EX-10.1






Exhibit 10.1




ARCH COAL, INC.

1997 STOCK INCENTIVE PLAN

(As Amended and Restated on December 5th, 2008)




SECTION 1

Statement of Purpose





	1.1.	 	The Arch Coal, Inc. 1997 Stock Incentive Plan (the “Plan”) has been established by Arch Coal,
Inc. in order to:






	 	(a)	 	attract and retain executive, managerial and other salaried employees;
	 
	 	(b)	 	motivate participating employees, by means of appropriate incentives, to
achieve long-range goals;
	 
	 	(c)	 	provide incentive compensation opportunities that are competitive with those of
other major corporations; and
	 
	 	(d)	 	further identify a Participant’s interests with those of the Company’s other
stockholders through compensation based on the Company’s common stock; thereby
promoting the long-term financial interest of the Company and its Related Companies,
including the growth in value of the Company’s equity and enhancement of long-term
stockholder return.





SECTION 2

Definitions





	2.1.	 	Unless the context indicates otherwise, the following terms shall have the meaning set forth
below:






	 	(a)	 	Acquiring Corporation. The term “Acquiring Corporation” shall mean the
surviving, continuing successor or purchasing corporation in an acquisition or merger
with the Company in which the Company is not the surviving corporation.
	 
	 	(b)	 	Award. The term “Award” shall mean any award or benefit granted to any
Participant under the Plan, including, without limitation, the grant of Options, Stock
Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Stock,
Performance Units, Merit Awards, Phantom Stock Awards and Stock acquired through
purchase under Section 12.
	 
	 	(c)	 	Award Agreement. The term “Award Agreement” shall mean any written agreement,
contract, or other instrument or document evidencing any Award, which shall not become
effective until executed or acknowledged by a Participant.
	 
	 	(d)	 	Board. The term “Board” shall mean the Board of Directors of the Company
acting as such but shall not include the Committee or other committees of the Board
acting on behalf of the Board.




 









 












	 	(e)	 	Cause. The term “Cause” shall mean (a) the continued failure by the
Participant to substantially perform his or her duties with the Company (other than any
such failure resulting from his or her incapacity due to physical or mental illness),
or (b) the engaging by the Participant in conduct which is demonstrably and materially
injurious to the Company, monetarily or otherwise.
	 
	 	(f)	 	Change in Control. A “Change in Control” shall mean a change in control of the
Company of a nature that would be required to be reported (assuming such event has not
been “previously reported”) in response to Item 1(a) of a Current Report on Form 8-K
pursuant to Section 13 or 15(d) of the Exchange Act as in effect on the date this Plan
is approved by the shareholders of the Company; provided that, without limitation, such
a Change in Control shall be deemed to have occurred (1) upon the approval of the Board
(or if approval of the Board is not required as a matter of law, the shareholders of
the Company) of (A) any consolidation or merger of the Company in which the Company is
not the continuing or surviving corporation or pursuant to which shares of Stock would
be converted into cash, securities or other property, other than a merger in which the
holders of the Stock immediately prior to the merger will have more than 50% of the
ownership of common stock of the surviving corporation immediately after the merger,
(B) any sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all or substantially all of the assets of the Company, or (C)
adoption of any plan or proposal for the liquidation or dissolution of the Company, or
(2) when any “person” (as defined in Section 13(d) of the Exchange Act), other than a
Significant Stockholder, or any subsidiary of the Company or employee benefit plan or
trust maintained by the Company or any of its subsidiaries, shall become the
“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of more than 20% of the Stock outstanding at the time, without the prior
approval of the Board.
	 
	 	(g)	 	Code. The term “Code” means the Internal Revenue Code of 1986, as amended. A
reference to any provision of the Code shall include reference to any successor
provision of the Code.
	 
	 	(h)	 	Committee. The term “Committee” means the Personnel & Compensation Committee
of the Board.
	 
	 	(i)	 	Company. The term “Company” means Arch Coal, Inc., a Delaware corporation.
	 
	 	(j)	 	Date of Termination. A Participant’s “Date of Termination” shall be the date
on which his or her employment with all Employer and Related Companies terminates for
any reason; provided that, for purposes of this Plan only, a Participant’s employment
shall not be considered terminated by reason of the Participant’s leave of absence from
an Employer or a Related Company that is approved in advance by the Participant’s
Employer. Notwithstanding the above, to the extent any Award constitutes nonqualified
deferred compensation which is subject to the limitations and restrictions of Code
Section 409A, a Participant’s “Date of Termination” shall be the date he or she has a
separation from service as determined in accordance with




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	 	 	 	the rules promulgated under Code Section 409A and the resolutions of the Board
regarding such determination.
	 
	 	(k)	 	Disability. Except as otherwise provided by the Committee, a Participant shall
be considered to have a “Disability” during the period in which he or she is unable, by
reason of a medically determined physical or mental impairment, to carry out his or her
duties with an Employer, which condition, in the discretion of the Committee, shall
generally be an event which qualifies as a “long term disability” under applicable long
term disability benefit programs of the Company.
	 
	 	(l)	 	Employee. The term “Employee” shall mean a person with an employment
relationship with an Employer.
	 
	 	(m)	 	Employer. The Company and each Subsidiary which, with the consent of the
Company, participates in the Plan for the benefit of its eligible Employees are
referred to collectively as the “Employers” and individually as an “Employer”.
	 
	 	(n)	 	Exchange Act. The term “Exchange Act” means the Securities Exchange Act of
1934, as amended.
	 
	 	(o)	 	Exercise Price. The term “Exercise Price” means, with respect to each share
of Stock subject to an Option, the price fixed by the Committee in the applicable Award
Agreement at which such share may be purchased from the Company pursuant to the
exercise of such Option, which price at no time may be less than 100% of the Fair
Market Value of the Stock on the date the Option is granted, except as permitted and
contemplated by Section 21 of the Plan.
	 
