exv10w27



 







Exhibit 10.27



GOLFSMITH INTERNATIONAL HOLDINGS, INC.



2006 Incentive Compensation Plan




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 	 	 
	 	 	 	 
	ARTICLE I.

	 	 	 
	 	 	 	 
	ESTABLISHMENT; PURPOSES; AND DURATION

	 	 	 
	 	 	 	 
	1.1.	 	Establishment of the Plan
	 	 	1	 
	1.2.	 	Purposes of the Plan
	 	 	1	 
	1.3.	 	Duration of the Plan
	 	 	1	 
	 	 	 
	 	 	 	 
	ARTICLE II.

	 	 	 
	 	 	 	 
	DEFINITIONS

	 	 	 
	 	 	 	 
	2.1.	 	“Affiliate”
	 	 	2	 
	2.2.	 	“Assumed”
	 	 	2	 
	2.3	 	“Award”
	 	 	3	 
	2.4.	 	“Award Agreement”
	 	 	3	 
	2.5.	 	“Beneficial Ownership”
	 	 	3	 
	2.6.	 	“Board” or “Board of Directors”
	 	 	3	 
	2.7.	 	“Cash-Based Award”
	 	 	3	 
	2.8.	 	“Cause”
	 	 	3	 
	2.9.	 	“Change of Control”
	 	 	3	 
	2.10.	 	“Code”
	 	 	5	 
	2.11.	 	“Committee”
	 	 	5	 
	2.12.	 	“Company Incumbent Board”
	 	 	5	 
	2.13.	 	“Company Proxy Contest”
	 	 	6	 
	2.14.	 	“Company Surviving Corporation”
	 	 	6	 
	2.15.	 	“Consultant”
	 	 	6	 
	2.16.	 	“Director”
	 	 	6	 
	2.17.	 	“Dividend Equivalents”
	 	 	6	 
	2.18.	 	“Effective Date”
	 	 	6	 
	2.19.	 	“Employee”
	 	 	6	 
	2.20.	 	“Exchange Act”
	 	 	6	 
	2.21.	 	“Fair Market Value”
	 	 	6	 
	2.22.	 	“Fiscal Year”
	 	 	7	 
	2.23.	 	“Freestanding SAR”
	 	 	7	 
	2.24.	 	“Good Reason”
	 	 	7	 
	2.25.	 	“Grant Price”
	 	 	7	 
	2.26.	 	“Incentive Stock Option” or “ISO”
	 	 	7	 
	2.27.	 	“Insider”
	 	 	7	 
	2.28.	 	“Non-Control Acquisition”
	 	 	7	 
	2.29.	 	“Non-Control Transaction”
	 	 	7	 
	2.30.	 	“Non-Employee Director”
	 	 	7	 
	2.31.	 	“Nonqualified Stock Option” or “NQSO”
	 	 	8	 
	2.32.	 	“Notice”
	 	 	8	 






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	 	 	 	 	Page	 
	 	 	 
	 	 	 	 
	2.33.	 	“Option” or “Stock Option”
	 	 	8	 
	2.34.	 	“Option Price”
	 	 	8	 
	2.35.	 	“Other Stock-Based Award”
	 	 	8	 
	2.36.	 	“Participant”
	 	 	8	 
	2.37.	 	“Performance Period”
	 	 	8	 
	2.38.	 	“Performance Share”
	 	 	8	 
	2.39.	 	“Performance Unit”
	 	 	8	 
	2.40.	 	“Period of Restriction”
	 	 	8	 
	2.41.	 	“Person”
	 	 	8	 
	2.42.	 	“Qualified Change of Control”
	 	 	8	 
	2.43.	 	“Replaced”
	 	 	8	 
	2.44.	 	“Restricted Stock”
	 	 	9	 
	2.45.	 	“Restricted Stock Unit”
	 	 	9	 
	2.46.	 	“Rule 16b-3”
	 	 	9	 
	2.47.	 	“Securities Act”
	 	 	9	 
	2.48.	 	“Separation from Service”
	 	 	9	 
	2.49.	 	“Share”
	 	 	9	 
	2.50.	 	“Stock Appreciation Right” or “SAR”
	 	 	9	 
	2.51.	 	“Subject Person”
	 	 	9	 
	2.52.	 	“Subsidiary”
	 	 	9	 
	2.53.	 	“Substitute Awards”
	 	 	9	 
	2.54.	 	“Tandem SAR”
	 	 	10	 
	2.55.	 	“Termination”
	 	 	10	 
	2.56.	 	“Voting Securities”
	 	 	10	 
	 	 	 
	 	 	 	 
	ARTICLE III.

	 	 	 
	 	 	 	 
	ADMINISTRATION

	 	 	 
	 	 	 	 
	3.1.	 	General
	 	 	10	 
	3.2.	 	Committee
	 	 	10	 
	3.3.	 	Authority of the Committee
	 	 	10	 
	3.4.	 	Award Agreements
	 	 	12	 
	3.5.	 	Discretionary Authority; Decisions Binding
	 	 	12	 
	3.6.	 	Attorneys; Consultants
	 	 	13	 
	3.7.	 	Delegation of Administration
	 	 	13	 
	 	 	 
	 	 	 	 
	ARTICLE IV.

	 	 	 
	 	 	 	 
	SHARES SUBJECT TO THE PLAN

	 	 	 
	 	 	 	 
	4.1.	 	Number of Shares Available for Grants
	 	 	13	 
	4.2.	 	Adjustments in Authorized Shares
	 	 	14	 
	4.3.	 	No Limitation on Corporate Actions
	 	 	14	 






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	 	 	 	 	Page	 
	 	 	 
	 	 	 	 
	ARTICLE V.

	 	 	 
	 	 	 	 
	ELIGIBILITY AND PARTICIPATION

	 	 	 
	 	 	 	 
	5.1.	 	Eligibility
	 	 	15	 
	5.2.	 	Actual Participation
	 	 	15	 
	 	 	 
	 	 	 	 
	ARTICLE VI.

	 	 	 
	 	 	 	 
	STOCK OPTIONS

	 	 	 
	 	 	 	 
	6.1.	 	Grant of Options
	 	 	15	 
	6.2.	 	Award Agreement
	 	 	15	 
	6.3.	 	Option Price
	 	 	15	 
	6.4.	 	Duration of Options
	 	 	15	 
	6.5.	 	Exercise of Options
	 	 	16	 
	6.6.	 	Payment
	 	 	16	 
	6.7.	 	Rights as a Shareholder
	 	 	16	 
	6.8.	 	Termination of Employment or Service
	 	 	16	 
	6.9.	 	Limitations on Incentive Stock Options.
	 	 	17	 
	 	 	 
	 	 	 	 
	ARTICLE VII.

	 	 	 
	 	 	 	 
	STOCK APPRECIATION RIGHTS

	 	 	 
	 	 	 	 
	7.1.	 	Grant of SARs
	 	 	17	 
	7.2.	 	Grant Price
	 	 	18	 
	7.3.	 	Exercise of Tandem SARs
	 	 	18	 
	7.4.	 	Exercise of Freestanding SARs
	 	 	18	 
	7.5.	 	Award Agreement
	 	 	18	 
	7.6.	 	Term of SARs
	 	 	18	 
	7.7.	 	Payment of SAR Amount
	 	 	19	 
	7.8.	 	Rights as a Shareholder
	 	 	19	 
	7.9.	 	Termination of Employment or Service
	 	 	19	 
	 	 	 
	 	 	 	 
	ARTICLE VIII.

	 	 	 
	 	 	 	 
	RESTRICTED STOCK AND RESTRICTED STOCK UNITS

	 	 	 
	 	 	 	 
	8.1.	 	Awards of Restricted Stock and Restricted Stock Units
	 	 	19	 
	8.2.	 	Award Agreement
	 	 	19	 
	8.3.	 	Nontransferability of Restricted Stock
	 	 	20	 
	8.4.	 	Period of Restriction and Other Restrictions
	 	 	20	 
	8.5.	 	Delivery of Shares, Payment of Restricted Stock Units
	 	 	20	 
	8.6.	 	Forms of Restricted Stock Awards
	 	 	20	 






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	 	 	 	 	Page	 
	 	 	 
	 	 	 	 
	8.7.	 	Voting Rights
	 	 	21	 
	8.8.	 	Dividends and Other Distributions
	 	 	21	 
	8.9.	 	Termination of Employment or Service
	 	 	21	 
	8.10.	 	Compliance With Section 409A
	 	 	21	 
	 	 	 
	 	 	 	 
	ARTICLE IX.

	 	 	 
	 	 	 	 
	PERFORMANCE UNITS, PERFORMANCE SHARES, AND CASH-BASED AWARDS

	 	 	 
	 	 	 	 
	9.1.	 	Grant of Performance Units, Performance Shares and Cash-Based Awards
	 	 	22	 
	9.2.	 	Value of Performance Units, Performance Shares and Cash-Based Awards
	 	 	22	 
	9.3.	 	Earning of Performance Units, Performance Shares and Cash-Based Awards
	 	 	22	 
	9.4.	 	Form and Timing of Payment of Performance Units, Performance Shares and Cash-Based Awards
	 	 	22	 
	9.5.	 	Rights as a Shareholder
	 	 	23	 
	9.6.	 	Termination of Employment or Service
	 	 	23	 
	9.7.	 	Compliance With Section 409A
	 	 	23	 
	 	 	 
	 	 	 	 
	ARTICLE X.

	 	 	 
	 	 	 	 
	OTHER STOCK-BASED AWARDS

	 	 	 
	 	 	 	 
	10.1.	 	Other Stock-Based Awards
	 	 	23	 
	10.2.	 	Value of Other Stock-Based Awards
	 	 	23	 
	10.3.	 	Payment of Other Stock-Based Awards
	 	 	24	 
	10.4.	 	Termination of Employment or Service
	 	 	24	 
	10.5.	 	Compliance With Section 409A
	 	 	24	 
	 	 	 
	 	 	 	 
	ARTICLE XI.

	 	 	 
	 	 	 	 
	DIVIDEND EQUIVALENTS

	 	 	 
	 	 	 	 
	11.1.	 	Dividend Equivalents
	 	 	24	 
	 	 	 
	 	 	 	 
	ARTICLE XII.

	 	 	 
	 	 	 	 
	TRANSFERABILITY OF AWARDS; BENEFICIARY DESIGNATION

	 	 	 
	 	 	 	 
	12.1.	 	Transferability of Incentive Stock Options
	 	 	25	 
	12.2.	 	All Other Awards
	 	 	25	 
	12.3.	 	Beneficiary Designation
	 	 	25	 






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	 	 	 	 	Page	 
	 	 	 
	 	 	 	 
	ARTICLE XIII.

	 	 	 
	 	 	 	 
	RIGHTS OF PARTICIPANTS

	 	 	 
	 	 	 	 
	13.1.	 	Rights or Claims
	 	 	26	 
	13.2.	 	Adoption of the Plan
	 	 	26	 
	13.3.	 	Vesting
	 	 	26	 
	13.4.	 	No Effects on Benefits
	 	 	26	 
	13.5.	 	One or More Types of Awards
	 	 	27	 
	 	 	 
	 	 	 	 
	ARTICLE XIV.

	 	 	 
	 	 	 	 
	CHANGE OF CONTROL

	 	 	 
	 	 	 	 
	14.1.	 	Treatment of Outstanding Awards
	 	 	27	 
	14.2.	 	No Implied Rights; Other Limitations
	 	 	30	 
	14.3.	 	Termination, Amendment, and Modifications of Change of Control Provisions
	 	 	31	 
	14.4.	 	Compliance with Section 409A
	 	 	31	 
	 	 	 
	 	 	 	 
	ARTICLE XV.

	 	 	 
	 	 	 	 
	AMENDMENT, MODIFICATION, AND TERMINATION

	 	 	 
	 	 	 	 
	15.1.	 	Amendment, Modification, and Termination
	 	 	31	 
	15.2.	 	Adjustment of Awards Upon the Occurrence of Certain Unusual or Nonrecurring Events
	 	 	32	 
	 	 	 
	 	 	 	 
	ARTICLE XVI.

	 	 	 
	 	 	 	 
	TAX WITHHOLDING AND OTHER TAX MATTERS

	 	 	 
	 	 	 	 
	16.1.	 	Tax Withholding
	 	 	32	 
	16.2.	 	Withholding or Tendering Shares
	 	 	33	 
	16.3.	 	Restrictions
	 	 	33	 
	16.4.	 	Special ISO Obligations
	 	 	33	 
	16.5.	 	Section 83(b) Election
	 	 	33	 
	16.6.	 	No Guarantee of Favorable Tax Treatment
	 	 	34	 
	16.7.	 	Compliance with Section 409A
	 	 	34	 
	 	 	 
	 	 	 	 
	ARTICLE XVII.

	 	 	 
	 	 	 	 
	LIMITS OF LIABILITY; INDEMNIFICATION

	 	 	 
	 	 	 	 
	17.1.	 	Limits of Liability
	 	 	34	 
	17.2.	 	Indemnification
	 	 	35	 






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	 	 	 	 	Page	 
	 	 	 
	 	 	 	 
	ARTICLE XVIII.

	 	 	 
	 	 	 	 
	SUCCESSORS

	 	 	 
	 	 	 	 
	18.1.	 	General
	 	 	35	 
	 	 	 
	 	 	 	 
	ARTICLE XIX.

	 	 	 
	 	 	 	 
	MISCELLANEOUS

	 	 	 
	 	 	 	 
	19.1.	 	Drafting Context
	 	 	35	 
	19.2.	 	Forfeiture Events
	 	 	36	 
	19.3.	 	Severability
	 	 	36	 
	19.4.	 	Transfer, Leave of Absence
	 	 	37	 
	19.5.	 	Exercise and Payment of Awards
	 	 	37	 
	19.6.	 	Deferrals
	 	 	37	 
	19.7.	 	Loans
	 	 	37	 
	19.8.	 	No Effect on Other Plans
	 	 	38	 
	19.9.	 	Section 16 of Exchange Act
	 	 	38	 
	19.10.	 	Requirements of Law; Limitations on Awards
	 	 	38	 
	19.11.	 	Participants Deemed to Accept Plan
	 	 	39	 
	19.12.	 	Governing Law
	 	 	39	 
	19.13.	 	Plan Unfunded
	 	 	39	 
	19.14.	 	Administration Costs
	 	 	40	 
	19.15.	 	Uncertificated Shares
	 	 	40	 
	19.16.	 	No Fractional Shares
	 	 	40	 
	19.17.	 	Deferred Compensation
	 	 	40	 
	19.18.	 	Participants Based Outside of the United States
	 	 	40	 






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GOLFSMITH INTERNATIONAL HOLDINGS, INC.

2006 INCENTIVE COMPENSATION PLAN




     Golfsmith International Holdings, Inc., a Delaware corporation (the “Company”), has
adopted the Golfsmith International Holdings, Inc. 2006 Incentive Compensation Plan (the
“Plan”) for the benefit of non-employee directors of the Company, officers and eligible
employees and consultants of the Company and any Subsidiaries and Affiliates (as each term defined
below), as follows:



ARTICLE I.

