Exhibit 10.1





Exhibit 10.1




PIKE ELECTRIC CORPORATION




2008 Omnibus Incentive Compensation Plan,

as Amended and Restated Effective November 3, 2011




SECTION 1. Purpose. The purpose of this Pike Electric Corporation 2008 Omnibus
Incentive Compensation Plan is to promote the interests of Pike Electric Corporation, a Delaware
corporation (the “Company”), and its stockholders by (a) attracting and retaining exceptional
directors, officers, employees and consultants (including prospective directors, officers,
employees and consultants) of the Company and its Affiliates and (b) enabling such individuals to
participate in the long-term growth and financial success of the Company. The Company originally
established this Plan effective as of January 1, 2008. This Plan is hereby being amended and
restated, subject to and effective upon the approval of the Company’s stockholders at the annual
meeting of stockholders on November 3, 2011. The purpose of amending and restating the Plan is to
(i) authorize the issuance of additional Shares under the Plan, (ii) extend the term of the Plan by
four years and (iii) make certain other design changes consistent with changes in the economic and
business environment since the Plan was established.



SECTION 2. Definitions. As used herein, the following terms have the meanings set
forth below:



“Affiliate” means (a) any entity that, directly or indirectly, is controlled by, controls or
is under common control with, the Company and (b) any entity in which the Company has a significant
equity interest, in either case as determined by the Committee.




“Award” means any award that is made to a Participant under Section 6.



“Award Agreement” means any written agreement, contract or other instrument or document
evidencing any Award, which may, but need not, require execution or acknowledgment by a
Participant.



“Beneficial Ownership” or “Beneficial Owners” have the meanings assigned to those terms in
Rule 13d-3 under the Exchange Act.




“Board” means the Board of Directors of the Company.




“Cash Incentive Award” has the meaning specified in Section 6(g).




“Change in Control” means the occurrence of any of the following events:



(a) at any time during any period of 24 consecutive months at least a majority of the Board
shall cease to consist of directors of the Company who either were directors at the beginning of
such period or who subsequently became directors and whose election, or nomination for election by
the Company’s stockholders, was approved by a majority of the then Incumbent Directors (“Incumbent
Directors”); or



(b) any “person” or “group,” as determined in accordance with Section 13(d)(3) of the Exchange
Act (other than (A) any Subsidiary or employee benefit plan (or related trust or fiduciary)
sponsored or maintained by the Company or an Affiliate or (B) Lindsay Goldberg, LLC and its
affiliates)
acquires Beneficial Ownership of thirty-five percent (35%) or more of the combined voting
power of the then outstanding Company Voting Securities, unless such acquisition is approved by a
majority of the directors of the Company in office immediately preceding such acquisition; or


 


 









 





(c) the consummation of a merger, consolidation, statutory share exchange or similar
transaction to which the Company or any Subsidiary is a party (a “Merger”), unless immediately
following the Merger:




(1) the Beneficial Owners of the Company Voting Securities outstanding immediately
prior to such Merger are the Beneficial Owners of more than 50% of the combined voting
power of the then outstanding voting securities of the corporation or other entity
resulting from such Merger (including a corporation or other entity that as a result of
such Merger directly or indirectly owns the Company or all or substantially all the
Company’s assets) (the “Continuing Company”), provided such Beneficial Ownership is
attributable solely to Company Voting Securities held immediately prior to such Merger;
and




(2) at least a majority of the members of the board of directors (or equivalent
body) of the Continuing Company are Incumbent Directors; or




(d) the consummation of the sale of all, or substantially all, of the Company’s assets; or




(e) the stockholders of the Company approve a plan of complete liquidation of the Company.



Notwithstanding the foregoing, with respect to any Awards that provide or may provide for a
deferral of compensation within the meaning of Section 409A of the Code and that provide for an
accelerated payment in connection with a Change in Control, a Change in Control shall not be deemed
to have occurred unless the event shall also qualify as a “change in control event” under Section
409A of the Code.



“Code” means the Internal Revenue Code of 1986, as amended from time to time, together with
the rules, regulations and interpretations promulgated thereunder.



“Committee” means the Compensation Committee of the Board, or such other committee of the
Board as may be designated by the Board to administer the Plan.



“Company Voting Securities” means the securities eligible to vote for the election of the
Board.



“Deferred Share Unit” means a deferred share unit Award that represents an unfunded and
unsecured promise to deliver Shares in accordance with the terms of the applicable Award Agreement.



“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time,
together with the rules, regulations and interpretations promulgated thereunder.



“Exercise Price” means (a) in the case of Options, the price specified in the applicable Award
Agreement as the price-per-Share at which Shares may be purchased pursuant to such Option or (b) in
the case of SARs, the price specified in the applicable Award Agreement as the reference
price-per-Share used to calculate the amount payable to the Participant.


 


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“Fair Market Value” means



(a) with respect to any property other than Shares, the fair market value of such property
determined by such methods or procedures as shall be established from time to time by the
Committee; and



(b) with respect to the Shares, as of any date, (i) if the Shares are listed on the NYSE or
any other exchange or quotation system, the mean between the high and low sales prices of the
Shares on such exchange or quotation system for such date or, if no sales occur on such date, then
on the next preceding date on which there were sales of Shares; or (ii) in the event the Shares are
not listed on an exchange or quotation system, the fair market value of the Shares as determined in
good faith by the Committee, in each case with respect to this clause (b), as determined in
accordance with Section 409A of the Code to the extent required under Section 409A of the Code.



“Incentive Stock Option” means an option to purchase Shares from the Company that (a) is
granted under Section 6 and (b) is intended to be and is specifically designated as an “incentive
stock option” within the meaning of Section 422 of the Code.



“Independent Director” means a member of the Board who is neither (a) an employee of the
Company nor (b) an employee of any Affiliate, and who, at the time of acting, is a “Non-Employee
Director” under Rule 16b-3.



“IRS” means the Internal Revenue Service or any successor thereto and includes the staff
thereof.



“Nonqualified Stock Option” means an option to purchase Shares from the Company that (a) is
granted under Section 6 and (b) is not an Incentive Stock Option.




“NYSE” means the New York Stock Exchange or any successor thereto.



“Option” means an Incentive Stock Option or a Nonqualified Stock Option or both, as the
context requires.



“Participant” means any director, officer, employee or consultant of the Company or its
Affiliates who is eligible for an Award under Section 5 and who is selected by the Committee to
receive an Award under the Plan or who receives a Substitute Award pursuant to Section 4(c).



“Performance Compensation Award” means any Award designated by the Committee as a Performance
Compensation Award pursuant to Section 6(e).



“Performance Criteria” means the criterion or criteria that the Committee selects for purposes
of establishing a Performance Goal for a Performance Period with respect to any Performance
Compensation Award, Performance Unit or Cash Incentive Award under the Plan.



