided in the individual
Award Agreement governing such Performance Stock, Performance Stock Units,
Performance Units or elective Deferred Stock Units.


 


(c)           Timing of Payments.  Payment of any amounts calculated in
accordance with Section 9.1(a) shall be made in cash or, if
determined by the Committee (as constituted immediately prior to the Change in
Control), in shares of the common stock of the New Employer having an aggregate
fair market value equal to such amount and shall be payable in full, as soon as
reasonably practicable, but in no event later than 30 days, following the
Change in Control (subject to the payment timing restrictions contained in the
second proviso of the first sentence of Section 9.1(a)).  For purposes hereof, the fair market value of
one share of common stock of the New Employer shall be determined by the
Committee (as constituted immediately prior to the consummation of the
transaction constituting the Change in Control), in good faith.


 


9.2           Alternative Awards.  Notwithstanding Section 9.1, no
cancellation, termination, acceleration of exercisability or vesting, lapse of
any Restriction Period or settlement or other payment shall occur with respect
to any outstanding Award (other than an award of Performance Stock, Performance
Stock Units, Performance Units or elective Deferred Stock Units except as
provided therein), if the Committee (as constituted immediately prior to the
consummation of the transaction constituting the Change in Control) reasonably
determines, in good faith, prior to the Change in Control that such outstanding
Awards shall be honored or assumed, or new rights substituted therefor (such
honored, assumed or substituted Award being hereinafter referred to as an “Alternative Award”) by the New Employer, provided, that any
Alternative Award must:


 


(i)            be based on shares of Common Stock
that are traded on an established U.S. securities market or another public
market determined by the Committee prior to the Change in Control;


 


(ii)           provide the Participant (or each
Participant in a class of Participants) with rights and entitlements
substantially equivalent to or better than the rights, terms and conditions
applicable under such Award, including, but not limited to, an identical or
better exercise or vesting schedule and identical or better timing and methods
of payment (including liquidity rights with respect to shares of Common Stock
received in settlement of such Award);


 


(iii)          have substantially equivalent economic
value to such Award (determined at the time of the Change in Control);


 


(iv)          have terms and conditions which
provide that in the event that the Participant suffers an involuntary
termination without Cause within two years following the Change in Control, any
conditions on the Participant’s rights under, or any restrictions on transfer
or exercisability applicable to, each such Award held by such Participant shall
be waived or shall lapse, as the case may be; and


 


31

















 


(v)           not result in adverse tax
consequences to the Participant under section 409A of the Code.


 


ARTICLE X



EFFECTIVE DATE, AMENDMENT, MODIFICATION AND TERMINATION OF PLAN


 


The Plan was adopted by the
Board on February 28, 2008, and approved by the Company’s shareholders at
the annual meeting of shareholders held on May 15, 2008.  The amendment and restatement of the Plan
provided herein is subject to shareholder approval at the 2010 shareholder
meeting.  The Plan shall continue in
effect, unless sooner terminated pursuant to this Article X, until the
tenth anniversary of the date on which it is adopted by the Board (or if
applicable, the I0 year anniversary of the date of the latest shareholder
approval of the Plan, including without limitation any shareholder approval of
any amendment to the Plan to increase the share award capacity hereunder).  The Board or the Committee may at any time
terminate or suspend the Plan, and from time to time may amend or modify the Plan; provided, that without the approval by a majority of the
votes cast at a meeting of shareholders at which a quorum representing a
majority of the shares of the Company entitled to vote generally in the
election of directors is present in person or by proxy, no amendment or
modification to the Plan may (i) materially
increase the benefits accruing to participants under the Plan, (ii) except as otherwise expressly provided in Section 4.4,
materially increase the number of shares of Common Stock subject to the Plan or
the individual Award limitations specified in Section 4.3, (iii) modify the restrictions provided in Section 4.5
or (iv) materially modify the
requirements for participation in the Plan. 
No amendment, modification, or termination of the Plan shall in any
manner adversely affect any Award theretofore granted under the Plan, without
the consent of the Participant. 
Notwithstanding the foregoing, the Board or Committee may take such
actions as it deems appropriate to ensure that the Plan and any Awards may
comply with any tax, securities or other applicable law.  Nothing herein shall restrict the Committee’s
ability to exercise its discretionary authority as provided in the Plan.  Subject to other applicable provisions of the
Plan, all Awards made under the Plan prior to such termination of the Plan
shall remain in effect until such Awards have been satisfied or terminated in
accordance with the Plan and the terms of such Awards.  Except as otherwise determined by the Board,
termination of the Plan shall not affect the Committee’s ability to exercise
the powers granted to it hereunder with respect to Awards granted under the
Plan prior to the date of such termination. 
On the effective date of the Plan, the Prior Plans shall terminate, and
no further grants shall be made thereunder. 
Following a Change in Control, no action shall be taken under the Plan
that will cause any Award that has previously been determined to be (or is
determined to be) subject to section 409A of the Code to fail to comply in
any respect with section 409A of the Code without the written consent of
the Participant.


