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Exhibit 10.5                                          SUNCOKE ENERGY, INC.    LONG-TERM PERFORMANCE ENHANCEMENT PLAN    (Amended and Restated Effective as of February 14, 2018)  





 






1   ARTICLE I  AMENDMENT AND RESTATEMENT    SunCoke Energy, Inc. (the "Company") established the SunCoke Energy, Inc. Long-Term  Performance Enhancement Plan (the "Plan") effective as of July 21, 2011. The Plan was amended and  restated effective February 22, 2013, and is hereby further amended and restated effective as of February  14, 2018, subject to approval by the Company's stockholders at the Company's annual meeting on May  3, 2018. Awards granted prior to the effective date of the Plan's amendment and restatement shall be  governed by the terms of the Plan as in effect on the grant date of the Award.    ARTICLE II  PURPOSE    The purposes of the Plan are to: (a) better align the interests of stockholders and Key Employees  by creating a direct linkage between Participants' rewards and stockholders' gains; (b) provide Key  Employees with the ability to increase equity ownership in the Company; (c) provide competitive  compensation opportunities that can be realized through attainment of performance goals; and  (d) provide an incentive to Key Employees for continued service with the Company.    ARTICLE Ill  DEFINITIONS    As used in this Plan, the following terms shall have the meanings set forth below:    3.1 "Affiliate" means any entity that directly, or indirectly through one or more intermediaries,  controls, is controlled by, or is under common control with the Company.  3.2 "Award' means an Option, Restricted Stock, Share Unit or SAR granted pursuant to the  terms of the Plan.  3.3 "Board of Directors" means the Board of Directors of the Company.    3.4 "Change in Controf' means the occurrence of any of the following events:    (a) The acquisition by any person (within the meaning of Section 13(d)(3) or 14(d)(2) of the  Exchange Act) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the  Exchange Act) of 20% or more of either (i) the then outstanding shares of Common Stock or (ii) the  combined voting power of the then outstanding voting securities of the Company entitled to vote generally  in the election of directors; provided, however, that for purposes of this clause (a), the following  acquisitions shall not constitute a Change in Control: (A) any acquisition directly from the Company, (B)  any acquisition by the Company, (C) any acquisition by any employee benefit plan (or related trust)  sponsored or maintained by the Company or any company controlled by, controlling or under common  control with the Company, or (D) any acquisition by any entity pursuant to a transaction that complies  with clauses (c)(i), (c)(ii) and (c)(iii) of this definition.  (b) Individuals who, as of the date that the Plan becomes effective, constitute the Board of  Directors (the "Incumbent Board') cease for any reason to constitute at least a majority of the Board  of Directors; provided, however, that any individual becoming a director subsequent to the date hereof  whose election, or nomination for election by the stockholders of the Company, was approved by a vote  of at least a majority of the directors then comprising the Incumbent Board shall be considered as though  such individual were a member of the Incumbent Board, but excluding, for this purpose, any such  individual whose initial assumption of office occurs as a result of an actual or threatened election contest  with respect to the election or removal of directors or other actual or threatened solicitation of proxies or  consents by or on behalf of a person other than the Board of Directors.  





 






2   (c) Consummation of a reorganization, merger, statutory share exchange or consolidation or  similar corporate transaction involving the Company or any of its Subsidiaries, a sale or other disposition  of all or substantially all of the assets of the Company or the acquisition of assets or stock of another  entity by the Company or any of its Subsidiaries, in each case unless, following such business  combination:  (i) all or substantially all of the individuals and entities that were the beneficial owners of  the then outstanding Common Stock and the then outstanding Company voting securities  immediately prior to such business combination beneficially own, directly or indirectly, more than  50% of the then outstanding shares of common stock and the combined voting power of the then  outstanding voting securities entitled to vote generally in the election of directors, as the case may  be, of the corporation resulting from such business combination (including, without limitation, a  corporation that, as a result of such transaction, owns the Company or all or substantially all of the  assets of the Company, either directly or through one or more subsidiaries) in substantially the  same proportions as their ownership immediately prior to such business combination of the then  outstanding Common Stock and the then outstanding Company voting securities, as the case may  be;  (ii) no person (excluding any corporation resulting from such business combination or any  employee benefit plan (or related trust) of the Company or such corporation resulting from such  business combination or any of their respective subsidiaries) beneficially owns, directly or indirectly,  20% or more of, respectively, the then outstanding shares of common stock of the corporation  resulting from such business combination or the combined voting power of the then- outstanding  voting securities of such corporation, except to the extent that such ownership existed prior to the  business combination; and  (iii) at least a majority of the members of the board of directors of the corporation resulting  from such business combination were members of the Incumbent Board at the time of the execution  of the initial agreement or of the action of the Board of Directors providing for such business  combination; or    (d) Approval by the stockholders of the Company of a complete liquidation or dissolution of the  Company.    3.5 "Code" means the Internal Revenue Code of 1986, as amended.    3.6 "Committee" means the Compensation Committee of the Board of Directors, as constituted  from time to time. The Compensation Committee shall consist of at least two members of the Board of  Directors, each of whom shall meet applicable requirements set forth in the pertinent regulations under  Section 16 of the Exchange Act.    3.7 "Common Stock'' means common stock, par value $0.01 per share, of the Company.    3.8 "Company" means SunCoke Energy, Inc., a Delaware corporation, or any successor thereto.    3.9 "Exchange Acf' means the Securities Exchange Act of 1934, as amended.    3.10 "Fair Market Value" means the closing price of a share of Common Stock on the New York  Stock Exchange.    3.11 "Incentive Stock Option" or "/SO" means an option granted under Article V that meets the  requirements of Section 422(b) (or any successor provision) of the Code.  





