exhibit10_1.htm


    
      

    


    AMENDED
      AND RESTATED

    FREEPORT-McMoRan
      COPPER & GOLD INC.

    2006
      STOCK INCENTIVE PLAN

    


    SECTION
      1

     

    Purpose.  The
      purpose of the Amended and Restated Freeport-McMoRan Copper & Gold Inc. 2006
      Stock Incentive Plan (the “Plan”) is to motivate and reward key employees,
      consultants and advisers by giving them a proprietary interest in the Company’s
      success.

     

    SECTION
      2

     

    Definitions.  As
      used in the Plan, the following terms shall have the meanings set forth
      below:

     

    “Award”
      shall mean any Option, Stock Appreciation Right, Restricted Stock, Restricted
      Stock Unit or Other Stock-Based Award.

     

    “Award
      Agreement” shall mean any written or electronic notice of grant, agreement,
      contract or other instrument or document evidencing any Award, which may, but
      need not, be required to be executed, acknowledged or accepted by a
      Participant.

     

    “Board”
      shall mean the Board of Directors of the Company.

     

    “Code”
      shall mean the Internal Revenue Code of 1986, as amended from time to
      time.

     

    “Committee”
      shall mean, until otherwise determined by the Board, the Corporate Personnel
      Committee of the Board.

     

    “Common
      Stock” shall mean the Common Stock, $.10 par value per share of the
      Company.

     

    “Company”
      shall mean Freeport-McMoRan Copper & Gold Inc.

     

    “Designated
      Beneficiary” shall mean the beneficiary designated by the Participant, in a
      manner determined by the Committee, to receive the benefits due the Participant
      under the Plan in the event of the Participant’s death.  In the
      absence of an effective designation by the Participant, Designated Beneficiary
      shall mean the Participant’s estate.

     

    “Eligible
      Individual” shall mean (i) any person providing services as an officer of the
      Company or a Subsidiary, whether or not employed by such entity, including
      any
      such person who is also a director of the Company, (ii) any employee of the
      Company or a Subsidiary, including any director who is also an employee of
      the
      Company or a Subsidiary, (iii) any officer or employee of an entity with which
      the Company has contracted to receive executive, management or legal services
      who provides services to the Company or a Subsidiary through such arrangement,
      (iv) any consultant or adviser to the Company, a Subsidiary or to an entity
      described in clause (iii) hereof who provides services to the Company or a
      Subsidiary through such arrangement and (v) any person who has agreed in writing
      to become a person described in 

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    clauses
      (i), (ii), (iii) or (iv) within not more than 30 days following the date of
      grant of such person’s first Award under the Plan.

     

    “Exchange
      Act” shall mean the Securities Exchange Act of 1934, as amended from time to
      time.

     

    “Incentive
      Stock Option” shall mean an option granted under Section 6 of the Plan that is
      intended to meet the requirements of Section 422 of the Code or any successor
      provision thereto.

     

    “Nonqualified
      Stock Option” shall mean an option granted under Section 6 of the Plan that is
      not intended to be an Incentive Stock Option.

     

    “Option”
      shall mean an Incentive Stock Option or a Nonqualified Stock Option granted
      under Section 6 of the Plan.

     

    “Other
      Stock Based Award” shall mean any right or award granted under Section 10 of the
      Plan.

     

    “Participant”
      shall mean any Eligible Individual granted an Award under the Plan.

     

    “Person”
      shall mean any individual, corporation, partnership, limited liability company,
      association, joint stock company, trust, unincorporated organization, government
      or political subdivision thereof or other entity.

     

    “Restricted
      Stock” shall mean any restricted stock granted under Section 8 of the
      Plan.

     

    “Restricted
      Stock Unit” shall mean any restricted stock unit granted under Section 9 of the
      Plan.

     

    “Section
      162(m)” shall mean Section 162(m) of the Code and all regulations promulgated
      thereunder as in effect from time to time.

     

    “Section
      409A” shall mean Section 409A of the Code and all regulations and guidance
      promulgated thereunder as in effect from time to time.

     

    “Shares”
      shall mean the shares of Common Stock of the Company and such other securities
      of the Company or a Subsidiary as the Committee may from time to time
      designate.

     

    “Stock
      Appreciation Right” shall mean any right granted under Section 7 of the
      Plan.