	 	(p)	 	Fair Market Value. The “Fair Market Value” of the Stock on any given date
shall be the last sale price, regular way, or, in case no such sale takes place on such
date, the average of the closing bid and asked prices, regular way, of the Stock, in
either case as reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the NYSE or, if the Stock is not
listed or admitted to trading on the NYSE, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the principal
national securities exchange on which the Stock is listed or admitted to trading or, if
the Stock is not listed or admitted to trading on any national securities exchange, the
last quoted sale price on such date or, if not so quoted, the average of the high bid
and low asked prices in the over-the-counter market on such date, as reported by the
National Association of Securities Dealers, Inc. Automated Quotations System or such
other system then in use, or, if on any such date the Stock is not quoted by any such
organization, the average of the closing bid and asked prices on such date as furnished
by a professional market maker making a market in the Stock. If the Stock is not
publicly held or so listed or publicly traded, “Fair Market Value” per share of Stock
shall mean the Fair Market Value per share as reasonably determined by the Committee.




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	 	(q)	 	Immediate Family. With respect to a particular Participant, the term
“Immediate Family” shall mean, whether through consanguinity or adoptive relationships,
the Participant’s spouse, children, stepchildren, siblings and grandchildren.
	 
	 	(r)	 	Incentive Stock Option. The term “Incentive Stock Option” shall mean any
Incentive Stock Option granted under the Plan.
	 
	 	(s)	 	Merit Award. The term “Merit Award” shall mean any Award granted under the
Plan other than Incentive Stock Options, Non-Qualified Stock Options, Restricted Stock,
Restricted Stock Units, or Stock Appreciation Rights.
	 
	 	(t)	 	Non-Employee Director. The term “Non-Employee Director” shall mean a person
who qualifies as such under Rule 16b-3(b)(3) under the Exchange Act or any successor
provision, and who also qualifies as an “outside director” under Section 162(m) of the
Code.
	 
	 	(u)	 	Non-Qualified Stock Option. The term “Non-qualified Stock Option” shall mean
any Non-Qualified Stock Option granted under the Plan.
	 
	 	(v)	 	NYSE. The term “NYSE” refers to the New York Stock Exchange, Inc.
	 
	 	(w)	 	Option. The term “Option” shall mean any Incentive Stock Option or
Non-Qualified Stock Option granted under the Plan.
	 
	 	(x)	 	Participant. The term “Participant” means an Employee who has been granted an
award under the Plan.
	 
	 	(y)	 	Performance-Based Compensation. The term “Performance-Based Compensation”
shall have the meaning ascribed to it in Section 162(m)(4)(C) of the Code.
	 
	 	(z)	 	Performance Goals. The term “Performance Goals” means the goals established by
the Committee under an Award which, if met, will entitle the Participant to payment
under such Award and will qualify such payment as “Performance-Based Compensation” as
that term is used in Code Section 162(m)(4)(C). Such goals will be based upon such
business criteria as the Committee may from time to time determine.
	 
	 	(aa)	 	Performance Period. The term “Performance Period” shall mean the period over
which applicable performance is to be measured.
	 
	 	(bb)	 	Performance Stock. The term “Performance Stock” shall have the meaning
ascribed to it in Section 10 of the Plan.
	 
	 	(cc)	 	Performance Units. The term “Performance Units” shall have the meaning
ascribed to it in Section 11 of the Plan.




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	 	(dd)	 	Phantom Stock Award. The term “Phantom Stock Award” shall mean any Phantom
Stock Award granted under the Plan.
	 
	 	(ee)	 	Plan. The term “Plan” shall mean this Arch Coal, Inc. 1997 Stock Incentive
Plan as the same may be from time to time amended or revised.
	 
	 	(ff)	 	Related Companies. The term “Related Companies’ means any Significant
Stockholder and their subsidiaries; and any other company during any period in which it
is a Subsidiary or a division of the Company, including any entity acquired by, or
merged with or into, the Company or a Subsidiary.
	 
	 	(gg)	 	Restricted Period. The term “Restricted Period” shall mean the period of time
for which shares of Restricted Stock or Restricted Stock Units are subject to
forfeiture pursuant to the Plan or during which Options and Stock Appreciation Rights
are not exercisable.
	 
	 	(hh)	 	Restricted Stock. The term “Restricted Stock” shall have the meaning ascribed
to it in Section 8 of the Plan.
	 
	 	(ii)	 	Restricted Stock Units. The term “Restricted Stock Units” shall have the
meaning ascribed to it in Section 9 of the Plan.
	 
	 	(jj)	 	Retirement. “Retirement” of a Participant shall occur when a Participant’s
Date of Termination occurs on or after the date on which the Participant attains age 55
and such Participant has not been terminated for Cause.
	 
	 	(kk)	 	SEC. “SEC” means the Securities and Exchange Commission.
	 
	 	(ll)	 	Significant Stockholder. The term “Significant Stockholder” shall mean any
shareholder of the Company who, immediately prior to the Effective Date, owned more
than 5% of the common stock of the Company.
	 
	 	(mm)	 	Stock. The term “Stock” shall mean shares of common stock, $.01 par value per
share, of the Company.
	 
	 	(nn)	 	Stock Appreciation Rights. The term “Stock Appreciation Rights” shall mean any
Stock Appreciation Right granted under the Plan.
	 
	 	(oo)	 	Subsidiary. The term “Subsidiary” shall mean any present or future subsidiary
corporation of the Company within the meaning of Code Section 424((f).
	 
	 	(pp)	 	Tax Date. The term “Tax Date” shall mean the date a withholding tax obligation
arises with respect to an Award.




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SECTION 3

Eligibility





	3.1.	 	Subject to the discretion of the Committee and the terms and conditions of the Plan, the
Committee shall determine and designate from time to time, the Employees or other persons as
contemplated by Section 21 of the Plan who will be granted one or more Awards under the Plan.





SECTION 4

Operation and Administration





	4.1.	 	The Plan has been adopted by the Board and approved by the shareholders of the Company. To
the extent required pursuant to Section 162(m) of the Code, the Plan shall be resubmitted to
shareholders for reapproval no later than at the first shareholders’ meeting that occurs
during the fifth year following the year of the initial approval and thereafter at five year
intervals, in each case, as may be required to qualify any Award hereunder as
Performance-Based Compensation. The Plan shall be unlimited in duration and remain in effect
until termination by the Board; provided however, that no Incentive Stock Option may be
granted under the Plan after April 1, 2007.
	 
