EXHIBIT 10.20


 


AMENDED AND RESTATED CBOE HOLDINGS, INC.


LONG-TERM INCENTIVE PLAN


 


CBOE Holdings, Inc.
has established this Amended and Restated CBOE Holdings, Inc. Long-Term
Incentive Plan to provide an additional inducement for Eligible Individuals to
provide services to the Corporation or an Affiliate as an Employee or
non-employee Director, to reward such Eligible Individuals by providing an
opportunity to acquire incentive awards, and to provide a means through which
the Corporation may attract able persons to enter the employment of or
engagement with the Corporation or one of its Affiliates.  Awards may, in the discretion of the Board or
Committee, and subject to such restrictions as the Board or Committee may determine
or as provided herein, consist of Non-Qualified Stock Options, Restricted
Stock, Restricted Stock Units, or any combination of the foregoing.


 


ARTICLE
1


DEFINITIONS


 


Whenever used in
the Plan, the following terms have the meanings set forth below, and when the
meaning is intended, the initial letter of the word is capitalized:


 


“Affiliate” means a Person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, the Corporation.  For purposes of the preceding sentence, the
word “control” (by itself and as used in the terms “controlling,” “controlled
by” and “under common control with”) means the possession, direct or indirect,
of the power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities, by contract, or
otherwise.


 


“Award” means a Non-Qualified Stock Option,
Restricted Stock, or Restricted Stock Unit award granted under the Plan.


 


“Award
Agreement” means
an agreement entered into between the Corporation and the applicable
Participant, setting forth the terms and provisions applicable to the Award
then being granted under the Plan, as further described in Section 4.2 of
the Plan.


 


“Award
Date” means, with
respect to any Award, the date of the grant or award specified by the Committee
in a resolution or other writing, duly adopted, and as set forth in the Award
Agreement, provided that such Award Date will not be earlier than the date of
the Committee action.


 


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


 


“Cause” has the meaning set forth in
any employment, consulting, or other written agreement between the Participant
and the Corporation or an Affiliate.  If
there is no employment, consulting, or other written agreement between the Corporation
or an Affiliate and the Participant or if such agreement does not define “Cause,”
then “Cause” will have the meaning specified in the Award Agreement, provided
that if the Award Agreement does not so specify, 


 

















 


“Cause”
will mean, as determined by the Committee in its sole discretion and solely
with respect to the Plan and any Award made hereunder, the Participant’s (a) willful
and continued failure to perform his or her material duties with the
Corporation or an Affiliate, or the commission of any activities constituting a
violation or breach under any Federal, state or local law or regulation
applicable to the activities of the Corporation or an Affiliate, (b) fraud,
breach of fiduciary duty, dishonesty, misappropriation or other action that causes
damage to the property or business of the Corporation or an Affiliate, (c) repeated
absences from work such that the Participant is unable to perform his or her
employment or other duties in all material respects, other than due to becoming
Disabled, (d) admission or conviction of, or plea of nolo contendere to, any felony, or any
other crime that, in the reasonable judgment of the Board or Committee,
adversely affects the Corporation’s or an Affiliate’s reputation or the
Participant’s ability to carry out the obligations of his or her employment or
Service, (e) loss of any license or registration that is necessary for the
Participant to perform his or her duties for the Corporation or an Affiliate, (f) failure
to cooperate with the Corporation or an Affiliate in any internal investigation
or administrative, regulatory or judicial proceeding or, (g) act or
omission in violation or disregard of the Corporation’s or an Affiliate’s
policies, including but not limited to the Corporation’s or an Affiliate’s harassment
and discrimination policies and standards of conduct then in effect, in such a
manner as to cause loss, damage or injury to the property, reputation or
employees of the Corporation or an Affiliate. 
In addition, the Participant’s Service will be deemed to have terminated
for Cause if, after the Participant’s Service has terminated, facts and
circumstances are discovered that would have justified a termination for
Cause.  Any act, or failure to act, based
upon authority given pursuant to a resolution duly adopted by the Board or
based upon the advice of counsel for the Corporation or an Affiliate will be
conclusively presumed to be done, or omitted to be done, in good faith and in
the best interests of the Corporation or an Affiliate.


 


“Change
in Control” means
the first to occur of the following:


 


(a)                                 The acquisition by any Person of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of voting securities of the Corporation where such
acquisition causes such Person to own 35% or more of the combined voting power
of the then outstanding voting securities of the Corporation entitled to vote
generally in the election of directors (the “Outstanding Voting Securities”);
provided that for purposes of this paragraph (a), the following acquisitions
will not be deemed to result in a Change in Control: (i) any acquisition
directly from the Corporation, (ii) any acquisition by the Corporation, (iii) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Corporation or any Affiliate of the Corporation or (iv) any
acquisition by any corporation or entity pursuant to a transaction that
complies with clauses (A), (B) and (C) of paragraph (c) of this
definition below; and provided further that if any Person’s beneficial
ownership of the Outstanding Voting Securities reaches or exceeds 50% as a
result of a transaction described in clause (i) or (ii) above, and
such Person subsequently acquires beneficial ownership of additional voting
securities of the Corporation, such subsequent acquisition will be treated as
an acquisition that causes such Person to own 35% or more of the Outstanding
Voting Securities;


 


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(b)                                 Individuals who, as of the Effective
Date, constitute the Board (the “Incumbent Board”) cease for any reason to
constitute at least a majority of the Board, provided that any individual
becoming a director subsequent to the date hereof whose election, or nomination
for election by the Corporation’s stockholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board will be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board;


 


(c)                                  The approval by the stockholders of the
Corporation and consummation of (i) a reorganization, merger or
consolidation, or sale or other disposition of all or substantially all of the
assets of the Corporation or (ii) the acquisition of assets or stock of
another corporation in exchange for voting securities of the Corporation (each
of (i) and (ii), a “Business Combination”); excluding, however, such a
Business Combination pursuant to which (A) all or substantially all of the
individuals and entities who were the beneficial owners of the Outstanding
Voting Securities immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 50% of, respectively, the
then-outstanding shares of common stock and the combined voting power of the
then-outstanding voting securities entitled to vote generally in the election
of directors, as the case may be, of the corporation resulting from such
Business Combination (including, without limitation, a corporation that as a
result of such transaction owns the Corporation or all or substantially all of
the Corporation’s assets either directly or through one or more subsidiaries)
in substantially the same proportions as their ownership, immediately prior to
such Business Combination of the Outstanding Voting Securities, (B) no
Person (excluding any employee benefit plan (or related trust) of the
Corporation or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly (except to the extent that such
ownership existed prior to the Business Combination), an amount of,
respectively, the then-outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting power of the
then outstanding voting securities of such corporation representing 20%
thereof; and (C) at least a majority of the members of the board of
directors of the corporation resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business
Combination; or


 


(d)                                 Approval by the stockholders of the
Corporation of a complete liquidation or dissolution of the Corporation.


 


Notwithstanding the
foregoing, (i) unless a majority of the Incumbent Board determines
otherwise, no Change in Control will be deemed to have occurred with respect to
a particular Participant if the Change in Control results from actions or
events in which such Participant is a 


 


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participant in a capacity
other than solely as an Officer, Employee or Director of the Corporation, and (ii) a
Public Offering will not constitute a Change in Control.


 


“Code” means the Internal Revenue Code of 1986,
as amended.  A reference to any provision
of the Code will include reference to any successor provision of the Code.


 


“Committee” means the Compensation Committee of the
Board, if any, or such similar or successor committee appointed by the
Board.  If the Board has not appointed a
Committee, the Board will function in place of the Committee.


 


“Corporation” means CBOE Holdings, Inc. or any
successor corporation thereto.


 


“Director” means any individual who is a member of
the Board on or after the Effective Date.


 


“Disabled” means the Participant:


 


(a)                                 becomes unable
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of
not less than 12 months; or


 


(b)                                 by reason of
any medically determinable physical or mental impairment that can be expected
to result in death or can be expected to last for a continuous period of not
less than 12 months, receives income replacement benefits for a period of not
less than three months under an accident and health plan of the Corporation or
an Affiliate, as applicable.


