tomz_ex41





  Exhibit 4.1






 

 

 



TOMI ENVIRONMENTAL SOLUTIONS, INC.

 



AMENDED AND RESTATED 2016 EQUITY INCENTIVE PLAN

 


 

 




 








 











 



TABLE OF CONTENTS


 


	

I.

	

ESTABLISHMENT,
OBJECTIVES AND DURATION

	

1


	

II.

	

Definitions

	

1


	

III.

	

Administration

	

5




	

IV.

	

SHARES
SUBJECT TO THE PLAN AND MAXIMUM AWARDS

	

5




	

V.

	

ELIGIBILITY
AND PARTICIPATION

	

7




	

VI.

	

STOCK
OPTIONS

	

7




	

VII.

	

STOCK
APPRECIATION RIGHTS

	

9




	

VIII.

	

RESTRICTED
STOCK

	

10




	

IX.

	

RESTRICTED
STOCK UNITS

	

12


	

X.

	

PERFORMANCE
UNITS AND PERFORMANCE SHARES

	

13


	

XI.

	

PERFORMANCE
MEASURES

	

14


	

XII.

	

BENEFICIARY
DESIGNATION

	

15


	

XIII.

	

DEFERRALS

	

15


	

XIV.

	

RIGHTS
OF EMPLOYEES

	

15


	

XV.

	

AMENDMENT,
MODIFICATION, TERMINATION AND ADJUSTMENTS

	

15


	

XVI.

	

PAYMENT
OF PLAN AWARDS AND CONDITIONS THEREON

	

16




	

XVII.

	

CHANGE
IN CONTROL

	16

	

XVIII.

	

TAX
PROVISIONS

	17

	

XIX.

	

INDEMNIFICATION

	17

	

XX.

	

SUCCESSORS

	17

	

XXI.

	

LEGAL
CONSTRUCTION

	17










 








 







TOMI ENVIRONMENTAL SOLUTIONS, INC.

 



AMENDED AND RESTATED 2016 EQUITY INCENTIVE PLAN

 

I. ESTABLISHMENT,
OBJECTIVES AND DURATION

 

A. ESTABLISHMENT OF
THE PLAN. TOMI Environmental Solutions, Inc., a Florida corporation
(hereinafter referred to as the “Company”), hereby
adopts an incentive compensation plan designated as the “TOMI
Environmental Solutions, Inc. Amended and Restated 2016 Equity
Incentive Plan” (hereinafter referred to as the
“Plan”), as set forth in this document. The Plan
permits the grant of Nonqualified Stock Options, Incentive Stock
Options, Stock Appreciation Rights, Restricted Stock, Restricted
Stock Units, Performance Shares and Performance Units.

 


Subject
to approval by the Company’s stockholders, the Plan shall
become effective as of January 29, 2016 (the “Effective
Date”). The Plan shall remain in effect as provided in
Section I.C hereof.

 

B. OBJECTIVES OF THE
PLAN. The objectives of the Plan are to optimize the profitability
and growth of the Company through incentives which are consistent
with the Company’s goals and which link the personal
interests of Participants to those of the Company’s
stockholders; to provide Participants with an incentive for
excellence in individual performance; and to promote teamwork among
Participants.

 


It is
also intended with respect to the Non-Employee Directors of the
Company that the Compensation Committee be able to choose from
among Awards of Non-Qualified Stock Options, Stock Appreciation
Rights, Restricted Stock and RSUs which will (a) permit
Non-Employee Directors to increase their ownership and proprietary
interest in the Company and enhance their identification with the
interests of the Company’s stockholders, (b) provide a means
of compensating Non-Employee Directors that will help attract
qualified candidates to serve as Non-Employee Directors, and (c)
induce incumbent Non-Employee Directors to continue to serve if the
Board desires that they remain on the Board.

 

C. DURATION OF THE
PLAN. The Plan shall commence on the Effective Date and shall
remain in effect, subject to the right of the Board of Directors to
amend or terminate the Plan at any time pursuant to
Article XV hereof, until all
Shares subject to it shall have been purchased or acquired
according to the Plan’s provisions. However, in no event may
an Award be granted under the Plan on or after January 29,
2026.

 

II. 
DEFINITIONS

 


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

 

A. “AFFILIATE”
shall have the meaning ascribed to such term in Rule 12b-2 of the
General Rules and Regulations of the Exchange Act.

 

B. “AWARD”
means, individually or collectively, a grant under this Plan of
Nonqualified Stock Options, Incentive Stock Options, Stock
Appreciation Rights, Restricted Stock, Restricted Stock Units,
Performance Shares or Performance Units.

 

C. “AWARD
AGREEMENT” means an agreement entered into by the Company and
each Participant setting forth the terms and provisions applicable
to Awards granted under this Plan.

 



 

1







 





 

D. “BENEFICIAL
OWNER” or “BENEFICIAL OWNERSHIP” shall have the
meaning ascribed to such term in Rule 13d-3 of the General Rules
and Regulations under the Exchange Act.

 

E. “BOARD”
or “BOARD OF DIRECTORS” means the Board of Directors of
the Company.

 

F. “CHANGE IN
CONTROL” shall be deemed to have occurred as of the first day
that any one or more of the following conditions shall have been
satisfied:

 




1.

the
“Beneficial Ownership” of securities as defined in Rule
13d-3 under the Exchange Act representing more than fifty percent
(50%) of the combined voting power of the Company is acquired by
any “person” as defined in Section 3(a)(9) of the
Exchange Act (other than the Company, any trustee or other
fiduciary holding securities under an employee benefit plan of the
Company, or any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions
as their ownership of stock of the Company); or





 




2.

the consummation of
a definitive agreement to merge or consolidate the Company with or
into another corporation or to sell or otherwise dispose of all or
substantially all of its assets, or adopt a plan of liquidation
other than for the sole purpose of changing the company’s
domicile or a recapitalization or reorganization and that results
in more than 50% change in stock ownership.





 


Notwithstanding the
foregoing, with respect to any Award subject to Code
Section 409A, a “Change in Control” of the Company
is deemed to have occurred as of the first day that any one or more
of the following conditions shall have been satisfied:

 




3.

Change in Ownership: A change
in ownership of the Company occurs on the date that any one person,
or more than one person acting as a group, acquires ownership of
stock of the Company that, together with stock held by such person
or group, constitutes more than fifty percent (50%) of the total
fair market value or total voting power of the stock of the
Company, excluding the acquisition of additional stock by a person
or more than one person acting as a group who is considered to own
more than fifty percent (50%) of the total fair market value or
total voting power of the stock of the Company.





 




4.

Change in Effective Control: A
change in effective control of the Company occurs only on either of
the following dates:





 




a.

The date any one
person, or more than one person acting as a group, acquires (or has
acquired during the twelve (12) month period ending in the date of
the most recent acquisition by such person or persons) ownership of
stock of the Company possessing 50% or more of the total voting
power of the stock of the Company; or





 




b.

The date a majority
of the members of the Board is replaced during any (12) month
period by directors whose appointment or election is not endorsed
by a majority of the members of the board of directors before the
date of the appointment or election; provided that this paragraph
(b) shall apply only to the company for which no other corporation
is a majority shareholder.





 




5.

Change in Ownership of Substantial
Assets: A change in the ownership of a substantial portion
of the Company’s assets occurs on the date that any one
person, or more than one person acting as a group, acquires (or has
acquired during the twelve (12) month period ending on the date of
the most recent acquisition by such person or persons) assets from
the Company that have a total gross fair market value equal to or
more than forty percent (40%) of the total gross fair market value
of the assets of the Company, or the value of the assets being
disposed of, determined without regard to any liabilities
associated with such assets.





