1999 Equity Compensation Plan



 Exhibit 10.4 
  
 AMENDED AND RESTATED 
 EMERGE INTERACTIVE, INC. 
 1999 EQUITY COMPENSATION PLAN 
  
 The purpose of the eMerge Interactive, Inc. 1999 Equity Compensation Plan
(the “Plan”) is to provide (i) designated employees of eMerge Interactive, Inc. (the “Company”) and its subsidiaries, (ii) individuals to whom an offer of employment has been extended, (iii) certain advisors who perform services
for the Company or its subsidiaries, and (iv) non-employee members of the Board of Directors of the Company (the “Board”) with the opportunity to receive grants of incentive stock options, nonqualified stock options, stock appreciation
rights, restricted stock and performance units. The Company believes that the Plan will encourage the participants to contribute materially to the growth of the Company, thereby benefiting the Company’s stockholders, and will align the economic
interests of the participants with those of the stockholders. 
  
 1. Administration 
  
 (a) Committee. The
Plan shall be administered and interpreted by a committee appointed by the Board (the “Committee”). The Committee shall consist of two or more persons appointed by the Board, all of whom may be “outside directors” as defined
under section 162(m) of the Internal Revenue Code of 1986, as amended (the “Code”) and related Treasury regulations and may be “non- employee directors” as defined under Rule 16b-3 under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”). Except to the extent prohibited by applicable law or the applicable rules of a stock exchange, the Committee may allocate all or any portion of its responsibilities and powers to any one or more of its members
or may delegate all or any part of its responsibilities and powers to any person or persons selected by it. The Committee may revoke any such allocation or delegation at any time. If the Committee does not exist, or for any other reason determined
by the Board, the Board may take any action under the Plan that would otherwise be the responsibility of the Committee. 
  
 (b) Committee Authority. The Committee shall have the sole authority to (i) determine the individuals to whom grants shall be made under the Plan,
(ii) determine the type, size and terms of the grants to be made to each such individual, (iii) determine the time when the grants will be made and the duration of any applicable exercise or restriction period, including the criteria for
exercisability and the acceleration of exercisability, and (iv) deal with any other matters arising under the Plan. 
  
 (c) Committee Determinations. The Committee shall have full power and authority to administer and interpret the Plan, to make factual
determinations and to adopt or amend such rules, regulations, agreements and instruments for implementing the Plan and for the conduct of its business as it deems necessary or advisable, in its sole discretion. The Committee’s interpretations
of the Plan and all determinations made by the Committee pursuant to the powers vested in it hereunder shall be conclusive and binding on all persons having any 
  


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 interest in the Plan or in any awards granted hereunder. All powers of the Committee shall be executed in its sole
discretion, in the best interest of the Company, not as a fiduciary, and in keeping with the objectives of the Plan and need not be uniform as to similarly situated individuals. 
  
 2. Grants 
  
 Awards under the Plan may consist of grants of incentive stock options as described in Section 5 (“Incentive Stock Options”), nonqualified stock
options as described in Section 5 (“Nonqualified Stock Options”) (Incentive Stock Options and Nonqualified Stock Options are collectively referred to as “Options”), restricted stock as described in Section 6 (Restricted
Stock”), stock appreciation rights as described in Section 7 (“SARs”), and performance units as described in Section 8 (“Performance Units”) (hereinafter collectively referred to as “Grants”). All Grants shall be
subject to the terms and conditions set forth herein and to such other terms and conditions consistent with this Plan as the Committee deems appropriate and as are specified in writing by the Committee to the individual in a grant instrument (the
“Grant Instrument”) or an amendment to the Grant Instrument. The Committee shall approve the basic form and provisions of each Grant Instrument. Grants under a particular Section of the Plan need not be uniform as among the grantees.

  
 3. Shares Subject to the Plan 
  
 (a) Shares Authorized. Subject to the adjustment specified below, the
aggregate number of shares of common stock of the Company (“Company Stock”) that may be issued or transferred under the Plan is 9,000,000 shares. The maximum aggregate number of shares of Company Stock that shall be subject to Grants made
under the Plan to any individual during any calendar year shall be 625,000 shares. The shares may be authorized but unissued shares of Company Stock or reacquired shares of Company Stock, including shares purchased by the Company on the open market
for purposes of the Plan. If and to the extent Options or SARs granted under the Plan terminate, expire, or are canceled, forfeited, exchanged or surrendered without having been exercised, or if any shares of Restricted Stock or Performance Units
are forfeited, the shares subject to such Grants shall again be available for purposes of the Plan. If a SAR is exercised and settled in Company Stock, the Plan’s share authorization shall be reduced by the number of shares for which the SAR
was exercised. 
  
