**Exhibit4.4**

 

**AMENDEDAND RESTATED**

**2000EMPLOYEE STOCK PLANOF MAGNETEK, INC.**

**JANUARY1, 2008**

 

MAGNETEK, INC., a corporation organized under the lawsof the State of Delaware hereby adopts this 2000 Employee Stock Plan ofMagneTek, Inc. The purposes of this Plan are as follows:

 

(1)             To further the growth, development and financial successof the Company by providing additional incentives to its Employees byassisting them to become owners of capital stock of the Company and thus tobenefit directly from its growth, development and financial success.

 

(2)             To enable theCompany to obtain and retain the services of the type of professional, technicaland managerial employees considered essential to the long-range success of theCompany by providing and offering them an opportunity to become owners ofcapital stock of the Company under awards of restricted and unrestricted stock,performance units, stock appreciation rights, restricted stock rights andoptions, including non-qualified stock options.

 

**ARTICLE I**

 

**DEFINITIONS AND RULES OF CONSTRUCTION**

** **

**SECTION 1.1**                                                                          RULES OF CONSTRUCTION

 

Asused herein, the masculine pronoun shall include the feminine and neuter andthe singular shall include the plural, where the context so indicates. Titlesare provided herein for convenience only and are not to serve as a basis forinterpretation or construction of this Plan.

 

**SECTION 1.2**                                                                          DEFINITIONSAs used 

 

herein:

 

*Award*shall mean any Options, StockAppreciation Rights and/or Restricted Stock Rights granted under this Plan and/orRestricted Stock, Stock Awards and/or Performance Units issued under this Plan.

 

***Board***shall mean theBoard of Directors of the Company.

 

*Code*shall mean the Internal Revenue Codeof 1986, as amended.

 

*Committee*shallmean the Compensation Committee of the Board, appointed as provided in Section 11.1.

 

***Company***shallmean MagneTek, Inc. In addition, *Company*shall mean any corporation assuming, or issuing new employee stockoptions in substitution for, options outstanding under this Plan.

 

*Director*shall mean a member of the Board.

 

***Employee***shallmean any employee (as defined in accordance with the Regulations thenapplicable under Section 3401(c) of the Code) of the Company, or ofany corporation which is then a Parent Corporation or a Subsidiary, whethersuch employee is so employed at the time this Plan is adopted or becomes soemployed subsequent to the adoption of this Plan.

 

 

 

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***Exchange****Act*shall mean the Securities Exchange Actof 1934, as amended.

 

*Fair Market Value*of a Share on a given determination date shall be: the closing price fora Share reported for that date bythe New York Stock Exchange (or such other stock exchange or quotation systemon which Shares are then listed or quoted) or, if no Shares are traded on theNew York Stock Exchange (or such other stock exchange or quotation system) onthe date in question, then for the next preceding date for which Shares tradedon the New York Stock Exchange (or such other stock exchange orquotation system).

 

***Non-QualifiedOption***shall mean an Option that is not subject to thetax treatment provided for under Section 422 of the Code.

 

*Officer*shall mean an officer of the Company, any ParentCorporation or any Subsidiary. ***Option***

*** ***

shall mean an option to purchase capital stock of theCompany granted under this Plan. ***Optionee***

*** ***

shallmean an Employee to whom an Option is granted under this Plan.

 

*Parent Corporation*shall mean any corporation that is a “parent” of the Company within the meaningof Rule 405 under the Securities Act.

 

*Participant*shall mean an Employee who shall have been granted an Award.

 

***Performance Period***shallmean a period of time determined by the Committee over which the performancegoals associated with a Performance Unit are to be achieved.

 

*Plan*shallmean this 2000 Employee Stock Plan of MagneTek, Inc.

 

*Restricted Period*shall mean the period of time for which Restricted Stock or aRestricted Stock Right is subject to forfeiture or other Restrictionspursuant to this Plan.

 

*Restricted Stock*shall mean capital stockof the Company issued pursuant to Articles VII and VIII of this Plan.

 

*Restricted Stockholder*shall mean a personto whom Restricted Stock has been issued under this Plan.

 

*Restricted Stock Right*shall mean a rightto be issued Shares, granted pursuant to Articles VII and VIII of this Plan.

 

***Restrictions***shallmean the restrictions on Restricted Stock or Restricted Stock Rights imposed bythe Committee by the terms of an individual Restricted Stock Agreement orRestricted Stock Right Agreement and shall include the requirement that suchRestricted Stock or Restricted Stock Rights be forfeited back to, or subject tomandatory repurchase by, the Company upon a Termination of Employment for thereasons specified in such Restricted Stock Agreement or Restricted Stock RightAgreement.

 

*Secretary*shallmean the Secretary of the Company.

 

*SecuritiesAct*shall mean the Securities Act of 1933, as amended.

 

***Shares***shallmean shares of the Company’s Common Stock, $.01 par value.

 

***Sub-Committee***shallmean any Sub-Committee, comprised of one or more individuals, of the Committeeappointed as provided in Section 11.1.

 

 

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***Stock Appreciation Right***shallmean a stock appreciation right granted under this Plan.

 

*Stock Award*shallmean an award of capital stock of the Company pursuant to Article IX ofthis Plan.

 

***Subsidiary***shallmean any corporation of which the Company has “control” within the meaning of Rule 405under the Securities Act.

 

***Termination****of**Employment***shall mean the time when the employee-employerrelationship between the Participant and the Company, a Parent Corporation or aSubsidiary is terminated for any reason, with or without cause, including, butnot by way of limitation, a termination by resignation, discharge, death orretirement, but excluding terminations where there is a simultaneousreemployment by the Company, a Parent Corporation or a Subsidiary. TheCommittee, in its absolute discretion, shall determine the effect of allmatters and questions relating to Termination of Employment, including, but notby way of limitation, the question of whether a Termination of Employment resulted from a discharge for goodcause, and all questions of whether particular leaves of absence constituteTerminations of Employment.

