Exhibit
10.6(a)


 


NATIONAL BEEF, INC.


 


2009 EQUITY INCENTIVE PLAN


 


I.              INTRODUCTION


 


1.1          Purposes.  The purposes of the National Beef, Inc.
2009 Equity Incentive Plan (this “Plan”) are (i) to align the
interests of the Company’s stockholders and the recipients of awards under this
Plan by increasing the proprietary interest of such recipients in the Company’s
growth and success, (ii) to advance the interests of the Company by
attracting and retaining directors, officers, other employees and consultants
and (iii) to motivate such persons to act in the long-term best interests
of the Company and its stockholders.


 


1.2          Certain Definitions.


 


“Affiliate” means, with respect to any specified
Person, (i) any other Person which directly or indirectly through one or
more intermediaries controls, or is controlled by, or is under common control
with, such specified Person (for the purposes of this definition, “control”
(including, with correlative meanings, the terms “controlling,” “controlled by”
and “under common control with”), as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise), and (ii) with
respect to any natural Person, any member of the immediate family of such
natural Person.


 


“Agreement” shall mean the written agreement
evidencing an award hereunder between the Company and the recipient of such
award.


 


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


 


“Change
in Control”
shall have the meaning set forth in Section 5.8(b).


 


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


 


“Committee” shall mean the Committee designated by
the Board, consisting of two or more members of the Board, each of whom may be
(i) a “Non-Employee Director” within the meaning of Rule 16b-3 under
the Exchange Act, (ii) an “outside director” within the meaning of
Section 162(m) of the Code and (iii) “independent” within the meaning
of the rules of The New York Stock Exchange or, if the Common Stock is not
listed on The New York Stock Exchange, within the meaning of the rules of
the principal national stock exchange on which the Common Stock is then traded.


 


“Common
Stock” shall
mean the Class A common stock, par value $0.01 per share, of the Company,
and all rights appurtenant thereto.


 


“Company” shall mean National Beef, Inc., a
Delaware corporation, or any successor thereto.


 


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


 

















 


“Fair
Market Value”
shall mean the closing transaction price of a share of Common Stock as reported
on The New York Stock Exchange on the date as of which such value is being
determined or, if the Common Stock is not listed on The New York Stock
Exchange, the closing transaction price of a share of Common Stock on the
principal national stock exchange on which the Common Stock is traded on the
date as of which such value is being determined or, if there shall be no
reported transactions for such date, on the next preceding date for which
transactions were reported; provided, however, that if the Common
Stock is not listed on a national stock exchange or if Fair Market Value for
any date cannot be so determined, Fair Market Value shall be determined by the
Committee by whatever means or method as the Committee, in the good faith
exercise of its discretion, shall at such time deem appropriate and in
compliance with Section 409A of the Code.


 


“Free-Standing
SAR” shall
mean an SAR which is not granted in tandem with, or by reference to, an option,
which entitles the holder thereof to receive, upon exercise, shares of Common
Stock (which may be Restricted Stock) with an aggregate value equal to the
excess of the Fair Market Value of one share of Common Stock on the date of
exercise over the base price of such SAR, multiplied by the number of such SARs
which are exercised.


 


“Incentive
Stock Option”
shall mean an option to purchase shares of Common Stock that meets the
requirements of Section 422 of the Code, or any successor provision, which
is intended by the Committee to constitute an Incentive Stock Option.


 


“Initial
Public Offering”
means the initial public offering of the Company registered on Form S-1
(or any successor form under the Securities Act of 1933, as amended).


 


“Investor” means any Person who was a member of NBP
LLC immediately prior to the Initial Public Offering.


 


“NBP
LLC” means
National Beef Packing Company, LLC, a Delaware limited liability company.


 


“Non-Employee
Director” shall
mean any director of the Company who is not an officer or employee of the
Company or any Subsidiary.


 


“Nonqualified
Stock Option”
shall mean an option to purchase shares of Common Stock which is not an
Incentive Stock Option.


 


“Performance
Measures”
shall mean the criteria and objectives, established by the Committee, which
shall be satisfied or met (i) as a condition to the grant or
exercisability of all or a portion of an option or SAR or (ii) during the
applicable Restriction Period or Performance Period as a condition to the
vesting of the holder’s interest, in the case of a Restricted Stock Award, of
the shares of Common Stock subject to such award, or, in the case of a
Restricted Stock Unit Award, to the holder’s receipt of the shares of Common
Stock subject to such award or of payment with respect to such award.  Such criteria and objectives may include,
without limitation, one or more of the following corporate-wide or subsidiary,
division, operating unit or individual measures, stated in either absolute
terms or relative terms, such as rates of growth or improvement: the attainment
by a share of Common Stock of a specified Fair Market Value for a specified
period of time, earnings per share, return to stockholders (including
dividends), return 


 


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on assets, return on equity, earnings of the Company before or after
taxes and/or interest, revenues, expenses, market share, cash flow or cost
reduction goals, interest expense after taxes, return on investment, return on
investment capital, return on operating costs, economic value created,
operating margin, gross margin, the achievement of annual operating profit
plans, net income before or after taxes, pretax earnings before interest,
depreciation and/or amortization, pretax operating earnings after interest
expense and before incentives, and/or extraordinary or special items, operating
earnings, net cash provided by operations, and strategic business criteria,
consisting of one or more objectives based on meeting specified market
penetration, geographic business expansion goals, cost targets, days sales
outstanding goals, customer satisfaction, reductions in errors and omissions,
reductions in lost business, management of employment practices and employee
benefits, supervision of litigation and information technology, quality and
quality audit scores, productivity, efficiency, and goals relating to
acquisitions or divestitures, or any combination of the foregoing. In the sole
discretion of the Committee, the Committee may amend or adjust the Performance
Measures or other terms and conditions of an outstanding award in recognition
of unusual or nonrecurring events affecting the Company or its financial
statements or changes in law or accounting principles.


