EXHIBIT
10.1


 


 


MONSTER
WORLDWIDE, INC.

1999 LONG TERM INCENTIVE PLAN


 


(As
Amended as of January 1, 2008)


 


1.             General.


 


(a)           Purpose.    The purpose of the Monster Worldwide, Inc.
1999 Long Term Incentive Plan (the “Plan”) is to establish a flexible vehicle
through which Monster Worldwide, Inc. (formerly known as TMP Worldwide
Inc., the “Company”) can offer equity-based compensation incentives to eligible
recipients with a view toward promoting the long-term financial success of the
Company and enhancing stockholder value.


 


(b)           Types
of Awards.    Awards under the Plan may
be in the form of any one or more of the following: (1) stock options,
including “incentive stock options” (“ISOs”) within the meaning of Section 422
of the Internal Revenue Code of 1986 (the “Code”) and options which do not
qualify as ISOs (“NQSOs”), described in Section 5; (2) stock
appreciation rights (“SARs”), described in Section 6; (3) awards of
restricted stock (“Restricted Stock”), described in Section 7; (4) performance-based
awards (“Performance-Based Awards”) described in Section 8; (5) prior
to June 16, 2005, automatic grants of NQSOs to Non-Employee Directors
(within the meaning of Section 9(a)) described in Section 9; (6) from
and after June 16, 2005, automatic grants of shares of Common Stock to
Non-Employee Directors (within the meaning of Section 9(a)) described in Section 9A;
and (7) such other types of equity-based awards as the Committee (defined
herein) deems advisable, including, without limitation, phantom stock awards, stock
bonus awards, and dividend equivalent awards.


 


(c)           Stock
Covered by Awards.    Awards made under
the Plan will be made in the form of or with reference to shares of the Company’s
common stock, $.001 par value (“Common Stock”). Shares of Common Stock available
for issuance under the Plan may be either authorized and unissued or held by
the Company in its treasury. No fractional shares of Common Stock will be
delivered under the Plan.


 


(d)           Documentation
of Awards.    Each award made under the
Plan will be evidenced by a written agreement or other written instrument the
terms of which will be established by the Committee. To the extent not
inconsistent with the provisions of the Plan, the written agreement or other
instrument evidencing an award will govern the rights and obligations of the
parties with respect to the award.


 


2.             Administration.


 


(a)           Committee.    The Plan will be administered by a
committee (the “Committee”) of two or more members of the Company’s Board of
Directors (the “Board”). The members of the Committee will be appointed by and
serve at the pleasure of the Board. Unless the Board determines otherwise, each
member of the Committee must be a “non-employee director” within the meaning of
Rule 16b-3 issued under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”). The Plan will be administered by the Board with respect
to discretionary grants made to Non-Employee Directors.


 


(b)           Authority
of Committee.    Subject to the
limitations of the Plan, the Committee, acting in its sole and absolute
discretion, will have full power and authority to (1) select the persons
to whom awards will be made under the Plan, (2) make awards to such
persons and prescribe the terms and conditions of such awards (including,
without limitation, nonsolicitation, confidentiality and mandatory dispute
resolution conditions), (3) interpret and apply the provisions of the Plan
and of any agreement or other document evidencing an award made under the Plan,



 


 


 

















 


 


(4) carry out any responsibility or duty
specifically reserved to the Committee under the Plan, and (5) make any
and all determinations and interpretations and take such other actions as may
be necessary or desirable in order to carry out the provisions, intent and
purposes of the Plan. A majority of the members of the Committee will
constitute a quorum. The Committee may act by the vote of a majority of its
members present at a meeting at which there is a quorum or by unanimous written
consent. The decision of the Committee as to any disputed question, including
questions of construction, interpretation and administration, will be final and
conclusive on all persons.


 


(c)           Delegation
of Authority.    The Committee may
delegate any of its powers and duties under the Plan to such officers of the
Company or other persons as the Committee deems appropriate in accordance with
such guidelines as the Committee may establish, provided, however, that no such
delegation may be made (1) with respect to any award intended to qualify
for the performance-based compensation exception of Section 162(m)(4)(C) of
the Code, or (2) to the extent it would enable the delegate to grant, fix
the terms of or amend or cancel an award under the Plan to an individual who is
required to file reports with respect to securities of the Company pursuant to Section 16(a) of
the Exchange Act.


 


(d)           Indemnification.    The Company will indemnify and hold
harmless each member of the Committee and any employee or director of the
Company or an affiliate to whom any duty or power relating to the
administration or interpretation of the Plan is delegated from and against any
loss, cost, liability (including any sum paid in settlement of a claim with the
approval of the Board), damage and expense (including legal and other expenses
incident thereto) arising out of or incurred in connection with the Plan,
unless and except to the extent attributable to such person’s fraud or willful
misconduct.