 (b) Adjustments. If there is any change
in the number or kind of shares of Company Stock outstanding (i) by reason of a stock dividend, spin-off, recapitalization, stock split or combination or exchange of shares, (ii) by reason of a merger, reorganization or consolidation in which the
Company is the surviving corporation, (iii) by reason of a reclassification or change in par value, or (iv) by reason of any other extraordinary or unusual event affecting the outstanding Company Stock as a class without the Company’s receipt
of consideration, or if the value of outstanding shares of Company Stock is substantially reduced as a result of a spin-off or the Company’s payment of an extraordinary dividend or distribution, the maximum number of shares of Company Stock
available for Grants, the maximum number of shares of Company Stock that any individual participating in the Plan may be granted in any year, the number of shares covered by outstanding Grants, the terms of outstanding Grants, the kind of shares
issued under the Plan, and the price per share or the applicable market value of 
  

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 such Grants shall be appropriately adjusted by the Committee to reflect any increase or decrease in the number of, or
change in the kind or value of, issued shares of Company Stock to preclude, to the extent practicable, the enlargement or dilution of rights and benefits under such Grants; provided, however, that any fractional shares resulting from such adjustment
shall be eliminated by rounding any portion of a share equal to .5 or greater up, and any portion of a share equal to less than .5 down, in each case to the nearest whole number. Any adjustments determined by the Committee shall be final, binding
and conclusive. 
  
 4. Eligibility for Participation

  
 (a) Eligible Persons. All employees of the Company and
its subsidiaries (“Employees”), including Employees who are officers or members of the Board, individuals to whom an offer of employment has been extended (“New Hire”), and members of the Board who are not Employees
(“Non-Employee Directors”) shall be eligible to participate in the Plan. Advisors who perform services to the Company or any of its subsidiaries (“Key Advisors”) shall be eligible to participate in the Plan if the Key Advisors
render bona fide services and such services are not in connection with the offer or sale of securities in a capital-raising transaction. 
  
 (b) Selection of Grantees. The Committee shall select the Employees, New Hires, Non-Employee Directors and Key Advisors to receive Grants and shall
determine the number of shares of Company Stock subject to a particular Grant in such manner as the Committee determines. Employees, New Hires, Key Advisors and Non-Employee Directors who receive Grants under this Plan shall hereinafter be referred
to as “Grantees.” 
  
 5. Granting of Options

  
 (a) Number of Shares. The Committee shall determine
the number of shares of Company Stock that will be subject to each Grant of Options to Employees, New Hires, Non-Employee Directors and Key Advisors. 
  
 (b) Type of Option and Price. 
  
 (i) The Committee may grant Incentive Stock Options that are intended to qualify as “incentive stock options” within the meaning
of section 422 of the Code, Nonqualified Stock Options that are not intended so to qualify, or any combination of Incentive Stock Options and Nonqualified Stock Options, all in accordance with the terms and conditions set forth herein. Incentive
Stock Options may be granted only to Employees. Nonqualified Stock Options may be granted to Employees, New Hires, Non-Employee Directors and Key Advisors. 
  
 (ii) The purchase price (the “Exercise Price”) of Company Stock subject to an Option shall be determined by the Committee and
may be equal to, greater than, or less than the Fair Market Value (as defined below) of a share of Company Stock on the date the Option is granted, provided, however, that (x) the Exercise Price of an Incentive Stock Option shall be equal to, or
greater than, the Fair Market Value of a share of Company Stock on the date the Incentive Stock Option is granted and (y) an Incentive Stock Option may not be granted to an Employee who, at the time of grant, owns stock possessing more than 10
percent of the total combined voting power of all classes of 
  

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 stock of the Company or any parent or subsidiary of the Company, unless the Exercise Price per share is
not less than 110% of the Fair Market Value of Company Stock on the date of grant. 
  
 (iii) If the Company Stock is publicly traded, then, except as otherwise determined by the Committee, the following rules regarding the
determination of Fair Market Value per share apply: 
  
 (x) if the principal trading market for the Company Stock is a national securities exchange or the NASDAQ National Market, the mean between the highest and lowest quoted selling prices on the relevant date or (if there were no trades on
that date) the latest preceding date upon which a sale was reported, or 
  
 (y) if the Company Stock is not principally traded on such exchange or market, the mean between the last reported “bid” and “asked” prices of Company Stock on the relevant date, as reported on
NASDAQ or, if not so reported, as reported by the National Daily Quotation Bureau, Inc. or as reported in a customary financial reporting service, as applicable and as the Committee determines. If the Company Stock is not publicly traded or, if
publicly traded, is not subject to reported transactions or “bid” or “asked” quotations as set forth above, the Fair Market Value per share shall be as determined by the Committee. 
  
