EXHIBIT 10.1


 


LIBERTY MEDIA CORPORATION

2000 INCENTIVE PLAN


 


(As Amended and Restated Effective May 9, 2006)


 


ARTICLE I


 


PURPOSE AND ASSUMPTION OF PLAN


 


1.1           Purpose.  The purpose
of the Plan is to promote the success of the Company by providing a method whereby
(i) eligible employees of the Company and its Subsidiaries and (ii) independent
contractors providing services to the Company and its Subsidiaries may be
awarded additional remuneration for services rendered and encouraged to invest
in capital stock of the Company, thereby increasing their proprietary interest
in the Company’s businesses, encouraging them to remain in the employ of the
Company or its Subsidiaries, and increasing their personal interest in the
continued success and progress of the Company and its Subsidiaries.  The Plan is also intended to aid in (i) attracting
Persons of exceptional ability to become officers and employees of the Company
and its Subsidiaries and (ii) inducing independent contractors to agree to
provide services to the Company and its Subsidiaries.


 


1.2           Assumption of Plan; Amendment and Restatement of Plan.  The Plan
was originally adopted as the Amended and Restated AT&T Corp. Liberty Media
Group 2000 Incentive Plan, by the board of directors of AT&T Corp., the
former parent corporation of Liberty Media LLC (“Old Liberty”), which prior to
the Merger (as defined below) was a Delaware corporation named Liberty Media
Corporation and was the parent corporation of the Company.  Effective August 10, 2001, the board of
directors of Old Liberty approved an amendment and restatement of the Plan, and
Old Liberty assumed and adopted the Plan in connection with its split off from
AT&T Corp. The Plan was later amended and restated effective September 11,
2002 and April 19, 2004 by the board of directors of Old Liberty.  The Plan has been further amended and
restated as set forth herein by the Board of the Company in connection with the
merger of a wholly owned subsidiary of the Company with and into Old Liberty (“Merger”).  Effective May 9, 2006, the Company has
become the parent corporation of Old Liberty and has assumed and adopted the
Plan.


 


ARTICLE II


 


DEFINITIONS


 


2.1           Certain Defined Terms. 
Capitalized terms not defined elsewhere in the Plan shall have the
following meanings (whether used in the singular or plural):


 


“Affiliate” of the Company means any corporation, partnership or other
business association that, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with the
Company.


 

















 


“Agreement” means a stock option agreement, stock appreciation rights
agreement, restricted shares agreement, stock units agreement, cash award
agreement or an agreement evidencing more than one type of Award, specified in Section 11.5,
as any such Agreement may be supplemented or amended from time to time.


 


“Approved
Transaction” means any transaction in which
the Board (or, if approval of the Board is not required as a matter of law, the
stockholders of the Company) shall approve (i) any consolidation or merger
of the Company, or binding share exchange, pursuant to which shares of Common
Stock of the Company would be changed or converted into or exchanged for cash,
securities, or other property, other than any such transaction in which the
common stockholders of the Company immediately prior to such transaction have
the same proportionate ownership of the Common Stock of, and voting power with
respect to, the surviving corporation immediately after such transaction, (ii) any
merger, consolidation or binding share exchange to which the Company is a party
as a result of which the Persons who are common stockholders of the Company
immediately prior thereto have less than a majority of the combined voting
power of the outstanding capital stock of the Company ordinarily (and apart
from the rights accruing under special circumstances) having the right to vote
in the election of directors immediately following such merger, consolidation
or binding share exchange, (iii) the adoption of any plan or proposal for
the liquidation or dissolution of the Company, or (iv) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company.


 


“Award” means a grant of Options, SARs, Restricted Shares, Stock
Units, Performance Awards, Cash Awards and/or cash amounts under the Plan.


 


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


 


“Board Change” means, during any period of two consecutive years,
individuals who at the beginning of such period constituted the entire Board
cease for any reason to constitute a majority thereof unless the election, or
the nomination for election, of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were directors at
the beginning of the period.


 


“Cash Award” means an Award made pursuant to Section 10.1 of the
Plan to a Holder that is paid solely on account of the attainment of one or
more Performance Objectives that have been preestablished by the Committee.


 


“Code” means the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute or statutes thereto.  Reference to any specific Code section shall
include any successor section.


 


“Committee” means the committee of the Board appointed pursuant to Section 3.1
to administer the Plan.


 


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“Common Stock” means each or any (as the context may require) series of
the Company’s common stock.


 


“Company” means Liberty Media Corporation, a Delaware corporation
(which was originally incorporated under the name Liberty Media Holding
Corporation).


 


“Control
Purchase” means any transaction (or series of
related transactions) in which (i) any person (as such term is defined in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act), corporation
or other entity (other than the Company, any Subsidiary of the Company or any
employee benefit plan sponsored by the Company or any Subsidiary of the
Company) shall purchase any Common Stock of the Company (or securities
convertible into Common Stock of the Company) for cash, securities or any other
consideration pursuant to a tender offer or exchange offer, without the prior
consent of the Board, or (ii) any person (as such term is so defined),
corporation or other entity (other than the Company, any Subsidiary of the
Company, any employee benefit plan sponsored by the Company or any Subsidiary
of the Company or any Exempt Person (as defined below)) shall become the “beneficial owner” (as such term
is defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Company representing 20% or more of the combined voting
power of the then outstanding securities of the Company ordinarily (and apart
from the rights accruing under special circumstances) having the right to vote
in the election of directors (calculated as provided in Rule 13d-3(d) under
the Exchange Act in the case of rights to acquire the Company’s securities),
other than in a transaction (or series of related transactions) approved by the
Board.  For purposes of this definition, “Exempt Person” means each of
(a) the Chairman of the Board, the President and each of the directors of
the Company as of April 19, 2004, and (b) the respective family
members, estates and heirs of each of the Persons referred to in clause (a) above
and any trust or other investment vehicle for the primary benefit of any of
such Persons or their respective family members or heirs.  As used with respect to any Person, the term “family member” means the
spouse, siblings and lineal descendants of such Person.


 


“Disability” means the inability 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 which has lasted or can be expected
to last for a continuous period of not less than 12 months.


 


“Dividend
Equivalents” means, with respect to
Restricted Shares to be issued at the end of the Restriction Period, to the
extent specified by the Committee only, an amount equal to all dividends and
other distributions (or the economic equivalent thereof) which are payable to
stockholders of record during the Restriction Period on a like number and kind
of shares of Common Stock.


 


“Domestic
Relations Order” means a domestic relations order
as defined by the Code or Title I of the Employee Retirement Income Security
Act, or the rules thereunder.


 


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“Effective Date” means December 6, 2000, the date on which the Plan
originally became effective.