 


“Dividend
Equivalent Right”
means a right to receive, with respect to any dividends or other distributions
on a share of Stock underlying a Restricted Stock Unit, dividend equivalents on
the share of Stock, as though such share of Stock had been issued and
outstanding, fully vested, and held by the Participant on the record date of
payment of such dividends.  Subject to Section 7.4,
Dividend Equivalent Rights may be provided in connection with an Award of
Restricted Stock Units under the Plan, but not in connection with an Award of
Restricted Stock or Options.


 


“Effective
Date” has the meaning set forth in Section 10.3 of the Plan.


 


“Eligible
Individual” means
any Employee or non-employee Director.


 


“Employee” means any person treated as a common law
employee in the records of the Corporation or one of its Affiliates.  The Corporation shall determine in good faith
and in the exercise of its discretion whether an individual has become or has
ceased to be an Employee and the effective date of such individual’s employment
or termination of employment, as the case may be.  For purposes of an individual’s rights, if
any, under the terms of the Plan as of the time of the Corporation’s
determination of whether or not the individual is an Employee, all such
determinations by the Corporation shall be final, binding and conclusive as to
such rights, if any, notwithstanding that the Corporation or any court of law
or governmental agency subsequently makes a contrary determination as to such
individual’s status as an Employee.


 


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“Exchange
Act” means the
Securities Exchange Act of 1934, as amended. 
A reference to any provision of the Exchange Act will include reference
to any successor provision of the Exchange Act.


 


“Exercise
Price” means the
purchase price at which an Option may be exercised, subject to the provisions
of Article 5.


 


“Fair
Market Value”
means, as of any date:


 


(a)                                 if the Stock is readily tradeable on a
national or regional securities exchange or market system, or is quoted on the
Over the Counter Bulletin Board (OTCBB), the Fair Market Value of a share of
Stock will be the sales price at close of the Stock on the Award Date, time of
exercise, or other date of calculation (or on the last preceding trading date
if Stock was not traded on such date) as quoted on such national or regional
securities exchange or market system or the OTCBB (whichever constitutes the
primary market for the Stock), as reported by the Consolidated Tape
Association, the OTCBB or such other source as the Committee deems reliable;


 


(b)                                 if the Stock is not readily tradeable on
a national or regional securities exchange or market system and is not quoted
on the OTCBB, the fair market value as determined in good faith by the Board or
the Committee, by the reasonable application of a reasonable valuation method
in accordance with Section 409A and Treasury Regulation Section 1.409A-1(b)(5)(iv)(B) (or
any similar or successor provision), thereunder, as the Board or the Committee
will in its discretion select and apply at the time of the Award Date, time of
exercise, or other date of calculation; or


 


(c)                                  if Stock is issued on or
before the date of the initial Public Offering, including at any time prior to
the time at which the initial Public Offering is closed, the fair market value will be the price of the Corporation’s
stock to public in the initial Public Offering of the Corporation.


 


“Insider” means an Officer, Director, or other
person whose transactions in Stock are subject to Section 16 of the
Exchange Act.


 


“Insider Trading Policy” means the written policy of the
Corporation pertaining to the purchase, sale, transfer or other disposition of
the Corporation’s equity securities by Directors, Officers, Employees or other
service providers who may possess material, nonpublic information regarding the
Corporation or its securities.


 


“Non-Qualified
Stock Option”
means an Option that is not intended to (as set forth in the Award Agreement)
or that does not qualify as an “incentive stock option” within the meaning of
Code Section 422.


 


“Officer” means any person designated by the Board
as an officer of the Corporation.


 


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“Option” means an option to purchase Stock at an
Exercise Price determined on the Award Date, subject to the applicable
provisions of Article 5, awarded in accordance with the terms and
conditions of the Plan.


 


“Participant” means an Eligible Individual to whom the
Committee has made one or more Awards under the Plan in accordance with Section 4.1
of the Plan.


 


“Performance
Goals” will mean
performance goals established by the Committee prior to the grant of an Award
and based on the attainment of one or any combination of the following, in each
case of the Corporation, an Affiliate, or business unit by or within which the
Participant is primarily employed or a combination thereof, and that are
intended to qualify under Section 162(m): (a) net earnings; (b) operating
earnings or income; (c) earnings growth; (d) net income; (e) net
income per share; (f) gross revenue or revenue by pre-defined business
segment; (g) revenue backlog; (h) pre- or post-tax profit margins; (i) cash
flow, including operating cash flow, free cash flow, discounted cash flow
return on investment, and cash flow in excess of cost of capital; (j) earnings
per share; (k) return on stockholders’ equity; (l) stock price; (m) return
on common stockholders’ equity; (n) return on capital; (o) return on
assets; (p) economic value added (income in excess of cost of capital); (q) customer
satisfaction; (r) cost control or expense reduction; (s) ratio of
operating expenses to operating revenues; (t) market share; (u) volume;
and (v) revenue per contract, in each case, absolute or relative to
peer-group comparative.


 


The Committee also may
benchmark Performance Goals under one or more of the measures described above
relative to the performance of other corporations.  The Committee will set such Performance Goals
within the time prescribed by Section 162(m).  The Committee will have the discretion to
adjust targets set for pre-established performance objectives as it deems appropriate
to reflect the inclusion or exclusion of the impact of extraordinary or unusual
items, events or circumstances in accordance with Section 162(m).  If the Committee determines it is advisable
to grant Awards that will not qualify for the performance-based exception of Section 162(m),
the Committee may grant Awards that do not so qualify.


 


“Performance
Period” means a period of one or more years, as determined by the Committee.


 


“Person”
means a “person”
as such term is used in Sections 13(d) and 14(d)(2) of the Exchange
Act.


 


“Plan” means the CBOE Holdings, Inc.
Long-Term Incentive Plan, as set forth herein, as the same may be amended,
administered or interpreted from time to time.


 


“Public
Offering” means
any sale of any class of the Corporation’s equity securities pursuant to an
effective registration statement under Section 12 of the Exchange Act
filed with the SEC on Form S-1 (or any successor form adopted by the SEC),
provided that the following will not be considered a public offering: (a) any
issuance of common equity securities by the Corporation as consideration for a
merger or acquisition, (b) any issuance of common securities to employees,
directors or consultants of any of the Corporation or any of its Affiliates as
part of an incentive or compensation plan, (c) any issuance of common
equity securities as part of a unit with debt or preferred stock or any similar
structure in which the common equity securities are being offered primarily as
a means of enhancing the Corporation’s ability to sell the debt or preferred
stock and 


 


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(d) the
issuance of Stock by the Corporation upon conversion of any preferred stock of
the Corporation.


 


“Restricted
Stock” means an
award of shares of Stock delivered under the Plan subject to the requirements
of Article 6 and such other restrictions as the Committee deems
appropriate or desirable.  The
restrictions on, and risk of forfeiture of, Restricted Stock generally will
expire on a specified date, upon the occurrence of an event or achievement of
Performance Goals, or on an accelerated basis under certain circumstances
specified in the Plan or the Award Agreement.


 


“Restricted
Stock Unit” means
a notional account established pursuant to an Award granted to a Participant,
as described in Article 7, that is (a) valued solely by reference to
shares of Stock, (b) subject to restrictions specified in the Award
Agreement, and (c) payable in Stock or cash, in the Committee’s sole
discretion.  The restrictions on, and risk
of forfeiture of, Restricted Stock Units generally will expire on a specified
date, upon the occurrence of an event or achievement of Performance Goals, or
on an accelerated basis under certain circumstances specified in the Plan or
the Award Agreement.


 


“Rule 16b-3” means Rule 16b-3 under the Exchange
Act, as amended, and any guidance issued thereunder by the SEC.


 


“Sarbanes-Oxley
Act” means the
Sarbanes-Oxley Act of 2002.  A reference
to any provision of the Sarbanes-Oxley Act will include reference to any
successor provision of the Sarbanes-Oxley Act.