 


It is
the intent that this definition be construed to satisfy the
definition of “Change of Control” as defined under
Internal Revenue Code Section 409A and the applicable Treasury
Regulations, as amended from time to time.

 

G. “CODE”
means the Internal Revenue Code of 1986, as amended from time to
time.

 

H. “COMPANY”
means TOMI Environmental Solutions, Inc., a Florida corporation,
including any and all Subsidiaries, and any successor thereto as
provided in Article XX
herein.

 



 

2







 





 

I. “COVERED
EMPLOYEE” means a Participant who, as of the date of vesting
and/or payout of an Award, as applicable, is one of the group of
“covered employees,” as defined in Code
Section 162(m) and the regulations promulgated under Code
Section 162(m), or any successor statute.

 

J. “DIRECTOR”
means any individual who is a member of the Board of Directors of
the Company or any Subsidiary; provided, however, that any Director
who is employed by the Company shall be considered an Employee
under the Plan.

 

K. “DISABILITY”
with respect to any Award, a Participant shall be considered
Disabled if the Participant is considered “disabled”
under the Company’s long-term disability plan then in effect,
or if none, then if the Participant qualifies to receive disability
payments under the federal Social Security Act.

 

L. “EFFECTIVE
DATE” shall mean January 29, 2016.

 

M. “EMPLOYEE”
means any full-time, active employee of the Company or its
Subsidiaries. Directors who are not employed by the Company shall
not be considered Employees under this Plan.

 

N. “EXCHANGE
ACT” means the Securities Exchange Act of 1934, as amended
from time to time, or any successor act thereto.

 

O. “FAIR MARKET
VALUE” means, as of any date, the value of a Share determined
as follows:

 




1.

if such Shares then
publicly traded on a national securities exchange, its closing
price on the date of determination on the principal national
securities exchange on which the Shares are listed or admitted to
trading as reported in The Wall Street Journal;





 




2.

if such Shares are
publicly traded but is not listed or admitted to trading on a
national securities exchange, the average of the closing bid and
asked prices on the date of determination as reported by The Wall
Street Journal (or, if not so reported, as otherwise reported by
any newspaper or other source as the Committee may determine);
or





 




3.

if none of the
foregoing is applicable to the valuation in question, by the
Committee in good faith.





 

P. “FREESTANDING
SAR” means an SAR that is granted independently of any
Options, as described in Article VII herein.

 

Q. “INCENTIVE
STOCK OPTION” or “ISO” means an option to
purchase Shares granted under Article VI herein and which is designated as an
Incentive Stock Option and which is intended to meet the
requirements of Code Section 422.

 

R. “INSIDER”
shall mean an individual who is, on the relevant date, an officer,
director or more than ten percent (10%) Beneficial Owner of any
class of the Company’s equity securities that is registered
pursuant to Section 12 of the Exchange Act, all as defined
under Section 16 of the Exchange Act.

 

S. “NON-EMPLOYEE
DIRECTOR” shall mean a Director who is not also an
Employee.

 

T. “NON-QUALIFIED
STOCK OPTION” or “NQSO” means an option to
purchase Shares granted under Article VI herein and which is not intended to
meet the requirements of Code Section 422.

 

U. “OPTION”
means an Incentive Stock Option or a Nonqualified Stock Option, as
described in Article VI
herein.

 



 

3







 





 

V. “OPTION
PRICE” means the price at which a Share may be purchased by a
Participant pursuant to an Option.

 

W. “PARTICIPANT”
means: (1) an Employee or consultant who has been selected to
receive an Award or who has an outstanding Award granted under the
Plan; or (2) a Non-Employee Director who has been selected to
receive an Award other than an Incentive Stock Option, Performance
Share or Performance Unit or who has an outstanding Award other
than an Incentive Stock Option, Performance Share or Performance
Unit granted under the Plan.

 

X. “PERFORMANCE-BASED
EXCEPTION” means the performance-based exception from the tax
deductibility limitations of Code Section 162(m).

 

Y. “PERFORMANCE
SHARE” means an Award granted to a Participant (other than a
Non-Employee Director), as described in Article X herein, that shall have an initial
value equal to the Fair Market Value of a Share on the date of
grant.

 

Z. “PERFORMANCE
UNIT” means an Award granted to a Participant (other than a
Non-Employee Director), as described in Article X herein, that shall have an initial
value that is established by the Committee on the date of
grant.

 

AA. “PERIOD OF
RESTRICTION” means the period during which the transfer of
Shares of Restricted Stock or Restricted Stock Units is limited in
some way (based on the passage of time, the achievement of
performance goals or upon the occurrence of other events as
determined by the Committee, at its discretion, as specified in the
Award Agreement), and the Shares are subject to a substantial risk
of forfeiture, as provided in Article VIII and Article IX herein.

 

BB. “PERSON”
shall have the meaning ascribed to such term in
Section 3(a)(9) of the Exchange Act and used in
Sections 13(d) and 14(d) thereof, including a
“group” as defined in Section 13(d)
thereof.

 

CC. “RESTRICTED
STOCK” means an Award granted to a Participant pursuant to
Article VIII
herein.

 

DD. “RESTRICTED
STOCK UNIT” or “RSU” means an award granted to a
Participant pursuant to Article IX herein.

 

EE. “SEPARATION
FROM SERVICE” means a termination of employment or other
separation from service as described in Code Section 409A and
the regulations thereunder.

 

FF. “SHARES”
means the shares of common stock of the Company.

 

GG. “SPECIFIED
EMPLOYEE” means, with respect to the Company or any of its
Subsidiaries, and determined as of the date of an
individual’s separation from service from the Company (1) any
officer during the prior twelve (12) month period with annual
compensation in excess of $170,000 (as adjusted from time to time
under the Code), (2) a 5-percent owner of the Company’s
outstanding equity stock during the prior twelve (12) month period
or (3) a 1-percent owner of the Company’s outstanding equity
stock during the prior (12) month period with annual compensation
in excess of $150,000, provided that the Company or any of its
Subsidiaries is publicly-traded within the meaning of Code
Section 409A on the date of determination.

 

HH. “STOCK
APPRECIATION RIGHT” or “SAR” means an Award,
granted alone or, in connection with a related Option, designated
as an SAR, pursuant to the terms of Article VII herein.

 

II. “SUBSIDIARY”
means any corporation, partnership, joint venture or other entity
in which the Company has a majority voting interest (including all
divisions, affiliates and related entities).

 

JJ. “TANDEM
SAR” means an SAR that is granted in connection with a
related Option pursuant to Article VII herein, the exercise of which shall
require forfeiture of the right to purchase a Share under the
related Option (and when a Share is purchased under the Option, the
Tandem SAR shall similarly be canceled).

 



 

4







 





 

III. ADMINISTRATION

 

A. THE COMMITTEE. The
Plan shall be administered by either the full Board, or by a
committee of the Board (either the full Board or the committee is
referred to hereinafter as the “Committee”) consisting
of not less than two Directors who meet the “Non-Employee
Director” requirements of Rule 16b-3 promulgated by the
Securities and Exchange Commission under the Exchange Act, the
“Independent Director” requirements of the Nasdaq
listing rules, and the outside director requirements of Code
Section 162(m), or by any other committee appointed by the
Board, provided the members of such committee meet such
requirements.