 


“Performance
Option” shall
mean an Incentive Stock Option or Nonqualified Stock Option, the grant of which
or the exercisability of all or a portion of which is contingent upon the
attainment of specified Performance Measures within a specified Performance
Period.


 


“Performance
Period” shall
mean any period designated by the Committee during which (i) the
Performance Measures applicable to an award shall be measured and (ii) the
conditions to vesting applicable to an award shall remain in effect.


 


“Performance
Unit” shall
mean a right to receive, contingent upon the attainment of specified
Performance Measures within a specified Performance Period, a specified cash
amount or, in lieu thereof, shares of Common Stock having a Fair Market Value
equal to such cash amount.


 


“Performance
Unit Award”
shall mean an award of Performance Units under this Plan.


 


“Person”
means any individual, partnership, corporation, company, association, trust,
joint venture, limited liability company, unincorporated organization, entity
or division, or any government, governmental department or agency or political
subdivision thereof.


 


“Restricted
Stock” shall
mean shares of Common Stock which are subject to a Restriction Period and which
may, in addition thereto, be subject to the attainment of specified Performance
Measures within a specified Performance Period.


 


“Restricted
Stock Award”
shall mean an award of Restricted Stock under this Plan.


 


“Restricted
Stock Unit”
shall mean a right to receive one share of Common Stock or, in lieu thereof,
the Fair Market Value of such share of Common Stock in cash, which shall be
contingent upon the expiration of a specified Restriction Period and which may,
in addition thereto, be contingent upon the attainment of specified Performance
Measures within a specified Performance Period.


 


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“Restricted
Stock Unit Award” shall mean an award of Restricted Stock Units under this Plan.


 


“Restriction
Period” shall
mean any period designated by the Committee during which (i) the Common
Stock subject to a Restricted Stock Award may not be sold, transferred,
assigned, pledged, hypothecated or otherwise encumbered or disposed of, except
as provided in this Plan or the Agreement relating to such award, or
(ii) the conditions to vesting applicable to a Restricted Stock Unit Award
shall remain in effect.


 


“SAR” shall mean a stock appreciation right
which may be a Free-Standing SAR or a Tandem SAR.


 


“Stock
Award” shall
mean a Restricted Stock Award or a Restricted Stock Unit Award.


 


“Subsidiary” shall mean NBP LLC and any other
corporation, limited liability company, partnership, joint venture or similar
entity in which the Company or NBP LLC owns, directly or indirectly, an equity
interest possessing more than 50% of the combined voting power of the total
outstanding equity interests of such entity.


 


“Tandem
SAR” shall
mean an SAR which is granted in tandem with, or by reference to, an option
(including a Nonqualified Stock Option granted prior to the date of grant of
the SAR), which entitles the holder thereof to receive, upon exercise of such
SAR and surrender for cancellation of all or a portion of such option, shares
of Common Stock (which may be Restricted Stock) with an aggregate value equal
to the excess of the Fair Market Value of one share of Common Stock on the date
of exercise over the base price of such SAR, multiplied by the number of shares
of Common Stock subject to such option, or portion thereof, which is
surrendered.


 


“Tax
Date” shall
have the meaning set forth in Section 5.5.


 


“Ten
Percent Holder”
shall have the meaning set forth in Section 2.1(a).


 


1.3          Administration.  This Plan shall be administered by the
Committee.  Any one or a combination of
the following awards may be made under this Plan to eligible persons:
(i) options to purchase shares of Common Stock in the form of Incentive
Stock Options or Nonqualified Stock Options (which may include Performance
Options), (ii) SARs in the form of Tandem SARs or Free-Standing SARs, (iii) Stock
Awards in the form of Restricted Stock or Restricted Stock Units and
(iv) Performance Units. The Committee shall, subject to the terms of this
Plan, select eligible persons for participation in this Plan and determine the
form, amount and timing of each award to such persons and, if applicable, the
number of shares of Common Stock, the number of SARs, the number of Restricted
Stock Units and the number of Performance Units subject to such an award, the
exercise price or base price associated with the award, the time and conditions
of exercise or settlement of the award and all other terms and conditions of
the award, including, without limitation, the form of the Agreement evidencing
the award.  The Committee may, in its
sole discretion and for any reason at any time, take action such that
(i) any or all outstanding options and SARs shall become exercisable in
part or in full, (ii) all or a portion of the Restriction Period
applicable to any outstanding Restricted Stock or Restricted Stock Units shall
lapse, (iii) all or a portion of the Performance Period applicable to 


 


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any outstanding Restricted Stock, Restricted
Stock Units or Performance Units shall lapse and (iv) the Performance
Measures (if any) applicable to any outstanding award shall be deemed to be
satisfied at the target or any other level. 
The Committee shall, subject to the terms of this Plan, interpret this
Plan and the application thereof, establish rules and regulations it deems
necessary or desirable for the administration of this Plan and may impose,
incidental to the grant of an award, conditions with respect to the award, such
as limiting competitive employment or other activities.  All such interpretations, rules, regulations
and conditions shall be conclusive and binding on all parties.


