Exhibit 4.6





Exhibit 4.6




JOS. A. BANK CLOTHIERS, INC.

2010 EQUITY INCENTIVE PLAN




1. Purpose; Types of Awards.




The purposes of the JOS. A. BANK CLOTHIERS, INC. 2010 Equity Incentive Plan (the “Plan”) are to
promote the interests of the Company and its Subsidiaries and the stockholders of the Company by
providing officers, employees, non-employee directors and consultants of the Company and its
Subsidiaries with appropriate incentives and rewards to encourage them to enter into and continue
in the employ or service of the Company or its Subsidiaries, to acquire a proprietary interest in
the long-term success of the Company and to reward the performance of individuals in fulfilling
their personal responsibilities for long-range and annual achievements. The Plan provides for the
grant of Options (including “incentive stock options” and “nonqualified stock options”), Stock
Appreciation Rights, Restricted Stock, Restricted Stock Units and Other Stock- or Cash-Based
Awards. The Plan is designed to permit Awards granted to Covered Employees hereunder to comply with
the requirements for “performance-based compensation” under Section 162(m) of the Code.



2. Definitions.




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




	 	(a)	 	“Annual Incentive Program” means those annual incentives provided under the
terms of the Jos. A. Bank Clothiers, Inc. Executive Management Incentive Plan (the
“EMIP”).






	 	(b)	 	“Award” means any Option, SAR, Restricted Stock, Restricted Stock Unit, Other
Stock-Based Award or Other Cash-Based Award or award under the Annual Incentive Program
granted under the Plan.






	 	(c)	 	“Award Agreement” means any written agreement, contract, notice or other
instrument or document evidencing an Award.
	 
	 	(d)	 	“Board” means the Board of Directors of the Company.






	 	(e)	 	A “Change in Control” of the Company or any Subsidiary (an “Employing Company”)
shall be deemed to have occurred if an event set forth in any one of the following
paragraphs shall have occurred:






	 	(i)	 	A Person, or more than one Person acting as a group, become(s) the Beneficial
Owner (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of
stock of the Employing Company that, together with the stock held by such Person
or group, constitutes 51% or more of the combined total fair market value or
voting power of the Employing Company’s then outstanding securities; or






	 	(ii)	 	A Person, or more than one Person acting as a group, acquires (or has
acquired during the 12 month period ending on the date of the most recent
acquisition by such Person or Persons) ownership of stock of the Employing Company
possessing 30% or more of the combined voting power of the outstanding securities
of the Employing Company and at least a majority of the members of the board of
directors of the Employing Company is replaced during any 12-month period by
directors whose appointment or election is not endorsed by a majority of the
members of such board prior to the date of the appointment or election and at the
time such directors are replaced no other corporation is a majority stockholder of
the Employing Company (that is, a change in the board of directors of a Subsidiary
of the Company will not be relevant in determining the existence of a Change in
Control); or




 


 









 











	 	(iii)	 	a merger or consolidation of the Employing Company is consummated with any
other corporation, other than a merger or consolidation immediately following
which would result in the holders of the voting securities of the Employing
Company outstanding immediately prior thereto continuing to hold (either by
remaining outstanding or being converted into voting securities of the surviving
entity) at least 70% of the combined voting power of the voting securities of the
Employing Company, or such surviving entity or its parent company, outstanding
immediately after such merger or consolidation; or






	 	(iv)	 	the stockholders of the Employing Company approve a plan of complete
liquidation or dissolution of the Employing Company or there is consummated an
agreement for a sale or disposition by the Employing Company of all or
substantially all of such Company’s assets, other than a liquidation or sale which
would result in the holders of the voting securities of the Employing Company
immediately prior thereto continuing to hold at least 70% of the combined voting
power of the successor entity immediately following such liquidation or sale.






	 	 	 	Notwithstanding the foregoing, to the extent that a Change in Control is a payment
trigger under the terms of this Plan or any Award Agreement regardless whether or not
the Grantee separates from service (within the meaning of Code Section 409A and
regulations issued thereunder), a Change in Control shall not be deemed to have
occurred unless such transaction or occurrences constitutes a change in ownership or
effective control, or change in ownership of a substantial portion of the assets of
the Employing Company, within the meaning of Section 409A(a)(2)(A)(v) and Treasury
regulation Section 1.409A-3(i)(5). An event shall constitute a Change in Control with
respect to a Grantee only if the Grantee performs services for the Employing Company
that has experienced the Change in Control, or the Grantee’s relationship to the
affected Company or Subsidiary otherwise satisfies the requirements of Treasury
Regulation Section 1.409A-3(i)(5)(ii).
	 
	 	(f)	 	“Code” means the Internal Revenue Code of 1986, as amended from time to time.






	 	(g)	 	“Committee” shall mean the Compensation Committee of the Board, or such other
committee as may be designated by the Board, which shall in either case consist of two
or more persons, each of whom is an “outside director” within the meaning of
Section 162(m) of the Code and a “non-employee director” within the meaning of
Rule 16b-3 of the Exchange Act. The term “Committee” shall also mean any committee of
one or more Company directors designated by the Board to make Awards under this Plan
within the limits specified in the resolutions of the Board designating such committee;
provided, however, in no event shall such committee make Awards under this Plan to its
members, officers subject to Section 16 of the Exchange Act, directors of the Company,
or officers who are, or are reasonably expected to be, Covered Employees.






	 	(h)	 	“Company” means JOS. A. BANK CLOTHIERS, INC., a corporation organized under the
laws of the State of Delaware, or any successor corporation.






	 	(i)	 	“Covered Employee” shall have the meaning set forth in Section 162(m)(3) of the
Code.






	 	(j)	 	“Exchange Act” means the Securities Exchange Act of 1934, as amended from time
to time, and as now or hereafter construed, interpreted and applied by regulations,
rulings and cases.