 


“SEC” means the United States Securities and
Exchange Commission.


 


“Section 162(m)” means Code Section 162(m), as
amended, and any proposed and final regulations and other guidance issued
thereunder by the U.S. Department of Treasury and/or the Internal Revenue
Service.


 


“Section 409A” means Code Section 409A, as
amended, and any proposed and final regulations and other guidance issued
thereunder by the U.S. Department of Treasury and/or the Internal Revenue
Service.


 


“Securities
Act” means the
Securities Act of 1933, as amended.  A
reference to any provision of the Securities Act will include reference to any
successor provision of the Securities Act.


 


“Service”
means the
provision of personal services to the Corporation or its Affiliates in the
capacity of (a) an Employee, (b) a Director, or (c) a
consultant.  A Participant’s Service
shall not be deemed to have terminated merely because of a change in the
capacity in which the Participant renders Service to the Corporation or its
Affiliates, a transfer of the Participant among the Corporation and its
Affiliates,  or a change in the Corporation or
Affiliate for which the Participant renders such Service, provided in each case
that there is no interruption or termination of the Participant’s Service.  Additionally, a Participant’s Service shall
not be deemed to have terminated if the Participant takes any military leave,
sick leave, or other bona fide leave of absence approved by the Corporation,
provided that if any such leave taken by a Participant exceeds 90 days, then on
the 91st day immediately following such 90-day period, the Participant’s
Service shall be deemed to have terminated, unless the Participant’s right to
return to 


 


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Service is
guaranteed by statute or contract. 
Notwithstanding the foregoing, unless otherwise designated by the
Corporation, a leave of absence authorized by the Corporation shall be treated
as Service for purposes of determining vesting under the Award Agreement.  A Participant’s Service shall be deemed to
have terminated either upon an actual termination of Service or upon the time
that the entity for which the Participant performs Service ceases to be an
Affiliate of the Corporation.  Subject to
the foregoing, the Corporation, in its discretion, shall determine whether the
Participant’s Service has terminated and the effective date of and reason for
such termination.


 


“Stock” means the “Unrestricted Common Stock” of
the Corporation (as defined in Article Fourth (a)(i) of the Amended
and Restated Certificate of Incorporation of the Corporation).


 


“Voting Stock” means the outstanding capital stock of
the Corporation entitled to vote for the election of Directors.


 


ARTICLE
2


PLAN
ADMINISTRATION


 


Section 2.1                                   Administration. 
The Committee will administer the Plan. 
The Committee will interpret the Plan and any Award Agreement or other
form of agreement or other document used by the Corporation in the
administration of the Plan or of any Award, and prescribe such rules,
regulations, and procedures in connection with the operation of the Plan, as it
deems to be necessary and advisable for the administration of the Plan
consistent with the purposes of the Plan. 
Without limiting the foregoing, the Committee will have the authority
and complete discretion to:


 


(a)                                 Prescribe, amend, and rescind rules and
regulations relating to the Plan and any Awards;


 


(b)                                 Select Eligible Individuals (including
members of the Committee) to receive Awards, as provided in Section 4.1 of
the Plan;


 


(c)                                  Determine the form and terms of Awards;


 


(d)                                 Determine the number of shares of Stock
or other consideration subject to Awards, as provided in Articles 5 through 9
of the Plan;


 


(e)                                  Determine whether Awards will be granted
singly, in combination or in tandem with, in replacement of, or as alternatives
to, other Awards under the Plan or grants or awards under any other incentive
or compensation plan of the Corporation;


 


(f)                                   Construe and interpret the Plan, any
Award Agreement in connection with an Award and any other agreement or document
executed pursuant to the Plan;


 


(g)                                  Correct any defect or omission, or
reconcile any inconsistency in the Plan, any Award or any Award Agreement;


 


(h)                                 Accelerate or, with the consent of the
Participant, defer the vesting of any Award or the exercise date of any Award,
subject to the limitations of Section 409A;


 


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(i)                                     Authorize any person to execute on behalf
of the Corporation any instrument required to effectuate the grant of an Award
and delegate to Officers of the Corporation the authority to perform
administrative functions under the Plan subject to any legal requirements that
the Committee as a whole take action with respect to such function, other than
any such delegation that would cause Awards or other transactions under the
Plan to cease to (i) be exempt from Section 16(b) of the
Exchange Act, (ii) satisfy the independent director requirements of the
applicable national or regional securities exchange or market system, or (iii) qualify
as “performance-based compensation” under Section 162(m);


 


(j)                                    To the extent permissible under Section 141(c) and
Section 157(c) of the Delaware General Corporation Law and other
applicable laws, regulations and stock exchange rules, the Board and the
Committee may each, in their discretion, delegate to another committee or one
or more officers of the Corporation, any or all of the authority and
responsibility of the Committee with respect to awards to Employees who are not
subject to Section 16 of the Exchange Act at the time any such delegated
authority or responsibility is exercised. 
To the extent that the Board or the Committee has delegated to such
other committee or to one or more officers of the Corporation, the authority
and responsibility of the Committee pursuant to the foregoing, all references
to the Committee in the Plan shall be deemed to refer to such other committee
or to such officer or officers;


 


(k)                                 Amend, modify, extend, cancel or renew
any Award, and authorize the exchange, substitution, or replacement of Awards,
provided that (i) no such amendment, modification, extension,
cancellation, renewal, exchange, substitution, or replacement will be to the
detriment of a Participant with respect to any Award previously granted without
the affected Participant’s written consent, (ii) any such amendment,
modification, extension, cancellation, renewal, exchange, substitution or
replacement must satisfy the requirements for exemption under Section 409A,
and (iii) in no event will the Committee be permitted to reduce the
Exercise Price of any outstanding Option or to exchange or replace an
outstanding Option with a new Option with a lower Exercise Price, except
pursuant to Section 5.2;


 


(l)                                     Determine whether a Participant has
engaged in the operation or management of a business that is in competition
with the Corporation or any of its Affiliates, or whether a Participant has
violated the restrictive covenants referred to in Section 10.12; and


 


(m)                             Make all other determinations deemed
necessary or advisable for the administration of the Plan.


 


The Committee will keep
records of action taken at its meetings. 
A majority of the Committee will constitute a quorum at any meeting, and
the acts of a majority of the members present at any meeting at which a quorum
is present, or acts approved in writing by a majority of the Committee, will be
the acts of the Committee.


 


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Section 2.2                                   Administration with Respect
to Insiders.  With respect to Eligible Individuals who are
Insiders, at any time that any class of equity security of the Corporation is
registered under Section 12 of the Exchange Act, the Plan shall be
administered in compliance with the requirements, if any, of Rule 16b-3.


 


Section 2.3                                   Indemnification. 
Each person who is or has been a member of the Committee or the Board,
and any individual or individuals to whom the Committee has delegated authority
under this Article 2, will be indemnified and held harmless in accordance
with the Corporation’s Certificate of Incorporation.


 


ARTICLE
3


AUTHORIZED
SHARES


 


Section 3.1                                   Shares Available Under
the Plan.  Subject to adjustment as set forth in Section 3.2,
the maximum number of shares of Stock that may be issued or delivered and as to
which Awards may be granted under the Plan will be equal to the sum of: (a) 2.67%
of the shares of capital stock of the Corporation outstanding as of the date
and time of the demutualization of the Chicago Board Options Exchange,
Incorporated (on a fully-diluted basis, counting all shares of Stock subject to
Awards under this Plan as outstanding); (b) any shares of Stock subject to
an Award under the Plan that expire without being exercised, or are forfeited,
canceled, settled or otherwise terminated without a distribution of Stock to
the Participant; (c) shares of Stock not delivered to the Participant
because the Award is exercised through a reduction of shares subject to the
Award (i.e., “net exercised”); and (d) shares
of Stock delivered (either actually or by attestation) to or withheld by the
Corporation in connection with the exercise of an Option awarded under the
Plan, or in payment of any required income tax withholding for the exercise of
an Option or the vesting of Restricted Stock awarded under the Plan.  The shares that may be issued or delivered
under the Plan may be either authorized but unissued shares, repurchased
shares, or partly each.