ESTABLISHMENT; PURPOSES; AND DURATION




          1.1. Establishment of the Plan. The Company hereby establishes this incentive
compensation plan to be known as the “Golfsmith International Holdings, Inc. 2006 Incentive
Compensation 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 Units, Performance Shares, Cash-Based Awards and Other Stock-Based Awards.
The Plan was adopted by the Board of Directors (as defined below) on               , 2006. The Plan shall
become effective immediately prior to the effective date of the initial public offering of the
Shares pursuant to a registration statement under the Securities Act (the “Effective
Date”), provided that the Plan is approved by the holders of a majority of the
outstanding Shares which are present and voted at a meeting, or by written consent in lieu of a
meeting, which approval must occur within the period ending twelve (12) months after the date the
Plan is adopted by the Board. The effectiveness of any Awards granted prior to such shareholder
approval shall be specifically subject to and conditioned upon, and no Award shall be vested or
exercisable until, such shareholder approval. If the Plan is not so approved by the Company’s
shareholders or the Company’s initial public offering of Shares
does not occur prior to December  31, 2006,
the Plan shall not become effective, and shall terminate immediately, and any Awards previously
granted shall thereupon be automatically canceled and deemed to have been null and void ab
initio. The Plan shall remain in effect as provided in Section 1.3.




          1.2. Purposes of the Plan. The purposes of the Plan are to provide additional
incentives to non-employee directors of the Company and to those officers, employees and
consultants of the Company, Subsidiaries and Affiliates whose substantial contributions are
essential to the continued growth and success of the business of the Company and the Subsidiaries
and Affiliates, in order to strengthen their commitment to the Company and the Subsidiaries and
Affiliates, and to attract and retain competent and dedicated individuals whose efforts will result
in the long-term growth and profitability of the Company and to further align the interests of such
non-employee directors, officers, employees and consultants with the interests of the shareholders
of the Company. To accomplish such purposes, the Plan provides that the Company may grant
Nonqualified Stock Options, Incentive Stock Options, Stock Appreciation Rights, Restricted Stock,
Restricted Stock Units, Performance Units, Performance Shares, Cash-Based Awards and Other
Stock-Based Awards.




          1.3. Duration of the Plan. The Plan shall commence on the Effective Date, as
described in Section 1.1, 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, until all Shares
subject to it shall have been delivered, and any restrictions on such Shares have lapsed, pursuant
to the Plan’s

-1-









 








provisions. However, in no event may an Award be granted under the Plan on or after
ten years from the Effective Date.




ARTICLE 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:



          2.1. “Affiliate” means any entity other than the Company and any Subsidiary that is
affiliated with the Company through stock or equity ownership or otherwise and is designated as an
Affiliate for purposes of the Plan by the Committee; provided, however, that,
notwithstanding any other provisions of the Plan to the contrary, for purposes of NQSOs and SARs,
if an individual who otherwise qualifies as an Employee or Non-Employee Director provides services
to such an entity and not to the Company or a Subsidiary, such entity may only be designated an
Affiliate if the Company qualifies as a “service recipient,” within the meaning of Code Section
409A, with respect to such individual; provided further that such definition of
“service recipient” shall be determined by (a) applying Code Section 1563(a)(1), (2) and (3), for
purposes of determining a controlled group of corporations under Code Section 414(b), using the
language “at least 50 percent” instead of “at least 80 percent” each place it appears in Code
Section 1563(a)(1), (2) and (3), and by applying Treasury Regulations Section 1.414(c)-2, for
purposes of determining trades or businesses (whether or not incorporated) that are under common
control for purposes of Code Section 414(c), using the language “at least 50 percent” instead of
“at least 80 percent” each place it appears in Treasury Regulations Section 1.414(c)-2, and (b)
where the use of Shares with respect to the grant of an Option or SAR to such an individual is
based upon legitimate business criteria, by applying Code Section 1563(a)(1), (2) and (3), for
purposes of determining a controlled group of corporations under Code Section 414(b), using the
language “at least 20 percent” instead of “at least 80 percent” at each place it appears in Code
Section 1563(a)(1), (2) and (3), and by applying Treasury Regulations Section 1.414(c)-2, for
purposes of determining trades or businesses (whether or not incorporated) that are under common
control for purposes of Code Section 414(c), using the language “at least 20 percent” instead of
“at least 80 percent” at each place it appears in Treasury Regulations Section 1.414(c)-2.




          2.2. “Assumed” means that pursuant to a transaction resulting in a Change of Control,
either (a) the Award is expressly affirmed by the Company or (b) the contractual obligations
represented by the Award are expressly assumed (and not simply by operation of law) by the
surviving or successor corporation or entity to the Company, or any parent or subsidiary of either
thereof, or any other corporation or entity that is a party to the transaction resulting in the
Change of
Control, in connection with such Change of Control, with appropriate adjustments to the number
and kind of securities of such surviving or successor corporation or entity, or such other
applicable parent, subsidiary, corporation or entity, subject to the Award and the exercise or
purchase price thereof, which preserves the compensation element of the Award existing at the time
of such Change of Control transaction, and provides for subsequent payout in accordance with the
same (or more favorable) payment and vesting schedule applicable to such Award, as determined in
accordance with the instruments evidencing the agreement to assume

-2-









 








the Award. The determination of
Award comparability for this purpose shall be made by the Committee, and its determination shall be
final, binding and conclusive.




          2.3. “Award” means, individually or collectively, a grant under the Plan of
Nonqualified Stock Options, Incentive Stock Options, Stock Appreciation Rights, Restricted Stock
Awards, Restricted Stock Units, Performance Shares, Performance Units, Cash-Based Awards, and Other
Stock-Based Awards.




          2.4. “Award Agreement” means either: (a) a written agreement entered into by the
Company and a Participant setting forth the terms and provisions applicable to an Award granted
under the Plan, or (b) a written or electronic statement issued by the Company to a Participant
describing the terms and provisions of such Award, including any amendment or modification thereof.
The Committee may provide for the use of electronic, internet or other non-paper Award Agreements,
and the use of electronic, internet or other non-paper means for the acceptance thereof and actions
thereunder by a Participant.




          2.5. “Beneficial Ownership” (including correlative terms) shall have the meaning given
such term in Rule 13d-3 promulgated under the Exchange Act.




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




          2.7. “Cash-Based Award” means an Award granted to a Participant, as described in
Article IX.




          2.8. “Cause” shall have the definition given such term in a Participant’s Award
Agreement, or in the absence of any such definition, as determined in good faith by the Committee.




          2.9. “Change of Control” means the occurrence of any of the following:





     (a) an acquisition in one transaction or a series of related transactions (other than
directly from the Company or pursuant to Awards granted under the Plan or compensatory
options or other similar awards granted by the Company) by any Person of any Voting
Securities of the Company, immediately after which such Person has Beneficial Ownership of
fifty percent (50%) or more of the combined voting power of the Company’s then outstanding
Voting Securities; provided, however, that in determining whether a Change of
Control has occurred pursuant to this Section 2.9(a), Voting Securities of the Company which
are acquired in a Non-Control Acquisition shall not constitute an acquisition that would
cause a Change of Control; or




     (b) any Person acquires (or has acquired during the twelve (12)-month period ending on
the date of the most recent acquisition by such Person) Beneficial Ownership of Voting
Securities of the Company possessing thirty-five percent (35%) or more of the combined
voting power of the Company’s then outstanding Voting Securities; provided,
however, that in determining whether a Change of Control has occurred pursuant to
this Section 2.9(b), Voting Securities of the Company which are acquired in a Non-Control
Acquisition shall not constitute an acquisition that would cause a Change of Control; or



-3-








 






     (c) the individuals who, immediately prior to the Effective Date, are members of the
Board (the “Company Incumbent Board”) cease for any reason to constitute at least a
majority of the members of the Board; provided, however, that if the
election, or nomination for election of any new director was approved by a vote of at least
a majority of the Company Incumbent Board, such new director shall, for purposes of the
Plan, be considered as a member of the Company Incumbent Board; provided
further, however, that no individual shall be considered a member of the
Company Incumbent Board if such individual initially assumed office as a result of either an
actual or threatened “Election Contest” (as described in Rule 14a-11 promulgated
under the Exchange Act) or other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board (a “Company Proxy Contest”) including
by reason of any agreement intended to avoid or settle any Election Contest or Company Proxy
Contest; or




     (d) the consummation of any merger, consolidation, recapitalization or reorganization
involving the Company unless:




     (i) the shareholders of the Company, immediately before such merger,
consolidation, recapitalization or reorganization, own, directly or indirectly,
immediately following such merger, consolidation, recapitalization or
reorganization, more than fifty percent (50%) of the combined voting power of the
outstanding Voting Securities of the corporation resulting from such merger or
consolidation or reorganization (the “Company Surviving Corporation”) in
substantially the same proportion as their ownership of the Voting Securities of the
Company immediately before such merger, consolidation, recapitalization or
reorganization; and




     (ii) the individuals who were members of the Company Incumbent Board
immediately prior to the execution of the agreement providing for such merger,
consolidation, recapitalization or reorganization constitute at least a
majority of the members of the board of directors of the Company Surviving
Corporation, or a corporation Beneficially Owning, directly or indirectly, a
majority of the voting securities of the Company Surviving Corporation, and




     (iii) no Person, other than (A) the Company, (B) any Related
Entity, (C) any employee benefit plan (or any trust forming a part thereof) that,
immediately prior to such merger, consolidation, recapitalization or reorganization,
was maintained by the Company, the Company Surviving Corporation, or any Related
Entity or (D) any Person who, together with its Affiliates, immediately prior to
such merger, consolidation, recapitalization or reorganization had Beneficial
Ownership of fifty percent (50%) or more of the then outstanding Voting Securities
of the Company, owns, together with its Affiliates, Beneficial Ownership of fifty
percent (50%) or more of the combined voting power of the Company Surviving
Corporation’s then outstanding Voting Securities




(a transaction described in clauses (d)(i) through (d)(iii) above is referred to herein as a
“Non-Control Transaction”); or



-4-









 






     (e) any approval by the Company’s shareholders of any plan or proposal for the
liquidation or dissolution of the Company; or




     (f) any sale, lease, exchange, transfer or other disposition (in one transaction or a
series of related transactions) of all or substantially all of the assets or business of the
Company to any Person (other than (A) a transfer or distribution to a Related Entity, or (B)
a transfer or distribution to the Company’s shareholders of the stock of a Related Entity or
any other assets).


Notwithstanding the foregoing, a Change of Control shall not be deemed to occur solely because any
Person (the “Subject Person”) acquired Beneficial Ownership of fifty percent (50%) or more
of the combined voting power of the then outstanding Voting Securities of the Company as a result
of the acquisition of Voting Securities of the Company by the Company which, by reducing the number
of Voting Securities of the Company then outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Persons, provided that if a Change of Control would occur
(but for the operation of this sentence) as a result of the acquisition of Voting Securities by the
Company and (1) before such share acquisition by the Company the Subject Person becomes the
Beneficial Owner of any new or additional Voting Securities of the Company in a related transaction
or (2) after such share acquisition by the Company the Subject Person becomes the Beneficial Owner
of any new or additional Voting Securities of the Company which in either case increases the
percentage of the then outstanding Voting Securities of the Company Beneficially Owned by the
Subject Person, then a Change of Control shall be deemed to occur.



Solely for purposes of this Section 2.9, (1) “Affiliate” shall mean, with respect to any
Person, any other Person that, directly or indirectly, controls, is controlled by, or is under
common control with, such Person, and (2) “control” (including with correlative meanings,
the terms “controlling,” “controlled by” and “under common control with”), as applied to any
Person,
means the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership of voting securities or by
contract or otherwise. Any Relative (for this purpose, “Relative” means a spouse, child,
parent, parent of spouse, sibling or grandchild) of an individual shall be deemed to be an
Affiliate of such individual for this purpose. None of the Company or any Person controlled by the
Company shall be deemed to be an Affiliate of any holder of Shares.




          2.10. “Code” means the Internal Revenue Code of 1986, as it may be amended from time
to time, including rules and regulations promulgated thereunder and successor provisions and rules
and regulations thereto.




          2.11. “Committee” means the Compensation Committee of the Board of Directors or a
subcommittee thereof, or such other committee designated by the Board to administer the Plan.




          2.12. “Company Incumbent Board” shall have the meaning provided in Section 2.8(c).




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          2.13. “Company Proxy Contest” shall have the meaning provided in Section 2.8(c).




          2.14. “Company Surviving Corporation” has the meaning provided in Section 2.8(d)(i).




          2.15. “Consultant” means an independent contractor who performs services for the
Company or a Subsidiary or Affiliate in a capacity other than as an Employee or Director.




          2.16. “Director” means any individual who is a member of the Board of Directors of the
Company.




          2.17. “Dividend Equivalents” means the equivalent value (in cash or Shares) of
dividends that would otherwise be paid on the Shares subject to an Award but that have not been
issued or delivered, as described in Article XI.




          2.18. “Effective Date” shall have the meaning ascribed to such term in Section 1.1.




          2.19. “Employee” means any person designated as an employee of the Company, a
Subsidiary and/or an Affiliate on the payroll records thereof. An Employee shall not include any
individual during any period he or she is classified or treated by the Company, a Subsidiary or an
Affiliate as an independent contractor, a consultant, or any employee of an employment, consulting,
or temporary agency or any other entity other than the Company, a Subsidiary and/or an Affiliate
without regard to whether such individual is subsequently determined to have been, or is
subsequently retroactively reclassified as a common-law employee of the Company, a Subsidiary
and/or an Affiliate during such period. As further provided in Section 19.4, for purposes of the
Plan, upon approval by the Committee, the term Employee may also include Employees whose employment
with the Company, a Subsidiary or an Affiliate has been terminated subsequent to being granted an
Award under the Plan. For the avoidance of doubt, a Director who would otherwise be an “Employee”
within the meaning of this Section 2.19 shall be considered an Employee for purposes of the Plan.




          2.20. “Exchange Act” means the Securities Exchange Act of 1934, as it may be amended
from time to time, including the rules and regulations promulgated thereunder and successor
provisions and rules and regulations thereto.




          2.21. “Fair Market Value” means the fair market value of the Shares as determined by
the Committee by the reasonable application of such reasonable valuation method, consistently
applied, as the Committee deems appropriate; provided, however, that, with respect
to ISOs, for purposes of Section 6.3 and 6.9(c), such fair market value shall be determined subject
to Section 422(c)(7) of the Code; provided further, however, that if the
Shares are readily tradable on an established securities market, Fair Market Value on any date
shall be the last sale price reported for the Shares on such market on such date or, if no sale is
reported on such date, on the last date preceding such date on which a sale was reported. In each
case, the Committee shall determine Fair Market Value in a manner that satisfies the applicable
requirements of Code Section 409A.




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          2.22. “Fiscal Year” means the calendar year, or such other consecutive twelve-month
period as the Committee may select.




          2.23. “Freestanding SAR” means an SAR that is granted independently of any Options, as
described in Article VII.