 


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ARTICLE XI



MISCELLANEOUS PROVISIONS


 


11.1         Nontransferability of
Awards.  No Award shall be
assignable or transferable except by will or the laws of descent and
distribution; provided, that the Committee or the Board may, except as
otherwise provided in the Plan, permit (on such terms and conditions as it
shall establish) in its sole discretion a Participant to transfer an Award for
no consideration to (i) the
Participant’s child, stepchild, grandchild, parent, stepparent, grandparent,
spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including
adoptive relationships, any person sharing the Participant’s household (other
than a tenant or employee), a trust in which these persons have more than fifty
percent of the beneficial interest, a foundation in which these persons (or the
Participant) control the management of assets, and any other entity in which
these persons (or the Participant) own more than fifty percent of the voting
interests, or to organizations qualifying as charitable organizations within
the meaning of Section 501(c)(3) of the Code or (ii) any
other person or entity (each of (i) and (ii),
upon such permitted transfer, a “Permitted Transferee”).  Except to the extent required by law, no
Award shall be subject to any lien, obligation or liability of the
Participant.  All rights with respect to
Awards granted to a Participant under the Plan shall be exercisable during the
Participant’s lifetime only by such Participant or, if applicable, his or her
Permitted Transferee(s).  The rights of a
Permitted Transferee shall be limited to the rights conveyed to such Permitted
Transferee, who shall be subject to and bound by the terms of the agreement or
agreements between the Participant and the Company.


 


11.2         Beneficiary Designation.  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
or by whom any right under the Plan is to be exercised in case of his or her
death.  Each designation will revoke all
prior designations by the same Participant, shall be in a form prescribed by
the Committee, and will be effective only when filed by the Participant in
writing with the Committee during his or her lifetime.  In the absence of any such designation,
benefits remaining unpaid at the Participant’s death shall be paid to or
exercised by the Participant’s surviving spouse, if any, or otherwise to or by
his or her estate.


 


11.3         No Guarantee of Employment
or Participation.  Nothing in
the Plan or any Award Agreement shall interfere with or limit in any way the
right of the Company or any Subsidiary to terminate any Participant’s
employment at any time, nor to confer upon any Participant any right to
continue in the employ of the Company or any Subsidiary (regardless of whether
such termination results in (1) the failure of any Award to vest; (2) the
forfeiture of any unvested or vested portion of any Award; and/or (3) any
other adverse effect on the individual’s interests under the Plan).  No Employee shall have a right to be selected
as a Participant, or, having been so selected, to receive any future Awards.