 






3   3.12 "Incumbent Board' has the meaning provided in Section 3.4(b).    3.13 "Just Cause" means, unless otherwise defined in an Award agreement, as determined by  the Committee:    (a) the willful and continued failure of the Participant to perform substantially the Participant's  duties with the Company and its Subsidiaries (other than any such failure resulting from incapacity due  to physical or mental illness), after a written demand for substantial performance is delivered to the  Participant by the Board of Directors or the Chief Executive Officer that specifically identifies the manner  in which the Board of Directors or the Chief Executive Officer believes that the Participant has not  substantially performed the Participant's duties;    (b) indictment of the Participant for a felony in connection with the Participant's employment  duties or responsibilities to the Company and its Subsidiaries that is not quashed within six months;    (c) conviction of Participant of a felony;    (d) willful conduct by the Participant in connection with the Participant's employment duties or  responsibilities to the Company and its Subsidiaries that is gross misconduct (including, but not limited  to, dishonest or fraudulent acts) and places the Company and its Subsidiaries at risk of material injury;  or    (e) the Participant's failure to comply with a policy of the Company and its Subsidiaries that  places the Company and its Subsidiaries at risk of material injury.    For purposes of this Section 3.13, no act, or failure to act, on the part of the Participant shall be considered  "willful" unless it is done, or omitted to be done, by the Participant in bad faith or without reasonable belief  that the Participant's action or omission was in the best interests of the Company. In addition, for purposes  of this Section 3.13, "injury" shall include, but not be limited to, financial injury and injury to the reputation  of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly  adopted by the Board of Directors or upon the instructions of the Chief Executive Officer or a senior officer  of the Company or based upon the advice of counsel for the Company shall be conclusively presumed  to be done, or omitted to be done, by the Participant in good faith and in the best interests of the Company.    3.14 "Key Employee" means an employee of the Company or any Subsidiary selected to  participate in the Plan. A Key Employee may also include a person who is granted an Award in connection  with the hiring of the person prior to the date the person becomes an employee of the Company or any  Subsidiary, provided that such Award shall not vest prior to the commencement of employment.    3.15 "Option" has the meaning provided in Section 5.1.    3.16 "Optionee" means the holder of an Option.    3.17 "Participanf' means a Key Employee selected to receive an Award under the Plan.    3.18 "Plan" means this SunCoke Energy, Inc. Long-Term Performance Enhancement Plan, as  amended from time to time.    3.19 "Qualifying Termination" means, unless otherwise defined in an Award agreement, with  respect to the employment of any Participant who is a participant in the SunCoke Energy, Inc. Special  





 






