Exhibit 10.1


 


FORM OF
SEACUBE CONTAINER LEASING LTD.

2010 OMNIBUS EQUITY INCENTIVE PLAN


 


Section 1.                                          Purpose of Plan.


 


The name of the Plan is the SeaCube Container Leasing Ltd. 2010 Omnibus
Equity Incentive Plan (the “Plan”). 
The purposes of the Plan are to provide an additional incentive to
selected management employees, directors, independent contractors, and
consultants of the Company or its Affiliates (as hereinafter defined) whose
contributions are essential to the growth and success of the Company’s business,
in order to strengthen the commitment of such persons to the Company and its
Subsidiaries, motivate such persons to faithfully and diligently perform their
responsibilities and attract and retain competent and dedicated persons whose
efforts will result in the long-term growth and profitability of the
Company.  To accomplish such purposes,
the Plan provides that the Company may grant Options, Share Appreciation
Rights, Restricted Shares, Deferred Shares, Performance Shares, Other
Share-Based Awards, or any combination of the foregoing.


 


Section 2.                                          Definitions.


 


For purposes of the Plan, the following terms shall be defined as set
forth below:


 


(a)                                  “Administrator”
means the Board, or, if and to the extent the Board does not administer the
Plan, the Committee in accordance with Section 3 hereof.


 


(b)                                 “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 Person
specified.  An entity shall be deemed an
Affiliate of the Company for purposes of this definition only for such periods
as the requisite ownership or control relationship is maintained.


 


(c)                                  “Award”
means any Option, Share Appreciation Right, Restricted Share, Deferred Share,
Performance Share, or Other Share-Based Award granted under the Plan.


 


(d)                                 “Award
Agreement” means any written agreement, contract or other instrument or
document evidencing an Award.


 


(e)                                  “Beneficial
Owner” (or any variant thereof) has the meaning defined in Rule 13d-3
under the Exchange Act.


 


(f)                                    “Board”
means the Board of Directors of the Company.


 

















 


(g)                                 “Bye-laws”
mean the bye-laws of the Company, as may be amended and/or restated from time
to time.


 


(h)                                 “Cause”
shall have the meaning assigned to such term in any individual employment or
severance agreement or Award Agreement with the Participant or, if no such
agreement exists or if such agreement does not define “Cause,” Cause shall mean
(i) the Participant commits any act of fraud, intentional
misrepresentation or serious misconduct in connection with the business of the
Company or any Affiliate, including, but not limited to, falsifying any
documents or agreements (regardless of form); (ii) the Participant
materially violates any rule or policy of the Company or any Affiliate (A) for
which violation an employee may be terminated pursuant to the written policies
of the Company or any Affiliate reasonably applicable to such an employee, (B) which
violation results in material damage to the Company or any Affiliate or (C) which,
after written notice to do so, the Participant fails to correct within a
reasonable time; (iii) other than solely due to Disability, the
Participant willfully breaches or habitually neglects any material aspect of
the Participant’s duties assigned to the Participant by the Company or any
Affiliate, which assignment was reasonable in light of the Participant’s
position with the Company or its Subsidiaries (all of the foregoing duties, “Duties”);
(iv) other than solely due to Disability, the Participant fails, after
written notice, adequately to perform any Duties and such failure is reasonably
likely to have a material adverse impact upon the Company or any Affiliate or
the operations of any of them; provided, that, for purposes of this
clause (iv), such a material adverse impact will be solely determined with
reference to the Participant’s Duties and annual compensation; (v) the
Participant materially fails to comply with a direction from the Chief
Executive Officer of the Company, the Board or the board of directors of any
Affiliate of the Company with respect to a material matter, which direction was
reasonable in light of the Participant’s position with the Company or any
Affiliate; (vi) while employed by or providing services to the Company or
any Affiliate, and without the written approval of the Board, the Participant
performs services for any other corporation or person which competes with the
Company or any of its Subsidiaries, or otherwise violates any restrictive
covenants contained in any Award Agreement or any other agreement between the
Company or any of any Affiliate; (vii) the Participant’s indictment,
conviction, or entering a plea of guilty or nolo contendere
to, a felony (other than a traffic or moving violation) or any crime involving
dishonesty; (viii) the Participant engages in any other action that may
result in termination of an employee for cause pursuant to any generally
applied standard, of which standard the Participant knew or reasonably should
have known, adopted in good faith by the Board or the board of directors of any
of the Company’s Subsidiaries from time to time but prior to such action or
condition; or (ix) any willful breach by the Participant of his fiduciary
duties as a director of the Company or any of its Subsidiaries.  In the event that there is a dispute between
the Participant and the Company as to whether “Cause” for termination
exists:  (1) such termination shall
nonetheless be effective and (2) such dispute shall be subject to
arbitration in New York City, the Borough of Manhattan, New York, using the
commercial rules of the American Arbitration Association.


 


(i)                                     “Change in
Capitalization” means any (1) merger, amalgamation, consolidation,
reclassification, recapitalization, spin-off, spin-out, repurchase or other 


 


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reorganization or corporate
transaction or event, (2) dividend (whether in the form of cash, Common
Shares or other property), share split or reverse share split, (3) combination
or exchange of shares, (4) other change in corporate structure or (5) declaration
of a special dividend (including a cash dividend) or other distribution, which,
in any such case, the Administrator determines, in its sole discretion, affects
the Shares such that an adjustment pursuant to Section 5 hereof is
appropriate.