“Performance Formula” means, for a Performance Period, the one or more objective formulas
applied against the relevant Performance Goal to determine, with regard to the Performance
Compensation Award, Performance Unit or Cash Incentive Award of a particular Participant, whether
all, a portion or none of the Award has been earned for the Performance Period.



“Performance Goal” means, for a Performance Period, the one or more goals established by the
Committee for the Performance Period based upon the Performance Criteria.



“Performance Period” means the one or more periods of time as the Committee may select over
which the attainment of one or more Performance Goals will be measured for the purpose of
determining
a Participant’s right to and the payment of a Performance Compensation Award, Performance Unit
or Cash Incentive Award.


 


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“Performance Unit” means an Award under Section 6(f) that has a value set by the Committee (or
that is determined by reference to a valuation formula specified by the Committee or the Fair
Market Value of Shares), which value may be paid to the Participant by delivery of such property as
the Committee shall determine, upon achievement of such Performance Goals during the relevant
Performance Period as the Committee shall establish at the time of such Award or thereafter.



“Plan” means this Pike Electric Corporation 2008 Omnibus Incentive Compensation Plan, as in
effect from time to time.



“Restricted Share” means a Share delivered under the Plan that is subject to certain transfer
restrictions, forfeiture provisions and/or other terms and conditions specified herein and in the
applicable Award Agreement.



“RSU” means a restricted stock unit Award that is designated as such in the applicable Award
Agreement and that represents an unfunded and unsecured promise to deliver Shares, cash, other
securities, other Awards or other property in accordance with the terms of the applicable Award
Agreement.



“Rule 16b-3” means Rule 16b-3 as promulgated and interpreted by the SEC under the Exchange Act
or any successor rule or regulation thereto as in effect from time to time.



“SAR” means a stock appreciation right Award that represents an unfunded and unsecured promise
to deliver Shares, cash, other securities, other Awards or other property equal in value to the
excess, if any, of the Fair Market Value per Share over the Exercise Price per Share of the SAR,
subject to the terms of the applicable Award Agreement.



“SEC” means the Securities and Exchange Commission or any successor thereto and shall include
the staff thereof.



“Shares” means shares of common stock of the Company or such other securities of the Company
(a) into which such shares shall be changed by reason of a recapitalization, merger, consolidation,
split-up, combination, exchange of shares or other similar transaction or (b) as may be determined
by the Committee pursuant to Section 4(b).



“Subsidiary” means any entity in which the Company, directly or indirectly, possesses 50% or
more of the total combined voting power of all classes of its stock.




“Substitute Awards” have the meaning specified in Section 4(c).




“Substituted Options” have the meaning specified in Section 6(c)(v).




“Substitution SARs” have the meaning specified in Section 6(c)(v).




SECTION 3. Administration.



(a) Composition of Committee. The Plan shall be administered by the Committee, which
shall be composed of one or more directors, as determined by the Board; provided that to the extent
necessary to comply with the rules of the NYSE and Rule 16b-3 and to satisfy any applicable
requirements of Section 162(m) of the Code and any other applicable laws or rules, the
Committee shall be composed of two or more directors, all of whom shall be Independent Directors
and all of whom shall (i) qualify as “outside directors” under Section 162(m) of the Code and (ii)
meet the independence requirements of the NYSE.


 


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(b) Authority of Committee. Subject to the terms of the Plan and applicable law, and
in addition to other express powers and authorizations conferred on the Committee by the Plan, the
Committee is authorized to grant Awards under the Plan, to construe and interpret the Plan, to
promulgate, amend and rescind rules and regulations relating to the implementation of the Plan and
to make all other determinations necessary or advisable for the administration of the Plan;
provided, however, that any permitted accelerations, deferrals or payments in respect of any Award
granted under the Plan shall comply with all applicable requirements of Section 409A of the Code,
including the timing of any deferral elections and the timing and form of payments. Unless
otherwise expressly provided in the Plan, all designations, determinations, interpretations and
other decisions under or with respect to the Plan or any Award shall be within the sole and plenary
discretion of the Committee, may be made at any time and shall be final, conclusive and binding
upon all persons, including the Company, any Affiliate, any Participant, any person validly
claiming under or through any Participant, any holder or beneficiary of any Award and any
stockholder. The Company shall effect the granting of Awards under the Plan in accordance with the
determinations made by the Committee, by execution of instruments in writing in such form as are
approved by the Committee.



(c) Indemnification. No member of the Board, the Committee or any employee of the
Company (each such person, a “Covered Person”) shall be liable for any action taken or omitted to
be taken or any determination made in good faith with respect to the Plan or any Award hereunder.
Each Covered Person shall be indemnified and held harmless by the Company against and from (i) any
loss, cost, liability or expense (including attorneys’ fees) that may be imposed upon or incurred
by such Covered Person in connection with or resulting from any action, suit or proceeding to which
such Covered Person may be a party or in which such Covered Person may be involved by reason of any
action taken or omitted to be taken under the Plan or any Award Agreement and (ii) any and all
amounts paid by such Covered Person, with the Company’s approval, in settlement thereof, or paid by
such Covered Person in satisfaction of any judgment in any such action, suit or proceeding against
such Covered Person; provided that the Company shall have the right, at its own expense, to assume
and defend any such action, suit or proceeding, and, once the Company gives notice of its intent to
assume the defense, the Company shall have sole control over such defense with counsel of the
Company’s choice. The foregoing right of indemnification shall not be available to a Covered Person
to the extent that a court of competent jurisdiction in a final judgment or other final
adjudication, in either case not subject to further appeal, determines that the acts or omissions
of such Covered Person giving rise to the indemnification claim resulted from such Covered Person’s
bad faith, fraud or willful criminal act or omission or that such right of indemnification is
otherwise prohibited by law or by the Company’s Certificate of Incorporation or Bylaws. The
foregoing right of indemnification shall not be exclusive of any other rights of indemnification to
which Covered Persons may be entitled under the Company’s Certificate of Incorporation or Bylaws,
as a matter of law, or otherwise, or any other power that the Company may have to indemnify such
persons or hold them harmless.



(d) Delegation of Authority to Senior Officers. To the extent permitted by applicable
law, the Committee may delegate, on such terms and conditions as it determines in its sole and
plenary discretion, to one or more senior officers of the Company the authority to make grants of
Awards to officers (other than executive officers), employees and consultants of the Company and
its Affiliates (including any prospective officer, employee or consultant).


 


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(e) Awards to Independent Directors. Notwithstanding anything to the contrary
contained herein, the Board may, in its sole and plenary discretion, at any time and from time to
time, grant Awards to Independent Directors or administer the Plan with respect to such Awards. In
any such case, the Board shall have all the authority and responsibility granted to the Committee
herein.