	4.2.	 	Plenary authority to administer, manage and control the operation and administration of the
Plan shall be vested in the Committee, which authority shall include, but shall not be limited
to:






	 	(a)	 	Subject to the provisions of the Plan, the authority and discretion to select
Employees to receive Awards, to determine the time or times of receipt, to determine
the types of Awards and the number of shares covered by the Awards, to establish the
terms, conditions, performance criteria, restrictions, and other provisions of such
Awards. In making such Award determinations, the Committee may take into account the
nature of services rendered by the respective Employee, his or her present and
potential contribution to the Company’s success and such other factors as the Committee
deems relevant.
	 
	 	(b)	 	Subject to the provisions of the Plan, the authority and discretion to
determine the extent to which Awards under the Plan will be structured to conform to
the requirements applicable to Performance-Based Compensation as described in Code
Section 162(m), and to take such action, establish such procedures, and impose such
restrictions at the time such awards are granted as the Committee determines to be
necessary or appropriate to conform to such requirements.
	 
	 	(c)	 	The authority and discretion to interpret the Plan and the Awards granted under
the Plan, to establish, amend and rescind any rules and regulations relating to the
Plan, to determine the terms and provisions of any agreements made pursuant to the
Plan, to make all other determinations that it deems necessary or advisable for the
administration of the Plan and to correct any defect or supply any omission or
reconcile any inconsistency in the Plan or in any Award, in each case, in the manner
and to the extent the Committee deems necessary or advisable to carry it into effect.




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	4.3.	 	Any interpretation of the Plan by the Committee and any decision made by it under the Plan
shall be final and binding on all persons. The express grant in the Plan of any specific
power to the Committee shall not be construed as limiting any power or authority of the
Committee. Provided, however, that except as otherwise permitted under Treasury Regulation
1.162-27(e)(2)(iii)(C), the Committee may not increase any Award once made if payment under
such Award is intended to constitute Performance-Based Compensation.
	 
	4.4.	 	The Committee may only act at a meeting by unanimous consent if comprised of two members, and
otherwise by a majority of its members. Any determination of the Committee may be made
without a meeting by the unanimous written consent of its members. In addition, the Committee
may authorize one or more of its members or any officer of an Employer to execute and deliver
documents and perform other administrative acts pursuant to the Plan.
	 
	4.5	 	No member or authorized delegate of the Committee shall be liable to any person for any
action taken or omitted in connection with the administration of the Plan unless attributable
to his or her own fraud or gross misconduct. The Committee, the individual members thereof,
and persons acting as the authorized delegates of the Committee under the Plan, shall be
indemnified by the Employers against any and all liabilities, losses, costs and expenses
(including legal fees and expenses) of whatsoever kind and nature which may be imposed on,
incurred by, or asserted against, the Committee or its members or authorized delegates by
reason of the performance of any action pursuant to the Plan if the Committee or its members
or authorized delegates did not act in willful violation of the law or regulation under which
such liability, loss, cost or expense arises. This indemnification shall not duplicate but
may supplement any coverage available under any applicable insurance policy, contract with the
indemnitee or the Company’s By-laws.
	 
	4.6.	 	Notwithstanding any other provision of the Plan to the contrary, but without giving effect to
Awards made pursuant to Section 21, the maximum number of shares of Stock with respect to
which any Participant may receive any Award of (i) an Option or a Stock Appreciation Right
under the Plan during any calendar year is 300,000; (ii) the maximum number of shares with
respect to which any Participant may receive Awards of Restricted Stock or Restricted Stock
Units during any calendar year is 100,000; (iii) the maximum number of shares with respect to
which any Participant may receive Merit Awards during any calendar year is 100,000; and (iv)
the maximum number of shares with respect to which any Participant may receive other Awards
during any calendar year is 100,000 (including the Awards described in Sections 4.6(i) through
4.6(iii), which may be further granted pursuant to this Section 4.6(iv)).
	 
	4.7.	 	To the extent that the Committee determines that it is necessary or desirable to conform any
Awards under the Plan with the requirements applicable to “Performance-Based Compensation”, as
that term is used in Code Section 162(m)(4)(C), it may, at or prior to the time an Award is
granted, establish Performance Goals for a particular Performance Period. If the Committee
establishes Performance Goals for a Performance Period, it may approve a payment from that
particular Performance Period upon attainment of the Performance Goal.




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SECTION 5

Shares Available Under the Plan





	5.1.	 	The shares of Stock with respect to which Awards may be made under the Plan shall be shares
of currently authorized but unissued or treasury shares acquired by the Company, including
shares purchased in the open market or in private transactions. Subject to the provisions of
Section 16, the total number of shares of Stock available for grant of Awards shall not exceed
nine million (9,000,000) shares of Stock. Except as otherwise provided herein, if any Award
shall expire or terminate for any reason without having been exercised in full, the unissued
shares of Stock subject thereto (whether or not cash or other consideration is paid in respect
of such Award) shall again be available for the purposes of the Plan. Any shares of Stock
which are used as full or partial payment to the Company upon exercise of an Award shall be
available for purposes of the Plan.





SECTION 6

Options





	6.1.	 	The grant of an “Option” under this Section 6 entitles the Participant to purchase shares of
Stock at a price fixed at the time the Option is granted, or at a price determined under a
method established at the time the Option is granted, subject to the terms of this Section 6.
Options granted under this Section 6 may be either Incentive Stock Options or Non-Qualified
Stock Options, and subject to Subsection 6.6 and Sections 15 and 20, shall not be exercisable
for at least six months from the date of grant, as determined in the discretion of the
Committee. An “Incentive Stock Option” is an Option that is intended to satisfy the
requirements applicable to an “incentive stock option” described in Section 422(b) of the
Code. A “Non-Qualified Option” is an Option that is not intended to be an “incentive stock
option” as that term is described in Section 422(b) of the Code.
	 
	6.2.	 	The Committee shall designate the Employees to whom Options are to be granted under this
Section 6 and shall determine the number of shares of Stock to be subject to each such Option.
To the extent that the aggregate Fair Market Value of Stock with respect to which Incentive
Stock Options are exercisable for the first time by any individual during any calendar year
(under all plans of the Company and all Related Companies) exceeds $100,000, such Options
shall be treated as Non-Qualified Stock Options, but only to the extent required by Section
422 of the Code.
	 