 


If any Award granted
under the Plan is canceled by mutual consent or terminates or expires for any
reason without having been exercised in full, or, if and to the extent that an
Award of Restricted Stock Units is paid in cash rather than the issuance of
shares of Stock, the number of shares subject to such Award (or in the case of
Restricted Stock Units, the number of shares of Stock for which payment was
made in cash) will again be available for purposes of the Plan.


 


If, in connection with an
acquisition of another company or all or part of the assets of another company
by the Corporation or an Affiliate, or in connection with a merger or other
combination of another company with the Corporation or an Affiliate, the
Corporation either (i) assumes stock options or other stock incentive
obligations of such other company, or (ii) grants stock options or other
stock incentives in substitution for stock options or other stock incentive
obligations of such other company, then none of the shares of Stock that are
issuable or transferable pursuant to such stock options or other stock incentives
that are assumed or granted in substitution by the Corporation will be charged
against the limitations set forth in this Section 3.1.


 


Section 3.2                                   Adjustment and
Substitution of Shares. 
If a
dividend or other distribution will be declared upon the Stock, payable in
shares of Stock, the number of shares of Stock then subject to any outstanding
Award or by reference to which the amount of any other Award is determined and
the number of shares that may be issued or delivered under the Plan will be 


 


10

















 


adjusted by adding
thereto the number of shares that would have been distributable thereon if such
shares had been outstanding on the date fixed for determining the stockholders
entitled to receive such dividend or distribution.


 


If the outstanding shares
of Stock will be changed into or exchangeable for a different number or kind of
shares of Stock or other securities of the Corporation or another corporation,
whether through reorganization, reclassification, recapitalization, stock
split-up, combination of shares, merger or consolidation, then the Committee
will substitute for each share of Stock subject to any then-outstanding Award
and for each share of Stock, which may be issued or delivered under the Plan
but is not then subject to an outstanding Award, the number and kind of shares
of Stock or other securities into which each outstanding share of Stock is so
changed or for which each such share is exchangeable, provided that in the
event of a merger, acquisition or other business combination of the Corporation
with or into another entity, any adjustment provided for in the applicable
agreement and plan of merger (or similar document) will be conclusively deemed
to be appropriate for purposes of this Section 3.2.


 


In the case of any
adjustment or substitution as provided for in this Section 3.2, the
aggregate Exercise Price for all shares subject to each then-outstanding Option
prior to such adjustment or substitution will be the aggregate Exercise Price
for all shares of Stock or other securities (including any fraction) to which
such shares will have been adjusted or which will have been substituted for
such shares.  Any new Exercise Price per
share will be carried to at least three decimal places with the last decimal
place rounded upwards.


 


No adjustment or
substitution provided for in this Section 3.2 will require the Corporation
to issue or sell a fraction of a share or other security.  Accordingly, all fractional shares or other
securities that result from any such adjustment or substitution will be
eliminated and not carried forward to any subsequent adjustment or
substitution.


 


If any adjustment or
substitution would cause a modification, extension or renewal of an Option
within the meaning of Section 409A, the Committee may elect that such
adjustment or substitution not be made but rather will use reasonable efforts
to effect such other adjustment of each then-outstanding Option as the
Committee in its sole discretion will deem equitable and that will not result
in any such modification, extension or renewal under Section 409A.


 


ARTICLE
4


ELIGIBILITY
AND AWARDS


 


Section 4.1                                   Eligibility.  Subject to the provisions of the Plan, the Committee
will have full and final authority, in its discretion, to grant Awards as
described herein and to determine the Eligible Individuals to whom Awards will
be granted.


 


Section 4.2                                   Award Agreement.  Each Award granted under the Plan will be evidenced by
a written or electronic Award Agreement, in a form approved by the Committee.  Such Award Agreement will be subject to and
incorporate the express terms and conditions, if any, required under the Plan
or as required by the Committee for the form of Award granted and such other
terms and conditions as the Committee may specify, and will be executed by the
Chief Executive Officer, the President (if other than the Chief Executive
Officer), or any person designated as an executive Officer by the Board for Section 16
purposes, on behalf of the Corporation, and by the 


 


11

















 


Participant to whom such
Award is granted.  The Board may at any
time and from time to time amend an outstanding Award Agreement in a manner
consistent with the Plan.


 


Section 4.3                                   Corporation’s Obligation
to Deliver Stock.  The obligation of the Corporation to issue or
deliver shares of Stock under the Plan will be subject to (a) the
effectiveness of a registration statement under the Securities Act, with
respect to such shares, if deemed necessary or appropriate by counsel for the
Corporation; (b) the condition that the shares will have been listed (or
authorized for listing upon official notice of issuance) upon each stock
exchange on which such shares may then be listed; and (c) all other
applicable laws, regulations, rules and orders that may then be in effect.


 


ARTICLE
5


STOCK
OPTIONS


 


Section 5.1                                   Grant of Stock Options.  The Committee will have authority, in its discretion,
to grant Non-Qualified Stock Options. 
Options granted under the Plan will be subject to the following terms
and conditions of this Article 5.


 


Section 5.2                                   Exercise Price.  Subject to adjustment as set forth in Section 3.2,
the Exercise Price will be such price as the Committee, in its discretion, will
determine and set forth in the Award Agreement, except that, the Exercise Price
will not be less than one hundred percent (100%) of the Fair Market Value per
share of Stock covered by the Option as determined on the Award Date.


 


Section 5.3                                   Payment of Exercise Price.  The Exercise
Price will be payable in full in any one or more of the following ways:


 


(a)                                 in cash, check, bank draft, money order
or wire transfer payable to the Corporation;


 


(b)                                 by delivery to the Corporation (either by
actual delivery or by attestation) of shares of Stock (which are owned by the
Participant free and clear of all liens and other encumbrances and which are
not subject to the restrictions set forth in Article 6) having an
aggregate Fair Market Value on the date of exercise of the Option equal to the
Exercise Price for the shares being purchased;


 


(c)                                  by requesting that the Corporation
withhold such number of shares of Stock then issuable upon exercise of the
Option as will have an aggregate Fair Market Value equal to the Exercise Price
for the shares being acquired upon exercise of the Option (and any applicable
withholding taxes);


 


(d)                                 by a “net exercise” arrangement under
which the Corporation will reduce the number of shares of Stock issued upon
exercise by the largest whole number of shares with a Fair Market Value that
does not exceed the aggregate Exercise Price; provided that the Corporation
shall accept a cash or other payment from the Participant to the extent of any
remaining balance of the aggregate Exercise Price not satisfied by such
reduction in the number of whole shares to be issued; and provided further that
shares of Stock will no longer be outstanding under an Option and will not be
exercisable thereafter to the extent that (i) shares are used


 


12














 


to pay the Exercise Price
pursuant to the “net exercise,” (ii) shares are delivered to the
Participant as a result of such exercise, and (iii) shares are withheld to
satisfy tax withholding obligations;


 


(e)           provided that a public market for the Corporation’s
stock exists, and to the extent permitted by the Sarbanes-Oxley Act:


 


(i)            through a “same day sale” commitment from the
Participant and a broker-dealer that is a member of the Financial Industry
Regulatory Authority (a “FINRA Dealer”) whereby the Participant irrevocably
elects to exercise the Option and to sell a portion of the shares so purchased
to pay the Exercise Price (or a larger number of the shares so purchased), and
whereby the FINRA Dealer irrevocably commits upon receipt of such shares to forward
the Exercise Price directly to the Corporation (and any excess to the
Participant);


 


(ii)           through a “margin” commitment from the Participant and
a FINRA Dealer whereby the Participant irrevocably elects to exercise the
Option and to pledge the shares so purchased to the FINRA Dealer in a margin
account as security for a loan from the FINRA Dealer in the amount of the
Exercise Price, and whereby the FINRA Dealer irrevocably commits upon receipt
of such shares to forward the Exercise Price directly to the Corporation; or


 


(f)            by any combination of the foregoing.


