exv10w11wb









    Exhibit 10.11(b)




 




    2006
    STOCK INCENTIVE PLAN

    FOR KEY EMPLOYEES OF

    HCA HOLDINGS, INC. AND ITS AFFILIATES,

    AS AMENDED AND RESTATED





 



    1.  Purpose of Plan



 



    The 2006 Stock Incentive Plan for Key Employees of HCA Holdings,
    Inc. and its Affiliates, as amended and restated (the
    “Plan”) is designed:



 



    (a) to promote the long term financial interests and growth
    of HCA Holdings, Inc. (the “Company”) and its
    Subsidiaries by attracting and retaining management and other
    personnel and key service providers with the training,
    experience and ability to enable them to make a substantial
    contribution to the success of the Company’s business;



 



    (b) to motivate management personnel by means of
    growth-related incentives to achieve long range goals; and



 



    (c) to further the alignment of interests of participants
    with those of the stockholders of the Company through
    opportunities for increased stock, or stock-based ownership in
    the Company.




 



    2.  Definitions



 



    As used in the Plan, the following words shall have the
    following meanings:



 



    (a) “Affiliate” means with respect
    to any Person, any entity directly or indirectly controlling,
    controlled by or under common control with such Person.



 



    (b) “Board” means the Board of
    Directors of the Company.



 



    (c) “Change in Control” means in
    one or more of a series of transactions (i) the transfer or
    sale of all or substantially all of the assets of the Company
    (or any direct or indirect parent of the Company) to an
    Unaffiliated Person (as defined below); (ii) a merger,
    consolidation, recapitalization or reorganization of the Company
    (or any direct or indirect parent of the Company) with or into
    another Unaffiliated Person, or a transfer or sale of the voting
    stock of the Company (or any direct or indirect parent of the
    Company), an Investor, or any Affiliate of any of the Investors
    to an Unaffiliated Person, in any such event that results in
    more than 50% of the common stock of the Company (or any direct
    or indirect parent of the Company) or the resulting company
    being held by an Unaffiliated Person; or (iii) a merger,
    consolidation, recapitalization or reorganization of the Company
    (or any direct or indirect parent of the Company) with or into
    another Unaffiliated Person, or a transfer or sale by the
    Company (or any direct or indirect parent of the Company), an
    Investor or any Affiliate of any of the Investors, in any such
    event after which the Investors and their Affiliates
    (x) collectively own less than 15% of the Common Stock of
    and (y) collectively have the ability to appoint less than
    50% of the directors to the Board (or any resulting company
    after a merger). For purposes of this definition, the term
    “Unaffiliated Person” means a Person or Group
    who is not an Investor, an Affiliate of any of the Investors or
    an entity in which any Investor holds, directly or indirectly, a
    majority of the economic interest in such entity.



 



    (d) “Code” means the United States
    Internal Revenue Code of 1986, as amended.



 



    (e) “Committee” means either
    (i) the Compensation Committee of the Board or,
    (ii) the Board, if the Board takes an action in place of
    the Compensation Committee.



 



    (f) “Common Stock” or
    “Share” means the common stock, par
    value $0.01 per share, of the Company, which may be authorized
    but unissued, or issued and reacquired.



 



    (g) “Employee” means a person,
    including an officer, in the regular employment of the Company
    or any other Service Recipient who, in the opinion of the
    Committee, is, or is expected to have involvement






    

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    in the management, growth or protection of some part or all of
    the business of the Company or any other Service Recipient.



 



    (h) “Exchange Act” means the
    Securities Exchange Act of 1934, as amended.



 



    (i) “Fair Market Value” means, on a
    per Share basis, on any given date, the closing trading price of
    the Common Stock on the New York Stock Exchange, unless
    otherwise determined by the Board.



 



    (j) “Grant” means an award made to
    a Participant pursuant to the Plan and described in
    Section 5, including, without limitation, an award of a
    Stock Option, Stock Appreciation Right, Other Stock-Based Award,
    Dividend Equivalent Right, Non-Employee Director Grants or
    Performance-Based Awards (as such terms are defined in
    Section 5), or any combination of the foregoing.



 



    (k) “Grant Agreement” means an
    agreement between the Company and a Participant that sets forth
    the terms, conditions and limitations applicable to a Grant.



 



    (l) “Group” means
    “group,” as such term is used for purposes of
    Section 13(d) or 14(d) of the Exchange Act.



 



    (m) “Investors” means,
    collectively, Bain Capital Fund IX, L.P., KKR Millennium
    Fund, L.P., and ML Global Private Equity Fund, L.P.



 



    (n) “Management Stockholder’s
    Agreement” shall mean that certain Management
    Stockholder’s Agreement between the applicable Participant
    and the Company.



 



    (o) “Participant” means an
    Employee, non-employee member of the Board, consultant or other
    person having a service relationship with the Company or any
    other Service Recipient, to whom one or more Grants have been
    made and remain outstanding.



