exv10w37









    
    ADVANCED ENERGY INDUSTRIES, INC.

    2008 OMNIBUS INCENTIVE PLAN

    Adopted February 15, 2008



 




    As
    Amended May 4, 2010



 




    SUBJECT
    TO STOCKHOLDER APPROVAL



 



    Advanced Energy Industries, Inc., a Delaware corporation (the
    “Company”), sets forth herein the terms of its 2008
    Omnibus Incentive Plan (the “Plan”), as follows:



 


		
	
    1.  
	
    PURPOSE




 



    The Plan is intended to enhance the Company’s and its
    Affiliates’ (as defined herein) ability to attract and
    retain highly qualified officers, directors, key employees, and
    other persons, and to motivate such persons to serve the Company
    and its Affiliates and to expend maximum effort to improve the
    business results and earnings of the Company, by providing to
    such persons an opportunity to acquire or increase a direct
    proprietary interest in the operations and future success of the
    Company. To this end, the Plan provides for the grant of stock
    options, stock appreciation rights, restricted stock, stock
    units (including deferred stock units), unrestricted stock, and
    dividend equivalent rights. Any of these awards may, but need
    not, be made as performance incentives to reward attainment of
    annual or long-term performance goals in accordance with the
    terms hereof. Stock options granted under the Plan may be
    non-qualified stock options or incentive stock options, as
    provided herein, except that stock options granted to outside
    directors and any consultants or advisers providing services to
    the Company or an Affiliate shall in all cases be non-qualified
    stock options.



 


		
	
    2.  
	
    DEFINITIONS




 



    For purposes of interpreting the Plan and related documents
    (including Award Agreements), the following definitions shall
    apply:



 



    2.1 “Affiliate” means, with respect
    to the Company, any company or other trade or business that
    controls, is controlled by or is under common control with the
    Company within the meaning of Rule 405 of Regulation C
    under the Securities Act, including, without limitation, any
    Subsidiary. For purposes of granting stock options or stock
    appreciation rights, an entity may not be considered an
    Affiliate unless the Company holds a “controlling
    interest” in such entity, where the term “controlling
    interest” has the same meaning as provided in Treasury
    Regulation 1.414(c)-2(b)(2)(i),
    provided that the language “at least 50 percent”
    is used instead of “at least 80 percent” and,
    provided further, that where granting of stock options or stock
    appreciation rights is based upon a legitimate business
    criteria, the language “at least 20 percent” is
    used instead of “at least 80 percent” each place
    it appears in Treasury
    Regulation 1.414(c)-2(b)(2)(i).



 



    2.2 “Annual Incentive Award” means
    an Award made subject to attainment of performance goals (as
    described in Section 14) generally over a one-year
    performance period (the Company’s fiscal year, unless
    otherwise specified by the Committee).



 



    2.3 “Award” means a grant of an
    Option, Stock Appreciation Right, Restricted Stock, Unrestricted
    Stock, Stock Unit, Dividend Equivalent Right, Performance Share,
    or Performance Unit under the Plan.



 



    2.4 “Award Agreement” means the
    agreement between the Company and a Grantee that evidences and
    sets out the terms and conditions of an Award.



 



    2.5 “Benefit Arrangement” shall
    have the meaning set forth in Section 15 hereof.



 



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



 



    2.7 “Cause” means, as determined by
    the Board and unless otherwise provided in an applicable
    agreement with the Company or an Affiliate, (i) gross
    negligence or willful misconduct in connection with the
    performance of duties; (ii) conviction of a criminal
    offense (other than minor traffic offenses); or
    (iii) material breach of any term of






    

    1








 







    any employment, consulting or other services, confidentiality,
    intellectual property or non-competition agreements, if any,
    between the Service Provider and the Company or an Affiliate.



 



    2.8 “Code” means the Internal
    Revenue Code of 1986, as now in effect or as hereafter amended.



 



    2.9 “Committee” means a committee
    of, and designated from time to time by resolution of, the
    Board, which shall be constituted as provided in
    Section 3.2.



 



    2.10 “Company” means Advanced
    Energy Industries, Inc.



 



    2.11 “Corporate Transaction” means
    (i) the dissolution or liquidation of the Company or a
    merger, consolidation, or reorganization of the Company with one
    or more other entities in which the Company is not the surviving
    entity, (ii) a sale of substantially all of the assets of
    the Company to another person or entity, or (iii) any
    transaction (including without limitation a merger or
    reorganization in which the Company is the surviving entity)
    which results in any person or entity (other than persons who
    are stockholders or affiliates immediately prior to the
    transaction) owning 50% or more of the combined voting power of
    all classes of stock of the Company.



 



    2.12 “Covered Employee” means a
    Grantee who is a covered employee within the meaning of
    Section 162(m)(3) of the Code.



 



    2.13 “Disability” means the Grantee
    is unable to perform each of the essential duties of such
    Grantee’s position by reason of a medically determinable
    physical or mental impairment which is potentially permanent in
    character or which can be expected to last for a continuous
    period of not less than 12 months; provided, however, that,
    with respect to rules regarding expiration of an Incentive Stock
    Option following termination of the Grantee’s Service,
    Disability shall mean the Grantee is unable to engage in any
    substantial gainful activity by reason of a medically
    determinable physical or mental impairment which can be expected
    to result in death or which has lasted or can be expected to
    last for a continuous period of not less than 12 months.



 



    2.14 “Dividend Equivalent Right”
    means a right, granted to a Grantee under
    Section 13 hereof, to receive cash, Stock, other
    Awards or other property equal in value to dividends paid with
    respect to a specified number of shares of Stock, or other
    periodic payments.



 



    2.15 “Effective Date” means
    May 7, 2008, the date the Plan was approved by the
    stockholders.



 



    2.16 “Exchange Act” means the
    Securities Exchange Act of 1934, as now in effect or as
    hereafter amended.



 



    2.17 “Fair Market Value” means the
    value of a share of Stock, determined as follows: if on the
    Grant Date or other determination date the Stock is listed on an
    established national or regional stock exchange, or is publicly
    traded on an established securities market, the Fair Market
    Value of a share of Stock shall be the closing price of the
    Stock on such exchange or in such market (if there is more than
    one such exchange or market the Board shall determine the
    appropriate exchange or market) on the Grant Date or such other
    determination date (or if there is no such reported closing
    price, the Fair Market Value shall be the mean between the
    highest bid and lowest asked prices or between the high and low
    sale prices on such trading day) or, if no sale of Stock is
    reported for such trading day, on the next preceding day on
    which any sale shall have been reported. If the Stock is not
    listed on such an exchange or traded on such a market, Fair
    Market Value shall be the value of the Stock as determined by
    the Board by the reasonable application of a reasonable
    valuation method, in a manner consistent with Code
    Section 409A.



 



    2.18 “Family Member” means a person
    who is a spouse, former spouse, child, stepchild, grandchild,
    parent, stepparent, grandparent, niece, nephew,
    mother-in-law,
    father-in-law,
    son-in-law,
    daughter-in-law,
    brother, sister,
    brother-in-law,
    or
    sister-in-law,
    including adoptive relationships, of the Grantee, any person
    sharing the Grantee’s household (other than a tenant or
    employee), a trust in which any one or more of these persons
    have more than fifty percent of the beneficial interest, a
    foundation in which any one or more of these persons (or the
    Grantee) control the management of assets, and any other entity
    in which one or more of these persons (or the Grantee) own more
    than fifty percent of the voting interests.



 



    2.19 “Grant Date” means, as
    determined by the Board, the latest to occur of (i) the
    date as of which the Board approves an Award, (ii) the date
    on which the recipient of an Award first becomes eligible to
    receive an Award under Section 6 hereof, or (iii) such
    other date as may be specified by the Board.





    

    2








 







    2.20 “Grantee” means a person who
    receives or holds an Award under the Plan.



 



    2.21 “Incentive Stock Option” means
    an “incentive stock option” within the meaning of
    Section 422 of the Code, or the corresponding provision of
    any subsequently enacted tax statute, as amended from time to
    time.



 



    2.22 “Non-qualified Stock Option”
    means an Option that is not an Incentive Stock Option.



 



    2.23 “Option” means an option to
    purchase one or more shares of Stock pursuant to the Plan.



 



    2.24 “Option Price” means the
    exercise price for each share of Stock subject to an Option.



 



    2.25 “Other Agreement” shall have
    the meaning set forth in Section 15 hereof.



 



    2.26 “Outside Director” means a
    member of the Board who is not an officer or employee of the
    Company.



 



    2.27 “Performance Award” means an
    Award made subject to the attainment of performance goals (as
    described in Section 14) over a performance period
    of up to ten (10) years.



 



    2.28 “Performance-Based Compensation”
    means compensation under an Award that is intended to
    satisfy the requirements of Code Section 162(m) for certain
    performance-based compensation paid to Covered Employees.
    Notwithstanding the foregoing, nothing in this Plan shall be
    construed to mean that an Award which does not satisfy the
    requirements for performance-based compensation under Code
    Section 162(m) does not constitute performance-based
    compensation for other purposes, including Code
    Section 409A.