SECTION 4. Shares Available for Awards.



(a) Shares Available. Subject to adjustment as provided in Section 4(b), the aggregate
number of Shares that may be delivered pursuant to Awards granted under the Plan shall be 5,000,000
(which is comprised of the original 2,500,000 Shares authorized upon establishment of the Plan plus
an additional 2,500,000 Shares added effective upon approval by the stockholders of this amendment
and restatement of the Plan). The maximum number of Shares that may be delivered pursuant to
Incentive Stock Options granted under the Plan shall be 500,000. The maximum number of each type
of Award (other than Cash Incentive Awards) intended to constitute “performance-based compensation”
under Code Section 162(m) granted to any Participant in any fiscal year shall not exceed the
following: Options/SARs, 600,000; performance-based Restricted Shares/RSUs, 600,000; and
Share-based Performance Units, 600,000. If, after the effective date of the Plan, any Award
granted under the Plan is forfeited, or otherwise expires, terminates or is canceled without the
delivery of Shares, then the Shares covered by such forfeited, expired, terminated or canceled
Award shall again become available to be delivered pursuant to Awards under the Plan. If Shares
issued upon exercise, vesting or settlement of an Award, or Shares owned by a Participant (which
are not subject to any pledge or other security interest and which have been owned by the
Participant for such minimum period of time as the Company determines necessary to avoid any
adverse accounting consequences), are surrendered or tendered to the Company in payment of the
Exercise Price of an Award or any taxes required to be withheld in respect of an Award, in each
case, in accordance with the terms and conditions of the Plan and any applicable Award Agreement,
such surrendered or tendered Shares shall again become available to be delivered pursuant to Awards
under the Plan.



(b) Adjustments for Changes in Capitalization and Similar Events. In the event of any
change in corporate capitalization, such as a stock split, or a corporate transaction, such as any
merger, consolidation, separation, including a spin-off, or other distribution of stock or property
of the Company, any reorganization (whether or not such reorganization comes within the definition
of such term in Code Section 368) or any partial or complete liquidation of the Company, such
adjustment shall be made in (A) the number and class of Shares which may be issued under the Plan,
(B) the number and class of Shares that may be granted as ISOs as specified in Section 4(a), (C)
the maximum number and class of Shares that may be granted to individuals in a fiscal year as
specified in Section 4(a), and (D) the number and class of and/or price of Shares subject to
outstanding Awards granted under the Plan, as may be determined to be appropriate and equitable by
the Committee, in its sole discretion, to prevent dilution or enlargement of rights;
provided, however, that (i) the number of Shares subject to any Award shall always
be a whole number and (ii) such adjustment shall be made in a manner consistent with the
requirements of Code Section 409A in order for any Options or SARs to remain exempt from the
requirements of Code Section 409A. In connection with a corporate transaction, the Committee may:




(i) if deemed appropriate or desirable by the Committee, make provision for a cash
payment to the holder of an outstanding Award in consideration for the cancellation of such
Award, including, in the case of an outstanding Option or SAR, a cash payment to the holder
of such Option or SAR in consideration for the cancellation of such Option or SAR in an
amount equal to the excess, if any, of the Fair Market Value (as of a date specified by the
Committee) of the Shares subject to such Option or SAR over the aggregate Exercise Price of
such Option or SAR; and


 


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(ii) if deemed appropriate or desirable by the Committee, cancel and terminate any
Option or SAR having a per Share Exercise Price equal to, or in excess of, the Fair Market
Value of a Share subject to such Option or SAR without any payment or consideration
therefor.



(c) Substitute Awards. Awards may, in the discretion of the Committee, be granted
under the Plan in assumption of, or in substitution for, outstanding awards previously granted by a
company acquired by the Company or any of its Affiliates or with which the Company or any of its
Affiliates combines (“Substitute Awards”). Substitute Awards shall not be counted against the
aggregate number of Shares available for Awards under the Plan.



(d) Sources of Shares Deliverable Under Awards. Shares issued under the Plan may be
original issue shares, treasury stock or shares purchased in the open market or otherwise, all as
determined by the Chief Financial Officer of the Company (or the Chief Financial Officer’s
designee) from time to time, unless otherwise determined by the Committee.



SECTION 5. Eligibility. Any director, officer, employee or consultant of the Company
or any of its Affiliates shall be eligible to be designated a Participant.




SECTION 6. Awards.



(a) Types of Awards. Awards may be made under the Plan in the form of (i) Options,
(ii) SARs, (iii) Restricted Shares, (iv) RSUs, (v) Performance Units, (vi) Cash Incentive Awards,
(vii) Deferred Share Units and (viii) other equity-based or equity-related Awards that the
Committee determines are consistent with the purpose of the Plan and the interests of the Company.
Awards may be granted in tandem with other Awards. No Incentive Stock Option (other than an
Incentive Stock Option that may be assumed or issued by the Company in connection with a
transaction to which Section 424(a) of the Code applies) may be granted to a person who is
ineligible to receive an Incentive Stock Option under the Code.




(b) Options.




(i) Grant. Subject to the provisions of the Plan, the Committee has sole and
plenary authority to determine the Participants to whom Options shall be granted, the number of
Shares to be covered by each Option, whether the Option will be an Incentive Stock Option or a
Nonqualified Stock Option and the conditions and limitations applicable to the vesting and
exercise of the Option. In the case of Incentive Stock Options, the terms and conditions of such
grants shall be subject to and comply with such rules as may be prescribed by Section 422 of the
Code and any regulations related thereto, as may be amended from time to time. All Options
granted under the Plan shall be Nonqualified Stock Options unless the applicable Award Agreement
expressly states that the Option is intended to be an Incentive Stock Option. If an Option is
intended to be an Incentive Stock Option, and if for any reason such Option (or any portion
thereof) shall not qualify as an Incentive Stock Option, then, to the extent of such
nonqualification, such Option (or portion thereof) shall be regarded as a Nonqualified Stock
Option appropriately granted under the Plan; provided that such Option (or portion thereof)
otherwise complies with the Plan’s requirements relating to Nonqualified Stock Options.




(ii) Exercise Price. Except for Substitute Awards, the Exercise Price of each Share
covered by an Option shall be not less than 100% of the Fair Market Value of such Share
(determined as of the date the Option is granted); provided, however, that in the case of an
Incentive Stock Option granted to an employee who, at the time of the grant of such Option, owns
stock representing more than 10% of the voting power of all classes of stock of the Company or
any Affiliate, the per Share Exercise Price shall be no less than 110% of the Fair Market Value
per Share on the date of the grant.
Options are intended to qualify as “qualified performance-based compensation” under Section
162(m) of the Code.