 


The Committee may delegate some or all of its power
and authority hereunder to the Board or, subject to applicable law, to the
Chief Executive Officer or other executive officer of the Company as the
Committee deems appropriate; provided, however, that (i) the
Committee may not delegate its power and authority to the Board or the Chief
Executive Officer or other executive officer of the Company with regard to the
grant of an award to any person who is a “covered employee” within the meaning
of Section 162(m) of the Code or who, in the Committee’s judgment, is
likely to be a covered employee at any time during the period an award
hereunder to such employee would be outstanding and (ii) the Committee may
not delegate its power and authority to the Chief Executive Officer or other
executive officer of the Company with regard to the selection for participation
in this Plan of an officer, director or other person subject to Section 16
of the Exchange Act or decisions concerning the timing, pricing or amount of an
award to such an officer, director or other person.


 


No member of the Board or Committee, and neither the
Chief Executive Officer nor any other executive officer to whom the Committee
delegates any of its power and authority hereunder, shall be liable for any
act, omission, interpretation, construction or determination made in connection
with this Plan in good faith, and the members of the Board and the Committee
and the Chief Executive Officer or other executive officer shall be entitled to
indemnification and reimbursement by the Company in respect of any claim, loss,
damage or expense (including attorneys’ fees) arising therefrom to the full
extent permitted by law (except as otherwise may be provided in the Company’s
Certificate of Incorporation and/or By-laws) and under any directors’ and
officers’ liability insurance that may be in effect from time to time.


 


A majority of the Committee shall constitute a
quorum.  The acts of the Committee shall
be either (i) acts of a majority of the members of the Committee present
at any meeting at which a quorum is present or (ii) acts approved in
writing by all of the members of the Committee without a meeting.


 


1.4          Eligibility.  Participants in this Plan shall consist of
such officers, other employees, consultants and nonemployee directors, and
persons expected to become officers, other employees, consultants and
nonemployee directors, of the Company and its Subsidiaries as the Committee in
its sole discretion may select from time to time.  The Committee’s selection of a person to
participate in this Plan at any time shall not require the Committee to select
such person to participate in this Plan at any other time.  For purposes of this Plan, references to
employment by the Company shall also mean employment by a Subsidiary.


 


1.5          Shares Available.  Subject to adjustment as provided in
Section 5.7 and to all other limits set forth in this Section 1.5,
2,301,000 shares of Common Stock shall be available 


 


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for all awards under this Plan, reduced by
the sum of the aggregate number of shares of Common Stock which become subject
to outstanding options, outstanding Free-Standing SARs and outstanding Stock
Awards and delivered upon the settlement of Performance Units.  To the extent that shares of Common Stock
subject to an outstanding option, SAR or stock award granted under the Plan are
not issued or delivered by reason of (i) the expiration, termination,
cancellation or forfeiture of such award (excluding shares subject to an option
cancelled upon settlement in shares of a related tandem SAR or shares subject
to a tandem SAR cancelled upon exercise of a related option) or (ii) the
settlement of such award in cash, then such shares of Common Stock shall again
be available under this Plan.


 


Notwithstanding anything in this Section 1.5 to
the contrary, shares of Common Stock subject to an award under this Plan may
not be made available for issuance under this Plan if such shares are:
(i) shares that were subject to a stock-settled SAR and were not issued
upon the net settlement or net exercise of such SAR, (ii) shares used to
pay the exercise price of an Incentive Stock Option or Nonqualified Stock
Option, (iii) shares delivered to or withheld by the Company to pay
withholding taxes related to an award under this Plan, or (iv) shares
repurchased on the open market with the proceeds of an option exercise.


 


Shares of Common Stock to be delivered under this Plan
shall be made available from authorized and unissued shares of Common Stock, or
authorized and issued shares of Common Stock reacquired and held as treasury
shares or otherwise or a combination thereof.


 


II.            STOCK
OPTIONS AND STOCK APPRECIATION RIGHTS


 


2.1          Stock Options. The Committee may, in its
discretion, grant options to purchase shares of Common Stock to such eligible
persons as may be selected by the Committee. Each option, or portion thereof,
that is not an Incentive Stock Option, shall be a Nonqualified Stock Option. To
the extent that the aggregate Fair Market Value (determined as of the date of
grant) of shares of Common Stock with respect to which options designated as
Incentive Stock Options are exercisable for the first time by a participant
during any calendar year (under this Plan or any other plan of the Company, or
any parent or Subsidiary) exceeds the amount (currently $100,000) established
by the Code, such options shall constitute Nonqualified Stock Options.


 


Options shall be subject to the following terms and conditions
and shall contain such additional terms and conditions, not inconsistent with
the terms of this Plan, as the Committee shall deem advisable:


 


(a) Number of Shares and Purchase Price.  The number of shares of Common Stock subject
to an option and the purchase price per share of Common Stock purchasable upon
exercise of the option shall be determined by the Committee; provided, however,
that the purchase price per share of Common Stock purchasable upon exercise of
a Nonqualified Stock Option or an Incentive Stock Option shall not be less than
100% of the Fair Market Value of a share of Common Stock on the date of grant
of such option; provided further, that if an Incentive Stock Option
shall be granted to any person who, at the time such option is granted, owns
capital stock possessing more than 10 percent of the total combined voting
power of all classes of capital stock of the Company (or of any parent or
Subsidiary) (a “Ten Percent Holder”), the 


 


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purchase price per share of Common Stock shall not be less than the
price (currently 110% of Fair Market Value) required by the Code in order to
constitute an Incentive Stock Option.