	 	(k)	 	“Fair Market Value” means as (i) the closing reported sales price per share of
Stock on the national securities exchange on which the Stock is principally traded, for
the relevant date (or, if there is no such closing sales price reported on the relevant
date, then on the immediately preceding day on which a closing sales price was
reported), or (ii) if the shares of Stock are then traded in an over-the-counter
market, the average of the closing reported bid and asked prices for the shares of
Stock in such over-the-counter market for the relevant date (or, if there are no such
closing bid and asked prices reported on the relevant date, then on the immediately
preceding day on which closing bid and asked prices were reported), or (iii) if the
 shares of Stock are not then listed on a national securities exchange or traded in an
over-the-counter market, such value as the Committee, in its sole discretion, shall
determine.




 


2









 






	 	(l)	 	“Grantee” means an employee, director or consultant of the Company or any
Subsidiary of the Company that has been granted an Award under the Plan.






	 	(m)	 	“ISO” means any Option intended to be and designated as an incentive stock
option within the meaning of Section 422 of the Code.






	 	(n)	 	“Long Term Incentive Program” means the program described in Section 6(b)
hereof.
	 
	 	(o)	 	“NQSO” means any Option that is not designated as an ISO.






	 	(p)	 	“Option” means a right, granted to a Grantee under Section 6(b)(i), to purchase
 shares of Stock. An Option may be either an ISO or an NQSO.






	 	(q)	 	“Other Cash-Based Award” means cash awarded under the Long Term Incentive
Program, including cash awarded as a bonus or upon the attainment of Performance Goals
or otherwise as permitted under the Plan.






	 	(r)	 	“Other Stock-Based Award” means a right or other interest granted to a Grantee
under the Long Term Incentive Program (not otherwise provided for in Sections
6(b)(i)-(iv) of the Plan) that may be denominated, payable or valued in whole or in
part by reference to Stock.






	 	(s)	 	“Performance Goals” means performance goals based on the attainment by the
Company of performance goals pre-established by the Committee, which in the case of an
Award intended to comply with Section 162(m) of the Code shall be based on one or more
of the following criteria: (i) net income (before or after taxes); (ii) earnings before
or after deduction for all or any portion of interest, taxes, minority interest,
depreciation and amortization, whether on an aggregate or per share basis; (iii)
increase in the trading price of the Company’s stock above the trading price at the
time the criteria is established; (iv) return on total stockholder equity; (v) working
capital; (vi) sales or revenues; (vii) cost management goals, including expense and
cost reductions or improvements in or attainment of expense levels; (viii) return
ratios based on equity, investment, capital employed and/or assets; (ix) inventory
levels, turns or aging, (x) operating ratios based on margin, income and/or net income;
(xi) market share; (xii) cash flow or operating cash flow; (xiii) increase, decrease or
ending balance of any item on the Company’s consolidated balance sheets; and (xiv) any
combination of the foregoing, including as compared to an index of one or more peer
group companies selected by the Committee. To the extent permitted under Section 162(m)
of the Code, or to the extent that an Award is not intended to constitute
performance-based compensation for purposes of Section 162(m), the Committee may
designate additional business criteria on which the performance goals may be based or
adjust, modify or amend the aforementioned business criteria.
	 
	 	 	 	Performance Goals may include a threshold level of performance below which no Award
will be earned, a level of performance at which the target amount of an Award will be
earned and a level of performance at which the maximum amount of the Award will be
earned. To the extent consistent with Section 162(m) and regulations issued
thereunder, the Committee shall have the authority to make equitable adjustments to
the Performance Goals in recognition of (i) changes in tax law or accounting
principles that become effective during the performance period; (ii) extraordinary,
unusual or infrequently occurring events affecting the Company or any Subsidiary of
the Company or the financial statements of the Company or any Subsidiary of the
Company; (iii) the disposition of a business or significant assets; (iv) gains or
losses from all or certain claims and/or litigation and insurance recoveries; (v) the
impact of impairment of tangible assets; (vi) restructuring activities; (vii) the
impact of investments or acquisitions; and/or (viii) changes in corporate
capitalization such as stock splits and certain reorganizations.






	 	(t)	 	“Person” shall have the meaning set forth 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 (1) the Company or any Subsidiary, (2) a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or any Subsidiary, (3) an underwriter temporarily holding securities pursuant
to an offering of such securities, or (4) a corporation owned, directly or indirectly,
by the stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.




 


3









 











	 	(u)	 	“Plan” means this JOS. A. BANK CLOTHIERS, INC. 2010 Equity Incentive Plan, as
amended from time to time.






	 	(v)	 	“Restricted Stock” means an Award of shares of Stock to a Grantee under
Section 6(b)(iii), the grant, issuance, vesting or retention of which are subject to
conditions specified by the Committee in the Award Agreement.






	 	(w)	 	“Restricted Stock Unit” means a right granted to a Grantee under
Section 6(b)(iv) to receive Stock or cash (as determined by the Committee and evidenced
in an Award Agreement) at the end of a specified period of time (upon vesting or at a
later date, consistent with Section 409A of the Code) in accordance with the terms of
such grant and/or upon the satisfaction of specified Performance Goals, all as
specified by the Committee in the Award Agreement.






	 	(x)	 	“Rule 16b-3” means Rule 16b-3, as from time to time in effect promulgated by
the Securities and Exchange Commission under Section 16 of the Exchange Act, including
any successor to such Rule.






	 	(y)	 	“Securities Act” means the Securities Act of 1933, as amended from time to
time, and as now or hereafter construed, interpreted and applied by regulations,
rulings and cases.






	 	(z)	 	“Stock” means shares of the common stock, par value $0.01 per share, of the
Company.






	 	(aa)	 	“Stock Appreciation Right” or “SAR” means the right, granted to a Grantee under
Section 6(b)(ii), to be paid an amount of Stock or cash or a combination of Stock and
cash, measured by the appreciation in the Fair Market Value of Stock from the date of
grant to the date of exercise of the right.






	 	(bb)	 	“Subsidiary” means any corporation or other entity in which the Company owns or
controls, directly or indirectly, 50% or more of the voting power or economic interests
of such corporation or entity.






	 	(cc)	 	“Total Authorized Shares” shall have the meaning set forth in Section 5 of the
Plan.