          2.24. “Good Reason” shall have the definition given such term in a Participant’s Award
Agreement, or in the absence of any such definition, as determined in good faith by the Committee.




          2.25. “Grant Price” means the price established at the time of grant of an SAR
pursuant to Article VII, used to determine whether there is any payment due upon exercise of the
SAR.




          2.26. “Incentive Stock Option” or “ISO” means a right to purchase Shares under the
Plan in accordance with the terms and conditions set forth in Article VI and which is designated
as an Incentive Stock Option and which is intended to meet the requirements of Section 422 of
the Code.




          2.27. “Insider” means an individual who is, on the relevant date, an officer,
director or 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, as determined by the Committee in
accordance with Section 16 of the Exchange Act.




          2.28. “Non-Control Acquisition” means an acquisition (whether by merger, stock
purchase, asset purchase or otherwise) by (a) an employee benefit plan (or a trust forming a part
thereof) maintained by (i) the Company or (ii) any corporation or other Person of which fifty
percent (50%) or more of its total value or total voting power of its Voting Securities or equity
interests is owned, directly or indirectly, by the Company (a “Related Entity”); (b) the
Company or any Related Entity; (c) any Person in connection with a Non-Control Transaction; or (d)
any Person that owns, together with its Affiliates, Beneficial Ownership of fifty percent (50%) or
more of the outstanding Voting Securities of the Company on the Effective Date.




          2.29. “Non-Control Transaction” shall have the meaning provided in Section 2.9(d).




          2.30. “Non-Employee Director” means a Director who is not an Employee.




          2.31. “Nonqualified Stock Option” or “NQSO” means a right to purchase Shares
under the Plan in accordance with the terms and conditions set forth in Article VI and which is not
intended to meet the requirements of Section 422 of the Code or otherwise does not meet such
requirements.




          2.32. “Notice” means notice provided by a Participant to the Company in a manner
prescribed by the Committee.




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




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          2.34. “Option Price” means the price at which a Share may be purchased by a
Participant pursuant to an Option.




          2.35. “Other Stock-Based Award” means an equity-based or equity-related Award
described in Section 10.1, granted in accordance with the terms and conditions set forth in Article
X.




          2.36. “Participant” means any eligible individual as set forth in Article V who holds
one or more outstanding Awards.




          2.37. “Performance Period” means the period of time during which the performance goals
must be met in order to determine the degree of payout and/or vesting with respect to, or the
amount or entitlement to, an Award.




          2.38. “Performance Share” means an Award of a performance share granted to a
Participant, as described in Article IX.




          2.39. “Performance Unit” means an Award of a performance unit granted to a
Participant, as described in Article IX.




          2.40. “Period of Restriction” means the period during which Shares of Restricted Stock
or Restricted Stock Units are subject to a substantial risk of forfeiture, and, in the case of
Restricted Stock, the transfer of Shares of Restricted Stock is limited in some way, as provided in
Article VIII.




          2.41. “Person” means “person” as such term is used for purposes of Section 13(d) or
14(d) of the Exchange Act, including any individual, corporation, limited liability company,
partnership, trust, unincorporated organization, government or any agency or political subdivision
thereof, or any other entity or any group of persons.




          2.42. “Qualified Change of Control” means a Change of Control that qualifies as a
change in the ownership or effective control of the Company, or in the ownership of a substantial
portion of the assets of the Company, within the meaning of Section 409A(a)(2)(A)(v) of the Code.




          2.43. “Replaced” means that pursuant to a transaction resulting in a Change of
Control, the Award is replaced with a comparable stock award or a cash incentive program by the
Company, the surviving or successor corporation or entity to the Company, or any parent or
subsidiary of either thereof, or any other corporation or entity that is a party to the transaction
resulting in the Change of Control, in connection with such Change of Control, which preserves the
compensation element of the Award existing at the time of such Change of Control transaction, and
provides for subsequent payout in accordance with the same (or more favorable) payment and vesting
schedule applicable to such Award, as determined in accordance with the instruments evidencing the
agreement to assume the Award. The determination of Award comparability for this purpose shall be
made by the Committee, and its determination shall be final, binding and conclusive.




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          2.44. “Restricted Stock” means an Award granted to a Participant pursuant to Article
VIII.




          2.45. “Restricted Stock Unit” means an Award, whose value is equal to a Share, granted
to a Participant pursuant to Article VIII.




          2.46. “Rule 16b-3” means Rule 16b-3 under the Exchange Act, or any successor rule, as
the same may be amended from time to time.




          2.47. “Securities Act” means the Securities Act of 1933, as it may be amended from
time to time, including the rules and regulations promulgated thereunder and successor provisions
and rules and regulations thereto.




          2.48. “Separation from Service” means a Termination that qualifies as a separation
from service within the meaning of Code Section 409A(a)(2)(A)(i).




          2.49. “Share” means a share of common stock, par value $0.001 per share, of the
Company (including any new, additional or different stock or securities resulting from any change
in corporate capitalization as listed in Section 4.2).




          2.50. “Stock Appreciation Right” or “SAR” means an Award, granted alone (a
“Freestanding SAR”) or in connection with a related Option (a “Tandem SAR”),
designated as an SAR, pursuant to the terms of Article VII.




          2.51. “Subject Person” has the meaning provided in Section 2.9.




          2.52. “Subsidiary” means any present or future corporation which is or would be a
“subsidiary corporation” of the Company as the term is defined in Section 424(f) of the Code.




          2.53. “Substitute Awards” means Awards granted or Shares issued by the Company in
assumption of, or in substitution or exchange for, options or other awards previously granted, or
the right or obligation to grant future options or other awards, by a company acquired by the
Company, a Subsidiary and/or an Affiliate or with which the Company, a Subsidiary and/or an
Affiliate combines, or otherwise in connection with any merger, consolidation, acquisition of
property or stock, or reorganization involving the Company, a Subsidiary or an Affiliate, including
a transaction described in Code Section 424(a).




          2.54. “Tandem SAR” means a SAR that is granted in connection with a related Option
pursuant to Article VII.




          2.55. “Termination” means the time when a Participant ceases the performance of
services for the Company, any Affiliate or Subsidiary, as applicable, for any reason, with or
without Cause, including a Termination by resignation, discharge, death, Disability or Retirement,
but excluding (a) a Termination where there is a simultaneous reemployment (or commencement of
service) or continuing employment (or service) of a Participant by the Company, Affiliate or any
Subsidiary, (b) at the discretion of the Committee, a Termination that results in a temporary
severance, and (c) at the discretion of the Committee, a Termination of an Employee that is
immediately followed by the Participant’s service as a Non-Employee Director.




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          2.56. “Voting Securities” shall mean, with respect to any Person that is a
corporation, all outstanding voting securities of such Person entitled to vote generally in the
election of the board of directors of such Person.




ARTICLE III.

ADMINISTRATION




          3.1. General. The Committee shall have exclusive authority to operate, manage and
administer the Plan in accordance with its terms and conditions. Notwithstanding the foregoing,
in its absolute discretion, the Board may at any time and from time to time exercise any and
all rights, duties and responsibilities of the Committee under the Plan, including establishing
procedures to be followed by the Committee, but excluding matters which under any applicable law,
regulation or rule, including any exemptive rule under Section 16 of the Exchange Act (including
Rule 16b-3), are required to be determined in the sole discretion of the Committee. If and to the
extent that the Committee does not exist or cannot function, the Board may take any action under
the Plan that would otherwise be the responsibility of the Committee, subject to the limitations
set forth in the immediately preceding sentence.




          3.2. Committee. The members of the Committee shall be appointed from time to time by,
and shall serve at the discretion of, the Board of Directors. The Committee shall consist of not
less than two (2) non-employee members of the Board, each of whom satisfies such criteria of
independence as the Board may establish and such additional regulatory or listing requirements as
the Board may determine to be applicable or appropriate. Appointment of Committee members shall be
effective upon their acceptance of such appointment. Committee members may be removed by the Board
at any time either with or without cause, and such members may resign at any time by delivering
notice thereof to the Board. Any vacancy on the Committee, whether due to action of the Board or
any other reason, shall be filled by the Board. The Committee shall keep minutes of its meetings.
A majority of the Committee shall constitute a quorum and a majority of a quorum may authorize any
action. Any decision reduced to writing and signed by a majority of the members of the Committee
shall be fully effective as if it has been made at a meeting duly held.




          3.3. Authority of the Committee. The Committee shall have full discretionary
authority to grant, pursuant to the terms of the Plan, Awards to those individuals who are eligible
to receive Awards under the Plan. Except as limited by law or by the Certificate of Incorporation
or By-Laws of the Company, and subject to the provisions herein, the Committee shall have full
power, in accordance with the other terms and provisions of the Plan, to:





     (a) select Employees, Non-Employee Directors and Consultants who may receive Awards
under the Plan and become Participants;




     (b) determine eligibility for participation in the Plan and decide all questions
concerning eligibility for, and the amount of, Awards under the Plan;




     (c) determine the sizes and types of Awards;



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     (d) determine the terms and conditions of Awards, including the Option Prices of
Options and the Grant Prices of SARs;




     (e) grant Awards as an alternative to, or as the form of payment for grants or rights
earned or payable under, other bonus or compensation plans, arrangements or policies of the
Company or a Subsidiary or Affiliate;




     (f) grant Substitute Awards on such terms and conditions as the Committee may
prescribe, subject to compliance with the ISO rules under Code Section 422 and the
nonqualified deferred compensation rules under Code Section 409A, where applicable;




     (g) make all determinations under the Plan concerning Termination of any Participant’s
employment or service with the Company or a Subsidiary or Affiliate, including whether such
Termination occurs by reason of Cause, Good Reason, disability, retirement or in connection
with a Change of Control and whether a leave constitutes a Termination;




     (h) construe and interpret the Plan and any agreement or instrument entered into under
the Plan, including any Award Agreement;




     (i) establish and administer any terms, conditions, restrictions, limitations,
forfeiture, vesting or exercise schedule, and other provisions of or relating to any Award;




     (j) establish and administer any performance goals in connection with any Awards,
including performance criteria and applicable Performance Periods, determine the extent to
which any performance goals and/or other terms and conditions of an Award are attained or
are not attained;




     (k) construe any ambiguous provisions, correct any defects, supply any omissions and
reconcile any inconsistencies in the Plan and/or any Award Agreement or any other instrument
relating to any Awards;




     (l) establish, adopt, amend, waive and/or rescind rules, regulations, procedures,
guidelines, forms and/or instruments for the Plan’s operation or administration;




     (m) make all valuation determinations relating to Awards and the payment or settlement
thereof;




     (n) grant waivers of terms, conditions, restrictions and limitations under the Plan or
applicable to any Award, or accelerate the vesting or exercisability of any Award;




     (o) subject to the provisions of Article XV, amend or adjust the terms and conditions
of any outstanding Award and/or adjust the number and/or class of shares of stock subject to
any outstanding Award;




     (p) at any time and from time to time after the granting of an Award, specify such
additional terms, conditions and restrictions with respect to such Award as may be



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deemed
necessary or appropriate to ensure compliance with any and all applicable laws or rules,
including terms, restrictions and conditions for compliance with applicable securities laws
or listing rules, methods of withholding or providing for the payment of required taxes and
restrictions regarding a Participant’s ability to exercise Options through a cashless
(broker-assisted) exercise;




     (q) offer to buy out an Award previously granted, based on such terms and conditions as
the Committee shall establish with and communicate to the Participant at the time such offer
is made;




     (r) determine whether, and to what extent and under what circumstances Awards may be
settled in cash, Shares or other property or canceled or suspended; and




     (s) exercise all such other authorities, take all such other actions and make all such
other determinations as it deems necessary or advisable for the proper operation and/or
administration of the Plan.



          3.4. Award Agreements. The Committee shall, subject to applicable laws and rules,
determine the date an Award is granted. Each Award shall be evidenced by an Award Agreement;
however, two or more Awards granted to a single Participant may be combined in a single
Award Agreement. An Award Agreement shall not be a precondition to the granting of an Award;
provided, however, that (a) the Committee may, but need not, require as a condition
to any Award Agreement’s effectiveness, that such Award Agreement be executed on behalf of the
Company and/or by the Participant to whom the Award evidenced thereby shall have been granted
(including by electronic signature or other electronic indication of acceptance), and such executed
Award Agreement be delivered to the Company, and (b) no person shall have any rights under any
Award unless and until the Participant to whom such Award shall have been granted has complied with
the applicable terms and conditions of the Award. The Committee shall prescribe the form of all
Award Agreements, and, subject to the terms and conditions of the Plan, shall determine the content
of all Award Agreements. Any Award Agreement may be supplemented or amended in writing from time
to time as approved by the Committee; provided that the terms and conditions of any such
Award Agreement as supplemented or amended are not inconsistent with the provisions of the Plan.
In the event of any dispute or discrepancy concerning the terms of an Award, the records of the
Committee or its designee shall be determinative.




          3.5. Discretionary Authority; Decisions Binding. The Committee shall have full
discretionary authority in all matters related to the discharge of its responsibilities and the
exercise of its authority under the Plan. All determinations, decisions, actions and
interpretations by the Committee with respect to the Plan and any Award Agreement, and all related
orders and resolutions of the Committee shall be final, conclusive and binding on all Participants,
the Company and its shareholders, any Subsidiary or Affiliate and all persons having or claiming to
have any right or interest in or under the Plan and/or any Award Agreement. The Committee shall
consider such factors as it deems relevant to making or taking such decisions, determinations,
actions and interpretations, including the recommendations or advice of any Director or officer or
employee of the Company, any director, officer or employee of a Subsidiary or Affiliate and such
attorneys, consultants and accountants as the Committee may




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select. A Participant or other holder
of an Award may contest a decision or action by the Committee with respect to such person or Award
only on the grounds that such decision or action was arbitrary or capricious or was unlawful, and
any review of such decision
or action shall be limited to determining whether the Committee’s decision or action was
arbitrary or capricious or was unlawful.




          3.6. Attorneys; Consultants. The Committee may consult with counsel who may be
counsel to the Company. The Committee may, with the approval of the Board, employ such other
attorneys and/or consultants, accountants, appraisers, brokers, agents and other persons, any of
whom may be an Employee, as the Committee deems necessary or appropriate. The Committee, the
Company and its officers and Directors shall be entitled to rely upon the advice, opinions or
valuations of any such persons. The Committee shall not incur any liability for any action taken
in good faith in reliance upon the advice of such counsel or other persons.




          3.7. Delegation of Administration. Except to the extent prohibited by applicable law,
including any applicable exemptive rule under Section 16 of the Exchange Act (including Rule
16b-3), or the applicable rules of a stock exchange, the Committee may, in its discretion, allocate
all or any portion of its responsibilities and powers under this Article III to any one or more of
its members and/or delegate all or any part of its responsibilities and powers under this Article
III to any person or persons selected by it; provided, however, that the Committee
may not delegate its authority to correct defects, omissions or inconsistencies in the Plan. Any
such authority delegated or allocated by the Committee under this Section 3.7 shall be exercised in
accordance with the terms and conditions of the Plan and any rules, regulations or administrative
guidelines that may from time to time be established by the Committee, and any such allocation or
delegation may be revoked by the Committee at any time.




