exv10w13









    Exhibit
    10.13



 




    THE GEO
    GROUP, INC.

    SENIOR MANAGEMENT PERFORMANCE AWARD PLAN



 


		
	
    1.  
	
    PURPOSE




 



    The purpose of this Plan is to attract, retain, and motivate
    designated key employees of the Company by providing
    performance-based cash awards. The Company believes such awards
    create a strong incentive for the key employees participating in
    the Plan to expend maximum effort for the growth and success of
    the Company. This Plan is effective for fiscal years of the
    Company commencing on or after January 1, 2010 subject to
    shareholder approval in accordance with applicable law.



 


		
	
    2.  
	
    DEFINITIONS




 



    Unless the context otherwise requires, for purposes of this
    Plan, the terms below shall have the following meanings:



 



    (a) “Board” shall mean the Board of
    Directors of the Company.



 



    (b) “Code” shall mean the Internal
    Revenue Code of 1986, as amended and any successor thereto.



 



    (c) “Code Section 162(m) Exception”
    shall mean the exception for performance-based
    compensation under Section 162(m) of the Code or any
    successor section and the Treasury regulations promulgated
    thereunder.



 



    (d) “Code Section 409A” shall
    mean Section 409A of the Code, and its implementing
    regulations and guidance.



 



    (e) “Company” shall mean The GEO
    Group, Inc. and any successor by merger, consolidation or
    otherwise.



 



    (f) “Committee” shall mean the
    Compensation Committee of the Board or such other Committee of
    the Board that is appointed by the Board to administer this
    Plan; it is intended that all of the members of any such
    Committee shall satisfy the requirements to be outside
    directors, as defined under Code Section 162(m).



 



    (g) “Discretionary Adjustment”
    shall have the meaning set forth in Section 5.3.



 



    (h) “Net-Income-After-Tax” means
    net income of the Company, after all federal, state and local
    taxes. For purposes of determining Net-Income-After-Tax,
    extraordinary items and changes in accounting principles, as
    defined by United States generally accepted accounting
    principles, shall be disregarded. Extraordinary items shall
    include, but are not limited to, items of unusual and infrequent
    nature (i.e., loss incurred in the early extinguishment of
    debt). Changes in accounting principles shall include, but are
    not limited to, those that occur as a result of new
    pronouncements or requirements issued by accounting authorities
    including, but not limited to, the Securities Exchange
    Commission and the Financial Accounting Standards Board. To the
    extent compliant with the Code Section 162(m) Exception,
    non-recurring and unusual items not included or planned for in
    the Company’s annual budget may be excluded from
    Net-Income-After-Tax in the sole and absolute discretion of the
    Committee.



 



    (i) “Participant” shall mean an
    executive employee of the Company eligible to receive a
    Performance Award in accordance with this Plan. The executive
    employees of the Company eligible to participate in the Plan are
    listed in Section 4 hereof.



 



    (j) “Performance Award” shall mean
    the amount paid or payable under Section 5.2 hereof.



 



    (k) “Performance Goals” shall mean
    the objective performance goals, formulas and standards
    described in Section 5.1 hereof.



 



    (l) “Plan” shall mean this Senior
    Management Performance Award Plan of the Company.



 



    (m) “Plan Year” shall mean a fiscal
    year of the Company.



 



    (n) “Pro Rata” shall mean a portion
    of a Performance Award based on the number of days worked during
    a Plan Year as compared to the total number of days in the Plan
    Year.



 



    (o) “Revenue” shall mean gross
    revenues of the Company.





    

    1








 







    (p) “Salary” shall mean the
    Participant’s base salary in effect on the earlier of (i)
    the last day of the Plan Year or
    (ii) December 31st

    of such Plan Year, not taking into account any deferrals of base
    salary that such Participant may make to a 401(k) plan, a
    Section 125 plan or any other deferred compensation plan;
    provided, however, that the term “Salary” shall not,
    in any event, with respect to any Participant, exceed $2,000,000.



 



    (q) “Target Performance Award”
    shall mean the targeted Performance Award, expressed as
    a percentage of Salary as set forth in Section 4 hereof.



 


		
	
    3.  
	