 

**ARTICLE II**

 

**SHARES SUBJECT TO PLAN**

** **

**SECTION **2.1                         SHARES SUBJECT TO PLAN

 

The aggregate number of Shares which may be issuedupon exercise of Options and Stock Appreciation Rights or as Restricted Stockor Stock Awards or at the end of the term of Restricted Stock Rights shall notexceed 1,500,000 Shares.

 

**SECTION 2.2                         UNEXERCISED OPTIONS**

** **

If any Option expires or is canceled without havingbeen fully exercised, the number of shares subject to such Option but as towhich such Option was not exercised prior to its expiration or cancellation mayagain be optioned or issued upon exercise of Stock Appreciation Rights or asRestricted Stock or Stock Awards or issued at the end of the term of RestrictedStock Rights hereunder, subject to the limitations of Section 2.1.

 

**SECTION 23                          EXERCISED STOCKAPPRECIATION RIGHTS**

** **

To the extent that a Stock Appreciation Right shallhave been exercised, the number of shares subject to any related Option, orportion thereof, may again be optioned hereunder, subject to the limitations ofSection 2.1.

 

**SECTION 2.4                         FORFEITED RESTRICTEDSTOCK**

** **

Any shares of Restricted Stock forfeited to theCompany pursuant to Restrictions may again be optioned or issued upon exerciseof Stock Appreciation Rights or as Restricted Stock or Stock Awards or issuedat the end of the term of Restricted Stock Rights hereunder, subject to thelimitations of Section 2.1.

 

**SECTION 2.5                         FORFEITED RESTRICTEDSTOCK RIGHTS**

** **

Any Shares relating to Restricted Stock Rightsforfeited to the Company pursuant to Restrictions may again be optioned orissued upon exercise Stock Appreciation Rights or as Restricted Stock or StockAwards or issued at the end of the term of Restricted Stock Rights hereunder,subject to the limitations of Section 2.1.

 

**SECTION 2.6                         CHANGES IN COMPANY’SSHARES**

** **

In theevent that the outstanding Shares are hereafter changed into or exchanged for adifferent number or kind of shares or other securities of the Company, or ofanother corporation, by reason of reorganization, merger, consolidation,recapitalization, reclassification, stock split-up, stock dividend orcombination of shares,

 

 

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appropriate adjustments shall be made by the Committee in the numberand kind of shares to which Options, Stock Appreciation Rights, RestrictedStock, Stock Awards and Restricted Stock Rights thereafter to be granted orissued under this Plan shall relate, including adjustments of the limitationsin Section 2.1 on the maximum number and kind of shares which may beissued on exercise of Options, as Restricted Stock or Stock Awards or at theend of the term of Restricted Stock Rights.

 

**ARTICLE III**

 

**GRANT OF OPTIONS**

** **

**SECTION 3.1                        ELIGIBILITY**

 

Any Employee of the Company or of any corporationwhich is then a Parent Corporation or a Subsidiaryshall be eligible to be granted Options, except an Officer or Director of theCompany required to file reporting forms pursuant to Section 16 ofthe Exchange Act, and except as provided in Section 11.1(a).

 

**SECTION 3.2                        GRANTING OF OPTIONS**

 

(a)              TheCommittee shall from time to time, in its absolute discretion:

 

(i)            Select from among the Employees (including those to whomOptions, Stock Appreciation Rights and/or Restricted Stock Rights havebeen previously granted and/or Restricted Stock, Stock Awards and/orPerformance Units have previously been issued under this Plan) such of them asin its opinion should be granted Options; and

 

(ii)          Determinethe number of Shares to be subject to such Options granted to such Employees;and

 

(iii)         Determine the terms and conditions ofsuch Options, consistent with this Plan.

 

(b)              Uponthe selection of an Employee to be granted an Option, the Committee shallinstruct the Secretary to issue such Option and may impose such conditions onthe grant of such Option as it deems appropriate. Without limiting thegenerality of the preceding sentence, the Committee may, in its discretion andon such terms as it deems appropriate, require as a condition on the grant ofan Option that the Optionee surrender for cancellation some or all of theunexercised Options which have been previously granted to him. An Option thegrant of which is conditioned upon such surrender may have an Option pricelower (or higher) than the Option price of the surrendered Option, may coverthe same (or a lesser or greater) number of Shares as the surrendered Option,may contain such other terms as the Committee deems appropriate and shall beexercisable in accordance with its terms, without regard to the number ofshares, price, Option period or any other term or condition of the surrenderedOption.

 

**ARTICLE****IV**

 

**TERMS OF OPTIONS**

** **

**SECTION 4.1                        OPTION AGREEMENT**

 

EachOption shall be evidenced by a written Stock Option Agreement, which shall beexecuted by the Optionee and an authorized Officer of the Company and whichshall contain such terms and conditions as the Committee shall determine,consistent with this Plan.

 

**SECTION 4.2                        OPTION PRICE**

 

The purchase priceper share of the Shares subject to each Option granted under this Plan shallequal or exceed 100% of the fair market value of such Stock on the date theOption is granted, except that the exercise price of an Option may be higher orlower in the case of Options granted to an employee of a company acquired bythe Company in assumption and substitution of options held by such employee atthe time such company is acquired.

 

 

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**SECTION 4.3                        COMMENCEMENT OF EXERCISABILITY**

 

(a)             Except as the Committee may otherwise provide, no Optionmay be exercised in whole or in part during the first year after suchOption is granted.

 

(b)           Subject to the provisions of Sections4.3(a) and 4.3(c), Options shall become exercisable at such timesand in such installments (which may be cumulative) as the Committee shallprovide in the terms of each Stock Option Agreement; *provided, however,*that by a resolution adopted after anOption is granted the Committee may, on such terms and conditions as it maydetermine to be appropriate and subject to Section 4.3(c), accelerate thetime at which such Option or any portion thereof may be exercised.