 



    (p) “Person” means
    “person,” as such term is used for purposes of
    Section 13(d) or 14(d) of the Exchange Act.



 



    (q) “Public Offering” means any
    registered public offering of the Common Stock on the New York
    Stock Exchange or the NASDAQ National Market or other nationally
    recognized stock exchange or listing system.



 



    (r) “Sale Participation Agreement”
    shall mean that certain Sale Participation Agreement between the
    applicable Participant and Hercules Holdings II, LLC.



 



    (s) “Service Recipient” shall mean,
    the Company, any Subsidiary of the Company, or any Affiliate of
    the Company that satisfies the definition of “service
    recipient” within the meaning of Proposed Treasury
    Regulation Section 1.409A-1(g)
    (or any successor regulation), with respect to which the person
    is a “service provider” (within the meaning of
    Proposed Treasury
    Regulation Section 1.409A-1(f)
    (or any successor regulation).



 



    (t) “Subsidiary” means any
    corporation or other entity in an unbroken chain of corporations
    or other entities beginning with the Company if each of the
    corporations or other entities, or group of commonly controlled
    corporations or other entities, other than the last corporation
    or other entity in the unbroken chain then owns stock or other
    equity interests possessing 50% or more of the total combined
    voting power of all classes of stock or other equity interests
    in one of the other corporations or other entities in such chain.




 



    3.  Administration of Plan



 



    (a) The Plan shall be administered by the Committee, which
    may delegate its duties and powers in whole or in part to any
    subcommittee thereof consisting solely of at least two
    individuals who are intended to qualify as “Non-Employee
    Directors” within the meaning of
    Rule 16b-3
    under the Exchange Act (or any successor rule thereto),
    “independent directors” within the meaning of the New
    York Stock Exchange listed company rules and “outside
    directors” within the meaning of Section 162(m) of the
    Code (or any successor section thereto), to the extent
    Rule 16b-3
    under the Exchange Act and Section 162(m) of the Code,
    respectively, are






    

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    applicable to the Company and the Plan; provided,
    however, that the Board may, in its sole discretion, take
    any action designated to the Committee under this Plan as it may
    deem necessary. The Committee may delegate to the Chief
    Executive Officer and to other senior officers of the Company
    its duties under the Plan, subject to applicable law and such
    conditions and limitations as the Committee shall prescribe,
    except that only the Committee may designate and make Grants to
    Participants.



 



    (b) The Committee may adopt its own rules of procedure, and
    action of a majority of the members of the Committee taken at a
    meeting, or action taken without a meeting by unanimous written
    consent, shall constitute action by the Committee. The Committee
    shall have the power and authority to administer, construe and
    interpret the Plan, and to make rules for carrying it out and to
    make changes in such rules. The Committee may correct any defect
    or supply any omission or reconcile any inconsistency in the
    Plan in the manner and to the extent the Committee deems
    necessary or desirable. Any such interpretations, rules, and
    administration shall be consistent with the basic purposes of
    the Plan. The Committee shall have the full power and authority
    to establish the terms and conditions of any Grant consistent
    with the provisions of the Plan and to waive any such terms and
    conditions at any time (including, without limitation,
    accelerating or waiving any vesting conditions).



 



    (c) The Committee may employ counsel, consultants,
    accountants, appraisers, brokers or other persons. The
    Committee, the Company, and the officers and directors of the
    Company shall be entitled to rely upon the advice, opinions or
    valuations of any such persons. All actions taken and all
    interpretations and determinations made by the Committee in good
    faith shall be final and binding upon all Participants and their
    beneficiaries or successors. No member of the Committee, nor
    employee or representative of the Company shall be personally
    liable for any action, determination or interpretation made in
    good faith with respect to the Plan or the Grants, and all such
    members of the Committee, employees and representatives shall be
    fully protected and indemnified to the greatest extent permitted
    by applicable law by the Company with respect to any such
    action, determination or interpretation.




 



    4.  Eligibility



 



    The Committee may from time to time make Grants under the Plan
    to such Employees, or other persons having a relationship with
    Company or any other Service Recipient, and in such form and
    having such terms, conditions and limitations as the Committee
    may determine. The terms, conditions and limitations of each
    Grant under the Plan shall be set forth in a Grant Agreement, in
    a form approved by the Committee, consistent, however, with the
    terms of the Plan; provided, however, that such
    Grant Agreement shall contain provisions dealing with the
    treatment of Grants in the event of the termination of
    employment or other service relationship, death or disability of
    a Participant, and may also include provisions concerning the
    treatment of Grants in the event of a Change in Control of the
    Company.