 



    2.29 “Performance Measures” means
    measures as described in Section 14 on which the
    performance goals are based and which are approved by the
    Company’s shareholders pursuant to this Plan in order to
    qualify Awards as Performance-Based Compensation.



 



    2.30 “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 an Award.



 



    2.31 “Performance Share” means an
    Award under Section 14 herein and subject to the
    terms of this Plan, denominated in Shares, the value of which at
    the time it is payable is determined as a function of the extent
    to which corresponding performance criteria have been achieved.



 



    2.32 “Performance Unit” means an
    Award under Section 14 herein and subject to the
    terms of this Plan, denominated in units, the value of which at
    the time it is payable is determined as a function of the extent
    to which corresponding performance criteria have been achieved.



 



    2.33 “Plan” means this Advanced
    Energy Industries, Inc. 2008 Omnibus Incentive Plan.



 



    2.34 “Prior Plans” means the
    Advanced Energy Industries, Inc. 2003 Stock Option Plan and the
    Advanced Energy Industries, Inc. Amended and Restated 2003
    Non-Employee Directors’ Stock Option Plan, amended and
    restated February 15, 2006.



 



    2.35 “Purchase Price” means the
    purchase price for each share of Stock pursuant to a grant of
    Restricted Stock or Unrestricted Stock.



 



    2.36 “Reporting Person” means a
    person who is required to file reports under Section 16(a)
    of the Exchange Act.



 



    2.37 “Restricted Stock” means
    shares of Stock, awarded to a Grantee pursuant to
    Section 10 hereof.



 



    2.38 “SAR Exercise Price” means the
    per share exercise price of a SAR granted to a Grantee under
    Section 9 hereof.



 



    2.39 “Securities Act” means the
    Securities Act of 1933, as now in effect or as hereafter amended.



 



    2.40 “Service” means service as a
    Service Provider to the Company or an Affiliate. Unless
    otherwise stated in the applicable Award Agreement, a
    Grantee’s change in position or duties shall not result in
    interrupted or terminated Service, so long as such Grantee
    continues to be a Service Provider to the Company or an
    Affiliate. Subject to the preceding sentence, whether a
    termination of Service shall have occurred for purposes of the
    Plan shall be determined by the Board, which determination shall
    be final, binding and conclusive.





    

    3








 







    2.41 “Service Provider” means an
    employee, officer or director of the Company or an Affiliate, or
    a consultant or adviser (who is a natural person) currently
    providing services to the Company or an Affiliate.



 



    2.42 “Stock” means the common
    stock, par value $0.001 per share, of the Company.



 



    2.43 “Stock Appreciation Right” or
    “SAR” means a right granted to a Grantee under
    Section 9 hereof.



 



    2.44 “Stock Unit” means a
    bookkeeping entry representing the equivalent of one share of
    Stock awarded to a Grantee pursuant to Section 10
    hereof.



 



    2.45 “Subsidiary” means any
    “subsidiary corporation” of the Company within the
    meaning of Section 424(f) of the Code.



 



    2.46 “Substitute Awards” means
    Awards granted upon assumption of, or in substitution for,
    outstanding awards previously granted by a company or other
    entity acquired by the Company or any Affiliate or with which
    the Company or any Affiliate combines.



 



    2.47 “Ten Percent Stockholder”
    means an individual who owns more than ten percent (10%) of
    the total combined voting power of all classes of outstanding
    stock of the Company, its parent or any of its Subsidiaries. In
    determining stock ownership, the attribution rules of
    Section 424(d) of the Code shall be applied.



 



    2.48 “Unrestricted Stock” means an
    Award pursuant to Section 11 hereof.



 


		
	
    3.  
	
    ADMINISTRATION
    OF THE PLAN




 




    3.1
    Board



 



    The Board shall have such powers and authorities related to the
    administration of the Plan as are consistent with the
    Company’s certificate of incorporation and by-laws and
    applicable law. The Board shall have full power and authority to
    take all actions and to make all determinations required or
    provided for under the Plan, any Award or any Award Agreement,
    and shall have full power and authority to take all such other
    actions and make all such other determinations not inconsistent
    with the specific terms and provisions of the Plan that the
    Board deems to be necessary or appropriate to the administration
    of the Plan, any Award or any Award Agreement. All such actions
    and determinations shall be by the affirmative vote of a
    majority of the members of the Board present at a meeting or by
    unanimous consent of the Board executed in writing in accordance
    with the Company’s certificate of incorporation and by-laws
    and applicable law. The interpretation and construction by the
    Board of any provision of the Plan, any Award or any Award
    Agreement shall be final, binding and conclusive.



 




    3.2
    Committee.



 



    The Board from time to time may delegate to the Committee such
    powers and authorities related to the administration and
    implementation of the Plan, as set forth in Section 3.1
    above and other applicable provisions, as the Board shall
    determine, consistent with the certificate of incorporation and
    by-laws of the Company and applicable law.



 



    (i) Except as provided in Subsection (ii) and except
    as the Board may otherwise determine, the Committee, if any,
    appointed by the Board to administer the Plan shall consist of
    two or more Outside Directors of the Company who:
    (a) qualify as “outside directors” within the
    meaning of Section 162(m) of the Code and who (b) meet
    such other requirements as may be established from time to time
    by the Securities and Exchange Commission for plans intended to
    qualify for exemption under
    Rule 16b-3
    (or its successor) under the Exchange Act and who
    (c) comply with the independence requirements of the stock
    exchange on which the Common Stock is listed.



 



    (ii) The Board may also appoint one or more separate
    committees of the Board, each composed of one or more directors
    of the Company who need not be Outside Directors, who may
    administer the Plan with respect to employees or other Service
    Providers who are not officers or directors of the Company, may
    grant Awards under the Plan to such employees or other Service
    Providers, and may determine all terms of such Awards.



 



    In the event that the Plan, any Award or any Award Agreement
    entered into hereunder provides for any action to be taken by or
    determination to be made by the Board, such action may be taken
    or such determination may be






    

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    made by the Committee if the power and authority to do so has
    been delegated to the Committee by the Board as provided for in
    this Section. Unless otherwise expressly determined by the
    Board, any such action or determination by the Committee shall
    be final, binding and conclusive. To the extent permitted by
    law, the Committee may delegate its authority under the Plan to
    a member of the Board.



 




    3.3
    Terms of Awards.



 



    Subject to the other terms and conditions of the Plan, the Board
    shall have full and final authority to:



 



    (i) designate Grantees,



 



    (ii) determine the type or types of Awards to be made to a
    Grantee,



 



    (iii) determine the number of shares of Stock to be subject
    to an Award,



 



    (iv) establish the terms and conditions of each Award
    (including, but not limited to, the exercise price of any
    Option, the nature and duration of any restriction or condition
    (or provision for lapse thereof) relating to the vesting,
    exercise, transfer, or forfeiture of an Award or the shares of
    Stock subject thereto, the treatment of an Award in the event of
    a change of control, and any terms or conditions that may be
    necessary to qualify Options as Incentive Stock Options),



 



    (v) prescribe the form of each Award Agreement evidencing
    an Award, and



 



    (vi) amend, modify, or supplement the terms of any
    outstanding Award. Such authority specifically includes the
    authority, in order to effectuate the purposes of the Plan but
    without amending the Plan, to make or modify Awards to eligible
    individuals who are foreign nationals or are individuals who are
    employed outside the United States to recognize differences in
    local law, tax policy, or custom. Notwithstanding the foregoing,
    no amendment, modification or supplement of any Award shall,
    without the consent of the Grantee, impair the Grantee’s
    rights under such Award.



 



    The Company may retain the right in an Award Agreement to cause
    a forfeiture of the gain realized by a Grantee on account of
    actions taken by the Grantee in violation or breach of or in
    conflict with any employment agreement, non-competition
    agreement, any agreement prohibiting solicitation of employees
    or clients of the Company or any Affiliate thereof or any
    confidentiality obligation with respect to the Company or any
    Affiliate thereof or otherwise in competition with the Company
    or any Affiliate thereof, to the extent specified in such Award
    Agreement applicable to the Grantee. In addition, the Company
    may annul an Award if the Grantee is an employee of the Company
    or an Affiliate thereof and is terminated for Cause as defined
    in the applicable Award Agreement or the Plan, as applicable.



 



    Furthermore, if the Company is required to prepare an accounting
    restatement due to the material noncompliance of the Company, as
    a result of misconduct, with any financial reporting requirement
    under the securities laws, the individuals subject to automatic
    forfeiture under Section 304 of the Sarbanes-Oxley Act of
    2002 and any Grantee who knowingly engaged in the misconduct,
    was grossly negligent in engaging in the misconduct, knowingly
    failed to prevent the misconduct or was grossly negligent in
    failing to prevent the misconduct, 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 United States Securities and
    Exchange Commission (whichever first occurred) of the financial
    document that contained such material noncompliance.