 

(c)           No portion of an Option whichis unexercisable at Termination of Employment shall thereafter becomeexercisable.

 

**SECTION 4.4                        EXPIRATION OF OPTIONS**

 

(a)              NoOption may be exercised to any extent by anyone after the first to occur of thefollowing events:

 

Theexpiration of ten years from the date the Option was granted; or

 

(ii)           Except in the case of any Optionee who is disabled (withinthe meaning of Section 22(e)(3) of the Code), the expirationof three months from the date of the Optionee’s Termination of Employment forany reason other than such Optionee’s death unless the Optionee dies withinsaid three-month period; or

 

(iii)          In the case of anOptionee who is disabled (within the meaning of Section 22(e)(3) ofthe Code), the expiration of one year from the date of the Optionee’sTermination of Employment for any reason other than such Optionee’s deathunless the Optionee dies within said one-year period; or

 

(iv)        The expiration of one year from the dateof the Optionee’s death.

 

(b)              Subjectto the provisions of Section 4.4(a), the Committee shall provide, in theterms of each Stock Option Agreement, when such Option expires and becomesunexercisable. Notwithstanding the foregoing, the Committee may provide in theterms of Stock Option Agreements that Options expire immediately upon aTermination of Employment for any reason.

 

**SECTION 4.5                        CONSIDERATION**

 

In consideration of the granting of the Option, theOptionee shall agree, in the written Stock Option Agreement, to remain in theemploy of the Company, a Parent Corporation or a Subsidiary for a period of atleast one year after the Option is granted. Nothing in this Plan or in anyStock Option Agreement hereunder shall confer upon any Optionee any right tocontinue in the employ of the Company, any Parent Corporation or any Subsidiaryor shall interfere with or restrict in any way the rights of the Company, itsParent Corporations and its Subsidiaries, which are hereby expressly reserved, todischarge any Optionee at any time for any reason whatsoever, with or withoutcause..

 

 

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**SECTION 4.6                        ADJUSTMENTSIN OUTSTANDING OPTIONS**

 

In the event that theoutstanding Shares subject to Options are changed into or exchanged for adifferent number or kind of shares of the Company or other securities of theCompany by reason of merger, consolidation, recapitalization, reclassification,stock split-up, stock dividend or combination of shares, the Committee shallmake an appropriate and equitable adjustment in the number and kind of sharesas to which all outstanding Options, or portions thereof then unexercised,shall be exercisable, to the end that after such event the Optionee’sproportionate interest shall be maintained as before the occurrence of suchevent. Such adjustment in an outstanding Option shall be made without change inthe total price applicable to the Option or the unexercised portion ofthe Option (except for any change in the aggregate price resulting fromrounding-off of share quantities or prices) and with any necessarycorresponding adjustment in Option price per share. Any such adjustment made bythe Committee shall be final and binding upon all Optionees, the Company andall other interested persons. Any adjustment made hereunder shall be made insuch a manner that is consistent with the requirements of Code Section 409Aand that will not affect the status of any Award intended to qualify as an ISOunder Code Section 422 or as “performance based compensation” under Code Section 162(m).

 

**SECTION 4.7                       CHANGE OF CONTROL**

 

(a)             The Committee shall provide by theterms of each Option that, upon or in connection with a Change of Control or aChange of Control Transaction (each as defmed in Section 4.7(c)):

 

(i)         If so provided in the relevant agreementrelating to a Change of Control, such Option shall be either assumed orreplaced by a substitute option, as applicable, issued by the successor orParent Corporation resulting from such Change of Control Transaction, withoutany further action on the part of the Committee or the Optionee, provided thatthe replacement of any Option pursuant to this paragraph shall be made in amanner that is consistent with the requirements of Code Section 409A.

 

(ii)          If no provision is made as set forthin (i), such Option shall either (A) become fully exercisable fromand after the date which is thirty days prior to the effective date of theChange of Control Transaction and until the normal expiration thereof or (B) beconverted automatically into the right to receive, within 30 days of theeffective date of the Change of Control Transaction, an amount in cash equal tothe difference between the aggregate exercise price for all Shares subject tothe Option (whether or not then subject to exercise) and the Fair Market Valueof such Shares on the date which is the last trading date preceding theconsummation of such Change of Control Transaction.

 

(b)             The Committee may make suchdeterminations and adopt such rules and conditions as it, in its absolutediscretion, deems appropriate in connection with (i) any acceleration ofexercisability pursuant to subsection (a)(ii), including, but not by way oflimitation, provisions to ensure that any such acceleration shall be conditionedupon the consummation of the contemplated Change of Control Transaction, and (ii) determinationsregarding whether provisions for. assumption or substitution have been made asdefmed in subsection (a)(i).

 

(c)             Unless the Committee providesotherwise, “Change of Control” means the first to occur of the following:

 

(i)            themerger or consolidation of the Company with or into another corporation;

 

(ii)           the acquisition by another corporation person orgroup of all or substantially all of the Company’s assets or 40% or moreof the Company’s then outstanding voting stock;

 

(iii)          theliquidation or dissolution of the Company; or

 

(iv)          duringany period of 12 consecutive months, individuals who at the beginning of such12-month period constituted the Board (together with any new directors whoseelection by the Board or whose nominationfor election by the stockholders of the Company was approved by a voteof a majority of the directors then still in office who were either directorsat the beginning of such period or whose election or nomination for electionwas previously so approved) cease for any reason to constitute a majority ofthe Board then in office,

 

 

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*provided, however,*that a Change of Control will not be deemed tohave occurred in respect of a merger in which (x) the Company is thesurviving corporation, (y) no person or group acquires 40% or more of theCompany’s outstanding voting stock and (z) the Shares outstanding prior tothe merger remain outstanding thereafter; and *providedfurther,*that a merger or consolidation will not be considered aChange of Control if such transaction results only in the reincorporation ofthe Company in another jurisdiction or its restructuring into holding company form.