	6.3.	 	The determination and payment of the purchase price of a share of Stock under each Option
granted under this Section shall be subject to the following terms of this Subsection 6.3:






	 	(a)	 	The purchase price shall be established by the Committee or shall be determined
by a method established by the Committee at the time the Option is granted; provided,
however, that in no event shall the price per share be less than the Fair Market Value
per share on the date of the grant except as otherwise permitted by Section 21 of the
Plan;
	 
	 	(b)	 	The full purchase price of each share of Stock purchased upon the exercise of
any Option shall be paid at the time of such exercise and, as soon as practicable




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	 	 	 	thereafter, a certificate representing the shares so purchased shall be delivered to
the person entitled thereto; and
	 
	 	(c)	 	The purchase price shall be paid either in cash, in shares of Stock (valued at
Fair Market Value as of the day of exercise), through a combination of cash and Stock
(so valued) or through such cashless exercise arrangement as may be approved by the
Committee and established by the Company, provided that any shares of Stock used for
payment shall have been owned by the Participant for at least six (6) months.






	6.4.	 	Except as otherwise expressly provided in the Plan, an Option granted under this Section 6
shall be exercisable in accordance with the following terms of this Subsection 6.4.






	 	(a)	 	The terms and conditions relating to exercise of an Option shall be established
by the Committee and shall be set forth in the applicable Award Agreement, and may
include, without limitation, conditions relating to completion of a specified period of
service, achievement of performance standards prior to exercise of the Option, or
achievement of Stock ownership objectives by the Participant. No Option may be
exercised by a Participant after the expiration date applicable to that Option.
	 
	 	(b)	 	The exercise of an Option will result in the surrender of the corresponding
rights under a tandem Stock Appreciation Right, if any.






	6.5.	 	The exercise period of any Option shall be determined by the Committee and shall be set forth
in the applicable Award Agreement but the term of any Option shall not extend more than ten
years after the date of grant.





SECTION 7

Stock Appreciation Rights





	7.1.	 	Subject to the terms of this Section 7, a Stock Appreciation Right granted under the Plan
entitles the Participant to receive, in cash or Stock (as determined in accordance with
Subsection 7.4), value equal to all or a portion of the excess of: (a) the Fair Market Value
of a specified number of shares of Stock at the time of exercise; over (b) a specified price
which shall not be less than 100% of the Fair Market Value of the Stock at the time the Stock
Appreciation Right is granted, or, if granted in tandem with an Option, the exercise price
with respect to shares under the tandem Option.
	 
	7.2.	 	Subject to the provisions of the Plan, the Committee shall designate the Employees to whom
Stock Appreciation Rights are to be granted under the Plan, shall determine the exercise price
or a method by which the price shall be established with respect to each such Stock
Appreciation Right, and shall determine the number of shares of Stock on which each Stock
Appreciation Right is based. A Stock Appreciation Right may be granted in connection with all
or any portion of a previously or contemporaneously granted Option or not in connection with
an Option. If a Stock Appreciation Right is granted in connection with an Option then, in the
discretion of the Committee, the Stock Appreciation Right may, but need not, be granted in
tandem with the Option.




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	7.3.	 	The exercise of Stock Appreciation Rights shall be subject to the following:






	 	(a)	 	If a Stock Appreciation Right is not in tandem with an Option, then the Stock
Appreciation Right shall be exercisable in accordance with the terms established by the
Committee in connection with such rights and as set forth in the applicable Award
Agreement but, subject to Sections 15 and 20, shall not be exercisable for six months
from the date of grant and the term of any Stock Appreciation Right shall not extend
more than ten years from the date of grant; and may include, without limitation,
conditions relating to completion of a specified period of service, achievement of
performance standards prior to exercise of the Stock Appreciation Rights, or
achievement of objectives relating to Stock ownership by the Participant; and
	 
	 	(b)	 	If a Stock Appreciation Right is in tandem with an Option, then the Stock
Appreciation Right shall be exercisable only at the time the tandem Option is
exercisable and the exercise of the Stock Appreciation Right will result in the
surrender of the corresponding rights under the tandem Option.






	7.4.	 	Upon the exercise of a Stock Appreciation Right, the value to be distributed to the
Participant, in accordance with Subsection 7.1, shall be distributed in shares of Stock
(valued at their Fair Market Value at the time of exercise), in cash, or in a combination of
Stock or cash, in the discretion of the Committee.





SECTION 8

Restricted Stock





	8.1.	 	Subject to the terms of this Section 8, Restricted Stock Awards under the Plan are grants of
Stock to Participants, the vesting of which is subject to certain conditions established by
the Committee and set forth in the applicable Award Agreement, with some or all of those
conditions relating to events (such as continued employment or satisfaction of performance
criteria) occurring after the date of the grant of the Award, provided, however, that to the
extent that vesting of a Restricted Stock Award is contingent on continued employment, the
required employment period shall generally (unless otherwise determined by the Committee) not
be less than one year following the grant of the Award unless such grant is in substitution
for an Award under this Plan or a predecessor plan of the Company or a Related Company. To
the extent, if any, required by the General Corporation Law of the State of Delaware, a
Participant’s receipt of an Award of newly issued shares of Restricted Stock shall be made
subject to payment by the Participant of an amount equal to the aggregate par value of such
newly issued shares of Stock.
	 
	8.2.	 	The Committee shall designate the Employees to whom Restricted Stock is to be granted, and
the number of shares of Stock that are subject to each such Award. The Award of shares under
this Section 8 may, but need not, be made in conjunction with a cash-based incentive
compensation program maintained by the Company, and may, but need not, be in lieu of cash
otherwise awardable under such program.




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	8.3.	 	Shares of Restricted Stock granted to Participants under the Plan shall be subject to the
following terms and conditions:






	 	(a)	 	Restricted Stock granted to Participants may not be sold, assigned,
transferred, pledged or otherwise encumbered during the Restricted Period;
	 
	 	(b)	 	The Participant as owner of such shares shall have all the rights of a
stockholder, including but not limited to the right to vote such shares and, except as
otherwise provided in the Award Agreement or as provided by the Plan, the right to
receive all dividends and other distributions paid on such shares.
	 