 


3.             Participation.


 


(a)           Awards
may be granted under the Plan to any member of the Board (whether or not an
employee of the Company or an affiliate), to any officer or other employee of
the Company or an affiliate and to any consultant or other independent
contractor who performs or will perform services for the Company or an
affiliate. In selecting participants and determining the nature and terms of
awards made under the Plan, the Committee may give consideration to the
functions and responsibilities of a potential recipient, his or her previous
and/or expected contributions to the business of the Company or its affiliates
and such other factors as the Committee deems relevant under the circumstances.


 


(b)           Prior
to June 16, 2005, Non-Employee Directors will receive automatic grants of
NQSOs pursuant to Section 9. From and after June 16, 2005,
Non-Employee Directors will receive automatic grants of shares of Common Stock
pursuant to Section 9A.


 


4.             Limitations
on Awards under the Plan.


 


(a)           Aggregate
Number of Shares.    The maximum number
of shares of Common Stock that may be issued under the Plan is the sum of (1) 30,000,000,
and (2) the number of shares remaining available for new awards under the
TMP Worldwide Inc. 1996 Stock Option Plan, as amended, and the TMP Worldwide
Inc. 1996 Stock Option Plan for Non-Employee Directors (collectively, the “Prior
Plans”) including, without limitation, shares covered by any option outstanding
under the Prior Plans which, by reason of the subsequent expiration or
cancellation of the option, are not issued under the Prior Plans. In
determining the number of shares that remain issuable under the Plan at any
time after the date the Plan is adopted, the following shares will be deemed
not to have been issued (and will be deemed to remain available for issuance)
under the Plan: (i) shares remaining under an award made under this Plan
or under an option granted under the Prior Plans that terminates or is canceled
without having been exercised or earned in full; (ii) shares subject to an
award under this Plan where cash is delivered to the holder of the award in
lieu of such shares; (iii) shares of restricted stock awarded under this
Plan that are forfeited in accordance with the terms of the applicable award;
and (iv) shares that are withheld in order to pay the purchase price of
shares acquired upon the exercise of outstanding options granted under the
Prior Plans or of awards granted under the Plan or to satisfy the tax
withholding obligations associated with such exercise. The number of shares of 


 


 


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Common Stock issued in connection with the exercise of
an option under the Prior Plans or an award under the Plan will be determined
net of any previously-owned shares tendered by the holder of the option or
award in payment of the exercise price or of applicable withholding taxes.


 


(b)           Individual
Award Limits.    The maximum number of
shares of Common Stock for which stock options may be granted under the Plan to
any person in any calendar year shall be 1,000,000. The maximum number of
shares of Common Stock subject to SARs granted under the Plan to any person in
any calendar year shall be 1,000,000. The aggregate maximum number of shares of
Common Stock subject to awards, other than options or SARs, that may be granted
under the Plan to any person in any calendar year shall be 1,000,000. For
purposes of this subsection, the repricing of a stock option or SAR shall be
treated as a new grant to the extent required under Section 162(m) of
the Code. Subject to these limitations, each person eligible to participate in
the Plan will be eligible in any year to receive awards covering up to the full
number of shares of Common Stock then available for awards under the Plan. No
more than $1,000,000 may be paid to any individual with respect to any cash
Performance-Based Award covered by Section 8. In applying this limitation,
multiple Performance-Based Awards to the same individual will be subject to a
single $1,000,000 limit if they are either (1) determined by reference to
performance periods of one year or less ending with or within the same fiscal
year of the Company, or (2) determined by reference to one or more
multi-year performance periods ending in the same fiscal year of the Company.


 


5.             Stock
Options Awards.


 


(a)           ISOs
and NQSOs.    Subject to the provisions
hereof, including, without limitation, this Section and Sections 10 and
11, the Committee may grant ISOs and NQSOs to eligible personnel to purchase
shares of Common Stock upon such terms and conditions as the Committee deems
appropriate, provided that the Committee may only grant ISOs to employees of
the Company and its “subsidiaries” within the meaning of Section 424 of
the Code.


 


(b)           Replacement
Options.    The Committee, acting in its
discretion, may provide with respect to an option granted pursuant to this Section 5
(including, without limitation, any option described in this subsection) that,
if the grantee, while still an employee or otherwise in the service of the
Company or an affiliate, exercises the option in whole or in part using shares
of Common Stock that were owned by the holder for at least six months prior to
such exercise to pay the exercise price, then the grantee will automatically
receive an additional option (“replacement option”) to purchase shares of
Common Stock. The number of shares covered by a replacement option may not be
greater than the number of shares used to pay the exercise price under the
original option plus the number of shares withheld by the Company for the
payment of income taxes associated with the exercise of the original option
(whether or not such income taxes are required to be withheld). Unless the
Committee determines otherwise, a replacement option will not become
exercisable, if at all, for at least six months after the date it is granted
and, unless sooner terminated, will expire ten years after the date the option
is granted. The Committee may prescribe such rules and procedures in
connection with the exercise of options and the issuance of replacement options
as it deems appropriate, including, without limitation, procedures for telephonic
exercise.