 




    3.4
    No Repricing.



 



    Notwithstanding anything in this Plan to the contrary, no
    amendment or modification may be made to an outstanding Option
    or SAR, including, without limitation, by replacement of Options
    or SARs with cash or other award type, that would be treated as
    a repricing under the rules of the stock exchange on which the
    Stock is listed, in each case, without the approval of the
    stockholders of the Company, provided, that, appropriate
    adjustments may be made to outstanding Options and SARs pursuant
    to Section 17 or Section 5.3 and may be
    made to make changes to achieve compliance with applicable law,
    including Code Section 409A.





    

    5








 








    3.5
    Deferral Arrangement.



 



    The Board may permit or require the deferral of any award
    payment into a deferred compensation arrangement, subject to
    such rules and procedures as it may establish, which may include
    provisions for the payment or crediting of interest or dividend
    equivalents, including converting such credits into deferred
    Stock equivalents. Any such deferrals shall be made in a manner
    that complies with Code Section 409A.



 




    3.6
    No Liability.



 



    No member of the Board or the Committee shall be liable for any
    action or determination made in good faith with respect to the
    Plan or any Award or Award Agreement.



 




    3.7
    Share Issuance/Book-Entry



 



    Notwithstanding any provision of this Plan to the contrary, the
    issuance of the Stock under the Plan may be evidenced in such a
    manner as the Board, in its discretion, deems appropriate,
    including, without limitation, book-entry registration or
    issuance of one or more Stock certificates.



 


		
	
    4.  
	
    STOCK
    SUBJECT TO THE PLAN




 




    4.1
    Number of Shares Available for Awards



 



    Subject to adjustment as provided in Section 17
    hereof, the number of shares of Stock available for issuance
    under the Plan shall be the number of shares available for
    issuance under the Prior Plans. In no event shall the number of
    shares of Stock available for issuance under the Plan exceed
    seven million five hundred thousand (7,500,000), subject to
    adjustment as provided for in Section 17. Stock
    issued or to be issued under the Plan shall be authorized but
    unissued shares; or, to the extent permitted by applicable law,
    issued shares that have been reacquired by the Company.



 




    4.2
    Adjustments in Authorized Shares



 



    The Board shall have the right to substitute or assume Awards in
    connection with mergers, reorganizations, separations, or other
    transactions to which Section 424(a) of the Code applies.
    The number of shares of Stock reserved pursuant to
    Section 4 shall be increased by the corresponding
    number of Awards assumed and, in the case of a substitution, by
    the net increase in the number of shares of Stock subject to
    Awards before and after the substitution.



 




    4.3
    Share Usage



 



    Shares covered by an Award shall be counted as used as of the
    Grant Date. If any shares covered by an Award granted under the
    Plan or a Prior Plan are not purchased or are forfeited or
    expire, or if an Award otherwise terminates without delivery of
    any Stock subject thereto or is settled in cash in lieu of
    shares, then the number of shares of Stock counted against the
    aggregate number of shares available under the Plan with respect
    to such Award shall, to the extent of any such forfeiture,
    termination or expiration, again be available for making Awards
    under the Plan in the same amount as such shares were counted
    against the limit set forth in Section 4.1, provided
    that any shares covered by an Award granted under a Prior Plan
    will again be available for making Awards under the Plan in the
    same amount as such shares were counted against the limits set
    forth in the applicable Prior Plan. The number of shares of
    Stock available for issuance under the Plan shall not be
    increased by (i) any shares of Stock tendered or withheld
    or Award surrendered in connection with the purchase of shares
    of Stock upon exercise of an Option as described in
    Section 12.2, or (ii) any shares of Stock
    deducted or delivered from an Award payment in connection with
    the Company’s tax withholding obligations as described in
    Section 18.3.





    

    6








 






		
	
    5.  
	
    EFFECTIVE
    DATE, DURATION AND AMENDMENTS




 




    5.1
    Effective Date.



 



    The Plan shall be effective as of the Effective
    Date.  Following the Effective Date no awards will
    be made under the Prior Plans.



 




    5.2
    Term.



 



    The Plan shall terminate automatically ten (10) years after
    the Effective Date and may be terminated on any earlier date as
    provided in Section 5.3.



 




    5.3
    Amendment and Termination of the Plan



 



    The Board may, at any time and from time to time, amend,
    suspend, or terminate the Plan as to any shares of Stock as to
    which Awards have not been made. An amendment shall be
    contingent on approval of the Company’s stockholders to the
    extent stated by the Board, required by applicable law or
    required by applicable stock exchange listing requirements. In
    addition, an amendment will be contingent on approval of the
    Company’s stockholders if the amendment would:
    (i) materially increase the benefits accruing to
    participants under the Plan, (ii) materially increase the
    aggregate number of shares of Stock that may be issued under the
    Plan, or (iii) materially modify the requirements as to
    eligibility for participation in the Plan. No Awards shall be
    made after termination of the Plan. No amendment, suspension, or
    termination of the Plan shall, without the consent of the
    Grantee, impair rights or obligations under any Award
    theretofore awarded under the Plan.



 


		
	
    6.  
	
    AWARD
    ELIGIBILITY AND LIMITATIONS




 




    6.1
    Service Providers and Other Persons



 



    Subject to this Section 6, Awards may be made under
    the Plan to: (i) any Service Provider to the Company or of
    any Affiliate, including any Service Provider who is an officer
    or director of the Company, or of any Affiliate, as the Board
    shall determine and designate from time to time and
    (ii) any other individual whose participation in the Plan
    is determined to be in the best interests of the Company by the
    Board.



 




    6.2
    Successive Awards and Substitute Awards.



 



    An eligible person may receive more than one Award, subject to
    such restrictions as are provided herein. Notwithstanding
    Sections 8.1 and 9.1, the Option Price of an
    Option or the grant price of a SAR that is a Substitute Award
    may be less than 100% of the Fair Market Value of a share of
    Common Stock on the original date of grant; provided, that, the
    Option Price or grant price is determined in accordance with the
    principles of Code Section 424 and the regulations
    thereunder; as modified by Code Section 409A and the
    regulations thereunder as Options that are non-qualified stock
    options and SARs.



 




    6.3
    Limitation on Shares of Stock Subject to
    Awards.



 



    During any time when the Company has a class of equity security
    registered under Section 12 of the Exchange Act:



 



    (i) the maximum number of shares of Stock subject to
    Options or SARs that can be awarded under the Plan to any person
    eligible for an Award under Section 6 hereof is five
    hundred twenty five thousand five hundred (525,000) per
    12 month period; and



 



    (ii) the maximum number of shares that can be granted under
    the Plan, other than pursuant to an Option or SARs, to any
    person eligible for an Award under Section 6 hereof
    is five hundred twenty five thousand five hundred (525,000) per
    12 month period.



 



    The preceding limitations in this Section 6.3 are
    subject to adjustment as provided in Section 17
    hereof.





    

    7








 






		
	
    7.  
	
    AWARD
    AGREEMENT




 



    Each Award granted pursuant to the Plan shall be evidenced by an
    Award Agreement, in such form or forms as the Board shall from
    time to time determine. Award Agreements granted from time to
    time or at the same time need not contain similar provisions but
    shall be consistent with the terms of the Plan. Each Award
    Agreement evidencing an Award of Options shall specify whether
    such Options are intended to be Non-qualified Stock Options or
    Incentive Stock Options, and in the absence of such
    specification such options shall be deemed Non-qualified Stock
    Options.



 


		
	
    8.  
	
    TERMS AND
    CONDITIONS OF OPTIONS




 




    8.1
    Option Price



 



    The Option Price of each Option shall be fixed by the Board and
    stated in the Award Agreement evidencing such Option. Except in
    the case of Substitute Awards, the Option Price of each Option
    shall be at least the Fair Market Value on the Grant Date of a
    share of Stock; provided, however, that in the
    event that a Grantee is a Ten Percent Stockholder, the Option
    Price of an Option granted to such Grantee that is intended to
    be an Incentive Stock Option shall be not less than
    110 percent of the Fair Market Value of a share of Stock on
    the Grant Date. In no case shall the Option Price of any Option
    be less than the par value of a share of Stock.



 




    8.2
    Vesting.



 



    Subject to Sections 8.3 and 17.3 hereof, each Option
    granted under the Plan shall become exercisable at such times
    and under such conditions as shall be determined by the Board
    and stated in the Award Agreement. For purposes of this
    Section 8.2, fractional numbers of shares of Stock
    subject to an Option shall be rounded down to the next nearest
    whole number.



 




    8.3
    Term.



 



    Each Option granted under the Plan shall terminate, and all
    rights to purchase shares of Stock thereunder shall cease, upon
    the expiration of ten years from the date such Option is
    granted, or under such circumstances and on such date prior
    thereto as is set forth in the Plan or as may be fixed by the
    Board and stated in the Award Agreement relating to such Option;
    provided, however, that in the event that the
    Grantee is a Ten Percent Stockholder, an Option granted to such
    Grantee that is intended to be an Incentive Stock Option shall
    not be exercisable after the expiration of five years from its
    Grant Date.