ARTICLE IV.

SHARES SUBJECT TO THE PLAN




          4.1. Number of Shares Available for Grants. The shares of stock subject to Awards
granted under the Plan shall be Shares. Such Shares subject to the Plan may be either authorized
and unissued shares (which will not be subject to preemptive rights) or previously issued shares
acquired by the Company or any Subsidiary. Subject to adjustment as provided in Section 4.2, the
total number of Shares that may be delivered pursuant to Awards under
the Plan shall be 1,800,000 Shares. Subject to, in the case of ISOs, any limitations applicable thereto under the Code, if (a)
any Shares are subject to an Option, SAR, or other Award which for any reason expires or is
terminated or canceled without having been fully exercised or satisfied, or are subject to any
Restricted Stock Award (including any Shares subject to a Participant’s Restricted Stock Award that
are repurchased by the Company at the Participant’s cost), Restricted Stock Unit Award or other
Award granted under the Plan which are forfeited, or (b) any Award based on Shares is settled for
cash, expires or otherwise terminates without the issuance of such Shares, the Shares subject to
such Award shall, to the extent of any such expiration, termination, cancellation, forfeiture or
cash settlement, be available for delivery in connection with future Awards under the Plan. Any
Shares delivered under the Plan upon exercise or satisfaction of Substitute Awards shall not reduce
the Shares
available for delivery under the Plan; provided, however, that the total
number of Shares that may be delivered pursuant to Incentive Stock Options granted under the Plan
shall be the number of Shares set forth in the third sentence of

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this Section 4.1, as adjusted
pursuant to this Section 4.1, but without application of the foregoing provisions of this sentence.




          4.2. Adjustments in Authorized Shares. In the event of any corporate event or
transaction (including a change in the Shares or the capitalization of the Company), such as a
reclassification, recapitalization, merger, consolidation, reorganization (whether or not such
reorganization comes within the definition of such term in Section 368 of the Code), issuance of
warrants or rights, dividend or other distribution (whether in the form of cash, stock or other
property), stock split or reverse stock split, spin-off, split-up, combination or exchange of
shares, repurchase of shares, or other like change in corporate structure, partial or complete
liquidation of the Company or distribution (other than normal cash dividends) to shareholders of
the Company, or any similar corporate event or transaction, the Committee, in its discretion, in
order to prevent dilution or enlargement of Participants’ rights under the Plan, shall substitute
or adjust, as applicable, the number, class and kind of securities which may be delivered under
Section 4.1; the number, class and kind, and/or price (such as the Option Price of Options or the
Grant Price of SARs) of securities subject to outstanding Awards; and other value determinations
applicable to outstanding Awards; provided, however, that the number of Shares
subject to any Award shall always be a whole number. The Committee, in its sole discretion, may
also make appropriate adjustments and modifications in the terms of any outstanding Awards to
reflect or related to any such events, adjustments, substitutions or changes, including
modifications of performance goals and changes in the length of Performance Periods. Any
adjustment, substitution or change pursuant to this Section 4.2 made with respect to an Award
intended to be an Incentive Stock Option shall be made only to the extent consistent with such
intent, unless the Committee determines otherwise. The Committee shall not make any adjustment
pursuant to this Section 4.2 that would cause an Award that is otherwise exempt from Code Section
409A to become subject to Code Section 409A, or that would cause an Award that is subject to Code
Section 409A to fail to satisfy the requirements of Code Section 409A. All determinations of the
Committee as to adjustments or changes, if any, under this Section 4.2 shall be conclusive and
binding on the Participants.




          4.3. No Limitation on Corporate Actions. The existence of the Plan and any Awards
granted hereunder shall not affect in any way the right or power of the Company, any Subsidiary or
any Affiliate to make or authorize any adjustment, recapitalization, reorganization or other change
in its capital structure or business structure, any merger or consolidation, any issuance of debt,
preferred or prior preference stock ahead of or affecting the Shares, additional shares of capital
stock or other securities or subscription rights thereto, any dissolution or liquidation, any sale
or transfer of all or part of its assets or business or any other corporate act or proceeding.
Further, except as expressly provided herein or by the Committee, (i) the issuance by the Company
of Shares or any class of securities convertible into shares of stock of any class, for cash,
property, labor or services, upon direct sale, upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company convertible into such shares
or other securities, (ii) the payment of a dividend in property other than Shares, (iii) the
occurrence of any
capital change described in Section 4.2 or (iv) the occurrence of any similar transaction, and
in any case whether or not for fair value, shall not affect, and no adjustment by reason thereof
shall be made with respect to, the number of Shares subject to Awards theretofore granted or the
Option Price, Grant Price or purchase price per share

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applicable to any Award, unless the Committee
shall determine, in its discretion, that an adjustment is necessary or appropriate.




ARTICLE V.

ELIGIBILITY AND PARTICIPATION




          5.1. Eligibility. Employees, Non-Employee Directors and Consultants shall be eligible
to become Participants and receive Awards in accordance with the terms and conditions of the Plan,
subject to the limitations on the granting of ISOs set forth in Section 6.9(a).




          5.2. Actual Participation. Subject to the provisions of the Plan, the Committee may,
from time to time, select Participants from all eligible Employees, Non-Employee Directors and
Consultants and shall determine the nature and amount of each Award.




ARTICLE VI.

STOCK OPTIONS




          6.1. 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. The Committee may grant an Option or provide for the
grant of an Option, either from time to time in the discretion of the Committee or automatically
upon the occurrence of specified events, including the achievement of performance goals, the
satisfaction of an event or condition within the control of the recipient of the Option or within
the control of others. The granting of an Option shall take place when the Committee by
resolution, written consent or other appropriate action determines to grant such Option for a
particular number of Shares to a particular Participant at a particular Option Price.




          6.2. Award Agreement. Each Option grant shall be evidenced by an Award Agreement that
shall specify the Option Price, the maximum duration of the Option, the number of Shares to which
the Option pertains, the conditions upon which the Option shall become exercisable and such other
provisions as the Committee shall determine, which are not inconsistent with the terms of the Plan.
The Award Agreement also shall specify whether the Option is intended to be an ISO or an NQSO. To
the extent that any Option does not qualify as an ISO (whether because of its provisions or the
time or manner of its exercise or otherwise), such Option, or the portion thereof which does not so
qualify, shall constitute a separate NQSO.




          6.3. Option Price. The Option Price for each Option shall be determined by the Committee and set forth in the
Award Agreement; provided that, subject to Section 6.9(c), the Option Price of an Option
shall be not less than one hundred percent (100%) of the Fair Market Value of a Share on the date
the Option is granted; provided further, that Substitute Awards or Awards granted
in connection with an adjustment provided for in Section 4.2, in the form of stock options, shall
have an Option Price per Share that is intended to maintain the economic value of the Award that
was replaced or adjusted, as determined by the Committee.




          6.4. Duration of Options. Each Option granted to a Participant shall expire at such
time as the Committee shall determine at the time of grant and set forth in the Award Agreement;
provided, however, that no Option shall be exercisable later than the tenth
(10th) anniversary of its date of grant, subject to the respective last sentences of
Sections 6.5 and 6.9(c).




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          6.5. Exercise of Options. Options shall be exercisable at such times and be subject
to such restrictions and conditions as the Committee shall in each instance determine and set forth
in the Award Agreement, which need not be the same for each grant or for each Option or
Participant. An Agreement may provide that the period of time over which an Option other than an
ISO may be exercised shall be automatically extended if on the scheduled expiration date of such
Option the Optionee’s exercise of such Option would violate applicable securities laws;
provided, however, that during such extended exercise period the Option may only be
exercised to the extent the Option was exercisable in accordance with its terms immediately prior
to such scheduled expiration date; provided further, however, that such
extended exercise period shall end not later than thirty (30) days after the exercise of such
Option first would no longer violate such laws.




          6.6. Payment. Options shall be exercised by the delivery of a written notice of
exercise to the Company, in a form specified or accepted by the Committee, or by complying with any
alternative exercise procedures that may be authorized by the Committee, setting forth the number
of Shares with respect to which the Option is to be exercised, accompanied by full payment for such
Shares, which shall include applicable taxes, if any, in accordance with Article XVI. The Option
Price upon exercise of any Option shall be payable to the Company in full either: (a) in cash or
its equivalent; (b) subject to such terms, conditions and limitations as the Committee may
prescribe, by tendering (either by actual delivery or attestation) unencumbered Shares previously
acquired by the Participant exercising such Option having an aggregate Fair Market Value at the
time of exercise equal to the total Option Price, (c) by a combination of (a) and (b); or (d) by
any other method approved or accepted by the Committee in its sole discretion, including, if the
Committee so determines, (x) a cashless (broker-assisted) exercise that complies with all
applicable laws or (y) withholding of Shares otherwise deliverable to the Participant pursuant to
the Option having an aggregate Fair Market Value at the time of exercise equal to the total Option
Price. Subject to any governing rules or regulations, as soon as practicable after receipt of a
written notification of exercise and full payment in accordance with the preceding provisions of
this Section 6.6, the Company shall deliver to the Participant exercising an Option,
in the Participant’s name, evidence of book entry Shares, or, upon the Participant’s request,
Share certificates, in an appropriate amount based upon the number of Shares purchased under the
Option, subject to Section 19.10. Unless otherwise determined by the Committee, all payments under
all of the methods described above shall be paid in United States dollars.




          6.7. Rights as a Shareholder. No Participant or other person shall become the
beneficial owner of any Shares subject to an Option, nor have any rights to dividends or other
rights of a shareholder with respect to any such Shares, until the Participant has actually
received such Shares following exercise of his or her Option in accordance with the provisions of
the Plan and the applicable Award Agreement.




          6.8. Termination of Employment or Service(a) . Except as otherwise provided in the
Award Agreement, an Option may be exercised only to the extent that it is then exercisable, and if
at all times during the period beginning with the date of granting of such Option and ending on the
date of exercise of such Option the Participant is an Employee or Non-Employee Director, and shall
terminate immediately upon a Termination of the Participant. An Option shall cease to become newly
exercisable upon a Termination of the holder thereof.

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Notwithstanding the foregoing provisions of
this Section 6.8 to the contrary, the Committee may determine in its discretion that an Option may
be exercised following any such Termination, whether or not exercisable at the time of such
Termination; provided, however, that in no event may an Option be exercised after
the expiration date of such Option specified in the applicable Award Agreement, except as provided
in the last sentence of Section 6.5.




          6.9. Limitations on Incentive Stock Options.





     (a) General. No ISO shall be granted to any individual otherwise eligible to
participate in the Plan who is not an Employee of the Company or a Subsidiary on the date of
granting of such Option. Any ISO granted under the Plan shall contain such terms and
conditions, consistent with the Plan, as the Committee may determine to be necessary to
qualify such Option as an “incentive stock option” under Section 422 of the Code. Any ISO
granted under the Plan may be modified by the Committee to disqualify such Option from
treatment as an “incentive stock option” under Section 422 of the Code.




     (b) $100,000 Per Year Limitation. Notwithstanding any intent to grant ISOs, an
Option granted under the Plan will not be considered an ISO to the extent that it, together
with any other “incentive stock options” (within the meaning of Section 422 of the Code, but
without regard to subsection (d) of such Section) under the Plan and any other “incentive
stock option” plans of the Company, any Subsidiary and any “parent corporation” of the
Company within the meaning of Section 424(e) of the Code, are exercisable for the first time
by any Participant during any calendar year with respect to Shares having an aggregate Fair
Market Value in excess of $100,000 (or such other limit as may be required by the Code) as
of the time the Option with respect to such Shares is
granted. The rule set forth in the preceding sentence shall be applied by taking
Options into account in the order in which they were granted.




     (c) Options Granted to Certain Shareholders. No ISO shall be granted to an
individual otherwise eligible to participate in the Plan who owns (within the meaning of
Section 424(d) of the Code), at the time the Option is granted, more than ten percent (10%)
of the total combined voting power of all classes of stock of the Company or a Subsidiary or
any “parent corporation” of the Company within the meaning of Section 424(e) of the Code.
This restriction does not apply if at the time such ISO is granted the Option Price of the
ISO is at least 110% of the Fair Market Value of a Share on the date such ISO is granted,
and the ISO by its terms is not exercisable after the expiration of five years from such
date of grant.



ARTICLE VII.

STOCK APPRECIATION RIGHTS




          7.1. 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 an SAR (a) in connection and simultaneously with the grant of an Option (a
Tandem SAR) or (b) independent of, and unrelated to, an Option (a Freestanding SAR). The Committee
shall have complete discretion in determining the number

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of Shares to which a SAR pertains (subject
to Article IV) and, consistent with the provisions of the Plan, in determining the terms and
conditions pertaining to any SAR.




          7.2. Grant Price. The Grant Price for each SAR shall be determined by the Committee
and set forth in the Award Agreement, subject to the limitations of this Section 7.2. The Grant
Price for each Freestanding SAR shall be not less than one hundred percent (100%) of the Fair
Market Value of a Share on the date such Freestanding SAR is granted, except in the case of
Substitute Awards or Awards granted in connection with an adjustment provided for in Section 4.2.
The Grant Price of a Tandem SAR shall be equal to the Option Price of the related Option.




          7.3. 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 shall be exercisable only when and to the extent the
related Option is exercisable and may be exercised only with respect to the Shares for which the
related Option is then exercisable. A Tandem SAR shall entitle a Participant to elect, in the
manner set forth in the Plan and the applicable Award Agreement, in lieu of exercising his or her
unexercised related Option for all or a portion of the Shares for which such Option is then
exercisable pursuant to its terms, to surrender such Option to the Company with respect to any or
all of such Shares and to receive from the Company in exchange therefor a payment described in
Section 7.7. An Option with respect to which a Participant has elected to exercise a Tandem SAR
shall, to the extent of the Shares covered by such exercise, be canceled automatically and
surrendered to the Company.
Such Option shall thereafter remain exercisable according to its terms only with respect to
the number of Shares as to which it would otherwise be exercisable, less the number of Shares with
respect to which such Tandem SAR has been so exercised. Notwithstanding any other provision of the
Plan to the contrary, with respect to a Tandem SAR granted in connection with an ISO: (a) the
Tandem SAR will expire no later than the expiration of the related ISO; (b) the value of the
payment with respect to the Tandem SAR may not exceed the difference between the Fair Market Value
of the Shares subject to the related ISO at the time the Tandem SAR is exercised and the Option
Price of the related ISO; and (c) 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.




          7.4. Exercise of Freestanding SARs. Freestanding SARs may be exercised upon whatever
terms and conditions the Committee, in its sole discretion, in accordance with the Plan, determines
and sets forth in the Award Agreement.




          7.5. Award Agreement. Each SAR grant shall be evidenced by an Award Agreement that
shall specify the number of Shares to which the SAR pertains, the Grant Price, the term of the SAR,
and such other terms and conditions as the Committee shall determine in accordance with the Plan.




