EX-10.4






EXHIBIT 10.4




 






 




 




MOODY NATIONAL REIT I, INC.

LONG-TERM INCENTIVE PLAN




 




 




 






 









 








MOODY NATIONAL REIT I, INC.

LONG-TERM INCENTIVE PLAN




	 	 	 	 	 	 	 	 	 
	ARTICLE 1 PURPOSE	 	 	4	 
	 	 	 	 	 	 	 	 	 
	 	1.1	 	 	General 
	 	 	4	 
	 	 	 	 	 	 	 	 	 
	ARTICLE 2 DEFINITIONS	 	 	4	 
	 	 	 	 	 	 	 	 	 
	 	2.1	 	 	Definitions 
	 	 	4	 
	 	 	 	 	 	 	 	 	 
	ARTICLE 3 EFFECTIVE TERM OF PLAN	 	 	9	 
	 	 	 	 	 	 	 	 	 
	 	3.1	 	 	Effective Date 
	 	 	9	 
	 	 	 	 	 	 	 	 	 
	 	3.2	 	 	Term of Plan 
	 	 	9	 
	 	 	 	 	 	 	 	 	 
	ARTICLE 4 ADMINISTRATION	 	 	10	 
	 	 	 	 	 	 	 	 	 
	 	4.1	 	 	Committee 
	 	 	10	 
	 	 	 	 	 	 	 	 	 
	 	4.2	 	 	Actions and Interpretations by the Committee 
	 	 	10	 
	 	 	 	 	 	 	 	 	 
	 	4.3	 	 	Authority of Committee 
	 	 	10	 
	 	 	 	 	 	 	 	 	 
	 	4.4	 	 	Award Certificates 
	 	 	11	 
	 	 	 	 	 	 	 	 	 
	ARTICLE 5 SHARES SUBJECT TO THE PLAN	 	 	11	 
	 	 	 	 	 	 	 	 	 
	 	5.1	 	 	Number of Shares 
	 	 	11	 
	 	 	 	 	 	 	 	 	 
	 	5.2	 	 	Share Counting 
	 	 	11	 
	 	 	 	 	 	 	 	 	 
	 	5.3	 	 	Stock Distributed 
	 	 	12	 
	 	 	 	 	 	 	 	 	 
	ARTICLE 6 ELIGIBILITY	 	 	12	 
	 	 	 	 	 	 	 	 	 
	 	6.1	 	 	General 
	 	 	12	 
	 	 	 	 	 	 	 	 	 
	ARTICLE 7 STOCK OPTIONS	 	 	12	 
	 	 	 	 	 	 	 	 	 
	 	7.1	 	 	General 
	 	 	12	 
	 	 	 	 	 	 	 	 	 
	 	7.2	 	 	Incentive Stock Options 
	 	 	13	 
	 	 	 	 	 	 	 	 	 
	ARTICLE 8 STOCK APPRECIATION RIGHTS	 	 	13	 
	 	 	 	 	 	 	 	 	 
	 	8.1	 	 	Grant of Stock Appreciation Rights 
	 	 	13	 
	 	 	 	 	 	 	 	 	 
	ARTICLE 9 RESTRICTED STOCK, RESTRICTED STOCK UNITS AND DEFERRED STOCK UNITS	 	 	14	 
	 	 	 	 	 	 	 	 	 
	 	9.1	 	 	Grant of Restricted Stock, Restricted Stock Units and Deferred Stock Units
	 	 	14	 
	 	 	 	 	 	 	 	 	 
	 	9.2	 	 	Issuance and Restrictions 
	 	 	14	 
	 	 	 	 	 	 	 	 	 
	 	9.3	 	 	Forfeiture 
	 	 	14	 
	 	 	 	 	 	 	 	 	 
	 	9.4	 	 	Delivery of Restricted Stock 
	 	 	14	 
	 	 	 	 	 	 	 	 	 





 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	ARTICLE 10 PERFORMANCE AWARDS	 	 	14	 
	 	 	 	 	 	 	 	 	 
	 	10.1	 	 	Grant of Performance Awards 
	 	 	14	 
	 	 	 	 	 	 	 	 	 
	 	10.2	 	 	Performance Goals 
	 	 	15	 
	 	 	 	 	 	 	 	 	 
	ARTICLE 11 DIVIDEND EQUIVALENTS	 	 	15	 
	 	 	 	 	 	 	 	 	 
	 	11.1	 	 	Grant of Dividend Equivalents 
	 	 	15	 
	 	 	 	 	 	 	 	 	 
	ARTICLE 12 STOCK OR OTHER STOCK-BASED AWARDS	 	 	15	 
	 	 	 	 	 	 	 	 	 
	 	12.1	 	 	Grant of Stock or Other Stock-Based Awards 
	 	 	15	 
	 	 	 	 	 	 	 	 	 
	ARTICLE 13 PROVISIONS APPLICABLE TO AWARDS	 	 	16	 
	 	 	 	 	 	 	 	 	 
	 	13.1	 	 	Term of Awards 
	 	 	16	 
	 	 	 	 	 	 	 	 	 
	 	13.2	 	 	Form of Payment of Awards 
	 	 	16	 
	 	 	 	 	 	 	 	 	 
	 	13.3	 	 	Limits on Transfer 
	 	 	16	 
	 	 	 	 	 	 	 	 	 
	 	13.4	 	 	Beneficiaries 
	 	 	16	 
	 	 	 	 	 	 	 	 	 
	 	13.5	 	 	Stock Trading Restrictions 
	 	 	16	 
	 	 	 	 	 	 	 	 	 
	 	13.6	 	 	Acceleration for Any Other Reason 
	 	 	16	 
	 	 	 	 	 	 	 	 	 
	 	13.7	 	 	Forfeiture Events 
	 	 	17	 
	 	 	 	 	 	 	 	 	 
	 	13.8	 	 	Substitute Awards 
	 	 	17	 
	 	 	 	 	 	 	 	 	 
	ARTICLE 14 CHANGES IN CAPITAL STRUCTURE	 	 	17	 
	 	 	 	 	 	 	 	 	 
	 	14.1	 	 	Mandatory Adjustments 
	 	 	17	 
	 	 	 	 	 	 	 	 	 
	 	14.2	 	 	Discretionary Adjustments 
	 	 	17	 
	 	 	 	 	 	 	 	 	 
	 	14.3	 	 	General 
	 	 	18	 
	 	 	 	 	 	 	 	 	 
	ARTICLE 15 AMENDMENT, MODIFICATION AND TERMINATION	 	 	18	 
	 	 	 	 	 	 	 	 	 
	 	15.1	 	 	Amendment, Modification and Termination 
	 	 	18	 
	 	 	 	 	 	 	 	 	 
	 	15.2	 	 	Awards Previously Granted 
	 	 	18	 
	 	 	 	 	 	 	 	 	 
	 	15.3	 	 	Compliance Amendments 
	 	 	19	 
	 	 	 	 	 	 	 	 	 
	ARTICLE 16 GENERAL PROVISIONS	 	 	19	 
	 	 	 	 	 	 	 	 	 
	 	16.1	 	 	Rights of Participants 
	 	 	19	 
	 	 	 	 	 	 	 	 	 
	 	16.2	 	 	Withholding 
	 	 	20	 
	 	 	 	 	 	 	 	 	 
	 	16.3	 	 	Special Provisions Related to Section 409A of the Code 
	 	 	20	 
	 	 	 	 	 	 	 	 	 
	 	16.4	 	 	Unfunded Status of Awards 
	 	 	21	 
	 	 	 	 	 	 	 	 	 
	 	16.5	 	 	Relationship to Other Benefits 
	 	 	21	 
	 	 	 	 	 	 	 	 	 
	 	16.6	 	 	Expenses 
	 	 	21	 
	 	 	 	 	 	 	 	 	 





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	 	16.7	 	 	Titles and Headings 
	 	 	21	 
	 	 	 	 	 	 	 	 	 
	 	16.8	 	 	Gender and Number 
	 	 	21	 
	 	 	 	 	 	 	 	 	 
	 	16.9	 	 	Fractional Shares 
	 	 	21	 
	 	 	 	 	 	 	 	 	 
	 	16.10	 	 	Government and Other Regulations 
	 	 	22	 
	 	 	 	 	 	 	 	 	 
	 	16.11	 	 	Governing Law 
	 	 	22	 
	 	 	 	 	 	 	 	 	 
	 	16.12	 	 	Additional Provisions 
	 	 	22	 
	 	 	 	 	 	 	 	 	 
	 	16.13	 	 	No Limitations on Rights of Company 
	 	 	22	 
	 	 	 	 	 	 	 	 	 
	 	16.14	 	 	Indemnification 
	 	 	22	 







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MOODY NATIONAL REIT I, INC.