 


(b) Option Period and Exercisability.  The period during which an option may be
exercised shall be determined by the Committee; provided, however,
that no Incentive Stock Option or Nonqualified Stock Option shall be exercised
later than ten years after its date of grant; provided further, that if
an Incentive Stock Option shall be granted to a Ten Percent Holder, such option
shall not be exercised later than five years after its date of grant.  The Committee may, in its discretion,
determine that an option is to be granted as a Performance Option and may
establish an applicable Performance Period and Performance Measures which shall
be satisfied or met as a condition to the grant of such option or to the
exercisability of all or a portion of such option.  The Committee shall determine whether an
option shall become exercisable in cumulative or non-cumulative installments
and in part or in full at any time. An exercisable option, or portion thereof,
may be exercised only with respect to whole shares of Common Stock.


 


(c) Method of Exercise.  An option may be exercised (i) by giving
written notice to the Company specifying the number of whole shares of Common
Stock to be purchased and accompanying such notice with payment therefor in
full (or arrangement made for such payment to the Company’s satisfaction)
either (A) in cash, (B) by delivery (either actual delivery or by
attestation procedures established by the Company) of shares of Common Stock
having a Fair Market Value, determined as of the date of exercise, equal to the
aggregate purchase price payable by reason of such exercise,
(C) authorizing the Company to withhold whole shares of Common Stock which
would otherwise be delivered having an aggregate Fair Market Value, determined
as of the date of exercise, equal to the amount necessary to satisfy such
obligation, (D) in cash by a broker-dealer acceptable to the Company to
whom the optionee has submitted an irrevocable notice of exercise or (E) a
combination of (A), (B) and (C), in each case to the extent set forth in
the Agreement relating to the option, (ii) if applicable, by surrendering
to the Company any Tandem SARs which are cancelled by reason of the exercise of
the option and (iii) by executing such documents as the Company may
reasonably request. Any fraction of a share of Common Stock which would be
required to pay such purchase price shall be disregarded and the remaining
amount due shall be paid in cash by the optionee.  No shares of Common Stock shall be issued and
no certificate representing Common Stock shall be delivered until the full
purchase price therefor and any withholding taxes thereon, as described in
Section 5.5, have been paid (or arrangement made for such payment to the
Company’s satisfaction).


 


2.2          Stock Appreciation Rights.  The Committee may, in its discretion, grant
SARs to such eligible persons as may be selected by the Committee.  The Agreement relating to an SAR shall
specify whether the SAR is a Tandem SAR or a Free-Standing SAR.


 


SARs shall be subject to the following terms and
conditions and shall contain such additional terms and conditions, not inconsistent
with the terms of this Plan, as the Committee shall deem advisable:


 


(a) Number of SARs and Base Price.  The number of SARs subject to an award shall
be determined by the Committee. Any Tandem SAR related to an Incentive Stock
Option shall be granted at the same time that such Incentive Stock Option is
granted.  The base price of a 


 


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Tandem
SAR shall be the purchase price per share of Common Stock of the related
option.  The base price of a
Free-Standing SAR shall be determined by the Committee; provided, however,
that such base price shall not be less than 100% of the Fair Market Value of a
share of Common Stock on the date of grant of such SAR.


 


(b) Exercise Period
and Exercisability.  The period for
the exercise of an SAR shall be determined by the Committee; provided, however,
that no Tandem SAR shall be exercised later than the expiration, cancellation,
forfeiture or other termination of the related option and no Free-Standing SAR
shall be exercised later than ten years after its date of grant.  The Committee may, in its discretion,
establish Performance Measures which shall be satisfied or met as a condition
to the grant of an SAR or to the exercisability of all or a portion of an
SAR.  The Committee shall determine
whether an SAR may be exercised in cumulative or non-cumulative installments and
in part or in full at any time. An exercisable SAR, or portion thereof, may be
exercised, in the case of a Tandem SAR, only with respect to whole shares of
Common Stock and, in the case of a Free-Standing SAR, only with respect to a
whole number of SARs.  If an SAR is
exercised for shares of Restricted Stock, a certificate or certificates
representing such Restricted Stock shall be issued in accordance with Section 3.2(c),
or such shares shall be transferred to the holder in book entry form with
restrictions on the Shares duly noted, and the holder of such Restricted Stock
shall have such rights of a stockholder of the Company as determined pursuant
to Section 3.2(d).  Prior to the
exercise of an SAR, the holder of such SAR shall have no rights as a
stockholder of the Company with respect to the shares of Common Stock subject
to such SAR.


 


(c) Method of
Exercise.  A Tandem SAR may be
exercised (i) by giving written notice to the Company specifying the
number of whole SARs which are being exercised, (ii) by surrendering to
the Company any options which are cancelled by reason of the exercise of the
Tandem SAR and (iii) by executing such documents as the Company may
reasonably request.  A Free-Standing SAR
may be exercised (A) by giving written notice to the Company specifying
the whole number of SARs which are being exercised and (B) by executing
such documents as the Company may reasonably request.


 


2.3          Termination
of Employment or Service.  All of the terms relating to the exercise,
cancellation or other disposition of an option or SAR upon a termination of
employment or service with the Company of the holder of such option or SAR, as
the case may be, whether by reason of disability, retirement, death or any
other reason, shall be determined by the Committee.