          7.6. Term of SARs. The term of a SAR granted under the Plan shall be determined by
the Committee, in its sole discretion; provided, however, that the term of any
Tandem SAR shall be the same as the related Option and no SAR shall be exercisable more than ten
(10) years after it is granted, subject to the last sentence of Section 6.5 in the case of a Tandem
SAR.





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          7.7. Payment of SAR Amount. An election to exercise SARs shall be deemed to have been
made on the date of Notice of such election to the Company. Upon exercise of a SAR, a Participant
shall be entitled to receive payment from the Company in an amount determined by multiplying:




     (a) The excess of the Fair Market Value of a Share on the date of exercise over the
Grant Price of the SAR; by




     (b) The number of Shares with respect to which the SAR is exercised.


Notwithstanding the foregoing provisions of this Section 7.7 to the contrary, the Committee may
establish and set forth in the applicable Award Agreement a maximum amount per Share that will
be payable upon the exercise of a SAR. At the discretion of the Committee, such payment upon
exercise of a SAR shall be in cash, in Shares of equivalent Fair Market Value, or in some
combination thereof.




          7.8. Rights as a Shareholder. A Participant receiving a SAR shall have the rights of a Shareholder only as to Shares, if
any, actually issued to such Participant upon satisfaction or achievement of the terms and
conditions of the Award, and in accordance with the provisions of the Plan and the applicable Award
Agreement, and not with respect to Shares to which such Award relates but which are not actually
issued to such Participant.



          7.9. Termination of Employment or Service. Each SAR Award Agreement shall set forth
the extent to which the Participant shall have the right to exercise the SAR following such
Participant’s Termination, subject to Section 6.8, as applicable to any Tandem SAR. Such
provisions shall be determined in the sole discretion of the Committee, need not be uniform among
all SARs issued pursuant to the Plan, and may reflect distinctions based on the reasons for
Termination.



ARTICLE VIII.

RESTRICTED STOCK AND RESTRICTED STOCK UNITS




          8.1. Awards of Restricted Stock and Restricted Stock Units. 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 and/or Restricted Stock Units to Participants in such amounts as the Committee
shall determine. Subject to the terms and conditions of this Article VIII and the Award Agreement,
upon delivery of Shares of Restricted Stock to a Participant, or creation of a book entry
evidencing a Participant’s ownership of Shares of Restricted Stock, pursuant to Section 8.6, the
Participant shall have all of the rights of a shareholder with respect to such Shares, subject to
the terms and restrictions set forth in this Article VIII or the applicable Award Agreement or as
determined by the Committee. Restricted Stock Units shall be similar to Restricted Stock, except
no Shares are actually awarded to a Participant who is granted Restricted Stock Units on the date
of grant, and such Participant shall have no rights of a shareholder with respect to such
Restricted Stock Units.



          8.2. Award Agreement. Each Restricted Stock and/or Restricted Stock Unit Award shall
be evidenced by an Award Agreement that shall specify the Period of Restriction, the number of
Shares of Restricted Stock or the number of Restricted Stock Units granted, and



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such other
provisions as the Committee shall determine in accordance with the Plan. Any Restricted Stock
Award must be accepted by the Participant within a period of ninety (90) days (or such shorter
period as determined by the Committee at the time of award) after the award date, by executing such
Restricted Stock Award Agreement and providing the Committee or its designee a copy of such
executed Award Agreement and payment of the applicable purchase price of such Shares of Restricted
Stock, if any, as determined by the Committee.



          8.3. Nontransferability of Restricted Stock. Except as provided in this Article VIII,
Shares of Restricted Stock may not be sold, transferred, pledged, assigned, encumbered, alienated,
hypothecated or otherwise disposed
of until the end of the applicable Period of Restriction established by the Committee and
specified in the Restricted Stock Award Agreement.



          8.4. Period of Restriction and Other Restrictions. The Period of Restriction shall
lapse based on continuing service as a Non-Employee Director or Consultant or continuing employment
with the Company, a Subsidiary or an Affiliate, the achievement of performance goals, the
satisfaction of other conditions or restrictions or upon the occurrence of other events, in each
case, as determined by the Committee, at its discretion, and stated in the Award Agreement.



          8.5. Delivery of Shares, Payment of Restricted Stock Units. Subject to Section 19.10,
after the last day of the Period of Restriction applicable to a Participant’s Shares of Restricted
Stock, and after all conditions and restrictions applicable to such Shares of Restricted Stock have
been satisfied or lapse (including satisfaction of any applicable withholding tax obligations),
pursuant to the applicable Award Agreement, such Shares of Restricted Stock shall become freely
transferable by such Participant. After the last day of the Period of Restriction applicable to a
Participant’s Restricted Stock Units, and after all conditions and restrictions applicable to
Restricted Stock Units have been satisfied or lapse (including satisfaction of any applicable
withholding tax obligations), pursuant to the applicable Award Agreement, such Restricted Stock
Units shall be settled by delivery of Shares, a cash payment determined by reference to the
then-current Fair Market Value of Shares or a combination of Shares and such cash payment as the
Committee, in its sole discretion, shall determine, either by the terms of the Award Agreement or
otherwise.



          8.6. Forms of Restricted Stock Awards. Each Participant who receives an Award of
Shares of Restricted Stock shall be issued a stock certificate or certificates evidencing the
Shares covered by such Award registered in the name of such Participant, which certificate or
certificates may contain an appropriate legend. The Committee may require a Participant who
receives a certificate or certificates evidencing a Restricted Stock Award to immediately deposit
such certificate or certificates, together with a stock power or other appropriate instrument of
transfer, endorsed in blank by the Participant, with signatures guaranteed in accordance with the
Exchange Act if required by the Committee, with the Secretary of the Company or an escrow holder as
provided in the immediately following sentence. The Secretary of the Company or such escrow holder
as the Committee may appoint shall retain physical custody of each certificate representing a
Restricted Stock Award until the Period of Restriction and any other restrictions imposed by the
Committee or under the Award Agreement with respect to the Shares evidenced by such certificate
expire or shall have been removed. The foregoing to the contrary



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notwithstanding, the Committee
may, in its discretion, provide that a Participant’s ownership of Shares of Restricted Stock prior
to the lapse of the Period of Restriction or any other applicable restrictions shall, in lieu of
such certificates, be evidenced by a “book entry” (i.e., a computerized or manual entry) in
the records of the Company or its designated agent in the name of the Participant who has received
such Award. Such records of the Company or such agent shall, absent manifest error, be binding on
all Participants who receive Restricted Stock Awards evidenced in such manner. The holding of
Shares of Restricted Stock by the Company or such an escrow holder, or the use of book entries
to evidence the ownership of Shares of Restricted Stock, in accordance with this Section 8.6, shall
not affect the rights of Participants as owners of the Shares of Restricted Stock awarded to them,
nor affect the restrictions applicable to such shares under the Award Agreement or the Plan,
including the Period of Restriction.



          8.7. Voting Rights. Unless otherwise determined by the Committee and set forth in a
Participant’s Award Agreement, to the extent permitted or required by law, as determined by the
Committee, Participants holding Shares of Restricted Stock may be granted the right to exercise
full voting rights with respect to those Shares during the Period of Restriction. A Participant
shall have no voting rights with respect to any Restricted Stock Units.



          8.8. Dividends and Other Distributions. During the Period of Restriction,
Participants holding Shares of Restricted Stock shall be credited with any cash dividends paid with
respect to such Shares while they are so held, unless determined otherwise by the Committee and set
forth in the Award Agreement. The Committee may apply any restrictions to such dividends that the
Committee deems appropriate. Except as set forth in the Award Agreement, in the event of (a) any
adjustment as provided in Section 4.2, or (b) any shares or securities are received as a dividend,
or an extraordinary dividend is paid in cash, on Shares of Restricted Stock, any new or additional
Shares or securities or any extraordinary dividends paid in cash received by a recipient of
Restricted Stock shall be subject to the same terms and conditions, including the Period of
Restriction, as relate to the original Shares of Restricted Stock.



          8.9. Termination of Employment or Service. Except as otherwise provided in this
Section 8.9, during the Period of Restriction, any Restricted Stock Units and/or Shares of
Restricted Stock held by a Participant shall be forfeited and revert to the Company (or, if Shares
of Restricted Sock were sold to the Participant, the Participant shall be required to resell such
Shares to the Company at cost) upon the Participant’s Termination or the failure to meet or satisfy
any applicable performance goals or other terms, conditions and restrictions to the extent set
forth in the applicable Award Agreement. Each applicable Award Agreement shall set forth the extent
to which, if any, the Participant shall have the right to retain Restricted Stock Units and/or
Shares of Restricted Stock following such Participant’s Termination. Such provisions shall be
determined in the sole discretion of the Committee, shall be included in the applicable Award
Agreement, need not be uniform among all such Awards issued pursuant to the Plan, and may reflect
distinctions based on the reasons for, or circumstances of, such Termination.



          8.10. Compliance With Section 409A. Unless the Committee provides otherwise in an
Award Agreement, each Restricted Stock Unit shall be paid in full to the Participant no later than
the fifteenth day of the third month after the end of the first calendar year in which the
Restricted Stock Unit is no longer subject to a “substantial risk of forfeiture”



-21-









 







within the meaning
of Code Section 409A. If the
Committee provides in an Award Agreement that a Restricted Stock Unit is intended to be
subject to Code Section 409A, the Award Agreement shall include terms that are intended to satisfy
the requirements of Section 409A.



ARTICLE IX.

PERFORMANCE UNITS, PERFORMANCE SHARES, AND CASH-BASED AWARDS




          9.1. Grant of Performance Units, Performance Shares and Cash-Based Awards. Subject to
the terms of the Plan, Performance Units, Performance Shares, and/or Cash-Based Awards 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, in accordance with the Plan. A Performance Unit,
Performance Share or Cash-Based Award entitles the Participant who receives such Award to receive
Shares or cash upon the attainment of performance goals and/or satisfaction of other terms and
conditions determined by the Committee when the Award is granted and set forth in the Award
Agreement. Such entitlements of a Participant with respect to his or her outstanding Performance
Unit, Performance Share or Cash-Based Award shall be reflected by a bookkeeping entry in the
records of the Company, unless otherwise provided by the Award Agreement. The terms and conditions
of such Awards shall be consistent with the Plan and set forth in the Award Agreement and need not
be uniform among all such Awards or all Participants receiving such Awards.



          9.2. Value of Performance Units, Performance Shares and Cash-Based Awards. 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. Each Cash-Based Award shall have a value as shall be determined by the
Committee. 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 and
Performance Shares and Cash-Based Awards that will be paid out to the Participant.



          9.3. Earning of Performance Units, Performance Shares and Cash-Based Awards. Subject
to the terms of the Plan, after the applicable Performance Period has ended, the holder of
Performance Units, Performance Shares or Cash-Based Awards shall be entitled to receive payment on
the number and value of Performance Units, Performance Shares or Cash-Based Awards earned by the
Participant over the Performance Period, to be determined as a function of the extent to which the
corresponding performance goals and/or other terms and conditions have been achieved or satisfied.
The Committee shall determine the extent to which any such pre-established performance goals and/or
other terms and conditions of a Performance Unit, Performance Share or Cash-Based Award are
attained or not attained following conclusion of the applicable Performance Period. The Committee
may, in its discretion, waive any such performance goals and/or other terms and conditions relating
to any such Award.



          9.4. Form and Timing of Payment of Performance Units, Performance Shares and Cash-Based
Awards. Payment of earned Performance Units, Performance Shares and Cash-Based Awards shall be as
determined by the Committee and as set forth in the Award Agreement. Subject to the terms of the
Plan, the Committee, in its sole discretion, may pay earned Performance Units, Performance Shares
and Cash-Based Awards in the form of cash or in



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Shares (or in a combination thereof) which have an
aggregate Fair Market Value equal to the value of the earned Performance Units, Performance Shares
or Cash-Based Awards as soon as practicable after the end of the Performance Period and following
the Committee’s determination of actual performance against the performance goals and/or other
terms and conditions established by the Committee. Such Shares may be granted subject to any
restrictions imposed by the Committee, including pursuant to Section 19.10. The determination of
the Committee with respect to the form of payment of such Awards shall be set forth in the Award
Agreement pertaining to the grant of the Award.



          9.5. Rights as a Shareholder. A Participant receiving a Performance Unit, Performance
Share or Cash-Based Award shall have the rights of a shareholder only as to Shares, if any,
actually received by the Participant upon satisfaction or achievement of the terms and conditions
of such Award and not with respect to Shares subject to the Award but not actually issued to such
Participant.



          9.6. Termination of Employment or Service. Each Award Agreement shall set forth the
extent to which the Participant shall have the right to retain Performance Units, Performance
Shares and/or Cash-Based Award following such Participant’s Termination. Such provisions shall be
determined in the sole discretion of the Committee, shall be included in the applicable Award
Agreement, need not be uniform among all such Awards issued pursuant to the Plan, and may reflect
distinctions based on the reasons for Termination.



          9.7. Compliance With Section 409A. Unless the Committee provides otherwise in an
Award Agreement, each Performance Unit, Performance Share and/or Cash-Based Award shall be paid in
full to the Participant no later than the fifteenth day of the third month after the end of the
first calendar year in which such Award is no longer subject to a “substantial risk of forfeiture”
within the meaning of Code Section 409A. If the Committee provides in an Award Agreement that a
Performance Share, Performance Unit or Cash-Based Award is intended to be subject to Code Section
409A, the Award Agreement shall include terms that are intended to satisfy the requirements of
Section 409A.



ARTICLE X.

OTHER STOCK-BASED AWARDS




          10.1. Other Stock-Based Awards. The Committee may grant types of equity-based or
equity-related Awards not otherwise described by the terms of the Plan (including the grant or
offer for sale of unrestricted Shares), in such amounts (subject to Article IV) and subject to such
terms and conditions, as the
Committee shall determine. Such Other Stock-Based Awards may involve the transfer of actual
Shares to Participants, or payment in cash or otherwise of amounts based on the value of Shares and
may include Awards designed to comply with or take advantage of the applicable local laws of
jurisdictions other than the United States.



          10.2. Value of Other Stock-Based Awards. Each Other Stock-Based Award shall be
expressed in terms of Shares or units based on Shares, as determined by the Committee. The
Committee may establish performance goals in its discretion, and any such performance goals shall
be set forth in the applicable Award Agreement. If the Committee exercises its discretion to
establish performance goals, the number and/or value of Other Stock-Based Awards



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that will be paid
out to the Participant will depend on the extent to which such performance goals are met.



          10.3. Payment of Other Stock-Based Awards. Payment, if any, with respect to an Other
Stock-Based Award shall be made in accordance with the terms of the Award, as set forth in the
Award Agreement, in cash or Shares as the Committee determines.



          10.4. Termination of Employment or Service. The Committee shall determine the extent
to which the Participant shall have the right to receive Other Stock-Based Awards following the
Participant’s Termination. Such provisions shall be determined in the sole discretion of the
Committee, such provisions may be included in the applicable Award Agreement, but need not be
uniform among all Other Stock-Based Awards issued pursuant to the Plan, and may reflect
distinctions based on the reasons for Termination.