 (c) Option Term. The Committee shall determine the term of each
Option. The term of any Option shall not exceed ten years from the date of grant. However, an Incentive Stock Option that is granted to an Employee who, at the time of grant, owns stock possessing more than 10 percent of the total combined voting
power of all classes of stock of the Company, or any parent or subsidiary of the Company, may not have a term that exceeds five years from the date of grant. 
  
 (d) Exercisability of Options. 
  
 (i) Options shall become exercisable in accordance with such terms and conditions, consistent with the Plan, as may be determined by the
Committee and specified in the Grant Instrument or an amendment to the Grant Instrument. The Committee may accelerate the exercisability of any or all outstanding Options at any time for any reason. 
  
 (ii) Notwithstanding the foregoing, the Option may, but need
not, include a provision whereby the Grantee may elect at any time while an Employee, Non-Employee Director, or Key Advisor to exercise the Option as to any part or all of the shares subject to the Option prior to the full vesting of the Option. Any
unvested shares so purchased shall be subject to a repurchase right in favor of the Company, with the repurchase price to be equal to the original purchase price, and any other restrictions the Committee determines to be appropriate. 
  

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 (e) Termination of Employment, Disability or Death. 
  
 (i) Except as provided below, an Option may only be
exercised while the Grantee is employed by the Company as an Employee, Key Advisor or member of the Board. In the event that a Grantee ceases to be employed by the Company for any reason other than a “disability,” death or
“termination for cause,” any Option which is otherwise exercisable by the Grantee shall terminate unless exercised within 90 days after the date on which the Grantee ceases to be employed by the Company (or within such other period of time
as may be specified by the Committee), but in any event no later than the date of expiration of the Option term. Any of the Grantee’s Options that are not otherwise exercisable as of the date on which the Grantee ceases to be employed by the
Company shall terminate as of such date. 
  
 (ii)
In the event the Grantee ceases to be employed by the Company on account of a “termination for cause” by the Company, any Option held by the Grantee shall terminate as of the date the Grantee ceases to be employed by the Company. In
addition to the immediate termination of all Grants, the Grantee shall automatically forfeit all shares underlying any exercised portion of an Option, upon refund by the Company of the Exercise Price by the Grantee for such shares. 
  
 (iii) In the event the Grantee ceases to be employed by the
Company because the Grantee is “disabled,” any Option which is otherwise exercisable by the Grantee shall terminate unless exercised within one year after the date on which the Grantee ceases to be employed by the Company (or within such
other period of time as may be specified by the Committee), but in any event no later than the date of expiration of the Option term. Any of the Grantee’s Options, which are not otherwise exercisable as of the date on which the Grantee ceases
to be employed by the Company, shall terminate as of such date. 
  
 (iv) If the Grantee dies while employed by the Company or within 90 days after the date on which the Grantee ceases to be employed on account of a termination of employment specified in Section 5(e)(i) above (or
within such other period of time as may be specified by the Committee), any Option that is otherwise exercisable by the Grantee shall terminate unless exercised within one year after the date on which the Grantee ceases to be employed by the Company
(or within such other period of time as may be specified by the Committee), but in any event no later than the date of expiration of the Option term. Any of the Grantee’s Options that are not otherwise exercisable as of the date on which the
Grantee ceases to be employed by the Company shall terminate as of such date. 
  
 (v) For purposes of Sections 5(e), 6, 7, and 8: 
  
 (A) “Company,” when used in the phrase “employed by the Company,” shall mean the Company, its parent, and any
subsidiary corporations. 
  
 (B) “Employed
by the Company” shall mean employment or service as an Employee, Key Advisor, or member of the Board (so that, for 
  

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 purposes of exercising Options and SARs and satisfying conditions with respect to Restricted Stock and
Performance Units, a Grantee shall not be considered to have terminated employment or service until the Grantee ceases to be an Employee, Key Advisor, and member of the Board), unless the Committee determines otherwise. The Committee’s
determination as to a participant’s employment or other provision of services, termination of employment or cessation of the provision of services, leave of absence or reemployment shall be conclusive on all persons unless determined to be
incorrect. 
  
 (C) “Disability” shall
mean a Grantee’s becoming disabled within the meaning of section 22(e)(3) of the Code. 
  