 


(c)           Exercise
Price.    The purchase price per share of
Common Stock covered by an option granted pursuant to this Section 5 will
be determined by the Committee when the option is granted. The purchase price
per share of Common Stock covered by an NQSO must be at least equal to the par
value per share of Common Stock on the date the option is granted, provided,
however, that the purchase price per share of Common Stock covered by an NQSO
which is a replacement option (described in the preceding subsection) or which
is an option intended to qualify for the performance-based compensation
exception of Section 162(m)(4)(C) of the Code, may not be less than
the fair market value per share of Common Stock (determined under the next
subsection) on the date the option is granted. The purchase price per share of
Common Stock covered by an ISO may not be less than 100% of the fair market
value of a share of Common Stock on the date the ISO is granted (or, in the
case of an optionee who, at the time the option is granted, owns stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Company or a “subsidiary” of the Company within the meaning of Section 424
of the Code, 110%).


 


 


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(d)           Fair
Market Value of Common Stock.    For all
purposes of the Plan, the fair market value of a share of Common Stock on any
date will be equal to the closing price per share as published by the principal
national securities exchange (including, but not limited to, NASDAQ) on which
shares of the Common Stock are traded on such date or, if there is no sale of
Common Stock on such date, the average of the bid and asked prices on such
exchange at the close of trading on such date, or if shares of the Common Stock
are not listed on a national securities exchange on such date, the closing
price or, if none, the average of the bid and asked prices in the over the
counter market at the close of trading on such date, of if the Common Stock is
not traded on a national securities exchange or the over the counter market
value of a share of the Common Stock on such date as determined in good faith
by the Board.


 


(e)           Option
Period.    Subject to the provisions
hereof, unless the Committee determines otherwise, no option granted pursuant
to this Section 5 may be exercised within six months after the date the
option is granted. Unless sooner terminated, all such options will expire ten
years after the date the option is granted (or, in the case of an ISO granted
to a ten percent stockholder described in Section 424 of the Code, five
years).


 


(f)            Vesting
Conditions.    The Committee may
establish such vesting and other restrictions on the exercise of an option
and/or upon the disposition of the stock acquired upon the exercise of an
option as it deems appropriate. Unless the Committee prescribes otherwise,
during an optionee’s employment or service with the Company or an affiliate,
each option granted pursuant to this Section 5 (other than a replacement
option) will be subject to a four-year vesting schedule pursuant to which,
unless sooner terminated or accelerated, the option will become vested as to
25% of the shares originally covered thereby at the end of each of the first
four years following the date of grant, and each replacement option will become
fully vested as to all of the shares covered thereby on the first anniversary
of the date the option is granted.


 


(g)           Exercise
of Options.    An option may be exercised
by transmitting to the Company (1) a notice specifying the number of
shares to be purchased and (2) payment of the exercise price, together
with the amount, if any, deemed necessary by the Committee to enable the
Company to satisfy its federal, foreign or other tax withholding obligations
with respect to such exercise (unless other arrangements acceptable to the
Company are made with respect to the satisfaction of such withholding
obligations). The Committee may establish such rules and procedures as it
deems appropriate for the exercise of options under the Plan, including,
without limitation, procedures for telephonic exercise. The purchase price of
shares of Common Stock acquired pursuant to the exercise of an option granted
under the Plan may be paid in cash and/or such other form of payment as may be
permitted by the Committee under the option agreement, including, without
limitation, shares of Common Stock which have been owned by the holder for at
least six (6) months and installment payments under the optionee’s
promissory note.


 


(h)           Rights
as a Stockholder.    No shares of Common
Stock will be issued in respect of the exercise of an option granted under the
Plan until full payment therefor has been made (and/or provided for where all
or a portion of the purchase price is being paid in installments), and the
applicable income tax withholding obligation has been satisfied or provided
for. The holder of an option will have no rights as a stockholder with respect
to any shares covered by an option until the date a stock certificate for such
shares is issued to him or her. Except as otherwise provided herein, no
adjustments shall be made for dividend distributions or other rights for which
the record date is prior to the date such stock certificate is issued.


 


(i)            Other
Provisions.    The Committee may impose
such other conditions with respect to the exercise of options, including,
without limitation, any conditions relating to the application of federal or
state securities laws or exchange requirements, as it may deem necessary or
advisable.


 


6.             Stock
Appreciation Rights.


 


(a)           General.    Subject to the provisions hereof, the
Committee may award SARs to eligible personnel upon such terms and conditions
as it deems appropriate. A SAR is an award entitling the holder, upon exercise,
to receive an amount, in cash or shares of Common Stock or a combination
thereof, as determined by the Committee in 


 


 


 


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its sole discretion, determined with reference to the
appreciation, if any, in the fair market value of Common Stock during the
period beginning on the date the SAR is granted and ending on the date the SAR
is exercised.


 


(b)           Types
of SARs.    SARs may be awarded under the
Plan in conjunction with a stock option award (“tandem SARs”) or independent of
any stock option award (“stand-alone SARs”). Tandem SARs awarded in conjunction
with a NQSO may be awarded either at or after the time the NQSO is granted.
Tandem SARs awarded in conjunction with an ISO may only be awarded at the time
the ISO is granted.