 




    8.4
    Termination of Service.



 



    Each Award Agreement shall set forth the extent to which the
    Grantee shall have the right to exercise the Option following
    termination of the Grantee’s Service. Such provisions shall
    be determined in the sole discretion of the Board, need not be
    uniform among all Options issued pursuant to the Plan, and may
    reflect distinctions based on the reasons for termination of
    Service.



 




    8.5
    Limitations on Exercise of Option.



 



    Notwithstanding any other provision of the Plan, in no event may
    any Option be exercised, in whole or in part, prior to the date
    the Plan is approved by the stockholders of the Company as
    provided herein or after the occurrence of an event referred to
    in Section 17 hereof which results in termination of
    the Option.



 




    8.6
    Method of Exercise.



 



    Subject to the terms of Article 12 and
    Section 18.3, an Option that is exercisable may be
    exercised by the Grantee’s delivery to the Company of
    notice of exercise on any business day, at the Company’s
    principal office, on the form specified by the Company. Such
    notice shall specify the number of shares of Stock with respect
    to which the Option is being exercised and shall be accompanied
    by payment in full of the Option Price of the shares for which
    the Option is being exercised plus the amount (if any) of
    federal
    and/or other
    taxes which the Company may, in its judgment, be required to
    withhold with respect to an Award.





    

    8








 








    8.7
    Rights of Holders of Options



 



    Unless otherwise stated in the applicable Award Agreement, an
    individual holding or exercising an Option shall have none of
    the rights of a stockholder (for example, the right to receive
    cash or dividend payments or distributions attributable to the
    subject shares of Stock or to direct the voting of the subject
    shares of Stock) until the shares of Stock covered thereby are
    fully paid and issued to him. Except as provided in
    Section 17 hereof, no adjustment shall be made for
    dividends, distributions or other rights for which the record
    date is prior to the date of such issuance.



 




    8.8
    Delivery of Stock Certificates.



 



    Promptly after the exercise of an Option by a Grantee and the
    payment in full of the Option Price, such Grantee shall be
    entitled to the issuance of a stock certificate or certificates
    evidencing his or her ownership of the shares of Stock subject
    to the Option.



 




    8.9
    Transferability of Options



 



    Except as provided in Section 8.10, during the
    lifetime of a Grantee, only the Grantee (or, in the event of
    legal incapacity or incompetency, the Grantee’s guardian or
    legal representative) may exercise an Option. Except as provided
    in Section 8.10, no Option shall be assignable or
    transferable by the Grantee to whom it is granted, other than by
    will or the laws of descent and distribution.



 




    8.10
    Family Transfers.



 



    If authorized in the applicable Award Agreement, a Grantee may
    transfer, not for value, all or part of an Option which is not
    an Incentive Stock Option to any Family Member. For the purpose
    of this Section 8.10, a “not for value”
    transfer is a transfer which is (i) a gift, (ii) a
    transfer under a domestic relations order in settlement of
    marital property rights; or (iii) a transfer to an entity
    in which more than fifty percent of the voting interests are
    owned by Family Members (or the Grantee) in exchange for an
    interest in that entity. Following a transfer under this
    Section 8.10, any such Option shall continue to be
    subject to the same terms and conditions as were applicable
    immediately prior to transfer. Subsequent transfers of
    transferred Options are prohibited except to Family Members of
    the original Grantee in accordance with this
    Section 8.10 or by will or the laws of descent and
    distribution. The events of termination of Service of
    Section 8.4 hereof shall continue to be applied with
    respect to the original Grantee, following which the Option
    shall be exercisable by the transferee only to the extent, and
    for the periods specified, in Section 8.4.



 




    8.11
    Limitations on Incentive Stock Options.



 



    An Option shall constitute an Incentive Stock Option only
    (i) if the Grantee of such Option is an employee of the
    Company or any Subsidiary of the Company; (ii) to the
    extent specifically provided in the related Award Agreement; and
    (iii) to the extent that the aggregate Fair Market Value
    (determined at the time the Option is granted) of the shares of
    Stock with respect to which all Incentive Stock Options held by
    such Grantee become exercisable for the first time during any
    calendar year (under the Plan and all other plans of the
    Grantee’s employer and its Affiliates) does not exceed
    $100,000. This limitation shall be applied by taking Options
    into account in the order in which they were granted.



 




    8.12
    Notice of Disqualifying Disposition



 



    If any Grantee shall make any disposition of shares of Stock
    issued pursuant to the exercise of an Incentive Stock Option
    under the circumstances described in Code Section 421(b)
    (relating to certain disqualifying dispositions), such Grantee
    shall notify the Company of such disposition within ten
    (10) days thereof.





    

    9








 






		
	
    9.  
	
    TERMS AND
    CONDITIONS OF STOCK APPRECIATION RIGHTS




 




    9.1
    Right to Payment and Grant Price.



 



    A SAR shall confer on the Grantee to whom it is granted a right
    to receive, upon exercise thereof, the excess of (A) the
    Fair Market Value of one share of Stock on the date of exercise
    over (B) the grant price of the SAR as determined by the
    Board. The Award Agreement for a SAR shall specify the grant
    price of the SAR, which shall be at least the Fair Market Value
    of a share of Stock on the date of grant. SARs may be granted in
    conjunction with all or part of an Option granted under the Plan
    or at any subsequent time during the term of such Option, in
    conjunction with all or part of any other Award or without
    regard to any Option or other Award; provided that a SAR that is
    granted subsequent to the Grant Date of a related Option must
    have a SAR Price that is no less than the Fair Market Value of
    one share of Stock on the SAR Grant Date.



 




    9.2
    Other Terms.



 



    The Board shall determine at the date of grant or thereafter,
    the time or times at which and the circumstances under which a
    SAR may be exercised in whole or in part (including based on
    achievement of performance goals
    and/or
    future service requirements), the time or times at which SARs
    shall cease to be or become exercisable following termination of
    Service or upon other conditions, the method of exercise, method
    of settlement, form of consideration payable in settlement,
    method by or forms in which Stock will be delivered or deemed to
    be delivered to Grantees, whether or not a SAR shall be in
    tandem or in combination with any other Award, and any other
    terms and conditions of any SAR.



 




    9.3
    Term.



 



    Each SAR granted under the Plan shall terminate, and all rights
    thereunder shall cease, upon the expiration of ten years from
    the date such SAR is granted, or under such circumstances and on
    such date prior thereto as is set forth in the Plan or as may be
    fixed by the Board and stated in the Award Agreement relating to
    such SAR.



 




    9.4
    Transferability of SARS



 



    Except as provided in Section 9.5, during the
    lifetime of a Grantee, only the Grantee (or, in the event of
    legal incapacity or incompetency, the Grantee’s guardian or
    legal representative) may exercise a SAR. Except as provided in
    Section 9.5, no SAR shall be assignable or
    transferable by the Grantee to whom it is granted, other than by
    will or the laws of descent and distribution.



 




    9.5
    Family Transfers.



 



    If authorized in the applicable Award Agreement, a Grantee may
    transfer, not for value, all or part of a SAR to any Family
    Member. For the purpose of this Section 9.5, a
    “not for value” transfer is a transfer which is
    (i) a gift, (ii) a transfer under a domestic relations
    order in settlement of marital property rights; or (iii) a
    transfer to an entity in which more than fifty percent of the
    voting interests are owned by Family Members (or the Grantee) in
    exchange for an interest in that entity. Following a transfer
    under this Section 9.5, any such SAR shall continue
    to be subject to the same terms and conditions as were
    applicable immediately prior to transfer. Subsequent transfers
    of transferred SARs are prohibited except to Family Members of
    the original Grantee in accordance with this Section 9.5
    or by will or the laws of descent and distribution.



 


		
	
    10.  
	
    TERMS AND
    CONDITIONS OF RESTRICTED STOCK AND STOCK UNITS




 




    10.1
    Grant of Restricted Stock or Stock Units.



 



    Awards of Restricted Stock or Stock Units may be made for no
    consideration (other than par value of the shares which is
    deemed paid by Services already rendered).





    

    10








 








    10.2
    Restrictions.



 



    At the time a grant of Restricted Stock or Stock Units is made,
    the Board may, in its sole discretion, establish a period of
    time (a “restricted period”) applicable to such
    Restricted Stock or Stock Units. Each Award of Restricted Stock
    or Stock Units may be subject to a different restricted period.
    The Board may in its sole discretion, at the time a grant of
    Restricted Stock or Stock Units is made, prescribe restrictions
    in addition to or other than the expiration of the restricted
    period, including the satisfaction of corporate or individual
    performance objectives, which may be applicable to all or any
    portion of the Restricted Stock or Stock Units as described in
    Article 14. Neither Restricted Stock nor Stock Units
    may be sold, transferred, assigned, pledged or otherwise
    encumbered or disposed of during the restricted period or prior
    to the satisfaction of any other restrictions prescribed by the
    Board with respect to such Restricted Stock or Stock Units.