     

    “Subsidiary”
      shall mean (i) any corporation or other entity in which the Company possesses
      directly or indirectly equity interests representing at least 50% of the total
      ordinary voting power or at least 50% of the total value of all classes of
      equity interests of such corporation or other entity and (ii) any other entity
      in which the Company has a direct or indirect economic interest that is
      designated as a Subsidiary by the Committee.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    SECTION
      3

     

    (a)  Administration.  The
      Plan shall be administered by the 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 shall
      have
      full power and authority to: (i) designate Participants; (ii) determine the
      type
      or types of Awards to be granted to an Eligible Individual; (iii) determine
      the
      number of Shares to be covered by, or with respect to which payments, rights
      or
      other matters are to be calculated in connection with, Awards; (iv) determine
      the terms and conditions of any Award; (v) determine whether, to what extent,
      and under what circumstances Awards may be settled or exercised in cash, whole
      Shares, other whole securities, other Awards, other property or other cash
      amounts payable by the Company upon the exercise of that or other Awards, or
      canceled, forfeited or suspended and the method or methods by which Awards
      may
      be settled, exercised, canceled, forfeited or suspended; (vi) determine whether,
      to what extent, and under what circumstances cash, Shares, other securities,
      other Awards, other property, and other amounts payable by the Company with
      respect to an Award shall be deferred either automatically or at the election
      of
      the holder thereof or of the Committee; (vii) interpret and administer the
      Plan
      and any instrument or agreement relating to, or Award made under, the Plan;
      (viii) establish, amend, suspend or waive such rules and regulations and appoint
      such agents as it shall deem appropriate for the proper administration of the
      Plan; and (ix) make any other determination and take any other action that
      the
      Committee deems necessary or desirable for the administration of the
      Plan.  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 discretion of the
      Committee, may be made at any time and shall be final, conclusive and binding
      upon all Persons, including the Company, any Subsidiary, any Participant, any
      holder or beneficiary of any Award, any stockholder of the Company and any
      Eligible Individual.

     

    (b)  Delegation.  Subject
      to the terms of the Plan and applicable law, the Committee may delegate to
      one
      or more officers of the Company the authority, subject to such terms and
      limitations as the Committee shall determine, to grant and set the terms of,
      to
      cancel, modify or waive rights with respect to, or to alter, discontinue,
      suspend, or terminate Awards held by Eligible Individuals who are not officers
      or directors of the Company for purposes of Section 16 of the Exchange Act,
      or
      any successor section thereto, or who are otherwise not subject to such Section;
      provided, however, that the per share exercise price of any Option granted
      under
      this Section 3(b) shall be equal to the fair market value of the underlying
      Shares on the date of grant.

     

    SECTION
      4

     

    Eligibility.  Any
      Eligible Individual shall be eligible to be granted an Award.

     

    SECTION
      5

     

    (a)  Shares
      Available for Awards.  Subject to adjustment as provided in
      Section 5(b):

     

    (i)  Calculation
      of Number of Shares Available.

     

    (A)  Subject
      to the other provisions of this Section 5(a), the number of Shares with respect
      to which Awards payable in Shares may be granted under the Plan shall be



    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    37,000,000
      shares of  Common Stock.  Awards that by their terms may be
      settled only in cash shall not be counted against the maximum number of Shares
      provided herein.

     

    (B)  The
      number of Shares that may be issued pursuant to Incentive Stock Options may
      not
      exceed 37,000,000 Shares.

     

    (C)  Subject
      to the other provisions of this Section 5(a):

     

    (1)  the
      maximum number of Shares with respect to which Awards in the form of Restricted
      Stock, Restricted Stock Units or Other Stock-Based Awards payable in Shares
      for
      which a per share purchase price that is less than 100% of the fair market
      value
      of the securities to which the Award relates shall be 11,000,000 Shares;
      and

     

    (2)  no
      more
      than 1,500,000 Shares may be issued pursuant to Awards in the form of Restricted
      Stock, Restricted Stock Units or Other Stock-Based Awards payable in Shares
      without compliance with the minimum vesting periods set forth in Sections 8(b),
      9(b) and 10(b), respectively.  If (x) Restricted Stock, Restricted
      Stock Units or an Other Stock-Based Award is granted with a minimum vesting
      period of at least three years or a minimum vesting period of at least one
      year
      and subject to the attainment of specific performance goals, and (y) the vesting
      of such Award is accelerated in accordance with Section 12(a) hereof as a result
      of the Participant’s death, retirement or other termination of employment or
      cessation of consulting or advisory services to the Company, or a change in
      control of the Company, such Shares shall not count against the 1,500,000
      limitation described herein.

