Exhibit 10.13

 

    


    Exhibit
      10.13

    


    AMENDED
      AND RESTATED

    FREEPORT-McMoRan
      COPPER & GOLD INC.

    1999
      STOCK INCENTIVE PLAN

    


    SECTION
      1  

     

    Purpose.
      The
      purpose of the Freeport-McMoRan Copper & Gold Inc. 1999 Stock Incentive Plan
      (the “Plan”) is to motivate officers, key employees, consultants and advisers by
      giving them an opportunity to acquire a proprietary interest in the Company
      and
      reward them for the successful future performance of the Company.

     

    SECTION
      2  

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

    “Eligible
      Individual” shall mean (i) any person providing services as an officer of the
      Company or a Subsidiary, whether or not employed by such entity, including
      any
      such person who is also a director of the Company, (ii) any employee of the
      Company or a Subsidiary, including any director who is also an employee of
      the
      Company or a Subsidiary, (iii) any officer or employee of an entity with which
      the Company has contracted to receive executive, management or legal services
      who provides services to the Company or a Subsidiary through such arrangement,
      (iv) any consultant or adviser to the Company, a Subsidiary or to an entity
      described in clause (iii) hereof who provides services to the Company or a
      Subsidiary through such arrangement and (v) any person who has agreed in writing
      to become a person described in clauses (i), (ii), (iii) or (iv) within not
      more
      than 30 days following the date of grant of such person’s first Award under the
      Plan.

     

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

     

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

     

    “Limited
      Right” shall mean any right granted under Section 8 of the Plan.
      Notwithstanding anything contained herein to the contrary, no Limited Rights
      shall be granted after October 3, 2004.

     

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

     

    “Offer”
      shall mean any tender offer, exchange offer or series of purchases or other
      acquisitions, or any combination of those transactions, as a result of which
      any
      person, or any two or more persons acting as a group, and all affiliates of
      such
      person or persons, shall beneficially own more than 40% of all classes and
      series of the Company’s stock outstanding, taken as a whole, that has voting
      rights with respect to the election of directors of the Company (not including
      any series of preferred stock of the Company that has the right to elect
      directors only upon the failure of the Company to pay dividends).

     

    “Offer
      Price” shall mean the highest price per Share paid in any Offer that is in
      effect at any time during the period beginning on the ninetieth day prior to
      the
      date on which a Limited Right is exercised and ending on and including the
      date
      of exercise of such Limited Right. Any securities or property that comprise
      all
      or a portion of the consideration paid for Shares in the Offer shall be valued
      in determining the Offer Price at the higher of (i) the valuation placed on
      such
      securities or property by the person or persons making such Offer, or (ii)
      the
      valuation, if any, placed on such securities or property by the Committee or
      the
      Board.

     

    “Option”
      shall mean an Incentive Stock Option or a Nonqualified Stock
      Option.

     

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

     

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

     

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

     

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

     

    “SAR”
      shall mean any Stock Appreciation Right.

     

    “SEC”
      shall mean the Securities and Exchange Commission, including the staff thereof,
      or any successor thereto.

     

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

     

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

     

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

     

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

     

    SECTION
      3  

     

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

     

    (b)  Delegation.
      Subject
      to the terms of the Plan and applicable law, the Committee may delegate to
      one
      or more officers of the Company the authority, subject to such terms and
      limitations as the Committee shall determine, to grant Awards to, or to cancel,
      modify or waive rights with respect to, or to alter, discontinue, suspend,
      or
      terminate Awards held by, Eligible Individuals who are not officers or directors
      of the Company for purposes of Section 16 of the Exchange Act, or any successor
      section thereto, or who are otherwise not subject to such Section.

     

    SECTION
      4  

     

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

     

    SECTION
      5  

     

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

     

    (i)  Calculation
      of Number of Shares Available.