 


2.4          No
Repricing.  Notwithstanding anything in this Plan to the
contrary and subject to Section 5.7, without the approval of the
stockholders of the Company the Committee will not amend or replace any
previously granted option or SAR in a transaction that constitutes a
“repricing,” as such term is used in Section 303A.08 of the Listed Company
Manual of The New York Stock Exchange.


 


III.           STOCK AWARDS


 


3.1          Stock
Awards.  The Committee may, in its discretion, grant
Stock Awards to such eligible persons as may be selected by the Committee.  The Agreement relating to a Stock 


 


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Award shall specify whether the Stock Award is a
Restricted Stock Award or a Restricted Stock Unit Award.


 


3.2          Terms of
Restricted Stock Awards.  Restricted Stock Awards shall be subject to
the following terms and conditions and shall contain such additional terms and
conditions, not inconsistent with the terms of this Plan, as the Committee
shall deem advisable.


 


(a) Number of Shares
and Other Terms.  The number of
shares of Common Stock subject to a Restricted Stock Award and the Restriction
Period, Performance Period (if any) and Performance Measures (if any)
applicable to a Restricted Stock Award shall be determined by the Committee.


 


(b) Vesting and
Forfeiture.  The Agreement relating
to a Restricted Stock Award shall provide, in the manner determined by the
Committee, in its discretion, and subject to the provisions of this Plan, for
the vesting of the shares of Common Stock subject to such award (i) if the
holder of such award remains continuously in the employment of the Company
during the specified Restriction Period and (ii) if specified Performance
Measures (if any) are satisfied or met during a specified Performance Period,
and for the forfeiture of the shares of Common Stock subject to such award (x) if
the holder of such award does not remain continuously in the employment of the
Company during the specified Restriction Period or (y) if specified
Performance Measures (if any) are not satisfied or met during a specified
Performance Period.


 


(c) Stock Issuance.  During the Restriction Period, the shares of
Restricted Stock shall be held by a custodian in book entry form with
restrictions on such shares duly noted or, alternatively, a certificate or
certificates representing a Restricted Stock Award shall be registered in the
holder’s name and may bear a legend, in addition to any legend which may be
required pursuant to Section 5.6, indicating that the ownership of the
shares of Common Stock represented by such certificate is subject to the
restrictions, terms and conditions of this Plan and the Agreement relating to
the Restricted Stock Award.  All such
certificates shall be deposited with the Company, together with stock powers or
other instruments of assignment (including a power of attorney), each endorsed
in blank with a guarantee of signature if deemed necessary or appropriate,
which would permit transfer to the Company of all or a portion of the shares of
Common Stock subject to the Restricted Stock Award in the event such award is
forfeited in whole or in part. Upon termination of any applicable Restriction
Period (and the satisfaction or attainment of applicable Performance Measures),
subject to the Company’s right to require payment of any taxes in accordance with
Section 5.5, the restrictions shall be removed from the requisite number
of any shares of Common Stock that are held in book entry form, and all
certificates evidencing ownership of the requisite number of shares of Common
Stock shall be delivered to the holder of such award.


 


(d) Rights with
Respect to Restricted Stock Awards. 
Unless otherwise set forth in the Agreement relating to a Restricted
Stock Award, and subject to the terms and conditions of a Restricted Stock
Award, the holder of such award shall have all rights as a stockholder of the
Company, including, but not limited to, voting rights, the right to receive
dividends and the right to participate in any capital adjustment applicable to
all holders of Common Stock; provided, however, that (i) a
distribution with respect to shares of Common Stock, other than a regular cash
dividend, and (ii) a regular cash dividend with respect to shares of
Common Stock that are 


 


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subject
to performance-based vesting conditions, in each case, shall be deposited with
the Company and shall be subject to the same restrictions as the shares of
Common Stock with respect to which such distribution was made.


 


3.3          Terms of
Restricted Stock Unit Awards.  Restricted Stock Unit Awards shall be subject
to the following terms and conditions and shall contain such additional terms
and conditions, not inconsistent with the terms of this Plan, as the Committee
shall deem advisable.


 


(a) Number of Shares
and Other Terms.  The number of
shares of Common Stock subject to a Restricted Stock Unit Award and the
Restriction Period, Performance Period (if any) and Performance Measures (if
any) applicable to a Restricted Stock Unit Award shall be determined by the
Committee.


 


(b) Vesting and
Forfeiture.  The Agreement relating
to a Restricted Stock Unit Award shall provide, in the manner determined by the
Committee, in its discretion, and subject to the provisions of this Plan, for
the vesting of such Restricted Stock Unit Award (i) if the holder of such
award remains continuously in the employment of the Company during the
specified Restriction Period and (ii) if specified Performance Measures
(if any) are satisfied or met during a specified Performance Period, and for
the forfeiture of the shares of Common Stock subject to such award (x) if
the holder of such award does not remain continuously in the employment of the
Company during the specified Restriction Period or (y) if specified
Performance Measures (if any) are not satisfied or met during a specified
Performance Period.


 


(c) Settlement of
Vested Restricted Stock Unit Awards. 
The Agreement relating to a Restricted Stock Unit Award shall specify (i) whether
such award may be settled in shares of Common Stock or cash or a combination thereof
and (ii) whether the holder thereof shall be entitled to receive, on a
current or deferred basis, dividend equivalents, and, if determined by the
Committee, interest on, or the deemed reinvestment of, any deferred dividend
equivalents, with respect to the number of shares of Common Stock subject to
such award.  Prior to the settlement of a
Restricted Stock Unit Award, the holder of such award shall have no rights as a
stockholder of the Company with respect to the shares of Common Stock subject
to such award.