 




    10.3
    Restricted Stock Certificates.



 



    The Company shall issue, in the name of each Grantee to whom
    Restricted Stock has been granted, stock certificates
    representing the total number of shares of Restricted Stock
    granted to the Grantee, as soon as reasonably practicable after
    the Grant Date. The Board may provide in an Award Agreement that
    either (i) the Secretary of the Company shall hold such
    certificates for the Grantee’s benefit until such time as
    the Restricted Stock is forfeited to the Company or the
    restrictions lapse, or (ii) such certificates shall be
    delivered to the Grantee, provided, however, that
    such certificates shall bear a legend or legends that comply
    with the applicable securities laws and regulations and makes
    appropriate reference to the restrictions imposed under the Plan
    and the Award Agreement.



 




    10.4
    Rights of Holders of Restricted Stock.



 



    Unless the Board otherwise provides in an Award Agreement,
    holders of Restricted Stock shall have the right to vote such
    Stock and the right to receive any dividends declared or paid
    with respect to such Stock. The Board may provide that any
    dividends paid on Restricted Stock must be reinvested in shares
    of Stock, which may or may not be subject to the same vesting
    conditions and restrictions applicable to such Restricted Stock.
    All distributions, if any, received by a Grantee with respect to
    Restricted Stock as a result of any stock split, stock dividend,
    combination of shares, or other similar transaction shall be
    subject to the restrictions applicable to the original Grant.



 




    10.5
    Rights of Holders of Stock Units.



 




    10.5.1
    Voting and Dividend Rights.



 



    Holders of Stock Units shall have no rights as stockholders of
    the Company. The Board may provide in an Award Agreement
    evidencing a grant of Stock Units that the holder of such Stock
    Units shall be entitled to receive, upon the Company’s
    payment of a cash dividend on its outstanding Stock, a cash
    payment for each Stock Unit held equal to the per-share dividend
    paid on the Stock. Such Award Agreement may also provide that
    such cash payment will be deemed reinvested in additional Stock
    Units at a price per unit equal to the Fair Market Value of a
    share of Stock on the date that such dividend is paid.



 




    10.5.2
    Creditor’s Rights.



 



    A holder of Stock Units shall have no rights other than those of
    a general creditor of the Company. Stock Units represent an
    unfunded and unsecured obligation of the Company, subject to the
    terms and conditions of the applicable Award Agreement.



 




    10.6
    Termination of Service.



 



    Unless the Board otherwise provides in an Award Agreement or in
    writing after the Award Agreement is issued, upon the
    termination of a Grantee’s Service, any Restricted Stock or
    Stock Units held by such Grantee that have not vested, or with
    respect to which all applicable restrictions and conditions have
    not lapsed, shall immediately be deemed forfeited. Upon
    forfeiture of Restricted Stock or Stock Units, the Grantee shall
    have no further rights with respect to such Award, including but
    not limited to any right to vote Restricted Stock or any right
    to receive dividends with respect to shares of Restricted Stock
    or Stock Units.





    

    11








 








    10.7
    Purchase of Restricted Stock and Shares Subject to Stock
    Units.



 



    The Grantee shall be required, to the extent required by
    applicable law, to purchase the Restricted Stock or Shares
    subject to vested Stock Units from the Company at a Purchase
    Price equal to the greater of (i) the aggregate par value
    of the shares of Stock represented by such Restricted Stock or
    Stock Units (ii) the Purchase Price, if any, specified in
    the Award Agreement relating to such Restricted Stock or Stock
    Units. The Purchase Price shall be payable in a form described
    in Section 12 or, in the discretion of the Board, in
    consideration for past or future Services rendered to the
    Company or an Affiliate.



 




    10.8
    Delivery of Stock.



 



    Upon the expiration or termination of any restricted period and
    the satisfaction of any other conditions prescribed by the
    Board, the restrictions applicable to shares of Restricted Stock
    or Stock Units settled in Stock shall lapse, and, unless
    otherwise provided in the Award Agreement, a stock certificate
    for such shares shall be delivered, free of all such
    restrictions, to the Grantee or the Grantee’s beneficiary
    or estate, as the case may be. Neither the Grantee, nor the
    Grantee’s beneficiary or estate, shall have any further
    rights with regard to a Stock Unit once the share of Stock
    represented by the Stock Unit has been delivered.



 




    11 TERMS
    AND CONDITIONS OF UNRESTRICTED STOCK AWARDS



 



    The Board may, in its sole discretion, grant (or sell at par
    value or such other higher purchase price determined by the
    Board) an Unrestricted Stock Award to any Grantee pursuant to
    which such Grantee may receive shares of Stock free of any
    restrictions (“Unrestricted Stock”) under the Plan.
    Unrestricted Stock Awards may be granted or sold as described in
    the preceding sentence in respect of past services and other
    valid consideration, or in lieu of, or in addition to, any cash
    compensation due to such Grantee.



 




    12
    FORM OF PAYMENT FOR OPTIONS AND RESTRICTED STOCK



 




    12.1
    General Rule.



 



    Payment of the Option Price for the shares purchased pursuant to
    the exercise of an Option or the Purchase Price for Restricted
    Stock shall be made in cash or in cash equivalents acceptable to
    the Company.



 




    12.2
    Surrender of Stock.



 



    To the extent the Award Agreement so provides, payment of the
    Option Price for shares purchased pursuant to the exercise of an
    Option or the Purchase Price for Restricted Stock may be made
    all or in part through the tender or attestation to the Company
    of shares of Stock, which shall be valued, for purposes of
    determining the extent to which the Option Price or Purchase
    Price has been paid thereby, at their Fair Market Value on the
    date of exercise or surrender.



 




    12.3
    Cashless Exercise.



 



    With respect to an Option only (and not with respect to
    Restricted Stock), to the extent permitted by law and to the
    extent the Award Agreement so provides, payment of the Option
    Price for shares purchased pursuant to the exercise of an Option
    may be made all or in part by delivery (on a form acceptable to
    the Board) of an irrevocable direction to a licensed securities
    broker acceptable to the Company to sell shares of Stock and to
    deliver all or part of the sales proceeds to the Company in
    payment of the Option Price and any withholding taxes described
    in Section 18.3.



 




    12.4
    Other Forms of Payment.



 



    To the extent the Award Agreement so provides, payment of the
    Option Price for shares purchased pursuant to exercise of an
    Option or the Purchase Price for Restricted Stock may be made in
    any other form that is consistent with applicable laws,
    regulations and rules, including, without limitation, Service.





    

    12








 








    13 TERMS
    AND CONDITIONS OF DIVIDEND EQUIVALENT RIGHTS



 




    13.1
    Dividend Equivalent Rights.



 



    A Dividend Equivalent Right is an Award entitling the recipient
    to receive credits based on cash distributions that would have
    been paid on the shares of Stock specified in the Dividend
    Equivalent Right (or other award to which it relates) if such
    shares had been issued to and held by the recipient. A Dividend
    Equivalent Right may be granted hereunder to any Grantee. The
    terms and conditions of Dividend Equivalent Rights shall be
    specified in the grant. Dividend equivalents credited to the
    holder of a Dividend Equivalent Right may be paid currently or
    may be deemed to be reinvested in additional shares of Stock,
    which may thereafter accrue additional equivalents. Any such
    reinvestment shall be at Fair Market Value on the date of
    reinvestment. Dividend Equivalent Rights may be settled in cash
    or Stock or a combination thereof, in a single installment or
    installments, all determined in the sole discretion of the
    Board. A Dividend Equivalent Right granted as a component of
    another Award may provide that such Dividend Equivalent Right
    shall be settled upon exercise, settlement, or payment of, or
    lapse of restrictions on, such other award, and that such
    Dividend Equivalent Right shall expire or be forfeited or
    annulled under the same conditions as such other award. A
    Dividend Equivalent Right granted as a component of another
    Award may also contain terms and conditions different from such
    other award.



 




    13.2
    Termination of Service.



 



    Except as may otherwise be provided by the Board either in the
    Award Agreement or in writing after the Award Agreement is
    issued, a Grantee’s rights in all Dividend Equivalent
    Rights or interest equivalents shall automatically terminate
    upon the Grantee’s termination of Service for any reason.



 




    14 TERMS
    AND CONDITIONS OF PERFORMANCE SHARES, PERFORMANCE UNITS,
    PERFORMANCE AWARDS AND ANNUAL INCENTIVE AWARDS



 




    14.1
    Grant of Performance Units/Performance
    Shares.



 



    Subject to the terms and provisions of this Plan, the Board, at
    any time and from time to time, may grant Performance Units
    and/or
    Performance Shares to Participants in such amounts and upon such
    terms as the Committee shall determine.



 




    14.2
    Value of Performance Units/Performance
    Shares.



 



    Each Performance Unit shall have an initial value that is
    established by the Board at the time of grant. The Board shall
    set performance goals in its discretion which, depending on the
    extent to which they are met, will determine the value
    and/or
    number of Performance Units/Performance Shares that will be paid
    out to the Participant.