4   Executive Severance Plan, a "Qualifying Termination" as defined in such plan, and with respect to the  employment of any other Participant, the following:    (a) a termination of employment by the Company within 24 months after a Change in Control,  other than for Just Cause, death or permanent disability; or    (b) a termination of employment by the Participant within 24 months after a Change in Control  for one or more of the following reasons:  (i) the assignment to such Participant of any duties inconsistent in a way significantly  adverse to such Participant, with such Participant's positions, duties, responsibilities and status with  the Company and its Subsidiaries immediately prior to the Change in Control, or a significant  reduction in the duties and responsibilities held by the Participant immediately prior to the Change  in Control, in each case except in connection with such Participant's termination of employment by  the Company for Just Cause;  (ii) a reduction by the Company in the Participant's combined annual base salary and  guideline (target) bonus as in effect immediately prior to the Change in Control; or  (iii) the Company requires the Participant to be based anywhere other than the  Participant's present work location or a location within 35 miles from the present location; or the  Company requires the Participant to travel on Company business to an extent substantially more  burdensome than such Participant's travel obligations during the period of 12 consecutive months  immediately preceding the Change in Control;    provided, however, that in the case of any such termination of employment by a Participant under this  subparagraph (b), such termination shall not be deemed to  be a Qualifying Termination unless  (x) Participant has notified the Company in writing describing the occurrence of one or more such events  within 60 days of such occurrence, (y) the Company fails to cure such event within 30 days after its  receipt of such written notice and (z) the termination of employment occurs within 120 days after the  occurrence of such event.    3.20 "Restricted Stock'' has the meaning provided in Section 7.1.    3.21 "Share Units" has the meaning provided in Section 6.1.    3.22 "Stock Appreciation Righf' or "SAR' has the meaning provided in Section 8.1.    3.23 "Subsidiary" means any corporation, partnership, joint venture, limited liability company or  other entity during any period in which at least a 50% voting or profits interest is owned, directly or  indirectly, by the Company or any successor to the Company.    ARTICLE IV  TERM OF PLAN; ADMINISTRATION; TYPES OF AWARDS;  SHARES UNDER AWARDS; AWARD AGREEMENTS    4.1 Term of the Plan. No Awards shall be made under this Plan after February 14, 2028. The  Plan and all Awards made under the Plan prior to such date shall remain in effect until such Awards have  been satisfied or terminated in accordance with the Plan and the terms of such Awards.    4.2 Administration. The Plan shall be administered by the Committee, which shall have the  authority, in its sole discretion and from time to time to, among other things:    (a) designate the Participants;  





 






5   (b) grant Awards provided in the Plan in such form and amount as the Committee shall  determine;    (c) determine the terms and conditions of each Award under the Plan and impose such  limitations, restrictions and conditions upon any such Award including performance goals, in each case  as the Committee shall deem appropriate; and    (d) interpret the Plan, adopt, amend and rescind rules and regulations relating to the Plan, and  make all other determinations and take all other action necessary or advisable for the implementation  and administration of the Plan. The decisions and determinations of the Committee on all matters relating  to the Plan shall be in its sole discretion and shall be conclusive. No member of the Committee shall be  liable for any action taken or not taken or decision made or not made in good faith relating to the Plan or  any Award thereunder.    4.3 Types of Awards Under the Plan. Awards under the Plan may be in the form of any one or  more of the following:  (a) Options, as described in Article V;  (b) Share Units, as described in Article VI;  (c) Restricted Stock, as described in Article VII; and/or  (d) SARs, as described in Article VIII.    4.4 Shares Under Awards.  (a) The maximum number of shares of Common Stock that may be delivered to Participants  and their beneficiaries under the Plan shall be the sum of (i) the number of shares of Common Stock that  may be issuable upon exercise or vesting of any Awards initially granted under the Sunoco Long- Term  Incentive Plan and (ii) 7,500,000 (which reflects the shares previously authorized under the Plan and an  additional 1,500,000 shares to be issued under the Plan pursuant to this most recent amendment and  restatement). The limit set forth in this Section 4.4(a) shall be subject to the provisions of Section 9.7.  Shares subject to an Award under the Plan may be authorized and unissued Shares or may be treasury  Shares.    (b) During a calendar year, no single Participant who is a Key Employee may be granted:  (i) Options covering in excess of 1,000,000 shares of Common Stock; or  (ii) Awards in the form of Share Units or Restricted Stock covering in excess of 750,000  shares of Common Stock in the aggregate (or if such Award is settled in cash, an amount equal  to the Fair Market Value of such number of shares of Common Stock on the date on which the  Award is settled).    The limits set forth in this Section 4.4(b) shall be subject to the provisions of Section 9.7.    (c) The number of shares of Common Stock delivered by a Participant or beneficiary or withheld  by the Company on behalf of any such Participant or beneficiary as full or partial payment of an Award,  including the exercise price of an Option or of any required withholding taxes, shall not again be available  for issuance pursuant to subsequent Awards, and shall count towards the aggregate number of shares of  Common Stock that may be issued under the Plan. Any shares of Common Stock purchased by the  Company with proceeds from an Option exercise shall not again be available for issuance pursuant to  subsequent Awards, shall count against the aggregate number of shares that may be issued under the  Plan and shall not increase the number of shares available under the Plan. If  