          10.5. Compliance With Section 409A. Unless the Committee provides otherwise in an
Award Agreement, each Other Stock-Based Award shall be paid in full to the Participant no later
than the fifteenth day of the third month after the end of the first calendar year in which the
Other Stock-Based Award is no longer subject to a “substantial risk of forfeiture” within the
meaning of Code Section 409A. If the Committee provides in an Award Agreement that a Cash-Based
Award or Other Stock-Based Award is intended to be subject to Code Section 409A, the Award
Agreement shall include terms that are intended to satisfy the requirements of Section 409A.



ARTICLE XI.

DIVIDEND EQUIVALENTS




          11.1. Dividend Equivalents. Unless otherwise provided by the Committee, no adjustment
shall be made in the Shares issuable or taken into account under Awards on account of cash
dividends that may be paid or other rights that may be issued to the holders of Shares prior to
issuance of such Shares under such Award. The Committee may grant Dividend Equivalents based on
the dividends
declared on Shares that are subject to any Award, including any Award the payment or
settlement of which is deferred pursuant to Section 19.6. Dividend Equivalents may be credited as
of the dividend payment dates, during the period between the date the Award is granted and the date
the Award becomes payable or terminates or expires. Dividend Equivalents may be subject to any
limitations and/or restrictions determined by the Committee. Dividend Equivalents shall be
converted to cash or additional Shares by such formula and at such time, and shall be paid at such
times, as may be determined by the Committee. Unless the Award Agreement provides otherwise,
Dividend Equivalents shall be paid to the Participant at least annually, not later than the
fifteenth day of the third month following the end of the calendar year in which the Dividend
Equivalents are credited (or, if later, the fifteenth day of the third month following the end of
the calendar year in which the Dividend Equivalents are no longer subject to a substantial risk of
forfeiture within the meaning of Code Section 409A). Any Dividend Equivalents that are accumulated
and paid after the date specified in the preceding sentence shall be explicitly set forth in a
separate arrangement that provides for the payment of the dividend equivalents at a time and in a
manner that satisfies the requirements of Code Section 409A. No Dividend Equivalents shall relate
to Shares underlying



-24-









 







an Option or SAR unless such Dividend Equivalent rights are explicitly set
forth as a separate arrangement and do not cause any such Option or SAR to be subject to Code
Section 409A.



ARTICLE XII.

TRANSFERABILITY OF AWARDS; BENEFICIARY DESIGNATION




          12.1. Transferability of Incentive Stock Options. No ISO or Tandem SAR granted in
connection with an ISO may be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and distribution or in accordance with
Section 12.3. Further, all ISOs and Tandem SARs granted in connection with ISOs granted to a
Participant shall be exercisable during his or her lifetime only by such Participant.



          12.2. All Other Awards. Except as otherwise provided in Section 8.5 or Section 12.3
or a Participant’s Award Agreement or otherwise determined at any time by the Committee, no Award
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; provided that
the Committee may permit further transferability, on a general or a specific basis, and may impose
conditions and limitations on any permitted transferability, subject to Section 12.1 and any
applicable Period of Restriction; provided further, however, that no Award
may be transferred for value or other consideration without first obtaining approval thereof by the
shareholders of the Company. Further, except as otherwise provided in a Participant’s Award
Agreement or otherwise determined at any time by the Committee, or unless the Committee decides to
permit further transferability, subject to Section 12.1 and any applicable Period of Restriction,
all Awards granted to a Participant under the Plan, and all rights with respect to such Awards,
shall be exercisable or available during his or her lifetime only by or to such Participant. With
respect to those Awards, if any, that are permitted to be transferred to another individual,
references in the Plan to exercise or payment related to such Awards by or to the Participant shall
be deemed
to include, as determined by the Committee, the Participant’s permitted transferee. In the
event any Award is exercised by or otherwise paid to the executors, administrators, heirs or
distributees of the estate of a deceased Participant, or such a Participant’s beneficiary, or the
transferee of an Award, in any such case, pursuant to the terms and conditions of the Plan and the
applicable Agreement and in accordance with such terms and conditions as may be specified from time
to time by the Committee, the Company shall be under no obligation to issue Shares thereunder
unless and until the Company is satisfied, as determined in the discretion of the Committee, that
the person or persons exercising such Award, or to receive such payment, are the duly appointed
legal representative of the deceased Participant’s estate or the proper legatees or distributees
thereof or the named beneficiary of such Participant, or the valid transferee of such Award, as
applicable. Any purported assignment, transfer or encumbrance of an Award that does not comply
with this Section 12.2 shall be void and unenforceable against the Company.



          12.3. Beneficiary Designation. Each Participant may, from time to time, name any
beneficiary or beneficiaries who shall be permitted to exercise his or her Option or SAR or to whom
any benefit under the Plan is to be paid in case of the Participant’s death before he or she fully
exercises his or her Option or SAR or receives any or all of such benefit. Each such designation
shall revoke all prior designations by the same Participant, shall be in a form



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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 beneficiary designation, a
Participant’s unexercised Option or SAR, or amounts due but remaining unpaid to such Participant,
at the Participant’s death, shall be exercised or paid as designated by the Participant by will or
by the laws of descent and distribution.



ARTICLE XIII.

RIGHTS OF PARTICIPANTS




          13.1. Rights or Claims. No individual shall have any rights or claims under the Plan
except in accordance with the provisions of the Plan and any applicable Award Agreement. The grant
of an Award under the Plan shall not confer any rights upon the Participant holding such Award
other than such terms, and subject to such conditions, as are specified in the Plan as being
applicable to such type of Award, or to all Awards, or as are expressly set forth in the Award
Agreement evidencing such Award. Without limiting the generality of the foregoing, nothing
contained in the Plan or in any Award Agreement shall be deemed to:




	 	(a)	 	Give any Employee or Non-Employee Director the right to be retained in the
service of the Company, an Affiliate and/or a Subsidiary, whether in any particular
position, at any particular rate of compensation, for any particular period of time or
otherwise;






	 	(b)	 	Restrict in any way the right of the Company, an Affiliate and/or a Subsidiary
to terminate, change or modify any Employee’s employment or any Non-Employee Director’s
service as a Director at any time with or without Cause;






	 	(c)	 	Confer on any Consultant any right of continued relationship with the Company,
an Affiliate and/or a Subsidiary, or alter any relationship between them, including any
right of the Company or an Affiliate or Subsidiary to terminate, change or modify its
relationship with a Consultant;






	 	(d)	 	Give any Employee, Non-Employee Director or Consultant the right to receive any
bonus, whether payable in cash or in Shares, or in any combination thereof, from the
Company, an Affiliate and/or a Subsidiary, nor be construed as limiting in any way the
right of the Company, an Affiliate and/or a Subsidiary to determine, in its sole
discretion, whether or not it shall pay any Employee, Non-Employee Director or
Consultant bonuses, and, if so paid, the amount thereof and the manner of such payment;
or






	 	(e)	 	Give any Participant any rights whatsoever with respect to an Award except as
specifically provided in the Plan and the Award Agreement.





          13.2. Adoption of the Plan. The adoption of the Plan shall not be deemed to give any
Employee, Non-Employee Director or Consultant or any other individual any right to be selected as a
Participant or to be granted an Award, or, having been so selected, to be selected to receive a
future Award.



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          13.3. Vesting. Notwithstanding any other provision of the Plan, a Participant’s right
or entitlement to exercise or otherwise vest in any Award not exercisable or vested at the time of
grant shall only result from continued services as a Non-Employee Director or Consultant or
continued employment, as the case may be, with the Company or any Subsidiary or Affiliate, or
satisfaction of any other performance goals or other conditions or restrictions applicable, by its
terms, to such Award.



            13.4. No Effects on Benefits. Payments and other compensation received by a
Participant under an Award are not part of such Participant’s normal or expected compensation or
salary for any purpose, including calculating termination, indemnity, severance, resignation,
redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits
or similar payments under any laws, plans, contracts, arrangements or otherwise. No claim or
entitlement to compensation or damages arises from the termination of the Plan or diminution in
value of any Award or Shares purchased or otherwise received under the Plan.



            13.5. One or More Types of Awards. A particular type of Award may be granted to a
Participant either alone or in addition to other Awards under the Plan.



ARTICLE XIV.

CHANGE OF CONTROL




          14.1. Treatment of Outstanding Awards. In the event of a Change of Control, unless
otherwise specifically prohibited by any applicable laws, rules or regulations or otherwise
provided in any applicable Award Agreement, as in effect prior to the occurrence of the Change of
Control, specifically with respect to a Change of Control:




     (a) In its discretion, and on such terms and conditions as it deems appropriate, the
Committee may provide, either by the terms of the Award Agreement or by resolution adopted
prior to the occurrence of such Change of Control, that any Options, SARs and Other
Stock-Based Awards (if applicable) which are outstanding shall become exercisable as
determined by the Committee, notwithstanding anything to the contrary in the Award
Agreement; provided, however, that if (i) such Options, SARs or Other
Stock-Based Awards are not Assumed or Replaced, or in the event of a liquidation of the
Company, or (ii) a Participant incurs a Termination, either by the Company, an Affiliate or
a Subsidiary without Cause or by the Participant for Good Reason, after the Change of
Control, then all outstanding Options, SARs and Other Stock-Based Awards (if applicable)
that (x) are not so Assumed or Replaced, or are outstanding at the time of such a
liquidation of the Company, or (y) are held by such a Terminated Participant, as the case
may be, shall become fully exercisable as to all Shares covered thereby, immediately prior
to the occurrence of such Change of Control (or such earlier date as the Committee may
prescribe), in the case of clause (x) immediately preceding, or upon the occurrence of such
Termination, in the case of clause (y) immediately preceding, notwithstanding anything to
the contrary in the Plan or the Award Agreement.




     (b) In its discretion, and on such terms and conditions as it deems appropriate, the
Committee may provide, either by the terms of the Award Agreement or by resolution adopted
prior to the occurrence of such Change of Control, that restrictions, performance



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goals or
other conditions applicable to Restricted Stock Units, Shares of Restricted Stock and Other
Stock-Based Awards previously awarded to Participants shall be canceled or deemed achieved,
the Period of Restriction applicable thereto shall terminate, and restrictions on transfer,
sale, assignment, pledge or other disposition applicable to any such Shares of Restricted
Stock shall lapse, in each case, to the extent provided by the Committee, notwithstanding
anything to the contrary in the Award Agreement; provided, however, that if
(i) any such Awards are not Assumed or Replaced, or in the event of a liquidation of the
Company, or (ii) a Participant incurs a Termination, either by the Company, an Affiliate or
a Subsidiary without Cause or by the Participant for Good Reason, after the Change of
Control, then any restrictions, performance goals or other conditions applicable to
outstanding Restricted Stock Units, Shares of Restricted Stock and Other Stock-Based Awards
that (x) are not so Assumed or Replaced, or are outstanding at the time of such a
liquidation of the Company, or (y) are held by such a Terminated Participant, as the case
may be, shall be immediately cancelled or deemed achieved, and the Period of Restriction
applicable to any such Shares of Restricted Stock Award shall terminate, and restrictions on
transfer, sale, assignment, pledge or other
disposition applicable to any such Shares of Restricted Stock shall lapse, in each
case, immediately prior to the occurrence of such Change of Control (or such earlier date as
the Committee may prescribe), in the case of clause (x) immediately preceding, or upon the
occurrence of such Termination, in the case of clause (y) immediately preceding,
notwithstanding anything to the contrary in the Plan or the Award Agreement.




     (c) In its discretion, and on such terms and conditions as it deems appropriate, the
Committee may provide, either by the terms of the Award Agreement or by resolution adopted
prior to the occurrence of such Change of Control, that any Awards which are outstanding
shall, in whole or in part, immediately become vested and nonforfeitable; provided,
however, that if (i) any such Awards are not Assumed or Replaced, or in the event of
a liquidation of the Company, or (ii) a Participant incurs a Termination, either by the
Company, an Affiliate or a Subsidiary without Cause or by the Participant for Good Reason,
after the Change of Control, then all outstanding Awards that (x) are not so Assumed or
Replaced or are outstanding at the time of such a liquidation of the Company or (y) are held
by such a Terminated Participant, as the case may be, shall become fully vested and
nonforfeitable, immediately prior to the occurrence of such Change of Control (or such
earlier date as the Committee may prescribe), in the case of clause (x) immediately
preceding, or upon the occurrence of such Termination, in the case of clause (y) immediately
preceding, notwithstanding anything to the contrary in the Plan or the Award Agreement.




     (d) In its discretion, and on such terms and conditions as it deems appropriate, the
Committee may provide, either by the terms of the Award Agreement or by resolution adopted
prior to the occurrence of such Change of Control, that the target payment opportunities
attainable under any outstanding Awards of Performance Units, Performance Shares, Cash-Based
Awards and other Awards shall be deemed to have been fully or partially earned for any
Performance Period(s), as determined by the Committee, immediately prior to the effective
date of the Change of Control. Notwithstanding the immediately preceding sentence to the
contrary, if (i) any such Awards are not Assumed or Replaced, or in the event of a
liquidation of the Company, or



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(ii) a Participant incurs a Termination, either by the
Company, an Affiliate or a Subsidiary without Cause or by the Participant for Good Reason,
after the Change of Control, then, with respect to any such Awards that (x) are not so
Assumed or Replaced for, or are outstanding at the time of such a liquidation of the
Company, or (y) are held by such a Terminated Participant, as the case may be, the target
payment opportunities attainable under any such outstanding Awards of Performance Units,
Performance Shares, Cash-Based Awards and such other Awards shall be deemed to have been
fully earned for the entire Performance Period(s) immediately prior to the effective date of
the Change of Control, in the case of clause (x) immediately preceding, or upon the
occurrence of such Termination, in the case of clause (y) immediately preceding, unless
actual performance exceeds the target, in which case actual performance shall be used, and
(I) there shall be paid out to each Participant holding such an Award denominated in Shares,
not later than five (5) days prior to the effective date of the Change of Control, in the
case of clause (x) immediately preceding, or upon the occurrence of such Termination, in the
case of clause (y) immediately preceding, a pro rata number of Shares (or the
equivalent Fair Market Value thereof, as determined by the Committee, in cash)
based upon an assumed achievement of all relevant targeted performance goals, unless
actual performance exceeds the target, in which case actual performance shall be used, and
upon the length of time within the Performance Period which has elapsed prior to the Change
of Control or such Termination, as the case may be, and (II) Awards denominated in cash
shall be paid pro rata to the applicable Participant or Participants in cash within
thirty (30) days following the effective date of the Change of Control, in the case of
clause (x) immediately preceding, or within thirty (30) days following the occurrence of
such Termination, in the case of clause (y) immediately preceding, with the
pro-ration determined as a function of the length of time within the Performance
Period which has elapsed prior to the Change of Control or Termination, as the case may be,
and based on an assumed achievement of all relevant targeted performance goals, unless
actual performance exceeds the target, in which case actual performance shall be used.