 



    5.  Grants



 



    From time to time, the Committee will determine the forms and
    amounts of Grants for Participants. Such Grants may take the
    following forms in the Committee’s sole discretion:



 



    (a) Stock Options — These are
    options to purchase Common Stock (“Stock
    Options”). At the time of Grant the Committee shall
    determine, and shall include in the Grant Agreement or other
    Plan rules, the option exercise period, the option exercise
    price, vesting requirements, and such other terms, conditions or
    restrictions on the grant or exercise of the option as the
    Committee deems appropriate including, without limitation, the
    right to receive dividend equivalent payments on vested options.
    Notwithstanding the foregoing, the exercise price per Share of a
    Stock Option shall in no event be less than the Fair Market
    Value on the date the Stock Option is granted (subject to later
    adjustment pursuant to Section 8 hereof). In addition to
    other restrictions contained in the Plan, a Stock Option granted
    under this Section 5(a) may not be exercised more than
    10 years after the date it is granted. Payment of the Stock
    Option exercise price shall be made (i) in cash,
    (ii) with the consent of the Committee, in Shares (any such
    Shares valued at Fair Market Value on the date of exercise)
    having an aggregate Fair Market Value equal to the aggregate
    exercise price for the Shares being purchased and that the
    Participant has held for at least six months (or such other
    period of time as may be required to attain tax or financial
    reporting






    

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    treatments that are not considered to be adverse to the
    Company), (iii) through the withholding of Shares (any such
    Shares valued at Fair Market Value on the date of exercise)
    otherwise issuable upon the exercise of the Stock Option in a
    manner that is compliant with applicable law, (iv) if there
    is a public market for the Shares at such time, to the extent
    permitted by, and subject to such rules as may be established by
    the Committee, through delivery of irrevocable instructions to a
    broker to sell Shares obtained upon the exercise of the Option
    and to deliver promptly to the Company an amount out of the
    proceeds of such sale equal to the aggregate exercise price for
    the Shares being purchased, or (v) a combination of the
    foregoing methods, in each such case in accordance with the
    terms of the Plan, the Grant Agreement and of any applicable
    guidelines of the Committee in effect at the time.



 



    (b) Stock Appreciation Rights — The
    Committee may grant “Stock Appreciation Rights”
    (as hereinafter defined) independent of, or in connection with,
    the grant of a Stock Option or a portion thereof. Each Stock
    Appreciation Right shall be subject to such other terms as the
    Committee may determine. The exercise price per Share of a Stock
    Appreciation Right shall in no event be less than the Fair
    Market Value on the date the Stock Appreciation Right is
    granted. Each “Stock Appreciation Right” granted
    independent of a Stock Option shall be defined as a right of a
    Participant, upon exercise of such Stock Appreciation Right, to
    receive an amount equal to the product of (i) the excess of
    (A) the Fair Market Value on the exercise date of one Share
    over (B) the exercise price per Share of such Stock
    Appreciation Right, multiplied by (ii) the number of Shares
    covered by the Stock Appreciation Right. Payment of the Stock
    Appreciation Right shall be made in Shares or in cash, or partly
    in Shares and partly in cash (any such Shares valued at the Fair
    Market Value on the date of the payment), all as shall be
    determined by the Committee.



 



    (c) Other Stock-Based Awards — The
    Committee may grant or sell awards of Shares, awards of
    restricted Shares and awards that are valued in whole or in part
    by reference to, or are otherwise based on the Fair Market Value
    of, Shares (including, without limitation, restricted stock
    units). Such “Other Stock-Based Awards” shall be in
    such form, and dependent on such conditions, as the Committee
    may determine, including, without limitation, the right to
    receive, or vest with respect to, one or more Shares (or the
    equivalent cash value of such Shares) upon the completion of a
    specified period of service, the occurrence of an event
    and/or the
    attainment of performance objectives. Other Stock-Based Awards
    may be granted alone or in addition to any other Grants under
    the Plan. Subject to the provisions of the Plan, the Committee
    shall determine to whom and when Other Stock-Based Awards will
    be made, the number of Shares to be awarded under (or otherwise
    related to) such Other Stock-Based Awards; whether such Other
    Stock-Based Awards shall be settled in cash, Shares or a
    combination of cash and Shares; and all other terms and
    conditions of such awards (including, without limitation, the
    vesting provisions thereof and provisions ensuring that all
    Shares so awarded and issued shall be fully paid and
    non-assessable).



 



    (d) Dividend Equivalent Rights —
    The Committee may grant Dividend Equivalent Rights either alone
    or in connection with the grant of a Stock Option, SAR, Other
    Stock Based Award, or other grant provided for in
    Section 5(e) below. A “Dividend Equivalent Right”
    shall be the right to receive a payment in respect of one Share
    (whether or not subject to a Stock Option) equal to the amount
    of any dividend paid in respect of one Share held by a
    shareholder in the Company. Each Dividend Equivalent Right shall
    be subject to such terms as the Committee may determine. All
    dividend or dividend equivalents which are not paid currently
    may, at the Committee’s discretion, accrue interest, be
    reinvested into additional Shares, or, in the case of dividends
    or dividend equivalents credited in connection with
    Performance-Based Awards be credited as additional
    Performance-Based Awards and paid to the Participant if and
    when, and to the extent that, payment is made pursuant to such
    Grant. The total number of Shares available for grant under
    Section 6 shall not be reduced to reflect any dividends or
    dividend equivalents that are reinvested into additional Shares
    or credited as Performance-Based Awards.