 


(j)                                     “Change in
Control” shall be deemed to have occurred if an event set forth in any one
of the following paragraphs shall have occurred:


 


(1)                                  any Person
other than any Permitted Transferee is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person or any securities acquired
directly from the Company or any Affiliate thereof) representing 50% or more of
the combined voting power of the Company’s then outstanding securities; or


 


(2)                                  the following
individuals cease for any reason to constitute a majority of the number of
directors then serving on the Board: 
individuals who, on the date hereof, constitute the Board and any new
director (other than a director whose initial assumption of office is in
connection with an actual or threatened election contest, including, but not
limited to, a consent solicitation, relating to the election of directors of
the Company) whose appointment or election by the Board or nomination for
election by the Company’s shareholders was approved or recommended by a vote of
at least two-thirds (2/3) of the directors then still in office who either were
directors on the date hereof or whose appointment, election or nomination for
election was previously so approved or recommended; or


 


(3)                                  there is
consummated a merger, amalgamation or consolidation of the Company or any
Subsidiary thereof with any other corporation, other than a merger, amalgamation
or consolidation immediately following which the individuals who comprise the
Board immediately prior thereto constitute at least a majority of the Board of
the entity surviving such merger, amalgamation or consolidation or, if the
Company or the entity surviving such merger is then a subsidiary, the ultimate
parent thereof; or


 


(4)                                  the
shareholders of the Company approve a plan of complete liquidation or
dissolution of the Company or there is consummated an agreement for the sale or
disposition by the Company of all or substantially all of the Company’s assets,
other than (A) a sale or disposition by the Company of all or
substantially all of the Company’s assets to an entity, at least fifty percent
(50%) of the combined voting power of the voting securities of which are owned
by shareholders of the Company following the completion of such transaction in
substantially the same proportions as their ownership of the Company
immediately prior to such sale or (B) a sale or disposition of all or
substantially all of the Company’s assets immediately following which the
individuals who comprise the Board immediately prior thereto constitute at
least a majority of the board of directors of the entity to which such assets
are sold or disposed or, if such entity is a subsidiary, the ultimate parent
thereof.


 


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For each Award that
constitutes deferred compensation under Section 409A of the Code, a Change
in Control shall be deemed to have occurred under the Plan with respect to such
Award only if a change in the ownership or effective control of the Company or
a change in ownership of a substantial portion of the assets of the Company
shall also be deemed to have occurred under Section 409A of the Code.


 


Notwithstanding the
foregoing, a Change in Control shall not be deemed to have occurred by virtue
of the consummation of any transaction or series of integrated transactions
immediately following which the holders of Common Shares immediately prior to
such transaction or series of transactions continue to have substantially the
same proportionate ownership in an entity which owns all or substantially all
of the assets of the Company immediately following such transaction or series
of transactions.


 


(k)                                  “Code”
means the Internal Revenue Code of 1986, as amended from time to time, or any
successor thereto.


 


(l)                                     “Committee”
means any committee or subcommittee the Board may appoint to administer the
Plan.  Subject to the discretion of the
Board, the Committee shall be composed entirely of individuals who meet the
qualifications of an “outside director” within the meaning of Section 162(m) of
the Code, a “non-employee director” within the meaning of Rule 16b-3 under
the Exchange Act and any other qualifications required by the applicable stock
exchange on which the Common Shares are traded. 
If at any time or to any extent the Board shall not administer the Plan,
then the functions of the Administrator specified in the Plan shall be
exercised by the Committee.  Except as
otherwise provided in the Articles of Incorporation or Bye-laws of the Company,
any action of the Committee with respect to the administration of the Plan
shall be taken by a majority vote at a meeting at which a quorum is duly
constituted or unanimous written consent of the Committee’s members.


 


(m)                               “Common
Shares” means the common shares, par value $0.01 per share, of the Company.


 


(n)                                 “Company”
means SeaCube Container Leasing Ltd., a Bermuda exempted company (or any
successor company, except as the term “Company” is used in the definition of “Change
in Control” above).


 


(o)                                 “Deferred
Shares” means the right granted pursuant to Section 9 hereof to
receive Shares at the end of a specified deferral period or periods and/or upon
attainment of specified performance objectives.


 


(p)                                 “Disability”
means, with respect to any Participant, that such Participant (i) as
determined by the Administrator in its sole discretion, is unable to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can
be expected to last for a continuous period of not less than twelve (12)
months, or (ii) is, by reason of any medically determinable physical or
mental impairment which can be expected to result in death or can be expected
to last for a continuous period of not less 


 


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than twelve (12) months,
receiving income replacement benefits for a period of not less than three (3) months
under an accident and health plan covering employees of the Company or an
Affiliate thereof.


 


(q)                                 “Eligible
Recipient” means an employee, director, independent contractor or
consultant of the Company or any Affiliate of the Company who has been selected
as an eligible participant by the Administrator; provided, however,
to the extent required to avoid the imposition of additional taxes under Section 409A
of the Code, an Eligible Recipient of an Option or a Share Appreciation Right
means an employee, director, independent contractor or consultant of the
Company or any Subsidiary of the Company who has been selected as an eligible
participant by the Administrator.


 


(r)                                    “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended from time
to time.


 


(s)                                  “Exercise
Price” means, with respect to any Award under which the holder may purchase
Shares, the per share price at which a holder of such Award granted hereunder
may purchase Shares issuable upon exercise of such Award.


 


(t)                                    “Fair Market
Value” as of a particular date shall mean the fair market value of a Common
Share as determined by the Administrator in its sole discretion; provided,
however, that (i) if the Common Shares are admitted to trading on a
national securities exchange, the fair market value of a Common Share on any
date shall be the closing sale price reported for such share on such exchange
on such date or, if no sale was reported on such date, on the last day
preceding such date on which a sale was reported, (ii) if the Common
Shares are admitted to quotation on the National Association of Securities
Dealers Automated Quotation (“NASDAQ”) system or other comparable
quotation system and has been designated as a National Market System (“NMS”)
security, the fair market value of a Common Share on any date shall be the
closing sale price reported for such share on such system on such date or, if
no sale was reported on such date, on the last date preceding such date on
which a sale was reported, or (iii) if the Common Shares are admitted to
quotation on NASDAQ but has not been designated as an NMS security, the fair
market value of a Common Share on any date shall be the average of the highest
bid and lowest asked prices of such share on such system on such date or, if
both bid and ask prices were not reported on such date, on the last date
preceding such date on which both bid and ask prices were reported.


 


(u)                                 “Option”
means an option to purchase Common Shares granted pursuant to Section 7
hereof.


 


(v)                                 “Other
Share-Based Award” means a right or other interest granted pursuant to Section 10
hereof that may be denominated or payable in, valued in whole or in part by
reference to, or otherwise based on or related to, Common Shares, including,
but not limited to, unrestricted Shares, restricted share units, dividend
equivalents or performance units, each of which may be subject to the
attainment of Performance Goals or a period of continued employment or other
terms or conditions as permitted under the Plan.