 


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(iii) Exercisability. Each Option shall be vested and exercisable at such times, in
such manner and subject to such terms and conditions as the Committee may, in its sole and
plenary discretion, specify in the applicable Award Agreement or thereafter. Except as otherwise
specified by the Committee in the applicable Award Agreement, an Option may only be exercised to
the extent that it has already vested at the time of exercise. Except as otherwise specified by
the Committee in the applicable Award Agreement, Options shall become vested and exercisable
with respect to one-third of the Shares subject to such Options on each of the first three
anniversaries of the date of grant.




(iv) Method of Exercise. An Option shall be deemed to be exercised when written or
electronic notice of such exercise has been given to the Company in accordance with the terms of
the Award by the person entitled to exercise the Award and full payment for the Shares with
respect to which the Award is exercised has been received by the Company. The Committee may
impose such conditions with respect to the exercise of Options, including, without limitation,
any relating to the application of Federal or state securities laws, as it may deem necessary or
advisable. No Shares shall be delivered pursuant to any exercise of an Option until payment in
full of the aggregate Exercise Price therefor is received by the Company, and the Participant
has paid to the Company an amount equal to any Federal, state, local and foreign income and
employment taxes required to be withheld.




The Exercise Price due upon exercise of any Option shall be payable to the Company in full
either: (A) in cash or its equivalent or (B) in the Committee’s sole and plenary discretion, by
tendering previously acquired Shares having an aggregate Fair Market Value at the time of
exercise equal to the aggregate Exercise Price (provided that the shares which are tendered must
have been held by the Participant for such minimum period of time as the Company determines
necessary to avoid any adverse accounting consequences), or (C) by a combination of (A) and (B).




As soon as practicable after notification of exercise and full payment, the Company shall
deliver the shares to the Participant in an appropriate amount based upon the number of shares
purchased under the Option.




Notwithstanding the foregoing provisions of this paragraph 6(b)(iv), (A) unless the
Committee determines otherwise, Options may be exercised by means of cashless exercises
(including “broker assisted” cashless exercises and “net exercises”) and (B) the Committee, in
its sole and plenary discretion, may also allow exercises by any other means which the Committee
determines to be consistent with the Plan’s purpose and applicable law.




(v) Expiration. Except as otherwise set forth in the applicable Award Agreement,
each Option shall expire immediately, without any payment, upon the earlier of (A) the tenth
anniversary of the date the Option is granted and (B) 90 days after the date the Participant who
is holding the Option ceases to be a director, officer, employee or consultant of the Company or
one of its Affiliates. In no event may an Option be exercisable after the tenth anniversary of
the date the Option is granted.




(c) SARs.




(i) Grant. Subject to the provisions of the Plan, the Committee has sole and
plenary authority to determine the Participants to whom SARs shall be granted, the number of
Shares to be covered by each SAR, the Exercise Price thereof and the conditions and limitations
applicable to the exercise thereof. SARs may be granted in tandem with another Award, in
addition to another Award or
freestanding and unrelated to another Award. SARs granted in tandem with, or in addition
to, an Award may be granted either at the same time as the Award or at a later time.


 


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(ii) Exercise Price. Except for Substitute Awards and Substitution SARs (see
below), the Exercise Price of each Share covered by a SAR shall be not less than 100% of the
Fair Market Value of such Share (determined as of the date the SAR is granted). SARs are
intended to qualify as “qualified performance-based compensation” under Section 162(m) of the
Code.




(iii) Exercise. A SAR shall entitle the Participant to receive an amount equal to
the excess, if any, of the Fair Market Value of a Share on the date of exercise of the SAR over
the Exercise Price thereof. The Committee shall determine, in its sole and plenary discretion,
whether a SAR shall be settled in cash, Shares, other securities, other Awards, other property
or a combination of any of the foregoing.




(iv) Other Terms and Conditions. Subject to the terms of the Plan and any
applicable Award Agreement, the Committee shall determine, at or after the grant of a SAR, the
vesting criteria, term, methods of exercise, methods and form of settlement and any other terms
and conditions of any SAR. Any such determination by the Committee may be changed by the
Committee from time to time and may govern the exercise of SARs granted or exercised thereafter.
The Committee may impose such conditions or restrictions on the exercise of any SAR as it shall
deem appropriate or desirable.




(v) Substitution SARs. The Committee may substitute, without the consent of the
affected Participant or any holder or beneficiary of SARs, SARs settled in Shares (or SARs
settled in Shares or cash in the Committee’s discretion) (“Substitution SARs”) for outstanding
Nonqualified Stock Options (“Substituted Options”); provided that (A) the substitution shall not
otherwise result in a modification of the terms of any Substituted Option, (B) the number of
Shares underlying the Substitution SARs shall be the same as the number of Shares underlying the
Substituted Options and (C) the Exercise Price of the Substitution SARs shall be equal to the
Exercise Price of the Substituted Options. If, in the opinion of the Company’s auditors, this
provision creates adverse accounting consequences for the Company, it shall be considered null
and void.




(d) Restricted Shares and RSUs.




(i) Grant. Subject to the provisions of the Plan, the Committee has sole and
plenary authority to determine the Participants to whom Restricted Shares and RSUs shall be
granted, the number of Restricted Shares and RSUs to be granted to each Participant, the
duration of the period during which, and the conditions, if any, under which, the Restricted
Shares and RSUs may vest or may be forfeited to the Company and the other terms and conditions
of such Awards.




(ii) Transfer Restrictions. Restricted Shares and RSUs may not be sold, assigned,
transferred, pledged or otherwise encumbered except as provided in the Plan or as may be
provided in the applicable Award Agreement; provided, however, that the Committee may in its
discretion determine that Restricted Shares and RSUs may be transferred by the Participant.
Certificates issued in respect of Restricted Shares shall be registered in the name of the
Participant and deposited by such Participant, together with a stock power endorsed in blank,
with the Company or such other custodian as may be designated by the Committee or the Company,
and shall be held by the Company or other custodian, as applicable, until such time as the
restrictions applicable to such Restricted Shares lapse. Upon the lapse of the restrictions
applicable to such Restricted Shares, the Company or other custodian, as applicable, shall
deliver such certificates to the Participant or the Participant’s legal representative (unless
the Shares are held in book entry form).


 


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(iii) Payment/Lapse of Restrictions. Each RSU shall have a value equal to the Fair
Market Value of a Share. RSUs shall be paid in cash, Shares, other securities, other Awards or
other property, as determined in the sole and plenary discretion of the Committee, upon the
lapse of restrictions applicable thereto, or otherwise in accordance with the applicable Award
Agreement. If a Restricted Share or an RSU is intended to qualify as “qualified
performance-based compensation” under Section 162(m) of the Code, all requirements set forth in
Section 6(e) must be satisfied in order for the restrictions applicable thereto to lapse.