 



    (e) Director Grants.  The Board may
    provide that all or a portion of any member of the Board’s
    annual retainer, meeting fees
    and/or other
    awards or compensation as determined by the Board, be payable
    (either automatically or at the election of such member) in the
    form of non-qualified Stock Options, restricted shares,
    restricted share units
    and/or Other
    Stock-Based Awards, including unrestricted Shares. The Board
    shall determine the terms and conditions of any such Grants,
    including the terms and






    

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    conditions which shall apply upon a termination of such Board
    member’s service as a member of the Board, and shall have
    full power and authority in its discretion to administer such
    Grants, subject to the terms of the Plan and applicable law.



 



    (f) Performance-Based Awards.



 



    (i) During any period when Section 162(m) of the Code
    is applicable to the Company and the Plan, the Committee, in its
    sole discretion, may grant Grants which are denominated in
    Shares or cash (which, for the avoidance of doubt, may include a
    Grant of Stock Options, Stock Appreciation Rights, Other
    Stock-Based Awards or Dividend Equivalent Rights) (such Grants,
    “Performance-Based Awards”), which Grants may,
    but for the avoidance of doubt are not required to, be granted
    in a manner which is intended to be deductible by the Company
    under Section 162(m) of the Code (or any successor section
    thereto). Such Performance-Based Awards shall be in such form,
    and dependent on such conditions, as the Committee shall
    determine, including, without limitation, the right to receive,
    or vest with respect to, one or more Shares or the cash value of
    the Grant upon the completion of a specified period of service,
    the occurrence of an event
    and/or the
    attainment of performance objectives. Performance-Based Awards
    may be granted alone or in addition to any other Grants granted
    under the Plan. Subject to the provisions of the Plan, the
    Committee shall determine to whom and when Performance-Based
    Awards will be made, the number of Shares or aggregate amount of
    cash to be awarded under (or otherwise related to) such
    Performance-Based Awards, whether such Performance-Based Awards
    shall be settled in cash, Shares or a combination of cash and
    Shares, and all other terms and conditions of such Grants
    (including, without limitation, the vesting provisions thereof
    and provisions ensuring that all Shares so awarded and issued,
    to the extent applicable, shall be fully paid and
    non-assessable).



 



    (ii) A Participant’s Performance-Based Award shall be
    determined based on the attainment of written performance goals
    approved by the Committee for a performance period established
    by the Committee (A) while the outcome for that performance
    period is substantially uncertain and (B) no more than
    90 days after the commencement of the performance period to
    which the performance goal relates or, if less, the number of
    days which is equal to 25 percent of the relevant
    performance period. The performance goals, which must be
    objective, shall be based upon one or more of the following
    criteria: (i) consolidated income before or after taxes
    (including income before interest, taxes, depreciation and
    amortization); (ii) EBITDA; (iii) adjusted EBITDA;
    (iv) operating income; (v) net income; (vi) net
    income per Share; (vii) book value per Share;
    (viii) return on members’ or shareholders’
    equity; (ix) expense management; (x) return on
    investment; (xi) improvements in capital structure;
    (xii) profitability of an identifiable business unit or
    product; (xiii) maintenance or improvement of profit
    margins; (xiv) stock price; (xv) market share;
    (xvi) revenue or sales; (xvii) costs;
    (xviii) cash flow; (xix) working capital;
    (xx) multiple of invested capital; (xxi) total return;
    and (xxii) such other objective performance criteria as
    determined by the Committee in its sole discretion, to the
    extent such criteria would be a permissible performance criteria
    under Section 162(m) of the Code. The foregoing criteria
    may relate to the Company, one or more of its Subsidiaries or
    one or more of its or their divisions or units, or any
    combination of the foregoing, and may be applied on an absolute
    basis and/or
    be relative to one or more peer group companies or indices, or
    any combination thereof, all as the Committee shall determine.
    The Committee may appropriately adjust any evaluation of
    performance under criteria set forth in this Section 5(f)
    to exclude any of the following events that occurs during a
    performance period: (1) gains or losses on sales of assets
    (2) asset impairments or write-downs, (3) litigation
    or claim judgments or settlements, (4) the effect of
    changes in tax law, accounting principles or other such laws or
    provisions affecting reported results, (5) accruals for
    reorganization and restructuring programs, (6) any
    extraordinary non-recurring items as described in Financial
    Accounting Standards Board (“FASB”) Accounting
    Standards Codification (“ASC”) Topic
    225-20
    and/or in
    management’s discussion and analysis of financial condition
    and results of operations appearing in the Company’s annual
    report to stockholders for the applicable year, and (7) the
    effect of adverse or delayed federal, state or local
    governmental or regulatory action; provided that the Committee
    commits to make any such adjustments within the 90 days
    following the commencement of each performance period (or such
    other time as may be required or permitted by
    Section 162(m) of the Code).