 






6   there is a lapse, forfeiture, expiration, termination or cancellation of any Award for any reason, or if shares  of Common Stock are issued under such Award and thereafter are reacquired by the Company pursuant  to rights reserved by the Company upon issuance thereof, the shares of Common Stock subject to such  Award or reacquired by the Company shall again be available for issuance pursuant to subsequent  Awards, and shall not count towards the aggregate number of shares of Common Stock that may be  issued under the Plan.    4.5 Award Agreements.  (a) Each Award shall be evidenced by a written Award Agreement specifying the terms and  conditions of the Award. In the sole discretion of the Committee, the Award Agreement may condition the  grant of an Award upon the Participant's entering into one or more of the following agreements with the  Company: (i) an agreement not to compete with the Company which shall become effective as of the  date of the grant of the Award and remain in effect for a specified period of time following termination of  the Participant's employment with the Company; (ii) an agreement to cancel any employment agreement,  fringe benefit or compensation arrangement in effect between the Company and the Participant; and (iii)  an agreement to retain the confidentiality of certain information. Such agreements may contain such other  terms and conditions as the Committee shall determine. If the Participant shall fail to enter into any such  agreement at the request of the Committee, then the Award granted or to be granted to such Participant  shall be forfeited and cancelled.    (b) An Award Agreement shall contain a vesting schedule as determined in the sole discretion  of the Committee; provided that Options and SARs shall not become exercisable until at least one year  following the date of grant, and the restrictions on Restricted Stock and Share Units shall not lapse for  at least one year following the date of grant; and provided further that notwithstanding the foregoing, no  minimum vesting schedule shall apply to Awards that result in the issuance of up to an aggregate of 5%  of the shares of Common Stock reserved and available for issuance under Section 4.4(a).    ARTICLE V  OPTIONS    5.1 Award of Options. From time to time, subject to the provisions of the Plan and such other  terms and conditions as the Committee may prescribe, the Committee may grant to any Participant, one  or more Options to purchase the shares of Common Stock ("Options"). Options that are ISOs may be  granted only to Key Employees. The grant date for each Option shall be the date of the Committee action  to make the Award or, if later, the date selected by the Committee as the date of grant of the Option  pursuant to the Plan.    5.2 Option Agreements. The grant of an Option shall be evidenced by a written Option  agreement, executed by the Company and the holder of an Option, stating the number of shares subject  to the Option, the vesting terms, the treatment of the Option upon a Participant's termination of service,  and such other provisions as the Committee may from time to time determine.    5.3 Exercise Price. The per share exercise price of each Option shall be not less than the Fair  Market Value on the grant date.    5.4 Term and Exercise. The term and the vesting schedule of each Option shall be determined  by the Committee. No Option shall be exercisable after the expiration of its term and the maximum term  of any Option shall be ten years.  





 