 (D) “Termination for cause” shall mean the determination of the Committee that any one or more of the following events has
occurred: 
  
 (1) the Grantee’s conviction
of any act which constitutes a felony under applicable federal or state law, either in connection with the performance of the Grantee’s obligations on behalf of the Company or which affects the Grantee’s ability to perform his or her
obligations as an employee, board member or advisor of the Company or under any employment agreement, non-competition agreement, confidentiality agreement or like agreement or covenant between the Grantee and the Company (any such agreement or
covenant being herein referred to as an “Employment Agreement”); 
  
 (2) the Grantee’s willful misconduct in connection with the performance of his or her duties and responsibilities as an employee, board member or advisor of the Company or under any Employment Agreement, which
willful misconduct is not cured by the Grantee within 10 days of his or her receipt of written notice thereof from the Committee; 
  
 (3) the Grantee’s commission of an act of embezzlement, fraud or dishonesty, which results in a loss, damage or injury to the
Company; 
  
 (4) the Grantee’s substantial
and continuing neglect, gross negligence or inattention in the performance of his or her duties as an employee, board member or advisor of the Company or under any Employment Agreement which is not cured by the Grantee within 10 days of his or her
receipt of written notice thereof from the Committee; 
  
 (5) the Grantee’s unauthorized use or disclosure or any trade secret or confidential information of the Company which adversely affects the business of the Company, provided that any disclosure of any trade secret or confidential
information of the Company to a third party in the ordinary course of business who signs a confidentiality agreement shall not be deemed a breach of this subparagraph; 
  

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 (6) the Grantee’s material breach of any of the provisions of any Employment
Agreement, which material breach is not cured by the Grantee within 10 days of his or her receipt of a written notice from the Company specifying such material breach; or 
  
 (7) the Grantee has voluntarily terminated his or her employment or service with the Company and breaches
his or her noncompetition agreement with the Company. 
  
 (f)
Exercise of Options. A Grantee may exercise an Option that has become exercisable, in whole or in part, by delivering a notice of exercise to the Company with payment of the Exercise Price. The Grantee shall pay the Exercise Price for an
Option as specified by the Committee: 
  
 (i) in
cash, 
  
 (ii) by delivering shares of Company
Stock owned by the Grantee for the period necessary to avoid a charge to the Company’s earnings for financial reporting purposes (including Company Stock acquired in connection with the exercise of an Option, subject to such restrictions as the
Committee deems appropriate) and having a Fair Market Value on the date of exercise equal to the Exercise Price, 
  
 (iii) after a Public Offering, by payment through a broker in accordance with procedures permitted by Regulation T of the Federal Reserve
Board, or 
  
 (iv) by such other method of
payment as the Committee may approve. 
  
 Shares of Company Stock
used to exercise an Option shall have been held by the Grantee for the requisite period of time to avoid adverse accounting consequences to the Company with respect to the Option. The Grantee shall pay the Exercise Price and the amount of any
withholding tax due (pursuant to Section 9) at the time of exercise. 
  
 (g) Limits on Incentive Stock Options. Each Incentive Stock Option shall provide that if the aggregate Fair Market Value of the stock on the date of the grant with respect to which Incentive Stock Options are exercisable for the
first time by a Grantee during any calendar year, under the Plan or any other stock option plan of the Company or a parent or subsidiary, exceeds $100,000, then the option, as to the excess, shall be treated as a Nonqualified Stock Option. An
Incentive Stock Option shall not be granted to any person who is not an Employee of the Company or a parent or subsidiary (within the meaning of section 424(f) of the Code). 
  
 6. Restricted Stock Grants 
  

The Committee may issue or transfer shares of Company Stock to a Grantee under a Grant of Restricted Stock upon such terms as the Committee deems
appropriate. The following provisions are applicable to Restricted Stock: 
  
 (a) General Requirements. Shares of Company Stock issued or transferred pursuant to Restricted Stock Grants may be issued or transferred for consideration or for no consideration, as determined by the
Committee. The Committee may establish conditions under which restrictions on shares of Restricted Stock shall lapse over a period of time or according to such other criteria as the Committee deems appropriate. The period of time during which the
Restricted Stock will remain subject to restrictions will be designated in the Grant Instrument as the “Restriction Period.” 
  

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 (b) Number of Shares. The Committee shall determine the number of shares of Company Stock to be
issued or transferred pursuant to a Restricted Stock Grant and the restrictions applicable to such shares. 
  
 (c) Requirement of Employment. If the Grantee ceases to be employed by the Company (as defined in Section 5(e)) during a period designated in the
Grant Instrument as the Restriction Period, or if other specified conditions are not met, the Restricted Stock Grant shall terminate as to all shares covered by the Grant as to which the restrictions have not lapsed, and those shares of Company
Stock must be immediately returned to the Company. The Committee may, however, provide for complete or partial exceptions to this requirement, as it deems appropriate. 
  