     

    (A)  Subject
      to the other provisions of this Section 5(a), the number of Shares with respect
      to which Awards payable in Shares may be granted under the Plan shall be
      8,000,000 shares of Class B Common Stock. Awards that by their terms
      may be
      settled only in cash shall not be counted against the maximum number of Shares
      provided herein.

     

    (B)  Grants
      of
      Stock Appreciation Rights, Limited Rights and Other Stock-Based Awards not
      granted in tandem with Options and payable only in cash may relate to no more
      than 8,000,000 Shares.

     

    (C)  The
      number of Shares that may be issued pursuant to Incentive Stock Options may
      not
      exceed 8,000,000 Shares.

     

    (D)  Subject
      to the other provisions of this Section 5(a), the maximum number of Shares
      with
      respect to which Awards in the form of Restricted Stock or Other Stock-Based
      Awards payable in Shares for which a per share purchase price that is less
      than
      100% of the fair market value of the securities to which the Award relates
      shall
      be 2,500,000 Shares.

     

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

     

    (F)  In
      the
      event that Shares are issued as Restricted Stock or Other Stock-Based Awards
      under the Plan and thereafter are forfeited or reacquired by the Company
      pursuant to rights reserved upon issuance thereof, such Shares shall again
      be
      available for grant pursuant to new Awards under the Plan.

     

    (G)  If
      the
      exercise price of any Option is satisfied by tendering Shares to the Company,
      only the number of Shares issued net of the Shares tendered shall be deemed
      issued for purposes of determining the maximum number of Shares available for
      issuance under Section 5(a)(i)(A). However, all of the Shares issued upon
      exercise shall be deemed issued for purposes of determining the maximum number
      of Shares that may be issued pursuant to Incentive Stock Options.

     

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

     

    (iii)  Individual
      Limit.
      Any
      provision of the Plan to the contrary notwithstanding, no individual may receive
      in any calendar year Awards under the Plan, whether payable in cash or Shares,
      that relate to more than 2,500,000 Shares.

     

    (iv)  Use
      of
      Shares.
      Subject
      to the terms of the Plan and the overall limitation on the number of Shares
      that
      may be delivered under the Plan, the Committee may use available Shares as
      the
      form of payment for compensation, grants or rights earned or due under any
      other
      compensation plans or arrangements of the Company or a Subsidiary, including,
      but not limited to, the Company’s Annual Incentive Plan and the plans or
      arrangements of the Company or a Subsidiary assumed in business
      combinations.

     

    (b)  Adjustments.
      In the
      event that the Committee determines that any dividend or other distribution
      (whether in the form of cash, Shares, Subsidiary securities, other securities
      or
      other property), recapitalization, stock split, reverse stock split,
      reorganization, merger, consolidation, split-up, spin-off, combination,
      repurchase or exchange of Shares or other securities of the Company, issuance
      of
      warrants or other rights to purchase Shares or other securities of the Company,
      or other similar corporate transaction or event affects the Shares such that
      an
      adjustment is determined by the Committee to be appropriate to prevent dilution
      or enlargement of the benefits or potential benefits intended to be made
      available under the Plan, then the Committee may, in its sole discretion and
      in
      such manner as it may deem equitable, adjust any or all of (i) the number and
      type of Shares (or other securities or property) with respect to which Awards
      may be granted, (ii) the number and type of Shares (or other securities or
      property) subject to outstanding Awards, and (iii) the grant or exercise price
      with respect to any Award and, if deemed appropriate, make provision for a
      cash
      payment to the holder of an outstanding Award and, if deemed appropriate, adjust
      outstanding Awards to provide the rights contemplated by Section 10(c) hereof;
      provided,
      in each
      case, that with respect to Awards of Incentive Stock Options no such adjustment
      shall be authorized to the extent that such authority would cause the Plan
      to
      violate Section 422(b)(1) of the Code or any successor provision thereto and,
      with respect to all Awards under the Plan, no such adjustment shall be
      authorized to the extent that such authority would be inconsistent with the
      requirements for full deductibility under Section 162(m); and provided further,
      that
      the number of Shares subject to any Award denominated in Shares shall always
      be
      a whole number.