 




    14.3
    Earning of Performance Units/Performance
    Shares.



 



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



 




    14.4
    Form and Timing of Payment of Performance Units/Performance
    Shares.



 



    Payment of earned Performance Units/Performance Shares shall be
    as determined by the Board and as evidenced in the Award
    Agreement. Subject to the terms of this Plan, the Board, in its
    sole discretion, may pay earned Performance Units/Performance
    Shares in the form of cash or in shares (or in a combination
    thereof) equal to the value of the earned Performance
    Units/Performance Shares at the close of the applicable
    Performance Period, or as soon as practicable after the end of
    the Performance Period. Any Shares may be granted subject to any
    restrictions deemed appropriate by the Committee. The
    determination of the Committee with respect to the form of
    payout of such Awards shall be set forth in the Award Agreement
    pertaining to the grant of the Award.





    

    13








 








    14.5
    Performance Conditions.



 



    The right of a Grantee to exercise or receive a grant or
    settlement of any Award, and the timing thereof, may be subject
    to such performance conditions as may be specified by the Board.
    The Board may use such business criteria and other measures of
    performance as it may deem appropriate in establishing any
    performance conditions. If and to the extent required under Code
    Section 162(m), any power or authority relating to an Award
    intended to qualify under Code Section 162(m), shall be
    exercised by the Committee and not the Board.



 




    14.6
    Performance Awards or Annual Incentive Awards Granted to
    Designated Covered Employees.



 



    If and to the extent that the Board determines that an Award to
    be granted to a Grantee who is designated by the Board as likely
    to be a Covered Employee should qualify as
    “performance-based compensation” for purposes of Code
    Section 162(m), the grant, exercise
    and/or
    settlement of such Award shall be contingent upon achievement of
    pre-established performance goals and other terms set forth in
    this Section 14.6.



 




    14.6.1
    Performance Goals Generally.



 



    The performance goals for such Awards shall consist of one or
    more business criteria and a targeted level or levels of
    performance with respect to each of such criteria, as specified
    by the Committee consistent with this Section 14.6.
    Performance goals shall be objective and shall otherwise meet
    the requirements of Code Section 162(m) and regulations
    thereunder including the requirement that the level or levels of
    performance targeted by the Committee result in the achievement
    of performance goals being “substantially uncertain.”
    The Committee may determine that such Awards shall be granted,
    exercised
    and/or
    settled upon achievement of any one performance goal or that two
    or more of the performance goals must be achieved as a condition
    to grant, exercise
    and/or
    settlement of such Awards. Performance goals may differ for
    Awards granted to any one Grantee or to different Grantees.



 




    14.6.2
    Timing For Establishing Performance Goals.



 



    Performance goals shall be established not later than the
    earlier of (i) 90 days after the beginning of any
    performance period applicable to such Awards and (ii) the
    day on which 25% of any performance period applicable to such
    Awards has expired, or at such other date as may be required or
    permitted for “performance-based compensation” under
    Code Section 162(m).



 




    14.6.3
    Settlement of Awards; Other Terms.



 



    Settlement of such Awards shall be in cash, Stock, other Awards
    or other property, in the discretion of the Committee. The
    Committee may, in its discretion, reduce the amount of a
    settlement otherwise to be made in connection with such Awards.
    The Committee shall specify the circumstances in which such
    Performance or Annual Incentive Awards shall be paid or
    forfeited in the event of termination of Service by the Grantee
    prior to the end of a performance period or settlement of Awards.



 




    14.6.4
    Performance Measures.



 



    The performance goals upon which the payment or vesting of an
    Award to a Covered Employee that is intended to qualify as
    Performance-Based Compensation shall be limited to the following
    Performance Measures:



 



    (a) net earnings or net income;



 



    (b) operating earnings;



 



    (c) pretax earnings;



 



    (d) earnings per share;



 



    (e) share price, including growth measures and total
    stockholder return;



 



    (f) earnings before interest and taxes;





    

    14








 







    (g) earnings before interest, taxes, depreciation
    and/or
    amortization;



 



    (h) sales or revenue growth, whether in general, by type of
    product or service, or by type of customer;



 



    (i) gross or operating margins;



 



    (j) return measures, including return on assets, capital,
    investment, equity, sales or revenue;



 



    (k) cash flow, including operating cash flow, free cash
    flow, cash flow return on equity and cash flow return on
    investment;



 



    (l) productivity ratios;



 



    (m) expense targets;



 



    (n) market share;



 



    (o) financial ratios as provided in credit agreements of
    the Company and its subsidiaries;



 



    (p) working capital targets;



 



    (q) completion of acquisitions of business or companies.



 



    (r) completion of divestitures and asset sales; and



 



    (s) any combination of any of the foregoing business
    criteria.



 



    Any Performance Measure(s) may be used to measure the
    performance of the Company, Subsidiary,
    and/or
    Affiliate as a whole or any business unit of the Company,
    Subsidiary,
    and/or
    Affiliate or any combination thereof, as the Committee may deem
    appropriate, or any of the above Performance Measures as
    compared to the performance of a group of comparator companies,
    or published or special index that the Committee, in its sole
    discretion, deems appropriate, or the Company may select
    Performance Measure (f) above as compared to various stock
    market indices. The Committee also has the authority to provide
    for accelerated vesting of any Award based on the achievement of
    performance goals pursuant to the Performance Measures specified
    in this Section 14.



 




    14.6.5
    Evaluation of Performance.



 



    The Committee may provide in any such Award that any evaluation
    of performance may include or exclude any of the following
    events that occur during a Performance Period: (a) asset
    write-downs; (b) litigation or claim judgments or
    settlements; (c) the effect of changes in tax laws,
    accounting principles, or other laws or provisions affecting
    reported results; (d) any reorganization and restructuring
    programs; (e) extraordinary nonrecurring items as described
    in Accounting Principles Board Opinion No. 30
    and/or in
    management’s discussion and analysis of financial condition
    and results of operations appearing in the Company’s annual
    report to shareholders for the applicable year;
    (f) acquisitions or divestitures; and (g) foreign
    exchange gains and losses. To the extent such inclusions or
    exclusions affect Awards to Covered Employees, they shall be
    prescribed in a form that meets the requirements of Code
    Section 162(m) for deductibility.



 




    14.6.6
    Adjustment of Performance-Based
    Compensation.



 



    Awards that are intended to qualify as Performance-Based
    Compensation may not be adjusted upward. The Board shall retain
    the discretion to adjust such Awards downward, either on a
    formula or discretionary basis, or any combination as the
    Committee determines.



 




    14.6.7
    Board Discretion.



 



    In the event that applicable tax
    and/or
    securities laws change to permit Board discretion to alter the
    governing Performance Measures without obtaining shareholder
    approval of such changes, the Board shall have sole discretion
    to make such changes without obtaining shareholder approval
    provided the exercise of such discretion does not violate Code
    Section 409A. In addition, in the event that the Committee
    determines that it is advisable to grant Awards that shall not
    qualify as Performance-Based Compensation, the Committee may
    make such grants






    

    15








 







    without satisfying the requirements of Code Section 162(m)
    and base vesting on Performance Measures other than those set
    forth in Section 14.6.4.



 




    14.7
    Status of Section Awards Under Code
    Section 162(m).



 



    It is the intent of the Company that Awards under
    Section 14.6 hereof granted to persons who are
    designated by the Committee as likely to be Covered Employees
    within the meaning of Code Section 162(m) and regulations
    thereunder shall, if so designated by the Committee, constitute
    “qualified performance-based compensation” within the
    meaning of Code Section 162(m) and regulations thereunder.
    Accordingly, the terms of Section 14.6, including
    the definitions of Covered Employee and other terms used
    therein, shall be interpreted in a manner consistent with Code
    Section 162(m) and regulations thereunder. The foregoing
    notwithstanding, because the Committee cannot determine with
    certainty whether a given Grantee will be a Covered Employee
    with respect to a fiscal year that has not yet been completed,
    the term Covered Employee as used herein shall mean only a
    person designated by the Committee, at the time of grant of an
    Award, as likely to be a Covered Employee with respect to that
    fiscal year. If any provision of the Plan or any agreement
    relating to such Awards does not comply or is inconsistent with
    the requirements of Code Section 162(m) or regulations
    thereunder, such provision shall be construed or deemed amended
    to the extent necessary to conform to such requirements.