 


“Equity
Security” shall have the meaning ascribed to
such term in Section 3(a)(11) of the Exchange Act, and an equity security
of an issuer shall have the meaning ascribed thereto in Rule 16a-1
promulgated under the Exchange Act, or any successor Rule.


 


“Exchange Act” means the Securities Exchange Act of 1934, as amended from
time to time, or any successor statute or statutes thereto.  Reference to any specific Exchange Act section shall
include any successor section.


 


“Fair Market
Value” of a share of any series of Common
Stock on any day means the last sale price (or, if no last sale price is
reported, the average of the high bid and low asked prices) for a share of such
series of Common Stock on such day (or, if such day is not a trading day, on
the next preceding trading day) as reported on the consolidated transaction
reporting system for the principal national securities exchange on which shares
of such series of Common Stock are listed on such day or if such shares are not
then listed on a national securities exchange, then as reported on Nasdaq or,
if such shares are not then listed or quoted on Nasdaq, then as quoted by the
National Quotation Bureau Incorporated. 
If for any day the Fair Market Value of a share of the applicable series
of Common Stock is not determinable by any of the foregoing means, then the
Fair Market Value for such day shall be determined in good faith by the
Committee on the basis of such quotations and other considerations as the Committee
deems appropriate.


 


“Free Standing
SAR” has the meaning ascribed thereto in Section 7.1.


 


“Holder” means a Person who has received an Award under the Plan.


 


“Nasdaq” means The Nasdaq Stock Market.


 


“Nonqualified
Stock Option” means a stock option granted
under Article VI.


 


“Option” means a Nonqualified Stock Option.


 


“Performance
Award” means an Award made pursuant to Article X
of the Plan to a Holder that is subject to the attainment of one or more
Performance Objectives.


 


“Performance
Objective” means a standard established by the
Committee to determine in whole or in part whether a Performance Award shall be
earned.


 


“Person” means an individual, corporation, limited liability
company, partnership, trust, incorporated or unincorporated association, joint
venture or other entity of any kind.


 


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“Plan” means this Liberty Media Corporation 2000 Incentive Plan
(As Amended and Restated Effective May 9, 2006).


 


“Restricted
Shares” means shares of any series of Common
Stock or the right to receive shares of any specified series of Common Stock,
as the case may be, awarded pursuant to Article VIII.


 


“Restriction
Period” means a period of time beginning on
the date of each Award of Restricted Shares and ending on the Vesting Date with
respect to such Award.


 


“Retained
Distribution” has the meaning ascribed thereto
in Section 8.3.


 


“SARs” means stock appreciation rights, awarded pursuant to Article VII,
with respect to shares of any specified series of Common Stock.


 


“Stock Unit
Awards” has the meaning ascribed thereto in Section 9.1.


 


“Subsidiary” of a Person means any present or future subsidiary (as
defined in Section 424(f) of the Code) of such Person or any business
entity in which such Person owns, directly or indirectly, 50% or more of the
voting, capital or profits interests.  An
entity shall be deemed a subsidiary of a Person for purposes of this definition
only for such periods as the requisite ownership or control relationship is
maintained.


 


“Tandem SARs” has the meaning ascribed thereto in Section 7.1.


 


“Vesting Date,” with respect to any Restricted Shares awarded hereunder,
means the date on which such Restricted Shares cease to be subject to a risk of
forfeiture, as designated in or determined in accordance with the Agreement
with respect to such Award of Restricted Shares pursuant to Article VIII.  If more than one Vesting Date is designated
for an Award of Restricted Shares, reference in the Plan to a Vesting Date in
respect of such Award shall be deemed to refer to each part of such Award and
the Vesting Date for such part.


 


ARTICLE III


 


ADMINISTRATION


 


3.1           Committee.  The Plan
shall be administered by the Compensation Committee of the Board unless a
different committee is appointed by the Board. 
The Committee shall be comprised of not less than two Persons.  The Board may from time to time appoint
members of the Committee in substitution for or in addition to members
previously appointed, may fill vacancies in the Committee and may remove
members of the Committee.  The Committee
shall select one of its members as its chairman and shall hold its meetings at
such times and places as it shall deem advisable.  A majority of its members shall constitute a
quorum and all determinations shall be made by a majority of such quorum.  Any determination reduced to 


 


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writing and signed by all
of the members shall be as fully effective as if it had been made by a majority
vote at a meeting duly called and held.


 


3.2           Powers.  The Committee
shall have full power and authority to grant to eligible Persons Options under Article VI
of the Plan, SARs under Article VII of the Plan, Restricted Shares under Article VIII
of the Plan, Stock Units under Article IX of the Plan, Cash Awards under Article X
of the Plan and/or Performance Awards under Article X of the Plan, to
determine the terms and conditions (which need not be identical) of all Awards
so granted, to interpret the provisions of the Plan and any Agreements relating
to Awards granted under the Plan and to supervise the administration of the
Plan.  The Committee in making an Award
may provide for the granting or issuance of additional, replacement or
alternative Awards upon the occurrence of specified events, including the
exercise of the original Award.  The
Committee shall have sole authority in the selection of Persons to whom Awards
may be granted under the Plan and in the determination of the timing, pricing
and amount of any such Award, subject only to the express provisions of the
Plan.  In making determinations
hereunder, the Committee may take into account the nature of the services
rendered by the respective employees and independent contractors, their present
and potential contributions to the success of the Company and its Subsidiaries,
and such other factors as the Committee in its discretion deems relevant.


 


3.3           Interpretation.  The
Committee is authorized, subject to the provisions of the Plan, to establish,
amend and rescind such rules and regulations as it deems necessary or
advisable for the proper administration of the Plan and to take such other
action in connection with or in relation to the Plan as it deems necessary or
advisable.  Each action and determination
made or taken pursuant to the Plan by the Committee, including any
interpretation or construction of the Plan, shall be final and conclusive for
all purposes and upon all Persons.  No
member of the Committee shall be liable for any action or determination made or
taken by him or the Committee in good faith with respect to the Plan.


 


ARTICLE IV


 


SHARES SUBJECT TO THE PLAN


 


4.1           Number of Shares. 
Subject to the provisions of this Article IV, the maximum number of
shares of Common Stock with respect to which Awards may be granted during the
term of the Plan shall be 48 million shares. 
Shares of Common Stock will be made available from the authorized but
unissued shares of the Company or from shares reacquired by the Company,
including shares purchased in the open market. 
The shares of Common Stock subject to (i) any Award granted under
the Plan that shall expire, terminate or be annulled for any reason without
having been exercised (or considered to have been exercised as provided in Section 7.2),
(ii) any Award of any SARs granted under the Plan that shall be exercised
for cash, and (iii) any Award of Restricted Shares or Stock Units that
shall be forfeited prior to becoming vested (provided that the Holder received
no benefits of ownership of such Restricted Shares or Stock Units other than
voting rights and the accumulation of Retained Distributions and unpaid
Dividend Equivalents that are likewise forfeited) shall again be available for
purposes of the Plan.  Except for Awards
described in Section 11.1, no Person may be granted in any calendar 


 


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year Awards covering more
than 7.5 million shares of Common Stock (as such amount may be adjusted from
time to time as provided in Section 4.2). 
No Person shall receive payment for Cash Awards during any calendar year
aggregating in excess of $10,000,000.