     

    (D)  To
      the
      extent any Shares covered by an Award are not issued because the Award is
      forfeited or canceled or the Award is settled in cash, such Shares shall again
      be available for grant pursuant to new Awards under the Plan.

     

    (E)  In
      the
      event that Shares are issued as Restricted Stock or Other Stock-Based Awards
      under the Plan and thereafter are forfeited or reacquired by the Company
      pursuant to rights reserved upon issuance thereof, such Shares shall again
      be
      available for grant pursuant to new Awards under the Plan.  With
      respect to Stock Appreciation Rights, if the Award is payable in Shares, all
      Shares to which the Award relates shall be counted against the Plan limits,
      rather than the net number of Shares delivered upon exercise of the
      Award.

     

    (ii)  Shares
      Deliverable Under Awards.  Any Shares delivered pursuant to an
      Award may consist of authorized and unissued Shares or of treasury Shares,
      including Shares held by the Company or a Subsidiary and Shares acquired in
      the
      open market or otherwise obtained by the Company or a Subsidiary.  The
      issuance of Shares may be effected on a non-certificated basis, to the extent
      not prohibited by applicable law or the applicable rules of any stock
      exchange.

     

    (iii)  Individual
      Limit.  Any provision of the Plan to the contrary notwithstanding,
      no individual may receive in any year Awards under the Plan, whether payable
      in
      cash or Shares, that relate to more than 3,750,000 Shares.

     

    (iv)  Use
      of
      Shares.  Subject to the terms of the Plan and the overall
      limitation on the number of Shares that may be delivered under the Plan, the
      Committee may use available 

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    Shares
      as
      the form of payment for compensation, grants or rights earned or due under
      any
      other compensation plans or arrangements of the Company or a Subsidiary,
      including, but not limited to, the Company’s Annual Incentive Plan and the plans
      or arrangements of the Company or a Subsidiary assumed in business
      combinations.

     

    (b)  Adjustments.  In
      the event that the Committee determines that any dividend or other distribution
      (whether in the form of cash, Shares, Subsidiary securities, other securities
      or
      other property), recapitalization, stock split, reverse stock split,
      reorganization, merger, consolidation, split up, spin off, combination,
      repurchase or exchange of Shares or other securities of the Company, issuance
      of
      warrants or other rights to purchase Shares or other securities of the Company,
      or other similar corporate transaction or event affects the Shares such that
      an
      adjustment is determined by the Committee to be appropriate to prevent dilution
      or enlargement of the benefits or potential benefits intended to be made
      available under the Plan, then the Committee shall, in such manner as it may
      deem equitable, adjust any or all of (i) the number and type of Shares (or
      other
      securities or property) with respect to which Awards may be granted, (ii) the
      number and type of Shares (or other securities or property) subject to
      outstanding Awards, and (iii) the grant or exercise price with respect to any
      Award and, if deemed appropriate, make provision for a cash payment to the
      holder of an outstanding Award and, if deemed appropriate, adjust outstanding
      Awards to provide the rights contemplated by Section 11(b) hereof; provided,
      in
      each case, that with respect to Awards of Incentive Stock Options no such
      adjustment shall be authorized to the extent that such authority would cause
      the
      Plan to violate Section 422(b)(1) of the Code or any successor provision thereto
      and, with respect to all Awards under the Plan, no such adjustment shall be
      authorized to the extent that such authority would be inconsistent with the
      requirements for full deductibility under Section 162(m); and provided further
      that the number of Shares subject to any Award denominated in Shares shall
      always be a whole number.

     

    (c)  Performance
      Goals for Section 162(m) Awards.  The Committee shall determine at
      the time of grant if a grant of Restricted Stock, Restricted Stock Units or
      Other Stock-Based Award is intended to qualify as “performance-based
      compensation” as that term is used in Section 162(m).  Any such grant
      shall be conditioned on the achievement of one or more performance
      measures.  The performance measures pursuant to which the Restricted
      Stock, Restricted Stock Units or Other Stock-Based Award shall vest shall be
      any
      or a combination of the following:  earnings per share, return on
      assets, an economic value added measure, shareholder return, earnings, return
      on
      equity, return on investment, cash provided by operating activities, increase
      in
      cash flow, return on cash flow, or increase in production of the Company, a
      division of the Company or a Subsidiary.  For any performance period,
      such performance objectives may be measured on an absolute basis or relative
      to
      a group of peer companies selected by the Committee, relative to internal goals
      or relative to levels attained in prior years.  For grants of
      Restricted Stock, Restricted Stock Units or Other Stock-Based Awards intended
      to
      qualify as “performance-based compensation,” the grants and the establishment of
      performance measures shall be made during the period required under Section
      162(m).