 




    15
    PARACHUTE LIMITATIONS



 



    Notwithstanding any other provision of this Plan or of any other
    agreement, contract, or understanding heretofore or hereafter
    entered into by a Grantee with the Company or any Affiliate,
    except an agreement, contract, or understanding that expressly
    addresses Section 280G or Section 4999 of the Code (an
    “Other Agreement”), and notwithstanding any formal or
    informal plan or other arrangement for the direct or indirect
    provision of compensation to the Grantee (including groups or
    classes of Grantees or beneficiaries of which the Grantee is a
    member), whether or not such compensation is deferred, is in
    cash, or is in the form of a benefit to or for the Grantee (a
    “Benefit Arrangement”), if the Grantee is a
    “disqualified individual,” as defined in
    Section 280G(c) of the Code, any Option, Restricted Stock,
    Stock Unit, Performance Share or Performance Unit held by that
    Grantee and any right to receive any payment or other benefit
    under this Plan shall not become exercisable or vested
    (i) to the extent that such right to exercise, vesting,
    payment, or benefit, taking into account all other rights,
    payments, or benefits to or for the Grantee under this Plan, all
    Other Agreements, and all Benefit Arrangements, would cause any
    payment or benefit to the Grantee under this Plan to be
    considered a “parachute payment” within the meaning of
    Section 280G(b)(2) of the Code as then in effect (a
    “Parachute Payment”) and (ii) if, as a
    result of receiving a Parachute Payment, the aggregate after-tax
    amounts received by the Grantee from the Company under this
    Plan, all Other Agreements, and all Benefit Arrangements would
    be less than the maximum after-tax amount that could be received
    by the Grantee without causing any such payment or benefit to be
    considered a Parachute Payment. In the event that the receipt of
    any such right to exercise, vesting, payment, or benefit under
    this Plan, in conjunction with all other rights, payments, or
    benefits to or for the Grantee under any Other Agreement or any
    Benefit Arrangement would cause the Grantee to be considered to
    have received a Parachute Payment under this Plan that would
    have the effect of decreasing the after-tax amount received by
    the Grantee as described in clause (ii) of the preceding
    sentence, then the Grantee shall have the right, in the
    Grantee’s sole discretion, to designate those rights,
    payments, or benefits under this Plan, any Other Agreements, and
    any Benefit Arrangements that should be reduced or eliminated so
    as to avoid having the payment or benefit to the Grantee under
    this Plan be deemed to be a Parachute Payment; provided,
    however, that in order to comply with Code Section 409A,
    the reduction or elimination will be performed in the order in
    which each dollar of value subject to an Award reduces the
    Parachute Payment to the greatest extent.



 




    16
    REQUIREMENTS OF LAW



 




    16.1
    General.



 



    The Company shall not be required to sell or issue any shares of
    Stock under any Award if the sale or issuance of such shares
    would constitute a violation by the Grantee, any other
    individual exercising an Option, or the Company of any provision
    of any law or regulation of any governmental authority,
    including without limitation any federal or state securities
    laws or regulations. If at any time the Company shall determine,
    in its discretion, that the listing, registration or
    qualification of any shares subject to an Award upon any
    securities exchange or under any






    

    16








 







    governmental regulatory body is necessary or desirable as a
    condition of, or in connection with, the issuance or purchase of
    shares hereunder, no shares of Stock may be issued or sold to
    the Grantee or any other individual exercising an Option
    pursuant to such Award unless such listing, registration,
    qualification, consent or approval shall have been effected or
    obtained free of any conditions not acceptable to the Company,
    and any delay caused thereby shall in no way affect the date of
    termination of the Award. Without limiting the generality of the
    foregoing, in connection with the Securities Act, upon the
    exercise of any Option or any SAR that may be settled in shares
    of Stock or the delivery of any shares of Stock underlying an
    Award, unless a registration statement under such Act is in
    effect with respect to the shares of Stock covered by such
    Award, the Company shall not be required to sell or issue such
    shares unless the Board has received evidence satisfactory to it
    that the Grantee or any other individual exercising an Option
    may acquire such shares pursuant to an exemption from
    registration under the Securities Act. Any determination in this
    connection by the Board shall be final, binding, and conclusive.
    The Company may, but shall in no event be obligated to, register
    any securities covered hereby pursuant to the Securities Act.
    The Company shall not be obligated to take any affirmative
    action in order to cause the exercise of an Option or a SAR or
    the issuance of shares of Stock pursuant to the Plan to comply
    with any law or regulation of any governmental authority. As to
    any jurisdiction that expressly imposes the requirement that an
    Option (or SAR that may be settled in shares of Stock) shall not
    be exercisable until the shares of Stock covered by such Option
    (or SAR) are registered or are exempt from registration, the
    exercise of such Option (or SAR) under circumstances in which
    the laws of such jurisdiction apply shall be deemed conditioned
    upon the effectiveness of such registration or the availability
    of such an exemption.



 




    16.2
    Rule 16b-3.



 



    During any time when the Company has a class of equity security
    registered under Section 12 of the Exchange Act, it is the
    intent of the Company that Awards pursuant to the Plan and the
    exercise of Options and SARs granted hereunder will qualify for
    the exemption provided by
    Rule 16b-3
    under the Exchange Act. To the extent that any provision of the
    Plan or action by the Board does not comply with the
    requirements of
    Rule 16b-3,
    it shall be deemed inoperative to the extent permitted by law
    and deemed advisable by the Board, and shall not affect the
    validity of the Plan. In the event that
    Rule 16b-3
    is revised or replaced, the Board may exercise its discretion to
    modify this Plan in any respect necessary to satisfy the
    requirements of, or to take advantage of any features of, the
    revised exemption or its replacement.



 




    17 EFFECT
    OF CHANGES IN CAPITALIZATION



 




    17.1
    Changes in Stock.



 



    If the number of outstanding shares of Stock is increased or
    decreased or the shares of Stock are changed into or exchanged
    for a different number or kind of shares or other securities of
    the Company on account of any recapitalization,
    reclassification, stock split, reverse split, combination of
    shares, exchange of shares, stock dividend or other distribution
    payable in capital stock, or other increase or decrease in such
    shares effected without receipt of consideration by the Company
    occurring after the Effective Date, the number and kinds of
    shares for which grants of Options and other Awards may be made
    under the Plan, including, without limitation, the limits set
    forth in Section 6.3, shall be adjusted
    proportionately and accordingly by the Company. In addition, the
    number and kind of shares for which Awards are outstanding shall
    be adjusted proportionately and accordingly so that the
    proportionate interest of the Grantee immediately following such
    event shall, to the extent practicable, be the same as
    immediately before such event. Any such adjustment in
    outstanding Options or SARs shall not change the aggregate
    Option Price or SAR Exercise Price payable with respect to
    shares that are subject to the unexercised portion of an
    outstanding Option or SAR, as applicable, but shall include a
    corresponding proportionate adjustment in the Option Price or
    SAR Exercise Price per share. The conversion of any convertible
    securities of the Company shall not be treated as an increase in
    shares effected without receipt of consideration.
    Notwithstanding the foregoing, in the event of any distribution
    to the Company’s stockholders of securities of any other
    entity or other assets (including an extraordinary dividend but
    excluding a non-extraordinary dividend of the Company) without
    receipt of consideration by the Company, the Company shall, in
    such manner as the Company deems appropriate, adjust
    (i) the number and kind of shares subject to outstanding
    Awards
    and/or
    (ii) the exercise price of outstanding Options and Stock
    Appreciation Rights to reflect such distribution.





    

    17








 








    17.2
    Reorganization in Which the Company Is the Surviving Entity
    Which does not Constitute a Corporate
    Transaction.



 



    Subject to Section 17.3 hereof, if the Company shall
    be the surviving entity in any reorganization, merger, or
    consolidation of the Company with one or more other entities
    which does not constitute a Corporate Transaction, any Option or
    SAR theretofore granted pursuant to the Plan shall pertain to
    and apply to the securities to which a holder of the number of
    shares of Stock subject to such Option or SAR would have been
    entitled immediately following such reorganization, merger, or
    consolidation, with a corresponding proportionate adjustment of
    the Option Price or SAR Exercise Price per share so that the
    aggregate Option Price or SAR Exercise Price thereafter shall be
    the same as the aggregate Option Price or SAR Exercise Price of
    the shares remaining subject to the Option or SAR immediately
    prior to such reorganization, merger, or consolidation. Subject
    to any contrary language in an Award Agreement evidencing an
    Award, any restrictions applicable to such Award shall apply as
    well to any replacement shares received by the Grantee as a
    result of the reorganization, merger or consolidation. In the
    event of a transaction described in this Section 17.2,
    Stock Units shall be adjusted so as to apply to the securities
    that a holder of the number of shares of Stock subject to the
    Stock Units would have been entitled to receive immediately
    following such transaction.