    

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    (iii) The maximum amount of a Performance-Based Award
    during a fiscal year to any Participant shall be: (x) with
    respect to Performance-Based Awards that are denominated in
    Shares,
    1,000,0001

    per fiscal year and (y) with respect to Performance-Based
    Awards that are denominated in cash, $5,000,000 per fiscal year.
    To the extent that a Performance-Based Award may be earned over
    a period that is longer than one fiscal year, the foregoing
    limitations shall apply to each full or partial fiscal year
    during or in which such Grant may be earned.



 



    (iv) The Committee shall determine whether, with respect to
    a performance period, the applicable performance goals have been
    met with respect to a given Participant and, if they have,
    during any period when Section 162(m) of the Code is
    applicable to the Company and the Plan and such
    Performance-Based Award is intended to be deductible by the
    Company under Section 162(m) of the Code, shall so certify
    and ascertain the amount of the applicable Performance-Based
    Award. No Performance-Based Awards will be paid for such
    performance period until such certification, to the extent
    applicable, is made by the Committee. The amount of the
    Performance-Based Award actually paid to a given Participant may
    be less than the amount determined by the applicable performance
    goal formula, at the discretion of the Committee. The amount of
    the Performance-Based Award determined by the Committee for a
    performance period shall be paid to the Participant at such time
    as determined by the Committee in its sole discretion after the
    end of such performance period; provided, however, that a
    Participant may, if and to the extent permitted by the Committee
    and consistent with the provisions of Sections 162(m) and
    409A of the Code, to the extent applicable, elect to defer
    payment of a Performance-Based Award.




 



    6.  Limitations and Conditions




 



    (a) The number of Shares available for Grants under this
    Plan shall be the sum of
    (i) 40,000,0001

    and (ii) the number of shares available for grant under the
    Plan as of the end of the day that is the Effective Date of the
    amendment and restatement of this Plan, subject to adjustment as
    provided for in Sections 8 and 9, unless restricted by
    applicable law. The number of Shares with respect to which
    Incentive Stock Options may be granted after the Effective Date
    shall be no more than 1,000,000 per fiscal year. Shares related
    to Grants that are forfeited, terminated, settled for cash,
    canceled without the delivery of Shares, expire unexercised,
    withheld to satisfy tax withholding obligations or exercise
    prices, or are repurchased by the Company shall immediately
    become available for new Grants.




 



    (b) Grants may, in the discretion of the Committee, be made
    under the Plan in assumption of, or in substitution for,
    outstanding awards previously granted by the Company or any of
    its Subsidiaries or a company acquired by the Company or with
    which the Company combines. The number of Shares underlying
    awards made in assumption of, or in substitution for,
    outstanding awards previously granted by a company acquired by
    the Company or any of its Subsidiaries or with which the Company
    or any of its Subsidiaries combines shall not be counted against
    the aggregate number of Shares available for Grants under the
    Plan, nor shall the Shares subject to such substitute awards
    become available for new Grants under the circumstances
    described in the prior paragraph of this Section 3. In
    addition, in the event that a company acquired by the Company or
    any of its Subsidiaries or with which the Company or any of its
    Subsidiaries combines has shares available under a pre-existing
    plan approved by shareholders and not adopted in contemplation
    of such acquisition or combination, the shares available for
    grant pursuant to the terms of such pre-existing plan (as
    adjusted, to the extent appropriate, using the exchange ratio or
    other adjustment or valuation ratio or formula used in such
    acquisition or combination to determine the consideration
    payable to the holders of common stock of the entities party to
    such acquisition or combination) may be used for Grants and
    shall not reduce the Shares authorized for issuance under the
    Plan; provided that Grants using such available shares shall not
    be made after the date awards or grants could have been made
    under the terms of the pre-existing plan, absent the acquisition
    or combination, and shall only be made to individuals who were
    not employees or directors of the Company or any of its
    Subsidiaries prior to such acquisition or combination.



 



    (c) No Grants shall be made under the Plan beyond ten years
    after the Effective Date, but the terms of Grants made on or
    before the expiration of the Plan may extend beyond such
    expiration. At the time a Grant




 

 


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    is made or amended or the terms or conditions of a Grant are
    changed in accordance with the terms of the Plan or the Grant
    Agreement, the Committee may provide for limitations or
    conditions on such Grant.



 



    (d) Nothing contained herein shall affect the right of the
    Company or any other Service Recipient to terminate any
    Participant’s employment or other service relationship at
    any time or for any reason.