 


If the Exercise Price is
paid in whole or in part in shares of Stock, any portion of the Exercise Price
representing a fraction of a share will be paid in cash.  The date of exercise of an Option will be
determined under procedures established by the Committee, and the Exercise
Price will be payable at such time or times as the Committee, in its
discretion, will determine.  No shares
will be issued or delivered upon exercise of an Option until full payment of
the Exercise Price has been made.  When
full payment of the Exercise Price has been made, the Participant will be
considered for all purposes to be the owner of the shares with respect to which
payment has been made.


 


Section 5.4            Exercisability,
Expiration, and Term of Options.  Subject to this Section 5.4 and Section 2.1,
Options may be exercised at such times, in such amounts and subject to such
restrictions as will be determined by the Committee, in its discretion.  An Option may be exercised (a) at such
time as the Option vests, or (b) if and to the extent set forth in the
applicable Award Agreement, prior to the date on which the Option vests,
provided that such Stock obtained will be subject to the same requirements that
are applicable to grants of Restricted Stock set forth in Article 6 and in
the applicable Award Agreement.  After an
Option is granted, the Committee, in its sole discretion, may accelerate the
exercisability of the Option. 
Restrictions and conditions on the exercise of an Option need not be the
same for each Award or for each Participant.


 


13

















 


Each Option will
terminate not later than the expiration date specified in the Award Agreement
pertaining to such Option, provided that the expiration date with respect to an
Option shall not be later than the 10th anniversary of its Award Date.


 


Except as otherwise
provided in the Award Agreement, the vesting conditions on an Option will lapse
upon the date that a Participant dies or becomes Disabled.  Except as otherwise provided in the Award
Agreement, a Participant (or his or her beneficiary, as applicable) must
exercise any outstanding Option, if any, within one year following the Participant’s
death or Disability (or by the 10th anniversary of the Option’s Award Date, if
earlier).  If the Participant does not
exercise any outstanding Option within one year from the Participant’s death or
Disability (or by the 10th anniversary of the Option’s Award Date, if earlier),
the outstanding Option will be cancelled and forfeited.


 


Subject to the preceding
paragraph, unless otherwise determined by the Committee and set forth in an
Award Agreement or an amendment thereto, following a Participant’s termination
of Service for any reason other than Cause, such Participant must exercise any
outstanding Option, if at all, within 90 days from the date of termination of
Service (or by the 10th anniversary of the Option’s Award Date, if
earlier).  If the Participant does not
exercise any outstanding Option within 90 days from the date of termination of
Service (or by the 10th anniversary of the Option’s Award Date, if earlier),
the outstanding Option will be cancelled and forfeited.  All Options, including vested Options, will
be cancelled and forfeited immediately upon a Participant’s termination of
Service for Cause.


 


Notwithstanding any
contrary provision of this Section 5.4, if, on the date an outstanding
Option would expire, the exercise of the Option would violate applicable
securities laws, the expiration date applicable to the Option will be extended
to a date that is 30 calendar days after the date the exercise of the Option
would no longer violate applicable securities laws.


 


ARTICLE 6


RESTRICTED STOCK


 


Section 6.1            Award.  Subject to the terms and provisions of the Plan, the
Committee may award, at any time, shares of Restricted Stock to any Eligible
Individual in the number and form, and subject to such restrictions on
transferability and other restrictions as the Committee may determine in its
discretion and set forth in the Award Agreement, including without limitation
the achievement of Performance Goals. 
Restricted Stock also may be received by a Participant as the result of
an exercise of an Option, when such award has not vested.


 


Section 6.2            Vesting and Restrictions
on Transfer.  Shares issued pursuant to any Restricted
Stock Award shall be made subject to vesting conditions based upon the
satisfaction of such Service requirements, conditions, restrictions or
Performance Goals as the Committee shall establish and set forth in the Award
Agreement.  During any period in which
shares acquired under a Restricted Stock Award remain subject to vesting
conditions, such shares may not be sold, exchanged, transferred, pledged,
assigned or otherwise disposed of. 
Except as otherwise provided in the Award Agreement, the vesting
conditions on any shares of Restricted Stock will expire and the restrictions
on shares of Restricted Stock will lapse upon the date that a Participant dies
or becomes Disabled.  Upon request by the
Corporation, each Participant shall execute any agreement evidencing such
transfer restrictions prior to the receipt of shares of Stock 


 


14

















 


hereunder and shall
promptly present to the Corporation any and all certificates representing
shares of Stock acquired hereunder for the placement on such certificates of
appropriate legends evidencing any such transfer restrictions.


 


Section 6.3            Termination of Service.  Except as otherwise provided in Section 6.2
above, if a Participant’s termination of Service occurs for any reason before
the expiration of the vesting conditions, all shares of Restricted Stock that
remain subject to vesting conditions will be forfeited by the Participant as of
the Participant’s termination of Service, unless the Committee otherwise
determines.  In the case of Restricted
Stock purchased through the exercise of an Option, the Corporation will refund
the Exercise Price paid on the exercise of the Option.  Such forfeited shares of Restricted Stock
will again become available for award under the Plan.


 


Section 6.4            Voting Rights; Dividends
and Distributions.  Except as provided in this Section 6.4
or the Award Agreement, during any period in which shares acquired pursuant to
a Restricted Stock Award remain subject to vesting conditions, the Participant
shall have all of the rights of a stockholder of the Corporation holding shares
of Stock, including the right to vote such shares and to receive all dividends
and other distributions paid with respect to such shares.  However, in the event of a dividend or
distribution paid in shares of Stock or other property or any other adjustment
made upon a change in the capital structure of the Corporation as described in Section 3.2,
any and all new, substituted or additional securities or other property (other
than normal cash dividends) to which the Participant is entitled by reason of
the Participant’s Restricted Stock Award shall be immediately subject to the
same vesting conditions as the shares subject to the Restricted Stock Award
with respect to which such dividends or distributions were paid or adjustments
were made.


 


ARTICLE
7


RESTRICTED
STOCK UNIT AWARDS


 


Section 7.1            Award.  Subject to the terms and provisions of the Plan, the
Committee may award, at any time, Restricted Stock Units to any Eligible
Individual in the number and form, and subject to such restrictions on
transferability and other restrictions as the Committee may determine in its
discretion and set forth in the Award Agreement, including without limitation
the achievement of Performance Goals.


 


Section 7.2            Purchase Price.  No monetary
payment (other than applicable tax withholding, if any) shall be required as a
condition of receiving a Restricted Stock Unit Award, the consideration for
which shall be services actually rendered to or for the benefit of the
Corporation or an Affiliate.


 


Section 7.3            Vesting.  Restricted
Stock Unit Awards shall be made subject to vesting conditions based upon the
satisfaction of such Service requirements, conditions, restrictions or
Performance Goals as the Committee shall establish and set forth in the Award
Agreement.  Except as otherwise provided
in the Award Agreement, the vesting conditions on any Restricted Stock Unit
Award will expire and the Restricted Stock Unit will become fully vested upon
the date that a Participant dies or becomes Disabled.


 


15

















 


Section 7.4            Voting Rights, Dividend
Equivalent Rights and Distributions.  Participants shall have no voting rights with
respect to shares of Stock represented by Restricted Stock Units until the date
of the issuance of such shares (as evidenced by the appropriate entry on the
books of the Corporation or of a duly authorized transfer agent of the
Corporation).


 


The Committee, in its
discretion, may provide in the Award Agreement evidencing any Restricted Stock
Unit Award that the Participant shall be entitled to receive Dividend
Equivalent Rights during the period beginning on the date a Restricted Stock
Unit Award is granted and ending, with respect to each share of Stock
underlying the Award, on the earlier of the date the Award vests or the date on
which it is terminated.  However, in the
event of a dividend or distribution paid in shares of Stock or other property
or any other adjustment made upon a change in the capital structure of the
Corporation as described in Section 3.2, any and all new, substituted or
additional securities or other property (other than normal cash dividend equivalents)
to which the Participant may be entitled by reason of the Participant’s
Restricted Stock Unit Award shall be immediately subject to the terms and
conditions and shall be settled in the same manner and at the same time as the
Restricted Stock Unit Award with respect to which such Dividend Equivalent
Rights were paid or adjustments were made.