 


4.2           Adjustments.  If the
Company subdivides its outstanding shares of any series of Common Stock into a
greater number of shares of such series of Common Stock (by stock dividend,
stock split, reclassification, or otherwise) or combines its outstanding shares
of any series of Common Stock into a smaller number of shares of such series of
Common Stock (by reverse stock split, reclassification, or otherwise) or if the
Committee determines that any stock dividend, extraordinary cash dividend,
reclassification, recapitalization, reorganization, split-up, spin-off,
combination, exchange of shares, warrants or rights offering to purchase such
series of Common Stock or other similar corporate event (including mergers or
consolidations other than those which constitute Approved Transactions,
adjustments with respect to which shall be governed by Section 11.1(b))
affects any series of Common Stock so that an adjustment is required to
preserve the benefits or potential benefits intended to be made available under
the Plan, then the Committee, in its sole discretion and in such manner as the
Committee may deem equitable and appropriate, may make such adjustments to any
or all of (i) the number and kind of shares of stock which thereafter may
be awarded, optioned or otherwise made subject to the benefits contemplated by
the Plan, (ii) the number and kind of shares of stock subject to
outstanding Awards, and (iii) the purchase or exercise price and the
relevant appreciation base with respect to any of the foregoing, provided,  however, that
the number of shares subject to any Award shall always be a whole number.  Notwithstanding the foregoing, if all shares
of any series of Common Stock are redeemed, then each outstanding Award shall
be adjusted to substitute for the shares of such series of Common Stock subject
thereto the kind and amount of cash, securities or other assets issued or paid
in the redemption of the equivalent number of shares of such series of Common
Stock and otherwise the terms of such Award, including, in the case of Options
or similar rights, the aggregate exercise price, and, in the case of Free
Standing SARs, the aggregate base price, shall remain constant before and after
the substitution (unless otherwise determined by the Committee and provided in
the applicable Agreement).  The Committee
may, if deemed appropriate, provide for a cash payment to any Holder of an
Award in connection with any adjustment made pursuant to this Section 4.2.


 


ARTICLE V


 


ELIGIBILITY


 


5.1           General.  The Persons
who shall be eligible to participate in the Plan and to receive Awards under
the Plan shall, subject to Section 5.2, be such Persons who are employees
(including officers and directors) of or independent contractors providing
services to the Company or its Subsidiaries as the Committee shall select.  Awards may be made to employees or
independent contractors who hold or have held Awards under the Plan or any
similar or other awards under any other plan of the Company or any of its
Affiliates.


 


5.2           Ineligibility.  No
member of the Committee, while serving as such, shall be eligible to receive an
Award.


 


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ARTICLE VI


 


STOCK OPTIONS


 


6.1           Grant of Options. 
Subject to the limitations of the Plan, the Committee shall designate
from time to time those eligible Persons to be granted Options, the time when
each Option shall be granted to such eligible Persons, the series and number of
shares of Common Stock subject to such Option, and, subject to Section 6.2,
the purchase price of the shares of Common Stock subject to such Option.


 


6.2           Option Price.  The
price at which shares may be purchased upon exercise of an Option shall be
fixed by the Committee and may be no less than the Fair Market Value of the
shares of the applicable series of Common Stock subject to the Option as of the
date the Option is granted.


 


6.3           Term of Options.  Subject to the provisions of the Plan with
respect to death, retirement and termination of employment, the term of each
Option shall be for such period as the Committee shall determine as set forth
in the applicable Agreement.


 


6.4           Exercise of Options. 
An Option granted under the Plan shall become (and remain) exercisable
during the term of the Option to the extent provided in the applicable
Agreement and the Plan and, unless the Agreement otherwise provides, may be
exercised to the extent exercisable, in whole or in part, at any time and from
time to time during such term; provided, however, that
subsequent to the grant of an Option, the Committee, at any time before
complete termination of such Option, may accelerate the time or times at which
such Option may be exercised in whole or in part (without reducing the term of
such Option).


 


6.5           Manner of Exercise.


 


(a)           Form of Payment.  An
Option shall be exercised by written notice to the Company upon such terms and
conditions as the Agreement may provide and in accordance with such other
procedures for the exercise of Options as the Committee may establish from time
to time.  The method or methods of
payment of the purchase price for the shares to be purchased upon exercise of
an Option and of any amounts required by Section 11.9 shall be determined
by the Committee and may consist of (i) cash, (ii) check, (iii) promissory
note (subject to applicable law), (iv) whole shares of any series of
Common Stock, (v) the withholding of shares of the applicable series of
Common Stock issuable upon such exercise of the Option, (vi) the delivery,
together with a properly executed exercise notice, of irrevocable instructions
to a broker to deliver promptly to the Company the amount of sale or loan
proceeds required to pay the purchase price, or (vii) any combination of
the foregoing methods of payment, or such other consideration and method of
payment as may be permitted for the issuance of shares under the Delaware
General Corporation Law.  The permitted
method or methods of payment of the amounts payable upon exercise of an Option,
if other than in cash, shall 


 


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be set forth in the applicable Agreement and may be
subject to such conditions as the Committee deems appropriate.


 


(b)           Value of Shares. 
Unless otherwise determined by the Committee and provided in the
applicable Agreement, shares of any series of Common Stock delivered in payment
of all or any part of the amounts payable in connection with the exercise of an
Option, and shares of any series of Common Stock withheld for such payment,
shall be valued for such purpose at their Fair Market Value as of the exercise
date.


 


(c)           Issuance of Shares. 
The Company shall effect the transfer of the shares of Common Stock
purchased under the Option as soon as practicable after the exercise thereof
and payment in full of the purchase price therefor and of any amounts required
by Section 11.9, and within a reasonable time thereafter, such transfer
shall be evidenced on the books of the Company. 
Unless otherwise determined by the Committee and provided in the
applicable Agreement, (i) no Holder or other Person exercising an Option
shall have any of the rights of a stockholder of the Company with respect to
shares of Common Stock subject to an Option granted under the Plan until due
exercise and full payment has been made, and (ii) no adjustment shall be
made for cash dividends or other rights for which the record date is prior to
the date of such due exercise and full payment.