 



    (e) Other than as specifically provided in the Management
    Stockholder’s Agreement or Sale Participation Agreement, if
    applicable to a Grant, no benefit under the Plan shall be
    subject in any manner to anticipation, alienation, sale,
    transfer, assignment, pledge, encumbrance, or charge, and any
    attempt to do so shall be void. If no Management
    Stockholder’s Agreement or Sale Participation Agreement is
    applicable to a Grant, then except as otherwise provided in the
    Plan, a Grant Agreement, or by the Committee at or after grant,
    no Grant shall be assigned, alienated, pledged, attached, sold
    or otherwise transferred or encumbered by a Participant, except
    by will or the laws of descent and distribution;
    provided, however, that no such transfer of a Grant by
    will or by laws of descent and distribution shall be effective
    to bind the Company unless the Company shall have been furnished
    with written notice thereof and an authenticated copy of the
    will and/or
    such other evidence as the Committee may deem necessary or
    appropriate to establish the validity of the transfer. No
    benefit under the Plan shall, prior to receipt thereof by the
    Participant, be in any manner liable for or subject to the
    debts, contracts, liabilities, engagements, or torts of the
    Participant.



 



    (f) Participants shall not be, and shall not have any of
    the rights or privileges of, stockholders of the Company in
    respect of any Shares purchasable or deliverable in connection
    with any Grant unless and until certificates representing any
    such Shares have been issued by the Company to such Participants
    (or book entry representing such Shares has been made and such
    Shares have been deposited with the appropriate registered
    book-entry custodian). All certificates, if any, evidencing
    Shares or other securities of the Company delivered under the
    Plan pursuant to any Grant or the exercise thereof shall be
    subject to such stop transfer orders and other restrictions as
    the Committee may deem advisable under the Plan or the rules,
    regulations, and other requirements of the Securities and
    Exchange Commission or other applicable governmental authority,
    any stock exchange or market upon which such securities are then
    listed, admitted or quoted, as applicable, and any applicable
    Federal, state or any other applicable laws, and the Committee
    may cause a legend or legends to be put on any such certificates
    to make appropriate reference to such restrictions.



 



    (g) No election as to benefits or exercise of any Grant may
    be made during a Participant’s lifetime by anyone other
    than the Participant except by a legal representative appointed
    for or by the Participant.



 



    (h) Absent express provisions to the contrary, any Grant
    under this Plan shall not be deemed compensation for purposes of
    computing benefits or contributions under any retirement or
    severance plan of the Company or other Service Recipient and
    shall not affect any benefits under any other benefit plan of
    any kind now or subsequently in effect under which the
    availability or amount of benefits is related to level of
    compensation. This Plan is not a “Retirement Plan” or
    “Welfare Plan” under the Employee Retirement Income
    Security Act of 1974, as amended.



 



    (i) Unless the Committee determines otherwise, no benefit
    or promise under the Plan shall be secured by any specific
    assets of the Company or any other Service Recipient, nor shall
    any assets of the Company or any other Service Recipient be
    designated as attributed or allocated to the satisfaction of the
    Company’s obligations under the Plan. Neither the Plan nor
    any Grant shall create or be construed to create a fiduciary
    relationship between the Company or any Subsidiary or Affiliate
    and a Participant or any other Person. To the extent that any
    Person acquires a right to receive payments from the Company or
    any Subsidiary or Affiliate pursuant to a Grant, such right
    shall be no greater than the right of any unsecured general
    creditor of the Company or any Subsidiary or Affiliate.



 



    (j) The Committee may, in its sole discretion, specify in
    any Grant made on or after the Effective Date of the amendment
    and restatement of the Plan that the Participant’s rights,
    payments, and benefits shall be subject to reduction,
    cancellation, forfeiture or recoupment upon the occurrence of
    certain specified events, in addition to any otherwise
    applicable vesting or performance conditions of a Grant. Such
    events may include, but shall not be limited to, termination of
    Employment for cause, termination of the Participant’s
    provision of services to the Company or any of its Subsidiaries,
    breach of noncompetition, confidentiality, or other






    

    7








 







    restrictive covenants that may apply to the Participant, or
    restatement of the Company’s financial statements to
    reflect adverse results from those previously released financial
    statements, as a consequence of errors, omissions, fraud, or
    misconduct.




 



    7.  Transfers and Leaves of Absence



 



    For purposes of the Plan, unless the Committee determines
    otherwise: (a) a transfer of a Participant’s
    employment without an intervening period of separation among the
    Company and any other Service Recipient shall not be deemed a
    termination of employment, and (b) a Participant who is
    granted in writing a leave of absence or who is entitled to a
    statutory leave of absence shall be deemed to have remained in
    the employ of the Company (and other Service Recipient) during
    such leave of absence.