 (d) Restrictions on Transfer and Legend on Stock Certificate. During the Restriction Period, a Grantee may not sell,
assign, transfer, pledge or otherwise dispose of the shares of Restricted Stock except to a Successor Grantee under Section 10(a). Each certificate for a share of Restricted Stock shall contain a legend giving appropriate notice of the restrictions
in the Grant. The Grantee shall be entitled to have the legend removed from the stock certificate covering the shares subject to restrictions when all restrictions on such shares have lapsed. The Committee may determine that the Company will not
issue certificates for shares of Restricted Stock until all restrictions on such shares have lapsed, or that the Company will retain possession of certificates for shares of Restricted Stock until all restrictions on such shares have lapsed.

  
 (e) Right to Vote and to Receive Dividends. Unless the
Committee determines otherwise, during the Restriction Period, the Grantee shall have the right to vote shares of Restricted Stock and to receive any dividends or other distributions paid on such shares, subject to any restrictions deemed
appropriate by the Committee. 
  
 (f) Lapse of
Restrictions. All restrictions imposed on Restricted Stock shall lapse upon the expiration of the applicable Restriction Period and the satisfaction of all conditions imposed by the Committee. The Committee may determine, as to any or all
Restricted Stock Grants, that the restrictions shall lapse without regard to any Restriction Period. 
  
 7. Stock Appreciation Rights 
  
 (a) General Requirements. The Committee may grant stock appreciation rights (“SARs”) to a Grantee separately or in tandem with any Option
(for all or a portion of the applicable Option). Tandem SARs may be granted either at the time the Option is granted or at any time thereafter while the Option remains outstanding; provided, however, that, in the case of an Incentive Stock Option,
SARs may be granted only at the time of the Grant of the Incentive Stock Option. 
  

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 The Committee shall establish the base amount of the SAR at the time the SAR is granted. Unless the
Committee determines otherwise, the base amount of each SAR shall be equal to the per share Exercise Price of the related Option or, if there is no related Option, the Fair Market Value of a share of Company Stock as of the date of Grant of the SAR.

  
 (b) Tandem SARs. In the case of tandem SARs, the number
of SARs granted to a Grantee that shall be exercisable during a specified period shall not exceed the number of shares of Company Stock that the Grantee may purchase upon the exercise of the related Option during such period. Upon the exercise of an
Option, the SARs relating to the Company Stock covered by such Option shall terminate. Upon the exercise of SARs, the related Option shall terminate to the extent of an equal number of shares of Company Stock. 
  
 (c) Exercisability. A SAR shall be exercisable during the period
specified by the Committee in the Grant Instrument and shall be subject to such vesting and other restrictions as may be specified in the Grant Instrument. The Committee may accelerate the exercisability of any or all outstanding SARs at any time
for any reason. SARs may only be exercised while the Grantee is employed by the Company or during the applicable period after termination of employment as described in Section 5(e). A tandem SAR shall be exercisable only during the period when the
Option to which it is related is also exercisable. 
  
 (d)
Value of SARs. When a Grantee exercises SARs, the Grantee shall receive in settlement of such SARs an amount equal to the value of the stock appreciation for the number of SARs exercised, payable in cash, Company Stock or a combination
thereof. The stock appreciation for a SAR is the amount by which the Fair Market Value of the underlying Company Stock on the date of exercise of the SAR exceeds the base amount of the SAR as described in Subsection (a). 
  
 (e) Form of Payment. The Committee shall determine whether the
appreciation in a SAR shall be paid in the form of cash, shares of Company Stock, or a combination of the two, in such proportion as the Committee deems appropriate. For purposes of calculating the number of shares of Company Stock to be received,
shares of Company Stock shall be valued at their Fair Market Value on the date of exercise of the SAR. If shares of Company Stock are to be received upon exercise of an SAR, cash shall be delivered in lieu of any fractional share. 
  
 8. Performance Units 
  
 (a) General Requirements. The Committee may grant performance units
(“Performance Units”) to a Grantee. Each Performance Unit shall represent the right of the Grantee to receive an amount based on the value of the Performance Unit, if performance goals established by the Committee are met. A Performance
Unit shall be based on the Fair Market Value of a share of Company Stock or on such other measurement base as the Committee deems appropriate. The Committee shall determine the number of Performance Units to be granted and the requirements
applicable to such Units. 
  

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 (b) Performance Period and Performance Goals. When Performance Units are granted, the Committee
shall establish the performance period during which performance shall be measured (the “Performance Period”), performance goals applicable to the Units (“Performance Goals”) and such other conditions of the Grant, as the
Committee deems appropriate. Performance Goals may relate to the financial performance of the Company or its operating units, the performance of Company Stock, individual performance, or such other criteria as the Committee deems appropriate.