	 	(c)	 	Each certificate issued in respect of shares of Restricted Stock granted under
the Plan shall be registered in the name of the Participant but, at the discretion of
the Committee, each such certificate may be deposited with the Company with a stock
power endorsed in blank or in a bank designated by the Committee;
	 
	 	(d)	 	The Committee may award Restricted Stock as Performance-Based Compensation,
which shall be Restricted Stock that will be earned (or for which earning is
accelerated) upon the achievement of Performance Goals established by the Committee and
the Committee may specify the number of shares that will be earned upon achievement of
different levels of performance; except as otherwise provided by the Committee,
achievement of maximum targets during the Performance Period shall result in the
Participant’s earning of the full amount of Restricted Stock comprising such
Performance-Based Compensation and, in the discretion of the Committee, achievement of
the minimum target but less than the maximum target, the Committee may result in the
Participant’s earning of a portion of the Award; and
	 
	 	(e)	 	Except as otherwise provided by the Committee and set forth in the applicable
Award Agreement, any Restricted Stock which is not earned by the end of a Restricted
Period or Performance Period, as the case may be, shall be forfeited. If a
Participant’s Date of Termination occurs prior to the end of a Restricted Period or
Performance Period, as the case may be, the Committee may determine, in its sole
discretion, that the Participant will be entitled to settlement of all or any portion
of the Restricted Stock as to which he or she would otherwise be eligible, and may
accelerate the determination of the value and settlement of such Restricted Stock or
make such other adjustments as the Committee, in its sole discretion, deems desirable.
Subject to the limitations of the Plan and the Award of Restricted Stock, upon the
vesting of Restricted Stock, such Restricted Stock will be transferred free of all
restrictions to the Participant (or his or her legal representative, beneficiary or
heir).





SECTION 9

Restricted Stock Units





	9.1.	 	Subject to the terms of this Section 9, a Restricted Stock Unit entitles a Participant to
receive shares for the units at the end of a Restricted Period, or at a later date if
distribution has been deferred, to the extent provided by the Award with the vesting of such
units to be




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	 	 	contingent upon such conditions as may be established by the Committee and set forth in the
Award Agreement (such as continued employment or satisfaction of performance criteria)
occurring after the date of grant of the Award, provided, however, that to the extent that
the vesting of a Restricted Stock Unit is contingent on continued employment, the required
employment period shall generally not be less than one year following the date of grant of
the Award unless such grant is in substitution for an Award under this Plan or a predecessor
plan of the Company or a Related Company. The Award of Restricted Stock Units under this
Section 9 may, but need not, be made in conjunction with a cash-based incentive compensation
program maintained by the Company, and may, but need not, be in lieu of cash otherwise
awardable under such program.
	 
	9.2.	 	The Committee shall designate the Employees to whom Restricted Stock Units shall be granted
and the number of units that are subject to each such Award. During any period in which
Restricted Stock Units are outstanding and have not been settled in Stock, the Participant
shall not have the rights of a stockholder, but, in the discretion of the Committee, may be
granted the right to receive a payment from the Company in lieu of a dividend in an amount
equal to any cash dividends that might be paid during the Restricted Period.
	 
	9.3	 	Except as otherwise provided by the Committee, any Restricted Stock Unit which is not earned
by the end of a Restricted Period shall be forfeited. If a Participant’s Date of Termination
occurs prior to the end of a Restricted Period, the Committee, in its sole discretion, may
determine that the Participant will be entitled to settlement of all, any portion, or none of
the Restricted Stock Units as to which he or she would otherwise be eligible, and may
accelerate the determination of the value and settlement of such Restricted Stock Units or
make such other adjustments as the Committee, in its sole discretion, deems desirable.
	 
	9.4	 	Notwithstanding anything to the contrary in this Section 9, an election to defer receipt of
shares at the end of a Restricted Period may be made by a Participant only in accordance with
the terms of a separate written nonqualified deferred compensation plan sponsored by the
Company and only to the extent made in accordance with the election timing rules under Code
Section 409A. Unless otherwise subject to such a deferral election, Restricted Stock Units
shall be settled on or after the last day of the Restricted Period set forth in the Award
Agreement, but in no event later than the March 15th of the calendar year following
the calendar year in which the Restricted Period ends. Any acceleration of the settlement of
a Restrict Stock Unit Award described in Section 9.3 shall be made only to the extent
permissible under Code Section 409A.





SECTION 10

Performance Stock





	10.1.	 	Subject to the terms of this Section 10, an Award of Performance Stock provides for the
distribution of Stock to a Participant upon the achievement of performance objectives, which
may include Performance Goals, established by the Committee and set forth in the applicable
Award Agreement.




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	10.2.	 	The Committee shall designate the Employees to whom Awards of Performance Stock are to be
granted, and the number of shares of Stock that are subject to each such Award. The Award of
shares of Performance Stock under this Section 10 may, but need not, be made in conjunction
with a cash-based incentive compensation program maintained by the Company, and may, but need
not, be in lieu of cash otherwise awardable under such program.
	 
	10.3.	 	Except as otherwise provided by the Committee and set forth in the applicable Award
Agreement, any Award of Performance Stock which is not earned by the end of the Performance
Period shall be forfeited. If a Participant’s Date of Termination occurs prior to the end of
a Performance Period, the Committee, in its sole discretion, may determine that the
Participant will be entitled to settlement of all, any portion, or none of the Performance
Stock as to which he or she would otherwise be eligible, and may accelerate the determination
of the value and settlement of such Performance Stock or make such other adjustments as the
Committee, in its sole discretion, deems desirable.
	 
	10.4	 	Except as otherwise provided by the Committee under Section 10.3 or in an Award Agreement,
settlement of any earned Performance Stock shall occur on or after the last day of the
Performance Period, but in no event later than the March 15th of the calendar year
following the calendar year in which the Performance Period ends. Any acceleration of the
settlement of a Performance Share described in Section 10.3 shall be made only to the extent
permissible under Code Section 409A.





SECTION 11

Performance Units





	11.1.	 	Subject to the terms of this Section 11, the Award of Performance Units under the Plan
entitles the Participant to receive value for the units at the end of a Performance Period to
the extent provided under the Award. The number of Performance Units earned, and value
received from them, will be contingent on the degree to which the performance measures set
forth in the Award Agreement. are met.
	 