 



    8.  Adjustments



 



    In the event after the Effective Date, any Share dividend, Share
    split, extraordinary distribution, reorganization,
    recapitalization, merger, consolidation, spin-off, combination,
    combination or transaction or exchange of Shares, any equity
    restructuring (as defined under FASB ASC Topic 718) or
    other corporate change, or any distribution to Shareholders
    other than regular cash dividends, or any transaction similar to
    any of the foregoing, the Committee shall, in an equitable and
    proportionate manner as it deems reasonably necessary to address
    on an equitable basis the effect of such event, and in such
    manner as is consistent with Sections 162(m), 422, and 409A
    of the Code and the regulations thereunder, make such
    substitution or adjustment, if any, (a) as to the number
    and kind of shares subject to the Plan and available for or
    covered by Grants; (b) as to share prices related to
    outstanding Grants (including, without limitation, the exercise
    price of Stock Options), or by providing for an equivalent award
    in respect of securities of the surviving entity of any merger,
    consolidation, or other transaction or event having a similar
    effect; or (c) by providing for a cash payment to the
    holder of an outstanding Grant, and shall make such other
    revisions to outstanding Grants as it deems, in good faith, are
    equitably required.




 



    9.  Change in Control



 



    (a) Generally.  In the event of a
    Change in Control: (i) if determined by the Committee in
    the applicable Grant Agreement or otherwise determined by the
    Committee in its sole discretion, any outstanding Grants then
    held by Participants which are unexercisable or otherwise
    unvested or subject to lapse restrictions may automatically be
    deemed exercisable or otherwise vested or no longer subject to
    lapse restrictions, as the case may be, as of immediately prior
    to such Change in Control and (ii) the Committee may, to
    the extent determined by the Committee to be permitted under
    Section 409A of the Code, but shall not be obligated to:
    (A) cancel such awards for fair value (as determined in the
    sole discretion of the Committee) which, in the case of Stock
    Options and Stock Appreciation Rights, may equal the excess, if
    any, of the value of the consideration to be paid in the Change
    in Control transaction to holders of the same number of Shares
    subject to such Stock Options or Stock Appreciation Rights (or,
    if no consideration is paid in any such transaction, the Fair
    Market Value of the Shares subject to such Stock Options or
    Stock Appreciation Rights) over the aggregate option price of
    such Stock Options or the aggregate exercise price of such Stock
    Appreciation Rights, as the case may be; (B) provide for
    the issuance of substitute awards that will substantially
    preserve the otherwise applicable terms of any affected Grants
    previously granted hereunder, as determined by the Committee in
    its sole discretion; or (C) provide that for a period
    of at least 15 days prior to the Change in Control, any
    Stock Options or Stock Appreciation Rights shall be exercisable
    as to all Shares subject thereto and that upon the occurrence of
    the Change in Control, such Stock Options or Stock Appreciation
    Rights shall terminate and be of no further force and effect:
    provided, however, that subpart (ii) shall not apply
    to a “Change in Control” under clause (C) of such
    definition that occurs due to a gradual sell down of voting
    stock of the Company by the Investors or their Affiliates.



 



    (b) Performance-Based Awards.  In
    connection with the foregoing, the Committee may, in its
    discretion, provide that in the event of a Change in Control,
    (i) any outstanding Performance-Based Awards relating to
    performance periods ending prior to the Change in Control which
    have been earned but not paid shall become immediately payable
    and (ii) all
    then-in-progress
    performance periods for Performance-Based Awards that are
    outstanding shall end, and either (A) any or all
    Participants shall be deemed to have earned an award equal to






    

    8








 







    the relevant target award opportunity for the performance period
    in question, or (B) at the Committee’s discretion, the
    Committee shall determine the extent to which performance
    criteria have been met with respect to each such
    Performance-Based Award.




 



    10.  Amendment and Termination; Section 409A
    of the Code



 



    (a) The Committee shall have the authority to make such
    amendments to any terms and conditions applicable to outstanding
    Grants as are consistent with this Plan, provided that no
    amendment may modify Grants that disadvantages Participants in
    more than a de minimis way but less than a material way without
    approval by a majority of affected Participants; and
    provided, further, that no such action shall
    modify any Grant in a manner that materially disadvantages a
    Participant with respect to any outstanding Grants, other than
    pursuant to Section 8 or 9 hereof, without the
    Participant’s consent, except as such modification is
    provided for or contemplated in the terms of the Grant or this
    Plan.



 



    (b) The Board may amend, suspend or terminate the Plan,
    except that no such action, other than an action under
    Section 8 or 9 hereof, may be taken which would, without
    stockholder approval, increase the aggregate number of Shares
    available for Grants under the Plan, decrease the price of
    outstanding Grants, change the requirements relating to the
    Committee, extend the term of the Plan, or otherwise require the
    approval of the stockholder of the Company to the extent such
    approval is (i) required by or (ii) desirable to
    satisfy the requirements of, in each case, any applicable law,
    regulation or other rule, including, the listing standards of
    the securities exchange, which is, at the applicable time, the
    principal market for the Shares. However, no amendment,
    suspension or termination of the Plan may disadvantage
    Participants in more than a de minimis way but less than a
    material way without approval by a majority of affected
    Participants, and no such action shall materially disadvantage a
    Participant with respect to any outstanding Grants, other than
    pursuant to Section 8 or 9 hereof, without the
    Participant’s consent, except as otherwise contemplated in
    the terms of the Grant or the Plan.