LONG-TERM INCENTIVE PLAN




ARTICLE 1

PURPOSE




     1.1. GENERAL. The purpose of the Moody National REIT I, Inc. Long-Term Incentive Plan
(the “Plan”) is to promote the success, and enhance the value, of Moody National REIT I, Inc. (the
“Company”), by linking the personal interests of employees, officers, directors and consultants of
the Company or any Affiliate (as defined below) to those of Company stockholders and by providing
such persons with an incentive for outstanding performance. The Plan is further intended to
provide flexibility to the Company in its ability to motivate, attract, and retain the services of
employees, officers, directors and consultants upon whose judgment, interest, and special effort
the successful conduct of the Company’s operation is largely dependent. Accordingly, the Plan
permits the grant of incentive awards from time to time to selected employees, officers, directors
and consultants of the Company and its Affiliates.



ARTICLE 2

DEFINITIONS




     2.1. DEFINITIONS. When a word or phrase appears in this Plan with the initial letter
capitalized, and the word or phrase does not commence a sentence, the word or phrase shall
generally be given the meaning ascribed to it in this Section or in Section 1.1 unless a clearly
different meaning is required by the context. The following words and phrases shall have the
following meanings:




     (a) “Affiliate” means (i) any Subsidiary or Parent, or (ii) an entity that directly or
through one or more intermediaries controls, is controlled by or is under common control
with, the Company, as determined by the Committee.




     (b) “Award” means any Option, Stock Appreciation Right, Restricted Stock, Restricted
Stock Unit, Deferred Stock Unit, Performance Award, Dividend Equivalent, Other Stock-Based
Award, or any other right or interest relating to Stock or cash, granted to a Participant
under the Plan.




     (c) “Award Certificate” means a written document, in such form as the Committee
prescribes from time to time, setting forth the terms and conditions of an Award. Award
Certificates may be in the form of individual award agreements or certificates or a program
document describing the terms and provisions of an Award or series of Awards under the
Plan. The Committee may provide for the use of electronic, internet or other non-paper
Award Certificates, and the use of electronic, internet or other non-paper means for the
acceptance thereof and actions thereunder by a Participant.




     (d) “Beneficial Owner” shall have the meaning given such term in Rule 13d-3 of the
General Rules and Regulations under the 1934 Act.




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




     (f) “Cause” as a reason for a Participant’s termination of employment shall



4









 







have the meaning assigned such term in the employment, severance or similar agreement,
if any, between such Participant and the Company or an Affiliate, provided, however that if
there is no such employment, severance or similar agreement in which such term is defined,
and unless otherwise defined in the applicable Award Certificate, “Cause” shall mean any of
the following acts by the Participant, as determined by the Committee: gross neglect of
duty, prolonged absence from duty without the consent of the Company, material breach by
the Participant of any published Company code of conduct or code of ethics; or willful
misconduct, misfeasance or malfeasance of duty which is reasonably determined to be
detrimental to the Company. With respect to a Participant’s termination of directorship,
“Cause” means an act or failure to act that constitutes cause for removal of a director
under applicable Maryland law. The determination of the Committee as to the existence of
“Cause” shall be conclusive on the Participant and the Company.




     (g) “Change in Control” means and includes the occurrence of any one of the following
events but shall specifically exclude a Public Offering:




     (i) individuals who, on the Effective Date, constitute the Board of Directors
of the Company (the “Incumbent Directors”) cease for any reason to constitute at
least a majority of such Board, provided that any person becoming a director after
the Effective Date and whose election or nomination for election was approved by a
vote of at least a majority of the Incumbent Directors then on the Board shall be
an Incumbent Director; provided, however, that no individual
initially elected or nominated as a director of the Company as a result of an
actual or threatened election contest with respect to the election or removal of
directors (“Election Contest”) or other actual or threatened solicitation of
proxies or consents by or on behalf of any Person other than the Board (“Proxy
Contest”), including by reason of any agreement intended to avoid or settle any
Election Contest or Proxy Contest, shall be deemed an Incumbent Director; or




     (ii) any person becomes a Beneficial Owner, directly or indirectly, of either
(A) 40% or more of the then-outstanding shares of common stock of the Company
(“Company Common Stock”) or (B) securities of the Company representing 40% or more
of the combined voting power of the Company’s then outstanding securities eligible
to vote for the election of directors (the “Company Voting Securities”);
provided, however, that for purposes of this subsection (ii), the
following acquisitions of Company Common Stock or Company Voting Securities shall
not constitute a Change in Control: (w) an acquisition directly from the Company,
(x) an acquisition by the Company or a Subsidiary, (y) an acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company or
any Subsidiary, or (z) an acquisition pursuant to a Non-Qualifying Transaction (as
defined in subsection (iii) below); or




     (iii) the consummation of a reorganization, merger, consolidation, statutory
share exchange or similar form of corporate transaction involving the Company or a
Subsidiary (a “Reorganization”), or the sale or other disposition of all or
substantially all of the Company’s assets (a “Sale”) or the acquisition of assets
or stock of another corporation or other entity (an “Acquisition”), unless
immediately following such Reorganization, Sale or Acquisition: (A) all or
substantially all of the individuals and entities who were the Beneficial Owners,
respectively, of the outstanding Company Common Stock and outstanding Company
Voting Securities immediately prior to such Reorganization, Sale or



5









 







Acquisition beneficially own, directly or indirectly, more than 40% of,
respectively, the then outstanding shares of common stock and the combined voting
power of the then outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the entity resulting from such
Reorganization, Sale or Acquisition (including, without limitation, an entity which
as a result of such transaction owns the Company or all or substantially all of the
Company’s assets or stock either directly or through one or more subsidiaries, the
“Surviving Entity”) in substantially the same proportions as their ownership,
immediately prior to such Reorganization, Sale or Acquisition, of the outstanding
Company Common Stock and the outstanding Company Voting Securities, as the case may
be, and (B) no person (other than (x) the Company or any Subsidiary, (y) the
Surviving Entity or its ultimate parent entity, or (z) any employee benefit plan
(or related trust) sponsored or maintained by any of the foregoing) is the
Beneficial Owner, directly or indirectly, of 40% or more of the total common stock
or 40% or more of the total voting power of the outstanding voting securities
eligible to elect directors of the Surviving Entity, and (C) at least a majority of
the members of the board of directors of the Surviving Entity were Incumbent
Directors at the time of the Board’s approval of the execution of the initial
agreement providing for such Reorganization, Sale or Acquisition (any
Reorganization, Sale or Acquisition which satisfies all of the criteria specified
in (A), (B) and (C) above shall be deemed to be a “Non-Qualifying Transaction”); or




     (iv) approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company.