 

B. AUTHORITY OF THE
COMMITTEE. Except as limited by law or by the Articles of
Incorporation or Bylaws of the Company, and subject to the
provisions herein, the Committee shall have full power to select
Employees and Non-Employee Directors who shall participate in the
Plan; determine the sizes and types of Awards; determine the terms
and conditions of Awards in a manner consistent with the Plan;
construe and interpret the Plan and any agreement or instrument
entered into under the Plan; establish or amend rules and
regulations for the Plan’s administration; and (subject to
the provisions of Article XV
herein) amend the terms and conditions of any outstanding Award to
the extent such terms and conditions are within the discretion of
the Committee as provided in the Plan. Further, the Committee is
empowered hereby to make all other determinations which may be
necessary or advisable for the administration of the Plan. As
permitted by law, the Committee may delegate its authority as
identified herein.

 

C. DECISIONS BINDING.
All determinations and decisions made by the Committee pursuant to
the provisions of the Plan and all related orders and resolutions
of the Board shall be final, conclusive and binding on all persons,
including the Company, its stockholders, Directors, Employees,
Participants and their estates and beneficiaries.

 

IV. 

SHARES SUBJECT TO THE PLAN AND MAXIMUM
AWARDS

 

A. NUMBER OF SHARES
AVAILABLE FOR GRANTS. Subject to Sections IV.B and IV.C
herein, the maximum number of Shares with respect to which Awards
may be granted to Participants under the Plan shall be Two Million
(2,000,000). Shares issued under the Plan may be either authorized
but unissued Shares, treasury Shares or any combination
thereof.

 


Unless
and until the Committee determines that an Award to a Covered
Employee is not designed to comply with the Performance-Based
Exception, the following rules shall apply to grants of Awards to
Covered Employees under the Plan, subject to Sections IV.B and IV.C.

 




1.

STOCK OPTIONS: The
maximum aggregate number of Shares that may be subject to Stock
Options granted in any one fiscal year to any one Participant shall
be one hundred thousand (100,000).





 




2.

SARs: The maximum
aggregate number of Shares that may be granted in the form of SARs
granted in any one fiscal year to any one Participant shall be one
hundred thousand (100,000).





 




3.

RESTRICTED STOCK:
The maximum aggregate grant with respect to Awards of Restricted
Stock which are granted in any one fiscal year to any one
Participant shall be one hundred thousand (100,000)
Shares.





 




4.

RESTRICTED STOCK
UNITS: The maximum aggregate payment (determined as of the date of
grant) with respect to Awards of RSUs granted in any one fiscal
year to any one Participant shall be equal to the Fair Market Value
of one hundred thousand (100,000) Shares; provided, however, that
the maximum aggregate grant of Restricted Stock and RSUs for any
one fiscal year shall be coordinated so that in no event shall any
one Participant be awarded more than the Fair Market Value of one
hundred thousand (100,000) Shares taking into account all such
grants.





 




5.

PERFORMANCE SHARES:
The maximum aggregate payout (determined as of the event of the
applicable performance period) with respect to Awards of
Performance Shares which are granted in any one fiscal year to any
one Participant shall be equal to the Fair Market Value of one
hundred thousand (100,000) Shares.





 




6.

PERFORMANCE
UNITS: The maximum aggregate payout (determined as of the end of
the applicable performance period) with respect to Awards of
Performance Units which are granted in any one fiscal year to any
one Participant shall be equal to one million five hundred thousand
dollars ($1,500,000).





 



 

5







 





 

B. ADJUSTMENTS FOR
AWARDS AND PAYOUTS. Unless determined otherwise by the Committee,
the following Awards and payouts will reduce, on a one-for-one
basis, the number of Shares available for issuance under the
Plan:

 




1.

An Award of an
Option;





 




2.

An Award of a
SAR;





 




3.

An Award of
Restricted Stock;





 




4.

A payout of a
Performance Share Award in Shares; and





 




5.

A payout of a
Performance Units Award in Shares.





 


Unless
determined otherwise by the Committee, unless a Participant has
received a benefit of ownership such as dividend or voting rights
with respect to the Award, the following transactions will restore,
on a one-for-one basis, the number of Shares available for issuance
under the Plan:

 




1.

A payout of a SAR
or a Tandem SAR in cash;





 




2.

A cancellation,
termination, expiration, forfeiture or lapse for any reason (with
the exception of the termination of a Tandem SAR upon exercise of
the related Options, or the termination of a related Option upon
exercise of the corresponding Tandem SAR) of any Award payable in
Shares;





 




3.

Shares tendered in
payment of the exercise price of an Option;





 




4.

Shares withheld for
payment of federal, state or local taxes;





 




5.

Shares repurchased
by the Company with proceeds collected in connection with the
exercise of outstanding Options; and





 




6.

The net Shares
issued in connection with the exercise of SARs (as opposed to the
full number of Shares underlying the exercised portion of the
SAR).





 

C. ADJUSTMENTS IN
AUTHORIZED SHARES. In the event of any change in corporate
capitalization such as a stock split or stock dividend, or a
corporate transaction such as any merger, consolidation,
separation, including a spin-off, or other distribution of stock or
property of the Company, any reorganization (whether or not such
reorganization comes within the definition of such term in Code
Section 368) or any partial or complete liquidation of the
Company, such adjustment shall be made in the number and class of
Shares which are reserved and may be delivered under
Section IV.A, in the number and
class of and/or price of Shares subject to outstanding Awards
granted under the Plan, and in the Award limits set forth in
subsections IV.A.1 through
IV.A.6, inclusive as may be determined
to be appropriate and equitable by the Committee, in its sole
discretion, to prevent dilution or enlargement of rights; provided,
however, that the number of Shares subject to any Award shall
always be a whole number.

 



 

6







 





 

V. ELIGIBILITY AND
PARTICIPATION

 

A. ELIGIBILITY.
Persons eligible to participate in this Plan include officers and
certain key salaried Employees of the Company with potential to
contribute to the success of the Company or its Subsidiaries,
including Employees who are members of the Board. Notwithstanding
the foregoing, Non-Employee Directors of the Company or consultants
shall be eligible to participate in the Plan with respect to Awards
of Non-Qualified Stock Options, Stock Appreciation Rights,
Restricted Stock and RSUs, as specified in Article VI, Article VII, Article VIII and Article IX. Except as otherwise specifically
provided in this Plan, the Committee shall determine the terms and
conditions of any such Awards to Non-Employee Directors, including
the terms and conditions which shall apply upon a termination of
the Non-Employee Director’s service as a member of the Board,
and shall have full power and authority in its discretion to
administer such Awards, subject to the terms of the Plan and
applicable law.

 

B. ACTUAL
PARTICIPATION. Subject to the provisions of the Plan, the Committee
may, from time to time, select in its sole and broad discretion,
upon or without the recommendation of officers of the Company, from
all eligible Employees those to whom Awards shall be granted, and
shall determine the nature and amount of each Award.

 

VI. 

STOCK OPTIONS

 

A. GRANT OF OPTIONS.
Subject to the terms and provisions of the Plan, Options may be
granted to Participants in such number, and upon such terms, and at
any time and from time to time as shall be determined by the
Committee. For purposes of this Article VI, with respect to NQSOs only, the term
“Participant” shall include Non-Employee Directors and
consultants of the Company.