(e) Performance Compensation Awards.




(i) General. The Committee has the authority, at the time of grant of any Award, to
designate such Award (other than Options and SARs) as a Performance Compensation Award in order
to qualify such Award as “qualified performance-based compensation” under Section 162(m) of the
Code or to qualify such Award as “performance-based compensation” under Section 409A of the
Code. Options and SARs granted under the Plan shall not be included among Awards that are
designated as Performance Compensation Awards under this Section 6(e).




(ii) Eligibility. The Committee shall, in its sole discretion, designate within the
time period prescribed under Section 162(m) of the Code which Participants will be eligible to
receive Performance Compensation Awards in respect of such Performance Period. However,
designation of a Participant eligible to receive an Award hereunder for a Performance Period
shall not in any manner entitle the Participant to receive payment in respect of any Performance
Compensation Award for such Performance Period. The determination as to whether or not such
Participant becomes entitled to payment in respect of any Performance Compensation Award shall
be decided solely in accordance with the provisions of this Section 6(e). Designation of a
Participant eligible to receive an Award hereunder for a particular Performance Period shall not
require designation of such Participant eligible to receive an Award hereunder in any subsequent
Performance Period and designation of one person as a Participant eligible to receive an Award
hereunder shall not require designation of any other person as a Participant eligible to receive
an Award hereunder.




(iii) Discretion of Committee with Respect to Performance Compensation Awards. With
regard to a particular Performance Period, the Committee has full discretion to select the
length of such Performance Period, the types of Performance Compensation Awards to be issued,
the Performance Criteria that will be used to establish the Performance Goals, and the
Performance Formula. Within the time period prescribed under Section 162(m) of the Code, the
Committee shall, with regard to the Performance Compensation Awards to be issued for such
Performance Period, exercise its discretion with respect to each of the matters enumerated in
the immediately preceding sentence and record the same in writing.




(iv) Performance Criteria. Notwithstanding the foregoing, the Performance Criteria
that will be used to establish the Performance Goals shall be (A) based on the attainment of
specific levels of performance of the Company or any of its Subsidiaries, Affiliates, divisions,
regions, departments, operational units, or any combination of the foregoing, (B) established
within the time period prescribed by Section 162(m) of the Code, and (C) limited to one or more
of the following:




	 	•	 	Net income before or after taxes;

	 
	 	•	 	Earnings before or after taxes (including earnings before interest, taxes,
depreciation and amortization);

	 
	 	•	 	Operating income;

	 
	 	•	 	Earnings per share;

	 
	 	•	 	Return on shareholders’ equity;




 


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	 	•	 	Return on investment or capital;

	 
	 	•	 	Return on assets;

	 
	 	•	 	Level or amount of acquisitions,

	 
	 	•	 	Share price;

	 
	 	•	 	Profitability and profit margins;

	 
	 	•	 	Market share;

	 
	 	•	 	Revenues or sales (based on units or dollars);

	 
	 	•	 	Costs;

	 
	 	•	 	Cash flow;

	 
	 	•	 	Working capital;

	 
	 	•	 	Safety and accident rates; and

	 
	 	•	 	Implementation, completion or attainment of measurable objectives with respect to
specific operational goals and targets, such as: (A) implementation of new
systems or processes, (B) specific projects, (C) M&A completion/integration,
(D) recruitment or retention of personnel and (E) customer satisfaction.







(v) Modification of Performance Goals. The Committee is authorized at any time
within the time period permitted by Section 162(m) of the Code, or any time thereafter (but only
to the extent the exercise of such authority after such period would not cause the Performance
Compensation Awards granted to any Participant for the Performance Period to fail to qualify as
“qualified performance-based compensation” under Section 162(m) of the Code), in its sole and
plenary discretion, to adjust or modify the calculation of a Performance Goal for such
Performance Period to the extent permitted under Section 162(m) of the Code (A) in the event of,
or in anticipation of, any unusual or extraordinary corporate item, transaction, event or
development affecting the Company or any of its Affiliates, Subsidiaries, divisions or operating
units (to the extent applicable to such Performance Goal) or (B) in recognition of, or in
anticipation of, any other unusual or nonrecurring events affecting the Company or any of its
Affiliates, Subsidiaries, divisions or operating units (to the extent applicable to such
Performance Goal), or the financial statements of the Company or any of its Affiliates,
Subsidiaries, divisions or operating units (to the extent applicable to such Performance Goal),
or of changes in applicable rules, rulings, regulations or other requirements of any
governmental body or securities exchange, accounting principles, law or business conditions.




(vi) Payment of Performance Compensation Awards.




(A) Condition to Receipt of Payment. A Participant must be employed by the
Company on the last day of a Performance Period (or such later date as determined by the
Committee and set forth in the applicable Award Agreement) to be eligible for payment in
respect of a Performance Compensation Award for such Performance Period. Notwithstanding the
foregoing, in the discretion of the Committee, Performance Compensation Awards may be paid
to Participants who have retired or whose employment has terminated after the beginning of
the Performance Period for which a Performance Compensation Award is made or to the designee
or estate of a Participant who died prior to the last day of a Performance Period.




(B) Limitation. Except as otherwise determined by the Committee and set forth
in the applicable Award Agreement, a Participant shall be eligible to receive payments in
respect of a Performance Compensation Award only to the extent that (1) the Performance
Goals for such period are achieved and certified by the Committee in accordance with Section
6(e)(vi)(C), and (2) the Performance Formula as applied against such Performance Goals
determines that all or some portion of such Participant’s Performance Compensation Award has
been earned for the Performance Period.


 


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(C) Certification. Following the completion of a Performance Period, the
Committee shall meet to review and certify in writing whether, and to what extent, the
Performance Goals for the Performance Period have been achieved and, if so, to calculate and
certify in writing that amount of the Performance Compensation Awards earned for the period
based upon the Performance Formula. The Committee shall then determine the actual size of
each Participant’s Performance Compensation Award for the Performance Period and, in so
doing, may apply negative discretion as authorized by Section 6(e)(vi)(D).




(D) Negative Discretion. In determining the actual size of an individual
Performance Compensation Award for a Performance Period, the Committee may, in its sole and
plenary discretion, reduce or eliminate the amount of the Award earned in the Performance
Period, even if applicable Performance Goals have been attained.




(E) Timing of Award Payments. Except as otherwise determined by the Committee
and set forth in the applicable Award Agreement, the Performance Compensation Awards granted
for a Performance Period shall be paid to Participants as soon as administratively possible
following completion of the certifications required by Section 6(e)(vi)(C).