 



    (c) This Plan and all Grants granted hereunder are intended
    to comply with Section 409A of the Code and will be
    interpreted in a manner intended to comply with
    Section 409A of the Code. References under the Plan or any
    Grants to the Participant’s termination of Employment shall
    be deemed to refer to the date upon which the Participant has
    experienced a “separation from service” within the
    meaning of Section 409A of the Code. Notwithstanding
    anything herein to the contrary, (a) if at the time of the
    Participant’s separation from service with any Service
    Recipient the Participant is a “specified employee” as
    defined in Section 409A of the Code, and the deferral of
    the commencement of any payments or benefits otherwise payable
    hereunder as a result of such separation from service is
    necessary in order to prevent the imposition of any accelerated
    or additional tax under Section 409A of the Code, then the
    Company will defer the commencement of the payment of any such
    payments or benefits hereunder (without any reduction in such
    payments or benefits ultimately paid or provided to the
    Participant) until the date that is six months and one day
    following the Participant’s separation from service with
    all Service Recipients (or the earliest date as is permitted
    under Section 409A of the Code), if such payment or benefit
    is payable upon a termination of Employment and (b) if any
    other payments of money or other benefits due to the Participant
    hereunder would cause the application of an accelerated or
    additional tax under Section 409A of the Code, such
    payments or other benefits shall be deferred, if deferral will
    make such payment or other benefits compliant under
    Section 409A of the Code, or otherwise such payment or
    other benefits shall be restructured, to the minimum extent
    necessary, in a manner, reasonably determined by the Board, that
    does not cause such an accelerated or additional tax or result
    in an additional cost to the Company (without any reduction in
    such payments or benefits ultimately paid or provided to the
    Participant). Unless otherwise provided in a Grant Agreement or
    any other agreement between the Company or any of its
    Subsidiaries and any Participant, the Company shall not be
    liable to any Participant for any tax, interest, or penalties
    that Participant might owe as a result of the grant, holding,
    vesting, exercise, or payment of any Grant under the Plan.




 



    11.  Governing Law; International Participants



 



    (a) This Plan shall be governed by and construed in
    accordance with the laws of Delaware applicable therein.





    

    9








 







    (b) With respect to Participants who reside or work outside
    the United States of America, the Committee may, in its sole
    discretion, amend the terms of the Plan or awards with respect
    to such Participants in order to conform such terms with the
    requirements of local law or to obtain more favorable tax or
    other treatment for a Participant, the Company or any other
    Service Recipient.



 



    12.  Withholding Taxes



 



    The Company shall have the right to deduct from any payment made
    under the Plan any federal, state or local income or other taxes
    required by law to be withheld with respect to such payment. It
    shall be a condition to the obligation of the Company to deliver
    Shares upon the exercise of a Stock Option that the Participant
    pays to the Company such amount as may be requested by the
    Company for the purpose of satisfying any liability for such
    withholding taxes; provided, however, that a Participant
    may satisfy the statutory amount of such taxes due upon exercise
    of any Stock Option through the withholding of Shares (valued at
    Fair Market Value on the date of exercise) otherwise issuable
    upon the exercise of such Stock Option. For awards other than
    Stock Options, the Committee may in its discretion permit a
    Participant to satisfy or arrange to satisfy, in whole or in
    part, the tax obligations incident to an Grant by:
    (a) electing to have the Company withhold Shares or other
    property otherwise deliverable to such Participant pursuant to
    the Grant (provided, however, that the amount of any Shares so
    withheld shall not exceed the amount necessary to satisfy
    required federal, state local and foreign withholding
    obligations using the minimum statutory withholding rates for
    federal, state, local
    and/or
    foreign tax purposes, including payroll taxes, that are
    applicable to supplemental taxable income)
    and/or
    (b) tendering to the Company Shares owned by such
    Participant (or by such Participant and his or her spouse
    jointly) and purchased or held for the requisite period of time
    as may be required to avoid the Company’s or the
    Affiliates’ or Subsidiaries’ incurring an adverse
    accounting charge, based, in each case, on the Fair Market Value
    of the Shares on the payment date as determined by the
    Committee. All such elections shall be irrevocable, made in
    writing, signed by the Participant, and shall be subject to any
    restrictions or limitations that the Committee, in its sole
    discretion, deems appropriate.



 



    13.  Effective Date and Termination Dates



 



    The Plan shall be effective on March 9, 2011, (the “Effective Date”) and shall
    terminate ten years later, subject to earlier termination by the
    Board pursuant to Section 10. Unless otherwise expressly
    provided in the Plan or in an applicable Grant Agreement, any
    Grant made hereunder may, and the authority of the Board or the
    Committee to amend, alter, adjust, suspend, discontinue or
    terminate any such Grant or to waive any conditions or rights
    under any such Grant shall, continue after the tenth anniversary
    of the Effective Date.





    

    10