	11.2.	 	The Committee shall designate the Employees to whom Performance Units are to be granted, and
the number of Performance Units to be subject to each such Award.
	 
	11.3.	 	For each Participant, the Committee will determine the value of Performance Units, which may
be stated either in cash or in units representing shares of Stock; the performance measures
used for determining whether the Performance Units are earned; the Performance Period during
which the performance measures will apply; the relationship between the level of achievement
of the performance measures and the degree to which Performance Units are earned; whether,
during or after the Performance Period, any revision to the performance measures or
Performance Period should be made to reflect significant events or changes that occur during
the Performance Period; and the number of earned Performance Units that will be settled in
cash and/or shares of Stock.




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	11.4.	 	Settlement of Performance Units shall be subject to the following:






	 	(a)	 	The Committee will compare the actual performance to the performance measures
established for the Performance Period and determine the number of Performance Units as
to which settlement is to be made;
	 
	 	(b)	 	Settlement of Performance Units earned shall be wholly in cash, wholly in Stock
or in a combination of the two, as determined by the Committee, and shall be
distributed in the form set forth in the Award Agreement. If the Award Agreement does
not provide for a form of payment, payment shall be made in a single lump sum payment.
Except as otherwise provided by the Committee under Section 11.5 or in an Award
Agreement, settlement of any earned Performance Units shall occur on or after the last
day of the Performance Period, but in no event later than the March 15th of
the calendar year following the calendar year in which the Performance Period ends.
Any acceleration of the settlement of a Performance Unit described in Section 11.5
shall be made only to the extent permissible under Code Section 409A; and
	 
	 	(c)	 	Shares of Stock distributed in settlement of Performance Units shall be subject
to such vesting requirements and other conditions, if any, as the Committee shall
determine, including, without limitation, restrictions of the type that may be imposed
with respect to Restricted Stock under Section 8.






	11.5.	 	Except as otherwise provided by the Committee and set forth in the applicable Award
Agreement, any Award of Performance Units which is not earned by the end of the Performance
Period shall be forfeited. If a Participant’s Date of Termination occurs prior to the end of
a Performance Period, the Committee, in its sole discretion, may determine that the
Participant will be entitled to settlement of all, any portion, or none of the Performance
Units as to which he or she would otherwise be eligible, and may accelerate the determination
of the value and settlement of such Performance Units or make such other adjustments as the
Committee, in its sole discretion, deems desirable.





SECTION 12

Stock Purchase Program





	12.1.	 	The Committee may, from time to time, establish one or more programs under which Employees
will be permitted to purchase shares of Stock under the Plan, and shall designate the
Employees eligible to participate under such Stock purchase programs. The purchase price for
shares of Stock available under such programs, and other terms and conditions of such
programs, shall be established by the Committee. The purchase price may not be less than 75%
of the Fair Market Value of the Stock at the time of purchase (or, in the Committee’s
discretion, the average Stock value over a period determined by the Committee), and further
provided that if newly issued shares of Stock are sold, the purchase price may not be less
than the aggregate par value of such newly issued shares of Stock.
	 
	12.2.	 	The Committee may impose such restrictions with respect to shares purchased under this
Section 12, as the Committee, in its sole discretion, determines to be appropriate. Such





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	 	 	restrictions may include, without limitation, restrictions of the type that may be imposed
with respect to Restricted Stock under Section 8.





SECTION 13

Stock Awards





	13.1.	 	The Committee may from time to time make an Award of Stock under the Plan to selected
Employees for such reasons and in such amounts as the Committee, in its sole discretion, may
determine. The consideration to be paid by an Employee for any such Award, if any, shall be
fixed by the Committee from time to time, but, if required by the General Corporation Law of
the State of Delaware, it shall not be less than the aggregate par value of the shares of
Stock awarded to him or her.





SECTION 14

Phantom Stock Awards





	14.1.	 	The Committee may make Phantom Stock Awards to selected Employees which may be based solely
on the value of the underlying shares of Stock, solely on any earnings or appreciation
thereon, or both. Subject to the provisions of the Plan, the Committee shall have the sole
and complete authority to determine the number of hypothetical or target shares as to which
each such Phantom Stock Award is subject and to determine the terms and conditions of each
such Phantom Stock Award. There may be more than one Phantom Stock Award in existence at any
one time with respect to a selected Employee, and the terms and conditions of each such
Phantom Stock Award may differ from each other.
	 
	14.2.	 	The Committee shall establish and shall set forth in the applicable Award Agreement the
vesting or performance measures for each Phantom Stock Award on the basis of such criteria and
to accomplish such objectives as the Committee may from time to time, in its sole discretion,
determine. Such measures may be based on years of service or periods of employment, or the
achievement of individual or corporate performance objectives, but shall, in each instance, be
based upon one or more of the business criteria as determined pursuant to Section 4.7. The
vesting and performance measures determined by the Committee shall be established at the time
a Phantom Stock Award is made. Phantom Stock Awards may not be sold, assigned, transferred,
pledged, or otherwise encumbered, except as provided in Section 17, during the Performance
Period.
	 
	14.3.	 	Settlement of Phantom Stock earned shall be wholly in cash, wholly in Stock or in a
combination of the two, as determined by the Committee, and shall be distributed in the form
set forth in the Award Agreement. If the Award Agreement does not provide for a form of
payment, payment shall be made in a single lump sum payment. Except as otherwise provided by
the Committee under Section 14.4 or in an Award Agreement, settlement of any earned Phantom
Stock shall occur on or after the last day of the Performance Period, but in no event later
than the March 15th of the calendar year following the calendar year in which the
Performance Period ends. Any acceleration of the settlement of Phantom Stock described in
Section 14.4 shall be made only to the extent permissible under Code Section 409A.




15









 












	14.4.	 	Except as otherwise provided by the Committee and set forth in the applicable Award
Agreement, any Award of Phantom Stock which is not earned by the end of the Performance Period
shall be forfeited. If a Participant’s Date of Termination occurs prior to the end of a
Performance Period, the Committee, in its sole discretion, may determine that the Participant
will be entitled to settlement of all or a portion of the Phantom Stock for which he or she
would otherwise be eligible, and may accelerate the determination of the value and settlement
of Phantom Stock or make such other adjustment as the Committee, in its sole discretion, deems
desirable.