 


6.6           Nontransferability. 
Unless otherwise determined by the Committee and provided in the
applicable Agreement, Options shall not be transferable other than by will or
the laws of descent and distribution or pursuant to a Domestic Relations Order,
and, except as otherwise required pursuant to a Domestic Relations Order,
Options may be exercised during the lifetime of the Holder thereof only by such
Holder (or his or her court-appointed legal representative).


 


ARTICLE VII


 


SARS


 


7.1           Grant of SARs. 
Subject to the limitations of the Plan, SARs may be granted by the
Committee to such eligible Persons in such numbers, with respect to any
specified series of Common Stock, and at such times during the term of the Plan
as the Committee shall determine.  A SAR
may be granted to a Holder of an Option (hereinafter called a “related Option”) with respect
to all or a portion of the shares of Common Stock subject to the related Option
(a “Tandem SAR”)
or may be granted separately to an eligible employee (a “Free
Standing SAR”).  Subject to the limitations of the Plan, SARs
shall be exercisable in whole or in part upon notice to the Company upon such
terms and conditions as are provided in the Agreement.


 


7.2           Tandem SARs.  A Tandem
SAR may be granted either concurrently with the grant of the related Option or
at any time thereafter prior to the complete exercise, termination, expiration or
cancellation of such related Option. 
Tandem SARs shall be exercisable only at the time and to the extent that
the related Option is exercisable (and may be subject to such additional
limitations on exercisability as the Agreement may provide) and in no event
after the complete termination or full exercise of the related Option.  Upon the exercise or termination of 


 


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the related Option, the
Tandem SARs with respect thereto shall be canceled automatically to the extent
of the number of shares of Common Stock with respect to which the related
Option was so exercised or terminated. Subject to the limitations of the Plan,
upon the exercise of a Tandem SAR and unless otherwise determined by the
Committee and provided in the applicable Agreement, (i) the Holder thereof
shall be entitled to receive from the Company, for each share of the applicable
series of Common Stock with respect to which the Tandem SAR is being exercised,
consideration (in the form determined as provided in Section 7.4) equal in
value to the excess of the Fair Market Value of a share of the applicable
series of Common Stock with respect to which the Tandem SAR was granted on the
date of exercise over the related Option purchase price per share, and (ii) the
related Option with respect thereto shall be canceled automatically to the
extent of the number of shares of Common Stock with respect to which the Tandem
SAR was so exercised.


 


7.3           Free Standing SARs. 
Free Standing SARs shall be exercisable at the time, to the extent and
upon the terms and conditions set forth in the applicable Agreement.  The base price of a Free Standing SAR may be no
less than the Fair Market Value of the applicable series of Common Stock with
respect to which the Free Standing SAR was granted as of the date the Free
Standing SAR is granted.  Subject to the
limitations of the Plan, upon the exercise of a Free Standing SAR and unless
otherwise determined by the Committee and provided in the applicable Agreement,
the Holder thereof shall be entitled to receive from the Company, for each
share of the applicable series of Common Stock with respect to which the Free
Standing SAR is being exercised, consideration (in the form determined as
provided in Section 7.4) equal in value to the excess of the Fair Market
Value of a share of the applicable series of Common Stock with respect to which
the Free Standing SAR was granted on the date of exercise over the base price
per share of such Free Standing SAR.


 


7.4           Consideration.  The consideration
to be received upon the exercise of a SAR by the Holder shall be paid in cash,
shares of the applicable series of Common Stock with respect to which the SAR
was granted (valued at Fair Market Value on the date of exercise of such SAR),
a combination of cash and such shares of the applicable series of Common Stock
or such other consideration, in each case, as provided in the Agreement.  No fractional shares of Common Stock shall be
issuable upon exercise of a SAR, and unless otherwise provided in the
applicable Agreement, the Holder will receive cash in lieu of fractional
shares.  Unless the Committee shall
otherwise determine, to the extent a Free Standing SAR is exercisable, it will
be exercised automatically for cash on its expiration date.


 


7.5           Limitations.  The
applicable Agreement may provide for a limit on the amount payable to a Holder
upon exercise of SARs at any time or in the aggregate, for a limit on the
number of SARs that may be exercised by the Holder in whole or in part for cash
during any specified period, for a limit on the time periods during which a
Holder may exercise SARs, and for such other limits on the rights of the Holder
and such other terms and conditions of the SAR, including a condition that the
SAR may be exercised only in accordance with rules and regulations adopted
from time to time, as the Committee may determine.  Unless otherwise so provided in the
applicable Agreement, any such limit relating to a Tandem SAR shall not
restrict the exercisability of the related Option.  Such rules and regulations may govern
the right to 


 


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exercise SARs granted
prior to the adoption or amendment of such rules and regulations as well
as SARs granted thereafter.


 


7.6           Exercise.  For purposes
of this Article VII, the date of exercise of a SAR shall mean the date on
which the Company shall have received notice from the Holder of the SAR of the
exercise of such SAR (unless otherwise determined by the Committee and provided
in the applicable Agreement).


 


7.7           Nontransferability. 
Unless otherwise determined by the Committee and provided in the
applicable Agreement, (i) SARs shall not be transferable other than by
will or the laws of descent and distribution or pursuant to a Domestic Relations
Order, and (ii) except as otherwise required pursuant to a Domestic
Relations Order, SARs may be exercised during the lifetime of the Holder
thereof only by such Holder (or his or her court-appointed legal
representative).


 


ARTICLE VIII


 


RESTRICTED SHARES


 


8.1           Grant.  Subject to the
limitations of the Plan, the Committee shall designate those eligible Persons
to be granted Awards of Restricted Shares, shall determine the time when each
such Award shall be granted, shall determine whether shares of Common Stock
covered by Awards of Restricted Shares will be issued at the beginning or the
end of the Restriction Period and whether Dividend Equivalents will be paid
during the Restriction Period in the event shares of the applicable series of
Common Stock are to be issued at the end of the Restriction Period, and shall
designate (or set forth the basis for determining) the Vesting Date or Vesting
Dates for each Award of Restricted Shares, and may prescribe other
restrictions, terms and conditions applicable to the vesting of such Restricted
Shares in addition to those provided in the Plan.  The Committee shall determine the price, if
any, to be paid by the Holder for the Restricted Shares; provided,
however, that the issuance of Restricted Shares shall be made for at
least the minimum consideration necessary to permit such Restricted Shares to
be deemed fully paid and nonassessable. 
All determinations made by the Committee pursuant to this Section 8.1
shall be specified in the Agreement.