 


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(w)                               “Participant”
means any Eligible Recipient selected by the Administrator, pursuant to the
Administrator’s authority provided for in Section 3 below, to receive
grants of Options, Share Appreciation Rights, Restricted Shares, Deferred
Shares, Performance Shares, Other Share-Based Awards or any combination of the
foregoing, and, upon his or her death, his or her successors, heirs, executors
and administrators, as the case may be.


 


(x)                                   “Performance
Goals” means performance goals based on one or more of the following
criteria:  (i) earnings, including
one or more of operating income, earnings before or after taxes, earnings
before or after interest, depreciation, amortization, adjusted EBITDA, economic
earnings, or extraordinary or special items or book value per share (which may
exclude nonrecurring items); (ii) pre-tax income or after-tax income; (iii) earnings
per Share (basic or diluted); (iv) operating profit; (v) revenue,
revenue growth or rate of revenue growth; (vi) return on assets (gross or
net), return on investment, return on capital, or return on equity; (vii) returns
on sales or revenues; (viii) operating expenses; (ix) share price
appreciation; (x) cash flow, free cash flow, cash flow return on
investment (discounted or otherwise), net cash provided by operations, or cash
flow in excess of cost of capital; (xi) implementation or completion of
critical projects or processes; (xii) cumulative earnings per share growth;
(xiii) operating margin or profit margin; (xiv) cost targets, reductions and
savings, productivity and efficiencies; (xv) strategic business criteria,
consisting of one or more objectives based on meeting specified market
penetration, geographic business expansion, customer satisfaction, employee
satisfaction, human resources management, supervision of litigation,
information technology, and goals relating to acquisitions, divestitures, joint
ventures and similar transactions, and budget comparisons; (xvi) personal
professional objectives, including any of the foregoing performance goals, the
implementation of policies and plans, the negotiation of transactions, the
development of long term business goals, formation of joint ventures, research
or development collaborations, and the completion of other corporate
transactions; and (xvii) any combination of, or a specified increase in, any of
the foregoing.  Where applicable, the
Performance Goals may be expressed in terms of attaining a specified level of
the particular criteria or the attainment of a percentage increase or decrease
in the particular criteria, and may be applied to one or more of the Company or
Affiliate thereof, or a division or strategic business unit of the Company, or
may be applied to the performance of the Company relative to a market index, a
group of other companies or a combination thereof, all as determined by the
Committee.  The Performance Goals may
include a threshold level of performance below which no payment shall be made
(or no vesting shall occur), levels of performance at which specified payments
shall be made (or specified vesting shall occur), and a maximum level of
performance above which no additional payment shall be made (or at which full
vesting shall occur).  Each of the
foregoing Performance Goals shall be determined in accordance with generally
accepted accounting principles and shall be subject to certification by the
Committee; provided, that the Committee shall have the authority to make
equitable adjustments to the Performance Goals in recognition of unusual or
non-recurring events affecting the Company or any Affiliate thereof or the
financial statements of the Company or any Affiliate thereof, in response to
changes in applicable laws or regulations, or to account for items of gain,
loss or expense determined 


 


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to be extraordinary or
unusual in nature or infrequent in occurrence or related to the disposal of a
segment of a business or related to a change in accounting principles.


 


(y)                                 “Performance
Shares” means Shares that are subject to restrictions that lapse upon the
attainment of specified performance objectives and that are granted pursuant to
Section 9 below.


 


(z)                                   “Permitted
Transferee” means, (i) any Affiliate (a “FIG Affiliate”) of
Fortress Investment Group LLC, a Delaware limited liability company (“FIG”),
(ii) any managing director, general partner, director, limited partner,
officer or employee of any FIG Affiliate, (iii) any investment fund or
other entity managed directly or indirectly by FIG or any Affiliate thereof
(each, a “FIG Fund”), or (iv) any general partner, limited partner,
managing member or person occupying a similar role of or with respect to any
FIG Fund.


 


(aa)                            “Person”
shall have the meaning given in Section 3(a)(9) of the Exchange Act,
as modified and used in Sections 13(d) and 14(d) thereof, except that
such term shall not include (i) the Company or any Subsidiary thereof, (ii) a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company or any Subsidiary thereof, (iii) an underwriter temporarily
holding securities pursuant to an offering of such securities, or (iv) a
corporation owned, directly or indirectly, by the shareholders of the Company
in substantially the same proportions as their ownership of shares of the
Company.


 


(bb)                          “Restricted
Shares” means Shares granted pursuant to Section 9 below subject to
certain restrictions that lapse at the end of a specified period or periods.


 


(cc)                            “Retirement”
means a termination of a Participant’s employment, other than for Cause, on or
after the attainment of age 65.


 


(dd)                          “Shares”
means Common Shares reserved for issuance under the Plan, as adjusted pursuant
to the Plan, and any successor (pursuant to a merger, amalgamation,
consolidation or other reorganization) security.


 


(ee)                            “Share
Appreciation Right” means the right pursuant to an Award granted under Section 8
below to receive an amount equal to the excess, if any, of (i) the
aggregate Fair Market Value, as of the date such Award or portion thereof is
surrendered, of the Shares covered by such Award or such portion thereof, over (ii) the
aggregate Exercise Price of such Award or such portion thereof.


 


(ff)                                “Subsidiary” means, with
respect to any Person, as of any date of determination, any other Person as to
which such first Person owns or otherwise controls, directly or indirectly,
more than 50% of the voting shares or other similar interests or a sole general
partner interest or managing member or similar interest of such other
Person.  An entity shall be deemed a
Subsidiary of the Company for purposes of this definition only for such periods
as the requisite ownership or control relationship is maintained.


 


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Section 3.                                          Administration.