     

    SECTION
      6

     

    (a)  Stock
      Options.  Subject to the provisions of the Plan, the Committee
      shall have sole and complete authority to determine the Eligible Individuals
      to
      whom Options shall be 

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    granted,
      the number of Shares to be covered by each Option, the option price thereof
      and
      the conditions and limitations applicable to the exercise of the Option and
      the
      other terms thereof.  The Committee shall have the authority to grant
      Incentive Stock Options, Nonqualified Stock Options or both.  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 required by Section 422
      of
      the Code, as from time to time amended, and any implementing
      regulations.  Except in the case of an Option granted in assumption of
      or substitution for an outstanding award of a company acquired by the Company
      or
      with which the Company combines, the exercise price of any Option granted under
      this Plan shall not be less than 100% of the fair market value of the underlying
      Shares on the date of grant.

     

    (b)  Exercise.  Each
      Option shall be exercisable at such times and subject to such terms and
      conditions as the Committee may, in its sole discretion, specify in the
      applicable Award Agreement or thereafter, provided, however, that in no event
      may any Option granted hereunder be exercisable after the expiration of 10
      years
      after the date of such grant.  The Committee may impose such
      conditions with respect to the exercise of Options, including without
      limitation, any condition relating to the application of Federal or state
      securities laws, as it may deem necessary or advisable.  An Option may
      be exercised, in whole or in part, by giving written notice to the Company,
      specifying the number of Shares to be purchased.  The exercise notice
      shall be accompanied by the full purchase price for the Shares.

     

    (c)  Payment.  The
      Option price shall be payable in United States dollars and may be paid by (i)
      cash or cash equivalent; (ii) delivery of shares of Common Stock, subject to
      any
      holding periods established by the Committee; (iii) through a “cashless”
exercise arrangement with a broker approved in advance by the Committee; (iv)
      if
      approved by the Committee, through a “net exercise” procedure whereby the
      Optionee surrenders the Option in exchange for that number of shares of Common
      Stock with an aggregate fair market value equal to the difference between the
      aggregate exercise price of the options being surrendered and the aggregate
      fair
      market value of the shares of Common Stock subject to the Option; or (v) in
      such
      other manner as may be authorized from time to time by the
      Committee.  In the event shares of  Common Stock are
      delivered or withheld pursuant to (ii) or (iv) above, as applicable, the shares
      shall be valued at the fair market value (valued in accordance with procedures
      established by the Committee) on the effective date of the
      exercise.  Prior to the issuance of Shares upon the exercise of an
      Option, a Participant shall have no rights as a shareholder.

     

    SECTION
      7

     

    (a)  Stock
      Appreciation Rights.  Subject to the provisions of the Plan, the
      Committee shall have sole and complete authority to determine the Eligible
      Individuals to whom Stock Appreciation Rights shall be granted, the number
      of
      Shares to be covered by each Award of Stock Appreciation Rights, the grant
      price
      thereof and the conditions and limitations applicable to the exercise of the
      Stock Appreciation Right and the other terms thereof.  Stock
      Appreciation Rights may be granted in tandem with another Award, in addition
      to
      another Award, or freestanding and unrelated to any other
      Award.  Stock Appreciation Rights granted in tandem with or in
      addition to an Option or other Award may be granted either at the same time
      as
      the Option or other Award or at a later time.  Stock Appreciation
      Rights shall not be exercisable after the expiration of 10 years after the
      date
      of grant.  Except in the case of a Stock Appreciation 

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    Right
      granted in assumption of or substitution for an outstanding award of a company
      acquired by the Company or with which the Company combines, the grant price
      of
      any Stock Appreciation Right granted under this Plan shall not be less than
      100%
      of the fair market value of the Shares covered by such Stock Appreciation Right
      on the date of grant or, in the case of a Stock Appreciation Right granted
      in
      tandem with a then outstanding Option or other Award, on the date of grant
      of
      such related Option or Award if permitted by Section 409A.