    GOVERNANCE




 



    The Plan shall be governed by the Committee. The Committee shall
    have the exclusive authority and responsibility to:
    (a) interpret the Plan; (b) determine amounts to be
    paid out under the Plan and the conditions for payment thereof;
    (c) certify attainment of Performance Goals and other
    material terms; (d) adjust Performance Awards as provided
    herein; (e) authorize the payment of all benefits and
    expenses of the Plan as they become payable under the Plan;
    (f) adopt, amend and rescind rules and regulations relating
    to the Plan; and (g) make all other determinations and take
    all other actions necessary or desirable for the Plan’s
    administration, including, without limitation, correcting any
    defect, supplying any omission or reconciling any inconsistency
    in this Plan in the manner and to the extent it shall deem
    necessary to carry this Plan into effect. Notwithstanding
    anything to the contrary, the Plan shall be administered on a
    day-to-day
    basis by the Chief Executive Officer and the Vice President of
    Human Resources of the Company.



 



    Decisions of the Committee shall be made by a majority of its
    members. All decisions of the Committee on any question
    concerning the interpretation and administration of the Plan
    shall be final, conclusive, and binding upon all parties. The
    Committee may rely on information and consider recommendations
    provided by the Board or the executive officers of the Company.



 


		
	
    4.  
	
    ELIGIBLE
    PARTICIPANTS; TARGET PERFORMANCE AWARD




 



    The eligible Participants and the Target Performance Awards for
    such Participants are as follows:



 


	 	 	 	 	 
	
 
	
 
	
    Target
    Performance

    

	
    Positions
	
 
	
    Awards (% of
    Salary)

	
    


	 

	

    Chief Executive Officer


	
 
	
 
	
    150
	
    %

	

    President


	
 
	
 
	
    120
	
    %

	

    Chief Financial Officer


	
 
	
 
	
    50
	
    %

	

    Sr. Vice Presidents


	
 
	
 
	
    45
	
    %











 


		
	
    5.  
	
    PERFORMANCE GOALS
    AND PERFORMANCE AWARDS




 



    5.1 Performance Goals.  The
    Performance Goals shall be the budgeted Revenue and
    Net-Income-After-Tax for the subject Plan Year, which shall be
    weighted as follows (collectively, the “Target Weighting of
    Revenue and Net-Income-After-Tax”):



 


	 	 	 	 	 
	

    Revenue


	
 
	
 
	
    35
	
    %

	

    Net-Income-After-Tax


	
 
	
 
	
    65
	
    %











 



    5.2 Performance Awards.  Subject to
    compliance with Section 5.4 herein, each Participant shall
    be eligible to receive a Performance Award based on the
    Company’s financial performance for Revenue and
    Net-Income-After-Tax during the Plan Year.





    

    2








 







    Participants’ Annual Performance Awards will be calculated
    by applying the following percentage adjustment methodology
    separately to the respective Target Weighting of Revenue and
    Net-Income-After-Tax results in accordance with the following
    chart:



 


	 	 	 
	
    Percentage of
    Budgeted

    
	
 
	
    Percentage by
    which the

    

	
    Fiscal Year
    Targets Achieved

    
	
 
	
    Target Weighting
    of

    

	
    for Revenue and
    for

    
	
 
	
    Revenue and
    Net-Income-After-

    

	
    Net-Income-After-Tax
	
 
	
    Tax is
    Reduced/Increased

	
    


	 

	

    Less than 80%


	
 
	
    No Performance Award

	

    80% — 100%


	
 
	
    2.5 times the percentage (negative) difference between the
    actual achieved percentages of budgeted Revenue and
    Net-Income-After-Tax targets and 100% of the Revenue and
    Net-Income-After-Tax targets

	

    100%


	
 
	
    No Adjustment to Target Weighting

	

    101% — 120%


	
 
	
     (Amounts over 120% shall not be considered for purposes of this
    calculation) 2.5 times the percentage (positive) difference
    between the actual achieved percentages of budgeted Revenue (up
    to 120%) and Net-Income-After-Tax targets and 100% of the
    Revenue and Net-Income-After-Tax targets











 




    Example
    A — Budget Performance (100% Target Payout)



 


	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
 
	
 
	
 
	
 
	
 
	
 
	
    Percentage

    
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
    Difference

    
	
 
	
 
	
 
	
    Percentage

    
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
    between

    
	
 
	
 
	
 
	
    Adjustment

    
	
 
	
 
	
 
	
 

	
    Performance

    
	
 
	
 
	
 
	
 
	
 
	