     (e) In its discretion, and on such terms and conditions as it deems appropriate, the
Committee may provide, either by the terms of the Award Agreement applicable to any Award or
by resolution adopted prior to the occurrence of such Change of Control, that any Award the
payment or settlement of which was deferred under Section 19.6 or otherwise may be paid or
distributed immediately prior to the Change of Control, except as otherwise provided by the
Committee in accordance with Section 16.1(f); provided, however, that if (i)
such Awards are not Assumed or Replaced, or in the event of a liquidation of the Company, or
(ii) a Participant incurs a Termination either by the Company, an Affiliate or a Subsidiary
without Cause or by the Participant for Good Reason after the Change of Control, then any
such Awards that (x) are not so Assumed or Replaced, or are outstanding at the time of such
a liquidation of the Company, or (y) are held by such a Terminated Participant, as the case
may be, shall be paid or distributed immediately prior to the occurrence of such Change of
Control (or such earlier date as the Committee may prescribe), in the case of clause (x)
immediately preceding, or upon the occurrence of such Termination, in the case of clause (y)
immediately preceding, except as otherwise provided by the Committee in accordance with
Section 16.1(f).



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     (f) In its discretion, and on such terms and conditions as it deems appropriate, the
Committee may provide, either by the terms of the Award Agreement applicable to any Award or
by resolution adopted prior to the occurrence of the Change of Control, that any outstanding
Award shall be adjusted by substituting for each Share subject to such Award immediately
prior to the transaction resulting in the Change of Control the consideration (whether stock
or other securities of the surviving corporation or any successor corporation to the
Company, or a parent or subsidiary thereof, or that may be issuable by another corporation
that is a party to the transaction resulting in the Change of Control) received in such
transaction by holders of Shares for each Share held on the closing or effective date of
such transaction, in which event the aggregate Option Price or Grant Price, as applicable,
of the Award shall remain the same; provided, however, that if such
consideration received in such transaction is not solely stock of a successor, surviving or
other corporation, the Committee may provide for the consideration to be received upon
exercise or payment of an Award, for each Share subject to such Award, to be solely stock or
other securities of the successor, surviving or other corporation, as applicable, equal in
fair market value, as determined by the Committee, to the per-Share consideration received
by holders of Shares in such transaction.




     (g) In its discretion, and on such terms and conditions as it deems appropriate, the
Committee may provide, either by the terms of the Award Agreement applicable to any Award or
by resolution adopted prior to the occurrence of the Change of Control, that any outstanding
Award (or portion thereof) shall be converted into a right to receive cash, on or as soon
as practicable following the closing date or expiration date of the transaction resulting in
the Change of Control in an amount equal to the highest value of the consideration to be
received in connection with such transaction for one Share, or, if higher, the highest Fair
Market Value of a Share during the thirty (30) consecutive business days immediately prior
to the closing date or expiration date of such transaction, less the per-Share Option Price,
Grant Price or outstanding unpaid purchase price, as applicable to the Award, multiplied by
the number of Shares subject to such Award, or the applicable portion thereof.




     (h) The Committee may, in its discretion, provide that an Award can or cannot be
exercised after, or will otherwise terminate or not terminate as of, a Change of Control.



          14.2. No Implied Rights; Other Limitations. No Participant shall have any right to
prevent the consummation of any of the acts described in Section 4.2 or 14.1 affecting the number
of Shares available to, or other entitlement of, such Participant under the Plan or such
Participant’s Award. Any actions or determinations of the Committee under this Article XVI need
not be uniform as to all outstanding Awards, nor treat all Participants identically.
Notwithstanding the adjustments described in Section 14.1, in no event may any Option or SAR be
exercised after ten (10) years from the date it was originally granted, and any changes to ISOs
pursuant to this Article XIV shall, unless the Committee determines otherwise, only be effective to
the extent such adjustments or changes do not cause a “modification” (within the meaning of Section
424(h)(3) of the Code) of such ISOs or adversely affect the tax status of such ISOs.



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          14.3. Termination, Amendment, and Modifications of Change of Control Provisions.
Notwithstanding any other provision of the Plan (but subject to the limitations of Section
14.1(h), the last sentence of Section 15.1 and Section 15.2) or any Award Agreement provision, the
provisions of this Article XIV may not be terminated, amended, or modified on or after the date of
a Change of Control to materially impair any Participant’s Award theretofore granted and then
outstanding under the Plan without the prior written consent of such Participant.



          14.4. Compliance with Section 409A. Notwithstanding any other provisions of the Plan
or any Award Agreement to the contrary, if a Change of Control that is not a Qualified Change of
Control occurs, and payment or distribution of an Award constituting deferred compensation subject
to Section 409A of the Code would otherwise be made or commence on the date of such Change of
Control (pursuant to the Plan, the Award Agreement or otherwise), (a) the vesting of such Award
shall accelerate in accordance with the Plan and the Award Agreement, (b) such payment or
distribution shall not be made or commence prior to the earliest date on which Code Section
409A permits such payment or distribution to be made or commence without additional taxes or
penalties under Section 409A, and (c) in the event any such payment or distribution is deferred in
accordance with the immediately preceding clause (b), such payment or distribution that would have
been made prior to the deferred payment or commencement date, but for Code Section 409A, shall be
paid or distributed on such earliest payment or commencement date, together, if determined by the
Committee, with interest at the rate established by the Committee.



ARTICLE XV.

AMENDMENT, MODIFICATION, AND TERMINATION




          15.1. Amendment, Modification, and Termination. The Board may, at any time and with
or without prior notice, amend, alter, suspend, or terminate the Plan, and the Committee may, to
the extent permitted by the Plan, amend the terms of any Award theretofore granted, including any
Award Agreement, in each case, retroactively or prospectively; provided, however,
that no such amendment, alteration, suspension, or termination of the Plan shall be made which,
without first obtaining approval of the shareholders of the Company (where such approval is
necessary to satisfy (i) the then-applicable requirements of Rule 16b-3, (ii) any requirements
under the Code relating to ISOs, or (iii) any applicable law, regulation or rule (including the
applicable regulations and rules of the SEC and any national securities exchange)), would:




     (a) except as is provided in Section 4.2, increase the maximum number of Shares which
may be sold or awarded under the Plan;




     (b) except as is provided in Section 4.2, decrease the minimum Option Price or Grant
Price requirements of Sections 6.3 and 7.2, respectively;




     (c) change the class of persons eligible to receive Awards under the Plan;




     (d) extend the duration of the Plan or the period during which Options or SARs may be
exercised under Section 6.4 or 7.6, as applicable; or



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     (e) otherwise require shareholder approval to comply with any applicable law,
regulation or rule (including the applicable regulations and rules of the SEC and any
national securities exchange).


In addition, (A) no such amendment, alteration, suspension or termination of the Plan or any Award
theretofore granted, including any Award Agreement, shall be made which would materially impair the
previously accrued rights of a Participant under any outstanding Award without the written consent
of such Participant, provided, however, that the Board may amend or alter the Plan
and the Committee may amend or alter any Award, including any Agreement, either retroactively or
prospectively, without the consent of the applicable Participant, (x) so as to preserve or come
within any exemptions from liability under Section 16(b) of the Exchange Act, pursuant to the rules
and releases promulgated by the SEC (including Rule 16b-3), or (y) if the Board or the Committee
determines in its discretion that such amendment or alteration either (I) is required or advisable
for the Company, the Plan or the Award to satisfy, comply with or
meet the requirements of any law, regulation, rule or accounting standard or (II) is not reasonably
likely to significantly diminish the benefits provided under such Award, or that such diminishment
has been or will be adequately compensated, and (B) except as is provided in Section 4.2, but
notwithstanding any other provisions of the Plan, neither the Board nor the Committee may take any
action: (1) to amend the terms of an outstanding Option or SAR to reduce the Option Price or Grant
Price thereof, cancel an Option or SAR and replace it with a new Option or SAR with a lower Option
Price or Grant Price, or that has an economic effect that is the same as any such reduction or
cancellation; or (2) to cancel an outstanding Option or SAR having an Option Price or Grant Price
above the then-current Fair Market Value of the Shares in exchange for the grant of another type of
Award, without, in each such case, first obtaining approval of the shareholders of the Company of
such action.




          15.2. Adjustment of Awards Upon the Occurrence of Certain Unusual or Nonrecurring
Events. The Board or 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 the
events described in Section 4.2) 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 unintended dilution or
enlargement of the benefits or potential benefits intended to be made available under the
Plan. Any such adjustment with respect to an Award intended to be an ISO shall be made only
to the extent consistent with such intent, unless the Board or the Committee determines otherwise.
Additionally, neither the Board nor the Committee shall not make any adjustment pursuant to this
Article XV that would cause an Award that is otherwise exempt from Code Section 409A to become
subject to Code Section 409A, or that would cause an Award that is subject to Code Section 409A to
fail to satisfy the requirements of Code Section 409A. The determination of the Committee as to the
foregoing adjustments, if any, shall be conclusive and binding on Participants under the Plan.



ARTICLE XVI.

TAX WITHHOLDING AND OTHER TAX MATTERS




          16.1. Tax Withholding. The Company and/or any Subsidiary or Affiliate are authorized
to withhold from any Award granted or payment due under the Plan the amount of all



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Federal, state,
local and non-United States taxes due in respect of such Award or payment and take any such other
action as may be necessary or appropriate, as determined by the Committee, to satisfy all
obligations for the payment of such taxes. The recipient of any payment or distribution under the
Plan shall make arrangements satisfactory to the Company, as determined in the Committee’s
discretion, for the satisfaction of any tax obligations that arise by reason of any such payment or
distribution. The Company shall not be required to make any payment or distribution under or
relating to the Plan or any Award until such obligations are satisfied or such arrangements are
made, as determined by the Committee in its discretion.



          16.2. Withholding or Tendering Shares. Without limiting the generality of Section 16.1, the Committee may in its discretion permit
a Participant to satisfy or arrange to satisfy, in whole or in part, the tax obligations incident
to an Award by: (a) electing to have the Company withhold Shares or other property otherwise
deliverable to such Participant pursuant to his or her Award (provided, however,
that the amount of any Shares so withheld shall not exceed the amount necessary to satisfy required
Federal, state, local and non-United States withholding obligations using the minimum statutory
withholding rates for Federal, state, local and/or non-U.S. tax purposes, including payroll taxes,
that are applicable to supplemental taxable income) and/or (b) tendering to the Company Shares
owned by such Participant (or by such Participant and his or her spouse jointly) and purchased or
held for the requisite period of time as may be required to avoid the Company’s or the Affiliates’
or Subsidiaries’ incurring an adverse accounting charge, based, in each case, on the Fair Market
Value of the Shares on the payment date as determined by the Committee. All such elections shall
be irrevocable, made in writing, signed by the Participant, and shall be subject to any
restrictions or limitations that the Committee, in its sole discretion, deems appropriate.



          16.3. Restrictions. The satisfaction of tax obligations pursuant to this Article XVI
shall be subject to such restrictions as the Committee may impose, including any restrictions
required by applicable law or the rules and regulations of the SEC, and shall be construed
consistent with an intent to comply with any such applicable laws, rule and regulations.



          16.4. Special ISO Obligations. The Committee may require a Participant to give prompt
written notice to the Company concerning any disposition of Shares received upon the exercise of an
ISO within: (i) two (2) years from the date of granting such ISO to such Participant or (ii) one
(1) year from the transfer of such Shares to such Participant or (iii) such other period as the
Committee may from time to time determine. The Committee may direct that a Participant with
respect to an ISO undertake in the applicable Award Agreement to give such written notice described
in the preceding sentence, at such time and containing such information as the Committee may
prescribe, and/or that the certificates evidencing Shares acquired by exercise of an ISO refer to
such requirement to give such notice.



          16.5. Section 83(b) Election. If a Participant makes an election under Section 83(b)
of the Code to be taxed with respect to an Award as of the date of transfer of Shares rather than
as of the date or dates upon which the Participant would otherwise be taxable under Section 83(a)
of the Code, such Participant shall deliver a copy of such election to the Company immediately
after filing such election with the Internal Revenue Service. Neither the Company



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nor any
Subsidiary or Affiliate shall have any liability or responsibility relating to or arising out of
the filing or not filing of any such election or any defects in its construction.



          16.6. No Guarantee of Favorable Tax Treatment. Although the Company intends to administer the Plan so that Awards will be exempt from, or
will comply with, the requirements of Code Section 409A, the Company does not warrant that any
Award under the Plan will qualify for favorable tax treatment under Code Section 409A or any other
provision of federal, state, local, or non-United States law. The Company shall not be liable to
any Participant for any tax, interest, or penalties the Participant might owe as a result of the
grant, holding, vesting, exercise, or payment of any Award under the Plan.



          16.7. Compliance with Section 409A.



     (a) Notwithstanding any other provisions of the Plan or any Award Agreement to the contrary,
if a Termination that is not a Separation from Service occurs, and payment or distribution of an
Award constituting deferred compensation subject to Code Section 409A would otherwise be made or
commence on the date of such Termination (pursuant to the Plan, the Award Agreement or otherwise),
(i) the vesting of such Award shall accelerate in accordance with the Plan and the Award Agreement,
(ii) such payment or distribution shall not be made or commence prior to the earliest date on which
Code Section 409A permits such payment or distribution to be made or commence without additional
taxes or penalties under Code Section 409A, and (iii) in the event any such payment or distribution
is deferred in accordance with the immediately preceding clause (ii), such payment or distribution
that would have been made prior to the deferred payment or commencement date, but for Code Section
409A, shall be paid or distributed on such earliest payment or commencement date, together, if
determined by the Committee, with interest at the rate established by the Committee.



     (b) The Committee shall not extend the period to exercise an Option or Stock Appreciation
Right to the extent that such extension would cause the Option or Stock Appreciation Right to
become subject to Code Section 409A. Additionally, the Committee shall not take any action that
would cause an Award that is otherwise exempt from Code Section 409A to become subject to Code
Section 409A, or that would cause an Award that is subject to Code Section 409A to fail to satisfy
the requirements of Code Section 409A.



ARTICLE XVII.

LIMITS OF LIABILITY; INDEMNIFICATION




          17.1. Limits of Liability.




     (a) Any liability of the Company or a Subsidiary or Affiliate to any Participant with
respect to any Award shall be based solely upon contractual obligations created by the Plan
and the Award Agreement.




     (b) None of the Company, any Subsidiary, any Affiliate, any member of the Board or the
Committee or any other person participating in any determination of any question under the
Plan, or in the interpretation, administration or application of the Plan,
shall have any liability, in the absence of bad faith, to any party for any action
taken or not taken in connection with the Plan, except as may expressly be provided by
statute.



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     (c) Each member of the Committee, while serving as such, shall be considered to be
acting in his or her capacity as a director of the Company. Members of the Board of
Directors and members of the Committee acting under the Plan shall be fully protected in
relying in good faith upon the advice of counsel and shall incur no liability except for
gross negligence or willful misconduct in the performance of their duties.