 


8.2           Issuance of Restricted Shares at Beginning of the Restriction Period.  If shares of the applicable series of Common
Stock are issued at the beginning of the Restriction Period, the stock
certificate or certificates representing such Restricted Shares shall be
registered in the name of the Holder to whom such Restricted Shares shall have
been awarded.  During the Restriction
Period, certificates representing the Restricted Shares and any securities
constituting Retained Distributions shall bear a restrictive legend to the effect
that ownership of the Restricted Shares (and such Retained Distributions), and
the enjoyment of all rights appurtenant thereto, are subject to the
restrictions, terms and conditions provided in the Plan and the applicable
Agreement.  Such certificates shall
remain in the custody of the Company or its designee, and the Holder shall
deposit with the custodian stock powers or other instruments of assignment,
each endorsed in blank, so as to permit retransfer to the Company of all or any
portion of the Restricted Shares and any securities constituting Retained
Distributions that shall 


 


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be forfeited or otherwise
not become vested in accordance with the Plan and the applicable Agreement.


 


8.3           Restrictions.  Restricted
Shares issued at the beginning of the Restriction Period shall constitute
issued and outstanding shares of the applicable series of Common Stock for all
corporate purposes.  The Holder will have
the right to vote such Restricted Shares, to receive and retain such dividends
and distributions, as the Committee may designate, paid or distributed on such
Restricted Shares, and to exercise all other rights, powers and privileges of a
Holder of shares of the applicable series of Common Stock with respect to such
Restricted Shares; except, that,
unless otherwise determined by the Committee and provided in the applicable
Agreement, (i) the Holder will not be entitled to delivery of the stock
certificate or certificates representing such Restricted Shares until the
Restriction Period shall have expired and unless all other vesting requirements
with respect thereto shall have been fulfilled or waived; (ii) the Company
or its designee will retain custody of the stock certificate or certificates
representing the Restricted Shares during the Restriction Period as provided in
Section 8.2; (iii) other than such dividends and distributions as the
Committee may designate, the Company or its designee will retain custody of all
distributions (“Retained Distributions”) made or declared with respect to the Restricted Shares
(and such Retained Distributions will be subject to the same restrictions,
terms and vesting, and other conditions as are applicable to the Restricted
Shares) until such time, if ever, as the Restricted Shares with respect to
which such Retained Distributions shall have been made, paid or declared shall
have become vested, and such Retained Distributions shall not bear interest or
be segregated in a separate account; (iv) the Holder may not sell, assign,
transfer, pledge, exchange, encumber or dispose of the Restricted Shares or any
Retained Distributions or his interest in any of them during the Restriction
Period; and (v) a breach of any restrictions, terms or conditions provided
in the Plan or established by the Committee with respect to any Restricted
Shares or Retained Distributions will cause a forfeiture of such Restricted
Shares and any Retained Distributions with respect thereto.


 


8.4           Issuance of Stock at End of the Restriction Period.  Restricted Shares issued at the end of the
Restriction Period shall not constitute issued and outstanding shares of the
applicable series of Common Stock, and the Holder shall not have any of the
rights of a stockholder with respect to the shares of Common Stock covered by
such an Award of Restricted Shares, in each case until such shares shall have
been transferred to the Holder at the end of the Restriction Period.  If and to the extent that shares of Common
Stock are to be issued at the end of the Restriction Period, the Holder shall
be entitled to receive Dividend Equivalents with respect to the shares of
Common Stock covered thereby either (i) during the Restriction Period or (ii) in
accordance with the rules applicable to Retained Distributions, as the
Committee may specify in the Agreement.


 


8.5           Cash Payments.  In
connection with any Award of Restricted Shares, an Agreement may provide for
the payment of a cash amount to the Holder of such Restricted Shares at any
time after such Restricted Shares shall have become vested.  Such cash amounts shall be payable in
accordance with such additional restrictions, terms and conditions as shall be
prescribed by the Committee in the Agreement and shall be in addition to any
other salary, 


 


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incentive, bonus or other
compensation payments which such Holder shall be otherwise entitled or eligible
to receive from the Company.


 


8.6           Completion of Restriction Period.  On the Vesting Date with respect to each
Award of Restricted Shares and the satisfaction of any other applicable
restrictions, terms and conditions, (i) all or the applicable portion of
such Restricted Shares shall become vested, (ii) any Retained
Distributions and any unpaid Dividend Equivalents with respect to such
Restricted Shares shall become vested to the extent that the Restricted Shares
related thereto shall have become vested, and (iii) any cash amount to be
received by the Holder with respect to such Restricted Shares shall become
payable, all in accordance with the terms of the applicable Agreement.  Any such Restricted Shares, Retained
Distributions and any unpaid Dividend Equivalents that shall not become vested
shall be forfeited to the Company, and the Holder shall not thereafter have any
rights (including dividend and voting rights) with respect to such Restricted
Shares, Retained Distributions and any unpaid Dividend Equivalents that shall
have been so forfeited.  The Committee
may, in its discretion, provide that the delivery of any Restricted Shares,
Retained Distributions and unpaid Dividend Equivalents that shall have become
vested, and payment of any related cash amounts that shall have become payable
under this Article VIII, shall be deferred until such date or dates as the
recipient may elect.  Any election of a
recipient pursuant to the preceding sentence shall be filed in writing with the
Committee in accordance with such rules and regulations, including any
deadline for the making of such an election, as the Committee may provide, and
shall be made in compliance with Section 409A of the Code.


 


ARTICLE IX


 


STOCK UNITS


 


9.1           Grant.  In addition to
granting Awards of Options, SARs and Restricted Shares, the Committee shall,
subject to the limitations of the Plan, have authority to grant to eligible Persons
Awards of Stock Units which may be in the form of shares of any specified
series of Common Stock or units, the value of which is based, in whole or in
part, on the Fair Market Value of the shares of any specified series of Common
Stock.  Subject to the provisions of the
Plan, including any rules established pursuant to Section 9.2, Awards
of Stock Units shall be subject to such terms, restrictions, conditions,
vesting requirements and payment rules as the Committee may determine in
its discretion, which need not be identical for each Award.  The determinations made by the Committee
pursuant to this Section 9.1 shall be specified in the applicable
Agreement.


 


9.2           Rules.  The Committee
may, in its discretion, establish any or all of the following rules for
application to an Award of Stock Units:


 


(a)           Any
shares of Common Stock which are part of an Award of Stock Units may not be
assigned, sold, transferred, pledged or otherwise encumbered prior to the date
on which the shares are issued or, if later, the date provided by the Committee
at the time of the Award.


 


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(b)           Such
Awards may provide for the payment of cash consideration by the Person to whom
such Award is granted or provide that the Award, and any shares of Common Stock
to be issued in connection therewith, if applicable, shall be delivered without
the payment of cash consideration; provided, however, that
the issuance of any shares of Common Stock in connection with an Award of Stock
Units shall be for at least the minimum consideration necessary to permit such
shares to be deemed fully paid and nonassessable.