    Actual and

    
	
 
	
 
	
 
	
    to Target

    
	
 
	
    Target

    
	
 
	
    Actual

    

	
    Goals
	
 
	
    Budget
	
 
	
    Actual
	
 
	
    Budget
	
 
	
    Factor
	
 
	
    Weighting
	
 
	
    Weighting
	
 
	
    Weighting

	
    


	 

	

    Revenue


	
 
	
    $
	
    100.00
	
 
	
 
	
    $
	
    100.00
	
 
	
 
	
 
	
    0
	
    %
	
 
	
 
	
    n/a
	
 
	
 
	
 
	
    0
	
    %
	
 
	
 
	
    35
	
    %
	
 
	
 
	
    35
	
    %

	

    Net Income


	
 
	
    $
	
    10.00
	
 
	
 
	
    $
	
    10.00
	
 
	
 
	
 
	
    0
	
    %
	
 
	
 
	
    n/a
	
 
	
 
	
 
	
    0
	
    %
	
 
	
 
	
    65
	
    %
	
 
	
 
	
    65
	
    %

	

    Total percentage applied to individual target performance
    awards


	
 
	
 
	
    100
	
    % 









 




    Example
    B — 105% Target Payout



 


	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
 
	
 
	
 
	
 
	
 
	
 
	
    Percentage

    
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
    Difference

    
	
 
	
 
	
 
	
    Percentage

    
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
    between

    
	
 
	
 
	
 
	
    Adjustment

    
	
 
	
 
	
 
	
 

	
    Performance

    
	
 
	
 
	
 
	
 
	
 
	
    Actual and

    
	
 
	
 
	
 
	
    to Target

    
	
 
	
    Target

    
	
 
	
    Actual

    

	
    Goals
	
 
	
    Budget
	
 
	
    Actual
	
 
	
    Budget
	
 
	
    Factor
	
 
	
    Weighting
	
 
	
    Weighting
	
 
	
    Weighting

	
    


	 

	

    Revenue


	
 
	
    $
	
    100.00
	
 
	
 
	
    $
	
    102.00
	
 
	
 
	
 
	
    +2
	
    %
	
 
	
 
	
    2.5
	
 
	
 
	
 
	
    +5
	
    %
	
 
	
 
	
    35
	
    %
	
 
	
 
	
    36.75
	
    %

	

    Net Income


	
 
	
    $
	
    10.00
	
 
	
 
	
    $
	
    10.20
	
 
	
 
	
 
	
    +2
	
    %
	
 
	
 
	
    2.5
	
 
	
 
	
 
	
    +5
	
    %
	
 
	
 
	
    65
	
    %
	
 
	
 
	
    68.25
	
    %

	

    Total percentage applied to individual target performance
    awards


	
 
	
 
	
    105
	
    %









 




    Example
    C — 95% Target Payout



 


	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
 
	
 
	
 
	
 
	
 
	
 
	
    Percentage

    
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
    Difference

    
	
 
	
 
	
 
	
    Percentage

    
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
    between

    
	
 
	
 
	
 
	
    Adjustment

    
	
 
	
 
	
 
	
 

	
    Performance

    
	
 
	
 
	
 
	
 
	
 
	
    Actual and

    
	
 
	
 
	
 
	
    to Target

    
	
 
	
    Target

    
	
 
	
    Actual

    

	
    Goals
	
 
	
    Budget
	
 
	
    Actual
	
 
	
    Budget
	
 
	
    Factor
	
 
	
    Weighting
	
 
	
    Weighting
	
 
	
    Weighting

	
    


	 

	

    Revenue


	
 
	
    $
	
    100.00
	
 
	
 
	
    $
	
    98.00
	
 
	
 
	
 
	
    −2
	
    %
	
 
	
 
	
    2.5
	
 
	
 
	
 
	
    −5
	
    %
	
 
	
 
	
    35
	
    %
	
 
	
 
	
    33.25
	
    %

	

    Net Income


	
 
	
    $
	
    10.00
	
 
	
 
	
    $
	
    9.80
	
 
	
 
	
 
	
    −2
	
    %
	
 
	
 
	
    2.5
	
 
	
 
	
 
	
    −5
	
    %
	
 
	
 
	
    65
	
    %
	
 
	
 
	
    61.75
	
    %

	

    Total percentage applied to individual target performance
    awards


	
 