     (d) The Company shall not be liable to a Participant or any other person as to: (i)
the non-issuance of Shares as to which the Company has been unable to obtain from any
regulatory body having relevant jurisdiction the authority deemed by the Committee or the
Company’s counsel to be necessary to the lawful issuance and sale of any Shares hereunder,
and (ii) any tax consequence expected, but not realized, by any Participant or other person
due to the receipt, exercise or settlement of any Option or other Award.



          17.2. Indemnification. Subject to the requirements of Delaware law, each individual
who is or shall have been a member of the Committee or of the Board, or an officer of the Company
to whom authority was delegated in accordance with Article III, shall be indemnified and held
harmless by the Company against and from any loss, cost, liability, or expense that may be imposed
upon or reasonably incurred by him or her in connection with or resulting from any claim, action,
suit, or proceeding to which he or she may be a party or in which he or she may be involved by
reason of any action taken or failure to act under the Plan and against and from any and all
amounts paid by him or her in settlement thereof, with the Company’s approval, or paid by him or
her in satisfaction of any judgment in any such action, suit, or proceeding against him or her,
provided he or she shall give the Company an opportunity, at its own expense, to handle and
defend the same before he or she undertakes to handle and defend it on his or her own behalf,
unless such loss, cost, liability, or expense is a result of the individual’s own willful
misconduct or except as provided by statute. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such individual may be entitled under the
Company’s Certificate of Incorporation or By-Laws, as a matter of law, or otherwise, or any power
that the Company may have to indemnify or hold harmless such individual.



ARTICLE XVIII.

SUCCESSORS




          18.1. General. 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 and/or assets of the Company.



ARTICLE XIX.

MISCELLANEOUS




          19.1. Drafting Context. 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. The words “Article,” “Section,” and “paragraph” herein
shall refer to provisions of the Plan, unless expressly indicated otherwise. The words “include,”



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“includes,” and “including” herein shall be deemed to be followed by “without limitation” whether
or not they are in fact followed by such words or words of similar import, unless the context
otherwise requires.



          19.2. Forfeiture Events.




     (a) Notwithstanding any provision of the Plan to the contrary, the Committee shall have
the authority to determine (and may so provide in any Agreement) that a Participant’s
(including his or her estate’s, beneficiary’s or transferee’s) rights (including the right
to exercise any Option or SAR), payments and benefits with respect to any Award shall be
subject to reduction, cancellation, forfeiture or recoupment in the event of the
Participant’s Termination for Cause or due to voluntary resignation; serious misconduct;
violation of the Company’s or a Subsidiary’s or Affiliate’s policies; breach of fiduciary
duty; unauthorized disclosure of any trade secret or confidential information of the Company
or a Subsidiary or Affiliate; breach of applicable noncompetition, nonsolicitation,
confidentiality or other restrictive covenants; or other conduct or activity that is in
competition with the business of the Company or any Subsidiary or Affiliate, or otherwise
detrimental to the business, reputation or interests of the Company and/or any Subsidiary or
Affiliate; or upon the occurrence of certain events specified in the applicable Award
Agreement (in any such case, whether or not the Participant is then an Employee,
Non-Employee Director or Consultant). The determination of whether a Participant’s conduct,
activities or circumstances are described in the immediately preceding sentence shall be
made by the Committee in its good faith discretion, and pending any such determination, the
Committee shall have the authority to suspend the exercise, payment, delivery or settlement
of all or any portion of such Participant’s outstanding Awards pending an investigation of
the matter.




     (b) If the Company is required to prepare an accounting restatement (x) due to the
material noncompliance of the Company, as a result of misconduct, with any financial
reporting requirement under the securities laws, if a Participant knowingly or grossly
negligently engaged in such misconduct, or knowingly or grossly negligently failed to
prevent such misconduct, or if a Participant is one of the individuals subject to automatic
forfeiture under Section 304 of the Sarbanes-Oxley Act of 2002, the Participant shall
reimburse the Company the amount of any payment in settlement of an Award earned or accrued
during the twelve- (12-) month period following the first public issuance or filing with the
SEC (whichever just occurred) of the financial document embodying such
financial reporting requirement, and (y) the Committee may in its discretion provide
that if the amount earned under any Participant’s Award is reduced by such restatement, such
Participant shall reimburse the Company the amount of any such reduction previously paid in
settlement of such Award.



          19.3. 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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          19.4. Transfer, Leave of Absence. For purposes of the Plan, a transfer of an Employee
from the Company to an Affiliate or Subsidiary (or, for purposes of any ISO granted under the Plan,
only a Subsidiary), or vice versa, or from one Affiliate or Subsidiary to another (or in the case
of an ISO, only from one Subsidiary to another), and a leave of absence, duly authorized in writing
by the Company or a Subsidiary or Affiliate, shall not be deemed a Termination of the Employee for
purposes of the Plan or with respect to any Award (in the case of ISOs, to the extent permitted by
the Code). The Committee shall have the discretion to determine the effects upon any Award, upon
an individual’s status as an Employee, Non-Employee Director or Consultant for purposes of the Plan
(including whether a Participant shall be deemed to have experienced a Termination or other change
in status) and upon the exercisability, vesting, termination or expiration of any Award in the case
of: (a) any Participant who is employed by an entity that ceases to be an Affiliate or Subsidiary
(whether due to a spin-off or otherwise), (b) any transfer of a Participant between locations of
employment with the Company, an Affiliate, and/or Subsidiary or between the Company, an Affiliate
or Subsidiary or between Affiliates or Subsidiaries, (c) any leave of absence of a Participant, (d)
any change in a Participant’s status from an Employee to a Consultant or a Non-Employee Director,
or vice versa; and (e) upon approval by the Committee, any Employee who experiences a Termination
but becomes employed by a partnership, joint venture, corporation or other entity not meeting the
requirements of an Affiliate or Subsidiary, subject, in each case, to the requirements of Code
Section 422 applicable to any ISOs and Code Section 409A applicable to any Options and SARs.



          19.5. Exercise and Payment of Awards. An Award shall be deemed exercised or claimed
when the Secretary of the Company or any other Company official or other person designated by the
Committee for such purpose receives appropriate written notice from a Participant, in form
acceptable to the Committee, together with payment of the applicable Option Price, Grant Price or
other purchase price, if any, and compliance with Article XVI, in accordance with the Plan and such
Participant’s Award Agreement.



          19.6. Deferrals. To the extent provided in the Award Agreement, 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 lapse or waiver
of the
Period of Restriction or other restrictions with respect to Restricted Stock or the payment
or satisfaction of Restricted Stock Units, Performance Units, Performance Shares, Cash-Based Awards
or Other Stock-Based Awards. If any such deferral election is required or permitted, (a) such
deferral shall represent an unfunded and unsecured obligation of the Company and shall not confer
the rights of a shareholder unless and until Shares are issued thereunder; (b) the number of Shares
subject to such deferral shall, until settlement thereof, be subject to adjustment pursuant to
Section 4.2; and (c) the Committee shall establish rules and procedures for such deferrals and
payment or settlement thereof, which may be in cash, Shares or any combination thereof, and such
deferrals may be governed by the terms and conditions of any deferred compensation plan of the
Company or Affiliate specified by the Committee for such purpose. Notwithstanding any provisions
of the Plan to the contrary, in no event shall any deferral under this Section 19.6 be permitted if
the Committee determines that such deferral would result in the imposition of additional tax under
Code Section 409A of the Code.



          19.7. Loans. The Company may, in the discretion of the Committee, extend one or more
loans to Participants in connection with the exercise or receipt of an Award granted to



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any such
Participant; provided, however, that the Company shall not extend loans to any
Participant if prohibited by law or the rules of any stock exchange or quotation system on which
the Company’s securities are listed. The terms and conditions of any such loan shall be
established by the Committee.



          19.8. No Effect on Other Plans. Neither the adoption of the Plan nor anything
contained herein shall affect any other compensation or incentive plans or arrangements of the
Company or any Subsidiary or Affiliate, or prevent or limit the right of the Company or any
Subsidiary or Affiliate to establish any other forms of incentives or compensation for their
directors, officers, eligible employees or consultants or grant or assume options or other rights
otherwise than under the Plan.



          19.9. Section 16 of Exchange Act. Unless otherwise stated in the Award Agreement,
notwithstanding any other provision of the Plan, any Award granted to an Insider shall be subject
to any additional limitations set forth in any applicable exemptive rule under Section 16 of the
Exchange Act (including Rule 16b-3) that are requirements for the application of such exemptive
rule, and the Plan and the Award Agreement shall be deemed amended to the extent necessary to
conform to such limitations.



          19.10. Requirements of Law; Limitations on Awards.




     (a) 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.




     (b) If at any time the Committee shall determine, in its discretion, that the listing,
registration and/or qualification of Shares upon any securities exchange or under any state,
Federal or non-United States law, or the consent or approval of any governmental regulatory
body, is necessary or desirable as a condition of, or in connection with, the sale or
purchase of Shares hereunder, the Company shall have no obligation to allow the grant,
exercise or payment of any Award, or to issue or deliver evidence of title for Shares issued
under the Plan, in whole or in part, unless and until such listing, registration,
qualification, consent and/or approval shall have been effected or obtained, or otherwise
provided for, free of any conditions not acceptable to the Committee.




     (c) If at any time counsel to the Company shall be of the opinion that any sale or
delivery of Shares pursuant to an Award is or may be in the circumstances unlawful or result
in the imposition of excise taxes on the Company or any Subsidiary or Affiliate under the
statutes, rules or regulations of any applicable jurisdiction, the Company shall have no
obligation to make such sale or delivery, or to make any application or to effect or to
maintain any qualification or registration under the Securities Act, or otherwise with
respect to Shares or Awards and the right to exercise or payment of any Option or Award
shall be suspended until, in the opinion of such counsel, such sale or delivery shall be
lawful or will not result in the imposition of excise taxes on the Company or any Subsidiary
or Affiliate.



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     (d) Upon termination of any period of suspension under this Section 19.10, any Award
affected by such suspension which shall not then have expired or terminated shall be
reinstated as to all Shares available before such suspension and as to the Shares which
would otherwise have become available during the period of such suspension, but no
suspension shall extend the term of any Award.




     (e) The Committee may require each person receiving Shares in connection with any Award
under the Plan to represent and agree with the Company in writing that such person is
acquiring such Shares for investment without a view to the distribution thereof, and/or
provide such other representations and agreements as the Committee may prescribe. The
Committee, in its absolute discretion, may impose such restrictions on the ownership and
transferability of the Shares purchasable or otherwise receivable by any person under any
Award as it deems appropriate. Any such restrictions shall be set forth in the applicable
Award Agreement, and the certificates evidencing such shares may include any legend that the
Committee deems appropriate to reflect any such restrictions.




     (f) An Award and any Shares received upon the exercise or payment of an Award shall be
subject to such other transfer and/or ownership restrictions and/or legending requirements
as the Committee may establish in its discretion and may be referred to on the certificates
evidencing such Shares, including 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.



          19.11. Participants Deemed to Accept Plan. By accepting any benefit under the Plan, each Participant and each person claiming under or
through any such Participant shall be conclusively deemed to have indicated their acceptance and
ratification of, and consent to, all of the terms and conditions of the Plan and any action taken
under the Plan by the Board, the Committee or the Company, in any case in accordance with the terms
and conditions of the Plan.



          19.12. Governing Law. Except as to matters concerning the issuance of Shares or other
matters of corporate governance, which shall be determined, and related Plan and Award provisions
which shall be construed, under the laws of Delaware, the Plan and each Award Agreement shall be
governed by the laws of the State of New York, excluding any conflicts or choice of law rule or
principle that might otherwise refer construction or interpretation of the Plan to the substantive
law of another jurisdiction. Unless otherwise provided in the Award Agreement, Participants are
deemed to submit to the exclusive jurisdiction and venue of the federal or state courts of the
State of New York, to resolve any and all issues that may arise out of or relate to the Plan or any
related Award Agreement.



          19.13. Plan Unfunded. The Plan shall be unfunded. The Company shall not be required
to establish any special or separate fund or to make any other segregation of assets to assure the
issuance of Shares or the payment of cash upon exercise or payment of any Award. Proceeds from the
sale of Shares pursuant to Options or other Awards granted under the Plan shall constitute general
funds of the Company.



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          19.14. Administration Costs. The Company shall bear all costs and expenses incurred
in administering the Plan, including expenses of issuing Shares pursuant to any Options or other
Awards granted hereunder.



          19.15. Uncertificated Shares. To the extent that the Plan provides for issuance of
certificates to reflect the transfer of Shares, the transfer of such Shares may nevertheless be
effected on a noncertificated basis, to the extent not prohibited by applicable law or the rules of
any stock exchange.



          19.16. No Fractional Shares. An Option or other Award shall not be exercisable with
respect to a fractional Share or the lesser of fifty (50) shares or the full number of Shares then
subject to the Option or other Award. No fractional Shares shall be issued upon the exercise or
payment of an Option or other Award.



          19.17. Deferred Compensation. If any Award would be considered deferred compensation as defined under Code Section 409A
and would fail to meet the requirements of Code Section 409A, then such Award shall be null and
void; provided, however, that the Committee may permit deferrals of compensation
pursuant to the terms of a Participant’s Award Agreement, a separate plan, or a subplan which (in
each case) meets the requirements of Code Section 409A. Additionally, to the extent any Award is
subject to Code Section 409A, notwithstanding any provision herein to the contrary, the Plan does
not permit the acceleration of the time or schedule of any distribution related to such Award,
except as permitted by Code Section 409A.



          19.18. Participants Based Outside of the United States. Notwithstanding any provision
of the Plan to the contrary, in order to comply with the laws or practices of countries other than
the United States in which the Company, any Affiliate, and/or any Subsidiary operates or has
Employees, Non-Employee Directors or Consultants, the Committee, in its sole discretion, shall have
the power and authority to:




	 	(a)	 	Determine which Affiliates and Subsidiaries shall be covered by the Plan;






	 	(b)	 	Determine which Employees, Non-Employee Directors and/or Consultants outside the
United States are eligible to participate in the Plan;






	 	(c)	 	Grant Awards (including substitutes for Awards), and modify the terms and conditions
of any Awards, on such terms and conditions as the Committee determines necessary or
appropriate to permit participation in the Plan by individuals otherwise eligible to so
participate who are non-United States nationals or employed outside the United States, or
otherwise to comply with applicable non-United States laws or conform to applicable
requirements or practices of jurisdictions outside the United States;






	 	(d)	 	Establish subplans and adopt or modify exercise procedures and other terms and
procedures, to the extent such actions may be necessary or advisable. Any subplans and
modifications to Plan terms and procedures established under this Section 19.18 by the
Committee shall be attached to the Plan as appendices; and




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	 	(e)	 	Take any action, before or after an Award is made, that the Committee, in its
discretion, deems advisable to obtain approval or comply with any necessary local
government regulatory exemptions or approvals.




Notwithstanding the above, the Committee may not take any actions hereunder, and no Awards shall
be granted, that would violate any applicable law.




*           *           *





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