3. Administration.




The Plan shall be administered by the Committee, unless otherwise set forth herein or as otherwise
determined by the Board of Directors. Any actions that may or shall be taken by the Committee under
this Plan may also be taken by the Board of Directors. The Committee shall have the authority in
its discretion, subject to and not inconsistent with the express provisions of the Plan, to
administer the Plan and to exercise all the powers and authorities either specifically granted to
it under the Plan or necessary or advisable in the administration of the Plan, including, without
limitation, the authority to: (i) grant Awards; (ii) determine the persons to whom and the time or
times at which Awards shall be granted; (iii) determine the type and number of Awards to be
granted, the number of shares of Stock to which an Award may relate and the terms, conditions,
restrictions and performance criteria relating to any Award; (iv) to determine, and certify
attainment of, Performance Goals with regard to an Award that is intended to be Performance Based,
no later than such time as required to ensure that an underlying Award which is intended to comply
with the requirements of Section 162(m) of the Code so complies; (v) determine whether, to what
extent, and under what circumstances an Award may be settled, cancelled, forfeited, exchanged, or
surrendered; to make adjustments in the terms and conditions of, and the Performance Goals (if any)
included in, Awards; (vi) construe and interpret the Plan and any Award; (vii) prescribe, amend and
rescind rules and regulations relating to the Plan; (vii) determine the terms and provisions of the
Award Agreements (which need not be identical for each Grantee); and (viii) make all other
determinations deemed necessary or advisable for the administration of the Plan.


 


4









 





Notwithstanding the Committee’s determination that the performance objectives based solely on
Performance Goals was or were fully satisfied, except to the extent otherwise provided in an Award
Agreement, the Committee shall nevertheless have discretion to reduce an Award based on individual
performance as it considers appropriate in the circumstances, and may apply subjective,
discretionary criteria for this purpose.



Notwithstanding the foregoing, except in connection with a corporate transaction involving the
Company (including, without limitation, in connection with any stock dividend, stock split,
extraordinary cash dividend, recapitalization, reorganization, merger, consolidation, split-up,
spin-off, combination, or exchange of shares), the terms of outstanding awards may not be amended
to reduce the exercise price of outstanding Options or SARs or cancel outstanding Options or SARs
in exchange for cash, other awards or Options or SARs with an exercise price that is less than the
exercise price of the original options or SARs, without prior approval of the Company’s
stockholders.



All determinations of the Committee shall be made by a majority of its members either present in
person or participating by conference telephone at a meeting or by the consent in writing or
electronic transmission of all members of the Committee (unless such consent shall be restricted by
the Company’s certificate of incorporation or bylaws). The Committee may delegate to one or more
of its members or to one or more agents (as permitted by law) such administrative duties as it may
deem advisable, and the Committee or any person to whom it has delegated duties as aforesaid may
employ one or more persons to render advice with respect to any responsibility the Committee or
such person may have under the Plan. All decisions, determinations and interpretations of the
Committee shall be final and binding on all persons, including but not limited to the Company, any
Subsidiary of the Company, or Grantee (or any person claiming any rights under the Plan from or
through any Grantee) and any stockholder.



No member of the Board or Committee shall be liable for any action taken or determination made in
good faith with respect to the Plan or any Award granted hereunder. The Company shall indemnify (to
the extent permitted under Delaware law) and hold harmless each member of the Committee, and any
officer or employee of the Company acting at the direction of, or on behalf of, the Committee,
against any cost, expense or liability arising out of any action, omission or determination
relating to the Plan, unless such action or omission or determination was made in bad faith and
without reasonable belief that it was in the best interests of the Company.



4. Eligibility.




Awards may be granted to employees, directors and consultants of the Company or of its
Subsidiaries, expressly provided, however, that ISOs may only be granted to employees of the
Company or a Subsidiary. In determining the persons to whom Awards shall be granted and the number
of Shares to be covered by each Award, the Committee shall take into account the duties of the
respective persons, their present and potential contributions to the success of the Company and
such other factors as the Committee shall deem relevant in connection with accomplishing the
purposes of the Plan.



5. Stock Subject to the Plan.




The maximum number of shares of Stock reserved for the grant of Awards under the Plan (“Total
Authorized Shares”) shall be 1,000,000. Subject to adjustment as provided herein, no more than
125,000 of the Total Authorized Shares may be awarded under any provision of the Plan in the
aggregate in respect of Awards to any individual in a single calendar year. To the extent that
awards made under the terms of the EMIP are settled in shares of Stock, or that Awards granted
under this Plan are deferred under the terms of the Jos. A. Bank Clothiers, Inc. 2010 Deferred
Compensation Plan (the “2010 Deferred Compensation Plan”), such Stock shall be drawn from this Plan
and count against the Total Authorized Shares hereunder. Total Authorized Shares 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.


 


5









 





Shares shall be counted against those reserved to the extent such shares have been delivered and
are no longer subject to a risk of forfeiture. Subject to the following sentence, if any shares
subject to an Award are forfeited, cancelled, exchanged or surrendered or if an Award terminates or
expires without a distribution of shares to the Grantee, the shares of stock with respect to such
Award shall, to the extent of any such forfeiture, cancellation, exchange, surrender, termination
or expiration, again be available for Awards under the Plan. However, the following shares shall
not be available for future grant or added to the aggregate Plan limits specified in the preceding
paragraph: (i) shares tendered in payment of the exercise price of an Option, (ii) shares withheld
by the Company or otherwise received by the Company to satisfy tax withholding obligations, and
(iii) shares of Stock repurchased by the Company with Option proceeds. To the extent that an
Option or SAR is cancelled and or re-priced, such Option or SAR continues to be counted against the
maximum share limit that may be granted with respect to any Covered Employee with respect to any
calendar year. Upon the exercise of any Award granted in tandem with any other Award, such related
Award shall be cancelled to the extent of the number of shares of Stock as to which the Award is
exercised and such number of shares shall no longer be available for Awards under the Plan. All
shares of Stock covered by a Stock Appreciation Right shall be counted against the Total Authorized
Shares.