     

    (b)  A
      Stock
      Appreciation Right shall entitle the holder thereof to receive upon exercise,
      for each Share to which the Stock Appreciation Right relates, an amount equal
      to
      the excess, if any, of the fair market value of a Share on the date of exercise
      of the Stock Appreciation Right over the grant price.  The Committee
      shall determine at the time of grant of a Stock Appreciation Right whether
      it
      shall be settled in cash, Shares or a combination of cash and
      Shares.

     

    SECTION
      8

     

    (a)  Restricted
      Stock.  Subject to the provisions of the Plan, the Committee shall
      have sole and complete authority to determine the Eligible Individuals to whom
      Restricted Stock shall be granted, the number of Shares to be covered by each
      Award of Restricted Stock and the terms, conditions, and limitations applicable
      thereto.  An Award of Restricted Stock may be subject to the
      attainment of specified performance goals or targets, restrictions on transfer,
      forfeitability provisions and such other terms and conditions as the Committee
      may determine, subject to the provisions of the Plan.  An award of
      Restricted Stock may be made in lieu of the payment of cash compensation
      otherwise due to an Eligible Individual.  To the extent that
      Restricted Stock is intended to qualify as “performance- based compensation”
under Section 162(m), it must be made subject to the attainment of one or more
      of the performance goals specified in Section 5(c) hereof and meet the
      additional requirements imposed by Section 162(m).

     

    (b)  The
      Restricted Period.  At the time that an Award of Restricted Stock
      is made, the Committee shall establish a period of time during which the
      transfer of the Shares of Restricted Stock shall be restricted (the “Restricted
      Period”).  Each Award of Restricted Stock may have a different
      Restricted Period.  Except for Restricted Stock that vests on the
      attainment of performance goals, and except as provided in Section
      5(a)(i)(C)(2), a Restricted Period of at least three years is required, with
      incremental vesting of the Award over the three-year period
      permitted.  If the grant or vesting of the Shares is subject to the
      attainment of specified performance goals, a Restricted Period of at least
      one
      year with incremental vesting is permitted.  The expiration of the
      Restricted Period shall also occur as provided in the Award Agreement in
      accordance with Section 12(a) hereof.

     

    (c)  Escrow.  The
      Participant receiving Restricted Stock shall enter into an Award Agreement
      with
      the Company setting forth the conditions of the grant.  Any
      certificates representing Shares of Restricted Stock shall be registered in
      the
      name of the Participant and deposited with the Company, together with a stock
      power endorsed in blank by the Participant.  Each such certificate
      shall bear a legend in substantially the following form:

     

    The
      transferability of this certificate and the shares of Common Stock represented
      by it are subject to the terms and conditions (including conditions of
      forfeiture) 

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    contained
      in the Freeport-McMoRan Copper & Gold Inc. 2006 Stock Incentive Plan (the
“Plan”) and a notice of grant issued thereunder to the registered owner by
      Freeport-McMoRan Copper & Gold Inc.  Copies of the Plan and the
      notice of grant are on file at the principal office of Freeport-McMoRan Copper
      & Gold Inc.

     

     

    If
      the
      Shares of Restricted Stock are represented by book or electronic entry rather
      than a certificate, the Company shall take such steps to restrict transfer
      of
      the Restricted Stock as counsel for the Company deems necessary or advisable
      to
      comply with applicable law.

     

    (d)  Dividends
      on Restricted Stock.  Any and all cash and stock dividends paid
      with respect to the Shares of Restricted Stock shall be subject to any
      restrictions on transfer, forfeitability provisions or reinvestment requirements
      as the Committee may, in its discretion, prescribe in the Award
      Agreement.

     

    (e)  Forfeiture.  In
      the event of the forfeiture of any Shares of Restricted Stock under the terms
      provided in the Award Agreement (including any additional Shares of Restricted
      Stock that may result from the reinvestment of cash and stock dividends, if
      so
      provided in the Award Agreement), such forfeited shares shall be surrendered
      and
      any certificates canceled.  The Participants shall have the same
      rights and privileges, and be subject to the same forfeiture provisions, with
      respect to any additional Shares received pursuant to Section 5(b) or Section
      11(b) due to a recapitalization, merger or other change in
      capitalization.