  
 (c) Payment with respect to Performance Units. At the
end of each Performance Period, the Committee shall determine to what extent the Performance Goals and other conditions of the Performance Units are met and the amount, if any, to be paid with respect to the Performance Units. Payments with respect
to Performance Units shall be made in cash, in Company Stock, or in a combination of the two, as determined by the Committee. 
  
 (d) Requirement of Employment. If the Grantee ceases to be employed by the Company (as defined in Section 5(e)) during a Performance Period, or if
other conditions established by the Committee are not met, the Grantee’s Performance Units shall be forfeited. The Committee may, however, provide for complete or partial exceptions to this requirement, as it deems appropriate. 
  
 9. Qualified Performance-Based Compensation 
  
 (a) Designation as Qualified Performance-Based Compensation. The
Committee may determine that Performance Units or Restricted Stock granted to an Employee shall be considered “qualified performance-based compensation” under Section 162(m) of the Code. The provisions of this Section 9 shall apply A-7 to
Grants of Performance Units and Restricted Stock that are to be considered “qualified performance-based compensation” under Section 162(m) of the Code. 
  
 (b) Performance Goals. When Performance Units or Restricted Stock that are to be considered “qualified
performance-based compensation” are granted, the Committee shall establish in writing (i) the objective performance goals that must be met in order for restrictions on the Restricted Stock to lapse or amounts to be paid under the Performance
Units, (ii) the Performance Period during which the performance goals must be met, (iii) the threshold, target and maximum amounts that may be paid if the performance goals are met, and (iv) any other conditions, including without limitation
provisions relating to death, disability, other termination of employment or Reorganization, that the Committee deems appropriate and consistent with the Plan and Section 162(m) of the Code. The performance goals may relate to the Employee’s
business unit or the performance of the Company and its subsidiaries as a whole, or any combination of the foregoing. The Committee shall use objectively determinable performance goals based on one or more of the following criteria: stock price,
earnings per share, net earnings, operating earnings, return on assets, stockholder return, return on equity, growth in assets, unit volume, sales, market share, or strategic business criteria consisting of one or more objectives based on meeting
specific revenue goals, market penetration goals, geographic business expansion goals, cost targets or goals relating to acquisitions or divestitures. 
  

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 (c) Establishment of Goals. The Committee shall establish the performance goals in writing either
before the beginning of the Performance Period or during a period ending no later than the earlier of (i) 90 days after the beginning of the Performance Period or (ii) the date on which 25% of the Performance Period has been completed, or such other
date as may be required or permitted under applicable regulations under Section 162(m) of the Code. The performance goals shall satisfy the requirements for “qualified performance-based compensation,” including the requirement that the
achievement of the goals be substantially uncertain at the time they are established and that the goals be established in such a way that a third party with knowledge of the relevant facts could determine whether and to what extent the performance
goals have been met. The Committee shall not have discretion to increase the amount of compensation that is payable upon achievement of the designated performance goals. 
  
 (d) Maximum Payment. If Restricted Stock, or Performance Units measured with respect to the fair market value of the
Company Stock, is granted, not more than 625,000 shares may be granted to any Grantee for any Performance Period. If Performance Units are measured with respect to other criteria, the maximum amount that may be paid to an Employee with respect to a
Performance Period is $ 1,000,000. 
  
 (e) Announcement of
Grants. The Committee shall certify and announce the results for each Performance Period to all Grantees immediately following the announcement of the Company’s financial results for the Performance Period. If and to the extent that the
Committee does not certify that the performance goals have been met, the grants of Restricted Stock or Performance Units for the Performance Period shall be forfeited. 
  
 10. Withholding of Taxes 
  
 (a) Required Withholding. All Grants under the Plan shall be subject to applicable federal (including FICA), state and local tax withholding
requirements. The Company shall have the right to deduct from all Grants paid in cash, or from other wages paid to the Grantee, any federal, state or local taxes required by law to be withheld with respect to such Grants. In the case of Options and
other Grants paid in Company Stock, the Company may require the Grantee or other person receiving such shares to pay to the Company the amount of any such taxes that the Company is required to withhold with respect to such Grants, or the Company may
deduct from other wages paid by the Company the amount of any withholding taxes due with respect to such Grants. 
  
 (b) Election to Withhold Shares. If the Committee so permits, a Grantee may elect to satisfy the Company’s income tax withholding obligation
with respect to an Option, SAR, Restricted Stock or Performance Units paid in Company Stock by having shares withheld up to an amount that does not exceed the Grantee’s maximum marginal tax rate for federal (including FICA), state and local tax
liabilities. The election must be in a form and manner prescribed by the Committee and shall be subject to the prior approval of the Committee. 
  