7   5.5 Required Terms and Conditions of ISOs. In addition to the foregoing, each ISO granted to  a Key Employee shall be subject to the following specific rules:    (a) The aggregate exercise price of a Key Employee's ISOs that become exercisable for the  first time during a particular calendar year shall not exceed $100,000. If this dollar limit is exceeded, the  portion of the ISO that does not exceed the applicable limit shall be an ISO and the remainder shall not  be an ISO; but in all other respects, the original Option Agreement shall remain in full force and effect.    (b) Notwithstanding anything herein to the contrary, if an ISO is granted to a Key Employee  who owns more than 10% of the Common Stock (or stock possessing more than 10% of the total  combined voting power of all classes of stock of the Company and its Subsidiaries): (i) the exercise price  of the ISO shall be not less than 110% of the Fair Market Value on the ISO's grant date; and  (ii) the ISO shall expire, and all rights to purchase Common Stock thereunder shall expire, no later than  the fifth anniversary of the ISO's grant date.    (c) No ISOs shall be granted under the Plan after ten years from the earlier of the date the  Plan's ISO provisions are adopted or approved by stockholders of the Company.    5.6 Transferability.  (a) No Option may be transferred by the Participant other than by will, by the laws of descent  and distribution or, to the extent not inconsistent with the applicable provisions of the Code, pursuant to  a domestic relations order under applicable provisions of law, and during the Participant's lifetime the  Option may be exercised only by the Participant; provided, however, that, subject to such limits as the  Committee may establish, the Committee, in its discretion, may allow the Participant to transfer an Option  that is not an ISO for no consideration to, or for the benefit of, an immediate family member or to a bona  fide trust for the exclusive benefit of such immediate family member, or a partnership or limited liability  company in which immediate family members are the only partners or members. Immediate family  members are the Participant's spouse (including common law spouse), siblings, parents, children, step- children, adoptive relations and grandchildren, and shall include the Participant.    (b) A transfer pursuant to Section 5.6(a) may only be effected following advance written notice  from the Participant (or Participant's estate) to the Committee describing the terms and conditions of the  proposed transfer, and such transfer shall become effective only when recorded in the Company's record  of outstanding Options. Any such transfer pursuant to Section 5.6(a) is further conditioned on the  Participant and the immediate family member or other transferee agreeing to abide by the Company's  Option transfer guidelines. In the discretion of the Committee, the right to transfer an Option pursuant to  Section 5.6(a) also will apply to the right to transfer ancillary rights associated with such Option, and to  the right to consent to any amendment to the applicable Option agreement.    (c) Subsequent transfers by a transferee pursuant to Section 5.6(a) shall be prohibited except  in accordance with the laws of descent and distribution, or by will.    (d) Following any transfer pursuant to this Section 5.6, any transferred Option shall continue  to be subject to the same terms and conditions as were applicable immediately prior to transfer, and the  terms "Optionee" or "Participant" shall be deemed to include the transferee; provided, however, that the  terms governing exercisability of an Option that apply following any events of termination of employment  shall apply based on the employment status of the original Optionee. Neither the Committee nor the  Company will have any obligation to inform any transferee of an Option of any expiration, termination,  lapse or acceleration of such Option. The Company will have no obligation to register with any federal or  state securities commission or agency any Shares issuable or issued under an Option that has been  transferred by a Participant under this Section 5.6.  





 






8   (e) In no event shall a Participant be permitted to transfer an Option to a third party financial  institution without approval of the Company's stockholders.    5.7 Dividends/Dividend Equivalents. No dividends or dividend equivalents shall be paid with  respect to any shares subject to an Option prior to the exercise of the Option.    5.8 Manner of Payment. Each Option agreement shall set forth the procedure governing the  exercise of any portion of the Option granted thereunder, and shall provide that, upon such exercise, the  Optionee shall pay to the Company, in full, an amount equal to the product of (a) the exercise price and  (b) the number of shares of Common Stock with respect to which Optionee exercises the Option. A  Participant may pay the aggregate exercise price through cash payment (including cash received from  a broker-dealer to whom the Participant has submitted an exercise notice together with irrevocable  instructions to deliver promptly to the Company the amount of sales proceeds from the sale of the shares  subject to the Option necessary to pay the exercise price), the delivery of shares of Common Stock owned  by the Optionee, or by foregoing delivery of shares of Common Stock subject to the Option, in each case  having an aggregate Fair Market Value (as determined as of the date prior to exercise) equal to the  aggregate exercise price; provided, however, that any use of shares of Common Stock to satisfy the  aggregate exercise price must be in compliance with then applicable accounting rules.    ARTICLE VI  SHARE UNITS    6.1 Award of Share Units. The Committee, from time to time, and subject to the provisions of the  Plan, may grant to any Participant Awards denominated in shares of Common Stock ("Share Units")  that will be settled, subject to the terms and conditions of the Share Units, in an amount in cash, shares  of Common Stock or both. At the time it authorizes the grant of any Share Units, the Committee shall  condition the vesting of the Share Units upon (a) continued service of the applicable Participant and/or  (b) the attainment of performance goals. Settlement of Share Units shall be made either in shares of  Common Stock, or in cash, at the sole discretion of the Committee. The medium of payment shall be set  forth in the Committee's resolution granting the Share Units and in the Share Unit agreement with the  Participant.    6.2 Share Unit Agreements. Share Units granted under the Plan shall be evidenced by written  agreements stating the type of Share Units, the number of Share Units granted, the vesting and  settlement terms, the form of payment, the treatment of Share Units upon a Participant's termination of  service, and such other provisions as the Committee may from time to time determine.    6.3 Dividend Equivalents. Unless otherwise determined by the Committee, this Section 6.3 shall  govern the treatment of dividend equivalents. A holder of Share Units will be entitled to receive payment  from the Company in an amount equal to each cash dividend the Company would have paid to such  holder had he, on the record date for payment of such dividend, been the holder of record of shares of  Common Stock equal to the number of outstanding Share Units. The Company shall establish a  bookkeeping account on behalf of each Participant in which the dividend equivalents allocated to such  shall be credited. The dividend equivalent account will not bear interest. Vesting and payment of dividend  equivalents will correspond to the vesting and settlement of the Share Units with respect to which the  dividend equivalents relate.  