     

    (f)  Expiration
      of Restricted Period.  Upon the expiration or termination of the
      Restricted Period and the satisfaction of any other conditions prescribed by
      the
      Committee or at such earlier time as provided in the Award Agreement or an
      amendment thereto, the restrictions applicable to the Restricted Stock shall
      lapse and a stock certificate for the number of Shares of Restricted Stock
      with
      respect to which the restrictions have lapsed shall be delivered or book or
      electronic entry evidencing ownership shall be provided, free of all such
      restrictions and legends, except any that may be imposed by law, to the
      Participant or the Participant’s estate, as the case may be.

     

    (g)  Rights
      as a Stockholder.  Subject to the terms and conditions of the Plan
      and subject to any restrictions on the receipt of dividends that may be imposed
      in the Award Agreement, each Participant receiving Restricted Stock shall have
      all the rights of a stockholder with respect to Shares of stock during any
      period in which such Shares are subject to forfeiture and restrictions on
      transfer, including without limitation, the right to vote such
      Shares.

     

    SECTION
      9

     

    (a)  Restricted
      Stock Units.  Subject to the provisions of the Plan, the Committee
      shall have sole and complete authority to determine the Eligible Individuals
      to
      whom Restricted Stock Units shall be granted, the number of Shares to be covered
      by each Award of Restricted Stock Units and the terms, conditions, and
      limitations applicable thereto.  An Award of Restricted Stock Units is
      a right to receive shares of Common Stock in the future and may be subject
      to
      the attainment of specified performance goals or targets, restrictions on
      transfer, forfeitability provisions and such other terms and conditions as
      the
      Committee may determine, subject to the provisions of the Plan.  An
      award of Restricted Stock Units may be made in lieu of the payment 

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    of
      cash
      compensation otherwise due to an Eligible Individual.  To the extent
      that an Award of Restricted Stock Units is intended to qualify as
“performance-based compensation” under Section 162(m), it must be made subject
      to the attainment of one or more of the performance goals specified in Section
      5(c) hereof and meet the additional requirements imposed by Section
      162(m).

     

    (b)  The
      Vesting Period.  At the time that an Award of Restricted Stock
      Units is made, the Committee shall establish a period of time during which
      the
      Restricted Stock Units shall vest (the “Vesting Period”).  Each Award
      of Restricted Stock may have a different Vesting Period.  Except for
      Restricted Stock Units that vest based on the attainment of performance goals,
      and except as provided in Section 5(a)(i)(C)(2), a Vesting Period of at least
      three years is required with incremental vesting of the Award over the
      three-year period permitted.  If the grant or vesting is subject to
      the attainment of specified performance goals, a Vesting Period of at least
      one
      year with incremental vesting is permitted.  The expiration of the
      Vesting Period shall also occur as provided in the Award Agreement in accordance
      with Section 12(a) hereof.

     

    (c)  Rights
      as a Stockholder.  Subject to the terms and conditions of the Plan
      and subject to any restrictions that may be imposed in the Award Agreement,
      each
      Participant receiving Restricted Stock Units shall have no rights as a
      stockholder with respect to such Restricted Stock Units until such time as
      Shares are issued to the Participant.

     

    SECTION
      10

     

    (a)  Other
      Stock Based Awards.  The Committee is hereby authorized to grant
      to Eligible Individuals an “Other Stock-Based Award,” which shall consist of an
      Award that is not an instrument or Award specified in Sections 6 through 9
      of
      this Plan, the value of which is based in whole or in part on the value of
      Shares.  Other Stock Based Awards may be awards of Shares or may be
      denominated or payable in, valued in whole or in part by reference to, or
      otherwise based on or related to, Shares (including, without limitation,
      securities convertible or exchangeable into or exercisable for Shares), as
      deemed by the Committee consistent with the purposes of the Plan.  The
      Committee shall determine the terms and conditions of any such Other Stock
      Based
      Award and may provide that such awards would be payable in whole or in part
      in
      cash.  To the extent that an Other Stock-Based Award is intended to
      qualify as “performance-based compensation” under Section 162(m), it must be
      made subject to the attainment of one or more of the performance goals specified
      in Section 5(c) hereof and meet the additional requirements imposed by Section
      162(m).

     

    (b)  Limitations.  Except
      for Other Stock-Based Awards that vest based on the attainment of performance
      goals, and except as provided in Section 5(a)(i)(C)(2), a vesting period of
      at
      least three years is required with incremental vesting of the Award over the
      three-year period permitted.  If the grant or vesting is subject to
      the attainment of specified performance goals, a vesting period of at least
      one
      year with incremental vesting is permitted.  The expiration of the
      vesting period shall also occur as provided in the Award Agreement in accordance
      with Section 12(a) hereof.