 

“Change of Control Transaction”shall mean any tender offer, offer, exchange offer, solicitation, merger,consolidation, reorganization or other transaction that is intended to orreasonably expected to result in a Change of Control.

 

**ARTICLE****V**

 

**EXERCISE OF OPTIONS**

** **

**SECTION 5.1                         PERSONELIGIBLE TO EXERCISE**

 

During the lifetime of Optionee,only he may exercise an Option granted to him, or any portion thereof.After the death of the Optionee, any exercisable portion of an Option may,prior to the time when such portion becomes unexercisable under Section 4.4or Section 4.7, be exercised by his personal representative or by any person empowered to do so under the deceasedOptionee’s will or under the then applicable laws of descent and distribution.

 

**SECTION 5.2                         PARTIALEXERCISE; NO FRACTIONAL SHARES**

 

The Committee may, by the termsof a Stock Option Agreement, require any partial exercise to be withrespect to a specified minimum number of shares. The Company shall not berequired to issue fractional Shares upon the exercise of Options.

 

**SECTION 5.3                         MANNEROF EXERCISE**

 

An exercisable Option, or any exercisable portionthereof, may be exercised solely by delivery to the Secretary or his office ofall of the following prior to the time when such Option or such portion becomesunexercisable under Section 4.4 or Section 4.7:

 

(a)           Noticein writing by the Optionee or other person then entitled to exercise suchOption or portion, stating that such Option or portion is exercised, suchnotice complying with all applicable rules established by the Committee;and

 

(b)           Fullpayment:

 

(i)            By delivery of cash or a check for the Shares withrespect to which such Option or portion is thereby exercised; or

 

(ii)           To the extentprovided by the terms of the Option or otherwise with the consent of theCommittee, by delivery to the Company of Shares owned by the Optionee, dulyendorsed for transfer to the Company by the Optionee or other person thenentitled to exercise the Option or portion thereof, with Fair Market Valuedetermined as of the date of delivery equal to the aggregate Option price ofthe Shares with respect to such Option or portion is thereby exercised;

 

Or

 

(iii)          To the extent provided by the terms of the Option orotherwise with the consent of the Committee, by retention by the Company ofShares to be issued with a Fair Market Value determined as of the date ofissuance equal to the aggregate Option price of the Shares with respect towhich such Option or portion is thereby exercised; or

 

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(iv)         By means of any combination of theconsideration provided in the foregoing subsections (i), (ii) or (iii);and

 

                                   (c)            Onor prior to the date the same is required to be withheld:

 

(i)            Full payment (in cash or by check) of any amount thatmust be withheld by the Company, any Parent Corporation or anySubsidiary for federal, state and/or local tax purposes in connection with theexercise of the Option; or

 

(ii)           To the extent provided by the terms of the Option or otherwise with the consentof the Committee, full payment by delivery to the Company of Sharesowned by the Optionee, duly endorsed for transfer to the Company by theOptionee or other person then entitled to exercise the Option or portionthereof, with a Fair Market Value determined as of the date of delivery equalto the amount that must be withheld by the Company, any Parent Corporation orany Subsidiary for federal, state and/or local tax purposes in connection withthe exercise of the Option; or

 

(iii)          To the extent provided by the terms of the Option or otherwise with theconsent of the Committee, full payment by retention by the Company ofShares to be issued with a Fair Market Value determined as of the date ofissuance equal to the amount that must be withheld by the Company, any ParentCorporation or any Subsidiary for federal, state and/or local tax purposes inconnection with the exercise of the Option; or

 

(iv)          Any combination of payments provided for in the foregoing subsections(i), (ii) or (iii); and

 

   (d)           Suchrepresentations and documents as the Committee, in its absolute discretion,deemsnecessary or advisable to effect compliance with all applicable provisions ofthe Securities Act and any other federal or state securities laws orregulations. The Committee may, in its absolute discretion, also take whateveradditional actions it deems appropriate to effect such compliance including,without limitation, placing legends on Shares certificates and issuingstop-transfer orders to transfer agents and registrars; and

 

   (e)            Inthe event that the Option or portion thereof shall be exercised pursuant to Section 5.1by any person or persons other than the Optionee, appropriate proof of theright of such person or persons to exercise the Option or portion thereof.

 

**SECTION 5.4                        CONDITIONSTO ISSUANCE OF STOCK CERTIFICATES**

 

TheShares issuable and deliverable upon the exercise of any Option, or any portionthereof, may be either previously authorized but unissued Shares or issuedShares which have been reacquired by the Company. The Company shall not berequired to issue or deliver any certificate or certificates for Sharespurchased upon the exercise of any Option or portion thereof prior tofulfillment of all of the following conditions:

 

(a)             Theadmission of such Shares to listing on all stock exchanges on which such classof stock is then listed; and

 

(b)             The completion of any registrationor other qualification of such Shares under any state or federal law or underthe rulings or regulations of the Securities and Exchange Commission or anyother governmental regulatory body, which the Committee shall, in its absolutediscretion, deem necessary or advisable; and

 

(c)             The obtaining of any approval orother clearance from any state or federal governmental agency which the Committeeshall, in its absolute discretion, determine to be necessary or advisable; and

 

(d)             The lapse of such reasonable periodof time following the exercise of the Option as the Committee may establishfrom time to time for reasons of administrative convenience.

 

 

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**SECTION 5.5                        RIGHTS AS SHAREHOLDERS**

 

The holders of Options shall not be, nor have any of therights or privileges of, shareholders of the Company in respect of anyShares purchasable upon the exercise of any part of an Option unless and untilcertificates representing such Shares have been issued by the Company to suchholders.