 


(a)                                  The Plan shall
be administered by the Administrator and shall be administered in accordance
with the requirements of Section 162(m) of the Code (but only to the
extent necessary and desirable to maintain qualification of awards under the
Plan under Section 162(m) of the Code) and, to the extent applicable,
Rule 16b-3 under the Exchange Act (“Rule 16b-3”).  The Plan is intended to comply, and shall be
administered in a manner that is intended to comply, with Section 409A of the Code and shall
be construed and interpreted in accordance with such intent.  To the extent that an Award, issuance and/or
payment is subject to Section 409A
of the Code, it shall be awarded and/or issued or paid in a manner that will
comply with Section 409A of
the Code, including any applicable regulations or guidance issued by the
Secretary of the United States Treasury Department and the Internal Revenue
Service with respect thereto.


 


(b)                                 Pursuant to the
terms of the Plan, the Administrator, subject, in the case of any Committee, to
any restrictions on the authority delegated to it by the Board, shall have the
power and authority, without limitation:


 


(1)                                  to select those
Eligible Recipients who shall be Participants;


 


(2)                                  to determine
whether and to what extent Options, Share Appreciation Rights, Restricted
Shares, Deferred Shares, Performance Shares, Other Share-Based Awards or a
combination of any of the foregoing, are to be granted hereunder to
Participants;


 


(3)                                  to determine
the number of Shares to be covered by each Award granted hereunder;


 


(4)                                  to determine
the terms and conditions, not inconsistent with the terms of the Plan, of each
Award granted hereunder (including, but not limited to, (i) the
restrictions applicable to Restricted Shares or Deferred Shares and the
conditions under which restrictions applicable to such Restricted Shares or
Deferred Shares shall lapse, (ii) the performance goals and periods
applicable to Performance Shares, (iii) the Exercise Price of each Award, (iv) the
vesting schedule applicable to each Award, (v) the number of Shares
subject to each Award and (vi) subject to the requirements of Section 409A
of the Code (to the extent applicable), any amendments to the terms and
conditions of outstanding Awards, including, but not limited to, extending the
exercise period of such Awards and accelerating the vesting schedule of such
Awards), and, if the Administrator in its discretion determines to accelerate
the vesting of Options and/or Share Appreciation Rights in connection with a
Change in Control, the Administrator shall also have discretion in connection
with such action to provide that all Options and/or Share Appreciation Rights
outstanding immediately prior to such Change in Control shall expire on the
effective date of such Change in Control;


 


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(5)                                  to determine
the terms and conditions, not inconsistent with the terms of the Plan, which
shall govern all written instruments evidencing Options, Share Appreciation
Rights, Restricted Shares, Deferred Shares, Performance Shares or Other
Share-Based Awards or any combination of the foregoing granted hereunder;


 


(6)                                  to determine
the Fair Market Value;


 


(7)                                  to determine
the duration and purpose of leaves of absence which may be granted to a
Participant without constituting termination of the Participant’s employment
for purposes of Awards granted under the Plan;


 


(8)                                  to adopt, alter
and repeal such administrative rules, guidelines and practices governing the
Plan as it shall from time to time deem advisable; and


 


(9)                                  to construe and
interpret the terms and provisions of the Plan and any Award issued under the
Plan (and any Award Agreement relating thereto), and to otherwise supervise the
administration of the Plan and to exercise all powers and authorities either
specifically granted under the Plan or necessary and advisable in the
administration of the Plan.


 


(c)                                  All decisions
made by the Administrator pursuant to the provisions of the Plan shall be
final, conclusive and binding on all persons, including the Company and the
Participants.  No member of the Board or
the Committee, nor any officer or employee of the Company or any Subsidiary
thereof acting on behalf of the Board or the Committee, shall be personally
liable for any action, omission, determination, or interpretation taken or made
in good faith with respect to the Plan, and all members of the Board or the
Committee and each and any officer or employee of the Company and of any
Subsidiary thereof acting on their behalf shall, to the maximum extent
permitted by law, be fully indemnified and protected by the Company in respect
of any such action, omission, determination or interpretation.


 


Section 4.                                          Shares Reserved for Issuance Under the Plan.


 


(a)                                  Subject to Section 5
hereof, the number of Common Shares that are reserved and available for
issuance pursuant to Awards granted under the Plan is 1,000,000 Shares,
subject, during the term of the Plan, to annual increases of 50,000 Shares on
each anniversary of the Effective Date. 
From and after such time as the Plan is subject to 162(m) of the
Code, the aggregate Awards granted during any single fiscal year to any
individual who is likely to be a “covered employee” (as defined in Section 162(m) of
the Code) shall not exceed 1,000,000 Shares.


 


(b)                                 Shares issued
under the Plan may, in whole or in part, be authorized but unissued Shares or
Shares that shall have been or may be reacquired by the Company in the open
market, in private transactions, or otherwise. 
If any Shares subject to an Award are forfeited, cancelled, exchanged or
surrendered or if an Award otherwise terminates or expires without a
distribution of shares to the Participant, the Shares with respect to such
Award shall, to the extent of any such forfeiture, cancellation, 


 


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exchange, surrender,
termination or expiration, again be available for Awards under the Plan.  Notwithstanding the foregoing, Shares
surrendered or withheld as payment of either the Exercise Price of an Award
(including Shares otherwise underlying an Award of a Share Appreciation Right
that are retained by the Company to account for the grant price of such Share
Appreciation Right) and/or withholding taxes in respect of an Award shall no
longer be available for grant under the Plan.


 


Section 5.                                          Equitable Adjustments.


 


In the event of any Change in Capitalization, an equitable substitution
or proportionate adjustment shall be made, in each case, as may be determined
by the Administrator, in its sole discretion, in (i) the aggregate number
of Common Shares reserved for issuance under the Plan and the maximum number of
Shares that may be subject to Awards granted to any Participant in any calendar
or fiscal year, (ii) the kind, number and Exercise Price subject to
outstanding Options and Share Appreciation Rights granted under the Plan, and (iii) the
kind, number and purchase price of Shares subject to outstanding Restricted
Shares, Deferred Shares, Performance Shares or Other Share-Based Awards granted
under the Plan; provided, however, that any fractional shares
resulting from the adjustment shall be eliminated.  Such other equitable substitutions or
adjustments shall be made as may be determined by the Administrator, in its
sole discretion.  Without limiting the
generality of the foregoing, in connection with a Change in Capitalization, the
Administrator may provide, in its sole discretion, for the cancellation of any
outstanding Award granted hereunder in exchange for payment in cash or other
property having an aggregate Fair Market Value of the Shares covered by such
award, reduced by the aggregate Exercise Price or purchase price thereof, if
any.  The Administrator’s determinations
pursuant to this Section 5 shall be final, binding and conclusive.