SECTION 15

Termination of Employment





	15.1.	 	If a Participant’s employment is terminated by the Participant’s Employer for Cause, all of
the Participant’s unvested Awards, including any unexercised Options, shall be forfeited.
	 
	15.2.	 	Except as may be set forth in the applicable Award Agreement, with respect to Awards made
prior to July 22, 2004, if a Participant’s Date of Termination occurs by reason of death,
Disability or Retirement, all Options and Stock Appreciation Rights outstanding immediately
prior to the Participant’s Date of Termination shall immediately become exercisable and shall
be exercisable until one year from the Participant’s Date of Termination and thereafter shall
be forfeited if not exercised, and all restrictions on any Awards outstanding immediately
prior to the Participant’s Date of Termination shall immediately lapse. Except as may be set
forth in the applicable Award Agreement, for Awards made after July 22, 2004, if a
Participant’s Date of Termination occurs by reason of death or Disability, (i) all unvested
Awards outstanding immediately prior to the Participant’s Date of Termination shall continue
to vest as if such Employee had remained in the employ of the Company and (ii) all vested
Options and Stock Appreciation Rights shall remain exercisable and, in each case, such Awards
shall be exercisable until one year from the later of the (i) Participant’s Date of
Termination or (ii) the vesting date of such Award and thereafter shall be forfeited. Except
as may be set forth in the applicable Award Agreement, for Awards made after July 22, 2004, if
a Participant’s Date of Termination occurs by reason of Retirement, (i) all unvested Awards
outstanding immediately prior to the Participant’s Date of Termination shall be forfeited and
(ii) all vested Options and Stock Appreciation Rights shall remain exercisable and shall be
exercisable until one year from the Participant’s Date of Termination and thereafter shall be
forfeited. Options and Stock Appreciation Rights which are or become exercisable at the time
of a Participant’s death may be exercised by the Participant’s designated beneficiary or, in
the absence of such designation, by the person to whom the Participant’s rights will pass by
will or the laws of descent and distribution.
	 
	15.3.	 	Except as may be set forth in the applicable Award Agreement, for Awards made prior to July
22, 2004, if a Participant’s Date of Termination occurs by reason of Participant’s employment
being terminated by the Participant’s Employer for any reason other than Cause, or by the
Participant with the written consent and approval of the Participant’s Employer, the
Restricted Period shall lapse on a proportion of any Awards outstanding immediately prior to
the Participant’s Date of Termination (except that, to the extent that an Award of Restricted
Stock, Restricted Stock Units, Performance Units, Performance Stock




16









 












	 	 	and Phantom Stock is subject to a Performance Period), such proportion of the Award shall
remain subject to the same terms and conditions for vesting as were in effect prior to the
Date of Termination and shall be determined at the end of the Performance Period. The
proportion of an Award upon which the Restricted Period shall lapse shall be a fraction, the
denominator of which is the total number of months of any Restricted Period applicable to an
Award and the numerator of which is the number of months of such Restricted Period which
elapsed prior to the Date of Termination. Except as may be set forth in the applicable
Award Agreement, for Awards made after July 22, 2004, if a Participant’s Date of Termination
occurs by reason of Participant’s employment being terminated by the Participant’s Employer
for any reason other than Cause, or by the Participant with the written consent and approval
of the Participant’s Employer, (i) all unvested Awards outstanding immediately prior to the
Participant’s Date of Termination shall be forfeited and (ii) all vested Options and Stock
Appreciate Rights shall remain exercisable as provided in Section 15.4.
	 
	15.4.	 	Options and Stock Appreciation Rights which are or become exercisable by reason of the
Participant’s employment being terminated by the Participant’s Employer for reasons other than
Cause or by the Participant with the consent and approval of the Participant’s Employer, shall
be exercisable until 60 days from the Participant’s Termination Date and shall thereafter be
forfeited if not exercised.
	 
	15.5.	 	Except to the extent the Company shall otherwise determine, if, as a result of a sale or
other transaction (other than a Change in Control), a Participant’s Employer ceases to be a
Related Company (and the Participant’s Employer is or becomes an entity that is separate from
the Company), the occurrence of such transaction shall be treated as the Participant’s Date of
Termination caused by the Participant’s employment being terminated by the Participant’s
Employer for a reason other than Cause.
	 
	15.6.	 	Notwithstanding the foregoing provisions of this Section 15, the Committee may, with respect
to any Awards of a Participant (or portion thereof) that are outstanding immediately prior to
the Participant’s Date of Termination, determine that a Participant’s Date of Termination will
not result in forfeiture or other termination of the Award, or may extend the period during
which any Options or Stock Appreciation Rights may be exercised, but shall not extend such
period beyond the expiration date set forth in the Award. In no event may an Option or Stock
Appreciation Right be extended to a date which is more than ten years from the date of grant.





SECTION 16

Adjustments to Shares





	16.1.	 	If the Company shall effect a reorganization, merger, or consolidation, or similar event or
effect any subdivision or consolidation of shares of Stock or other capital readjustment,
payment of stock dividend, stock split, spin-off, combination of shares or recapitalization or
other increase or reduction of the number of shares of Stock outstanding without receiving
compensation therefor in money, services or property, then the Committee shall appropriately
adjust (i) the number of shares of Stock available under the Plan, (ii) the number of shares
of Stock available under any individual or other limitations under the Plan,




17









 












	 	 	(iii) the number of shares of Stock subject to outstanding Awards and (iv) the per-share
price under any outstanding Award to the extent that the Participant is required to pay a
purchase price per share with respect to the Award.
	 
	16.2.	 	If the Committee determines that an adjustment in accordance with the provisions of
Subsection 16.1 would not be fully consistent with the purposes of the Plan or the purposes of
the outstanding Awards under the Plan, the Committee may make such other adjustments, if any,
that the Committee reasonably determines are consistent with the purposes of the Plan and/or
the affected Awards.
	 