 


(c)           Exercisability
of SARs.    Unless the Committee
determines otherwise, no SAR may be exercised until the expiration of six
months from the date the SAR is awarded. Except as otherwise provided herein, a
tandem SAR will be exercisable only at the same time and to the same extent and
subject to the same conditions as the related option is exercisable. The
exercise of a tandem SAR will cancel the related option to the extent of the
shares of Common Stock with respect to which the SAR is exercised, and vice versa.
Tandem SARs may be exercised only when the fair market value of the Common
Stock to which it relates exceeds the option exercise price. The Committee may
impose such additional service or performance-based vesting conditions upon the
exercise of a SAR (tandem or stand-alone) as it deems appropriate.


 


(d)           Exercise
of SARs.    A SAR may be exercised by
giving written notice to the Company identifying the SAR that is being
exercised, specifying the number of shares covered by the exercise and
containing such other information or statements as the Committee may require.
The Committee may establish such rules and procedures as it deems
appropriate for the exercise of SARs under the Plan, including, without
limitation, procedures for telephonic exercise. Upon the exercise of a SAR, the
holder will be entitled to receive an amount (in cash and/or shares of Common
Stock as determined by the Committee) equal to the product of (1) the
number of shares with respect to which the SAR is being exercised and (2) the
difference between the fair market value of a share of Common Stock on the date
the SAR is exercised (or such other exercise price as may be specified in the
award) and the exercise price per share of the SAR. As a condition of exercise,
the holder must pay to the Company or make arrangements satisfactory to the
Company for the payment of applicable withholding taxes.


 


(e)           Deferral
of Payment.    The Committee may at any
time and from time to time provide for the deferral of delivery of any shares
and/or cash for which a SAR may be exercisable until such date or dates and
upon such other terms and conditions as the Committee may determine.


 


7.             Restricted
Stock Awards.


 


(a)           General.    Subject to the provisions of the Plan, the
Committee may award shares of Common Stock to eligible personnel upon such
terms and subject to such forfeiture and other conditions as the Committee
deems appropriate. The terms and conditions of any such stock award will be
evidenced by a written restricted stock agreement or other instrument approved
for this purpose by the Committee.


 


(b)           Stock
Certificates for Restricted Stock.   
Unless the Committee elects to use a different method (such as, for
example, the issuance and delivery of stock certificates) shares of restricted
stock will be evidenced by book entries on the Company’s stock transfer records
pending the expiration of restrictions thereon. If a stock certificate for
restricted stock is issued in the name of the grantee, it will bear an
appropriate legend to reflect the nature of the restrictions applicable to the
shares represented by the certificate, and the Committee may require that such
stock certificates be held in custody by the Company until the restrictions on
such shares have lapsed. The Committee may establish such other conditions as
it deems appropriate in connection with the issuance of stock certificates for
shares of restricted stock, including, without limitation, a requirement that
the grantee deliver a duly signed stock power, endorsed in blank, for the shares
covered by the award.


 


(c)           Purchase
Price.    The purchase price payable for
shares of restricted stock awarded under the Plan will be determined by the
Committee. To the extent permitted by applicable law, the purchase price may be
as low 


 


 


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as zero and, to the extent required by the applicable
law, the purchase price will be no less than the par value of the shares
covered by the award.


 


(d)           Restrictions
and Vesting.    The Committee will
establish such conditions as it deems appropriate on the grant or vesting of
restricted stock awarded under the Plan. Such conditions may be based upon
continued service, the attainment of performance goals (which, in the case of
grants of restricted stock intended to qualify for the performance-based
compensation exception under Section 162(m)(4)(C) of the Code,
satisfy the requirements of Section 8) and/or such other relevant factors
or criteria designated by the Committee. The holder of restricted stock will
not be permitted to transfer shares of restricted stock awarded under the Plan
before the time the applicable vesting conditions are satisfied.


 


(e)           Rights
as a Stockholder.    Except as provided
herein and as otherwise determined by the Committee, the recipient of a
restricted stock award shall have with respect to his or her restricted stock
all of the rights of a holder of shares of Common Stock, including, without
limitation, the right to receive any dividends, the right to vote such shares
and, subject to satisfaction of the applicable vesting conditions, the right to
tender such shares. The Committee may, in its sole discretion, determine at the
time of grant that the payment of dividends will be deferred until, and
conditioned upon, the satisfaction of the applicable vesting conditions.


 


(f)            Lapse
of Restrictions.    If and when the
vesting conditions are satisfied with respect to a restricted stock award, a
certificate for the shares covered by the award, to the extent vested, will be
delivered to the grantee. All legends shall be removed from said certificates
at the time of delivery except as otherwise required by applicable law.


 


8.             Performance-Based
Awards.


 


(a)           General.    The Committee may condition the exercise,
vesting or settlement of an award made under the Plan on the achievement of
specified performance goals. The provisions of this Section will apply in
the case of a performance-based award that is intended to generate “qualified
performance-based compensation” within the meaning of Section 162(m) of
the Code.