     

    (c)  Dividend
      Equivalents.  In the sole and complete discretion of the
      Committee, an Award, whether made as an Other Stock-Based Award under this
      Section 10 or as an Award 

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    granted
      pursuant to Sections 6 through 9 hereof, may provide the holder thereof with
      dividends or dividend equivalents, payable in cash, Shares, Subsidiary
      securities, other securities or other property on a current or deferred
      basis.

     

    SECTION
      11

     

    (a)  Amendment
      or Discontinuance of the Plan.  The Board may amend or discontinue
      the Plan at any time; provided, however, that no such amendment may

     

    (i)  without
      the approval of the stockholders, (a) increase, subject to adjustments permitted
      herein, the maximum number of shares of  Common Stock that may be
      issued through the Plan, (b) materially increase the benefits accruing to
      Participants under the Plan, (c) materially expand the classes of persons
      eligible to participate in the Plan, (d) expand the types of Awards available
      for grant under the Plan, (e) materially extend the term of the Plan, (f)
      materially change the method of determining the exercise price of Options or
      the
      grant price of Stock Appreciation Rights, and (g) amend Section 11(c) to permit
      a reduction in the exercise price of Options; or

     

    (ii)  materially
      impair, without the consent of the recipient, an Award previously
      granted.

     

    (b)  Adjustment
      of Awards Upon the Occurrence of Certain Unusual or Nonrecurring
      Events.  The Committee is hereby 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 5(b) hereof) affecting the Company, or the financial
      statements of the Company or any Subsidiary, or of changes in applicable laws,
      regulations, or accounting principles, whenever the Committee determines that
      such adjustments are appropriate to prevent dilution or enlargement of the
      benefits or potential benefits intended to be made available under the
      Plan.

     

    (c)  Cancellation.  Any
      provision of this Plan or any Award Agreement to the contrary notwithstanding,
      the Committee may cause any Award granted hereunder to be canceled in
      consideration of a cash payment or alternative Award made to the holder of
      such
      canceled Award equal in value to such canceled Award.  Notwithstanding
      the foregoing, except for adjustments permitted under Sections 5(b) and 11(b),
      no action by the Committee shall, unless approved by the stockholders of the
      Company, (i) cause a reduction in the exercise price of Options granted under
      the Plan or (ii) permit an outstanding Option with an exercise price greater
      than the current fair market value of a Share to be surrendered as consideration
      for a new Option with a lower exercise price, shares of Restricted Stock,
      Restricted Stock Units, and Other Stock-Based Awards, a cash payment or Common
      Stock.  The determinations of value under this subparagraph shall be
      made by the Committee in its sole discretion.

     

    SECTION
      12

     

    (a)  Award
      Agreements.  Each Award hereunder shall be evidenced by an
      agreement or notice delivered to the Participant (by paper copy or
      electronically) that shall specify the terms and conditions thereof and any
      rules applicable thereto, including but not limited to the effect on such Award
      of the death, retirement or other termination of employment or cessation of
      

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    consulting
      or advisory services of the Participant and the effect thereon, if any, of
      a
      change in control of the Company.

     

    (b)  Withholding.  (i)  A
      Participant
      shall be required to pay to the Company, and the Company shall have the right
      to
      deduct from all amounts paid to a Participant (whether under the Plan or
      otherwise), any taxes required by law to be paid or withheld in respect of
      Awards hereunder to such Participant.  The Committee may provide for
      additional cash payments to holders of Awards to defray or offset any tax
      arising from the grant, vesting, exercise or payment of any Award.

     

    (ii)  At
      any
      time that a Participant is required to pay to the Company an amount required
      to
      be withheld under the applicable tax laws in connection with the issuance of
      Shares under the Plan, the Participant may, if permitted by the Committee,
      satisfy this obligation in whole or in part by delivering currently owned Shares
      or by electing (the “Election”) to have the Company withhold from the issuance
      Shares, which Shares shall have a value equal to the minimum amount required
      to
      be withheld.  The value of the Shares delivered or withheld shall be
      based on the fair market value of the Shares on the date as of which the amount
      of tax to be withheld shall be determined in accordance with applicable tax
      laws
      (the “Tax Date”).

     

    (iii)  Each
      Election to have Shares withheld must be made prior to the Tax
      Date.  If a Participant wishes to deliver Shares in payment of taxes,
      the Participant must so notify the Company prior to the Tax Date.