 

B. AWARD AGREEMENT.
Each Option grant shall be evidenced by an Award Agreement that
shall specify the Option Price, the duration of the Option, the
number of Shares to which the Option pertains, and such other
provisions as the Committee shall determine. The Award Agreement
also shall specify whether the Option is intended to be an ISO
within the meaning of Code Section 422, or an NQSO, whose
grant is intended not to fall under the provisions of Code
Section 422.

 

C. OPTION PRICE. The
Option Price for each grant of an Option under this Plan shall be
at least equal to one hundred percent (100%) of the Fair Market
Value of a Share on the date the Option is granted. Notwithstanding
the foregoing, no ISO shall be granted to any person who,
immediately prior to the grant, owns stock possessing more than ten
percent (10%) of the total combined voting power of all classes of
stock of the Company, unless the Option Price is at least one
hundred ten percent (110%) of the Fair Market Value of a Share on
the date of grant of the Option.

 

D. DURATION OF
OPTIONS. Each Option granted to a Participant shall expire at such
time as the Committee shall determine at the time of grant;
provided, however, that no Option shall be exercisable later than
the tenth (10th) anniversary following the date of its grant and
provided further that no Option that is an ISO shall be exercisable
later than the fifth (5th) anniversary following the date of its
grant to a Participant, who at the time of such grant owns stock
possessing more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company.

 

E. EXERCISE OF
OPTIONS. Options granted under this Article VI shall be exercisable at such times and
be subject to such restrictions and conditions as the Committee
shall in each instance approve, which need not be the same for each
grant or for each Participant.

 

F. PAYMENT. Options
granted under this Article VI shall be exercised by the delivery of
a written notice of exercise to the Company, setting forth the
number of Shares with respect to which the Option is to be
exercised, accompanied by full payment for the Shares.

 



 

7







 





 


The
Option Price upon exercise of any Option shall be payable to the
Company in full either: (a) in cash or its equivalent; or (b) by
tendering previously acquired Shares having an aggregate Fair
Market Value at the time of exercise equal to the total Option
Price (provided that the Shares which are tendered must have been
held by the Participant for at least six months prior to their
tender to satisfy the Option Price); or (c) by a combination of (a)
and (b).

 


The
Committee, in its discretion, may also (a) allow cashless exercise
as permitted under Federal Reserve Board’s Regulation T,
subject to applicable securities law restrictions, (b) cashless
exercise by the Participant by the Company’s withholding of
Shares issuable upon exercise of an Option, or (c) by any other
means which the Committee determines to be consistent with the
Plan’s purpose and applicable law.

 


Subject
to any governing rules or regulations, as soon as practicable after
receipt of a written notification of exercise and full payment, the
Company shall deliver to the Participant, in the
Participant’s name, Share certificates in an appropriate
amount based upon the number of Shares purchased under the
Option(s).

 

G. RESTRICTIONS ON
SHARE TRANSFERABILITY. The Committee may impose such restrictions
on any Shares acquired pursuant to the exercise of an Option
granted under this Article VI as it may deem advisable, including,
without limitation, restrictions under applicable federal
securities laws, under the requirements of any stock exchange or
market upon which such Shares are then listed and/or traded, and
under any blue sky or state securities laws applicable to such
Shares.

 

H. TERMINATION OF
EMPLOYMENT BY A PARTICIPANT WHO IS AN EMPLOYEE. With respect to a
Participant who is an Employee, each Option Award Agreement shall
set forth the extent to which the Participant shall have the right
to exercise the Option following termination of the
Participant’s employment with the Company, with the exception
of a termination of employment after a Change in Control, which is
controlled by Article XVII.
Such provisions shall be determined in the sole discretion of the
Committee but shall conform to the limitations established in
Section VI.D, shall be included in
the Award Agreement entered into with each Participant, need not be
uniform among all Options issued pursuant to this
Article VI, and may reflect
distinctions based on the reasons for termination of
employment.

 

I. NONTRANSFERABILITY
OF OPTIONS.

 




1.

INCENTIVE STOCK
OPTIONS. No ISO granted under the Plan may be sold, transferred,
pledged, assigned or otherwise alienated or hypothecated, other
than by will or by the laws of descent and distribution. Further,
all ISOs granted to a Participant under the Plan shall be
exercisable during his or her lifetime only by such Participant or
the Participant’s legal representative (to the extent
permitted under Code Section 422).





 




2.

NONQUALIFIED STOCK
OPTIONS. No NQSO granted under this Article VI may be sold, transferred, pledged,
assigned or otherwise alienated or hypothecated, other than by will
or by the laws of descent and distribution. Further, except as
otherwise provided in a Participant’s Award Agreement, all
NQSOs granted to a Participant under this Article VI shall be exercisable during his or her
lifetime only by such Participant or the Participant’s legal
representative.





 



 

8







 





 

VII. STOCK APPRECIATION
RIGHTS

 

A. GRANT OF SARS.
Subject to the terms and conditions of the Plan, SARs may be
granted to Participants at any time and from time to time as shall
be determined by the Committee. The Committee may grant
Freestanding SARs, Tandem SARs or any combination of these forms of
SAR. For purposes of this Article VII, the term “Participant”
shall include Non-Employee Directors of the Company and
consultants; provided, however, that a Tandem SAR may not be
granted to a Non-Employee Director or consultant unless the related
Option is a NQSO.

 


The
Committee shall have complete discretion in determining the number
of SARs granted to each Participant (subject to
Article IV herein) and,
consistent with the provisions of the Plan, in determining the
terms and conditions pertaining to such SARs.

 


The
grant price of a Freestanding SAR shall equal the Fair Market Value
of a Share on the date of grant of the SAR. The grant price of
Tandem SARs shall equal the Option Price of the related
Option.

 

B. EXERCISE OF TANDEM
SARS. Tandem SARs may be exercised for all or part of the Shares
subject to the related Option upon the surrender of the right to
exercise the equivalent portion of the related Option. A Tandem SAR
may be exercised only with respect to the Shares for which its
related Option is then exercisable.

 


Notwithstanding any
other provision of this Plan to the contrary, with respect to a
Tandem SAR granted to an Employee in connection with an ISO: (i)
the Tandem SAR will expire no later than the expiration of the
underlying ISO; (ii) the value of the payout with respect to the
Tandem SAR may be for no more than one hundred percent (100%) of
the difference between the Option Price of the underlying ISO and
the Fair Market Value of the Shares subject to the underlying ISO
at the time the Tandem SAR is exercised; and (iii) the Tandem SAR
may be exercised only when the Fair Market Value of the Shares
subject to the ISO exceeds the Option Price of the
ISO.

 

C. EXERCISE OF
FREESTANDING SARS. Freestanding SARs may be exercised upon whatever
terms and conditions the Committee, in its sole discretion, imposes
upon them.

 

D. SAR AGREEMENT. Each
SAR grant shall be evidenced by an Award Agreement that shall
specify the grant price, the term of the SAR, and such other
provisions as the Committee may determine.

 

E. TERM OF SARS. The
term of an SAR granted under the Plan shall be determined by the
Committee, in its sole discretion; provided, however, that such
term shall not exceed ten (10) years.

 

F. PAYMENT OF SAR
AMOUNT. Upon exercise of an SAR, a Participant shall be entitled to
receive payment from the Company in an amount determined by
multiplying:

 




1.

the difference
between the Fair Market Value of a Share on the date of exercise
over the grant price; by





 




2.

the number of
Shares with respect to which the SAR is exercised.





 


At the
discretion of the Committee, the payment upon SAR exercise may be
in cash, in Shares of equivalent value, or in some combination
thereof. The Committee’s determination regarding the form of
SAR payout shall be set forth in the Award Agreement pertaining to
the grant of the SAR.