     (h) “Charter” means the articles of incorporation of the Company, as such articles of
incorporation may be amended from time to time.




     (i) “Code” means the Internal Revenue Code of 1986, as amended from time to time. For
purposes of this Plan, references to sections of the Code shall be deemed to include
references to any applicable regulations thereunder and any successor or similar provision.




     (j) “Committee” means the committee of the Board described in Article 4.




     (k) “Company” means Moody National REIT I, Inc., a Maryland corporation, or any
successor corporation.




     (l) “Continuous Status as a Participant” means the absence of any interruption or
termination of service as an employee, officer, director or consultant of the Company or
any Affiliate, as applicable; provided, however, that for purposes of an Incentive Stock
Option “Continuous Status as a Participant” means the absence of any interruption or
termination of service as an employee of the Company or any Parent or Subsidiary, as
applicable, pursuant to applicable tax regulations. Continuous Status as a Participant
shall not be considered interrupted in the following cases: (i) a Participant transfers
employment between the Company and an Affiliate or between Affiliates, or (ii) in the
discretion of the Committee as specified at or prior to such occurrence, in the case of a
spin-off, sale or disposition of the Participant’s employer from the Company or any
Affiliate, or (iii) any leave of absence authorized in writing by the Company prior to its
commencement; provided, however, that for purposes of Incentive Stock Options, no



6









 







such leave may exceed 90 days, unless reemployment upon expiration of such leave is
guaranteed by statute or contract. If reemployment upon expiration of a leave of absence
approved by the Company is not so guaranteed, on the 91st day of such leave any Incentive
Stock Option held by the Participant shall cease to be treated as an Incentive Stock Option
and shall be treated for tax purposes as a Nonstatutory Stock Option. Whether military,
government or other service or other leave of absence shall constitute a termination of
Continuous Status as a Participant shall be determined in each case by the Committee at its
discretion, and any determination by the Committee shall be final and conclusive.




     (m) “Deferred Stock Unit” means a right granted to a Participant under Article 9 to
receive Shares (or the equivalent value in cash or other property if the Committee so
provides) at a future time as determined by the Committee, or as determined by the
Participant within guidelines established by the Committee in the case of voluntary
deferral elections.




     (n) “Disability” of a Participant means that the Participant (i) 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 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 than 12 months, receiving income
replacement benefits for a period of not less than three months under an accident and
health plan covering employees of the Participant’s employer. If the determination of
Disability relates to an Incentive Stock Option, Disability means Permanent and Total
Disability as defined in Section 22(e)(3) of the Code. In the event of a dispute, the
determination of whether a Participant is Disabled will be made by the Committee and may be
supported by the advice of a physician competent in the area to which such Disability
relates.




     (o) “Dividend Equivalent” means a right granted to a Participant under Article 11.




     (p) “Effective Date” has the meaning assigned such term in Section 3.1.




     (q) “Eligible Participant” means an employee, officer, consultant or director of the
Company or any Affiliate.




     (r) “Exchange” means any national securities exchange on which the Stock may from time
to time be listed or traded.




     (s) “Fair Market Value,” on any date, means (i) if the Stock is listed on a securities
exchange, the closing sales price on such exchange or over such system on such date or, in
the absence of reported sales on such date, the closing sales price on the immediately
preceding date on which sales were reported, or (ii) if the Stock is not listed on a
securities exchange, the mean between the bid and offered prices as quoted by the
applicable interdealer quotation system, provided that if the Stock is not quoted on such
interdealer quotation system or it is determined that the fair market value is not properly
reflected by such quotations, Fair Market Value will be determined by such other method as
the Committee determines in good faith to be reasonable and in compliance with Code Section
409A.



7









 






     (t) “Full Value Award” means an Award other than in the form of an Option or SAR, and
which is settled by the issuance of Stock (or at the discretion of the Committee, settled
in cash valued by reference to Stock value).




     (u) “Grant Date” of an Award means the first date on which all necessary corporate
action has been taken to approve the grant of the Award as provided in the Plan, or such
later date as is determined and specified as part of that authorization process. Notice of
the grant shall be provided to the grantee within a reasonable time after the Grant Date.




     (v) “Incentive Stock Option” means an Option that is intended to be an incentive stock
option and meets the requirements of Section 422 of the Code or any successor provision
thereto.




     (w) “Nonstatutory Stock Option” means an Option that is not an Incentive Stock Option.




     (x) “Option” means a right granted to a Participant under Article 7 of the Plan to
purchase Stock at a specified price during specified time periods. An Option may be either
an Incentive Stock Option or a Nonstatutory Stock Option.




     (y) “Other Stock-Based Award” means a right, granted to a Participant under Article
12, that relates to or is valued by reference to Stock or other Awards relating to Stock.




     (z) “Parent” means a corporation, limited liability company, partnership or other
entity which owns or beneficially owns a majority of the outstanding voting stock or voting
power of the Company. Notwithstanding the above, with respect to an Incentive Stock Option,
Parent shall have the meaning set forth in Section 424(e) of the Code.




     (aa) “Participant” means a person who, as an employee, officer, director or consultant
of the Company or any Affiliate, has been granted an Award under the Plan; provided that in
the case of the death of a Participant, the term “Participant” refers to a beneficiary
designated pursuant to Section 13.4 or the legal guardian or other legal representative
acting in a fiduciary capacity on behalf of the Participant under applicable state law and
court supervision.




     (bb) “Performance Award” means any award granted under the Plan pursuant to Article
10.




     (cc) “Person” means any individual, entity or group, within the meaning of Section
3(a)(9) of the 1934 Act and as used in Section 13d-3 or 14d-2of the 1934 Act.




     (dd) “Plan” means the Moody National REIT I, Inc. Long-Term Incentive Plan, as amended
from time to time.




     (ee) “Public Offering” shall occur on the closing date of a public offering of any
class or series of the Company’s equity securities pursuant to a registration statement
filed by the Company under the 1933 Act.



8









 






     (ff) “Restricted Stock” means Stock granted to a Participant under Article 9 that is
subject to certain restrictions and to risk of forfeiture.




     (gg) “Restricted Stock Unit” means the right granted to a Participant under Article 9
to receive shares of Stock (or the equivalent value in cash or other property if the
Committee so provides) in the future, which right is subject to certain restrictions and to
risk of forfeiture.




     (hh) “Shares” means shares of the Company’s Stock. If there has been an adjustment or
substitution pursuant to Section 14.1, the term “Shares” shall also include any shares of
stock or other securities that are substituted for Shares or into which Shares are adjusted
pursuant to Section 14.1.




     (ii) “Stock” means the $0.01 par value common stock of the Company and such other
securities of the Company as may be substituted for Stock pursuant to Section 14.1.




     (jj) “Stock Appreciation Right” or “SAR” means a right granted to a Participant under
Article 8 to receive a payment equal to the difference between the Fair Market Value of a
Share as of the date of exercise of the SAR over the grant price of the SAR, all as
determined pursuant to Article 8.




     (kk) “Subsidiary” means any corporation, limited liability company, partnership or
other entity of which a majority of the outstanding voting stock or voting power is
beneficially owned directly or indirectly by the Company. Notwithstanding the above, with
respect to an Incentive Stock Option, Subsidiary shall have the meaning set forth in
Section 424(f) of the Code.




     (ll) “1933 Act” means the Securities Act of 1933, as amended from time to time.




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



ARTICLE 3

EFFECTIVE TERM OF PLAN




     3.1. EFFECTIVE DATE. The Plan shall be effective as of the date it is approved by
both the Board and the stockholders of the Company (the “Effective Date”).