 


Section 6.                                          Eligibility.


 


The Participants under the Plan shall be selected from time to time by
the Administrator, in its sole discretion, from those individuals that qualify
as Eligible Recipients.


 


Section 7.                                          Options.


 


(a)                                  General.  Each Participant who is granted an Option
shall enter into an Award Agreement with the Company, containing such terms and
conditions as the Administrator shall determine, in its sole discretion, which
Award Agreement shall set forth, among other things, the Exercise Price of the
Option, the term of the Option and provisions regarding exercisability of the
Option.  Notwithstanding the foregoing,
the prospective recipient of an Option shall not have any rights with respect
to such Award, unless and until such recipient has executed an Award Agreement
and delivered a fully executed copy thereof to the Company, within a period of
sixty (60) days (or such other period as the Administrator may specify) after
the award date.  The provisions of each
Option need not be the same with respect to each Participant.  More than one Option may be granted to the
same Participant and be outstanding concurrently hereunder.  Options 


 


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granted under the Plan shall
be subject to the terms and conditions set forth in this Section 7 and
shall contain such additional terms and conditions, not inconsistent with the
terms of the Plan, as the Administrator shall deem desirable and set forth in
the applicable Award Agreement.  Each
Option granted hereunder is intended to be a non-qualified Option and is not
intended to qualify as an “incentive stock option” within the meaning of Section 422
of the Code.


 


(b)                                 Exercise Price.  The Exercise Price of Shares purchasable
under an Option shall be determined by the Administrator in its sole discretion
at the time of grant, but in no event shall the exercise price of an Option be
less than one hundred percent (100%) of the Fair Market Value of the Common
Shares on the date of grant.


 


(c)                                  Option Term.  The maximum term of each Option shall be
fixed by the Administrator, but no Option shall be exercisable more than ten (10) years
after the date such Option is granted. 
Each Option’s term is subject to earlier expiration pursuant to the
applicable provisions in the Plan and the Award Agreement.  Notwithstanding the foregoing, the
Administrator shall have the authority to accelerate the exercisability of any
outstanding Option at such time and under such circumstances as the
Administrator, in its sole discretion, deems appropriate.


 


(d)                                 Exercisability.  Each Option shall be exercisable at such time
or times and subject to such terms and conditions, including the attainment of
preestablished corporate performance goals, as shall be determined by the
Administrator in the applicable Award Agreement.  The Administrator may also provide that any
Option shall be exercisable only in installments, and the Administrator may
waive such installment exercise provisions at any time, in whole or in part,
based on such factors as the Administrator may determine in its sole
discretion.  Notwithstanding anything to
the contrary contained herein, an Option may not be exercised for a fraction of
a share.


 


(e)                                  Method of
Exercise.  Options may
be exercised in whole or in part by giving written notice of exercise to the
Company specifying the number of whole Shares to be purchased, accompanied by
payment in full of the aggregate Exercise Price of the Shares so purchased in
cash or its equivalent, as determined by the Administrator.  As determined by the Administrator, in its
sole discretion, with respect to any Option or category of Options, payment in
whole or in part may also be made (i) by means of consideration received
under any cashless exercise procedure approved by the Administrator (including
the withholding of Shares otherwise issuable upon exercise), (ii) in the
form of unrestricted Shares already owned by the Participant which, (x) in
the case of unrestricted Shares acquired upon exercise of an Option, have been
owned by the Participant for more than six (6) months on the date of
surrender, and (y) have a Fair Market Value on the date of surrender equal
to the aggregate exercise price of the Shares as to which such Option shall be
exercised, (iii) any other form of consideration approved by the
Administrator and permitted by applicable law or (iv) any combination of
the foregoing.


 


(f)                                    Rights as
Shareholder.  A
Participant shall have no rights to dividends or distributions or any other
rights of a shareholder with respect to the Shares


 


11














 


subject to an Option until the Participant
has given written notice of the exercise thereof, has paid in full for such
Shares and has satisfied the requirements of Section 16 hereof.


 


(g)                                 Termination of
Employment or Service.


 


(1)                                  Unless the
applicable Award Agreement provides otherwise, in the event that the employment
or service of a Participant with the Company and all Affiliates thereof shall
terminate for any reason other than Cause, Retirement, Disability, or death, (A)
Options granted to such Participant, to the extent that they are exercisable at
the time of such termination, shall remain exercisable until the date that is
ninety (90) days after such termination, on which date they shall expire, and (B)
Options granted to such Participant, to the extent that they were not
exercisable at the time of such termination, shall expire at the close of
business on the date of such termination. 
The ninety (90) day period described in this Section 7(g)(1) shall be
extended to one (1) year after the date of such termination in the event of the
Participant’s death during such ninety (90) day period.  Notwithstanding the foregoing, no Option
shall be exercisable after the expiration of its term.


 


(2)                                  Unless the
applicable Award Agreement provides otherwise, in the event that the employment
or service of a Participant with the Company and all Affiliates thereof shall
terminate on account of the Retirement, Disability, or death of the
Participant, (A) Options granted to such Participant, to the extent that they
were exercisable at the time of such termination, shall remain exercisable
until the date that is one (1) year after such termination, on which date they
shall expire and (B) Options granted to such Participant, to the extent that
they were not exercisable at the time of such termination, shall expire at the
close of business on the date of such termination.  Notwithstanding the foregoing, no Option
shall be exercisable after the expiration of its term.


 


(3)                                  In the event of
the termination of a Participant’s employment or service for Cause, all
outstanding Options granted to such Participant shall expire at the
commencement of business on the date of such termination.


 


(h)                                 Other Change in
Employment Status.  An Option
shall be affected, both with regard to vesting schedule and termination, by
leaves of absence, changes from full-time to part-time employment, partial
disability or other changes in the employment status of an Participant, in the
discretion of the Administrator.


 


Section 8.                                          Share Appreciation Rights.