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 11. Transferability of Grants 
  
 (a) Nontransferability of Grants. Except as provided below, only the Grantee may exercise rights under a Grant during
the Grantee’s lifetime. A Grantee may not transfer those rights except by will or by the laws of descent and distribution or, with respect to Grants other than Incentive Stock Options, if permitted in any specific case by the Committee,
pursuant to a domestic relations order (as defined under the Code or Title I of the Employee Retirement Income Security Act of 1974, as amended, or the regulations therein). When a Grantee dies, the personal representative or other person entitled
to succeed to the rights of the Grantee (“Successor Grantee”) may exercise such rights. A Successor Grantee must furnish proof satisfactory to the Company of his or her right to receive the Grant under the Grantee’s will or under the
applicable laws of descent and distribution. 
  
 (b) Transfer
of Nonqualified Stock Options. Notwithstanding the foregoing, the Committee may provide, in a Grant Instrument, that a Grantee may transfer Nonqualified Stock Options to family members or other persons or entities according to such terms as the
Committee may determine; provided that the Grantee receives no consideration for the transfer of an Option and the transferred Option shall continue to be subject to the same terms and conditions as were applicable to the Option immediately before
the transfer. 
  
 12. Reorganization of the Company

  
 (a) Reorganization. As used herein, a
“Reorganization” shall be deemed to have occurred if the stockholders of the Company approve (or, if stockholder approval is not required, the Board of Directors approves) an agreement providing for (i) the merger or consolidation of the
Company with another corporation where the stockholders of the Company, immediately prior to the merger or consolidation, will not beneficially own, immediately after the merger or consolidation, shares entitling such stockholders to more than 50%
of all votes to which all stockholders of the surviving corporation would be entitled in the election of directors (without consideration of the rights of any class of stock to elect directors by a separate class vote), (ii) the sale or other
disposition of all or substantially all of the assets of the Company, or (iii) a liquidation or dissolution of the Company. 
  
 (b) Assumption of Grants. Upon a Reorganization where the Company is not the surviving corporation (or survives only as a subsidiary of another
corporation), unless the Committee determines otherwise, all outstanding Options and SARs that are not exercised shall be assumed by, or replaced with comparable options or rights by, the surviving corporation. 
  
 (c) Other Alternatives. Notwithstanding the foregoing, in the event of
a Reorganization, the Committee may take one or both of the following actions: the Committee may (i) require that Grantees surrender their outstanding Options and SARs in exchange for a payment by the Company, in cash or Company Stock as determined
by the Committee, in an amount equal to the amount by which the then Fair Market Value of the shares of Company Stock subject to the Grantee’s unexercised Options and SARs exceeds the Exercise Price of the Options or the base amount of the
SARs, as applicable, or (ii) after giving Grantees an opportunity to exercise their outstanding Options and SARs, terminate any or all unexercised Options and SARs at such time as the Committee deems appropriate. Such surrender or termination shall
take place as of the date of the Reorganization or such other date as the Committee may specify. 
  

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 (d) Limitations. Notwithstanding anything in the Plan to the contrary, in the event of a
Reorganization, the Committee shall not have the right to take any actions described in the Plan (including without limitation actions described in Subsection (b) above) that would make the Reorganization ineligible for desired tax treatment if, in
the absence of such right, the Reorganization would qualify for such treatment and the Company intends to use such treatment with respect to the Reorganization. 
  

13. Change of Control of the Company 
  
 (a) As used herein, a “Change of Control” shall be deemed to have occurred if (i) Any “person” (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act) becomes a “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing a majority of the voting power of the then outstanding
securities of the Company except where the acquisition is approved by the Board of Directors; or (ii) Any person has commenced a tender offer or exchange offer for a majority of the voting power of the then outstanding shares of the Company.

  
 (b) Notice and Acceleration. Unless the Committee
determines otherwise, a Change of Control shall not result in the acceleration of vesting of outstanding Options and SARs, the removal of restrictions and conditions on outstanding Restricted Stock grant, or any accelerated payments in connection
with outstanding Performance Units. 
  
 (c) Other
Alternatives. Notwithstanding the foregoing, in the event of a Change of Control, the Committee may take one or both of the following actions: the Committee may (i) require that Grantees surrender their outstanding Options and SARs in exchange
for a payment by the Company, in cash or Company Stock as determined by the Committee, in an amount equal to the amount by which the then Fair Market Value of the shares of Company Stock subject to the Grantee’s unexercised Options and SARs
exceeds the Exercise Price of the Options or the base amount of the SARs, as applicable, or (ii) after giving Grantees an opportunity to exercise their outstanding Options and SARs, terminate any or all unexercised Options and SARs at such time as
the Committee deems appropriate. Such surrender or termination shall take place as of the date of the Change of Control or such other date as the Committee may specify. 
  