     3.2. TERMINATION OF PLAN. The Plan shall terminate on the tenth anniversary of the
Effective Date unless earlier terminated as provided herein. The termination of the Plan on such
date shall not affect the validity of any Award outstanding on the date of termination, which shall
continue to be governed by the applicable terms and conditions of this Plan. Notwithstanding the
foregoing, no Incentive Stock Options may be granted more than ten (10) years after the earlier of
(a) adoption of this Plan by the Board, or (b) the Effective Date.



9









 





ARTICLE 4

ADMINISTRATION




     4.1. COMMITTEE. The Plan shall be administered by a Committee appointed by the
Board (which Committee shall consist of at least two directors) or, at the discretion of the Board
from time to time, the Plan may be administered by the Board. The members of the Committee shall
be appointed by, and may be changed at any time and from time to time in the discretion of, the
Board. It is intended that at least two of the directors appointed to serve on the Committee shall
be “non-employee directors” (within the meaning of Rule 16b-3 promulgated under the 1934 Act) and
that any such members of the Committee who do not so qualify shall abstain from participating in
any decision to make or administer Awards that are made to Eligible Participants who at the time of
consideration for such Award are persons subject to the short-swing profit rules of Section 16 of
the 1934 Act. However, the mere fact that a Committee member shall fail to qualify under the
foregoing requirement or shall fail to abstain from such action shall not invalidate any Award made
by the Committee which Award is otherwise validly made under the Plan. The members of the
Committee shall be appointed by, and may be changed at any time and from time to time in the
discretion of, the Board. The Board may reserve to itself any or all of the authority and
responsibility of the Committee under the Plan or may act as administrator of the Plan for any and
all purposes. To the extent the Board has reserved any authority and responsibility or during any
time that the Board is acting as administrator of the Plan, it shall have all the powers of the
Committee hereunder, and any reference herein to the Committee (other than in this Section 4.1)
shall include the Board. To the extent any action of the Board under the Plan conflicts with
actions taken by the Committee, the actions of the Board shall control.



     4.2. ACTION AND INTERPRETATIONS BY THE COMMITTEE. For purposes of administering the
Plan, the Committee may from time to time adopt rules, regulations, guidelines and procedures for
carrying out the provisions and purposes of the Plan and make such other determinations, not
inconsistent with the Plan, as the Committee may deem appropriate. The Committee’s interpretation
of the Plan, any Awards granted under the Plan, any Award Certificate and all decisions and
determinations by the Committee with respect to the Plan are final, binding, and conclusive on all
parties. Each member of the Committee is entitled to, in good faith, rely or act upon any report
or other information furnished to that member by any officer or other employee of the Company or
any Affiliate, the Company’s or an Affiliate’s independent certified public accountants, Company
counsel or any executive compensation consultant or other professional retained by the Company to
assist in the administration of the Plan.



     4.3. AUTHORITY OF COMMITTEE. Except as provided in Section 4.1 hereof, the Committee
has the exclusive power, authority and discretion to:




     (a) Grant Awards;




     (b) Designate Participants;




     (c) Determine the type or types of Awards to be granted to each Participant;




     (d) Determine the number of Awards to be granted and the number of Shares or dollar
amount to which an Award will relate;




     (e) Determine the terms and conditions of any Award granted under the Plan;




     (f) Prescribe the form of each Award Certificate, which need not be identical for each
Participant;



10









 






     (g) Decide all other matters that must be determined in connection with an Award;




     (h) Establish, adopt or revise any rules, regulations, guidelines or procedures as it
may deem necessary or advisable to administer the Plan;




     (i) Make all other decisions and determinations that may be required under the Plan or
as the Committee deems necessary or advisable to administer the Plan;




     (j) Amend the Plan or any Award Certificate as provided herein; and




     (k) Adopt such modifications, procedures, and subplans as may be necessary or
desirable to comply with provisions of the laws of non-U.S. jurisdictions in which the
Company or any Affiliate may operate, in order to assure the viability of the benefits of
Awards granted to participants located in such other jurisdictions and to meet the
objectives of the Plan.



     4.4. AWARD CERTIFICATES. Each Award shall be evidenced by an Award Certificate. Each
Award Certificate shall include such provisions, not inconsistent with the Plan, as may be
specified by the Committee.



ARTICLE 5

SHARES SUBJECT TO THE PLAN




     5.1. NUMBER OF SHARES. Subject to adjustment as provided in Sections 5.2 and Section
14.1, the aggregate number of Shares reserved and available for issuance pursuant to Awards granted
under the Plan shall be 2,000,000. The maximum number of Shares that may be issued upon exercise
of Incentive Stock Options granted under the Plan shall be 2,000,000.



     5.2. SHARE COUNTING. Shares covered by an Award shall be subtracted from the Plan
share reserve as of the date of grant, but shall be added back to the Plan share reserve in
accordance with this Section 5.2.




     (a) To the extent that an Award is canceled, terminates, expires, is forfeited or
lapses for any reason, any unissued or forfeited Shares subject to the Award will again be
available for issuance pursuant to Awards granted under the Plan.




     (b) Shares subject to Awards settled in cash will again be available for issuance
pursuant to Awards granted under the Plan.




     (c) Shares withheld from an Award or delivered by a Participant to satisfy minimum tax
withholding requirements will again be available for issuance pursuant to Awards granted
under the Plan. 




     (d) If the exercise price of an Option is satisfied by delivering Shares to the
Company (by either actual delivery or attestation), only the number of Shares issued to the
Participant in excess of the Shares tendered (by delivery or attestation) shall be
considered for purposes of determining the number of Shares remaining available for
issuance pursuant to Awards granted under the Plan.




     (e) To the extent that the full number of Shares subject to an Option or SAR



11









 







is not issued upon exercise of the Option or SAR for any reason, including by reason
of net-settlement of the Award, only the number of Shares issued and delivered upon
exercise of the Option or SAR shall be considered for purposes of determining the number of
Shares remaining available for issuance pursuant to Awards granted under the Plan.




     (f) To the extent that the full number of Shares subject to an Award other than an
Option or SAR is not issued for any reason, including by reason of failure to achieve
maximum performance goals, only the number of Shares issued and delivered shall be
considered for purposes of determining the number of Shares remaining available for
issuance pursuant to Awards granted under the Plan.




     (g) Substitute Awards granted pursuant to Section 13.8 of the Plan shall not count
against the Shares otherwise available for issuance under the Plan under Section 5.1.



     5.3. STOCK DISTRIBUTED. Any Stock distributed pursuant to an Award may consist, in
whole or in part, of authorized and unissued Stock, treasury Stock or Stock purchased on the open
market.



ARTICLE 6

ELIGIBILITY




     6.1. GENERAL. Awards may be granted only to Eligible Participants. Incentive Stock
Options may be granted only to Eligible Participants who are employees of the Company or a Parent
or Subsidiary as defined in Section 424(e) and (f) of the Code. Eligible Participants who are
service providers to an Affiliate may be granted Options or SARs under this Plan only if the
Affiliate qualifies as an “eligible issuer of service recipient stock” within the meaning of
§1.409A-1(b)(5)(iii)(E) of the final regulations under Code Section 409A.



ARTICLE 7

STOCK OPTIONS




     7.1. GENERAL. The Committee is authorized to grant Options to Participants on the
following terms and conditions:




     (a) EXERCISE PRICE. The exercise price per Share under an Option shall be
determined by the Committee, provided that the exercise price for any Option (other than an
Option issued as a substitute Award pursuant to Section 13.8) shall not be less than the
Fair Market Value as of the Grant Date.




     (b) PROHIBITION ON REPRICING. Except as otherwise provided in Section 14.1,
the exercise price of an Option may not be reduced, directly or indirectly by cancellation
and regrant or otherwise, without the prior approval of the stockholders of the Company.