 



 

9







 





 

G. TERMINATION OF
EMPLOYMENT BY A PARTICIPANT WHO IS AN EMPLOYEE. With respect to a
Participant who is an Employee, each SAR Award Agreement shall set
forth the extent to which the Participant shall have the right to
exercise the SAR following termination of the Participant’s
employment with the Company and/or its Subsidiaries, with the
exception of a termination of employment that occurs after a Change
in Control, which is controlled by Article XVII. Such provisions shall be determined
in the sole discretion of the Committee, shall be included in the
Award Agreement entered into with Participants, need not be uniform
among all SARs issued pursuant to the Plan and may reflect
distinctions based on the reasons for termination of
employment.

 

H. NONTRANSFERABILITY
OF SARS. No SAR granted under the Plan may be sold, transferred,
pledged, assigned or otherwise alienated or hypothecated, other
than by will or by the laws of descent and distribution. Further,
except as otherwise provided in a Participant’s Award
Agreement, all SARs granted to a Participant under the Plan shall
be exercisable during his or her lifetime only by such Participant
or the Participant’s legal representative.

 

VIII. RESTRICTED STOCK

 

A. GRANT OF RESTRICTED
STOCK. Subject to the terms and provisions of the Plan, the
Committee, at any time and from time to time, may grant Shares of
Restricted Stock to Participants in such amounts as the Committee
shall determine. For purposes of this Article VIII, the term “Participant”
shall include Non-Employee Directors of the Company and
consultants.

 

B. RESTRICTED STOCK
AGREEMENT. Each Restricted Stock grant shall be evidenced by a
Restricted Stock Award Agreement that shall specify the Period(s)
of Restriction, the number of Shares of Restricted Stock granted
and such other provisions as the Committee shall
determine.

 

C. NONTRANSFERABILITY.
Except as provided in this Article VIII and subject to federal securities
laws, the Shares of Restricted Stock granted under the Plan may not
be sold, transferred, pledged, assigned or otherwise alienated or
hypothecated until the end of the applicable Period of Restriction
established by the Committee and specified in the Restricted Stock
Award Agreement, or upon earlier satisfaction of any other
conditions, as specified by the Committee in its sole discretion
and as set forth in the Restricted Stock Award Agreement. All
rights with respect to the Restricted Stock granted to a
Participant under the Plan shall be available during his or her
lifetime only to such Participant or the Participant’s legal
representative for the Period of Restriction.

 

D. OTHER RESTRICTIONS.
Subject to Article XI
herein, the Committee may impose such other conditions and/or
restrictions on any Shares of Restricted Stock granted pursuant to
the Plan as it may deem advisable including, without limitation, a
requirement that Participants pay a stipulated purchase price for
each Share of Restricted Stock, restrictions based upon the
achievement of specific performance goals (Company-wide, divisional
and/or individual), time-based restrictions on vesting following
the attainment of the performance goals and/or restrictions under
applicable federal or state securities laws.

 


The
Company may retain the certificates representing Shares of
Restricted Stock in the Company’s possession until such time
as all conditions and/or restrictions applicable to such Shares
have been satisfied.

 


Except
as otherwise provided in this Article VIII and subject to Federal securities
laws, Shares of Restricted Stock covered by each Restricted Stock
grant made under the Plan shall become freely transferable by the
Participant after the last day of the applicable Period of
Restriction.

 

E. VOTING RIGHTS.
Participants holding Shares of Restricted Stock granted hereunder
may be granted the right to exercise full voting rights with
respect to those Shares during the Period of
Restriction.

 



 

10







 





 

F. DIVIDENDS AND
OTHER DISTRIBUTIONS. During the Period of Restriction, Participants
holding Shares of Restricted Stock granted hereunder shall be
credited with regular cash dividends paid with respect to the
underlying Shares while they are so held. The Committee may apply
any restrictions to the dividends that the Committee deems
appropriate. Without limiting the generality of the preceding
sentence, if the grant or vesting of Restricted Stock granted to a
Covered Employee is designed to comply with the requirements of the
Performance-Based Exception, the Committee may apply any
restrictions it deems appropriate to the payment of dividends
declared with respect to such Restricted Stock, such that the
dividends and/or the Restricted Stock maintain eligibility for the
Performance-Based Exception. Notwithstanding anything to the
contrary herein, (i) dividends accrued on Restricted Stock will
only be paid if the Restricted Stock vests; and (ii) for any Award
that is governed by Code Section 409A regarding non-qualified
deferred compensation, the Committee shall establish the schedule
of any payments of dividends in accordance with the requirements of
Code Section 409A or any guidance promulgated
thereunder.

 

G. TERMINATION OF
EMPLOYMENT BY A PARTICIPANT WHO IS AN EMPLOYEE. With respect to a
Participant who is an Employee, each Restricted Stock Award
Agreement shall set forth the extent to which the Participant shall
have the right to receive nonvested Restricted Shares following
termination of the Participant’s employment with the Company.
Such provisions shall be determined in the sole discretion of the
Committee, shall be included in the Award Agreement entered into
with each Participant, need not be uniform among all Shares of
Restricted Stock issued pursuant to the Plan and may reflect
distinctions based on the reasons for termination of
employment.

 

H. ADDITIONAL
PROVISIONS RELATED TO RESTRICTED STOCK AWARDS TO NON-EMPLOYEE
DIRECTORS.

 




1.

AWARD DATES.
Effective as of the date specified by the Committee in its sole
discretion, each Non-Employee Director will be awarded such number
of Shares of Restricted Stock as determined by the Board, after
consideration of the recommendation of the Committee. Non-Employee
Directors may, but need not, be awarded the same number of Shares
of Restricted Stock. A Non-Employee Director who is first elected
to the Board on a date subsequent to the date specified by the
Committee in its sole discretion will be awarded such number of
Shares of Restricted Stock as of such date of election as
determined by the Board, after consideration of the recommendation
of the Committee.





 




2.

DIVIDEND RIGHTS OF
HOLDERS OF RESTRICTED STOCK. Notwithstanding Section VIII.F., upon issuance of a Restricted Stock
Agreement, the Non-Employee Director in whose name the Restricted
Stock Agreement is registered will, subject to the provisions of
the Plan have the right to receive cash dividends and other cash
distributions thereon.





 




3.

PERIOD OF
RESTRICTION. Restricted Stock will be subject to the restrictions
set forth in Section VIII.H.4. and
the other provisions of the Plan during the Period of Restriction
commencing on the date as of which the Restricted Stock is awarded
(the “Award Date”) and ending on the earliest of the
first to occur of the following:





 




a.

the retirement of
the Non-Employee Director from the Board in compliance with the
Board’s retirement policy as then in effect;





 




b.

the termination of
the Non-Employee Director’s service on the Board as a result
of the Non-Employee Director’s not being nominated for
reelection by the Board;





 




c.

the termination of
the Non-Employee Director’s service on the Board because of
the Non-Employee Director’s resignation or failure to stand
for reelection with the consent of the Company’s Board (which
means approval by at least 80% of the Directors voting, with the
affected Non-Employee Director abstaining);





 



 

11







 





 




d.

the termination of
the Non-Employee Director’s service on the Board because the
Non-Employee Director, although nominated for reelection by the
Board, is not reelected by the stockholders;





 




e.

the termination of
the Non-Employee Director’s service on the Board because of
(i) the Non-Employee’s Director’s resignation at the
request of the Board or the Nominating and Governance Committee of
the Board (or successor committee), (ii) the Non-Employee
Director’s removal by action of the stockholders or by the
Board, or (iii) a Change in Control of the Company;





 




f.

the termination of
the Non-Employee Director’s service on the Board because of
Disability or death; or





 




g.

the vesting of the
Restricted Stock.