(F) Discretion. In no event shall any discretionary authority granted to the
Committee by the Plan be used to (1) grant or provide payment in respect of Performance
Compensation Awards for a Performance Period if the Performance Goals for such Performance
Period have not been attained, (2) increase a Performance Compensation Award for any
Participant at any time after the time period prescribed under Section 162(m) of the Code,
or (3) increase a Performance Compensation Award above the maximum amount payable under
Sections 4(a), 6(f)(iii) or 6(g) of the Plan.




(f) Performance Units.




(i) Grant. Subject to the provisions of the Plan, the Committee has sole and
plenary authority to determine the Participants to whom Performance Units shall be granted.




(ii) Value of Performance Units. Each Performance Unit shall have an initial value
that is established by the Committee at the time of grant. The Committee shall set Performance
Goals in its discretion which, depending on the extent to which they are met during a
Performance Period, will determine the number and value of Performance Units that will be paid
out to the Participant.




(iii) Earning of Performance Units. Subject to the provisions of the Plan, after
the applicable Performance Period has ended, the holder of Performance Units shall be entitled
to receive a payout of the number and value of Performance Units earned by the Participant over
the Performance Period, to be determined by the Committee, in its sole and plenary discretion,
as a function of the extent to which the corresponding Performance Goals have been achieved. No
cash-based Performance Unit under the Plan shall permit a payment to any Participant in excess
of $2,000,000 during any Performance Period.




(iv) Form and Timing of Payment of Performance Units. Subject to the provisions of
the Plan, the Committee, in its sole and plenary discretion, may pay earned Performance Units in
the form of cash or in Shares (or in a combination thereof) that has an aggregate Fair Market
Value equal to the value of the earned Performance Units at the close of the applicable
Performance Period. Such Shares may be granted subject to any restrictions in the applicable
Award Agreement deemed appropriate by the Committee. The determination of the Committee with
respect to the form and timing of payout of such Awards shall be set forth in the applicable
Award Agreement. If a Performance Unit is intended
to qualify as “qualified performance-based compensation” under Section 162(m) of the Code
or “performance based compensation” under Section 409A of the Code, all requirements set forth
in Section 6(e) must be satisfied in order for a Participant to be entitled to payment.


 


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(g) Cash Incentive Awards. Subject to the provisions of the Plan, the Committee, in
its sole and plenary discretion, has the authority to grant Cash Incentive Awards. The Committee
shall establish Cash Incentive Award levels to determine the amount of a Cash Incentive Award
payable upon the attainment of Performance Goals. No Cash Incentive Award under the Plan for any
Participant shall exceed $2,000,000 during any Performance Period. If a Cash Incentive Award is
intended to qualify as “qualified performance-based compensation” under Section 162(m) of the Code
or “performance based compensation” under Section 409A of the Code, all requirements set forth in
Section 6(e) must be satisfied in order for a Participant to be entitled to payment.



(h) Other Stock-Based Awards. Subject to the provisions of the Plan, the Committee has
the sole and plenary authority to grant to Participants other equity-based or equity-related Awards
(including, but not limited to, Deferred Share Units and fully-vested Shares) in such amounts and
subject to such terms and conditions as the Committee shall determine, provided that any such
Awards must comply, to the extent deemed desirable by the Committee, with Rule 16b-3 and applicable
law.



(i) Dividend Equivalents. In the sole and plenary discretion of the Committee, an
Award, other than an Option, SAR or Cash Incentive Award, may provide the Participant with
dividends or dividend equivalents, payable in cash, Shares, other securities, other Awards or other
property, on a current or deferred basis, on such terms and conditions as may be determined by the
Committee in its sole and plenary discretion, in accordance with Section 409A of the Code, to the
extent applicable, including, without limitation, payment directly to the Participant, withholding
of such amounts by the Company subject to vesting of the Award or reinvestment in additional
Shares, Restricted Shares or other Awards.




SECTION 7. Amendment and Termination.



(a) Amendments to the Plan. Subject to any government regulation, to any requirement
that must be satisfied if the Plan is intended to be a shareholder approved plan for purposes of
Section 162(m) of the Code and to the rules of the NYSE or any successor exchange or quotation
system on which the Shares may be listed or quoted, the Plan may be amended, modified or terminated
by the Board without the approval of the stockholders of the Company, except that stockholder
approval shall be required for any amendment that would (i) increase the maximum number of Shares
for which Awards may be granted under the Plan (provided, that any adjustment under Section 4(b)
shall not constitute an increase for purposes of this Section 7(a)) or (ii) change the class of
employees or other individuals eligible to participate in the Plan. No modification, amendment or
termination of the Plan may, without the consent of the Participant to whom any Award shall
theretofor have been granted, materially and adversely affect the rights of such Participant (or
his or her transferee) under such Award, unless otherwise provided by the Committee in the
applicable Award Agreement. Notwithstanding the foregoing, the Company reserves the right to amend
the Plan, by action of the Board or the Committee without the consent of any affected Participant,
to the extent deemed necessary or appropriate for purposes of maintaining compliance with Section
409A of the Code.


 


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(b) Amendments to Awards. The Committee may waive any conditions or rights under,
amend any terms of, or alter, suspend, discontinue, cancel or terminate any Award theretofor
granted, prospectively or retroactively; provided, however, that, except as set forth in the Plan,
unless otherwise provided by the Committee in the applicable Award Agreement, any such waiver,
amendment, alteration, suspension, discontinuance, cancellation or termination that would
materially and adversely impair the rights of any Participant or any holder or beneficiary of any
Award theretofor granted shall not to that
extent be effective without the consent of the impaired Participant, holder or beneficiary.
Notwithstanding the foregoing, the Company reserves the right to amend any Award granted under the
Plan, by action of the Board or the Committee without the consent of any affected Participant, to
the extent deemed necessary or appropriate for purposes of maintaining compliance with Section 409A
of the Code.



(c) Adjustment of Awards Upon the Occurrence of Certain Unusual or Nonrecurring
Events. The Committee is authorized to make adjustments in the terms and conditions of, and the
criteria included in, Awards in recognition of unusual or nonrecurring events (including, without
limitation, the events described in Section 4(b) or the occurrence of a Change in Control)
affecting the Company, any Affiliate, or the financial statements of the Company or any Affiliate,
or of changes in applicable rules, rulings, regulations or other requirements of any governmental
body or securities exchange, accounting principles or law (i) whenever the Committee, in its sole
and plenary discretion, determines that such adjustments are appropriate or desirable, including,
without limitation, providing for a substitution or assumption of Awards, accelerating the
exercisability of, lapse of restrictions on, or termination of, Awards or providing for a period of
time for exercise prior to the occurrence of such event, (ii) if deemed appropriate or desirable by
the Committee, in its sole and plenary discretion, by providing for a cash payment to the holder of
an Award in consideration for the cancellation of such Award, including, in the case of an
outstanding Option or SAR, a cash payment to the holder of such Option or SAR in consideration for
the cancellation of such Option or SAR in an amount equal to the excess, if any, of the Fair Market
Value (as of a date specified by the Committee) of the Shares subject to such Option or SAR over
the aggregate Exercise Price of such Option or SAR, and (iii) if deemed appropriate or desirable by
the Committee, in its sole and plenary discretion, by canceling and terminating any Option or SAR
having a per Share Exercise Price equal to, or in excess of, the Fair Market Value of a Share
subject to such Option or SAR without any payment or consideration therefor.