 


(b)           Objective
Performance Goals.    A performance goal
established in connection with an award covered by this Section must be (1) objective,
in the sense that a third party having knowledge of the relevant facts could
determine whether the goal is met, (2) prescribed in writing by the
Committee before the beginning of the applicable performance period or at such
later date (when fulfillment is substantially uncertain) as may be permitted
under Section 162(m) of the Code, and (3) expressed in the
following manner with respect to any one or more of the following business
criteria:


 


A.            attainment of certain target levels of, or a specified
percentage increase in, revenues, income before income taxes and extraordinary
items (determined in accordance with standards established by Opinion No. 30
of the Accounting Principles Board), net income, earnings before income tax,
earnings before interest, taxes, depreciation and amortization or a combination
of any or all of the foregoing;


 


B.            attainment of certain target levels of, or a percentage
increase in, after-tax or pre-tax profits;


 


C.            attainment of certain target levels of, or a specified
increase in, operational cash flow;


 


D.            achievement of a certain level of, reduction of, or other
specified objectives with regard to limiting the level of increase in, all or a
portion of, the Company’s bank debt or other long-term or short-term public or
private debt or other similar financial obligations of the Company, which may
be calculated net of such cash balances and/or other offsets and adjustments as
may be established by the Committee;


 


 


 


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E.             attainment of a specified percentage increase in
earnings per share or earnings per share from continuing operations;


 


F.             attainment of certain target levels of, or a specified
increase in return on capital employed or return on invested capital;


 


G.            attainment of certain target levels of, or a percentage
increase in, after-tax return on stockholders’ equity;


 


H.            attainment of certain target levels of, or a specified
increase in, economic value added targets based on a cash flow return on
investment formula;


 


I.              attainment of certain target levels in the fair market
value of the shares of the Company’s Common Stock; and


 


J.             growth in the value of an investment in the Company’s
Common Stock assuming the reinvestment of dividends.


 


If and
to the extent permitted under Section 162(m) of the Code, such
performance goals may be determined without regard to (or adjusted for) changes
in accounting methods, corporate transactions (including, without limitation,
dispositions and acquisitions) and other similar types of events or
circumstances occurring during the applicable performance period. The Committee
may not delegate any responsibility with respect to the establishment or
determination of performance goals to which awards covered by this Section are
subject.


 


(c)           Calculation
of Performance-Based Award.    At the
expiration of the applicable performance period, the Committee will determine
the extent to which the performance goals established pursuant to this Section are
achieved and the percentage of each performance-based award that has been
earned. The Committee may reduce the amount that would otherwise be payable
pursuant to an award covered by this Section, but may not exercise its
discretion to increase such amount.


 


9.             Non-Employee
Director Stock Option Awards.


 


(a)           Definition.    For all purposes hereof, the term “Non-Employee
Director” means any member of the Board who is not also an employee of the
Company of any affiliate.


 


(b)           Automatic
Grants.    Without further action by the
Board or the stockholders of the Company, (1) each Non-Employee Director
shall, subject to the terms of the Plan, be granted an option to purchase
22,500 shares of Common Stock on the date he or she first commences service as
a Non-Employee Director provided such date occurs after the date the Plan is
adopted (the “Initial Grant”), and (2) each Non-Employee Director will be
granted an option to purchase 5,000 shares of Common Stock on the trading day
following each annual meeting of the Company’s stockholders that occurs after
the date the Plan is adopted and at least one year after the date he or she
first became a Non-Employee Director (the “Annual Grant”). Notwithstanding the
foregoing, no future grants of options pursuant to this Section 9 shall be
made on or after June 16, 2005.


 


(c)           Option
Agreement.    Stock options granted
pursuant to this Section 9 will be NQSOs. Such options shall be evidenced
by written option agreements on a form approved by the Board. Such agreements
shall contain such terms and conditions as are not inconsistent with the terms
and conditions hereof.


 


(d)           Terms
of Options.


 


(i)            Exercise
Price.    The purchase price per share
deliverable upon the exercise of an option shall be 100% of the closing price
of such Common Stock, as published by the principal national securities
exchange 


 


 


 


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(including, but not limited to, NASDAQ) on which
shares of the Common Stock are traded on such date, at the date of the grant of
the Option.


 


(ii)           Vesting
Conditions.    An Initial Grant will be
50% vested at the time of the grant, and will become 100% vested on the first
anniversary of the date of grant, provided the optionee is still a Non-Employee
Director on the vesting date. An Annual Grant will become vested as to 50% of
the shares originally covered thereby on each of the first two anniversaries of
the grant date, provided the optionee is still a Non-Employee Director on the
vesting date.


 


(iii)          Effect
of Termination of Service.    The
provisions of Section 11(a) shall apply to options granted pursuant
to this Section 9.


 


(iv)          Capital
Transactions; Change in Control.    The
provisions of Section 12 shall apply to options granted pursuant to this Section 9.


 


(e)           Expiration.    Except as otherwise provided herein, if not
previously exercised, each option will expire on the tenth anniversary of the
date of grant.


 


9A.          Non-Employee
Director Common Stock Awards.