 






9   ARTICLE VII  RESTRICTED STOCK  7.1 Award of Restricted Stock.  (a) The Committee, from time to time, and subject to the provisions of the Plan, may grant to  any Participant Awards in the form of actual shares of Common Stock that are subject to restrictions on  transfer, the lapse of which restrictions is contingent upon continued service and/or the satisfaction of  performance conditions ("Restricted Stock''). Until such restrictions lapse, the shares of Restricted Stock  shall be held in "book-entry" form in the records of the Company's transfer agent, and no shares will be  delivered to the Participant until the applicable restrictions lapse.  7.2 Restricted Stock Agreements. Restricted Stock granted under the Plan shall be evidenced by  written agreements stating the number of shares of Restricted Stock granted, the vesting and settlement  terms, the treatment of the Award upon a Participant's termination of service, and such other provisions  as the Committee may from time to time determine.  7.3 Rights of a Stockholder. Except as provided in this Article and in the applicable Award  agreement, a Participant shall have, with respect to the shares of Restricted Stock, all of the rights of a  stockholder of the Company holding Common Stock, including, if applicable, the right to vote the shares  and the right to receive any cash dividends. Vesting and payment of any cash dividends will correspond  to the vesting of the Restricted Stock with respect to which such dividends relate. If so determined by the  Committee in the applicable Award agreement, (a) cash dividends on the Common Stock subject to the  Restricted Stock Award shall be automatically reinvested in additional Restricted Stock, subject to the  vesting of the underlying Restricted Stock, and (b) subject to any adjustment pursuant to Section 9.7,  dividends payable in Common Stock shall be paid in the form of Restricted Stock, held subject to the  vesting of the underlying Restricted Stock.  ARTICLE VIII  SARs  8.1 Award of Options. The Committee, from time to time, and subject to the provisions of the Plan  and such other terms and conditions as the Committee may prescribe, may grant to any Participant one  or more SARs, which upon exercise entitles the Participant to receive from the Company the number of  shares of Common Stock having an aggregate Fair Market Value equal to the excess of the Fair Market  Value of one share as of the date on which the SAR is exercised over the exercise price, multiplied by  the number of shares with respect to which the SAR is being exercised ("SAR"). The grant date for each  SAR shall be the date of the Committee action to make the Award or, if later, the date selected by the  Committee as the date of grant of the Option pursuant to the Plan.  8.2 SAR Agreements. The grant of an SAR shall be evidenced by a written SAR agreement,  executed by the Company and the holder of the SAR, stating the number of shares subject to the SAR,  the vesting terms, the treatment of the SAR upon a Participant's termination of service, and such other  provisions as the Committee may from time to time determine.  8.3 Exercise Price. The per share exercise price of each SAR shall be not less than the Fair  Market Value on the grant date.  8.4 Term and Exercise. The term and the vesting schedule of each SAR shall be determined by  the Committee. No SAR shall be exercisable after the expiration of its term and the maximum term of  any SAR shall be ten years.  8.5 Dividends/Dividend Equivalents. No dividends or dividend equivalents shall be paid with  respect to any SAR.  8.6 Manner of Payment. Each SAR agreement shall set forth the procedure governing the  exercise of any portion of the SAR granted thereunder, and shall provide that, upon such exercise, the  





 