 


3.4          Termination
of Employment or Service.  All of the terms relating to the satisfaction
of Performance Measures and the termination of the Restriction Period or
Performance Period relating to a Stock Award, or any forfeiture and
cancellation of such award upon a termination of employment or service with the
Company of the holder of such award, whether by reason of disability,
retirement, death or any other reason, shall be determined by the Committee.


 


IV.           PERFORMANCE UNIT AWARDS


 


4.1          Performance
Unit Awards.  The Committee may, in its discretion, grant
Performance Unit Awards to such eligible persons as may be selected by the
Committee.


 


4.2          Terms of
Performance Unit Awards.  Performance Unit Awards
shall be subject to the following terms and conditions and shall contain such
additional terms and conditions, not inconsistent with the terms of this Plan,
as the Committee shall deem advisable.


 


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(a) Number of
Performance Units and Performance Measures. 
The number of Performance Units subject to a Performance Unit Award and
the Performance Measures and Performance Period applicable to a Performance
Unit Award shall be determined by the Committee.


 


(b) Vesting and
Forfeiture.  The Agreement relating to
a Performance Unit Award shall provide, in the manner determined by the
Committee, in its discretion, and subject to the provisions of this Plan, for
the vesting of such Performance Unit Award if the specified Performance
Measures are satisfied or met during the specified Performance Period and for
the forfeiture of such award if the specified Performance Measures are not
satisfied or met during the specified Performance Period.


 


(c) Settlement of
Vested Performance Unit Awards.  The
Agreement relating to a Performance Unit Award shall specify whether such award
may be settled in shares of Common Stock (including shares of Restricted Stock)
or cash or a combination thereof.  If a
Performance Unit Award is settled in shares of Restricted Stock, such shares of
Restricted Stock shall be issued to the holder in book entry form or a
certificate or certificates representing such Restricted Stock shall be issued
in accordance with Section 3.2(c) and the holder of such Restricted
Stock shall have such rights as a stockholder of the Company as determined
pursuant to Section 3.2(d). Prior to the settlement of a Performance Unit
Award in shares of Common Stock, including Restricted Stock, the holder of such
award shall have no rights as a stockholder of the Company.


 


4.3          Termination
of Employment or Service.  All of the terms relating to the satisfaction
of Performance Measures and the termination of the Performance Period relating
to a Performance Unit Award, or any forfeiture and cancellation of such award
upon a termination of employment or service with the Company of the holder of
such award, whether by reason of disability, retirement, death or any other
reason, shall be determined by the Committee.


 


V.            GENERAL


 


5.1          Effective
Date and Term of Plan.  Subject to the approval of the Plan by the
stockholders of the Company, the Plan shall become effective as of [                          
    , 2009]. 
The Plan shall terminate on the tenth anniversary of its effective date,
unless terminated earlier by the Board.   Termination of
this Plan shall not affect the terms or conditions of any award granted prior
to termination.  Awards hereunder may be
made at any time prior to the termination of this Plan, provided that no award
may be made later than ten years after the effective date of this Plan.


 


5.2          Amendments.  The Board may amend this Plan
as it shall deem advisable, subject to any requirement of stockholder approval
required by applicable law, rule or regulation, including Section 162(m) of
the Code and any rule of The New York Stock Exchange, or, if the Common
Stock is not listed on The New York Stock Exchange, any rule of the
principal national stock exchange on which the Common Stock is then traded; provided,
however, that no amendment may impair the rights of a holder of an
outstanding award without the consent of such holder.


 


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5.3          Agreement.  Each award
under this Plan shall be evidenced by an Agreement setting forth the terms and
conditions applicable to such award. No award shall be valid until an Agreement
is executed by the Company and the recipient of such award and, upon execution
by each party and delivery of the Agreement to the Company within the time
period specified by the Company, such award shall be effective as of the
effective date set forth in the Agreement.


 


5.4          Non-Transferability.  No award shall be transferable
other than by will, the laws of descent and distribution or pursuant to
beneficiary designation procedures approved by the Company or, to the extent
expressly permitted in the Agreement relating to such award, to the holder’s
family members, a trust or entity established by the holder for estate planning
purposes or a charitable organization designated by the holder.  Except to the extent permitted by the
foregoing sentence or the Agreement relating to an award, each award may be
exercised or settled during the holder’s lifetime only by the holder or the
holder’s legal representative or similar person.  Except as permitted by the second preceding
sentence, no award may be sold, transferred, assigned, pledged, hypothecated,
encumbered or otherwise disposed of (whether by operation of law or otherwise)
or be subject to execution, attachment or similar process. Upon any attempt to
so sell, transfer, assign, pledge, hypothecate, encumber or otherwise dispose
of any award, such award and all rights thereunder shall immediately become
null and void.