     (c) TIME AND CONDITIONS OF EXERCISE. The Committee shall determine the time
or times at which an Option may be exercised in whole or in part, subject to Section
7.1(e). The Committee shall also determine the performance or other conditions, if any,
that must be satisfied before all or part of an Option may be exercised or vested.



12









 






     (d) PAYMENT. The Committee shall determine the methods by which the exercise
price of an Option may be paid, the form of payment, including, without limitation, cash,
Shares, or other property (including “cashless exercise” arrangements), and the methods by
which Shares shall be delivered or deemed to be delivered to Participants.




     (e) EXERCISE TERM. Except for Nonstatutory Options granted to Participants
outside the United States, no Option granted under the Plan shall be exercisable for more
than ten years from the Grant Date.




     (f) NO DEFERRAL FEATURE. No Option shall provide for any feature for the
deferral of compensation other than the deferral of recognition of income until the
exercise or disposition of the Option.



     7.2. INCENTIVE STOCK OPTIONS. The terms of any Incentive Stock Options granted under
the Plan must comply with the requirements of Section 422 of the Code. If all of the requirements
of Section 422 of the Code are not met, the Option shall automatically become a Nonstatutory Stock
Option.



ARTICLE 8

STOCK APPRECIATION RIGHTS




     8.1. GRANT OF STOCK APPRECIATION RIGHTS. The Committee is authorized to grant Stock
Appreciation Rights to Participants on the following terms and conditions:




     (a) RIGHT TO PAYMENT. Upon the exercise of a SAR, the Participant to whom it
is granted has the right to receive, for each Share with respect to which the SAR is being
exercised, the excess, if any, of:




     (1) The Fair Market Value of one Share on the date of exercise; over




     (2) The base price of the SAR as determined by the Committee, which shall not
be less than the Fair Market Value of one Share on the Grant Date.




     (b) PROHIBITION ON REPRICING. Except as otherwise provided in Section 14.1,
the base price of a SAR may not be reduced, directly or indirectly by cancellation and
regrant or otherwise, without the prior approval of the stockholders of the Company.




     (c) EXERCISE TERM. Except for SARs granted to Participants outside the United
States, no SAR shall be exercisable for more than ten years from the Grant Date.




     (d) NO DEFERRAL FEATURE. No SAR shall provide for any feature for the
deferral of compensation other than the deferral of recognition of income until the
exercise or disposition of the SAR.




     (e) OTHER TERMS. All SARs shall be evidenced by an Award Certificate.
Subject to the limitations of this Article 8, the terms, methods of exercise, methods of
settlement, form of consideration payable in settlement, and any other terms and conditions
of any SAR shall be determined by the Committee at the time of the grant of
the Award and shall be reflected in the Award Certificate.



13









 





ARTICLE 9

RESTRICTED STOCK, RESTRICTED STOCK UNITS

AND DEFERRED STOCK UNITS




     9.1. GRANT OF RESTRICTED STOCK, RESTRICTED STOCK UNITS AND DEFERRED STOCK UNITS. The
Committee is authorized to make Awards of Restricted Stock, Restricted Stock Units or Deferred
Stock Units to Participants in such amounts and subject to such terms and conditions as may be
selected by the Committee. An Award of Restricted Stock, Restricted Stock Units or Deferred Stock
Units shall be evidenced by an Award Certificate setting forth the terms, conditions, and
restrictions applicable to the Award.



     9.2. ISSUANCE AND RESTRICTIONS. Restricted Stock, Restricted Stock Units or Deferred
Stock Units shall be subject to such restrictions on transferability and other restrictions as the
Committee may impose (including, without limitation, limitations on the right to vote Restricted
Stock or the right to receive dividends or distributions on the Restricted Stock). These
restrictions may lapse separately or in combination at such times, under such circumstances, in
such installments, upon the satisfaction of performance goals or otherwise, as the Committee
determines at the time of the grant of the Award or thereafter. Except as otherwise provided in an
Award Certificate or any special Plan document governing an Award, the Participant shall have all
of the rights of a stockholder with respect to the Restricted Stock, and the Participant shall have
none of the rights of a stockholder with respect to Restricted Stock Units or Deferred Stock Units
until such time as Shares of Stock are paid in settlement of the Restricted Stock Units or Deferred
Stock Units. Unless otherwise provided in the applicable Award Certificate, Awards of Restricted
Stock will be entitled to full dividend and distribution rights and any dividends or distributions
paid thereon will be paid or distributed to the holder no later than the end of the calendar year
in which the dividends or distributions are paid to stockholders or, if later, the 15th
day of the third month following the date the dividends or distributions are paid to
stockholders.



     9.3. FORFEITURE. Except as otherwise determined by the Committee at the time of the
grant of the Award or thereafter, upon termination of Continuous Status as a Participant during the
applicable restriction period or upon failure to satisfy a performance goal during the applicable
restriction period, Restricted Stock or Restricted Stock Units that are at that time subject to
restrictions shall be forfeited.



     9.4. DELIVERY OF RESTRICTED STOCK. Shares of Restricted Stock shall be delivered to
the Participant at the time of grant either by book-entry registration or by delivering to the
Participant, or a custodian or escrow agent (including, without limitation, the Company or one or
more of its employees) designated by the Committee, a stock certificate or certificates registered
in the name of the Participant. If physical certificates representing shares of Restricted Stock
are registered in the name of the Participant, such certificates must bear an appropriate legend
referring to the terms, conditions, and restrictions applicable to such Restricted Stock.



ARTICLE 10

PERFORMANCE AWARDS




     10.1. GRANT OF PERFORMANCE AWARDS. The Committee is authorized to grant any Award
under this Plan, including cash-based Awards, with performance-based vesting criteria, on such
terms and conditions as may be selected by the Committee. The Committee shall have the complete
discretion to determine the number of Performance Awards granted to each



14









 




Participant and to designate the provisions of such Performance Awards as provided in Section 4.3.
All Performance Awards shall be evidenced by an Award Certificate or a written program established
by the Committee, pursuant to which Performance Awards are awarded under the Plan under uniform
terms, conditions and restrictions set forth in such written program.




     10.2. PERFORMANCE GOALS. The Committee may establish performance goals for
Performance Awards which may be based on any criteria selected by the Committee. Such performance
goals may be described in terms of Company-wide objectives or in terms of objectives that relate to
the performance of the Participant, an Affiliate or a division, region, department or function
within the Company or an Affiliate. If the Committee determines that a change in the business,
operations, corporate structure or capital structure of the Company or the manner in which the
Company or an Affiliate conducts its business, or other events or circumstances render performance
goals to be unsuitable, the Committee may modify such performance goals in whole or in part, as the
Committee deems appropriate. If a Participant is promoted, demoted or transferred to a different
business unit or function during a performance period, the Committee may determine that the
performance goals or performance period are no longer appropriate and may (a) adjust, change or
eliminate the performance goals or the applicable performance period as it deems appropriate to
make such goals and period comparable to the initial goals and period, or (b) make a cash payment
to the participant in an amount determined by the Committee.



ARTICLE 11

DIVIDEND EQUIVALENTS




     11.1. GRANT OF DIVIDEND EQUIVALENTS. The Committee is authorized to grant Dividend
Equivalents with respect to Full Value Awards granted hereunder, subject to such terms and
conditions as may be selected by the Committee. Dividend Equivalents shall entitle the Participant
to receive payments equal to dividends or distributions with respect to all or a portion of the
number of Shares subject to a Full Value Award, as determined by the Committee. The Committee may
provide that Dividend Equivalents be paid or distributed when accrued or be deemed to have been
reinvested in additional Shares, or otherwise reinvested. Unless otherwise provided in the
applicable Award Certificate, Dividend Equivalents will be paid or distributed no later than the
15th day of the 3rd month following the later of (a) the calendar year in
which the corresponding dividends or distributions were paid to stockholders, or (b) the first
calendar year in which the Participant’s right to such Dividends Equivalents is no longer subject
to a substantial risk of forfeiture.