 


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11.4         Tax Withholding.  The Company shall have the right and power to
deduct from all amounts paid to a Participant in cash or shares (whether under
this Plan or otherwise) or to require a Participant to remit to the Company
promptly upon notification of the amount due, an amount (which may include
shares of Common Stock) to satisfy the minimum federal, state or local or
foreign taxes or other obligations required by law to be withheld with respect
thereto with respect to any Award under this Plan.  In the case of any Award satisfied in the
form of shares of Common Stock, no shares of Common Stock shall be issued
unless and until arrangements satisfactory to the Committee shall have been
made to satisfy the statutory minimum withholding tax obligations applicable
with respect to such Award.  The Company
may defer payments of cash or issuance or delivery of Common Stock until such
requirements are satisfied.  Without
limiting the generality of the foregoing, the Company shall have the right to
retain, or the Committee may, subject to such terms and conditions as it may
establish from time to time, permit Participants to elect to tender, shares of
Common Stock (including shares of Common Stock issuable in respect of an Award)
to satisfy, in whole or in part, the amount required to be withheld (provided
that such amount shall not be in excess of the minimum amount required to
satisfy the statutory withholding tax obligations).


 


11.5         Compliance with Legal and
Exchange Requirements.  The
Plan, the granting and exercising of Awards thereunder, and any obligations of
the Company under the Plan, shall be subject to all applicable federal and
state laws, rules, and regulations, and to such approvals by any regulatory or
governmental agency as may be required, and to any rules or regulations of
any exchange on which the Common Stock is listed.  The Company, in its discretion, may postpone
the granting, exercising and settlement of Awards, the issuance or delivery of
shares of Common Stock under any Award or any other action permitted under the
Plan to permit the Company, with reasonable diligence, to complete such stock
exchange listing or registration or qualification of such Shares or other
required action under any federal or state law, rule or regulation and may
require any Participant to make such representations and furnish such
information as it may consider appropriate in connection with the issuance or
delivery of shares of Common Stock in compliance with applicable laws, rules and
regulations.  The Company shall not be
obligated by virtue of any provision of the Plan to recognize the exercise or
settlement of any Award or to otherwise sell or issue shares of Common Stock in
violation of any such laws, rules or regulations, and any postponement of
the exercise or settlement of any Award under this provision shall not extend
the term of such Awards.  Neither the
Company nor its directors or officers shall have any obligation or liability to
a Participant with respect to any Award (or shares of Common Stock issuable
thereunder) that shall lapse because of such postponement.


 


11.6         Indemnification.  To the maximum extent provided by law and by
the Company’s Certificate of Incorporation and/or By-Laws, each person who is
or shall have been a member of the Committee or of the Board shall be
indemnified and held harmless by the Company against and from any loss, cost,
liability or expense that may be imposed upon or reasonably incurred by him or
her in connection with or resulting from any claim, action, suit or proceeding
to which he or she may be made a party or in which he or she may be involved by
reason of any action taken or failure to act under the Plan and against and
from any and all amounts paid by him or her in 


 


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settlement
thereof, with the Company’s approval, or paid by him or her in satisfaction of
any judgment in any such action, suit or proceeding against him or her,
provided he or she shall give the Company an opportunity, at its own expense,
to handle and defend the same before he or she undertakes to handle and defend
it on his or her own behalf.  The foregoing
right of indemnification shall not be exclusive and shall be independent of any
other rights of indemnification to which such persons may be entitled under the
Company’s Certificate of Incorporation or By-laws, by contract, as a matter of
law, or otherwise.


 


11.7         No Limitation on Compensation.  Nothing in the Plan shall be construed to
limit the right of the Company to establish other plans or to pay compensation
to its employees, in cash or property, in a manner which is not expressly
authorized under the Plan.


 


11.8         Deferrals.  The Committee may postpone the exercising of
Awards, the issuance or delivery of Common Stock under any Award or any action
permitted under the Plan to prevent the Company or any Subsidiary from being
denied a Federal income tax deduction with respect to any Award other than an
ISO or to the extent required or permitted by applicable law.


 


11.9         409A Compliance.  The Plan is intended to be administered in a
manner consistent with the requirements, where applicable, of section 409A of
the Code.  Where reasonably possible and
practicable, the Plan shall be administered in a manner to avoid the imposition
on Participants of immediate tax recognition and additional taxes pursuant to
such section 409A.  Notwithstanding the
foregoing, neither the Company nor the Committee shall have any liability to
any person in the event such section 409A applies to any such Award in a manner
that results in adverse tax consequences for the Participant or any of his
beneficiaries or transferees.