In the event of a dividend (other than a normal cash dividend) or other distribution (whether in
the form of cash, Stock, or other property), recapitalization, stock split, reverse split,
reorganization, merger, consolidation, spin-off, combination, or share exchange, or other similar
corporate transaction or event which affects the Stock, the Committee shall appropriately adjust
the number and kind of shares of Stock or other property (including cash) that may thereafter be
issued in connection with new Awards and shall also adjust, in each case, in order to prevent
dilution or enlargement of the rights of Grantees under the Plan, (i) the number and kind of shares
of Stock or other property (including cash) issued or issuable in respect of outstanding Awards,
(ii) the exercise price, grant price, or purchase price relating to any outstanding Award,
provided, that, with respect to ISOs, such adjustment shall be made in accordance with
Section 424(h) of the Code; and (iii) if applicable and to the extent the Committee determines to
be appropriate, the Performance Goals applicable to outstanding Awards. The Committee shall have
the authority to determine the specific adjustments that shall be made in each case in order to
achieve the objectives stated in the preceding sentence. The decision of the Committee regarding
any such adjustment shall be final, binding and conclusive.



6. Specific Terms of Awards.





	 	(a)	 	General. The Committee, on behalf of the Company, is authorized under this
Plan to grant the following types of Awards provided that their terms are consistent
with the provisions of the Plan: Options including ISOs and NQSOs; Stock Appreciation
Rights; Restricted Stock; Restricted Stock Units; and Other Cash- and Other Stock-Based
Awards. The terms of each Award shall be determined by the Committee consistent with
the Plan’s terms and may include terms requiring forfeiture of Awards in certain
circumstances. In addition to the foregoing, the Committee may impose on any Award or
the exercise thereof, at the date of grant or thereafter, such additional terms and
conditions, not inconsistent with the provisions of the Plan, as the Committee shall
determine.
	 
	 	 	 	Awards under the Plan may be made subject to the satisfaction of one or more
Performance Goals. Performance Goals shall be established by the Committee in writing
no later than ninety (90) days after the commencement of each performance period (or
the date on which 25% of the performance period has elapsed, if earlier); provided
that Performance Goals must be substantially uncertain to be achieved at the time the
Committee establishes the Performance Goals. The Committee may apply those Performance
Goals on a corporate-wide, Subsidiary or division/business segment basis; provided,
however, that the Committee may not increase the amount of compensation payable to a
Covered Employee upon the satisfaction of Performance Goals from that amount to which
the Covered Employee would have been entitled based on his or her attainment of the
Performance Goals.
	 
	 	 	 	The vesting of any or all Awards (and, with respect to Options and Stock Appreciation
Rights, the time at which such Awards may be exercised) may be accelerated in full or
in part to any date as the Committee shall determine with respect to any Grantee or
all Grantees and, with respect to such Grantee or Grantees, the Committee may further
determine that any reacquisition or repurchase rights held by the Company with respect
to an Award shall lapse in full or in part as of any date.




 


6









 











	 	(b)	 	Long Term Incentive Program. The Committee is authorized to grant the Awards
described in this Section 6(b), under such terms and conditions as deemed by the
Committee to be consistent with the purposes of the Plan. Such Awards may be granted
with value and payment contingent upon the attainment of Performance Goals. Each Award
granted under the Long Term Incentive Program shall be evidenced by an Award Agreement
containing such terms and conditions applicable to such Award as the Committee shall
determine at the date of grant or thereafter.






	 	(i)	 	Options. The Committee is authorized to grant Options to
Grantees on the following terms and conditions:






	 	(A)	 	Type of Award. The Award Agreement evidencing
the grant of an Option under the Plan shall designate the Option as an
ISO or an NQSO. No Grantee shall have any rights as a stockholder with
respect to any shares subject to Stock Options under the Plan until
said shares have been issued.






	 	(B)	 	Exercise Price. The exercise price per share
of Stock purchasable under an Option shall be determined by the
Committee, but in no event shall the exercise price of any Option be
less than 100% of the Fair Market Value of a share of Stock on the date
of grant of such Option. The exercise price for Stock subject to an
Option may be paid in cash or by an exchange of Stock previously owned
by the Grantee (subject to such conditions as may be imposed by the
Committee), through a “broker cashless exercise” procedure approved by
the Committee, a combination of the above, or any other method approved
the Committee, in any case in an amount having a combined value equal
to such exercise price.
	 
	 	(C)	 	Limitations on Incentive Options.






(i) ISOs may only be granted to employees of the Company. No
non-employee directors or consultants may be granted ISOs.




(ii) To the extent that the aggregate Fair Market Value of Stock
of the Company with respect to which the ISOs are exercisable for the
first time by an employee during any calendar year under the Plan
exceeds $100,000 (including under any other option plan of the Company
or any Subsidiary of the Company), the Options in excess of this limit
shall be treated as NQSOs. Fair Market Value shall be determined as of
the date on which each such ISO is granted.




(iii) No ISO may be granted to an individual if, at the time of
such grant, such individual owns (or is considered to own with Code
attribution rules) Stock possessing more than ten (10) percent of the
combined voting power of all classes of Stock of the Company(or any
Subsidiary) unless (A) the exercise price of such ISO is at least 110%
of the Fair Market Value of a share of Stock at the time the ISO is
granted, and (B) such ISO is not exercisable after the expiration of
five years from the date of grant.




	 	(D)	 	Term and Exercisability of Options. Unless the
Committee determines otherwise, the date on which the Committee adopts
a resolution expressly granting an Option shall be considered the day
on which such Option is granted. Options shall be exercisable over the
exercise period (which shall not exceed ten years from the date of
grant), at such times and upon such conditions as the Committee may
determine, as reflected in the Award Agreement. An Option may be
exercised to the extent of any or all full shares of Stock as to which
the Option has become exercisable (as provided in the Award Agreement),
by giving written notice of such exercise to the Committee or its
designated agent or by such other procedures as the Committee may adopt
or authorize.