ARTICLE 12

STOCK OR OTHER STOCK-BASED AWARDS




     12.1. GRANT OF STOCK OR OTHER STOCK-BASED AWARDS. The Committee is authorized,
subject to limitations under applicable law, to grant to Participants such other Awards that are
payable in, valued in whole or in part by reference to, or otherwise based on or related to Shares,
as deemed by the Committee to be consistent with the purposes of the Plan, including,without
limitation, Shares awarded purely as a “bonus” and not subject to any restrictions or conditions,
convertible or exchangeable debt securities, other rights convertible or exchangeable into Shares,
and Awards valued by reference to book value of Shares or the value of securities of or the
performance of specified Parents or Subsidiaries. The Committee shall determine the terms and
conditions of such Awards.



15









 





ARTICLE 13

PROVISIONS APPLICABLE TO AWARDS




     13.1. TERM OF AWARD. The term of each Award shall be for the period as determined by
the Committee, provided that in no event shall the term of any Option or a Stock Appreciation Right
exceed a period of ten years from its Grant Date.



     13.2. FORM OF PAYMENT FOR AWARDS. At the discretion of the Committee, payment of
Awards may be made in cash, Stock, a combination of cash and Stock, or any other form of property
as the Committee shall determine. In addition, payment of Awards may include such terms,
conditions, restrictions and/or limitations, if any, as the Committee deems appropriate, including,
in the case of Awards paid in the form of Stock, restrictions on transfer and forfeiture
provisions. Further, payment of Awards may be made in the form of a lump sum, or in installments,
as determined by the Committee.



     13.3. LIMITS ON TRANSFER. No right or interest of a Participant in any unexercised or
restricted Award may be pledged, encumbered, or hypothecated to or in favor of any party other than
the Company or an Affiliate, or shall be subject to any lien, obligation, or liability of such
Participant to any other party other than the Company or an Affiliate. No unexercised or
restricted Award shall be assignable or transferable by a Participant other than by will or the
laws of descent and distribution; provided, however, that the Committee may (but need not) permit
other transfers (other than transfers for value) where the Committee concludes that such
transferability (a) does not result in accelerated taxation, (b) does not cause any Option intended
to be an Incentive Stock Option to fail to be described in Code Section 422(b), and (c) is
otherwise appropriate and desirable, taking into account any factors deemed relevant, including
without limitation, state or federal tax or securities laws applicable to transferable Awards.



     13.4. BENEFICIARIES. Notwithstanding Section 13.3, a Participant may, in the manner
determined by the Committee, designate a beneficiary to exercise the rights of the Participant and
to receive any distribution with respect to any Award upon the Participant’s death. A beneficiary,
legal guardian, legal representative, or other person claiming any rights under the Plan is subject
to all terms and conditions of the Plan and any Award Certificate applicable to the Participant,
except to the extent the Plan and Award Certificate otherwise provide, and to any additional
restrictions deemed necessary or appropriate by the Committee. If no beneficiary has been
designated or survives the Participant, payment shall be made to the Participant’s estate. Subject
to the foregoing, a beneficiary designation may be changed or revoked by a Participant at any time
provided the change or revocation is filed with the Committee.



     13.5. STOCK TRADING RESTRICTIONS. All Stock issuable under the Plan is subject to any
stop-transfer orders and other restrictions as the Committee deems necessary or advisable to comply
with federal or state securities laws, rules and regulations and the rules of any national
securities exchange or automated quotation system on which the Stock is listed, quoted, or traded.
The Committee may place legends on any Stock certificate or issue instructions to the transfer
agent to reference restrictions applicable to the Stock.



     13.6. ACCELERATION FOR ANY REASON. The Committee may in its sole discretion at any
time determine that all or a portion of a Participant’s Options, SARs, and other Awards in the
nature of rights that may be exercised shall become fully or partially exercisable, that all or a
part of the time-based vesting restrictions on all or a portion of the outstanding Awards shall
lapse, and/or that any performance-based criteria with respect to any Awards shall be deemed to be
wholly or partially satisfied, in each case, as of such date as the Committee may,



16









 




in its sole discretion, declare. The Committee may discriminate among Participants and among
Awards granted to a Participant in exercising its discretion pursuant to this Section 13.6.
Notwithstanding anything in the Plan, including this Section 13.6, the Committee may not accelerate
the payment of any Award if such acceleration would violate Section 409A(a)(3) of the Code.




     13.7. FORFEITURE EVENTS. The Committee may specify in an Award Certificate that the
Participant’s rights, payments and benefits with respect to an Award shall be subject to reduction,
cancellation, forfeiture or recoupment upon the occurrence of certain specified events, in addition
to any otherwise applicable vesting or performance conditions of an Award. Such events shall
include, but shall not be limited to, termination of employment for Cause, violation of material
Company or Affiliate policies, breach of noncompetition, confidentiality or other restrictive
covenants that may apply to the Participant, or other conduct by the Participant that is
detrimental to the business or reputation of the Company or any Affiliate.



     13.8. SUBSTITUTE AWARDS. The Committee may grant Awards under the Plan in
substitution for stock and stock-based awards held by employees of another entity who become
employees of the Company or an Affiliate as a result of a merger or consolidation of the former
employing entity with the Company or an Affiliate or the acquisition by the Company or an Affiliate
of property or stock of the former employing corporation. The Committee may direct that the
substitute awards be granted on such terms and conditions as the Committee considers appropriate in
the circumstances.



ARTICLE 14

CHANGES IN CAPITAL STRUCTURE




     14.1. MANDATORY ADJUSTMENTS. In the event of a nonreciprocal transaction between the
Company and its stockholders that causes the per-share value of the Stock to change (including,
without limitation, any stock dividend, stock split, spin-off, rights offering, or large
nonrecurring cash dividend), the authorization limits under Section 5.1 shall be adjusted
proportionately, and the Committee shall make such adjustments to the Plan and Awards as it deems
necessary, in its sole discretion, to prevent dilution or enlargement of rights immediately
resulting from such transaction. Action by the Committee may include: (a) adjustment of the number
and kind of shares that may be delivered under the Plan; (b) adjustment of the number and kind of
shares subject to outstanding Awards; (c) adjustment of the exercise price of outstanding Awards or
the measure to be used to determine the amount of the benefit payable on an Award; and (d) any
other adjustments that the Committee determines to be equitable. Without limiting the foregoing,
in the event of a subdivision of the outstanding Stock (stock-split), a declaration of a dividend
payable in Shares, or a combination or consolidation of the outstanding Stock into a lesser number
of Shares, the authorization limits under Section 5.1 shall automatically be adjusted
proportionately, and the Shares then subject to each Award shall automatically, without the
necessity for any additional action by the Committee, be adjusted proportionately without any
change in the aggregate purchase price therefor.



     14.2. DISCRETIONARY ADJUSTMENTS. Upon the occurrence or in anticipation of any
corporate event or transaction involving the Company (including, without limitation, any merger,
reorganization, recapitalization, combination or exchange of shares, or any transaction described
in Section 14.1), the Committee may, in its sole discretion, provide (a) that Awards will be
settled in cash rather than Stock, (b) that Awards will become immediately vested and exercisable
and will expire after a designated period of time to the extent not then exercised, (c) that Awards
will be assumed by another party to a transaction or otherwise be equitably



17









 




converted or substituted in connection with such transaction, (e) that outstanding Awards may
be settled by payment in cash or cash equivalents equal to the excess of the Fair Market Value of
the underlying Stock, as of a specified date associated with the transaction, over the exercise
price of the Award, (f) that performance targets and performance periods for Performance Awards
will be modified, or (g) any combination of the foregoing. The Committee’s determination need not
be uniform and may be different for different Participants whether or not such Participants are
similarly situated.