 


Solely for purposes of
determining the time and form of payments due under any Award that is
considered nonqualified deferred compensation under section 409A of the Code
and that is not otherwise exempt from section 409A of the Code, a Participant
shall not be deemed to have incurred a termination of employment unless and
until he shall incur a “separation from service” within the meaning of section
409A of the Code.  Notwithstanding any
other provision in this Plan, if as of Participant’s separation from service,
the Participant is a “specified employee” as determined by the Company, then to
the extent any amount payable under any Award that is considered nonqualified
deferred compensation under section 409A of the Code and that is not otherwise
exempt from section 409A of the Code, for which payment is triggered by
Participant’s separation from service (other than on account of death), and
that under the terms of the Award would be payable prior to the six-month
anniversary of the Participant’s separation from service, such payment shall be
delayed until the earlier to occur of (a) the six-month anniversary of
such separation from service or (b) the date of the Participant’s death.


 


11.10       Governing Law.  The Plan shall be construed in accordance
with and governed by the laws of the State of Delaware, without reference to
principles of conflict of laws which would require application of the law of
another jurisdiction, except to the extent that the corporate law of the State
of Delaware specifically and mandatorily applies.


 


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11.11       Severability; Blue Pencil.  In the event that any one or more of the
provisions of this Plan shall be or become invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not be affected thereby. 
If, in the opinion of any court of competent jurisdiction such covenants
are not reasonable in any respect, such court shall have the right, power and
authority to excise or modify such provision or provisions of these covenants
as to the court shall appear not reasonable and to enforce the remainder of
these covenants as so amended.


 


11.12       No Impact On Benefits.  Except as may otherwise be specifically
stated under any employee benefit plan, policy or program, no amount payable in
respect of any Award shall be treated as compensation for purposes of
calculating a Participant’s right under any such plan, policy or program.  No amount payable in respect of any Award
pursuant to an Award shall be deemed part of a Participant’s regular, recurring
compensation for purposes of any termination, indemnity or severance pay laws.


 


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


 


11.14       Headings and Captions.  The headings and captions herein are provided
for reference and convenience only, shall not be considered part of this Plan,
and shall not be employed in the construction of this Plan.


 


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


 


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


 


11.17       Code Section 83(b) Elections.  The Company, its Affiliates and the Committee
have no responsibility for any Participant’s election, attempt to elect or
failure to elect to include the value of a Restricted Stock Award or other
Award subject to section 83 of the Code in the participant’s gross income for
the year of payment pursuant to section 83(b) of the Code. Any participant
who makes an election pursuant to section 83(b) of the Code will promptly
provide the Committee with a copy of the election form.


 


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11.18       No Obligation to Exercise
Awards; No Right to Notice of Expiration Date.  The grant of an Award of an Option or Stock
Appreciation Right will impose no obligation upon the Participant to exercise
the Award. The Company, its Affiliates and the Committee have no obligation to
inform a Participant of the date on which any Award lapses except in the Award
Agreement.


 


11.19       Right to Offset.  Notwithstanding any provisions of the Plan to
the contrary, and to the extent permitted by applicable law (including section
409A of the Code), the Company may offset any amounts to be paid to a
Participant (or, in the event of the Participant’s death, to his beneficiary or
estate) under the Plan against any amounts that such Participant may owe to the
Company or its Affiliates.


 


11.20       Compensation Recovery
Policy.  Without limiting any
other provision of the Plan, any Award granted hereunder on or after January 1,
2010 shall be subject to the Compensation Recovery Policy under the Company’s
Standards of Business Conduct (as amended from time to time, and including any
successor or replacement policy or standard).


 


11.21       Furnishing Information.  A Participant will cooperate with the
Committee by furnishing any and all information requested by the Committee and
take such other actions as may be requested in order to facilitate the
administration of the Plan and the payments of benefits hereunder, including
but not limited to taking such physical examinations as the Committee may deem
necessary when eligibility or entitlement to any compensation or benefit
based on Disability is at issue.


 


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