 


(a)           Automatic
Grants.    From and after June 16,
2005, without further action by the Board or the stockholders of the Company: (1) each
Non-Employee Director shall be granted 5,000 shares of Common Stock on the date
he or she first commences service as a Non-Employee Director (the “Initial
Stock Grant”), and (2) each Non-Employee Director shall be granted 2,500
shares of Common Stock on the trading day following each annual meeting of the
Company’s stockholders, provided that such Non-Employee Director was a member
of the Board on or was appointed or elected to the Board at the preceding
annual meeting of the Company’s stockholders (the “Annual Stock Grant”).


 


(b)           Award
Agreement.    The Initial Stock Grant and
the Annual Stock Grant shall be evidenced by written award agreements on a form
approved by the Board. Such agreements shall contain such terms and conditions
as are not inconsistent with the terms and conditions hereof.


 


(c)           Terms
and Conditions of Common Stock Awards.


 


(i)            Vesting
Conditions.    Each Initial Stock Grant
shall be immediately vested with respect to fifty percent (50%) of the shares
of Common Stock on the grant date and shall become vested with respect to the
remaining fifty percent (50%) of the shares of Common Stock on the first
anniversary of the grant date, provided the Non-Employee Director remains in
service on the Board through such anniversary date. Each Annual Stock Grant
shall become vested with respect to fifty percent (50%) of the shares of Common
Stock on each of the first two anniversaries of the grant date, provided the
Non-Employee Director remains in service on the Board through such anniversary
date. Notwithstanding the foregoing, all unvested shares of Common Stock
granted pursuant to this Section 9A shall immediately vest in full upon
the occurrence of a Change in Control (as defined below).


 


(ii)           Transfer
Restrictions.    A Non-Employee Director
may not sell, assign, transfer, dispose of, pledge or otherwise hypothecate any
unvested shares of Common Stock granted pursuant to this Section 9A prior
to the date on which such shares become vested pursuant to subsection (c)(i) above.


 


(iii)          Termination
of Service on the Board.    Upon the
termination of a Non-Employee Director’s service on the Board for any reason
(including death and disability) or no reason, all then unvested shares of
Common Stock granted pursuant to this Section 9A shall automatically be
forfeited by the Non-Employee Director (or his successors) to the Company,
without compensation, and any certificate therefor or book entry with respect
thereto or other evidence thereof will be canceled.


 


 


 


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(iv)          Stock
Certificates.    Unless the Board elects
to use a different method, if and when the vesting conditions, if any, are
satisfied with respect to shares of Common Stock granted pursuant to this Section 9A,
a stock certificate or certificates representing such shares will be promptly
delivered to the Non-Employee Director (and shall not bear any legend at the
time of delivery, except as otherwise required by applicable law).


 


(v)           Rights
as a Stockholder.    A Non-Employee
Director shall not have the rights of a stockholder with respect to unvested
shares of Common Stock granted pursuant to this Section 9A, except the
right to receive any dividends with respect thereto and, subject to
satisfaction of the applicable vesting conditions with respect to any unvested
shares of Common Stock, the right to tender such shares. Any such dividend
shall be subject to the vesting, transfer and forfeiture conditions contained
herein to the same extent as the shares with respect to which such dividend is
made.


 


10.           Non-Transferability
of Awards.    No stock option, SAR,
Performance Award or other stock-based award under the Plan shall be
transferable by the recipient other than upon the recipient’s death to a
beneficiary designated by the recipient in a manner acceptable to the
Committee, or, if no designated beneficiary shall survive the recipient,
pursuant to the recipient’s will or by the laws of descent and distribution.
All stock options and SARs shall be exercisable during the recipient’s lifetime
only by the recipient. Tandem stock appreciation rights shall be transferable,
to the extent permitted above, only with the underlying stock option. Shares of
restricted stock may not be transferred prior to the date on which shares are
issued, or, if later, the date on which such shares have vested and are free of
any applicable restriction imposed hereunder. Except as otherwise specifically
provided by law or the provisions hereof, no award received under the Plan may
be transferred in any manner, and any attempt to transfer any such award shall
be void, and no such award shall in any manner be liable for or subject to the
debts, contracts, liabilities, engagements or torts of any person who shall be
entitled to such award, nor shall it be subject to attachment or legal process
for or against such person. Notwithstanding the foregoing, the Committee may
determine at the time of grant or thereafter that an NQSO is transferable in
whole or part to such persons, under such circumstances, and subject to such
conditions as the Committee may prescribe.


 


11.           Effect
of Termination of Employment or Service.   
Unless otherwise determined by the Committee at grant or, if no rights
of the participant are thereby reduced, thereafter, and subject to earlier
termination in accordance with the provisions hereof, the following rules apply
with regard to vesting and exercise of awards held by a participant at the time
of his or her termination of employment or other service with the Company and
its affiliates.


 


(a)           Rules Applicable
to Stock Options and SARs.


 


1)             Termination by Reason of Death.    If a participant’s employment or service
terminates by reason of his or her death, then any stock option or SAR held by
the deceased participant will thereupon become fully vested and may be
exercised by the deceased participant’s beneficiary at any time within one year
from the date of death but in no event after expiration of the stated term.