	16.3.	 	To the extent that any reorganization, merger, consolidation, or similar event or any
subdivision or consolidation of shares of Stock or other capital readjustment, payment of
stock dividend, stock split, spin-off, combination of shares or recapitalization or other
increase or reduction of the number of shares of Stock hereunder is also accompanied by or
related to a Change in Control, the adjustment hereunder shall be made prior to the
acceleration contemplated by Section 20.





SECTION 17

Transferability and Deferral of Awards





	17.1.	 	Awards under the Plan are not transferable except by will or by the laws of descent and
distribution. To the extent that a Participant who receives an Award under the Plan has the
right to exercise such Award, the Award may be exercised during the lifetime of the
Participant only by the Participant. Notwithstanding the foregoing provisions of this Section
17, the Committee may, subject to any restrictions under applicable securities laws, permit
Awards under the Plan (other than an Incentive Stock Option) to be transferred by a
Participant for no consideration to or for the benefit of the Participant’s Immediate Family
(including, without limitation, to a trust for the benefit of a Participant’s Immediate Family
or to a Partnership comprised solely of members of the Participant’s Immediate Family),
subject to such limits as the Committee may establish, provided the transferee shall remain
subject to all of the terms and conditions applicable to such Award prior to such transfer.
	 
	17.2.	 	The Committee may permit a Participant to elect to defer payment under an Award under such
terms and conditions as the Committee, in its sole discretion, may determine; provided that,
any such deferral election must be made in accordance with the terms of a separate written
nonqualified deferred compensation plan sponsored by the Company and only to the extent made
in accordance with the election timing rules under Code Section 409A.





SECTION 18

Award Agreement





	18.1.	 	Each Participant granted an Award pursuant to the Plan shall sign an Award Agreement which
signifies the offer of the Award by the Company and the acceptance of the Award by the
Participant in accordance with the terms of the Award and the provisions of the Plan. Each
Award Agreement shall reflect the terms and conditions of the Award. Participation in the
Plan shall confer no rights to continued employment with an Employer nor shall it restrict the
right of an Employer to terminate a Participant’s employment at any time for any




18









 












	 	 	reason, not withstanding the fact that the Participant’s rights under this Plan may be
negatively affected by such action.





SECTION 19

Tax Withholding





	19.1	 	All Awards and other payments under the Plan are subject to withholding of all applicable
taxes, which withholding obligations shall be satisfied (without regard to whether the
Participant has transferred an Award under the Plan) by a cash remittance, or with the consent
of the Committee, through the surrender of shares of Stock which the Participant owns or to
which the Participant is otherwise entitled under the Plan pursuant to an irrevocable election
submitted by the Participant to the Company at the office designated for such purpose. The
number of shares of Stock needed to be submitted in payment of the taxes shall be determined
using the Fair Market Value as of the applicable tax date rounding down to the nearest whole
share.





SECTION 20

Change in Control





	20.1.	 	After giving effect to the provisions of Section 16 (relating to the adjustment of shares of
Stock), and except as otherwise provided in the Plan or the Agreement reflecting the
applicable Award, upon the occurrence of a Change in Control:






	 	(a)	 	All outstanding Options (regardless of whether in tandem with Stock
Appreciation Rights) shall become fully exercisable and may be exercised at any time
during the original term of the Option;
	 
	 	(b)	 	All outstanding Stock Appreciation Rights (regardless of whether in tandem with
Options) shall become fully exercisable and may be exercised at any time during the
original term of the Option;
	 
	 	(c)	 	All shares of Stock subject to Awards shall become fully vested and be
distributed to the Participant; and
	 
	 	(d)	 	Performance Units may be paid out in such manner and amounts as may be
reasonably determined by the Committee.






	 	 	The accelerated payment of any Award upon a Change in Control as described in this Section
20.1 shall occur only to the extent such payment would not result in an adverse tax
consequence to the Participant under Code Section 409A. In addition, Performance Units
shall be paid in accordance with the terms of the Award Agreement.





SECTION 21

MERGERS / ACQUISITIONS





	21.1	 	In the event of any merger or acquisition involving the Company and/or a Subsidiary of the
Company and another entity which results in the Company being the survivor or the




19









 












	 	 	surviving direct or indirect parent corporation of the merged or acquired entity, the
Committee may grant Awards under the provisions of the Plan in substitution for awards held
by employees or former employees of such other entity under any plan of such entity
immediately prior to such merger or acquisition upon such terms and conditions as the
Committee, in its discretion, shall determine and as otherwise may be required by the Code
to ensure such substitution is not treated as the grant of a new Award for tax or accounting
purposes.
	 
	21.2	 	In the event of a merger or acquisition involving the Company in which the Company is not the
surviving corporation, the Acquiring Corporation shall either assume the Company’s rights and
obligations under outstanding Awards or substitute awards under the Acquiring Corporation’s
plans, or if none, securities for such outstanding Awards. In the event the Acquiring
Corporation elects not to assume or substitute for such outstanding Awards, and without
limiting Section 20, the Board shall provide that any unexercisable and/or unvested portion of
the outstanding Awards shall be immediately exercisable and vested as of a date prior to such
merger or consolidation, as the Board so determines. The exercise and/or vesting of any Award
that was permissible solely by reason of this Section 21.2 shall be conditioned upon the
consummation of the merger or consolidation. Unless otherwise provided in the Plan or the
Award, any Awards which are neither assumed by the Acquiring Corporation nor exercised on or
prior to the date of the transaction shall terminate effective as of the effective date of the
transaction.





SECTION 22

Termination and Amendment





	22.1	 	The Board may suspend, terminate, modify or amend the Plan, provided that any amendment that
would (a) increase the aggregate number of shares of Stock which may be issued under the Plan,
(b) would change the method of determining the exercise price of Options, other than to change
the method of determining Fair Market Value of Stock as set forth in Section 2.1(o) of the
Plan, or (c) materially modify the requirements as to eligibility for participation in the
Plan, shall be subject to the approval of the Company’s stockholders, except that any such
increase or modification that may result from adjustments authorized by Section 16 does not
require such approval. No suspension, termination, modification or amendment of the Plan may
terminate a Participant’s existing Award or materially and adversely affect a Participant’s
rights under such Award without the Participant’s consent.






20