 

**SECTION 5.6                        NO OPTION REPRICING; NORELOAD OPTIONS**

 

Withoutthe approval of stockholders, the Company shall not (a) reprice anyOptions or (b) provide for “reload options,” which means that unlessapproved by stockholders the Company shall not provide for Options to begranted automatically in connection with and to the extent of the exercise ofother Options. For purposes of this Plan, the term “reprice” means amending,canceling or replacing Options within the meaning of Item 402(i) underSecurities and Exchange Commission Regulation S-K including by (i) reducingthe exercise price of outstanding Options and (ii) canceling outstandingOptions and granting new Options to the holders of canceled Options.

 

**ARTICLE****VI**

 

**STOCK APPRECIATION RIGHTS**

** **

**SECTION 6.1                        ELIGIBILITY**

 

Any Employee of the Company or of any corporationwhich is then a Parent Corporation or a Subsidiary (except as provided in Section 11.1)shall be eligible to be issued Stock Appreciation Rights, except an Officer orDirector of the Company required to file reporting forms pursuant to Section 16of the Exchange Act.

 

**SECTION 6.2                        GRANTING OF STOCKAPPRECIATION RIGHTS**

 

(a)             The Committee shall from time totime, in its absolute discretion:

 

(i)            Select from among the Employees (including those to whomOptions, Stock Appreciation Rights and/or Restricted Stock Rights havebeen previously granted and/or Restricted Stock, Stock Awards and/orPerformance Units have been previously issued) such of them as in its opinionshould be granted Stock Appreciation Rights; and

 

(ii)           Determine theamount of Stock Appreciation Rights to be granted to such selectedEmployees; and

 

(iii)          Determine the terms and conditions applicable tosuch Stock Appreciation Rights, consistent with this Plan.

 

(b)             Stock Appreciation Rights may begranted (i) in connection and simultaneously with the grant ofOptions, (ii) with respect to previously granted Options or (iii) notin connection with Options.

 

**SECTION 6.3                        TERMS AND CONDITIONS**

 

A Stock Appreciation Right shall be subject to suchterms and conditions not inconsistent with this Plan as the Committee shallimpose, including the following:

 

(a)             AStock Appreciation Right granted in connection with a particular Option shallbe exercisable only to the extent the related Option is exercisable.

 

(b)             AStock Appreciation Right granted in connection with a particular Option shallbe granted to the Optionee to the maximum extent of 100% of the number ofShares subject to the Option.

 

 

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(c)             A StockAppreciation Right granted in connection with a particular Option shall entitlethe Optionee (or other person entitled to exercise the Option pursuant to Section 5.1)to surrender unexercised a portion of the Option to which the Stock AppreciationRight relates to the Company and to receive from the Company in exchangetherefor an amount, payable in cash or, in the discretion of the Committee,Shares, determined by multiplying the difference obtained by subtracting theOption exercise price per share of the Company’s Common Stock subject to therelated Option from the Fair Market Value of a Share of the Company’s CommonStock determined as of the date of exercise of the Stock Appreciation Right bythe number of Shares subject to the related Option with respect to which theStock Appreciation Right shall have been exercised.

 

(d)             A StockAppreciation Right not granted in connection with a simultaneously or previouslygranted Option shall entitle the Participant to receive from the Company anamount, payable in cash or, in the discretion of the Committee, Shares,measured by reference to the increase, if any, in the Fair Market Value of theCompany’s Common Stock determined over the period from the date the StockAppreciation Right was granted through and including the date the StockAppreciation Right is exercised.

 

**SECTION 6.4****                                                                     EXERCISEOF STOCK APPRECIATION RIGHTS**

 

No Stock Appreciation Right granted in connection witha particular Option shall be exercisable during the first six months aftergrant.

 

**ARTICLE VII**

 

**ISSUANCE OF RESTRICTED STOCK ANDRESTRICTED STOCK RIGHTS**

** **

**SECTION 7.1****                                                                     ELIGIBILITY**

 

Any Employee of the Company or of any corporationwhich is then a Parent Corporation or a Subsidiary (except as provided in Section 11.1)shall be eligible to be issued Restricted Stock and Restricted Stock Rights,except an Officer or Director of the Company required to file reporting formspursuant to Section 16 of the Exchange Act.

 

**SECTION 7.2****                                                                     ISSUANCE OF RESTRICTED STOCK AND RESTRICTED STOCKRIGHTS**

 

(a)              TheCommittee shall from time to time, in its absolute discretion:

 

(i)            Select from among the Employees (including those to whomOptions, Stock Appreciation Rights and/or Restricted Stock Rights havebeen previously granted and/or Restricted Stock, Stock Awards and/orPerformance Units have been previously issued) such of them as in its opinionshould be issued Restricted Stock and/or granted Restricted Stock Rights; and

 

(ii)           Determine thenumber of shares of Restricted Stock to be issued and the amount of RestrictedStock Rights to be granted to such selected Employees; and

 

(iii)          Determine the terms, conditions and Restrictionsapplicable to such Restricted Stock and Restricted Stock Rights, consistentwith this Plan.

 

(b)             Shares issued as Restricted Stockmay be either previously authorized but unissued Shares or issued Shares whichhave been acquired by the Company. The Committee shall establish the price tobe paid by a Restricted Stockholder for the issuance of Restricted Stock, whichprice shall not be less than the minimum consideration required by applicablelaw.

 

 

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(c)             Shares to be issued at the end of the term of aRestricted Stock Right may be either previously authorized but unissuedShares or issued Shares which have been acquired by the Company. The Committee shall establish the consideration to befurnished by the Participant in exchange for the grant of Restricted StockRights and the issuance of Shares pursuant thereto, which consideration mayinclude services to be rendered to the Company prior to the issuance ofsuch shares.