 


(a)                                  General.  Share Appreciation Rights may be granted
either alone (“Free Standing Rights”) or in conjunction with all or part
of any Option granted under the Plan (“Related Rights”).  Related Rights may be granted either at or
after the time of the grant of such Option. 
The Administrator shall determine the Eligible Recipients to whom, and
the time or times at which, grants of Share Appreciation Rights shall be made,
the number of Shares to be awarded, the price per Share, and all other
conditions of Share Appreciation Rights. 
Notwithstanding the foregoing, no Related Right may be granted 


 


12

















 


for more Shares than are subject to the
Option to which it relates and any Share Appreciation Right must be granted
with an Exercise Price not less than the Fair Market Value of Common Shares on
the date of grant.  The provisions of
Share Appreciation Rights need not be the same with respect to each
Participant.  Share Appreciation Rights
granted under the Plan shall be subject to the following terms and conditions
set forth in this Section 8 and shall contain such additional terms and
conditions, not inconsistent with the terms of the Plan, as the Administrator
shall deem desirable, as set forth in the applicable Award Agreement.


 


(b)                                 Awards; Rights
as Shareholder.  The
prospective recipient of a Share Appreciation Right shall not have any rights
with respect to such Award, unless and until such recipient has executed an
Award Agreement and delivered a fully executed copy thereof to the Company,
within a period of sixty (60) days (or such other period as the Administrator
may specify) after the award date. 
Participants who are granted Share Appreciation Rights shall have no
rights as shareholders of the Company with respect to the grant or exercise of
such rights.


 


(c)                                  Exercisability.


 


(1)                                  Share
Appreciation Rights that are Free Standing Rights shall be exercisable at such
time or times and subject to such terms and conditions as shall be determined
by the Administrator in the applicable Award Agreement.


 


(2)                                  Share
Appreciation Rights that are Related Rights shall be exercisable only at such
time or times and to the extent that the Options to which they relate shall be
exercisable in accordance with the provisions of Section 7 hereof and this Section
8 of the Plan.


 


(d)                                 Payment Upon
Exercise.


 


(1)                                  Upon the
exercise of a Free Standing Right, the Participant shall be entitled to receive
up to, but not more than, that number of Shares equal in value to the excess of
the Fair Market Value as of the date of exercise over the price per share
specified in the Free Standing Right multiplied by the number of Shares in
respect of which the Free Standing Right is being exercised, with the
Administrator having the right to determine the form of payment.


 


(2)                                  A Related Right
may be exercised by a Participant by surrendering the applicable portion of the
related Option.  Upon such exercise and
surrender, the Participant shall be entitled to receive up to, but not more
than, that number of Shares equal in value to the excess of the Fair Market
Value as of the date of exercise over the Exercise Price specified in the
related Option multiplied by the number of Shares in respect of which the
Related Right is being exercised, with the Administrator having the right to
determine the form of payment.  Options
which have been so surrendered, in whole or in part, shall no longer be
exercisable to the extent the Related Rights have been so exercised.


 


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(3)                                  Notwithstanding
the foregoing, the Administrator may determine to settle the exercise of a
Share Appreciation Right in cash (or in any combination of Shares and cash).


 


(e)                                  Termination of
Employment or Service.


 


(1)                                  In the event of
the termination of employment or service with the Company and all Affiliates
thereof of a Participant who has been granted one or more Free Standing Rights,
such rights shall be exercisable at such time or times and subject to such
terms and conditions as shall be determined by the Administrator in the
applicable Award Agreement.


 


(2)                                  In the event of
the termination of employment or service with the Company and all Affiliates
thereof of a Participant who has been granted one or more Related Rights, such
rights shall be exercisable at such time or times and subject to such terms and
conditions as set forth in the related Options.


 


(f)                                    Term.


 


(1)                                  The term of
each Free Standing Right shall be fixed by the Administrator, but no Free
Standing Right shall be exercisable more than ten (10) years after the date
such right is granted.


 


(2)                                  The term of
each Related Right shall be the term of the Option to which it relates, but no
Related Right shall be exercisable more than ten (10) years after the date such
right is granted.


 


Section 9.                                          Restricted Shares, Deferred Shares and Performance Shares.


 


(a)                                  General.  Restricted Shares, Deferred Shares or
Performance Shares may be issued either alone or in addition to other awards
granted under the Plan.  The
Administrator shall determine the Eligible Recipients to whom, and the time or
times at which, Restricted Shares, Deferred Shares or Performance Shares shall
be made; the number of Shares to be awarded; the price, if any, to be paid by
the Participant for the acquisition of Restricted Shares, Deferred Shares or
Performance Shares; the period of time prior to which such shares become vested
and free of restrictions on Transfer (the “Restricted Period”), if any,
applicable to Restricted Shares, Deferred Shares or Performance Shares; the
performance objectives (if any) applicable to Deferred Shares or Performance
Shares; and all other conditions of the Restricted Shares, Deferred Shares and
Performance Shares.  If the restrictions,
performance objectives and/or conditions established by the Administrator are
not attained, a Participant shall forfeit his or her Restricted Shares,
Deferred Shares or Performance Shares, in accordance with the terms of the
grant.  The provisions of the Restricted
Shares, Deferred Shares or Performance Shares need not be the same with respect
to each Participant.


 


(b)                                 Awards and
Certificates.  The
prospective recipient of Restricted Shares, Deferred Shares or Performance
Shares shall not have any rights with respect to any such award, unless and
until such recipient has executed an Award Agreement and 


 


14

















 


delivered a fully executed copy thereof to
the Company, within a period of sixty (60) days (or such other period as the
Administrator may specify) after the award date.  Except as otherwise provided below in Section
9(c), (i) each Participant who is granted an award of Restricted Shares or
Performance Shares may, in the Company’s sole discretion, be issued a share
certificate in respect of such Restricted Shares or Performance Shares; and (ii)
any such certificate so issued shall be registered in the name of the
Participant, and shall bear an appropriate legend referring to the terms,
conditions, and restrictions applicable to any such Award.


 


The Company may require that the share certificates,
if any, evidencing Restricted Shares or Performance Shares granted hereunder be
held in the custody of the Company until the restrictions thereon shall have
lapsed, and that, as a condition of any award of Restricted Shares or
Performance Shares, the Participant shall have delivered a stock power,
endorsed in blank, relating to the Shares covered by such award.