 


Section VIII.H.3.a.
through g. above are subject to the further restrictions that a
removal or resignation for “Cause” will be deemed to
not constitute completion of the Period of Restriction and will
result in a forfeiture of Restricted Stock not previously vested
under Section VIII.H.4. For
purposes of this Plan, “Cause” will be a good faith
determination by the Board that the Non-Employee Director (i)
failed to substantially perform his or her duties (other than a
failure resulting from his or her incapacity due to physical or
mental illness) after a written demand for substantial performance
has been delivered to him or her by the Board, which demand
specifically identifies the manner in which the Board believes such
Non-Employee Director has not substantially performed his or her
duties; (ii) has engaged in conduct the consequences of which are
materially adverse to the Company, monetarily or otherwise; or
(iii) has pleaded guilty or nolo contendere to or been convicted of
a felony. The Non-Employee Director will not be deemed to have been
terminated for Cause unless there will have been delivered to the
Non-Employee Director a letter from the Board setting forth the
reasons for the Company’s termination of the Non-Employee
Director for Cause and, with respect to (i) or (ii), stating that
the Non-Employee Director has failed to cure such reason for
termination within thirty (30) days after the Non-Employee
Director’s receipt of such notice.

 




4.

FORFEITURE OF
RESTRICTED STOCK. As of the date (“Termination Date”) a
Non-Employee Director ceases to be a member of the Board for any
reason, including but not limited to removal or resignation for
Cause, the Non-Employee Director shall forfeit to the Company all
Restricted Stock awarded to the Non-Employee Director for which the
Period of Restriction has not ended pursuant to
Section VIII.H.3. as of or prior
to the Termination Date.





 

IX. 

RESTRICTED STOCK UNITS

 

A. GRANT OF RESTRICTED
STOCK UNITS. Subject to the terms of the Plan, RSUs may be granted
to Participants in such amounts and upon such terms, and at any
time and from time to time, as shall be determined by the
Committee. For purposes of this Article IX, the term “Participant”
shall include Non-Employee Directors of the Company and
consultants.

 

B. RESTRICTED STOCK
UNIT AGREEMENT. Each RSU grant shall be evidenced by a Restricted
Stock Unit Award Agreement that shall specify the Period(s) of
Restriction, the number of RSUs granted, and such other provisions
as the Committee may determine.

 

C. VALUE OF RESTRICTED
STOCK UNIT. Each RSU shall have a value that is equal to the Fair
Market Value of a Share on the date of grant.

 

D. FORM AND TIMING OF
PAYMENT OF RESTRICTED STOCK UNITS. Settlement of vested RSUs may be
made in the form of (i) cash, (ii) Shares or (iii) any combination
of both, as determined by the Committee at the time of the grant of
the RSUs, in its sole discretion. Vested RSUs shall be settled in a
lump sum as soon as administratively practicable after the vesting
date, but in no event later than two and one-half (2 1⁄2) months
following the vesting date. The amount of such settlement shall be
equal to the Fair Market Value of the RSUs on the vesting
date.

 



 

12







 





 

E. DIVIDEND
EQUIVALENTS. Each RSU shall be credited with an amount equal to the
dividends paid on a Share between the date of grant and the date
such RSU is paid to the Participant (if at all). Dividend
equivalents shall vest, if at all, upon the same terms and
conditions governing the vesting of RSUs under the Plan. Payment of
the dividend equivalent shall be made at the same time as payment
of the RSU and shall be made without interest or other adjustment.
If the RSU is forfeited, the Participant shall have no right to
dividend equivalents.

 

F. VOTING RIGHTS. The
holders of RSUs shall have no voting rights.

 

G. NONTRANSFERABILITY.
RSUs may not be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, other than by will or by laws of descent
and distribution.

 

X. 

PERFORMANCE UNITS AND PERFORMANCE
SHARES

 

A. GRANT OF
PERFORMANCE UNITS/SHARES. Subject to the terms of the Plan,
Performance Units and/or Performance Shares may be granted to
Participants in such amounts and upon such terms, and at any time
and from time to time, as shall be determined by the
Committee.

 

B. PERFORMANCE
UNIT/SHARE AGREEMENT. Each Performance Unit or Performance Share
grant shall be evidenced by a Performance Unit or Performance Share
Award Agreement, as the case may be, that shall specify the number
of Performance Units or Performance Shares granted and such other
provisions as the Committee may determine.

 

C. VALUE OF
PERFORMANCE UNITS/SHARES. Each Performance Unit shall have an
initial value that is established by the Committee at the time of
grant. Each Performance Share shall have an initial value equal to
the Fair Market Value of a Share on the date of grant. The
Committee shall set performance goals in its discretion which,
depending on the extent to which they are met, will determine the
number and/or value of Performance Units/Shares that will be paid
out to the Participant. For purposes of this Article X, the time period during which the
performance goals must be met shall be called a “Performance
Period.”

 

D. EARNING OF
PERFORMANCE UNITS/SHARES. Subject to the terms of this Plan, after
the applicable Performance Period has ended, the holder of
Performance Units/Shares shall be entitled to receive payout on the
number and value of Performance Units/Shares earned by the
Participant over the Performance Period, to be determined as a
function of the extent to which the corresponding performance goals
have been achieved.

 

E. FORM AND TIMING OF
PAYMENT OF PERFORMANCE UNITS/SHARES. Payment of earned Performance
Units/Shares shall be made in a single lump sum following the close
of the applicable Performance Period. Subject to the terms of this
Plan, the Committee, in its sole discretion, may pay earned
Performance Units/Shares in the form of cash or in Shares (or in a
combination thereof) which have an aggregate Fair Market Value
equal to the value of the earned Performance Units/Shares at the
close of the applicable Performance Period. Such Shares may be
granted subject to any restrictions deemed appropriate by the
Committee. The determination of the Committee with respect to the
form of payout of such Awards shall be set forth in the Award
Agreement pertaining to the grant of the Award. Payment shall be
made no later than two and one-half (2 1⁄2) months following the
close of the Performance Period.

 

F. SEPARATION FROM
SERVICE DUE TO DEATH OR DISABILITY. In the event the Participant
incurs a Separation From Service by reason of death or Disability
during a Performance Period, the Participant shall not receive a
payout of the Performance Units/Shares, unless determined otherwise
by the Committee or set forth in the Participant’s Award
Agreement.

 


Payment
of earned Performance Units/Shares shall be made at a time
specified by the Committee in its sole discretion and set forth in
the Participant’s Award Agreement.

 



 

13







 





 

G. TERMINATION OF
EMPLOYMENT FOR OTHER REASONS. In the event that a
Participant’s employment terminates for any reason other than
those reasons set forth in Section X.F. herein, all Performance Units/Shares
intended to qualify for the Performance-Based Exception shall be
forfeited by the Participant to the Company.

 

H. NONTRANSFERABILITY.
Except as otherwise provided in a Participant’s Award
Agreement, Performance Units/Shares may not be sold, transferred,
pledged, assigned or otherwise alienated or hypothecated, other
than by will or by the laws of descent and distribution. Further,
except as otherwise provided in a Participant’s Award
Agreement, a Participant’s rights under the Plan shall be
exercisable during the Participant’s lifetime only by the
Participant or the Participant’s legal
representative.