	
 
	
    95
	
    %











    

    3








 








    Example
    D — 98.5% Target Payout



 


	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
 
	
 
	
 
	
 
	
 
	
 
	
    Percentage

    
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
    Difference

    
	
 
	
 
	
 
	
    Percentage

    
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
    between

    
	
 
	
 
	
 
	
    Adjustment

    
	
 
	
 
	
 
	
 

	
    Performance

    
	
 
	
 
	
 
	
 
	
 
	
    Actual and

    
	
 
	
 
	
 
	
    to Target

    
	
 
	
    Target

    
	
 
	
    Actual

    

	
    Goals
	
 
	
    Budget
	
 
	
    Actual
	
 
	
    Budget
	
 
	
    Factor
	
 
	
    Weighting
	
 
	
    Weighting
	
 
	
    Weighting

	
    


	 

	

    Revenue


	
 
	
    $
	
    100.00
	
 
	
 
	
    $
	
    102.00
	
 
	
 
	
 
	
    +2
	
    %
	
 
	
 
	
    2.5
	
 
	
 
	
 
	
    +5
	
    %
	
 
	
 
	
    35
	
    %
	
 
	
 
	
    36.75
	
    %

	

    Net Income


	
 
	
    $
	
    10.00
	
 
	
 
	
    $
	
    9.80
	
 
	
 
	
 
	
    −2
	
    %
	
 
	
 
	
    2.5
	
 
	
 
	
 
	
    −5
	
    %
	
 
	
 
	
    65
	
    %
	
 
	
 
	
    61.75
	
    %

	

    Total percentage applied to individual target performance
    awards


	
 
	
 
	
    98.5
	
    %









 



    Following final calculations of the Company’s financial
    performance during the relevant Plan Year, data shall be
    presented to the Chief Executive Officer which shall set forth
    the Participants’ Performance Awards calculated in
    accordance with the Plan. The Chief Executive Officer shall
    review the data for all Participants, apply any Discretionary
    Adjustments applicable pursuant to Section 5.3, and then
    prepare final recommendations for the Committee.



 



    5.3 Discretionary Adjustment.  For
    Participants other than the Chief Executive Officer and the
    President, the Chief Executive Officer may recommend a
    discretionary increase (the “Discretionary
    Adjustment”) to a Participant’s Performance Award of
    up to 50% of the Participant’s Target Performance Award
    calculated in accordance with the provisions of
    Sections 5.1 and 5.2, subject to review and approval by the
    Committee. The Chief Executive Officer and the President shall
    not be eligible to receive a discretionary Performance Award
    adjustment pursuant to this Section 5.3.



 



    5.4 Form and Timing Of Payment; Committee
    Certification.  The Performance Awards will be
    paid in cash to the Participants who are to receive such
    payments as soon as practicable after the award amounts are
    approved and certified in writing by the Committee; provided,
    however, that the Performance Awards shall be paid no later than
    March 15th following the end of the Plan Year to which such
    Performance Awards relate.



 


		
	
    6.  
	
    CHANGE IN
    STATUS




 



    In the event that a Participant remains employed with the
    Company but is no longer eligible to receive a Performance Award
    during the Plan Year, whether due to a promotion, demotion or
    lateral move, the Participant shall be entitled to a Pro Rata
    portion of the Performance Award for which
    he/she was
    eligible under this Plan, subject to the terms of
    Section 5.4, based upon the length of time the Participant
    served in the eligible position, in which case such Performance
    Award (a) shall be determined after the end of the Plan
    Year during which the change in eligibility status occurs based
    solely on the actual results of the Company for such full Plan
    Year, and (b) shall not exceed a Pro Rata portion of the
    actual Performance Award which the Participant would otherwise
    have been eligible to receive under this Plan with respect to
    the Plan Year in which the change in eligibility status occurs
    had the Participant remained eligible to receive a Performance
    Award for the full Plan Year.



 




    7.  TERMINATION
    OF EMPLOYMENT



 



    Notwithstanding anything herein to the contrary, subject to
    Sections 5.4 and 14 of this Plan, the provisions of this
    Section 7 shall apply in the event of the termination of
    employment of a Participant.



 



    7.1 Termination by the Company for
    Cause.  In the event that a Participant’s
    employment is terminated by the Company for Cause (as such term
    is defined under such Participant’s employment agreement
    with the Company), any Performance Award for the Plan Year in
    which the termination occurs will be automatically forfeited by
    the Participant.