     14.3. GENERAL. Any discretionary adjustments made pursuant to this Article 14 shall
be subject to the provisions of Section 15.2. To the extent that any adjustments made pursuant to
this Article 14 cause Incentive Stock Options to cease to qualify as Incentive Stock Options, such
Options shall be deemed to be Nonstatutory Stock Options.



ARTICLE 15

AMENDMENT, MODIFICATION AND TERMINATION




     15.1. AMENDMENT, MODIFICATION AND TERMINATION. The Board or the Committee may, at any
time and from time to time, amend, modify or terminate the Plan without stockholder approval;
provided, however, that if an amendment to the Plan would, in the reasonable opinion of the Board
or the Committee, either (a) materially increase the number of Shares available under the Plan, (b)
expand the types of awards under the Plan, (c) materially expand the class of participants eligible
to participate in the Plan, (d) materially extend the term of the Plan, or (e) otherwise constitute
a material change requiring stockholder approval under applicable laws, policies or regulations or
the applicable listing or other requirements of an Exchange, then such amendment shall be subject
to stockholder approval; and provided, further, that the Board or Committee may condition any other
amendment or modification on the approval of stockholders of the Company for any reason, including
by reason of such approval being necessary or deemed advisable (a) to comply with the listing or
other requirements of an Exchange, or (b) to satisfy any other tax, securities or other applicable
laws, policies or regulations.



     15.2. AWARDS PREVIOUSLY GRANTED. At any time and from time to time, the Committee may
amend, modify or terminate any outstanding Award without approval of the Participant; provided,
however:




     (a) Subject to the terms of the applicable Award Certificate, such amendment,
modification or termination shall not, without the Participant’s consent, reduce or
diminish the value of such Award determined as if the Award had been exercised, vested,
cashed in or otherwise settled on the date of such amendment or termination (with the
per-share value of an Option or SAR for this purpose being calculated as the excess, if
any, of the Fair Market Value as of the date of such amendment or termination over the
exercise or base price of such Award);




     (b) The original term of an Option or SAR may not be extended without the prior
approval of the stockholders of the Company;




     (c) Except as otherwise provided in Section 14.1, the exercise price of an Option or
SAR may not be reduced, directly or indirectly, without the prior approval of the
stockholders of the Company; and




     (d) No termination, amendment, or modification of the Plan shall adversely affect any
Award previously granted under the Plan, without the written consent of the



18









 







Participant affected thereby. An outstanding Award shall not be deemed to be
“adversely affected” by a Plan amendment if such amendment would not reduce or diminish the
value of such Award determined as if the Award had been exercised, vested, cashed in or
otherwise settled on the date of such amendment (with the per-share value of an Option or
SAR for this purpose being calculated as the excess, if any, of the Fair Market Value as of
the date of such amendment over the exercise or base price of such Award).



     15.3. COMPLIANCE AMENDMENTS. Notwithstanding anything in the Plan or in any Award
Certificate to the contrary, the Board may amend the Plan or an Award Certificate, to take effect
retroactively or otherwise, as deemed necessary or advisable for the purpose of conforming the Plan
or Award Certificate to any present or future law relating to plans of this or similar nature
(including, but not limited to, Section 409A of the Code), and to the administrative regulations
and rulings promulgated thereunder. By accepting an Award under this Plan, a Participant agrees to
any amendment made pursuant to this Section 15.3 to any Award granted under the Plan without
further consideration or action.



ARTICLE 16

GENERAL PROVISIONS




     16.1. RIGHTS OF PARTICIPANTS.




     (a) No Participant or any Eligible Participant shall have any claim to be granted any
Award under the Plan. Neither the Company, its Affiliates nor the Committee is obligated
to treat Participants or Eligible Participants uniformly, and determinations made under the
Plan may be made by the Committee selectively among Eligible Participants who receive, or
are eligible to receive, Awards (whether or not such Eligible Participants are similarly
situated).




     (b) Nothing in the Plan, any Award Certificate or any other document or statement made
with respect to the Plan, shall interfere with or limit in any way the right of the Company
or any Affiliate to terminate any Participant’s employment or status as an officer, or any
Participant’s service as a director, at any time, nor confer upon any Participant any right
to continue as an employee, officer, or director of the Company or any Affiliate, whether
for the duration of a Participant’s Award or otherwise.




     (c) Neither an Award nor any benefits arising under this Plan shall constitute an
employment contract with the Company or any Affiliate and, accordingly, subject to Article
15, this Plan and the benefits hereunder may be terminated at any time in the sole and
exclusive discretion of the Committee without giving rise to any liability on the part of
the Company or any of its Affiliates.




     (d) No Award gives a Participant any of the rights of a stockholder of the Company
unless and until Shares are in fact issued to such person in connection with such Award.



     16.2. WITHHOLDING. The Company or any Affiliate shall have the authority and the
right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient
to satisfy federal, state, and local taxes (including the Participant’s FICA obligation) required
by law to be withheld with respect to any exercise, lapse of restriction or other taxable event
arising as a result of the Plan. With respect to withholding required upon any taxable event under
the Plan, the Committee may, at the time the Award is granted or thereafter, require or



19









 




permit that any such withholding requirement be satisfied, in whole or in part, by withholding from
the Award Shares having a Fair Market Value on the date of withholding equal to the minimum amount
(and not any greater amount) required to be withheld for tax purposes, all in accordance with such
procedures as the Committee establishes. All such elections shall be subject to any restrictions
or limitations that the Committee, in its sole discretion, deems appropriate.




     16.3. SPECIAL PROVISIONS RELATED TO SECTION 409A OF THE CODE.



     (a) It is intended that the payments and benefits provided under the Plan and any Award shall
either be exempt from the application of, or comply with, the requirements of Section 409A of the
Code. The Plan and all Award Certificates shall be construed in a manner that effects such intent.
Nevertheless, the tax treatment of the benefits provided under the Plan or any Award is not
warranted or guaranteed. Neither the Company, its Affiliates nor their respective directors,
officers, employees or advisers shall be held liable for any taxes, interest, penalties or other
monetary amounts owed by any Participant or other taxpayer as a result of the Plan or any Award.



     (b) Notwithstanding anything in the Plan or in any Award Certificate to the contrary, to the
extent that any amount or benefit that would constitute non-exempt “deferred compensation” for
purposes of Section 409A of the Code would otherwise be payable or distributable, or a different
form of payment (e.g., lump sum or installment) would be effected, under the Plan or any Award
Certificate by reason of the occurrence of a Change in Control, or the Participant’s Disability or
separation from service, such amount or benefit will not be payable or distributable to the
Participant, and/or such different form of payment will not be effected, by reason of such
circumstance unless the circumstances giving rise to such Change in Control, Disability or
separation from service meet any description or definition of “change in control event”,
“disability” or “separation from service”, as the case may be, in Section 409A of the Code and
applicable regulations (without giving effect to any elective provisions that may be available
under such definition). This provision does not prohibit the vesting of any Award upon a Change in
Control, Disability or separation from service, however defined. If this provision prevents the
payment or distribution of any amount or benefit, such payment or distribution shall be made on the
next earliest payment or distribution date or event specified in the Award Certificate that is
permissible under Section 409A of the Code. If this provision prevents the application of a
different form of payment of any amount or benefit, such payment shall be made in the same form as
would have applied absent such designated event or circumstance.