(d) Prohibition of Certain Amendments and Re-Pricings. Notwithstanding any provision
herein to the contrary, the repricing of Options or SARs is prohibited without prior approval of
the Company’s stockholders. For this purpose, a “repricing” means any of the following (or any
other action that has the same effect as any of the following): (A) changing the terms of an Option
or SAR to lower its Option Price or grant price; (B) any other action that is treated as a
“repricing” under generally accepted accounting principles; and (C) repurchasing for cash or
canceling an Option or SAR at a time when its Option Price or grant price is greater than the Fair
Market Value of the underlying Shares in exchange for another Award, unless the cancellation and
exchange occurs in connection with a change in capitalization or similar change under Section 4.6
above. Such cancellation and exchange would be considered a “repricing” regardless of whether it
is treated as a “repricing” under generally accepted accounting principles and regardless of
whether it is voluntary on the part of the Participant. Furthermore, neither the Board nor the
Committee shall, without further approval of the stockholders of the Company, authorize any Option
grant to provide for automatic “reload” rights, the automatic grant of Options to the Optionee upon
the exercise of Options using Shares or other equity.



SECTION 8. Change in Control. In the event of a Change in Control after the date of
the adoption of the Plan, unless (i) otherwise provided in the applicable Award Agreement or (ii)
provision is made in connection with the Change in Control for (A) assumption of Awards previously
granted or (B) substitution for previously granted Awards with new awards (which, in the discretion
of the Committee, may have the same vesting schedule as the awards assumed) covering stock of a
successor corporation or its “parent corporation” (as defined in Section 424(e) of the Code) or
“subsidiary corporation” (as defined in Section 424(f) of the Code) with appropriate adjustments as
to the number and kinds of shares and the Exercise Prices, if applicable:



(a) any outstanding Options or SARs then held by Participants that are unexercisable or
otherwise unvested shall automatically be deemed exercisable or otherwise vested, as the case may
be, as of immediately prior to such Change in Control;


 


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(b) all Performance Units and Cash Incentive Awards shall be paid out as if the date of the
Change in Control were the last day of the applicable Performance Period and “target” performance
levels had been attained; and



(c) all other outstanding Awards (i.e., other than Options, SARs, Performance Units and Cash
Incentive Awards) then held by Participants that are unexercisable, unvested or still subject to
restrictions or forfeiture, shall automatically be deemed exercisable and vested and all
restrictions and forfeiture provisions related thereto shall lapse as of immediately prior to such
Change in Control.



Notwithstanding the foregoing, nothing contained in this Section 8 shall affect the Committee’s
authority to make the adjustments provided in Section 7(c) in the event of a Change in Control.




SECTION 9. General Provisions.



(a) Nontransferability. Except as otherwise specified in the applicable Award
Agreement, during the Participant’s lifetime each Award (and any rights and obligations thereunder)
shall be exercisable only by the Participant, or, if permissible under applicable law, by the
Participant’s legal guardian or representative, and no Award (or any rights and obligations
thereunder) may be assigned, alienated, pledged, attached, sold or otherwise transferred or
encumbered by a Participant otherwise than by will or by the laws of descent and distribution, and
any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall
be void and unenforceable against the Company or any Affiliate; provided that (i) the designation
of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer
or encumbrance and (ii) the Board or the Committee may permit further transferability, on a general
or specific basis, and may impose conditions and limitations on any permitted transferability;
provided, however, that (A) Incentive Stock Options granted under the Plan shall not be
transferable in any way that would violate Section 1.422-2(a)(2) of the Treasury Regulations and
(B) in no event may a Nonqualified Stock Option or SAR be transferred for consideration. All terms
and conditions of the Plan and all Award Agreements shall be binding upon any permitted successors
and assigns.



(b) No Rights to Awards. No Participant or other Person shall have any claim to be
granted any Award, and there is no obligation for uniformity of treatment of Participants or
holders or beneficiaries of Awards. The terms and conditions of Awards and the Committee’s
determinations and interpretations with respect thereto need not be the same with respect to each
Participant and may be made selectively among Participants, whether or not such Participants are
similarly situated.



(c) Share Certificates. All certificates for Shares or other securities of the Company
or any Affiliate delivered under the Plan pursuant to any Award or the exercise thereof shall be
subject to such stop transfer orders and other restrictions as the Committee may deem advisable
under the Plan, the applicable Award Agreement or the rules, regulations and other requirements of
the SEC, the NYSE or any other stock exchange or quotation system upon which such Shares or other
securities are then listed or reported and any applicable Federal or state laws, and the Committee
may cause a legend or legends to be put on any such certificates to make appropriate reference to
such restrictions. Notwithstanding any other provision of this Plan to the contrary, the Company
may elect to satisfy any requirement under this Plan for the delivery of stock certificates through
the use of book-entry.


 


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(d) Withholding. A Participant may be required to pay to the Company or any Affiliate,
and the Company or any Affiliate has the right and is hereby authorized to withhold from any Award,
from any payment due or transfer made under any Award or under the Plan or from any compensation or
other amount owing to a Participant, the amount (in cash, Shares, other securities, other Awards or
other property) of any applicable withholding taxes in respect of an Award, its exercise or any
payment or transfer under an Award or under the Plan and to take such other action as may be
necessary in the opinion of the Committee or the Company to satisfy all obligations for the payment
of such taxes. If Share withholding is applied, to the extent necessary to avoid adverse
accounting consequences, the Company will withhold Shares having a Fair Market Value on the date
the tax is to be determined equal to the minimum statutory total tax which could be imposed on the
transaction.



(e) Award Agreements. Each Award hereunder shall be evidenced by an Award Agreement,
which shall be delivered to the Participant and shall specify the terms and conditions of the Award
and any rules applicable thereto, including, but not limited to, the effect on such Award of the
death, disability or termination of employment or service of a Participant and the effect, if any,
of such other events as may be determined by the Committee.



(f) No Limit on Other Compensation Arrangements. Nothing contained in the Plan shall
prevent the Company or any Affiliate from adopting or continuing in effect other compensation
arrangements, which may, but need not, provide for the grant of options, restricted stock, shares
and other types of equity-based awards (subject to stockholder approval if such approval is
required), and such arrangements may be either generally applicable or applicable only in specific
cases.