 


5.5          Tax
Withholding.  The Company shall have the right to require,
prior to the issuance or delivery of any shares of Common Stock or the payment
of any cash pursuant to an award made hereunder, payment by the holder of such
award of any federal, state, local or other taxes which may be required to be
withheld or paid in connection with such award. 
An Agreement may provide that (i) the Company shall withhold whole
shares of Common Stock which would otherwise be delivered to a holder, having
an aggregate Fair Market Value determined as of the date the obligation to
withhold or pay taxes arises in connection with an award (the “Tax Date”), or
withhold an amount of cash which would otherwise be payable to a holder, in the
amount necessary to satisfy any such obligation or (ii) the holder may
satisfy any such obligation by any of the following means: (A) a cash
payment to the Company, (B) delivery (either actual delivery or by
attestation procedures established by the Company) to the Company of previously
owned whole shares of Common Stock having an aggregate Fair Market Value,
determined as of the Tax Date, equal to the amount necessary to satisfy any
such obligation, (C) authorizing the Company to withhold whole shares of
Common Stock which would otherwise be delivered having an aggregate Fair Market
Value, determined as of the Tax Date, or withhold an amount of cash which would
otherwise be payable to a holder, equal to the amount necessary to satisfy any
such obligation, (D) in the case of the exercise of an option or SAR and
except as may be prohibited by applicable law, a cash payment by a
broker-dealer acceptable to the Company to whom the optionee has submitted an
irrevocable notice of exercise or (E) any combination of (A), (B) and
(C), in each case to the extent set forth in the Agreement relating to the
award. Shares of Common Stock to be delivered or withheld may not have an
aggregate Fair Market Value in excess of the amount determined by applying the
minimum statutory withholding rate.  Any
fraction of a share of Common Stock which would be required to satisfy such an
obligation shall be disregarded and the remaining amount due shall be paid in
cash by the holder.


 


5.6          Restrictions
on Shares.  Each award made hereunder shall be subject to
the requirement that if at any time the Company determines that the listing,
registration or 


 


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qualification of the shares of Common Stock subject
to such award upon any securities exchange or under any law, or the consent or
approval of any governmental body, or the taking of any other action is
necessary or desirable as a condition of, or in connection with, the delivery
of shares thereunder, such shares shall not be delivered unless such listing,
registration, qualification, consent, approval or other action shall have been
effected or obtained, free of any conditions not acceptable to the
Company.  The Company may require that
certificates evidencing shares of Common Stock delivered pursuant to any award
made hereunder bear a legend indicating that the sale, transfer or other disposition
thereof by the holder is prohibited except in compliance with the Securities
Act of 1933, as amended, and the rules and regulations thereunder.


 


5.7          Adjustment.  In the event of any stock
split, stock dividend, recapitalization, reorganization, merger, consolidation,
combination, exchange of shares, liquidation, spin-off or other similar change
in capitalization or event, or any distribution to holders of Common Stock
other than a regular cash dividend, the number and class of securities
available under this Plan, the number and class of securities subject to each
outstanding option and the purchase price per security, the terms of each
outstanding SAR, the terms of each outstanding Restricted Stock Award and
Restricted Stock Unit Award, including the number and class of securities subject
thereto, and the terms of each outstanding Performance Unit, shall be equitably
adjusted by the Committee, such adjustments to be made in the case of
outstanding options and SARs in accordance with Section 409A of the
Code.  The decision of the Committee
regarding any such adjustment shall be final, binding and conclusive.  If any such adjustment would result in a
fractional security being (a) available under this Plan, such fractional
security shall be disregarded, or (b) subject to an award under this Plan,
the Company shall pay the holder of such award, in connection with the first
vesting, exercise or settlement of such award, in whole or in part, occurring
after such adjustment, an amount in cash determined by multiplying (i) the
fraction of such security (rounded to the nearest hundredth) by (ii) the
excess, if any, of (A) the Fair Market Value on the vesting, exercise or
settlement date over (B) the exercise or base price, if any, of such
award.


 


5.8          Change in
Control.


 


(a)           Notwithstanding any provision
in this Plan or any Agreement, in the event of a Change in Control, (i) all
outstanding options and SARs shall immediately become exercisable in full, (ii) the
Restriction Period applicable to any outstanding Restricted Stock Award or
Restricted Stock Unit Award shall lapse, (iii) the Performance Period
applicable to any outstanding award shall lapse, (iv) the Performance
Measures applicable to any outstanding award shall be deemed to be satisfied at
the target level (or such higher level as determined by the Board) and (v) the
Board (as constituted prior to such Change in Control) may, in its discretion:


 


(1)           require that shares of stock of the corporation
resulting from such Change in Control, or a parent corporation thereof, be
substituted for some or all of the shares of Common Stock subject to an
outstanding award, with an appropriate and equitable adjustment to such award
as shall be determined by the Board in accordance with Section 5.7; and/or


 


13

















 


(2)           require outstanding awards, in whole or in part, to be
surrendered to the Company by the holder, and to be immediately cancelled by
the Company, and to provide for the holder to receive (A) a cash payment
in an amount equal to (i) in the case of an option or an SAR, the number
of shares of Common Stock then subject to the portion of such option or SAR
surrendered multiplied by the excess, if any, of the Fair Market Value of a
share of Common Stock as of the date of the Change in Control, over the purchase
price or base price per share of Common Stock subject to such option or SAR, (ii) in
the case of a Stock Award, the number of shares of Common Stock then subject to
the portion of such award surrendered multiplied by the Fair Market Value of a
share of Common Stock as of the date of the Change in Control, and (iii) in
the case of a Performance Unit Award, the value of the Performance Units then
subject to the portion of such award surrendered; (B) shares of capital
stock of the corporation resulting from such Change in Control, or a parent
corporation thereof, having a fair market value not less than the amount
determined under clause (A) above; or (C) a combination of the
payment of cash pursuant to clause (A) above and the issuance of shares
pursuant to clause (B) above.