 


7









 











	 	(E)	 	Termination of Employment, etc. An Option may
not be exercised unless the Grantee is then a director of, in the
employ of, or a consultant of, the Company or a Subsidiary of the
Company, and unless the Grantee has remained continuously so employed,
or continuously maintained such a relationship, since the date of grant
of the Option; provided, that (i) the Award Agreement may contain
provisions extending the exercisability of Options, in the event of
specified terminations, to a date not later than the expiration date of
such Option, and (ii) any Option that is exercised by an employee more
than three months after his or her termination of employment will not
be an ISO, but may be exercisable as a non-qualified Option to the
extent permitted by the terms of the Award Agreement.






	 	(F)	 	Other Provisions; No Deferral of Options
Permitted; No Reload Rights. Options may be subject to such other
conditions including, but not limited to, restrictions on
transferability of the shares acquired upon exercise of such Options,
as the Committee may prescribe in its discretion or as may be required
by applicable law. No provisions may be included, however, that would
permit the deferral of options or option gains. No Options shall be
granted in the Plan that contain reload rights upon exercise.






	 	(ii)	 	SARs. The Committee is authorized to grant SARs to Grantees on
the following terms and conditions:






	 	(A)	 	SARs Generally. A SAR shall confer on the
Grantee a right to receive an amount with respect to each share subject
thereto, upon exercise thereof, equal to the excess of (1) the Fair
Market Value of one share of Stock on the date of exercise over (2) the
grant price of the SAR (which shall be the Fair Market Value of one
share of Stock on the date of the SAR grant). Payment of a SAR may be
made in cash or Stock or a combination of cash and Stock, as determined
by the Committee and specified in the Award Agreement. The maximum term
of any SAR shall be ten years from the date of grant. No SARs may be
granted with any deferral rights; and no Grantee shall have any rights
as a stockholder with respect to any shares subject to SARs under the
Plan until said shares have been issued.






	 	(B)	 	Tandem SARs. SARs may be granted independently
or in tandem with an Option. Unless the Committee determines otherwise,
a SAR (1) granted in tandem with an NQSO may be granted at the time of
grant of the related NQSO or at any time thereafter or (2) granted in
tandem with an ISO may only be granted at the time of grant of the
related ISO. A SAR granted in tandem with an Option shall be
exercisable only to the extent the underlying Option is exercisable,
and shall be exercised at the same time that the underlying Option is
exercised.






	 	(iii)	 	Restricted Stock. The Committee is authorized to grant
Restricted Stock to Grantees on the following terms and conditions:






	 	(A)	 	Issuance and Restrictions. The Committee is
authorized to grant Awards of Restricted Stock subject to such
restrictions on transferability, vesting and other restrictions, if
any, as the Committee may impose, all of which shall be set forth in a
Restricted Stock Award Agreement. Notwithstanding the foregoing, except
as provided in Section 7 (Change in Control), any vesting restrictions
that are based only on continued employment as an employee for a
specified period of time shall not lapse fewer than three years after
the date of grant of the Award; provided that such vesting may occur
over the three year vesting period. The Committee may place
restrictions on Restricted Stock that lapse, in whole or in part, upon
the attainment of Performance Goals, where the performance period is
for a minimum of one year (except as provided otherwise in Section 7).
Notwithstanding anything
to the contrary set forth in this Section 6(b)(iii)(A), the Committee
may grant, in its discretion, Awards of Restricted Stock that are not
subject to the vesting limitations set forth in this paragraph,
provided that such Awards, when combined with the Awards described in
Section 6(b)(iv)(A) shall not exceed, in the aggregate, 10% of the
Total Authorized Shares.




 


8









 











	 	(B)	 	Except to the extent restricted under the Award
Agreement relating to the Restricted Stock, a Grantee granted
Restricted Stock shall have all of the rights of a stockholder
including, without limitation, the right to vote Restricted Stock and
the right to receive dividends thereon.






	 	(C)	 	Forfeiture. Upon termination of employment
with or service to the Company or any Subsidiary of the Company, during
the applicable restriction period, Restricted Stock shall be forfeited;
provided, that the Committee may provide, by rule or regulation or in
any Award Agreement, or may determine in any individual case, that
restrictions or forfeiture conditions relating to Restricted Stock will
be waived in whole or in part in the event of death, disability, Change
in Control, and separation from service (except for cause); provided,
however, that in the case of performance-based Restricted Stock Awards
that are intended to be performance-based compensation for purposes of
Section 162(m), such forfeiture conditions may lapse upon separation
from service (for reasons other than death, disability or Change in
Control), only to the extent that the Performance Goals are achieved.






	 	(D)	 	Certificates for Stock; Book Entry. Restricted
Stock granted under the Plan may be evidenced in such manner as the
Committee shall determine. If certificates representing Restricted
Stock are registered in the name of the Grantee, such certificates
shall bear an appropriate legend referring to the terms, conditions,
and restrictions applicable to such Restricted Stock, and the Company
shall retain physical possession of the certificate until all
restrictions have lapsed. Alternatively, if the Committee directs, all
 shares of Restricted Stock shall be held at the Company’s transfer
agent in book entry form with appropriate restrictions relating to the
transfer of such shares of Restricted Stock being noted.






	 	(E)	 	Dividends. Dividends paid on Restricted
Stock shall, at the discretion of the Committee, be paid at the
dividend payment date either in cash or in shares of Stock having a
Fair Market Value equal to the amount of such dividends. Stock
distributed in connection with a stock split or a stock dividend,
Stock distributed in connection with a special dividend, and any
property other than Stock or cash distributed as a dividend, shall be
subject to restrictions and a risk of forfeiture to the same extent as
the Restricted Stock with respect to which such Stock or other
property has been distributed.