 (d) Limitations. Notwithstanding anything in the Plan to the contrary, in the event of a Change of Control, the
Committee shall not have the right to take any actions described in the Plan (including without limitation actions described in Subsection (c) above) that would make the Change of Control ineligible for desired tax treatment if, in the absence of
such right, the Change of Control would qualify for such treatment and the Company intends to use such treatment with respect to the Change of Control. 
  
 14. Amendment and Termination of the Plan 
  
 (a) Amendment. The Board may amend or terminate the Plan at any time; provided, however, that no amendment will be effective without shareholder
approval if such approval is required under the rules of any exchange or which the company Stock is then listed. 
  

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 (b) Termination of Plan. The Plan shall terminate on May 20, 2015, unless the Plan is terminated
earlier by the Board or is extended by the Board with the approval of the stockholders. 
  
 (c) Termination and Amendment of Outstanding Grants. A termination or amendment of the Plan that occurs after a Grant is made shall not materially impair the rights of a Grantee unless the Grantee consents. The
termination of the Plan shall not impair the power and authority of the Committee with respect to an outstanding Grant. Whether or not the Plan has terminated, an outstanding Grant may be terminated or amended in accordance with the Plan or may be
amended by agreement of the Company and the Grantee consistent with the Plan. 
  
 (d) Governing Document. The Plan shall be the controlling document. No other statements, representations, explanatory materials or examples, oral or written, may amend the Plan in any manner. The Plan shall be
binding upon and enforceable against the Company and its successors and assigns. 
  
 15. Funding of the Plan 
  
 This Plan shall be unfunded. The Company shall not be required to establish any special or separate fund or to make any other segregation of assets to assure the payment of any Grants under this Plan. In no event shall interest be paid or
accrued on any Grant, including unpaid installments of Grants. 
  
 16. Rights of Grantees 
  
 Nothing in this Plan
shall entitle any Grantee or other person to any claim or right to be granted a Grant under this Plan. Neither this Plan nor any action taken hereunder shall be construed as giving any individual any rights to be retained by or in the employ of the
Company or any other employment rights. 
  
 17. No Fractional
Shares 
  
 No fractional shares of Company Stock shall be
issued or delivered pursuant to the Plan or any Grant. The Committee shall determine whether cash, other awards or other property shall be issued or paid in lieu of such fractional shares or whether such fractional shares or any rights thereto shall
be forfeited or otherwise eliminated. 
  
 18. Headings

  
 Section headings are for reference only. In the event of a
conflict between a title and the content of a Section, the content of the Section shall control. 
  
 19. Effective Date of the Plan 
  
 Subject to the approval of the Company’s stockholders, the Plan, as amended and restated herein, shall be effective on May 20, 2005. 
  

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 20. Miscellaneous 
  
 (a) Grants in Connection with Corporate Transactions and Otherwise. Nothing contained in this Plan shall be construed
to (i) limit the right of the Committee to make Grants under this Plan in connection with the acquisition, by purchase, lease, merger, consolidation or otherwise, of the business or assets of any corporation, firm or association, including Grants to
employees thereof who become Employees of the Company, or for other proper corporate purposes, or (ii) limit the right of the Company to grant stock options or make other awards outside of this Plan. Without limiting the foregoing, the Committee may
make a Grant to an employee of another corporation who becomes an Employee by reason of a corporate merger, consolidation, acquisition of stock or property, reorganization or liquidation involving the Company or any of its subsidiaries in
substitution for a stock option or restricted stock grant made by such corporation. The terms and conditions of the substitute grants may vary from the terms and conditions required by the Plan and from those of the substituted stock incentives. The
Committee shall prescribe the provisions of the substitute grants. 
  
 (b) Compliance with Law. The Plan, the exercise of Options and SARs and the obligations of the Company to issue or transfer shares of Company Stock under Grants shall be subject to all applicable laws and to approvals by any
governmental or regulatory agency as may be required. With respect to persons subject to section 16 of the Exchange Act, it is the intent of the Company that the Plan and all transactions under the Plan comply with all applicable provisions of Rule
16b-3 or its successors under the Exchange Act. The Committee may revoke any Grant if it is contrary to law or modify a Grant to bring it into compliance with any valid and mandatory government regulation. The Committee may also adopt rules
regarding the withholding of taxes on payments to Grantees. The Committee may, in its sole discretion, agree to limit its authority under this Section. 
  
 (c) Governing Law. The validity, construction, interpretation and effect of the Plan and Grant Instruments issued under the Plan shall exclusively
be governed by and determined in accordance with the law of the State of Delaware. 
  

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