 


(b)           For purposes of this Plan, “Change in Control”
means the occurrence of any of the following:


 


(i)            The acquisition, other than from the Company, by any
individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either
the then outstanding shares of Common Stock of the Company or the combined
voting power of the then outstanding voting securities of the Company entitled
to vote generally in the election of directors, but excluding, for this
purpose, any such acquisition by an Investor or any of its Affiliates, the
Company or any of its subsidiaries, or any employee benefit plan (or related
trust) of the Company or its subsidiaries, or any corporation with respect to
which, following such acquisition, more than 50% of, respectively, the then
outstanding shares of common stock of such corporation and the combined voting
power of the then outstanding voting securities of such corporation entitled to
vote generally in the election of all or substantially all directors is then
beneficially owned, directly or indirectly, by the individuals and entities who
were the beneficial owners, respectively, of the Common Stock and voting
securities of the Company immediately prior to such acquisition in
substantially the same proportions as their ownership, immediately prior to
such acquisition, of the then outstanding shares of Common Stock of the Company
or the combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors, as the case
may be; or


 


(ii)           Individuals who, as of the effective date of the Plan,
constitute the Board (as of the date hereof the “Incumbent Board”) cease
for any reason to constitute at least a majority of the Board, provided that
any individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company’s shareholders, was
approved by a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a member of
the 


 


14

















 


Incumbent Board, but excluding, for this purpose, any
such individual whose initial assumption of office is in connection with an
actual or threatened election contest relating to the election of the directors
of the Company (as such terms are used in Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act); or


 


(iii)          The consummation of a reorganization, merger or
consolidation of the Company or the sale or other disposition of all or
substantially all of the assets of the Company (a “Corporate Transaction”),
in each case, with respect to which all or substantially all of the individuals
and entities who were the respective beneficial owners of the Common Stock and
voting securities of the Company immediately prior to such Corporate
Transaction do not, following such Corporate Transaction, beneficially own,
directly or indirectly, more than 50% of, respectively, the then outstanding
shares of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such Corporate Transaction
(including, without limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all of the Company’s
assets either directly or indirectly) in substantially the same proportions as
their ownership, immediately prior to such Corporate Transaction, of then
outstanding shares of Common Stock of the Company or the combined voting power
of the then outstanding voting securities of the Company entitled to vote in
the election of directors, as the case may be; or


 


(iv)          A complete liquidation or dissolution of the Company;


 


provided, that in no
event shall a Change in Control be deemed to have occurred upon the
consummation of  the Initial Public
Offering or any bona fide primary or secondary public offering following the
occurrence of the Initial Public Offering.


 


5.9          Deferrals.  The Committee may determine
that the delivery of shares of Common Stock or the payment of cash, or a
combination thereof, upon the exercise or settlement of all or a portion of any
award (other than awards of Incentive Stock Options, Nonqualified Stock Options
and SARs) made hereunder shall be deferred, or the Committee may, in its sole
discretion, approve deferral elections made by holders of awards. Deferrals
shall be for such periods and upon such terms as the Committee may determine in
its sole discretion, subject to the requirements of Section 409A of the
Code.


 


5.10        No Right of
Participation, Employment or Service.  Unless otherwise set forth in an employment
agreement, no person shall have any right to participate in this Plan.  Neither this Plan nor any award made
hereunder shall confer upon any person any right to continued employment by or
service with the Company, any Subsidiary or any affiliate of the Company or
affect in any manner the right of the Company, any Subsidiary or any affiliate
of the Company to terminate the employment of any person at any time without
liability hereunder.


 


5.11        Rights as Stockholder.  No person shall have any right
as a stockholder of the Company with respect to any shares of Common Stock or
other equity security of the Company which is subject to an award hereunder
unless and until such person becomes a stockholder of record with respect to
such shares of Common Stock or equity security.


 


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5.12        Designation
of Beneficiary.  A holder of an award may file with the
Committee a written designation of one or more persons as such holder’s
beneficiary or beneficiaries (both primary and contingent) in the event of the
holder’s death or incapacity.  To the
extent an outstanding option or SAR granted hereunder is exercisable, such
beneficiary or beneficiaries shall be entitled to exercise such option or SAR
pursuant to procedures prescribed by the Committee.


 


Each beneficiary designation
shall become effective only when filed in writing with the Committee during the
holder’s lifetime on a form prescribed by the Committee.  The spouse of a married holder domiciled in a
community property jurisdiction shall join in any designation of a beneficiary
other than such spouse.  The filing with
the Committee of a new beneficiary designation shall cancel all previously
filed beneficiary designations.


 


If a holder fails to
designate a beneficiary, or if all designated beneficiaries of a holder
predecease the holder, then each outstanding option and SAR hereunder held by
such holder, to the extent exercisable, may be exercised by such holder’s
executor, administrator, legal representative or similar person.


 


5.13        Governing
Law.  This Plan, each award hereunder and the
related Agreement, and all determinations made and actions taken pursuant
thereto, to the extent not otherwise governed by the Code or the laws of the
United States, shall be governed by the laws of the State of Delaware and
construed in accordance therewith without giving effect to principles of
conflicts of laws.


 


5.14        Foreign
Employees.  Without amending this Plan, the Committee may
grant awards to eligible persons who are foreign nationals on such terms and
conditions different from those specified in this Plan as may in the judgment
of the Committee be necessary or desirable to foster and promote achievement of
the purposes of this Plan and, in furtherance of such purposes the Committee
may make such modifications, amendments, procedures, subplans and the like as
may be necessary or advisable to comply with provisions of laws in other
countries or jurisdictions in which the Company or its Subsidiaries operates or
has employees.


 


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