 


(c)           Awards
of Stock Units may provide for deferred payment schedules, vesting over a
specified period of employment, the payment (on a current or deferred basis) of
dividend equivalent amounts with respect to the number of shares of Common
Stock covered by the Award, and elections by the employee to defer payment of
the Award or the lifting of restrictions on the Award, if any, provided that any
such deferrals shall comply with the requirements of Section 409A of the
Code.


 


(d)           In
such circumstances as the Committee may deem advisable, the Committee may waive
or otherwise remove, in whole or in part, any restrictions or limitations to
which a Stock Unit Award was made subject at the time of grant.


 


ARTICLE X


 


CASH AWARDS AND PERFORMANCE AWARDS


 


10.1         Cash Awards.  In
addition to granting Options, SARs, Restricted Shares and Stock Units, the
Committee shall, subject to the limitations of the Plan, have authority to
grant to eligible Persons Cash Awards. 
Each Cash Award shall be subject to such terms and conditions,
restrictions and contingencies, if any, as the Committee shall determine.  Restrictions and contingencies limiting the
right to receive a cash payment pursuant to a Cash Award shall be based upon
the achievement of single or multiple Performance Objectives over a performance
period established by the Committee.  The
determinations made by the Committee pursuant to this Section 10.1 shall
be specified in the applicable Agreement.


 


10.2         Designation as a Performance Award.  The Committee shall have the right to
designate any Award of Options, SARs, Restricted Shares or Stock Units as a
Performance Award.  All Cash Awards shall
be designated as Performance Awards.


 


10.3         Performance Objectives. 
The grant or vesting of a Performance Award shall be subject to the
achievement of Performance Objectives over a performance period established by
the Committee based upon one or more of the following business criteria that
apply to the Holder, one or more business units, divisions or Subsidiaries of
the Company or the applicable sector of the Company, or the Company as a whole,
and if so desired by the Committee, by comparison with a peer group of companies:
increased revenue; net income measures (including income after capital costs
and income before or after taxes); stock price measures (including growth
measures and total stockholder return); price per share of Common Stock; market
share; 


 


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earnings per share
(actual or targeted growth); earnings before interest, taxes, depreciation and
amortization (EBITDA); economic value added (or an equivalent metric); market
value added; debt to equity ratio; cash flow measures (including cash flow
return on capital, cash flow return on tangible capital, net cash flow and net
cash flow before financing activities); return measures (including return on
equity, return on average assets, return on capital, risk-adjusted return on
capital, return on investors’ capital and return on average equity); operating
measures (including operating income, funds from operations, cash from
operations, after-tax operating income, sales volumes, production volumes and
production efficiency); expense measures (including overhead cost and general
and administrative expense); margins; stockholder value; total stockholder
return; proceeds from dispositions; total market value and corporate values
measures (including ethics compliance, environmental and safety).  Unless otherwise stated, such a Performance
Objective need not be based upon an increase or positive result under a
particular business criterion and could include, for example, maintaining the
status quo or limiting economic losses (measured, in each case, by reference to
specific business criteria).  The
Committee shall have the authority to determine whether the Performance
Objectives and other terms and conditions of the Award are satisfied, and the
Committee’s determination as to the achievement of Performance Objectives
relating to a Performance Award shall be made in writing.


 


10.4         Section 162(m) of the Code.  Notwithstanding the foregoing provisions, if
the Committee intends for a Performance Award to be granted and administered in
a manner designed to preserve the deductibility of the compensation resulting
from such Award in accordance with Section 162(m) of the Code, then the
Performance Objectives for such particular Performance Award relative to the
particular period of service to which the Performance Objectives relate shall
be established by the Committee in writing (i) no later than 90 days after
the beginning of such period and (ii) prior to the completion of 25% of
such period.


 


10.5         Waiver of Performance Objectives.  The Committee shall have no discretion to
modify or waive the Performance Objectives or conditions to the grant or
vesting of a Performance Award unless such Award is not intended to qualify as
qualified performance-based compensation under Section 162(m) of the Code
and the relevant Agreement provides for such discretion.


 


ARTICLE XI


 


GENERAL PROVISIONS


 


11.1         Acceleration of Awards.


 


(a)           Death or Disability. 
If a Holder’s employment shall terminate by reason of death or
Disability, notwithstanding any contrary waiting period, installment period,
vesting schedule or Restriction Period in any Agreement or in the Plan,
unless the applicable Agreement provides otherwise:  (i) in the case of an Option or SAR,
each outstanding Option or SAR granted under the Plan shall immediately become
exercisable in full in respect of the aggregate number of shares covered
thereby; (ii) in the case of Restricted Shares, the Restriction Period
applicable to each such Award of Restricted 


 


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Shares shall be deemed to have expired and all such
Restricted Shares, any related Retained Distributions and any unpaid Dividend
Equivalents shall become vested and any related cash amounts payable pursuant
to the applicable Agreement shall be adjusted in such manner as may be provided
in the Agreement; and (iii) in the case of Stock Units, each such Award of
Stock Units shall become vested in full.


 


(b)           Approved Transactions; Board Change; Control Purchase.  In the event of any Approved Transaction,
Board Change or Control Purchase, notwithstanding any contrary waiting period,
installment period, vesting schedule or Restriction Period in any
Agreement or in the Plan, unless the applicable Agreement provides
otherwise:  (i) in the case of an
Option or SAR, each such outstanding Option or SAR granted under the Plan shall
become exercisable in full in respect of the aggregate number of shares covered
thereby; (ii) in the case of Restricted Shares, the Restriction Period
applicable to each such Award of Restricted Shares shall be deemed to have
expired and all such Restricted Shares, any related Retained Distributions and
any unpaid Dividend Equivalents shall become vested and any related cash
amounts payable pursuant to the applicable Agreement shall be adjusted in such
manner as may be provided in the Agreement; and (iii) in the case of Stock
Units, each such Award of Stock Units shall become vested in full, in each case
effective upon the Board Change or Control Purchase or immediately prior to
consummation of the Approved Transaction. 
The effect, if any, on a Cash Award of an Approved Transaction, Board
Change or Control Purchase shall be prescribed in the applicable Agreement.  Notwithstanding the foregoing, unless
otherwise provided in the applicable Agreement, the Committee may, in its
discretion, determine that any or all outstanding Awards of any or all types
granted pursuant to the Plan will not vest or become exercisable on an
accelerated basis in connection with an Approved Transaction if effective
provision has been made for the taking of such action which, in the opinion of
the Committee, is equitable and appropriate to substitute a new Award for such
Award or to assume such Award and to make such new or assumed Award, as nearly
as may be practicable, equivalent to the old Award (before giving effect to any
acceleration of the vesting or exercisability thereof), taking into account, to
the extent applicable, the kind and amount of securities, cash or other assets
into or for which the applicable series of Common Stock may be changed,
converted or exchanged in connection with the Approved Transaction.