 

(d)           Upon the selection of an Employee to be issued RestrictedStock or granted Restricted Stock Rights, the Committee shall instruct theSecretary to issue such Restricted Stock or grant such Restricted Stock Rightsand may impose such conditions on the issuance of such Restricted Stock orgrant of such Restricted Stock Rights as it deems appropriate.

 

**ARTICLE VIII**

 

**TERMS OF RESTRICTED STOCK AND RESTRICTED STOCK RIGHTS**

** **

**SECTION 8.1****                                                                     RESTRICTEDSTOCK AGREEMENT**

 

Restricted Stock shall be issued only pursuant to awritten Restricted Stock Agreement, which shall be executed by the RestrictedStockholder and an authorized Officer of the Company and which shall containsuch terms and conditions as the Committee shall determine, consistent withthis Plan.

 

**SECTION 8.2****                                                                       RESTRICTEDSTOCK RIGHT AGREEMENT**

 

Restricted Stock Rights shall be issued only pursuantto a written Restricted Stock Right Agreement, which shall be executed by theParticipant and an authorized Officer of the Company and which shall containsuch terms and conditions as the Committee shall determine, consistent withthis Plan.

 

**SECTION 8.3****                                                                       CONSIDERATION**

 

As partial consideration for the issuance ofRestricted Stock or the grant of Restricted Stock Rights, the Participant shallagree, in the written Restricted Stock Agreement or Restricted Stock RightAgreement, to remain in the employ of the Company, a Parent Corporation or aSubsidiary for a period of at least one year after the Restricted Stock isissued or the Restricted Stock Rights are granted. Nothing in this Plan or inany Restricted Stock Agreement or Restricted Stock Right Agreement hereundershall confer upon any Participant any right to continue in the employ of theCompany, any Parent Corporation or any Subsidiary or shall interfere with orrestrict in any way the rights of the Company, its Parent Corporations and itsSubsidiaries, which are hereby expressly reserved, to terminate or dischargeany Participant at any time. for any reason whatsoever, with orwithout cause.

 

**SECTION 8.4****                                                                       RIGHTSAS SHAREHOLDERS**

 

(a)           Upondelivery of the shares of Restricted Stock to the escrow holder pursuant to Section 8.8,the Restricted Stockholder shall have all the rights of a stockholder withrespect to said shares, subject to the restrictions in his Restricted StockAgreement, including the right to vote the shares and to receive all dividendsor other distributions paid or made with respect to the shares.

 

(b)           Theholder of a Restricted Stock Right shall not be, nor have any of the rights orprivileges of, a shareholder of the Company in respect of any Shares issuableupon the end of the term of a Restricted Stock Right unless and until acertificate representing such Shares has been issued by the Company to suchholder.

 

**SECTION 8.5****                                                                       RESTRICTIONS**

 

All shares of Restricted Stock issued (including anyshares received by holders thereof as a result of stock dividends, stock splitsor any other forms of recapitalization) and all Restricted Stock Rights grantedunder this Plan shall be subject to such Restrictions as the Committee shallprovide in the terms of each individual

 

 

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Restricted Stock Agreement or Restricted Stock Right Agreement; *provided, however,*that by a resolutionadopted after the Restricted Stock is issued or the Restricted Stock Rights aregranted, the Committee may, on such terms and conditions as it maydetermine to be appropriate, remove any or all of the Restrictions imposed bythe terms of the Restricted Stock Agreement or Restricted Stock RightAgreement. All Restrictions shall expire within ten years of the date ofissuance. Restricted Stock may not be sold or encumbered until all Restrictionsare terminated or expire.

 

**SECTION 8.6****                                                                     FORFEITURE**

** **

The Committee shall provide inthe’ terms of each individual Restricted Stock Agreement or Restricted StockRight Agreement that the Restricted Stock or Restricted Stock Rights thensubject to Restrictions be forfeited by the Participant back to theCompany immediately upon a Termination of Employment for any reason during theRestricted Period; *provided, however,*thatprovision may be made that no such forfeiture shall occur in the event of aTermination of Employment because of the Employee’s normal retirement, death,total disability or early retirement with the consent of the Committee.

 

**SECTION 8.7****                                                                     MERGER,CONSOLIDATION, ACQUISITION, LIQUIDATION ORDISSOLUTION**

 

The Committee may provide, in the terms of the individualRestricted Stock Agreement or Restricted Stock Right Agreement, that upon themerger or consolidation of the Company with or into another corporation, theacquisition by another corporation or person of all or substantially all of theCompany’s assets or 40% or more of the Company’s then outstanding voting stockor the liquidation of the Company, the Restrictions relating to some or allshares of Restricted Stock or Restricted Stock Rights then outstanding shallimmediately expire and/or that some or all of such shares or Restricted StockRights shall cease to be subject to forfeiture under Section 8.6.

 

**SECTION 8.8****                                                                     ESCROW**

** **

The Secretary or such other escrow holder as theCommittee may appoint shall retain physical custody of the certificatesrepresenting Restricted Stock until all of the restrictions imposed under theRestricted Stock Agreement expire or shall have been removed; *provided, however,*that in no event shallany Restricted Stockholder retain physical custody of any certificatesrepresenting Restricted Stock issued to him.

 

**SECTION 8.9****                                                                     LEGEND**

** **

In order to enforce the restrictions imposed uponshares of Restricted Stock hereunder, the Committee shall cause a legend orlegends to be placed on certificates representing all shares of Restricted Stockthat are still subject to Restrictions under Restricted Stock Agreements, whichlegend or legends shall make appropriate reference to the conditions imposedthereby.

 

**ARTICLE IX**

 

**ISSUANCE OF STOCK AWARDS**

** **

**SECTION 9.1****                                                                     ELIGIBILITY**

 

Any Employee of the Company or of any corporationwhich is then a Parent Corporation or a Subsidiary (except as provided in Section 11.1)shall be eligible to be issued Stock Awards, except an Officer or Director ofthe Company required to file reporting forms pursuant to Section 16 ofthe. Exchange Act.