 


Section 7.5            Effect of Termination of
Service.  Except as otherwise provided in Section 7.3
above or by the Committee and set forth in the Award Agreement evidencing a
Restricted Stock Unit Award, if a Participant’s Service terminates for any
reason, whether voluntary or involuntary, then the Participant shall forfeit
any Restricted Stock Units that remain subject to vesting conditions as of the
date of the Participant’s termination of Service.


 


Section 7.6            Settlement of Restricted
Stock Unit Awards.  The Corporation shall issue to a Participant
on the date on which Restricted Stock Units subject to the Participant’s
Restricted Stock Unit Award vest or on such other date determined by the
Committee, in its discretion, and set forth in the Award Agreement one share of
Stock (and/or any other new, substituted or additional securities or other
property pursuant to an adjustment described in Section 3.2) for each
Restricted Stock Unit then becoming vested or otherwise to be settled on such
date, subject to the withholding of applicable taxes, if any.  If permitted by the Committee, the
Participant may elect, consistent with the requirements of Section 409A
and in accordance with such procedures as the Committee may specify from time
to time, to defer receipt of all or any portion of the shares of Stock or other
property otherwise issuable to the Participant pursuant to this Section 7.6.  Notwithstanding the foregoing, the Committee,
in its discretion, may provide in any Award Agreement for settlement of any
Restricted Stock Unit Award by payment to the Participant in cash of an amount
equal to the Fair Market Value on the vesting date of the shares of Stock or
other property otherwise issuable to the Participant pursuant to this Section 7.6.  Notwithstanding the foregoing, any stock
issued or cash paid to the Participant in settlement of the Restricted Stock
Units will be issued or paid, as applicable, as soon as administratively
practicable following the applicable vesting date but in no event later than March 15th
of the year following such vesting date (unless such Restricted Stock Unit has
been deferred as permitted by the Committee under this Section 7.6).


 


16

















 


ARTICLE 8


CHANGE IN CONTROL


 


Section 8.1            Accelerated Vesting.  The Committee
will have the discretion to provide in applicable Award Agreements that, in the
event of a Change in Control, the following provisions will apply:


 


(a)           each outstanding Option will immediately become vested
and exercisable in full; and


 


(b)           the vesting conditions on each share of Restricted
Stock or Restricted Stock Unit will lapse,


 


provided that full
vesting of all such outstanding Awards will be immediate unless the Corporation
is the surviving entity and any adjustments necessary to preserve the value of
the Participant’s outstanding Awards have been made, or the Corporation’s
successor at the time of the Change in Control irrevocably assumes the
Corporation’s obligations under the Plan or replaces each Participant’s
outstanding Award with an award of equal or greater value and having terms and
conditions no less favorable to the Participant than those applicable to the
Participant’s Award immediately prior to the Change in Control.


 


In the event of a Change
in Control that is a merger or consolidation in which the Corporation is not
the surviving corporation or that results in the acquisition of substantially
all the Corporation’s outstanding Stock by a single person or entity or by a
group of persons or entities acting in concert, or in the event of a sale or
transfer of all or substantially all of the Corporation’s assets (a “Covered
Transaction”), the Committee will have the discretion to provide for the
termination of all outstanding Options as of the effective date of the Covered
Transaction, provided that no Option will be so terminated (without the consent
of the Participant) prior to the expiration of 20 days following the later of (i) the
date on which the Award became fully exercisable and (ii) the date on
which the Participant received written notice of the Covered Transaction.


 


Section 8.2            Excess Parachute Payment.  In the event
that any acceleration of vesting pursuant to an Award and any other payment or
benefit received or to be received by a Participant would subject the
Participant to any excise tax pursuant to Code Section 4999 due to the
characterization of such acceleration of vesting, payment or benefit as an
excess parachute payment under Code Section 280G, the Participant may
elect, in his or her sole discretion, to reduce the amount of any acceleration
of vesting called for under the Award in order to avoid such
characterization.  To aid the Participant
in making any election made under this Section 8.2, no later than the date
of the occurrence of any event that might reasonably be anticipated to result
in an excess parachute payment to the Participant, the Corporation shall
request a determination in writing by independent experts selected by the
Corporation.  As soon as practicable
thereafter, the independent experts shall determine and report to the
Corporation and the Participant the amount of such acceleration of vesting,
payments and benefits that would produce the greatest after-tax benefit to the
Participant.  For the purposes of such
determination, the independent experts may rely on reasonable, good faith
interpretations concerning the application of Code Sections 280G and 4999.  The Corporation and the Participant shall
furnish to the independent experts such information and documents as the
experts may reasonably 


 


17

















 


request in order to make
their required determination.  The
Corporation shall bear all fees and expenses the independent experts may
reasonably charge in connection with their services contemplated by this Section 8.2,
and any excise tax, income tax, interest, or penalties imposed on the
Participant as a result of a successful Internal Revenue Service claim that,
contrary to the determination and report of the independent experts, the
Participant must pay an excise tax under Code Section 4999 due to the
characterization of such acceleration of vesting, payment or benefit as an
excess parachute payment under Code Section 280G.


 


ARTICLE
9


CERTIFICATES FOR AWARDS OF STOCK


 


Section 9.1            Stock Certificates.  Except as otherwise provided in this Section 9.1,
each Participant entitled to receive shares of Stock under the Plan will be
issued a certificate for such shares. 
Such certificate will be registered in the name of the Participant and
will bear an appropriate legend reciting the terms, conditions and
restrictions, if any, applicable to the Stock and will be subject to
appropriate stop-transfer orders.  To the
extent that the Plan provides for issuance of stock certificates to reflect the
issuance of shares of Stock, the issuance may be effected on a non-certificated
basis, to the extent not prohibited by applicable law or the applicable rules of
any stock exchange or market system.  If
the issuance of shares under the Plan is effected on a non-certificated basis,
the issuance of shares to a Participant will be reflected by crediting (by
means of a book entry) the applicable number of shares of Stock to an account
maintained by the Corporation in the name of such Participant, which account
may be an account maintained by the Corporation for such Participant under any
dividend reinvestment program offered by the Corporation.  The Committee may require, under such terms
and conditions as it deems appropriate or desirable, that the certificates for
Restricted Stock delivered under the Plan be held in custody by a bank or other
institution, or that the Corporation may itself hold such shares in custody
until the vesting conditions expire or until restrictions thereon otherwise
lapse, and may require, as a condition of any receipt of Restricted Stock, that
the recipient will have delivered a stock power endorsed in blank relating to
the Restricted Stock.  Certificates for
shares of unrestricted Stock may be delivered to the Participant after, and
only after, the vesting conditions will have expired without forfeiture in
respect of such shares of Restricted Stock.


 


Section 9.2            Compliance With Laws and
Regulations.  The grant of Awards and the issuance of
shares of Stock pursuant to an Award shall be subject to compliance with all
applicable requirements of Federal, state, local and foreign law with respect
to such securities and the requirements of any stock exchange or market system
upon which the Stock may then be listed. 
In addition, no Award may be exercised or shares of Stock issued
pursuant to an Award unless (a) a registration statement under the
Securities Act shall at the time of such exercise or issuance be in effect with
respect to the shares issuable pursuant to the Award, or (b) in the
opinion of legal counsel to the Corporation, the shares issuable pursuant to
the Award may be issued in accordance with the terms of an applicable exemption
from the registration requirements of the Securities Act.  The inability of the Corporation to obtain
from any regulatory body having jurisdiction the authority, if any, deemed by
the Corporation’s legal counsel to be necessary to the lawful issuance and sale
of any shares hereunder shall relieve the Corporation of any liability in
respect of the failure to issue or sell such shares as to which such requisite
authority shall not have been obtained. 
As a condition to issuance of any Stock, the Corporation may require the
Participant to satisfy any qualifications that may be necessary or 


 


18

















 


appropriate, to evidence
compliance with any applicable law or regulation and to make any representation
or warranty with respect thereto as may be requested by the Corporation.