 



    7.2 Resignation or Voluntary Termination by the
    Participant Other Than for Good Reason.  In
    the event that a Participant resigns or otherwise voluntarily
    terminates employment with the Company for any reason (other
    than by reason of retirement from the Company in accordance with
    Company policy
    and/or any
    agreement between the Company and the Participant, which is
    addressed in paragraph 7.4 below, or as a result of the
    Chief Executive Officer, President or Chief Financial Officer
    terminating
    his/her
    employment for Good Reason (as such term is defined in their
    employment agreements with the Company)), any Performance Award
    for the Plan Year in which the termination occurs will be
    automatically forfeited by the Participant unless the Chief
    Executive Officer, in his






    

    4








 







    sole and absolute discretion, decides to grant a Performance
    Award for such Plan Year to such Participant, in which case such
    Performance Award (a) shall be determined after the end of
    the Plan Year during which the termination occurs based solely
    on the actual results of the Company for such full Plan Year,
    and (b) shall not exceed a Pro Rata portion of the actual
    Performance Award which the Participant would otherwise have
    been eligible to receive under this Plan with respect to the
    Plan Year in which the termination occurs had the Participant
    remained employed with the Company for the full Plan Year.



 



    7.3 Termination by the Company without Cause, by the
    Participant for Good reason, or as a Result of the Death or
    Disability of the Participant.  In the event
    that a Participant’s employment is terminated (a) by
    the Company without Cause (as such term is defined under such
    Participant’s employment agreement with the Company),
    (b) by the Participant, but only in the case of the Chief
    Executive Officer, President or Chief Financial Officer, for
    Good Reason (as such term is defined in their employment
    agreements with the Company)), or (c) as a result of the
    death or disability (as such term is defined under such
    Participant’s employment agreement with the Company) of the
    Participant, then such Participant (or such Participant’s
    estate, as applicable), shall be entitled to receive a Pro Rata
    portion of the actual Performance Award which the Participant
    would otherwise have been eligible to receive under this Plan
    with respect to the Plan Year in which the termination occurs
    had the Participant remained employed with the Company for the
    full Plan Year; provided, however, that such Performance Award
    shall not be determined until after the end of the Plan Year
    during which the termination occurs and shall be based solely on
    the actual results of the Company for such full Plan Year.



 



    7.4 Termination as a Result of the Retirement of the
    Participant.  In the event that a
    Participant’s employment is terminated as a result of the
    retirement of the Participant in accordance with Company policy
    on a date following the 90th day of then current Company fiscal
    year, the Participant shall be entitled to receive a Pro Rata
    portion of the actual Performance Award which the Participant
    would otherwise have been eligible to receive under this Plan
    with respect to the Plan Year in which the termination occurs
    had the Participant remained employed with the Company for the
    full Plan Year; provided, however, that such Performance Award
    shall not be determined until after the end of the Plan Year
    during which the termination occurs and shall be based solely on
    the actual the results of the Company for such full Plan Year.
    No Performance Award or Pro Rata portion thereof shall be due or
    payable to a Participant whose employment is terminated as a
    result of a retirement that is effective prior to the 90th day
    of the then current Company fiscal year.



 


		
	
    8.  
	
    NON-ASSIGNABILITY




 



    No Performance Award under this Plan or payment thereof, nor any
    right or benefit under this Plan, shall be subject to
    anticipation, alienation, sale, assignment, pledge, encumbrance,
    garnishment, execution or levy of any kind or charge, and any
    attempt to anticipate, alienate, sell, assign, pledge, encumber
    and to the extent permitted by applicable law, charge, garnish,
    execute upon or levy upon the same shall be void and shall not
    be recognized or given effect by the Company.



 


		
	
    9.  
	
    NO RIGHT TO
    EMPLOYMENT




 



    Nothing in the Plan or in any notice of award pursuant to the
    Plan shall confer upon any person the right to continue in the
    employment of the Company or one of its subsidiaries or
    affiliates nor affect the right of the Company or any of its
    subsidiaries or affiliates to terminate the employment of any
    Participant.



 


		
	
    10.  
	