 

 

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**SECTION 9.2****                                                                            ISSUANCEOF STOCK AWARDS**

** **

(a)           The Committee shallfrom time to time, in its absolute discretion:

 

(i)           Select from among the Employees (including those to whomOptions, Stock Appreciation Rightsand/or Restricted Stock Rights have been previously granted and/or RestrictedStock, Stock Awards and/or Performance Units have been previously issued) suchof them as in its opinion should be issued Stock Awards; and

 

(ii)          Determine the number of Shares to be issued to suchselected Employees.

 

(b)           Shares issued as Stock Awards may beeither previously authorized but unissued Shares or issued Shares whichhave been acquired by the Company.

 

(c)           Stock Awards shall be issued forlegal consideration (which may include previous or future services, aspermitted by law) but no other payment. Capital stock issued pursuant to aStock Award shall not be subject to Restrictions or forfeiture by the terms ofthis Plan.

 

**ARTICLE X**

 

**ISSUANCE OF PERFORMANCE UNITS**

** **

**SECTION 10.1****                                                                     ELIGIBILITY**

 

Any Employee of the Company or of any corporationwhich is then a Parent Corporation or a Subsidiary (except as provided in Section 11.1)shall be eligible to be issued Performance Units, except an Officer or Directorof the Company required to file reporting forms pursuant to Section 16 ofthe Exchange Act.

 

**SECTION 10.2****                                                                     ISSUANCEOF PERFORMANCE UNITS**

 

TheCommittee shall from time to time, in its absolute discretion:

 

(a)          Select from among the Employees (including those to whomOptions, Stock Appreciation Rights and/or Restricted Stock Rights havebeen previously granted and/or Restricted Stock, Stock Awards and/orPerformance Units have been previously issued) such of them as in its opinionshould be issued Performance Units; and

 

(b)        Determine the terms and conditionsapplicable to such Performance Units, consistent with this Plan.

 

**SECTION 10.3****                                                                     TERMSOF PERFORMANCE UNITS**

 

(a)           At the time that Performance Unitsare issued, the Committee shall designate certain goals for the financial andother business performance of the Company, its Parent Corporations and its.Subsidiaries and the Performance Period over which such goals are to beachieved. Such designated goals must be achieved in order for a Participant toreceive the full value of the Performance Units following the end of thePerformance Period. To the extent earned upon the achievement of suchdesignated goals during the Performance Period, all Performance Units shall bepayable in cash as soon as practicable following the end of the PerformancePeriod, but in no event will payment be made after March 15 of the yearfollowing the year in which the Performance Period ends.

 

(b)           The Committee shall determine theterms and conditions of the Performance Units, consistent with this Plan. TheCommittee shall provide by the terms of each individual Performance Unit thatthe Performance Unit be forfeited by the Participant back to the Companyimmediately upon a Termination of Employment for any reason during thePerformance Period; *provided, however,*thatprovision may be made that no such forfeiture shall occur in the event of aTermination of Employment because of the Participant’s normal retirement,death, total disability or early retirement with the consent of the Committee.

 

 

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**ARTICLE XI**

 

**ADMINISTRATION**

 

**SECTION 11.1****                                                                     COMMITTEE**

 

(a)             This Plan shall be administered by the CompensationCommittee of the Board, as appointed from time to time by the Board, *provided,however,*that (i) with respect to any Award that is intended tosatisfy the conditions of Rule 16b-3 under the Exchange Act, the term “Committee”shall refer to a committee of two or more “non-employeedirectors” as determined for purposes of applying Exchange Act Rule 16b-3;and (ii) with respect to any Award that is intended to qualify as “performance-basedcompensation” within the meaning of Section 162(m) of the Code, theterm “Committee” shall refer to a committee of two or more “outside directors”as determined for purposes of applying Code Section 162(m).Notwithstanding any other provision in this Plan, no Options or StockAppreciation Rights may be granted and no Restricted Stock, Stock Awards orPerformance Units may be issued to any member of the Committee during the termof his membership on the Committee. No person shall be eligible to serve on theCommittee unless he is then a “disinterested person” within the meaning of Rule 16b-3under the Exchange Act, if and as such Rule is then in effect.

 

(b)           Appointmentof Committee members shall be effective upon acceptance of appointment.Committee members may resign at any time by delivering written notice to theBoard. Vacancies in the Committee shall be filled by the Board.

 

(c)           TheBoard or the Committee may from time to time appoint one or more Sub-Committeescomprised of one or more Directors, which Sub-Committee shall have the powersof the Committee described in Articles IIIand *IV*of this Plan except for those powers described inSections 3.2(b), 4.3, 4.6 and 4.7. Each such sub-Committee may besubject to any such additional restrictions or limitations as the Board or theCommittee may impose at any time. Each Sub-Committee so appointed may bedisbanded by the Board or the Committee at any time, *provided*that no such termination shall affect the validity of any Optiontheretofore approved by any such Sub-Committee. The Committee may designate theSecretary of the Company or other Company employees to assist the Committee inthe administration of this Plan, and may grant authority to such persons toexecute agreements evidencing Awards made under this Plan or other documentsentered into under this Plan on behalf of the Committee or the Company.

 

**SECTION 11.2****                                                                     DUTIES AND POWER OF COMMITTEE**

 

It shall be the duty of the Committee to conduct thegeneral administration of this Plan in accordance with its provisions. TheCommittee shall have the power to interpret.this Plan, Options, StockAppreciation Rights, Restricted Stock, Restricted Stock Rights, Stock Awardsand Performance Units and to adopt such rules for the administration,interpretation and application of this Plan as are consistent therewith and tointerpret, amend or revoke any such rules. In its absolute discretion, theBoard may at any time and from time to time exercise any and all rights andduties of the Committee under this Plan.