 


Section 9.3            Restrictions. 
All certificates for shares of Stock delivered under the Plan (and all
non-certificated shares credited to a Participant’s account as provided in Section 9.1)
also will be subject to such stop-transfer orders and other restrictions as the
Committee may deem advisable under the rules, regulations and other
requirements of the SEC, any stock exchange or quotation system upon which the
Stock is then listed and any applicable Federal or state securities laws; and
the Committee may cause a legend or legends to be placed on any such
certificates to make appropriate reference to such restrictions.  The foregoing provisions of this Section 9.3
will not be effective if and to the extent that the shares of Stock delivered
under the Plan are covered by an effective and current registration statement
under the Securities Act, or if and so long as the Committee determines that
application of such provisions is no longer required or desirable.  In making such determination, the Committee
may rely upon an opinion of counsel for the Corporation.


 


Section 9.4            Rights of Stockholders.  Except as otherwise provided herein, no Participant
awarded an Option or Restricted Stock Unit will have any right as a stockholder
with respect to any shares subject to such Award prior to the date of issuance
to him or her of a certificate or certificates for such shares, or if
applicable, the crediting of non-certificated shares to an account maintained
by the Corporation in the name of such Participant.  No adjustment shall be made for dividends,
distributions or other rights for which the record date is prior to the date
such shares are issued, except as provided in Sections 3.2, 6.4, 7.4, or
another provision of the Plan.


 


ARTICLE 10


MISCELLANEOUS


 


Section 10.1         Effect of the Plan on the Rights of
Employees and Employer.  Neither the
adoption of the Plan nor any action of the Board or the Committee pursuant to
the Plan will be deemed to give any Eligible Individual any right to be granted
an Award and nothing in the Plan, in any Award granted under the Plan or in any
Award Agreement will confer any right to any Participant to continue in the
employment of the Corporation or any Affiliate or to continue to be retained to
provide Services to the Corporation or any Affiliate as a Director, or
consultant or interfere in any way with the rights of the Corporation or any
Affiliate to terminate a Participant’s Service at any time.


 


Section 10.2         Amendment.  The Board specifically reserves the right to alter and
amend the Plan at any time and from time to time and the right to revoke or
terminate the Plan or to suspend the granting of Awards pursuant to the Plan;
provided that no such alteration, amendment, revocation, termination, or suspension
will terminate any outstanding Award theretofore granted under the Plan, unless
there is a liquidation or a dissolution of the Corporation; and provided
further that no such alteration or amendment of the Plan will, without prior
stockholder approval (a) increase the total number of shares that may be
issued or delivered under the Plan; (b) make any changes in the class of
Eligible Individuals; (c) extend the period set forth in the Plan during
which Awards may be granted; or (d) make any changes that require
stockholder approval under the rules and regulations of any securities
exchange or market on which the Stock is traded.  No alteration, amendment, revocation or
termination of the Plan or suspension of any Award will 


 


19

















 


materially adversely
affect, without the written consent of the holder of an Award theretofore
granted under the Plan, the rights of such holder with respect to such
Award.  The Committee may not amend any
Award to extend the exercise period beyond a date that is later than the
earlier of the latest date upon which the Award could have expired by its
original terms under any circumstances or the 10th anniversary of the original
date of grant of the Award, or otherwise cause the Award to become subject to Section 409A.  However, if the exercise period of an Option
is extended at a time when the Exercise Price of the Option equals or exceeds
the Fair Market Value of the Stock that could be purchased, such extension will
not be considered an extension of the original Award.


 


Section 10.3         Effective Date and Duration of Plan.  The Plan will be effective January 13, 2010 (the “Effective
Date”), the date of its adoption by the Board. 
The Plan will remain in effect until the earliest of the date (a) all
shares authorized to be issued or transferred hereunder have been issued or
transferred (b) the Plan is terminated by the Board, or (c) the 10th
anniversary of the Effective Date, and will continue in effect thereafter with
respect to any Awards outstanding at the time of such termination.


 


Section 10.4         Unfunded Status of Plan.  The Plan will be unfunded.  The Corporation will not be required to
establish any special or separate fund nor to make any other segregation of
assets to assume the payment of any benefits under the Plan.  With respect to any payments not yet made to
a Participant pursuant to an Award, nothing contained in the Plan or any Award
will give any such Participant any rights that are greater than those of a
general unsecured creditor of the Corporation, provided that the Committee may
authorize the creation of trusts or make other arrangements to meet the
Corporation’s obligations under the Plan to deliver cash, shares or other
property pursuant to any Award, which trusts or other arrangements will be
consistent with the “unfunded” status of the Plan unless the Committee
otherwise determines.


 


Section 10.5         Tax Withholding.  Whenever the Corporation proposes or is required to
distribute Stock under the Plan, the Corporation may require the recipient to
remit to the Corporation an amount sufficient to satisfy any Federal, state and
local tax withholding requirements prior to the delivery of any certificate for
such shares or, in the discretion of the Committee, the Corporation may withhold
from the shares to be delivered the minimum number of shares sufficient to
satisfy all or a portion of such tax withholding requirements.  Whenever payments under the Plan are to be
made in cash, such payments may be net of an amount sufficient to satisfy any
Federal, state and local tax withholding requirements.


 


Any Award may provide
that the Participant may elect, in accordance with any conditions set forth in
such Award, to pay any withholding taxes in shares of Stock, provided that the
Participant, by accepting the Award will be deemed to instruct and authorize
the Corporation or its delegatee for such purpose to sell on his or her behalf
a whole number of shares of Stock from those shares of Stock issuable to the
Participant in payment of vested shares of Restricted Stock or Restricted Stock
Units as the Corporation or its delegatee determines to be appropriate to
generate cash proceeds sufficient to satisfy the minimum tax withholding
obligation.  This direction and
authorization is intended to comply with the requirements of Rule 10b5-1(c)(1)(i)(B) of
the Exchange Act, and to be interpreted to comply with the requirements of Rule 10b5-1(c) of
the Exchange Act.  Such shares will be
sold on the day the Restricted Stock or Restricted Stock Units become vested,
which is the date the tax withholding obligation arises, or as soon thereafter
as practicable.  Unless otherwise
provided by the Committee, the Participant 


 


20

















 


will be responsible for
all brokerage fees and other costs of sale, and the Participant will agree to
indemnify and hold the Corporation harmless from any losses, costs, damages, or
expenses relating to any such sale.  To
the extent the proceeds of such sale exceed the Participant’s minimum tax
withholding obligation (e.g., because of the need to sell whole
shares), the Corporation or its delegatee will pay such excess in cash to the
Participant through payroll as soon as practicable.  The Corporation is under no obligation to
arrange for such sale at any particular price. 
The Participant agrees to pay to the Corporation as soon as practicable,
including through additional payroll withholding, any amount of the tax
withholding obligation that is not satisfied by the sale of shares described
above.


 


Section 10.6         Benefits. 
Amounts received under the Plan are not to be taken into account for
purposes of computing benefits under other plans.


 


Section 10.7         Successors and Assigns.  The terms of the Plan will be binding upon the
Corporation and its successors and assigns.


 


Section 10.8         Headings.  Captions preceding the sections hereof are inserted
solely as a matter of convenience and in no way define or limit the scope or
intent of any provision hereof.


 


Section 10.9         Federal and State Laws, Rules and
Regulations.  The Plan and the grant of Awards will be
subject to all applicable Federal, state, and local laws, rules and
regulations and to such approval by any government or regulatory agency as may
be required.