(g) No Right to Employment. The grant of an Award shall not be construed as giving a
Participant the right to be retained as a director, officer, employee or consultant of or to the
Company or any Affiliate, nor shall it be construed as giving a Participant any rights to continued
service on the Board. Further, the Company or an Affiliate may at any time dismiss a Participant
from employment or discontinue any consulting relationship, free from any liability or any claim
under the Plan, unless otherwise expressly provided in the Plan or in any Award Agreement.



(h) No Rights as Stockholder. No Participant or holder or beneficiary of any Award has
any rights as a stockholder with respect to any Shares to be distributed under the Plan until he or
she has become the holder of such Shares. In connection with each grant of Restricted Shares,
except as provided in the applicable Award Agreement, the Participant shall not be entitled to the
rights of a stockholder in respect of such Restricted Shares. Except as otherwise provided in
Section 4(b), Section 7(c) or the applicable Award Agreement, no adjustments shall be made for
dividends or distributions on (whether ordinary or extraordinary, and whether in cash, Shares,
other securities or other property), or other events relating to, Shares subject to an Award for
which the record date is prior to the date such Shares are delivered.



(i) Governing Law. The validity, construction and effect of the Plan and any rules and
regulations relating to the Plan and any Award Agreement shall be determined in accordance with the
laws of the State of Delaware, without giving effect to the conflict of laws provisions thereof.



(j) Severability. If any provision of the Plan or any Award is or becomes or is deemed
to be invalid, illegal or unenforceable in any jurisdiction or as to any Person or Award, or would
disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision
shall be construed or deemed amended to conform to the applicable laws, or if it cannot be
construed or deemed amended without, in the determination of the Committee, materially altering the
intent of the Plan or the Award, such provision shall be construed or deemed stricken as to such
jurisdiction, Person or Award and the remainder of the Plan and any such Award shall remain in full
force and effect.


 


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(k) Other Laws. The Committee may refuse to issue or transfer any Shares or other
consideration under an Award if, acting in its sole and plenary discretion, it determines that the
issuance or transfer of such Shares or such other consideration might violate any applicable law or
regulation or entitle the Company to recover the same under Section 16(b) of the Exchange Act, and
any payment tendered to the Company by a Participant, other holder or beneficiary in connection
with the exercise of such Award shall be promptly refunded to the relevant Participant, holder or
beneficiary. Without limiting the generality of the foregoing, no Award granted hereunder shall be
construed as an offer to sell securities of the Company, and no such offer shall be outstanding,
unless and until the Committee in its sole and plenary discretion has determined that any such
offer, if made, would be in compliance with all applicable requirements of the U.S. Federal and any
other applicable securities laws.



(l) No Trust or Fund Created. Neither the Plan nor any Award shall create or be
construed to create a trust or separate fund of any kind or a fiduciary relationship between the
Company or any Affiliate, on one hand, and a Participant or any other Person, on the other hand. To
the extent that any Person acquires a right to receive payments from the Company or any Affiliate
pursuant to an Award, such right shall be no greater than the right of any unsecured general
creditor of the Company or such Affiliate.



(m) No Fractional Shares. No fractional Shares shall be issued or delivered pursuant
to the Plan or any Award, and the Committee shall determine whether cash, other securities or other
property shall be paid or transferred in lieu of any fractional Shares or whether such fractional
Shares or any rights thereto shall be canceled, terminated or otherwise eliminated.



(n) Requirement of Consent and Notification of Election Under Section 83(b) of the Code or
Similar Provision. No election under Section 83(b) of the Code (to include in gross income in
the year of transfer the amounts specified in Section 83(b) of the Code) or under a similar
provision of law may be made unless expressly permitted by the terms of the applicable Award
Agreement or by action of the Committee in writing prior to the making of such election. If an
Award recipient, in connection with the acquisition of Shares under the Plan or otherwise, is
expressly permitted under the terms of the applicable Award Agreement or by such Committee action
to make such an election and the Participant makes the election, the Participant shall notify the
Committee of such election within ten days of filing notice of the election with the IRS or other
governmental authority, in addition to any filing and notification required pursuant to regulations
issued under Section 83(b) of the Code or other applicable provision.



(o) Requirement of Notification Upon Disqualifying Disposition Under Section 421(b) of the
Code. If any Participant shall make any disposition of Shares delivered pursuant to the
exercise of an Incentive Stock Option under the circumstances described in Section 421(b) of the
Code (relating to certain disqualifying dispositions) or any successor provision of the Code, such
Participant shall notify the Company of such disposition within ten days of such disposition.



(p) Compliance with Code Section 409A. The Plan is intended to comply with Section
409A of the Code. Notwithstanding any provision of the Plan to the contrary, the Plan shall be
interpreted, operated and administered consistent with this intent. For each Award intended to
comply with the short-term deferral exception provided for under Section 409A of the Code, the
related Award Agreement shall provide that such Award shall be paid out by the later of (i) the
15th day of the third month following the Participant’s first taxable year in which the Award is no
longer subject to a substantial risk of forfeiture or (ii) the 15th day of the third month
following the end of the Company’s first taxable year in which the Award is no longer subject to a
substantial risk of forfeiture. To the extent that the Committee determines that a Participant
would be subject to the additional 20% tax imposed on certain deferred compensation arrangements
pursuant to Section 409A of the Code as a result of any provision of any Award, to the extent
permitted by Section 409A of the Code, such provision shall be deemed amended to the minimum
extent necessary to avoid application of such additional tax. The Committee shall determine
the nature and scope of such amendment. To the extent required by Section 409A of the Code, any
payment under the Plan made in connection with the separation from service of a “specified
employee” (within the meaning of Section 409A of the Code) of an Award that is deferred
compensation that is subject to Section 409A of the Code shall not be made earlier than six (6)
months after the date of such separation from service.


 


17









 





(q) Headings. Headings are given to the Sections and subsections of the Plan solely as
a convenience to facilitate reference. Such headings shall not be deemed in any way material or
relevant to the construction or interpretation of the Plan or any provision thereof.




SECTION 10. Term of the Plan.



(a) Effective Date. The Plan shall be effective as of January 1, 2008, subject to
approval by the holders of the Company’s common stock, in accordance with applicable law and the
listing requirements of the NYSE, at the annual Meeting of Stockholders held on December 5, 2007 or
any adjournment thereof.



(b) Expiration Date. No Award shall be granted under the Plan after December 31, 2021.
Unless otherwise expressly provided in the Plan or in an applicable Award Agreement, any Award
granted hereunder may, and the authority of the Board or the Committee to amend, alter, adjust,
suspend, discontinue or terminate any such Award or to waive any conditions or rights under any
such Award shall, nevertheless continue thereafter.




 


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