    AMENDMENT OR
    TERMINATION




 



    The Board reserves the right, in its sole discretion, to amend,
    modify, suspend, discontinue, or terminate the Plan or to adopt
    a new plan in place of this Plan at any time; provided, however,
    that:



 


			
	 	    i. 
	
    no such amendment shall, without the prior approval of the
    stockholders of the Company in accordance with applicable law to
    the extent required under Code Section 162(m),




 


			
	 	    • 
	
    alter the Performance Goals as set forth in Section 5.1;

	 
	 	    • 
	
    increase the maximum amounts set forth in Section 5.2 and
    Section 5.3;






    

    5








 






 


			
	 	    • 
	
    change the class of eligible employees or the Target Performance
    Awards (% of Salary) set forth in Section 4; or

	 
	 	    • 
	
    implement any change to a provision of the Plan requiring
    stockholder approval in order for the Plan to continue to comply
    with the requirements of the Code Section 162(m) Exception;




 


			
	 	    ii. 
	
    no amendment, suspension, or termination shall, without the
    consent of the Participant, alter or impair a Participant’s
    right to receive payment of a Performance Award for a Plan Year
    otherwise payable hereunder; and

	 
	 	    iii. 
	
    in the event of any conflict between the terms of this Plan and
    the terms of any employment, compensation or similar agreement
    between the Company and a Participant, the terms of the
    employment, compensation or similar agreement between the
    Company and the Participant shall prevail.




 


		
	
    11.  
	
    SEVERABILITY




 



    In the event that any one or more of the provisions contained in
    the Plan shall, for any reason, be held to be invalid, illegal
    or unenforceable, in any respect, such invalidity, illegality or
    unenforceability shall not affect any other provision of the
    Plan and the Plan shall be construed as if such invalid, illegal
    or unenforceable provisions had never been contained therein.



 


		
	
    12.  
	
    WITHHOLDING




 



    The Company shall have the right to make such provisions as it
    deems necessary or appropriate to satisfy any obligations it may
    have to withhold federal, state, or local income or other taxes
    incurred by reason of payments pursuant to the Plan.



 


		
	
    13.  
	
    GOVERNING
    LAW




 



    This Plan and any amendments thereto shall be construed,
    administered, and governed in all respects in accordance with
    the laws of the State of Florida (regardless of the law that
    might otherwise govern under applicable principles of conflict
    of laws).



 


		
	
    14.  
	
    REGULATORY
    PROVISIONS




 



    This Plan is not intended to provide for deferral of
    compensation for purposes of Code Section 409A, by means of
    complying with
    Section 1.409A-1(b)(4)
    of the final Treasury regulations issued under Code
    Section 409A. The provisions of this Plan shall be
    interpreted in a manner that satisfies the requirements of
    Section 1.409A-1(b)(4)
    of the final Treasury regulations issued under Code
    Section 409A and the Plan shall be operated accordingly. If
    any provision of this Plan or any term or condition of any
    Performance Award would otherwise frustrate or conflict with
    this intent, the provision, term or condition will be
    interpreted and deemed amended so as to avoid this conflict.



 



    In the event that following the application of the immediately
    preceding paragraph, any Performance Award is subject to Code
    Section 409A, the provisions of Code Section 409A are
    hereby incorporated herein by reference to the extent necessary
    for any Performance Award that is subject to Code
    Section 409A to comply therewith. In such event, the
    provisions of this Plan shall be interpreted in a manner that
    satisfies the requirements of Code Section 409A and the Plan
    shall be operated accordingly. If any provision of this Plan or
    any term or condition of any Performance Award would otherwise
    frustrate or conflict with this intent, the provision, term or
    condition will be interpreted and deemed amended so as to avoid
    this conflict.



 



    Notwithstanding any other provision of this Plan, if a
    Participant is not employed by the Company on the last day of
    the Plan Year to which a Performance Award relates, the maximum
    Performance Award payable to such Participant shall not exceed
    the “Pro-Rata Performance Award.” For this purpose,
    the term “Pro-Rata Performance Award” shall mean the
    Performance Award, if any, that would have been payable by the
    Company to such Participant for the Plan Year if and to the
    extent that the performance goals for such Plan Year have been
    met, if the Participant had been employed by the Company
    throughout the entire Plan Year, multiplied by a fraction, the
    numerator of which shall be the number of days from the first
    day of the Plan Year through and including the date of
    termination of employment and the denominator of which shall be
    the total number of days in the Plan Year.





    

    6