 


Section 10.10       Governing Law. 
To the extent not preempted by Federal law, the Plan, any Award
Agreement, and documents evidencing Awards or rights relating to Awards will be
construed, administered and governed in all respects under and by the laws of
the State of Delaware, without giving effect to its conflict of laws
principles.  If any provision of the Plan
will be held by a court of competent jurisdiction to be invalid or
unenforceable, the remaining provisions hereof will continue to be fully effective.  The jurisdiction and venue for any disputes
arising under, or any action brought to enforce (or otherwise relating to), the
Plan will be exclusively in the courts in the State of Illinois, County of
Cook, including the Federal Courts located therein (should Federal jurisdiction
exist).


 


Section 10.11       Beneficiary Designation. 
Each Participant may name, from time to time, any beneficiary or
beneficiaries (who may be named contingently or successively) to whom any
benefit under the Plan is to be paid in case the Participant should die or become
Disabled before receiving any or all of his or her Plan benefits.  Each beneficiary designation will revoke all
prior designations by the same Participant, must be in a form prescribed by the
Committee, and must be made during the Participant’s lifetime.  If the Participant’s designated beneficiary
predeceases the Participant or no beneficiary has been designated, benefits
remaining unpaid at the Participant’s death will be paid to the Participant’s
estate or other entity described in the Award Agreement.


 


Section 10.12       Forfeiture Events.


 


(a)           The Committee may specify in the Award Agreement that
the Participant’s rights, payments, and benefits with respect to an Award shall
be subject to reduction, cancellation, forfeiture, or recoupment upon the occurrence
of specified events, in addition to any otherwise applicable vesting or
performance conditions of an 


 


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Award.  Such events may include, but shall not be
limited to, termination of Service for Cause or any act by a Participant,
whether before or after termination of Service, that would constitute Cause for
termination of Service.


 


(b)           The Award Agreement may provide that, notwithstanding
any other provision of the Plan to the contrary, if the Participant breaches
the non-compete, non-solicitation, non-disclosure or other restrictive
covenants of the Award Agreement, whether during or after termination of
Service, in addition to any other penalties or restrictions that may apply
under any employment agreement, state law, or otherwise, the Participant will
forfeit:


 


(i)            any and all Awards granted to him or her under the
Plan, including Awards that have become vested and exercisable; and/or


 


(ii)           the profit the Participant has realized on the
exercise of any Options, which is the difference between the Exercise Price and
the Fair Market Value of the Option that the Participant exercises after
terminating Service and within the six-month period immediately preceding the
Participant’s termination of Service (the Participant may be required to repay
such difference to the Corporation).


 


Section 10.13       Notice. 
Any notice or other communication required or permitted under the Plan
must be in writing and must be delivered personally, sent by certified,
registered or express mail, or sent by overnight courier, at the sender’s
expense.  Notice will be deemed given (a) when
delivered personally or, (b) if mailed, three days after the date of
deposit in the United States mail or, (c) if sent by overnight courier, on
the regular business day following the date sent.  Notice to the Corporation should be sent to
CBOE Holdings, Inc., 400 South LaSalle Street, Chicago, Illinois 60605,
Attention: General Counsel.  Notice to
the Participant should be sent to the address set forth on the Corporation’s
records.  Either party may change the
address to which the other party must give notice under this Section 10.13
by giving the other party written notice of such change, in accordance with the
procedures described above.


 


Section 10.14       Awards Not Transferable. 
Except as otherwise provided in the Award Agreement, no Option,
Restricted Stock Award, or Restricted Stock Unit (or the right to receive
shares of Stock under such Award) may be sold, transferred, exchanged, pledged,
assigned, garnished, or otherwise alienated or hypothecated, other than by will
or by the laws of descent and distribution, or pursuant to a domestic relations
order (as defined in Code Section 414(p)). 
The Committee may require, in its discretion, a Participant’s guardian
or legal representative to supply it with the evidence the Committee deems
necessary to establish the authority of the guardian or legal representative to
act on behalf of the Participant.  The
Award Agreement for a grant of Non-Qualified Stock Options may permit or may be
amended to permit the Participant who received the Option, at any time prior to
the Participant’s death, to assign all or any portion of the Option granted to
him or her to (a) the Participant’s spouse or lineal descendants; (b) the
trustee of a trust for the primary benefit of the Participant, the Participant’s
spouse or lineal descendants, or any combination thereof; (c) a
partnership of which the Participant, the Participant’s spouse and/or lineal
descendants are the only partners; (d) custodianships for lineal
descendants under the Uniform Transfers to Minors Act or any other similar
statute; or (e) upon the termination of a trust by the custodian or
trustee thereof or the dissolution or other 


 


22

















 


termination of the family
partnership or the termination of a custodianship under the Uniform Transfers
to Minors Act or other similar statute, to the person or persons who, in
accordance with the terms of such trust, partnership or custodianship are
entitled to receive Options held in trust, partnership or custody.  In such event, the spouse, lineal descendant,
trustee, partnership or custodianship will be entitled to all of the
Participant’s rights with respect to the assigned portion of such Option, and
such portion of the Option will continue to be subject to all of the terms,
conditions and restrictions applicable to the Option, as set forth herein and
in the related Award Agreement.  Any such
assignment will be permitted only if (i) the Participant does not receive
any value or consideration thereof and (ii) the assignment is expressly
permitted by the applicable Award Agreement. 
The Committee’s approval of the Award Agreement with assignment rights
will not require the Committee to include such assignment rights in the Award
Agreement with any other Participant. 
Any such assignment will be evidenced by an appropriate written document
executed by the Participant, and the Participant will deliver a copy thereof to
the Committee on or prior to the effective date of the assignment.  An assignee or transferee of an Option must
sign an agreement with the Corporation to be bound by the terms of the
applicable Award Agreement.


 


Section 10.15       Awards to Foreign Nationals and
Employees Outside the United States.  To the extent
the Committee deems it necessary, appropriate or desirable to comply with
foreign law of practice and to further the purposes of the Plan, the Committee
may, without amending the Plan, (a) establish rules applicable to
Awards granted to Participants who are foreign nationals, are employed outside
the United States, or both, including rules that differ from those set
forth in the Plan, and (b) grant Awards to such Participants in accordance
with those rules.


 


Section 10.16       Compliance With Section 409A. 
Notwithstanding any provision of the Plan to the contrary, the Plan is,
and all Awards made under the Plan are, intended to comply with Section 409A,
including the exceptions for stock rights, short-term deferrals, separation pay
arrangements, reimbursements, and in-kind distributions, and shall be
construed, interpreted and administered accordingly.  If any provision of the Plan or the Award
Agreement needs to be revised to satisfy the requirements of Section 409A,
then such provision shall be modified or restricted to the extent and in the
manner necessary to be in compliance with such requirements of Section 409A
and any such modification will attempt to maintain the same economic results as
were intended under the Plan and Award Agreement.  The Corporation cannot guarantee that the
Awards, payments and benefits that may be made or provided under the Plan will
satisfy all applicable provisions of Section 409A.  Payments made to a Participant under the Plan
or the Award Agreement in error shall be returned to the Corporation and do not
create a legally binding right to such payments.


 


Section 10.17       Severability. 
If any
provision of the Plan or any Award Agreement is determined to be invalid,
illegal or unenforceable in any jurisdiction, or as to any person, or would
disqualify the Plan or any Award Agreement under any law deemed applicable by
the Committee, such provision shall be construed or deemed amended to conform
to applicable laws, or, if it cannot be so construed or deemed amended without,
in the Committee’s determination, materially altering the intent of the Plan or
the Award Agreement, such provision shall be stricken as to such jurisdiction,
person or Award Agreement, and the remainder of the Plan and any such Award
Agreement shall remain in full force and effect.


 


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Section 10.18       Employment Agreement. 
Notwithstanding
any provision of the Plan or an Award Agreement to the contrary, to the extent an employment agreement between a Participant and the
Corporation or an Affiliate provides vesting terms with respect to an Award
that are more favorable to the Participant than those set forth in the Plan or
an Award Agreement, the vesting terms in such employment agreement shall
control.


 


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