 




    17.3
    Corporate Transaction in which Awards are not
    Assumed.



 



    Upon the occurrence of a Corporate Transaction in which
    outstanding Options, SARs, Stock Units and Restricted Stock are
    not being assumed or continued:



 



    (i) all outstanding shares of Restricted Stock shall be
    deemed to have vested, and all Stock Units shall be deemed to
    have vested and the shares of Stock subject thereto shall be
    delivered, immediately prior to the occurrence of such Corporate
    Transaction, and



 



    (ii) either of the following two actions shall be taken:



 



    (A) fifteen days prior to the scheduled consummation of a
    Corporate Transaction, all Options and SARs outstanding
    hereunder shall become immediately exercisable and shall remain
    exercisable for a period of fifteen days, or



 



    (B) the Board may elect, in its sole discretion, to cancel
    any outstanding Awards of Options, Restricted Stock, Stock
    Units,
    and/or SARs
    and pay or deliver, or cause to be paid or delivered, to the
    holder thereof an amount in cash or securities having a value
    (as determined by the Board acting in good faith), in the case
    of Restricted Stock or Stock Units, equal to the formula or
    fixed price per share paid to holders of shares of Stock and, in
    the case of Options or SARs, equal to the product of the number
    of shares of Stock subject to the Option or SAR (the “Award
    Shares”) multiplied by the amount, if any, by which
    (I) the formula or fixed price per share paid to holders of
    shares of Stock pursuant to such transaction exceeds
    (II) the Option Price or SAR Exercise Price applicable to
    such Award Shares.



 



    With respect to the Company’s establishment of an exercise
    window, (i) any exercise of an Option or SAR during such
    fifteen-day
    period shall be conditioned upon the consummation of the event
    and shall be effective only immediately before the consummation
    of the event, and (ii) upon consummation of any Corporate
    Transaction, the Plan and all outstanding but unexercised
    Options and SARs shall terminate. The Board shall send notice of
    an event that will result in such a termination to all
    individuals who hold Options and SARs not later than the time at
    which the Company gives notice thereof to its stockholders.



 




    17.4
    Corporation Transaction in which Awards are
    Assumed.



 



    The Plan, Options, SARs, Stock Units and Restricted Stock
    theretofore granted shall continue in the manner and under the
    terms so provided in the event of any Corporate Transaction to
    the extent that provision is made in writing in connection with
    such Corporate Transaction for the assumption or continuation of
    the Options, SARs, Stock Units and Restricted Stock theretofore
    granted, or for the substitution for such Options, SARs, Stock
    Units and Restricted Stock for new common stock options and
    stock appreciation rights and new common stock units and
    restricted stock relating to the stock of a successor entity, or
    a parent or subsidiary thereof, with appropriate






    

    18








 







    adjustments as to the number of shares (disregarding any
    consideration that is not common stock) and option and stock
    appreciation right exercise prices.



 




    17.5
    Adjustments



 



    Adjustments under this Section 17 related to shares
    of Stock or securities of the Company shall be made by the
    Board, whose determination in that respect shall be final,
    binding and conclusive. No fractional shares or other securities
    shall be issued pursuant to any such adjustment, and any
    fractions resulting from any such adjustment shall be eliminated
    in each case by rounding downward to the nearest whole share.
    The Board shall determine the effect of a Corporate Transaction
    upon Awards other than Options, SARs, Stock Units and Restricted
    Stock, and such effect shall be set forth in the appropriate
    Award Agreement. The Board may provide in the Award Agreements
    at the time of grant, or any time thereafter with the consent of
    the Grantee, for different provisions to apply to an Award in
    place of those described in Sections 17.1, 17.2,
    17.3 and 17.4. This Section 17 does not
    limit the Company’s ability to provide for alternative
    treatment of Awards outstanding under the Plan in the event of
    change of control events that are not Corporate Transactions.



 




    17.6
    No Limitations on Company.



 



    The making of Awards pursuant to the Plan shall not affect or
    limit in any way the right or power of the Company to make
    adjustments, reclassifications, reorganizations, or changes of
    its capital or business structure or to merge, consolidate,
    dissolve, or liquidate, or to sell or transfer all or any part
    of its business or assets.



 




    18
    GENERAL PROVISIONS



 




    18.1
    Disclaimer of Rights.



 



    No provision in the Plan or in any Award or Award Agreement
    shall be construed to confer upon any individual the right to
    remain in the employ or service of the Company or any Affiliate,
    or to interfere in any way with any contractual or other right
    or authority of the Company either to increase or decrease the
    compensation or other payments to any individual at any time, or
    to terminate any employment or other relationship between any
    individual and the Company. In addition, notwithstanding
    anything contained in the Plan to the contrary, unless otherwise
    stated in the applicable Award Agreement, no Award granted under
    the Plan shall be affected by any change of duties or position
    of the Grantee, so long as such Grantee continues to be a
    director, officer, consultant or employee of the Company or an
    Affiliate. The obligation of the Company to pay any benefits
    pursuant to this Plan shall be interpreted as a contractual
    obligation to pay only those amounts described herein, in the
    manner and under the conditions prescribed herein. The Plan
    shall in no way be interpreted to require the Company to
    transfer any amounts to a third party trustee or otherwise hold
    any amounts in trust or escrow for payment to any Grantee or
    beneficiary under the terms of the Plan.



 




    18.2
    Nonexclusivity of the Plan.



 



    Neither the adoption of the Plan nor the submission of the Plan
    to the stockholders of the Company for approval shall be
    construed as creating any limitations upon the right and
    authority of the Board to adopt such other incentive
    compensation arrangements (which arrangements may be applicable
    either generally to a class or classes of individuals or
    specifically to a particular individual or particular
    individuals) as the Board in its discretion determines
    desirable, including, without limitation, the granting of stock
    options otherwise than under the Plan.



 




    18.3
    Withholding Taxes.



 



    The Company or an Affiliate, as the case may be, shall have the
    right to deduct from payments of any kind otherwise due to a
    Grantee any federal, state, or local taxes of any kind required
    by law to be withheld with respect to the vesting of or other
    lapse of restrictions applicable to an Award or upon the
    issuance of any shares of Stock upon the exercise of an Option
    or pursuant to an Award. At the time of such vesting, lapse, or
    exercise, the Grantee shall pay to the Company or the Affiliate,
    as the case may be, any amount that the Company or the Affiliate
    may reasonably determine to be necessary to satisfy such
    withholding obligation. Subject to the prior approval of the
    Company or the Affiliate, which may be withheld by the Company
    or the Affiliate, as the case may be, in its sole






    

    19








 







    discretion, the Grantee may elect to satisfy such obligations,
    in whole or in part, (i) by causing the Company or the
    Affiliate to withhold shares of Stock otherwise issuable to the
    Grantee or (ii) by delivering to the Company or the
    Affiliate shares of Stock already owned by the Grantee. The
    shares of Stock so delivered or withheld shall have an aggregate
    Fair Market Value equal to such withholding obligations. The
    Fair Market Value of the shares of Stock used to satisfy such
    withholding obligation shall be determined by the Company or the
    Affiliate as of the date that the amount of tax to be withheld
    is to be determined. A Grantee who has made an election pursuant
    to this Section 18.3 may satisfy his or her
    withholding obligation only with shares of Stock that are not
    subject to any repurchase, forfeiture, unfulfilled vesting, or
    other similar requirements. The maximum number of shares of
    Stock that may be withheld from any Award to satisfy any
    federal, state or local tax withholding requirements upon the
    exercise, vesting, lapse of restrictions applicable to such
    Award or payment of shares pursuant to such Award, as
    applicable, cannot exceed such number of shares having a Fair
    Market Value equal to the minimum statutory amount required by
    the Company to be withheld and paid to any such federal, state
    or local taxing authority with respect to such exercise,
    vesting, lapse of restrictions or payment of shares.



 




    18.4
    Captions.



 



    The use of captions in this Plan or any Award Agreement is for
    the convenience of reference only and shall not affect the
    meaning of any provision of the Plan or such Award Agreement.



 




    18.5
    Other Provisions.



 



    Each Award granted under the Plan may contain such other terms
    and conditions not inconsistent with the Plan as may be
    determined by the Board, in its sole discretion.



 




    18.6
    Number and Gender.



 



    With respect to words used in this Plan, the singular form shall
    include the plural form, the masculine gender shall include the
    feminine gender, etc., as the context requires.



 




    18.7
    Severability.



 



    If any provision of the Plan or any Award Agreement shall be
    determined to be illegal or unenforceable by any court of law in
    any jurisdiction, the remaining provisions hereof and thereof
    shall be severable and enforceable in accordance with their
    terms, and all provisions shall remain enforceable in any other
    jurisdiction.



 




    18.8
    Governing Law.



 



    The validity and construction of this Plan and the instruments
    evidencing the Awards hereunder shall be governed by the laws of
    the State of Colorado, other than any conflicts or choice of law
    rule or principle that might otherwise refer construction or
    interpretation of this Plan and the instruments evidencing the
    Awards granted hereunder to the substantive laws of any other
    jurisdiction.



 




    18.9
    Code Section 409A.



 



    The Board intends to comply with Code Section 409A, or an
    exemption to Code Section 409A, with regard to Awards
    hereunder that constitute nonqualified deferred compensation
    within the meaning of Code Section 409A. To the extent that
    the Board determines that a Grantee would be subject to the
    additional 20% tax imposed on certain nonqualified deferred
    compensation plans pursuant to Code Section 409A as a
    result of any provision of any Award granted under this Plan,
    such provision shall be deemed amended to the minimum extent
    necessary to avoid application of such additional tax. The
    nature of any such amendment shall be determined by the Board.





    

    20