10    Company shall (a) issue the total number of full shares of Common Stock to which the Participant is  entitled and cash in an amount equal to the Fair Market Value, as of the date of exercise, of any resulting  fractional share, and (b) if the Committee causes the Company to elect to settle all or part of its obligations  arising out of the exercise of the SAR in cash, deliver to the Participant an amount in cash equal to the  Fair Market Value, as of the date of exercise, of the shares it would otherwise be obligated to deliver.    ARTICLE IX  MISCELLANEOUS    9.1 General Restriction. Each Award under the Plan shall be subject to the requirement that if,  at any time, the Committee shall determine that: (a) the listing, registration or qualification of the shares  of Common Stock subject to the Award upon any securities exchange or under any state or Federal law;  (b) the consent or approval of any government regulatory body; or (c) an agreement by the recipient of  an Award with respect to the disposition of shares, is necessary or desirable as a condition of, or in  connection with, the granting of such Award or the issue or purchase of shares thereunder, then such  Award may not be consummated in whole or in part unless such listing, registration, qualification, consent,  approval or agreement shall have been effected or obtained free of any conditions not acceptable to the  Committee.  9.2 Non-Assignability. Except as otherwise set forth in Section 5.6 of the Plan, Awards shall not  be assignable or transferable by the recipient thereof, except by will or by the laws of descent and  distribution or to the extent not inconsistent with the applicable provisions of the Code, pursuant to a  domestic relations order under applicable provisions of law.  9.3 Right to Terminate Employment. Nothing in the Plan or in any agreement entered into  pursuant to the Plan shall confer upon any Participant the right to continue in the employment of the  Company, or affect any right which the Company may have to terminate the employment of, or service  by, such Participant. If an Affiliate ceases to be an Affiliate as a result of the sale or other disposition by  the Company or one of its continuing Affiliates of its ownership interest in the former Affiliate, or otherwise,  then individuals who remain employed by such former Affiliate thereafter shall be considered for all  purposes under the Plan to have terminated their employment relationship with the Company and its  Subsidiaries.  9.4 Non-Uniform Determinations. The Committee's determinations under the Plan (including  without limitation, determinations of the persons to receive Awards, the form, amount and timing of such  Awards, the terms and provisions of such Awards, and the agreements evidencing same) need not be  uniform and may be made by it selectively among persons who receive, or are eligible to receive, Awards  under the Plan, whether or not such persons are similarly situated.    9.5 Rights as a Stockholder; Share Delivery.  (a) Except as otherwise provided in Section 7.3 with respect to Restricted Stock, a Participant  receiving an Award under the Plan shall have no rights as a stockholder with respect thereto unless and  until shares of Common Stock are issued on behalf of such Participant.    (b) Shares of Common Stock issued pursuant to the settlement of an Award shall be  represented by stock certificates or issued on an uncertificated basis, with the ownership of such shares  by the Participant evidenced solely by book entry in the records of the Company's transfer agent;  provided, however, that upon the written request of the Participant, the Company shall issue, in the name  of the Participant, stock certificates representing such shares of Common Stock.    9.6 Leaves of Absence. The Committee shall be entitled to make such rules, regulations and  determinations as it deems appropriate under the Plan in respect of any leave of absence taken by the  





 






11   recipient of any Award. Without limiting the generality of the foregoing, the Committee shall be entitled to  determine (a) whether or not any such leave of absence shall constitute a termination of employment  within the meaning of the Plan and (b) the impact, if any, of any such leave of absence on Awards under  the Plan theretofore made to any recipient who takes such leaves of absence.    9.7 Adjustments.  (a) In the event of a stock dividend, stock split, reverse stock split, share combination, or  recapitalization or similar event affecting the capital structure of the Company, the Committee or Board  of Directors shall make an equitable and proportionate anti-dilution adjustment. Such mandatory  adjustment may include a change in one or more of the following: (i) the aggregate number of shares of  Common Stock reserved for issuance and delivery under Section 4.4(a) of the Plan; (ii) the individual  limits under Section 4.4(b) of the Plan; (iii) the number of shares or other securities subject to outstanding  Awards under the Plan; (iv) the exercise price of outstanding Options; and (v) other similar matters.    (b) In the event of a merger, amalgamation, consolidation, acquisition of property or shares,  separation, spinoff, other distribution of stock or property (including any extraordinary cash or stock  dividend), reorganization, stock rights offering, liquidation, or similar event affecting the Company or any  of its Subsidiaries that is not an event described in Section 9.7(a), the Committee or the Board of Directors  may in its discretion make such substitutions or adjustments as it deems appropriate and equitable to (i)  the aggregate number and kind of shares or other securities reserved for issuance and delivery under  Section 4.4(a) of the Plan; (ii) the individual limits under Section 4.4(b) of the Plan;  (iii) the number and kind of shares of Common Stock or other securities subject to outstanding Awards  under the Plan; (iv) the exercise price of outstanding Options; and (v) other similar matters, and such  adjustments may include, without limitation, (A) the cancellation of outstanding Awards granted under the  Plan in exchange for payments of cash, property or a combination thereof having an aggregate value  equal to the value of such Awards, as determined by the Committee or the Board of Directors in its sole  discretion (it being understood that in the case of a corporate transaction with respect to which holders  of Common Stock receive consideration other than publicly traded equity securities of the ultimate  surviving entity, any such determination by the Committee or the Board of Directors that the value of an  Option shall for this purpose be deemed to equal the excess, if any, of the value of the consideration  being paid for each share of Common Stock pursuant to such corporate transaction over the exercise  price of such Option shall conclusively be deemed valid), (B) the substitution of other property (including,  without limitation, cash or other securities of the Company and securities of entities other than the  Company) for the shares of Common Stock subject to outstanding Awards under the Plan, and (C)  arranging for the assumption of Awards granted under the Plan, or replacement of Awards granted under  the Plan with new Awards based on other property or other securities (including, without limitation, other  securities of the Company and securities of entities other than the Company), by the affected Subsidiary,  Affiliate, or division or by the entity that controls such Subsidiary, Affiliate, or division following such  transaction as well as any corresponding adjustments to Awards under the Plan that remain based upon  Company securities.    9.8 Change in Control. The Committee may provide in any Award agreement for provisions  relating to a Change in Control, including, without limitation, the acceleration of the exercisability of, or  the lapse of restrictions or deemed satisfaction of goals with respect to, any outstanding Awards.    9.9 Amendment of the Plan; Amendment of Awards.  (a) The Committee may amend, alter, or discontinue the Plan, but no amendment, alteration or  discontinuation shall be made which would materially impair the rights of the Participant with respect to  a previously granted Award without such Participant's consent, except such an amendment made to  comply with applicable law, including without limitation Section 409A of the Code, stock exchange rules  