 


With respect to Deferred Shares, at the expiration
of the Restricted Period, share certificates in respect of such shares of
Deferred Shares may, in the Company’s sole discretion, be delivered to the
Participant, or his legal representative, in a number equal to the number of
Shares covered by the Deferred Shares award.


 


Notwithstanding anything in the Plan to the contrary,
any Restricted Shares, Deferred Shares (at the expiration of the Restricted
Period) or Performance Shares (whether before or after any vesting conditions
have been satisfied) may, in the Company’s sole discretion, be issued in
uncertificated form pursuant to the customary arrangements for issuing shares
in such form.


 


Further, notwithstanding anything in the Plan to the
contrary, with respect to Deferred Shares, at the expiration of the Restricted
Period, Shares shall promptly be issued (either in certificated or
uncertificated form) to the Participant, unless otherwise deferred in
accordance with procedures established by the Company in accordance with Section
409A of the Code, and such issuance shall in any event be made within such
period as is required to avoid the imposition of a tax under Section 409A of
the Code.


 


(c)                                  Restrictions
and Conditions.  The
Restricted Shares, Deferred Shares and Performance Shares granted pursuant to
this Section 9 shall be subject to the following restrictions and conditions
and any additional restrictions or conditions as determined by the
Administrator at the time of grant or, subject to Section 409A of the Code,
thereafter:


 


(1)                                  The
Administrator may, in its sole discretion, provide for the lapse of
restrictions in installments and may accelerate or waive such restrictions in
whole or in part based on such factors and such circumstances as the
Administrator may determine, in its sole discretion, including, but not limited
to, the attainment of certain performance related goals, the Participant’s
termination of employment or service as a director, independent contractor or
consultant to the Company or any Affiliate thereof, or the Participant’s death
or Disability; provided, however, that this sentence shall not
apply to any Award which is intended to qualify as “performance-based
compensation” under 


 


15

















 


Section 162(m) of the Code.  Notwithstanding the foregoing, upon a Change
in Control, the outstanding Awards shall be subject to Section 13 hereof.


 


(2)                                  Except as
provided in Section 18 or in the applicable Award Agreement, the Participant
shall generally have the rights of a shareholder of the Company with respect to
Restricted Shares or Performance Shares during the Restricted Period.  Except as provided in Section 18 or in the
applicable Award Agreement, the Participant shall generally not have the rights
of a shareholder with respect to Shares subject to Deferred Shares during the
Restricted Period; provided, however, that, subject to Section 409A
of the Code, an amount equal to dividends declared during the Restricted Period
with respect to the number of Shares covered by Deferred Shares shall, unless
otherwise set forth in an Award Agreement, be paid to the Participant at the
same time as dividends are paid to the Company’s shareholders generally,
provided that the Participant is then providing services to the Company.  Certificates for Shares of unrestricted
Common Shares may, in the Company’s sole discretion, be delivered to the
Participant only after the Restricted Period has expired without forfeiture in
respect of such Restricted Shares, Deferred Shares or Performance Shares,
except as the Administrator, in its sole discretion, shall otherwise determine.


 


(3)                                  The rights of
Participants granted Restricted Shares, Deferred Shares or Performance Shares
upon termination of employment or service as a director, independent
contractor, or consultant to the Company or to any Affiliate thereof terminates
for any reason during the Restricted Period shall be set forth in the Award
Agreement.


 


Section 10.                                   Other Share-Based Awards.


 


The Administrator is
authorized to grant Awards to Participants in the form of Other Share-Based
Awards, as deemed by the Administrator to be consistent with the purposes of
the Plan and as evidenced by an Award Agreement.  The Administrator shall determine the terms
and conditions of such Awards, consistent with the terms of the Plan, at the
date of grant or thereafter, including any Performance Goals and performance
periods.  Common Shares or other
securities or property delivered pursuant to an Award in the nature of a
purchase right granted under this Section 10 shall be purchased for such
consideration, paid for at such times, by such methods, and in such forms,
including, without limitation, Shares, other Awards, notes or other property,
as the Administrator shall determine, subject to any required corporate action.


 


16

















 


Section 11.                                   Performance-Based Awards.


 


To the extent that the Plan is subject to Section 162(m) of the Code,
no payment with respect to an Award made under Section 9 or 10 hereof which is
intended to qualify as “performance-based compensation” (within the meaning of Section
162(m) of the Code) shall be made to a Participant that is likely to be a “covered
employee” (within the meaning of Section 162(m) of the Code) prior to the
certification by the Committee that the applicable Performance Goals have been
attained.


 


Section 12.                                   Accelerated Vesting In Connection With a Change in Control.


 


Unless otherwise determined by the Administrator and evidenced in an
Award Agreement, in the event that (a) a Change in Control occurs, and (b) the
Participant’s employment is terminated by the Company, its successor or
Affiliate thereof without Cause on or after the effective date of the Change in
Control but prior to twelve (12) months following the Change in Control, then:


 


(1)                                  any unvested or unexercisable portion of any Award carrying a right to
exercise shall become fully vested and exercisable; and


 


(2)                                  the
restrictions, deferral limitations, payment conditions and forfeiture
conditions applicable to an Award granted under the Plan shall lapse and such
Awards shall be deemed fully vested and any performance conditions imposed with
respect to such Awards shall be deemed to be fully achieved.


 


Section 13.                                   Amendment and Termination.


 


The Board may amend, alter or terminate the Plan, but no amendment,
alteration, or termination shall be made that would impair the rights of a
Participant under any Award theretofore granted without such Participant’s
consent.  Unless the Board determines
otherwise, the Board shall obtain approval of the Company’s shareholders for
any amendment that would require such approval in order to satisfy the
requirements of Section 162(m) of the Code, any rules of the stock exchange on
which the Common Shares are traded or other applicable law.  The Administrator may amend the terms of any
Award theretofore granted, prospectively or retroactively, but, subject to Section
5 of the Plan and the immediately preceding sentence, no such amendment shall
impair the rights of any Participant without his or her consent.


 


Section 14.                                   Unfunded Status of Plan.