 

I. NO DIVIDEND AND
VOTING RIGHTS. Participants will not be entitled to receive any
dividends declared with respect to Shares which have been earned in
connection with grants of Performance Units and/or Performance
Shares, but not yet distributed to Participants nor shall
Participants have voting rights with respect to such
Shares.

 

XI. 

PERFORMANCE MEASURES

 


Unless
and until the Committee proposes for stockholder vote and the
Company’s stockholders approve a change in the general
performance measures set forth in this Article XI, the attainment of which may determine
the degree of payout and/or vesting with respect to Awards to
Covered Employees which measures are designed to qualify for the
Performance-Based Exception, the performance measure(s) to be used
for purposes of such grants may be measured at the Company level,
at a Subsidiary or Affiliate level, or at an operating unit level
and shall be chosen from among the following: net income either
before or after taxes (including adjusted net income), share price,
earnings per share (basic or diluted), total stockholder return,
return on assets, return on equity, operating income, return on
capital or investment, cash flow or adjusted cash flow from
operations, economic value added or adjusted cash flow per Share
(net income plus or minus change in operating assets and
liabilities), debt level, cost reduction targets, and equity
ratios.

 


The
Committee shall have the discretion to adjust the determinations of
the degree of attainment of the preestablished performance goals;
provided, however, that Awards which are designed to qualify for
the Performance-Based Exception, and which are held by Covered
Employees, may not be adjusted upward (the Committee shall retain
the discretion to adjust such Awards downward).

 


In the
event that applicable tax and/or securities laws or exchange
listing standards change to permit Committee discretion to alter
the governing performance measures without obtaining stockholder
approval of such changes, the Committee shall have sole discretion
to make such changes without obtaining stockholder approval. In
addition, in the event that the Committee determines that it is
advisable to grant Awards which shall not qualify for the
Performance-Based Exception, the Committee may make such grants
without satisfying the requirements of Code
Section 162(m).

 


In the
case of any Award which is granted subject to the condition that a
specified performance measure be achieved, no payment under such
Award shall be made prior to the time that the Committee certifies
in writing that the performance measure has been satisfied, in
accordance with Internal Revenue Service requirements. No such
certification is required, however, in the case of an Award that is
based solely on an increase in the value of a Share from the date
such Award was made.

 



 

14







 





 

XII. BENEFICIARY
DESIGNATION

 


Each
Participant under the Plan may, from time to time, name any
beneficiary or beneficiaries (who may be named contingently or
successively) to whom any benefit under the Plan is to be paid in
case of his or her death before he or she receives any or all of
such benefit. Each such designation shall revoke all prior
designations by the same Participant, shall be in a form prescribed
by the Company, and will be effective only when filed by the
Participant in writing with the Company during the
Participant’s lifetime. In the absence of any such designated
beneficiary, benefits remaining unpaid at the Participant’s
death shall be paid to the Participant’s estate.

 

XIII. DEFERRALS

 


The
Committee may permit or require a Participant to defer such
Participant’s receipt of the payment of cash or the delivery
of Shares that would otherwise be due to such Participant by virtue
of the exercise of an Option or SAR, the lapse or waiver of
restrictions with respect to Restricted Stock or Restricted Stock
Units, or the satisfaction of any requirements or goals with
respect to Performance Units/Shares. If any such deferral election
is required or permitted, the Committee shall, in its sole
discretion, establish rules and procedures for such payment
deferrals, provided, however, all deferrals shall be made in
accordance with all applicable requirements of Code
Section 409A or any guidance promulgated
thereunder.

 

XIV. RIGHTS OF EMPLOYEES

 

A. EMPLOYMENT. Nothing
in the Plan shall interfere with or limit in any way the right of
the Company to terminate any Participant’s employment at any
time, nor confer upon any Participant any right to continue in the
employ of the Company.

 

B. PARTICIPATION. No
Employee shall have the right to be selected to receive an Award
under this Plan or, having been so selected, to be selected to
receive a future Award.

 

XV. 

AMENDMENT, MODIFICATION, TERMINATION AND
ADJUSTMENTS

 

A. AMENDMENT,
MODIFICATION, AND TERMINATION. Subject to the terms of the Plan,
the Board, upon recommendation of the Committee, may at any time
and from time to time, alter, amend, suspend or terminate the Plan
in whole or in part for any purpose which the Committee deems
appropriate and that is otherwise consistent with Code
Section 409A; provided, however, no amendment shall, without
shareholder approval, (i) materially increase the benefits accruing
to Participants under the Plan; (ii) materially increase the number
of securities which may be issued under the Plan; or (iii)
materially modify the requirements for participation in the
Plan.

 


Except
in connection with a corporate transaction involving the Company
(including, without limitation, 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 shareholder
approval.

 



 

15







 





 

B. ADJUSTMENT OF
AWARDS UPON THE OCCURRENCE OF CERTAIN UNUSUAL OR NONRECURRING
EVENTS. The Committee may make adjustments in the terms and
conditions of, and the criteria included in, Awards in recognition
of unusual or nonrecurring events (including, without limitation,
the events described in Section IV.C. hereof) affecting the Company or the
financial statements of the Company or of changes in applicable
laws, regulations or accounting principles, whenever the Committee
determines that such adjustments are appropriate in order to
prevent dilution or enlargement of the benefits or potential
benefits intended to be made available under the Plan; provided
that unless the Committee determines otherwise, no such adjustment
shall be authorized to the extent that such authority would be
inconsistent with the Plan or Awards meeting the requirements of
Code Sections 162(m) and 409A, as from time to time
amended.

 

C. AWARDS PREVIOUSLY
GRANTED. Notwithstanding any other provision of the Plan to the
contrary (but subject to Section XV.B. hereof), no termination, amendment or
modification of the Plan shall adversely affect in any material way
any Award previously granted under the Plan without the written
consent of the Participant holding such Award.

 

D. COMPLIANCE WITH
CODE SECTION 162(m). At all times when Code
Section 162(m) is applicable, all Awards granted under this
Plan shall comply with the requirements of Code
Section 162(m); provided, however, that in the event the
Committee determines that such compliance is not desired with
respect to any Award or Awards available for grant under the Plan,
then compliance with Code Section 162(m) will not be required.
In addition, in the event that changes are made to Code
Section 162(m) to permit greater flexibility with respect to
any Award or Awards available under the Plan, the Committee may,
subject to this Article XV,
make any adjustments it deems appropriate consistent with the
changes made to Code Section 162(m).

 

XVI. PAYMENT OF PLAN AWARDS AND
CONDITIONS THEREON

 

A. EFFECT OF
COMPETITIVE ACTIVITY. Anything contained in the Plan to the
contrary notwithstanding, unless otherwise covered in an employment
agreement by and between the Company and the Participant, with
respect to any Participant who is an Employee, if the employment of
any Participant shall terminate, for any reason other than death,
while any Award to such Participant is outstanding hereunder, and
such Participant has not yet received the Shares covered by such
Award or otherwise received the full benefit of such Award, such
Participant, if otherwise entitled thereto, shall receive such
Shares or benefit only if, during the entire period from the date
of such Participant’s termination to the date of such
receipt, such Participant shall have earned such Award by making
himself or herself available, upon request, at reasonable times and
upon a reasonable basis, to consult with, supply information to,
and otherwise cooperate with the Company or any Subsidiary or
Affiliate thereof with respect to any matter that shall have been
handled by him or her or under his or her supervision while he or
she was in the employ of the Company or of any Subsidiary or
Affiliate thereof.