 


2)             Termination by Reason of Disability.    If a participant’s employment or service
terminates by reason of his or her disability (defined below), then any stock
option or SAR held by the participant, to the extent exercisable on the date
his or her employment or service terminates, may be exercised by the
participant at any time within one year from the date his or her employment or
service terminates but in no event after expiration of the stated term. If the
participant dies during such one-year period and before the option or SAR is
exercised, then the deceased participant’s beneficiary may exercise the option
or SAR, to the extent exercisable by the deceased participant immediately prior
to his or her death, for a period of one year following the date of death but
in no event after expiration of the stated term. For the purposes hereof, the
term “disability” means the inability of a participant to perform the customary
duties of his or her employment or other service for the Company or an
affiliate by reason of a physical or mental incapacity which is expected to
result in death or be of indefinite duration.


 


3)             Other Termination.   
If a participant’s employment or service terminates for any reason (other
than death or disability) or no reason, then all stock options and SARs held by
the 


 


 


 


9

















 


 


participant, to the extent otherwise exercisable on
the date his or her employment or service is terminated, may be exercised by
the participant at any time within a period of six months from the termination
date, but in no event beyond the expiration of the stated term of such stock
options and SARs.


 


(b)           Rules Applicable
to Restricted Stock.    Upon the termination
of a participant’s employment or service for any reason (including death and
disability) or no reason, restricted stock which has not yet become fully
vested will, unless otherwise determined by the Committee, automatically be
forfeited by the participant (or the participant’s successors) and any
certificate therefor or book entry with respect thereto or other evidence
thereof will be canceled.


 


(c)           Rules Applicable
to Performance-Based Awards.    Upon
termination of a participant’s employment or service for any reason (including
death and disability) or no reason, then the participant’s outstanding
performance-based awards will, unless otherwise determined by the Committee,
thereupon expire and the participant (or his or her beneficiary, as the case may
be) will not be entitled to receive any amount in respect of the performance
period or cycle within which the participant’s employment or service is
terminated.


 


(d)           Rules Applicable
to Other Stock-Based Awards.    Rules similar
to those set forth in subsection (b) (relating to restricted stock awards)
will apply in connection with the termination of employment or service of a
participant who holds any other form of stock-based award granted under the
plan that has not yet vested and/or is contingent upon future performance of
services.


 


12.           Capital
Changes; Change in Control.


 


(a)           Adjustments
Upon Changes in Capitalization.    The
aggregate number and class of shares for which awards may be granted under the
Plan, the maximum number of shares covered by awards that may be granted to any
individual in any calendar year, the number and class of shares that will be
covered by automatic grants made to Non-Employee Directors pursuant to Section 9A,
the number and class of shares covered by each outstanding award and, if
applicable, the exercise price per share shall all be adjusted proportionately
or as otherwise appropriate to reflect any increase or decrease in the number
of issued shares of Common Stock resulting from a split-up or consolidation of
shares or any like capital adjustment, or the payment of any stock dividend,
and/or to reflect a change in the character or class of shares covered by the
Plan arising from a readjustment or recapitalization of the Company’s capital
stock.


 


(b)           Change
in Control.    If, in connection with a Change in Control
(defined below), the stockholders of the Company receive capital stock of
another corporation (“Exchange Stock”) in exchange for their shares of Common
Stock (whether or not such Exchange Stock is the sole consideration), and if
the Board so directs, then all outstanding options will be converted into
options to purchase shares of Exchange Stock. The number of shares and exercise
price under the converted options will be determined by adjusting the number of
shares and exercise price for the options granted hereunder on the same basis
as the determination of the number of shares of Exchange Stock the holders of
Common Stock will receive in connection with the Change in Control and, unless
the Board determines otherwise, the vesting conditions with respect to the
converted options will be substantially the same as the vesting conditions set
forth in the original option agreement. If the Board does not direct the
conversion of outstanding options in connection with a Change in Control, then
all optionees will be permitted to exercise their outstanding options in whole
or in part (whether or not otherwise vested or exercisable) prior to the Change
in Control, and any outstanding options which are not exercised before the
Change in Control will thereupon terminate.


 


(c)           Definition
of Change in Control.  For purposes of
the Plan, a “Change in Control” means at such time as any of:


 


(i)            the direct or indirect sale,
transfer, conveyance or other disposition, in one or a series of related
transactions, of all or substantially all of the properties or assets of the
Company and its subsidiaries, taken as 


 


 


 


10

















 


 


a whole, to any “person” (within the meaning of Section 13(d) of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”));


 


(ii)           the stockholders of the Company
approve a plan of complete liquidation of the Company;


 


(iii)          any “person” or “group” (within the
meaning of Sections 13(d) and 14(d)(2) of the Exchange Act), other
than any Permitted Investor, is or becomes the “beneficial owner” (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of more
than 25% of the total voting power of the Voting Interests of the Company on a
fully diluted basis;


 


(iv)          the stockholders of the Company
approve a merger or consolidation of the Company with any other entity, other
than a merger or consolidation which would result in the voting securities of
the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities
of the surviving entity) more than 50% of the total voting power represented by
the voting securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation; or


 


(v)           the first day as of which a majority
of the members of the Board of Directors of the Company are not Continuing
Directors.