	 	(iv)	 	Restricted Stock Units. The Committee is authorized to
grant Restricted Stock Units to Grantees, subject to the following terms and
conditions:






	 	(A)	 	Award and Restrictions. The Committee is
authorized to grant Awards of Restricted Stock Units subject to such
restrictions on transferability, vesting and other conditions, if any,
as the Committee may impose, all of which shall be set forth in a
Restricted Stock Unit Award Agreement. Notwithstanding the foregoing,
except as provided in Section 7 (Change in Control), any vesting
restrictions that are based only on continued employment as an employee
for a specified period of time shall not lapse fewer than three years
after the date of grant of the Award; provided that such vesting may
occur over the three year vesting period. The Committee may place
restrictions on Restricted Stock Units that lapse, in whole or in part,
upon the attainment of Performance Goals, where the performance period
is for a minimum
of one year (except as provided otherwise in Section 7).
Notwithstanding anything to the contrary set forth in this Section
6(b)(iv)(A), the Committee may grant, in its discretion, Awards of
Restricted Stock Units that are not subject to the vesting limitations
set forth in this paragraph, provided that such Awards, when combined
with the Awards described in Section 6(b)(iii)(A) shall not exceed, in
the aggregate, 10% of the Total Authorized Shares.




 


9









 











	 	(B)	 	Unless the Grantee has made a timely election
to defer receipt of shares to be delivered pursuant to an award of
Restricted Stock Units in accordance with Section 6(b)(iv)(D) of this
Plan and the terms of the 2010 Deferred Compensation Plan, delivery of
Stock or cash, as determined by the Committee in the Award Agreement,
will occur upon expiration of the vesting and delivery period specified
for the particular Award of Restricted Stock Units.






	 	(C)	 	Forfeiture. Upon termination of employment
with, or service to, the Company or any Subsidiary of the Company,
during the period to which forfeiture conditions apply, or upon failure
to satisfy any other conditions precedent to the delivery of Stock or
cash to which such Restricted Stock Units relate, all Restricted Stock
Units and accrued but unpaid dividend equivalents, if any, that are
then subject to deferral or restriction shall be forfeited; provided,
that the Committee may provide in any Award Agreement, or may determine
in any individual case, that restrictions or forfeiture conditions
relating to Restricted Stock Units will be waived in whole or in part
in the event of death, disability, Change in Control, and separation
from service (except for cause); provided, however, that in the case of
performance based Restricted Stock Units, such forfeiture conditions
may lapse upon separation from service (for reasons other than death,
disability or Change in Control), only to the extent that the
Performance Goals are achieved.






	 	(D)	 	Deferral of Receipt of RSU Shares. To the
extent permitted by the Committee or the terms of an RSU Award (or any
Performance Based Award under which an RSU Award may be granted), the
Grantee may elect to defer the delivery of shares of Stock that
otherwise would be due upon the satisfaction, lapse or waiver of
restrictions with respect to such RSUs, by timely filing a deferral
election in accordance with the terms of the 2010 Deferred Compensation
Plan. The deferral, if elected, will result in the transfer of the RSUs
into the 2010 Deferred Compensation Plan’s Stock Equivalent Fund in
effect at the time the shares deliverable pursuant to the RSUs would
have otherwise been distributed. The 2010 Deferred Compensation Plan
rules will govern the administration of this Award beginning on the
date the RSUs vest and are credited to the 2010 Deferred Compensation
Plan.






	 	(E)	 	Dividend Equivalents. If so provided in the
terms of the RSU Award, with respect to each cash dividend or other
distribution (if any) paid with respect to the Stock of the Company to
holders of record on and after the Grant Date, a number a shares of
Stock shall be accrued on the records of the Company, in an amount
equal to the product of (i) the amount of such dividend or other
distribution paid with respect to one share of Stock, multiplied by
(ii) the number of RSUs granted hereunder, and (iii) divided by the
Fair Market Value of one share of Stock on the applicable dividend or
distribution payment date for the dividend or other distribution, which
amount shall be credited in the form of additional RSUs on such date.
No Dividend Equivalents shall be paid to the Grantee prior to the
settlement of the Award. Rather, such Dividend Equivalent payments
shall accrue and be notionally credited and paid out upon settlement of
the Award with the same form of consideration used to settle to the
underlying RSUs. At such time(s) as the Grantee receives a
distribution of shares of Stock or cash in respect to vested RSUs (or
deferred, vested RSUs, as applicable), the Company shall also
distribute such number of shares of Stock or cash as are accrued under
this paragraph. To the extent that an RSU Award is
intended to be performance-based compensation for purposes of
Section 162(m), no Dividend Equivalents shall be paid with respect to a
RSU Award to the extent that Performance Goals are not achieved.




 


10









 











	 	(v)	 	Other Stock- or Cash-Based Awards. The Committee is authorized
to grant Awards to Grantees in the form of Other Stock-Based Awards or Other
Cash-Based Awards, as deemed by the Committee to be consistent with the
purposes of the Plan. Awards granted pursuant to this paragraph may be granted
with value and payment contingent upon Performance Goals. Notwithstanding the
foregoing, except as provided in Section 7 (Change in Control), any vesting
restrictions that are based only on continued employment as an employee for a
specified period of time shall not lapse fewer than three years after the date
of grant of the Award; provided that such vesting may occur over the three year
vesting period. If provided by the terms of the Award, Dividend Equivalents
may be credited on Other Stock-Based Awards, in the same manner, and to the
same extent as with respect to Restricted Stock Units; and no Dividend
Equivalents shall be paid on Other-Stock-Based Awards that do not vest. The
Committee shall determine the terms and conditions of such Awards at the date
of grant or thereafter. The maximum payment that any Grantee may receive with
respect to Other Cash -Based Awards pursuant to this Section 6(b)(v) in respect
of any annual (or shorter) performance period is $5,000,000. For any other
performance period in excess of one year, such amount shall be multiplied by a
fraction, the numerator of which is the number of months in the performance
period and the denominator of which is twelve. Payments earned hereunder may be
decreased in the sole discretion of the Committee based on individual
performance and such other factors as it deems appropriate in the
circumstances. No payment shall be made to a Covered Employee prior to the
certification by the Committee that the Performance Goals have been attained.
The Committee may establish such other rules applicable to the Other Stock- or
Cash-Based Awards to the extent not inconsistent with Section 162(m) of the
Code (if such Awards are intended to be performance-based compensation for
purposes of Section 162(m)).