 

B. NONFULFILLMENT OF
COMPETITIVE ACTIVITY CONDITIONS; WAIVERS UNDER THE PLAN. In the
event of a Participant’s nonfulfillment of any condition set
forth in Section XVI.A. hereof,
such Participant’s rights under any Award shall be forfeited
and canceled forthwith; provided, however, that the nonfulfillment
of such condition may at any time (whether before, at the time of,
or subsequent to termination of employment) be waived by the
Committee upon its determination that in its sole judgment there
shall not have been and will not be any substantial adverse effect
upon the Company or any Subsidiary or Affiliate thereof by reason
of the nonfulfillment of such condition.

 

XVII. CHANGE IN CONTROL

 

A. TREATMENT OF
OUTSTANDING AWARDS. Notwithstanding any provisions in the
Participant’s Employment Agreement to the contrary, but
subject to Section XVII.B. herein
or the Plan governing the particular Award, upon the occurrence of
a Change in Control:

 




1.

any and all Options
and SARs granted hereunder shall become fully-vested and
immediately exercisable;





 




2.

any Periods of
Restriction and restrictions imposed on Restricted Stock or RSUs
which are not intended to qualify for the Performance-Based
Exception shall lapse; and





 




3.

any Award intended
to qualify for the Performance-Based Exception shall be earned in
accordance with the applicable Award Agreement.





 



 

16







 





 

B. TERMINATION,
AMENDMENT AND MODIFICATIONS OF CHANGE-IN-CONTROL PROVISIONS.
Notwithstanding any other provision of the Plan or any Award
Agreement provision, the provisions of this Article XVII may not be terminated, amended or
modified on or after the date of an event, commencing upon material
discussions by the Board respecting a possible transaction that
would result in a Change in Control, which is likely to give rise
to a Change in Control to affect adversely any Award theretofore
granted under the Plan without the prior written consent of the
Participant with respect to said Participant’s outstanding
Awards.

 

XVIII. TAX PROVISIONS

 

A. TAX WITHHOLDING.
The Company shall have the power and the right to deduct or
withhold, or require a Participant who is an Employee to remit to
the Company, an amount sufficient to satisfy federal, state and
local taxes, domestic or foreign, required by law or regulation to
be withheld with respect to any taxable event arising as a result
of this Plan.

 

B. SHARE WITHHOLDING.
With respect to withholding required upon the exercise of Options
or SARs, upon the lapse of restrictions on Restricted Stock or
Restricted RSUs, upon achievement of the performance goals on
Performance Shares or Performance Units or upon any other taxable
event arising as a result of Awards granted hereunder, Participants
who are Employees may elect, subject to the approval of the
Committee, to satisfy the withholding requirement, in whole or in
part, by having the Company withhold Shares having a Fair Market
Value on the date the tax is to be determined at least equal to the
minimum, but not more than the maximum, statutory tax which could
be imposed on the transaction. All such elections shall be
irrevocable, made in writing, and signed by the Participant, and
shall be subject to any restrictions or limitations that the
Committee, in its sole discretion, deems appropriate.

 

C. REQUIREMENT OF
NOTIFICATION OF CODE SECTION 83(b) ELECTION. If any
Participants shall make an election under Code Section 83(b)
(to include in gross income in the year of transfer the amounts
specified in Code Section 83(b)) or under a similar provisions
of the laws of a jurisdiction outside the United States, such
Participant shall notify the Company of such election within ten
(10) days after filing notice of the election with the Internal
Revenue Service or other government authority, in addition to any
filing and notification required pursuant to regulations issued
under Code Section 83(b) or other applicable
provision.

 

D. REQUIREMENT OF
NOTIFICATION UPON DISQUALIFYING DISPOSITION UNDER CODE
SECTION 421(b). If any Participant shall make any disposition
of shares of stock delivered pursuant to the exercise of an
Incentive Stock Option under the circumstances described in Code
Section 421(b) (relating to certain disqualifying
dispositions), such Participant shall notify the Company of such
disposition within ten (10) days thereof.

 

XIX. 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 (including
without limitation reasonable attorney’s fees and expenses)
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 thereof, with the Company’s approval, or
paid by him or her in satisfaction of any judgment in any such
action, suit or proceeding against him or her, provided he or she
shall give the Company an opportunity, at its own expense, to
handle and defend the same before he or she undertakes to handle
and defend it on his or her own behalf. The foregoing right of
indemnification shall not be exclusive of any other rights of
indemnification to which such persons may be entitled under the
Company’s Articles of Incorporation or Bylaws, as a
matter of law or otherwise, or any power that the Company may have
to indemnify them or hold them harmless.

 

XX. 

SUCCESSORS

 


All
obligations of the Company under the Plan with respect to Awards
granted hereunder shall be binding on any successor to the Company,
whether the existence of such successor is the result of a direct
or indirect purchase, merger, consolidation or otherwise, of all or
substantially all of the business or assets of the
Company.

 

XXI. LEGAL CONSTRUCTION

 

A. 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.

 

B. SEVERABILITY. In
the event any provision of the Plan shall be held illegal or
invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Plan, and the Plan shall be
construed and enforced as if the illegal or invalid provision had
not been included.

 



 

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C. REQUIREMENTS OF
LAW. The granting of Awards and the issuance of Shares under the
Plan shall be subject to all applicable laws, rules and
regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required.

 

D. SECURITIES LAW
COMPLIANCE. With respect to Insiders, transactions under this Plan
are intended to comply with all applicable conditions of Rule 16b-3
or its successors under the Exchange Act. To the extent any
provision of the Plan or action by the Committee fails to so
comply, it shall be deemed null and void, to the extent permitted
by law and deemed advisable by the Committee.

 

E. CODE
SECTION 409A COMPLIANCE. Notwithstanding any other provision
of this Plan to the contrary, all Awards under this Plan that are
subject to Code Section 409A shall be designed and
administered in a manner that does not result in the imposition of
tax or penalties under Code Section 409A. Accordingly, Awards
under this Plan that are subject to Code Section 409A shall
comply with the following requirements, as applicable.

 




1.

Distribution to Specified Employees
Upon Separation from Service. To the extent that payment
under an Award which is subject to Code Section 409A is due to
a Specified Employee on account of the Specified Employee’s
Separation from Service from the Company or its Affiliate or
Subsidiary, such payment shall be delayed until the first day of
the seventh (7th) month following such Separation from Service (or
as soon as practicable thereafter). The Committee, in its
discretion, may provide in the Award document for the payment of
interest at a rate set by the Committee for such six-month period.
In the event that a payment under an Award is exempt from Code
Section 409A, payment shall be made to a Specified Employee
without any such six-month delay.





 




2.

No Acceleration of Payment. To
the extent that an Award is subject to Code Section 409A,
payment under such Award shall not be accelerated from the date(s)
specified in the Award documents as of the date of
grant.





 




3.

Subsequent Delay in Payment. To
the extent that an Award is subject to Code Section 409A,
payment under such Award shall not be deferred beyond the dates
specified in the Award document as of the date of grant, unless the
Committee or Participant, as the case may be, makes the decision to
delay payment at least one year prior to the scheduled payment
date, and payment is delayed at least five (5) years.





 

F. GOVERNING LAW. To
the extent not preempted by federal law, the Plan, and all
agreements hereunder, shall be construed in accordance with and
governed by the laws of the State of Florida.

 


 



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