     (c) If any one or more Awards granted under the Plan to a Participant could qualify for any
separation pay exemption described in Treas. Reg. Section 1.409A-1(b)(9), but such Awards in the
aggregate exceed the dollar limit permitted for the separation pay exemptions, the Company (acting
through the Committee or the Head of Human Resources) shall determine which Awards or portions
thereof will be subject to such exemptions.



     (d) Notwithstanding anything in the Plan or in any Award Certificate to the contrary, if any
amount or benefit that would constitute non-exempt “deferred compensation” for purposes of Section
409A of the Code would otherwise be payable or distributable under this Plan or any Award
Certificate by reason of a Participant’s separation from service during a period in which the
Participant is a Specified Employee (as defined below), then, subject to any permissible
acceleration of payment by the Committee under Treas. Reg. Section 1.409A-3(j)(4)(ii) (domestic
relations order), (j)(4)(iii) (conflicts of interest), or (j)(4)(vi) (payment of employment taxes):



20









 





          (i) the amount of such non-exempt deferred compensation that would otherwise be payable during
the six-month period immediately following the Participant’s separation from service will be
accumulated through and paid or provided on the first day of the seventh month following the
Participant’s separation from service (or, if the Participant dies during such period, within 30
days after the Participant’s death) (in either case, the “Required Delay Period”); and




          (ii) the normal payment or distribution schedule for any remaining payments or distributions
will resume at the end of the Required Delay Period.




     For purposes of this Plan, the term “Specified Employee” has the meaning given such term in
Code Section 409A and the final regulations thereunder, provided, however, that, as permitted in
such final regulations, the Company’s Specified Employees and its application of the six-month
delay rule of Code Section 409A(a)(2)(B)(i) shall be determined in accordance with rules adopted by
the Board or any committee of the Board, which shall be applied consistently with respect to all
nonqualified deferred compensation arrangements of the Company, including this Plan.



     (e) Eligible Participants who are service providers to an Affiliate may be granted Options or
SARs under this Plan only if the Affiliate qualifies as an “eligible issuer of service recipient
stock” within the meaning of §1.409A-1(b)(5)(iii)(E) of the final regulations under Code Section
409A.



     16.4. UNFUNDED STATUS OF AWARDS. The Plan is intended to be an “unfunded” plan for
incentive and deferred compensation. With respect to any payments not yet made to a Participant
pursuant to an Award, nothing contained in the Plan or any Award Certificate shall give the
Participant any rights that are greater than those of a general creditor of the Company or any
Affiliate. This Plan is not intended to be subject to ERISA.



     16.5. RELATIONSHIP TO OTHER BENEFITS. No payment under the Plan shall be taken into
account in determining any benefits under any pension, retirement, savings, profit sharing, group
insurance, welfare or benefit plan of the Company or any Affiliate unless provided otherwise in
such other plan.



     16.6. EXPENSES. The expenses of administering the Plan shall be borne by the Company
and its Affiliates.



     16.7. TITLES AND HEADINGS. The titles and headings of the Sections in the Plan are
for convenience of reference only, and in the event of any conflict, the text of the Plan, rather
than such titles or headings, shall control.



     16.8. GENDER AND NUMBER. Except where otherwise indicated by the context, any
masculine term used herein also shall include the feminine; the plural shall include the singular
and the singular shall include the plural.



     16.9. FRACTIONAL SHARES. No fractional Shares shall be issued and the Committee shall
determine, in its discretion, whether cash shall be given in lieu of fractional Shares or whether
such fractional Shares shall be eliminated by rounding up or down.



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     16.10. GOVERNMENT AND OTHER REGULATIONS.




     (a) Notwithstanding any other provision of the Plan, no Participant who
acquires Shares pursuant to the Plan may, during any period of time that such
Participant is an affiliate of the Company (within the meaning of the rules and regulations
of the Securities and Exchange Commission under the 1933 Act), sell such Shares, unless
such offer and sale is made (i) pursuant to an effective registration statement under the
1933 Act, which is current and includes the Shares to be sold, or (ii) pursuant to an
appropriate exemption from the registration requirement of the 1933 Act, such as that set
forth in Rule 144 promulgated under the 1933 Act.




     (b) Notwithstanding any other provision of the Plan, if at any time the Committee
shall determine that the registration, listing or qualification of the Shares covered by an
Award upon any Exchange or under any foreign, federal, state or local law or practice, or
the consent or approval of any governmental regulatory body, is necessary or desirable as a
condition of, or in connection with, the granting of such Award or the purchase or receipt
of Shares thereunder, no Shares may be purchased, delivered or received pursuant to such
Award unless and until such registration, listing, qualification, consent or approval shall
have been effected or obtained free of any condition not acceptable to the Committee. Any
Participant receiving or purchasing Shares pursuant to an Award shall make such
representations and agreements and furnish such information as the Committee may request to
assure compliance with the foregoing or any other applicable legal requirements. The
Company shall not be required to issue or deliver any certificate or certificates for
Shares under the Plan prior to the Committee’s determination that all related requirements
have been fulfilled. The Company shall in no event be obligated to register any securities
pursuant to the 1933 Act or applicable state or foreign law or to take any other action in
order to cause the issuance and delivery of such certificates to comply with any such law,
regulation or requirement.



     16.11. GOVERNING LAW. To the extent not governed by federal law, the Plan and all
Award Certificates shall be construed in accordance with and governed by the laws of the State of
Maryland.



     16.12. ADDITIONAL PROVISIONS. Each Award Certificate may contain such other terms and
conditions as the Committee may determine; provided that such other terms and conditions are not
inconsistent with the provisions of the Plan.



     16.13. NO LIMITATIONS ON RIGHTS OF COMPANY. The grant of any Award shall not in any
way affect the right or power of the Company to make adjustments, reclassification or changes in
its capital or business structure or to merge, consolidate, dissolve, liquidate, sell or transfer
all or any part of its business or assets. The Plan shall not restrict the authority of the
Company, for proper corporate purposes, to draft or assume awards, other than under the Plan, to or
with respect to any person. If the Committee so directs, the Company may issue or transfer Shares
to an Affiliate, for such lawful consideration as the Committee may specify, upon the condition or
understanding that the Affiliate will transfer such Shares to a Participant in accordance with the
terms of an Award granted to such Participant and specified by the Committee pursuant to the
provisions of the Plan.



     16.14. INDEMNIFICATION. Each person who is or shall have been a member of the
Committee or of the Board shall be indemnified and held harmless by the Company against and from
any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by him or her
in connection with or resulting from any claim, action, suit, or proceeding to which he or she may
be a party or in which he or she may be involved by reason of any action taken or failure to act
under the Plan and against and from any and all amounts paid by him or her in settlement



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thereof, with the Company’s approval, or paid by him or her in satisfaction of any judgment in
any such action, suit, or proceeding against him or her, provided he or she shall give the Company
an opportunity, at its own expense, to handle and defend the same before he or she undertakes to
handle and defend it on his or her own behalf, unless such loss, cost, liability, or expense is a
result of his or her own willful misconduct or except as expressly provided by statute. The
foregoing right of indemnification shall not be exclusive of any other rights of indemnification to
which such persons may be entitled under the Company’s charter or bylaws, as a matter of law, or
otherwise, or any power that the Company may have to indemnify them or hold them harmless.




     The foregoing is hereby acknowledged as being the Moody National REIT I, Inc. Long-Term
Incentive Plan as adopted by the Board on February 13, 2009 and by the stockholders on
February 23, 2009.



	 	 	 	 	 
	 	MOODY NATIONAL REIT I, INC.

 	 
	                                                       
	 	By:  	/s/ Brett C. Moody	 
	 	Name:  	Brett C. Moody	 
	 	Title:  	Chief Executive Officer and President