     

    (c)  Transferability.  No
      Awards granted hereunder may be sold, transferred, pledged, assigned or
      otherwise encumbered by a Participant except: (i) by will; (ii) by the laws
      of
      descent and distribution; (iii) pursuant to a domestic relations order, as
      defined in the Code, if permitted by the Committee and so provided in the Award
      Agreement or an amendment thereto; or (iv) if permitted by the Committee and
      so
      provided in the Award Agreement or an amendment thereto, Options may be
      transferred or assigned (w) to Immediate Family Members, (x) to a partnership
      in
      which Immediate Family Members, or entities in which Immediate Family Members
      are the owners, members or beneficiaries, as appropriate, are the partners,
      (y)
      to a limited liability company in which Immediate Family Members, or entities
      in
      which Immediate Family Members are the owners, members or beneficiaries, as
      appropriate, are the members, or (z) to a trust for the benefit of Immediate
      Family Members; provided, however, that no more than a de minimus beneficial
      interest in a partnership, limited liability company or trust described in
      (x),
      (y) or (z) above may be owned by a person who is not an Immediate Family Member
      or by an entity that is not beneficially owned solely by Immediate Family
      Members.  “Immediate Family Members” shall be defined as the spouse
      and natural or adopted children or grandchildren of the Participant and their
      spouses.  To the extent that an Incentive Stock Option is permitted to
      be transferred during the lifetime of the Participant, it shall be treated
      thereafter as a Nonqualified Stock Option.  Any attempted assignment,
      transfer, pledge, hypothecation or other disposition of Awards, or levy of
      attachment or similar process upon Awards not specifically permitted herein,
      shall be null and void and without effect.  The designation of a
      Designated Beneficiary shall not be a violation of this Section
      12(c).

     

    (d)  Share
      Certificates.  All certificates or book or electronic entry
      ownership evidence for Shares or other securities delivered under the Plan
      pursuant to any Award or the exercise 

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

    thereof
      shall be subject to such stop transfer orders and other restrictions as the
      Committee may deem advisable under the Plan or the rules, regulations, and
      other
      requirements of the Securities and Exchange Commission, any stock exchange
      upon
      which such Shares or other securities are then listed, 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.

     

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

     

    (f)  No
      Right to Employment.  The grant of an Award shall not be construed
      as giving a Participant the right to be retained in the employ of or as a
      consultant or adviser to the Company or any Subsidiary or in the employ of
      or as
      a consultant or adviser to any other entity providing services to the
      Company.  The Company or any Subsidiary or any such entity may at any
      time dismiss a Participant from employment, or terminate any arrangement
      pursuant to which the Participant provides services to the Company or a
      Subsidiary, free from any liability or any claim under the Plan, unless
      otherwise expressly provided in the Plan or in any Award
      Agreement.  No Eligible Individual or other person shall have any
      claim to be granted any Award, and there is no obligation for uniformity of
      treatment of Eligible Individuals, Participants or holders or beneficiaries
      of
      Awards.

     

    (g)  Governing
      Law.  The validity, construction, and effect of the Plan, 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.

     

    (h)  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
      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 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.

     

    (i)  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 and a Participant or any other
      Person.  To the extent that any Person acquires a right to receive
      payments from the Company pursuant to an Award, such right shall be no greater
      than the right of any unsecured general creditor of the Company.

     

    (j)  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.

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    (k)  Deferral
      Permitted.  Payment of cash or distribution of any Shares to which
      a Participant is entitled under any Award shall be made as provided in the
      Award
      Agreement.  Payment may be deferred at the option of the Participant
      if provided in the Award Agreement.

     

    (l)  Compliance
      with Law.  The Company intends that Awards granted under the Plan,
      or any deferrals thereof, will comply with the requirements of Section 409A
      of
      the Code and all regulations and guidance promulgated thereunder, to the extent
      applicable.

     

    (m)  Headings.  Headings
      are given to the 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
      13

     

    Term
      of the Plan.  Subject to Section 11(a), no Awards may be granted
      under the Plan after July 10, 2017, which is ten years after the date the Plan
      was last approved by the Company’s stockholders; provided, however, that Awards
      granted prior to such date shall remain in effect until such Awards have either
      been satisfied, expired or canceled under the terms of the Plan, and any
      restrictions imposed on Shares in connection with their issuance under the
      Plan
      have lapsed.

     

    


     


    
      
            

        
        

      

      
        13