	 	(c)	 	Annual Incentive Program. The Committee is authorized to grant Awards to
Grantees pursuant to the Annual Incentive Program, under such terms and conditions as
deemed by the Committee to be consistent with the purposes of the Plan. The maximum
value of the aggregate payment that any Grantee may receive under the Annual Incentive
Program in respect of any calendar year is the dollar limit specified in the EMIP,
which limit is incorporated herein by reference. Payments earned hereunder may be
decreased in the sole discretion of the Committee based on individual performance and
such other factors as it deems appropriate in the circumstances. No payment shall be
made to a Covered Employee prior to the certification by the Committee that the
Performance Goals have been attained (if such Award is intended to be performance-based
compensation for purposes of Section 162(m)). The Committee may establish such other
rules applicable to the Annual Incentive Program to the extent not inconsistent with
Section 162(m) of the Code (if such Awards are intended to be performance-based
compensation for purposes of Section 162(m)).






	 	(d)	 	Automatic Awards to Non-Employee Directors. Unless the Committee determines in
its discretion to make a lesser Award or no Award, (i) any person who first becomes a
non-employee director of the Company after the Effective Date (as defined in Section
8(d) of the Plan), shall automatically receive upon his or her election to the Board an
inaugural award of 1,000 Restricted Stock Units on such date and (ii) on each June 1
(or the next business day thereafter if June 1 shall not be a business day) after the
Effective Date, each person serving as a non-employee director of the Company on such
date shall receive an annual award of 1,500 Restricted Stock Units. Each of the
automatic Awards made pursuant to this Section 6(d) shall be on such vesting and other
terms as provided in the Company’s non-employee Directors’ Restricted Stock Unit Award
Agreement (or such other Award Agreement as shall be approved from time to time by the
Committee for such automatic grants). If a non-employee director ceases to serve as a
director of the Company for any reason, such non-employee director’s Restricted Stock
Units granted pursuant to this Section 6(d) shall terminate to the extent that the
vesting of such Restricted Stock Units has not been accelerated in accordance with the
terms thereof, and such former non-employee director shall have no rights with respect
to, or in respect of, such terminated Restricted Stock Units.




 


11









 










7. Change in Control Provisions.




Except as otherwise expressly provided by the terms of an Award Agreement, if there is a Change in
Control, then the Board, or the board of directors of any entity assuming the obligations of the
Company, shall take any one or more of the following actions as to outstanding Awards in its sole
and absolute discretion:




	 	(a)	 	Awards May Be Continued, Assumed or Substituted. Any surviving entity or
acquirer (or the surviving or acquiring entity’s parent company) may assume or
continue any or all Awards outstanding under the Plan or may substitute similar stock
awards for Awards outstanding under the Plan (including but not limited to, awards to
acquire the same consideration paid to the stockholders of the Company pursuant to the
Change in Control), and any reacquisition or repurchase rights held by the Company in
respect of Common Stock issued pursuant to Awards may be assigned by the Company to
the successor of the Company (or the successor’s parent company, if any), in
connection with such Change in Control. A surviving entity or acquirer (or its
parent) may choose to assume or continue only a portion of an Award or substitute a
similar award for only a portion of an Award, or may assume, continue or substitute
some Awards and not others.
	 
	 	(b)	 	Accelerated Vesting of Awards. The vesting of any or all Awards (and, with
respect to Options and Stock Appreciation Rights, the time at which such Awards may be
exercised) may be accelerated in full or in part to a date on or prior to the effective
time of such Change in Control (contingent upon the effectiveness of the Change in
Control) as the Board shall determine with respect to any Grantee or all Grantees and,
with respect to such Grantee or Grantees, the Board may further determine that any
reacquisition or repurchase rights held by the Company with respect to an Award shall
lapse in full or in part as of a date on or prior to the effective time of such Change
in Control (contingent upon the effectiveness of the Change in Control).
	 
	 	(c)	 	Payment for Awards in Lieu of Exercise. The Board may provide that the
holder of an Award may not exercise such Award but will receive a payment, in such form
of consideration as may be determined by the Board, equal in value to the excess, if
any, of (A) the value of the property the holder of the Award would have received upon
the exercise of the Award (including, at the discretion of the Board, any portion of
such Award whose vesting is accelerated as provided in (b) above), over (B) any
exercise price payable by such holder in connection with such exercise.





8. General Provisions.





	 	(a)	 	Nontransferability. Awards shall not be transferable by a Grantee except by
will or the laws of descent and distribution and shall be exercisable during the
lifetime of a Grantee only by such Grantee or his guardian or legal representative.






	 	(b)	 	No Right to Continued Employment, etc. Nothing in the Plan or in any Award, any
Award Agreement or other agreement entered into pursuant hereto shall confer upon any
Grantee the right to continue in the employ or service of the Company or Subsidiary of
the Company or to be entitled to any remuneration or benefits not set forth in the Plan
or such Award Agreement or other agreement or to interfere with or limit in any way the
right of the Company or any such Subsidiary to terminate such Grantee’s employment,
service or independent contractor relationship.






	 	(c)	 	Taxes. The Company or any Subsidiary of the Company is authorized to, and
shall, withhold from any Award granted, any payment relating to an Award under the
Plan, including from a distribution of Stock, or any other payment to a Grantee,
amounts of withholding and other taxes due in connection with any transaction involving
an Award, and to take such other action as the Committee may deem advisable to enable
the Company and Grantees to satisfy obligations for the payment of withholding taxes
and other tax obligations relating to any Award. This authority shall include authority
to withhold or receive Stock or other property and to make cash payments in respect
thereof in satisfaction of a Grantee’s tax obligations. The Committee may provide in
the Award Agreement that in the event that a Grantee is required to pay any amount to
be withheld in connection with the issuance of shares of Stock in settlement or
exercise of an Award, the Grantee shall or may satisfy such
obligation (in whole or in part) by electing to have withheld a portion of the shares
of Stock otherwise to be received upon settlement or exercise of such Award equal to
the minimum amount required to be withheld. All Awards made under the Plan are
intended to be exempt from, or to comply with, the requirements of Section 409A of the
Code and any regulations or guidance promulgated thereunder and the Plan and such
Awards shall be interpreted in a manner consistent with such interpretation.




 


12









 











	 	(d)	 	Stockholder Approval; Amendment and Termination.