 


For
purposes of the definition of Change in Control:


 


“Continuing
Directors” means (i) the directors of the Company on the Effective Date,
and (ii) each other director if, in each case, such other director’s
nomination or election for election to the Board of Directors of the Company is
recommended or approved by at least a majority of the then Continuing
Directors.


 


“Effective
Date” means January 1, 2008.


 


“Permitted
Investor” means (i) any person that owns shares of Class B Common
Stock of the Company on the Effective Date; provided, however, that, no person
that owns shares of Class B Common Stock on the Effective Date shall be
deemed a Permitted Investor pursuant to the exemption provided in this clause (i) once
such person no longer holds all or substantially all of such shares of Class B
Common Stock (whether as a result of the conversion of such shares or
otherwise); (ii) any person or group (within the meaning of Sections 13(d) and
14(d)(2) of the Exchange Act) that a majority of the Continuing Directors
shall have approved the acquisition of more than 25% of the outstanding Voting
Interest by such person or group; provided that such Continuing Directors
approve such acquisition (1) prior to the date such person or group
beneficially owns, directly or indirectly, more than 5% of the Voting
Interest,  (2) in the case of any
holder of more than 5% and less than 10% of the Common Stock on the Effective
Date , prior to the date such person or group beneficially owns, directly or
indirectly, more than 10% of the Voting Interest  (or 15% of the Voting Interest if such holder
owns more than 10% of the Voting Interest solely as a result of the conversion
of all or substantially all of the shares of Class B Common Stock), or (3) in
the case of any holder of more than 10% of the Common Stock on the Effective
Date, prior to the date such person or group beneficially owns, directly or
indirectly, more than 20% of the Voting Interest; or (iii) any employee
benefit plan (or any trust forming a part thereof) maintained by the Company or
any subsidiary of the Company. 
Notwithstanding the foregoing, no such person or group shall be deemed a
Permitted Investor if, in connection with the acquisition of the Voting
Interest by such person or group, the Voting Interest are no longer listed on a
U.S. national securities exchange or the NASDAQ Stock Market.


 


“Voting Interests” means shares of capital stock
issued by the Company, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors of the Company,
even if the right so to vote has been suspended by the happening of such a
contingency.


 


 


 


11

















 


 


                In the event of a Change in
Control, the Company shall have the right (but not the obligation) to pay to an
individual, in full satisfaction of all rights and entitlements of the
individual pursuant to an award granted under the Plan and in lieu of the
delivery of any Common Stock, either (i) cash or (ii) the same
consideration as received by the holders of common stock pursuant to the Change
in Control, equal to the fair market value of the award as of the date of the
Change of Control.


 


(d)           Fractional
Shares.    In the event of any adjustment
in the number of shares covered by any option pursuant to the provisions
hereof, any fractional shares resulting from such adjustment will be
disregarded, and each such option will cover only the number of full shares
resulting from the adjustment.


 


(e)           Determination
of Board to be Final.    All adjustments
under this Section shall be made by the Board, and its determination as to
what adjustments shall be made, and the extent thereof, shall be final, binding
and conclusive.


 


13.           Amendment
and Termination.    The Board may amend
or terminate the Plan, provided, however, that no such action may affect
adversely the accrued rights of the holder of any outstanding award without the
consent of the holder. Except as otherwise provided in Section 12, any
amendment which would increase the aggregate number of shares of Common Stock
for which awards may be granted under the Plan or modify the class of
recipients eligible to receive stock-based awards under the Plan shall be
subject to the approval of the Company’s stockholders. The Committee may amend
the terms of any agreement or certificate made or issued hereunder at any time
and from time to time provided, however, that any amendment which would
adversely affect the accrued rights of the holder may not be made without his
or her consent.


 


14.           No
Rights Conferred.    Nothing contained
herein will be deemed to give any individual any right to receive an option
under the Plan or to be retained in the employ or service of the Company or any
affiliate of the Company.


 


15.           Governing
Law.    The Plan and each option
agreement shall be governed by the laws of the State of Delaware, except as otherwise
provided in the option agreement.


 


16.           Decisions
and Determinations of Committee to be Final.   
Any decision or determination made by the Board pursuant to the
provisions hereof and, except to the extent rights or powers under this Plan
are reserved specifically to the discretion of the Board, all decisions and
determinations of the Committee are final and binding.


 


17.           Term
of the Plan.    The Plan shall be
effective as of December 9, 1998, subject to the approval of the
stockholders of the Company within one year from the date of adoption by the
Board. The Plan will terminate on December 9, 2008, unless sooner
terminated by the Board. The rights of any person with respect to an award made
under the Plan that is outstanding at the time of the termination of the Plan
shall not be affected solely by reason of the termination of the Plan and shall
continue in accordance with the terms of the award (as then in effect or
thereafter amended) and the Plan.


 


 


 


 


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