 


11.2         Termination of Employment.


 


(a)           General.  If a Holder’s
employment shall terminate prior to an Option or SAR becoming exercisable or being
exercised (or deemed exercised, as provided in Section 7.2) in full, or
during the Restriction Period with respect to any Restricted Shares or prior to
the vesting or complete exercise of any Stock Units, then such Option or SAR
shall thereafter become or be exercisable, such Stock Units to the extent
vested shall thereafter be exercisable, and the Holder’s rights to any unvested
Restricted Shares, Retained Distributions, unpaid Dividend Equivalents and
related cash amounts and any such unvested Stock Units shall thereafter vest,
in each case solely to the extent provided in the applicable Agreement; provided, however, that, unless otherwise determined by the 


 


16

















 


Committee and provided in the applicable Agreement, (i) no
Option or SAR may be exercised after the scheduled expiration date thereof; (ii) if
the Holder’s employment terminates by reason of death or Disability, the Option
or SAR shall remain exercisable for a period of at least one year following
such termination (but not later than the scheduled expiration of such Option or
SAR); and (iii) any termination of the Holder’s
employment for cause will be treated in accordance with the provisions of Section 11.2(b).  The effect on a Cash Award of the termination
of a Holder’s employment for any reason, other than for cause, shall be
prescribed in the applicable Agreement.


 


(b)           Termination for Cause. 
If a Holder’s employment with the Company or a Subsidiary of the Company
shall be terminated by the Company or such Subsidiary for “cause” during the
Restriction Period with respect to any Restricted Shares or prior to any Option
or SAR becoming exercisable or being exercised in full or prior to the vesting
or complete exercise of any Stock Unit or the payment in full of any Cash Award
(for these purposes, “cause” shall have the meaning ascribed thereto in any
employment agreement to which such Holder is a party or, in the absence
thereof, shall include insubordination, dishonesty, incompetence, moral turpitude,
other misconduct of any kind and the refusal to perform his duties and
responsibilities for any reason other than illness or incapacity; provided, however, that if such termination occurs within 12
months after an Approved Transaction or Control Purchase or Board Change,
termination for “cause” shall mean only a felony conviction for fraud,
misappropriation, or embezzlement), then, unless otherwise determined by the
Committee and provided in the applicable Agreement, (i) all Options and
SARs and all unvested or unexercised Stock Units and all unpaid Cash Awards
held by such Holder shall immediately terminate, and (ii) such Holder’s
rights to all Restricted Shares, Retained Distributions, any unpaid Dividend
Equivalents and any related cash amounts shall be forfeited immediately.


 


(c)           Miscellaneous.  The
Committee may determine whether any given leave of absence constitutes a
termination of employment; provided, however, that
for purposes of the Plan, (i) a leave of absence, duly authorized in
writing by the Company for military service or sickness, or for any other
purpose approved by the Company if the period of such leave does not exceed 90
days, and (ii) a leave of absence in excess of 90 days, duly authorized in
writing by the Company provided the employee’s right to reemployment is
guaranteed either by statute or contract, shall not be deemed a termination of
employment.  Unless otherwise determined
by the Committee and provided in the applicable Agreement, Awards made under
the Plan shall not be affected by any change of employment so long as the
Holder continues to be an employee of the Company.


 


11.3         Right of Company to Terminate Employment.  Nothing contained in the Plan or in any
Award, and no action of the Company or the Committee with respect thereto,
shall confer or be construed to confer on any Holder any right to continue in
the employ of the Company or any of its Subsidiaries or interfere in any way
with the right of the Company or any Subsidiary of the Company to terminate the
employment of the Holder at any time, with or without cause, subject, however,
to the provisions of any employment agreement between the Holder and the
Company or any Subsidiary of the Company.


 


17

















 


11.4         Nonalienation of Benefits. 
Except as set forth herein, no right or benefit under the Plan shall be
subject to anticipation, alienation, sale, assignment, hypothecation, pledge,
exchange, transfer, encumbrance or charge, and any attempt to anticipate,
alienate, sell, assign, hypothecate, pledge, exchange, transfer, encumber or
charge the same shall be void.  No right
or benefit hereunder shall in any manner be liable for or subject to the debts,
contracts, liabilities or torts of the Person entitled to such benefits.


 


11.5         Written Agreement.  Each
Award of Options shall be evidenced by a stock option agreement; each Award of
SARs shall be evidenced by a stock appreciation rights agreement; each Award of
Restricted Shares shall be evidenced by a restricted shares agreement; each
Award of Stock Units shall be evidenced by a stock units agreement; and each
Performance Award shall be evidenced by a performance award agreement
(including a cash award agreement evidencing a Cash Award), each in such form
and containing such terms and provisions not inconsistent with the provisions
of the Plan as the Committee from time to time shall approve; provided, however, that if more than one type of Award is
made to the same Holder, such Awards may be evidenced by a single Agreement
with such Holder.  Each grantee of an
Option, SAR, Restricted Shares, Stock Units or Performance Award (including a
Cash Award) shall be notified promptly of such grant, and a written Agreement
shall be promptly executed and delivered by the Company.  Any such written Agreement may contain (but
shall not be required to contain) such provisions as the Committee deems
appropriate (i) to insure that the penalty provisions of Section 4999
of the Code will not apply to any stock or cash received by the Holder from the
Company or (ii) to provide cash payments to the Holder to mitigate the
impact of such penalty provisions upon the Holder.  Any such Agreement may be supplemented or
amended from time to time as approved by the Committee as contemplated by Section 11.7(b).


 


11.6         Designation of Beneficiaries.  Each Person who shall be granted an Award
under the Plan may designate a beneficiary or beneficiaries and may change such
designation from time to time by filing a written designation of beneficiary or
beneficiaries with the Committee on a form to be prescribed by it, provided
that no such designation shall be effective unless so filed prior to the death
of such Person.


 


11.7         Termination and Amendment.


 


(a)           General.  Unless the
Plan shall theretofore have been terminated as hereinafter provided, no Awards
may be made under the Plan on or after the tenth anniversary of the Effective
Date.  The Plan may be terminated at any
time prior to the tenth anniversary of the Effective Date and may, from time to
time, be suspended or discontinued or modified or amended if such action is
deemed advisable by the Committee.