 


The Plan is intended to constitute an “unfunded” plan for incentive
compensation.  With respect to any
payments not yet made to a Participant by the Company, nothing contained herein
shall give any such Participant any rights that are greater than those of a
general creditor of the Company.


 


17

















 


Section 15.                                   Withholding Taxes.


 


Each Participant shall, no later than the date as of which the value of
an Award first becomes includible in the gross income of such Participant for
federal and/or state income tax purposes, pay to the Company, or make
arrangements satisfactory to the Administrator regarding payment of, any
federal, state, or local taxes of any kind required by law to be withheld with
respect to the Award.  The obligations of
the Company under the Plan shall be conditional on the making of such payments
or arrangements, and the Company shall, to the extent permitted by law, have
the right to deduct any such taxes from any payment of any kind otherwise due
to such Participant.  Whenever cash is to
be paid pursuant to an award granted hereunder, the Company shall have the
right to deduct therefrom an amount sufficient to satisfy any federal, state
and local withholding tax requirements related thereto.  Whenever Shares are to be delivered pursuant
to an Award, the Company shall have the right to require the Participant to
remit to the Company in cash an amount sufficient to satisfy any related
federal, state and local taxes to be withheld and applied to the tax
obligations.  With the approval of the
Administrator, a Participant may satisfy the foregoing requirement by electing
to have the Company withhold from delivery of Shares or by delivering already
owned unrestricted Common Shares, in each case, having a value not exceeding
the federal, state and local taxes to be withheld and applied to the tax
obligations.  Such Shares shall be valued
at their Fair Market Value on the date of which the amount of tax to be
withheld is determined.  Fractional share
amounts shall be settled in cash.  Such an
election may be made with respect to all or any portion of the Shares to be
delivered pursuant to an award.  The
Company may also use any other method of obtaining the necessary payment or
proceeds, as permitted by law, to satisfy its withholding obligation with
respect to any Option or other Award.


 


Section 16.                                   Voting
Proxy.


 


The Company reserves the
right to require the Participant, to the fullest extent permitted by applicable
law, to appoint the Fortress Fund IV GP L.P. (or another person at the request
of the Fortress Fund IV GP L.P.) as the Participant’s proxy with respect to all
applicable unvested Awards of which the Participant may be the record holder of
from time to time to (A) attend all meetings of the holders of the Shares, with
full power to vote and act for the Participant with respect to such Awards in
the same manner and extent that the Participant might were the Participant
personally present at such meetings, and (B) execute and deliver, on behalf of
the Participant, any written consent in lieu of a meeting of the holders of the
Shares in the same manner and extent that the Participant might but for the
proxy granted pursuant to this sentence.


 


Section 17.                                   Transfer of Awards.


 


Until such time as the
Awards are fully vested and/or exercisable in accordance with the Plan or an
Award Agreement, no purported sale, assignment, mortgage, hypothecation,
transfer, charge, pledge, encumbrance, gift, transfer in trust (voting or
other) or other disposition of, or creation of a security interest in or lien
on, any Award or any agreement or commitment to do any of the foregoing (each,
a “Transfer”) 


 


18

















 


by any holder thereof in violation of the
provisions of the Plan or an Award Agreement will be valid, except with the
prior written consent of the Administrator, which consent may be granted or
withheld in the sole discretion of the Administrator.  Any purported Transfer of an Award or any
economic benefit or interest therein in violation of the Plan or an Award
Agreement shall be null and void ab initio, and
shall not create any obligation or liability of the Company, and any person
purportedly acquiring any Award or any economic benefit or interest therein
transferred in violation of the Plan or an Award Agreement shall not be
entitled to be recognized as a holder of such Shares.  Unless otherwise determined by the
Administrator in accordance with the provisions of the immediately preceding
sentence, an Option may be exercised, during the lifetime of the Participant,
only by the Participant or, during any period during which the Participant is
under a legal disability, by the Participant’s guardian or legal
representative.


 


Section 18.                                   Continued
Employment.


 


The adoption of the Plan
shall not confer upon any Eligible Recipient any right to continued employment
or service with the Company or any Affiliate thereof, as the case may be, nor
shall it interfere in any way with the right of the Company or any Affiliate
thereof to terminate the employment or service of any of its Eligible
Recipients at any time.


 


Section 19.                                   Effective Date.


 


The Plan was adopted by the Board on           ,
2010, and shall become effective without further action as of the later of (a) the
effectiveness of the Company’s registration statement on Form S-1 filed with
the U.S. Securities and Exchange Commission on March 29, 2010, as amended, and (b)
the Common Shares being listed or approved for listing upon notice of issuance
on the New York Stock Exchange (the date of such effectiveness, the “Effective
Date”).


 


Section 20.                                   Term of Plan.


 


No award shall be granted
pursuant to the Plan on or after the tenth anniversary of the Effective Date,
but awards theretofore granted may extend beyond that date.


 


Section 21.                                   Section
409A of the Code.


 


The
intent of the parties is that payments and benefits under the Plan comply with Section
409A of the Code to the extent subject thereto, and, accordingly, to the
maximum extent permitted, the Plan shall be interpreted and be administered to
be in compliance therewith.  Any payments
described in the Plan that are due within the “short-term deferral period” as
defined in Section 409A of the Code shall not be treated as deferred
compensation unless applicable law requires otherwise.  Notwithstanding anything to the contrary in
the Plan, to the extent required in order to avoid accelerated taxation and/or
tax penalties under Section 409A of the Code, amounts that would otherwise be
payable and benefits that would otherwise be provided pursuant to the Plan during
the six (6) month period immediately following the Participant’s termination of



 


19

















 


employment shall instead be paid on the first
business day after the date that is six (6) months following the Participant’s
separation from service (or upon the Participant’s death, if earlier).  In addition, for purposes of the Plan, each
amount to be paid or benefit to be provided to the Participant pursuant to the
Plan, which constitute deferred compensation subject to Section 409A of the
Code, shall be construed as a separate identified payment for purposes of Section
409A of the Code.


 


Section 22.                                   Governing Law.


 


The Plan shall be governed by and construed in accordance with the laws
of the State of Delaware, without giving effect to principles of conflicts of
law of such state.


 


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