 






12   or accounting rules. In addition, no such amendment shall be made without the approval of the  Company's stockholders to the extent such approval is required by applicable law or the listing standards  of the applicable exchange on which the Common Stock is listed.    (b) The Committee may unilaterally amend the terms of any Award theretofore granted, but no  such amendment shall cause an Award, without the Participant's consent, to materially impair the rights  of any Participant with respect to an Award, except such an amendment made to cause the Plan or Award  to comply with applicable law, stock exchange rules or accounting rules.    (c) Notwithstanding the foregoing and except as described in Section 9.7, there shall be no  amendment to the Plan or any outstanding Option agreement or SAR agreement that results in the  repricing of Options or SARs without stockholder approval. For this purpose, repricing includes (i) a  reduction in the exercise price of an Option or SAR or (ii) the cancellation of an Option or SAR in exchange  for cash, Options or SARs with an exercise price less than the exercise price of the cancelled Options  or SARs, other Awards or any other consideration provided by the Company.    9.10 Required Taxes. When an amount first becomes includible in the gross income of a  Participant for federal, state, local or foreign income or employment or other tax purposes with respect to  any Award under the Plan, as a condition to the issuance or delivery of any shares of Common Stock  to the Participant in connection therewith, the Company shall require the Participant to pay the Company  the minimum amount of the tax required to be withheld, and in the Company's sole discretion, the  Company may permit the Participant to pay up to the maximum individual statutory rate of applicable  withholding. The Committee in its sole discretion may make available one or more of the following  alternatives for the payment of such taxes: (a) in cash; (b) in cash received from a broker- dealer to whom  the Participant has submitted notice together with irrevocable instructions to deliver promptly to the  Company the amount of sales proceeds from the sale of the shares subject to the Award to pay the  withholding taxes; (c) by directing the Company to withhold such number of shares of Common Stock  otherwise issuable in connection with the Award having an aggregate Fair Market Value equal to the  amount of tax to be withheld; or (d) by delivering previously acquired shares of Common Stock that have  an aggregate Fair Market Value equal to the amount to be withheld. The Committee shall have the sole  discretion to establish the terms and conditions applicable to any alternative made available for payment  of the withholding taxes.    9.11 Section 409A of the Code. It is the intention of the Company that no Award shall be  "deferred compensation" subject to Section 409A of the Code, unless and to the extent that the  Committee specifically determines otherwise as provided in the immediately following sentence, and the  Plan and the terms and conditions of all Awards shall be interpreted accordingly. The terms and  conditions governing any Awards that the Committee determines will be subject to Section 409A of the  Code, including any rules for elective or mandatory deferral of the delivery of cash or shares pursuant  thereto and any rules regarding treatment of such Awards in the event of a Change in Control, shall be  set forth in the applicable Award Agreement, and shall comply in all respects with Section 409A of the  Code. Notwithstanding any other provision of the Plan to the contrary, with respect to any Award that  constitutes a "nonqualified deferred compensation plan" subject to Section 409A of the Code, any  payments (whether in cash, shares or other property) to be made with respect to the Award upon the  Participant's termination of employment shall be delayed until the first day of the seventh month following  the Participant's termination of employment if the Participant is a "specified employee" within the meaning  of Section 409A of the Code.    9.12 Governing Law. This Plan shall be construed in accordance with and governed by the laws  of the State of Delaware.