 

**SECTION 11.3****                                                                     MAJORITY RULE**

 

The Committee shall act by a majority of its membersin office. The Committee may act either by vote at a meeting or by a memorandumor other written instrument signed by a majority of the Committee.

 

**SECTION 11.4****                                                                     COMPENSATION; PROFESSIONAL ASSISTANCE; GOOD FAITHACTIONS**

 

Members of the Committee shall receive such compensationfor their services as members as may be determined by the Board. All expensesand liabilities incurred by members of the Committee in connection with the administration of this Plan shall be borne bythe Company. The Committee may, with the approval of the Board, employattorneys, consultants, accountants, appraisers, brokers or other persons. TheCommittee, the Company and its Officers and Directors shall be entitled to relyupon the advice, opinions or valuations of any such persons. All actions takenand all interpretations and determinations made by the Committee in good faithshall be

 

 

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final and binding upon all Optionees, the Company andall other interested persons. No member of the Committee shall be personally liable for any action,determination or interpretation made in good faith with respect to this Plan orthe Options, and all members of the Committee shall be fully protected by theCompany in respect to any such action, determination or interpretation.

 

**ARTICLE XII**

 

**OTHER PROVISIONS**

** **

**SECTION 12.1****                                                                     RIGHTSNOT TRANSFERABLE**

 

Unless the agreement or other document evidencing anAward (or an amendment thereto authorizedby the Committee) expressly states that the Award is transferable as providedhereunder, no Award granted under this Plan, nor any interest in suchAward, may be sold, assigned, conveyed, gifted, pledged, hypothecated orotherwise transferred in any manner prior to the vesting or lapse of any andall restrictions applicable thereto, otherthan by will or the laws of descent and distribution or pursuant to a “domesticrelations order,” as defined in the Code. The Committee may grant anAward or amend an outstanding Award to provide that the Award is transferableor assignable to a member or members of the Participant’s “immediate family,”as such term is defined in Rule 16a-1(e) under the Exchange Act, orto a trust for the benefit solely of a member or members of the Participant’simmediate family, or to a partnership or other entity whose only owners aremembers of the Participant’s immediate family, *provided*that following any such transfer or assignment the Award will remainsubject to substantially the same terms applicable to the Award while held bythe Participant, as modified as the Committee shall determine appropriate, andthe transferee shall execute an agreement agreeing to be bound by such terms.

 

**SECTION 12.2****                                                                     FINANCING**

 

The Committee may not provide financing to aParticipant to pay the purchase price of any Award or to pay the amount oftaxes required by law to be withheld with respect to any Award.

 

**SECTION ****12.3**                                                                     **AMENDMENT, SUSPENSION OR TERMINATION OF THIS PLAN**

 

This Plan shall become effectiveupon its approval by the Board. Unless earlier suspended or terminated by theBoard, or extended as provided below, no options may be granted after the tenthanniversary of the effective date of this Plan. The Board or the Committee mayfrom time to time extend the effective term of this Plan and otherwise amend this Plan as determinedappropriate, without action by the Company’s’ stockholders except to the extent required by applicable law. References inthis Plan and in writings evidencing and setting the terms of option grantswhich refer to the Code or other applicable law shall also be deemed to referto any applicable successor provisions thereof unless otherwise determined bythe Committee. This Plan may be earlier terminated at such earlier timeas the Board may determine.  Notwithstandingthe foregoing, no amendment, suspension or termination of this Plan or anydocument evidencing an Award under the Plan shall cause all or a part of thepayment under any Award to be subject to additional tax under Code Section 409A.

 

**SECTION 12.4****                                                                     EFFECTOF PLAN UPON OTHER OPTION AND COMPENSATION PLANS**

 

Theadoption of this Plan shall not affect any other compensation or incentiveplans in effect for the Company, any Parent Corporation or any Subsidiary.Nothing in this Plan shall be construed to limit the right of the Company, anyParent Corporation or any Subsidiary (a) to establish any other forms ofincentives or compensation for employees of the Company, and Parent Corporationor any Subsidiary or (b) to grant or assume options, stock appreciationrights or restricted stock rights or to issue or award restricted orunrestricted stock or performance units otherwise than under this Plan inconnection with any proper corporate purpose, including, but not by way oflimitation, the grant or assumption of options, stock appreciation rights orrestricted stock rights or the issuance or award of restricted or unrestrictedstock or performance units in connection with the acquisition by purchase,lease, merger, consolidation or otherwise, of the business, stock or assets ofany corporation, firm or association.

 

 

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**SECTION ****12.5****                                                                     COMPLIANCEWITH CODE SECTION 409A*.***

 

Some of the Awards thatmay be granted pursuant to the Plan (including, but not necessarily limited toRestricted Stock Rights and Performance Units Awards) may be considered to be “non-qualifieddeferred compensation” subject to Code Section 409A.  If an Award is subject to Code Section 409A,the document evidencing such Award and this Plan are intended to comply fullywith and meet all of the requirements of Code Section 409A.  The document evidencing such Award shallinclude such provisions as may be necessary to assure compliance with Code Section 409A.  An Award subject to Code Section 409Aalso shall be administered in good faith compliance with the provisions of CodeSection 409A as well as applicable guidance issued by the Internal RevenueService and the Department of Treasury. To the extent necessary to comply with Code Section 409A, any Awardthat is subject to Code Section 409A may be modified, replaced orterminated in the discretion of the Committee. Notwithstanding any provision of this Plan or any document evidencing anAward to the contrary, in the event that the Committee determines that anyAward is or may become subject to Code Section 409A, the Company may adoptsuch amendments to the Plan and the related documents evidencing any Awards,without the consent of the Participant, or adopt other policies and procedures(including amendments, policies and procedures with retroactive effectivedates), or take any other action that the Committee determines to be necessaryor appropriate to either comply with Code Section 409A or to exclude orexempt the Plan or any Award from the requirements of Code Section 409A.

 

 

 

 

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