 


(b)           Modification.  No
termination, modification or amendment of the Plan may, without the consent of
the Person to whom any Award shall theretofore have been granted, adversely
affect the rights of such Person with respect to such Award.  No modification, extension, renewal or other
change in any Award granted under the Plan 


 


18

















 


shall be made after the grant of such Award, unless
the same is consistent with the provisions of the Plan.  With the consent of the Holder and subject to
the terms and conditions of the Plan (including Section 11.7(a)), the
Committee may amend outstanding Agreements with any Holder, including any
amendment which would (i) accelerate the time or times at which the Award
may be exercised and/or (ii) extend the scheduled expiration date of the
Award.  Without limiting the generality
of the foregoing, the Committee may, but solely with the Holder’s consent
unless otherwise provided in the Agreement, agree to cancel any Award under the
Plan and grant a new Award in substitution therefor, provided that the Award so
substituted shall satisfy all of the requirements of the Plan as of the date
such new Award is made.  Nothing
contained in the foregoing provisions of this Section 11.7(b) shall
be construed to prevent the Committee from providing in any Agreement that the
rights of the Holder with respect to the Award evidenced thereby shall be
subject to such rules and regulations as the Committee may, subject to the
express provisions of the Plan, adopt from time to time or impair the
enforceability of any such provision.


 


11.8         Government and Other Regulations.  The obligation of the Company with respect to
Awards shall be subject to all applicable laws, rules and regulations and
such approvals by any governmental agencies as may be required, including the
effectiveness of any registration statement required under the Securities Act
of 1933, and the rules and regulations of any securities exchange or
association on which the Common Stock may be listed or quoted.  For so long as any series of Common Stock are
registered under the Exchange Act, the Company shall use its reasonable efforts
to comply with any legal requirements (i) to maintain a registration
statement in effect under the Securities Act of 1933 with respect to all shares
of the applicable series of Common Stock that may be issued to Holders under
the Plan and (ii) to file in a timely manner all reports required to be
filed by it under the Exchange Act.


 


11.9         Withholding.  The
Company’s obligation to deliver shares of Common Stock or pay cash in respect
of any Award under the Plan shall be subject to applicable federal, state and
local tax withholding requirements. 
Federal, state and local withholding tax due at the time of an Award,
upon the exercise of any Option or SAR or upon the vesting of, or expiration of
restrictions with respect to, Restricted Shares or Stock Units or the
satisfaction of the Performance Objectives applicable to a Performance Award,
as appropriate, may, in the discretion of the Committee, be paid in shares of
the applicable series of Common Stock already owned by the Holder or through
the withholding of shares otherwise issuable to such Holder, upon such terms
and conditions (including the conditions referenced in Section 6.5) as the
Committee shall determine.  If the Holder
shall fail to pay, or make arrangements satisfactory to the Committee for the
payment to the Company of, all such federal, state and local taxes required to
be withheld by the Company, then the Company shall, to the extent permitted by
law, have the right to deduct from any payment of any kind otherwise due to
such Holder an amount equal to any federal, state or local taxes of any kind
required to be withheld by the Company with respect to such Award.


 


11.10       Nonexclusivity of the Plan. 
The adoption of the Plan by the Board shall not be construed as creating
any limitations on the power of the Board to adopt such other incentive 


 


19

















 


arrangements as it may
deem desirable, including the granting of stock options and the awarding of
stock and cash otherwise than under the Plan, and such arrangements may be
either generally applicable or applicable only in specific cases.


 


11.11       Exclusion from Pension and Profit-Sharing Computation.  By acceptance of an Award, unless otherwise
provided in the applicable Agreement, each Holder shall be deemed to have
agreed that such Award is special incentive compensation that will not be taken
into account, in any manner, as salary, compensation or bonus in determining
the amount of any payment under any pension, retirement or other employee
benefit plan, program or policy of the Company or any Subsidiary of the
Company.  In addition, each beneficiary
of a deceased Holder shall be deemed to have agreed that such Award will not
affect the amount of any life insurance coverage, if any, provided by the
Company on the life of the Holder which is payable to such beneficiary under
any life insurance plan covering employees of the Company or any Subsidiary of
the Company.


 


11.12       Unfunded Plan. 
Neither the Company nor any Subsidiary of the Company shall be required
to segregate any cash or any shares of Common Stock which may at any time be
represented by Awards, and the Plan shall constitute an “unfunded” plan of the Company. 
Except as provided in Article VIII with respect to Awards of
Restricted Shares and except as expressly set forth in an Agreement, no
employee shall have voting or other rights with respect to the shares of Common
Stock covered by an Award prior to the delivery of such shares.  Neither the Company nor any Subsidiary of the
Company shall, by any provisions of the Plan, be deemed to be a trustee of any
shares of Common Stock or any other property, and the liabilities of the
Company and any Subsidiary of the Company to any employee pursuant to the Plan
shall be those of a debtor pursuant to such contract obligations as are created
by or pursuant to the Plan, and the rights of any employee, former employee or
beneficiary under the Plan shall be limited to those of a general creditor of
the Company or the applicable Subsidiary of the Company, as the case may be.  In its sole discretion, the Board may
authorize the creation of trusts or other arrangements to meet the obligations
of the Company under the Plan, provided, however,
that the existence of such trusts or other arrangements is consistent with the
unfunded status of the Plan.


 


11.13       Governing Law.  The
Plan shall be governed by, and construed in accordance with, the laws of the
State of Delaware.


 


11.14       Accounts.  The
delivery of any shares of Common Stock and the payment of any amount in respect
of an Award shall be for the account of the Company or the applicable
Subsidiary of the Company, as the case may be, and any such delivery or payment
shall not be made until the recipient shall have paid or made satisfactory
arrangements for the payment of any applicable withholding taxes as provided in
Section 11.9.


 


20

















 


11.15       Legends.  Each
certificate evidencing shares of Common Stock subject to an Award shall bear
such legends as the Committee deems necessary or appropriate to reflect or
refer to any terms, conditions or restrictions of the Award applicable to such
shares, including any to the effect that the shares represented thereby may not
be disposed of unless the Company has received an opinion of counsel,
acceptable to the Company, that such disposition will not violate any federal
or state securities laws.


 


11.16       Company’s Rights.  The
grant of Awards pursuant to the Plan shall not affect in any way the right or
power of the Company to make reclassifications, reorganizations or other
changes of or to its capital or business structure or to merge, consolidate,
liquidate, sell or otherwise dispose of all or any part of its business or
assets.


 


11.17       Section 409A. 
Notwithstanding anything in this Plan to the contrary, if any Plan provision
or Award under the Plan would result in the imposition of an additional tax
under Code Section 409A and related regulations and United States
Department of the Treasury pronouncements (“Section 409A”), that Plan
provision or Award will be reformed to avoid imposition of the applicable tax
and no action taken to comply with Section 409A shall be deemed to
adversely affect the Holder’s rights to an Award.


 


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