	 	(i)	 	The Plan shall become effective on the date that it is approved
by the requisite vote of the Company’s stockholders (the “Effective Date”).






	 	(ii)	 	The Board may at any time and from time to time alter, amend,
suspend, or terminate the Plan in whole or in part; provided, however, that
unless otherwise determined by the Board, an amendment that requires
stockholder approval in order for the Plan to continue to comply with
Section 162(m) or any other law, regulation or stock exchange requirement shall
not be effective unless approved by the requisite vote of stockholders. Without
limiting the generality of the foregoing, stockholder approval shall be
required for any amendment to the Plan which (a) increases the maximum number
of shares of Stock available under the Plan, (b) changes the conditions for
eligibility to participate in the Plan, or (c) otherwise materially increases
the benefits accruing to Plan participants. Notwithstanding the foregoing, no
amendment to or termination of the Plan shall affect adversely any of the
rights of any Grantee, without such Grantee’s consent, under any Award
theretofore granted under the Plan.






	 	(e)	 	Expiration of Plan. Unless earlier terminated by the Board pursuant to the
provisions of the Plan, the Plan shall expire on the tenth anniversary of the date the
Plan is approved by the Company’s stockholders. No Awards shall be granted under the
Plan after such expiration date. The expiration of the Plan shall not affect adversely
any of the rights of any Grantee, without such Grantee’s consent, under any Award
theretofore granted.






	 	(f)	 	Deferrals. The Committee shall have the authority to establish such procedures
and programs that it deems appropriate to provide Grantees with the ability to defer
receipt of cash, Stock or other property payable with respect to Awards granted under
the Plan, consistent with the requirements of Section 409A of the Code. Notwithstanding
the foregoing, no deferrals shall be permitted with respect to Options, SARs or
Restricted Stock Awards.






	 	(g)	 	No Rights to Awards; No Stockholder Rights. No Grantee shall have any claim to
be granted any Award under the Plan, and there is no obligation for uniformity of
treatment of Grantees. Except as provided specifically herein, a Grantee or a
transferee of an Award shall have no rights as a stockholder with respect to any shares
covered by the Award until the date of the issuance of a stock certificate to him for
such shares or the issuance of shares to him in book-entry form.






	 	(h)	 	Unfunded Status of Awards. The Plan is intended to constitute an “unfunded”
plan for incentive and deferred compensation. With respect to any payments not yet made
to a Grantee pursuant to an Award, nothing contained in the Plan or any Award shall
give any such Grantee any rights that are greater than those of a general creditor of
the Company.






	 	(i)	 	No Fractional Shares. No fractional shares of Stock shall be required to be
issued or delivered pursuant to the Plan or any Award. The Committee shall determine
whether cash, other Awards, or other property shall be issued or paid in lieu of such
fractional shares or whether such fractional shares or any rights thereto shall be
forfeited or otherwise eliminated.




 


13









 











	 	(j)	 	Adjustment of Awards due to Restatement of Earnings. The Company will, to the
extent permitted by governing law, require reimbursement of any cash or equity-based
incentive compensation paid to any named executive officer (for purposes of this policy
“named executive officers” has the meaning given that term in Item 402(a)(3) of
Regulation S-K under the Securities Exchange Act of 1934) where: (i) the payment was
predicated upon the achievement of certain financial results that were subsequently
the subject of a substantial restatement, and (ii) in the Committee’s view the officer
engaged in fraud or misconduct that caused or partially caused the need for the
substantial restatement. In each instance described above, the Company will, to the
extent practicable, seek to recover the described cash or equity-based incentive
compensation for the relevant period, plus a reasonable rate of interest. In
addition, with respect to other Grantees, the Committee may make retroactive
adjustments to, and the Grantee shall reimburse to the Company, any cash or
equity-based incentive compensation paid to the Grantee) where such compensation was
predicated upon achieving certain financial results that were substantially the
subject of a restatement, and as a result of the restatement it is determined that the
Grantee otherwise would not have been paid such compensation, regardless of whether or
not the restatement resulted from the Grantee’s misconduct. In each such instance, the
Company will, to the extent practicable, seek to recover the amount by which the
Grantee’s cash or equity-based incentive compensation for the relevant period exceeded
the lower payment that would have been made based on the restated financial results.
	 
	 	(k)	 	Regulations and Other Approvals.






	 	(i)	 	The obligation of the Company to sell or deliver Stock with
respect to any Award granted under the Plan shall be subject to all applicable
laws, rules and regulations, including all applicable federal and state
securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Committee.






	 	(ii)	 	Each Award is subject to the requirement that, if at any time
the Committee determines, in its absolute discretion, that the listing,
registration or qualification of Stock issuable pursuant to the Plan is
required by any securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory body is necessary or
desirable as a condition of, or in connection with, the grant of an Award or
the issuance of Stock, no such Award shall be granted or payment made or Stock
issued, in whole or in part, unless listing, registration, qualification,
consent or approval has been effected or obtained free of any conditions not
acceptable to the Committee.






	 	(iii)	 	In the event that the disposition of Stock acquired pursuant
to the Plan is not covered by a then current registration statement under the
Securities Act and is not otherwise exempt from such registration, such Stock
shall be restricted against transfer to the extent required by the Securities
Act or regulations thereunder, and the Committee may require a Grantee
receiving Stock pursuant to the Plan, as a condition precedent to receipt of
such Stock, to represent to the Company in writing that the Stock acquired by
such Grantee is acquired for investment only and not with a view to
distribution.






	 	(iv)	 	The Committee may require a Grantee receiving Stock pursuant to
the Plan, as a condition precedent to receipt of such Stock, to enter into a
stockholder agreement or “lock-up” agreement in such form as the Committee
shall determine is necessary or desirable to further the Company’s interests.






	 	(l)	 	Governing Law. The Plan and all determinations made and actions taken pursuant
hereto shall be governed by the laws of the State of Delaware without giving effect to
the conflict of laws principles thereof.





Adopted by the Board of Directors: March 30, 2010




Approved by the Stockholders: June 17, 2010





 


14