     

    SECTION
      6  

     

    (a)  Stock
      Options.
      Subject
      to the provisions of the Plan, the Committee shall have sole and complete
      authority to determine the Eligible Individuals to whom Options shall be
      granted, the number of Shares to be covered by each Option, the option price
      therefor and the conditions and limitations applicable to the exercise of the
      Option. The Committee shall have the authority to grant Incentive Stock Options,
      Nonqualified Stock Options or both. In the case of Incentive Stock Options,
      the
      terms and conditions of such grants shall be subject to and comply with such
      rules as may be required by Section 422 of the Code, as from time to time
      amended, and any implementing regulations. Except in the case of an Option
      granted in assumption of or substitution for an outstanding award of a company
      acquired by the Company or with which the Company combines, the exercise price
      of any Option granted under this Plan shall not be less than 100% of the fair
      market value of the underlying Shares on the date of grant.

     

    (b)  Exercise.
      Each
      Option shall be exercisable at such times and subject to such terms and
      conditions as the Committee may, in its sole discretion, specify in the
      applicable Award Agreement or thereafter, provided, however, that in no event
      may any Option granted hereunder be exercisable after the expiration of 10
      years
      after the date of such grant. The Committee may impose such conditions with
      respect to the exercise of Options, including without limitation, any condition
      relating to the application of federal or state securities laws, as it may
      deem
      necessary or advisable.

     

    (c)  Payment.
      No
      Shares shall be delivered pursuant to any exercise of an Option until payment
      in
      full of the option price therefor is received by the Company. Such payment
      may
      be made in cash, or its equivalent, or, if and to the extent permitted by the
      Committee, by applying cash amounts payable by the Company upon the exercise
      of
      such Option or other Awards by the holder thereof or by tendering, by either
      actual delivery of Shares or by attestation, whole Shares owned by such holder
      (which are not the subject of any pledge or other security interest), or by
      a
      combination of the foregoing, provided that the combined value of all cash,
      cash
      equivalents, cash amounts so payable by the Company upon exercises of Awards
      and
      the fair market value of any such whole Shares so tendered to the Company,
      valued (in accordance with procedures established by the Committee) as of the
      effective date of such exercise, is at least equal to such option
      price.

     

    SECTION
      7  

     

    (a)  Stock
      Appreciation Rights.
      Subject
      to the provisions of the Plan, the Committee shall have sole and complete
      authority to determine the Eligible Individuals to whom Stock Appreciation
      Rights shall be granted, the number of Shares to be covered by each Award of
      Stock Appreciation Rights, the grant price thereof and the conditions and
      limitations applicable to the exercise thereof. Stock Appreciation Rights may
      be
      granted in tandem with another Award, in addition to another Award, or
      freestanding and unrelated to any other Award. Stock Appreciation Rights granted
      in tandem with or in addition to an Option or other Award may be granted either
      at the same time as the Option or other Award or at a later time. Stock
      Appreciation Rights shall not be exercisable after the expiration of 10 years
      after the date of grant. Except in the case of a Stock Appreciation Right
      granted in assumption of or substitution for an outstanding award of a company
      acquired by the Company or with which the Company combines, the grant price
      of
      any Stock Appreciation Right granted under this Plan shall not be less than
      100%
      of the fair market value of the Shares covered by such Stock Appreciation Right
      on the date of grant or, in the case of a Stock Appreciation Right granted
      in
      tandem with a then outstanding Option or other Award, on the date of grant
      of
      such related Option or Award.

     

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

     

    SECTION
      8  

     

    (a)  Limited
      Rights.
      Subject
      to the provisions of the Plan, the Committee shall have sole and complete
      authority to determine the Eligible Individuals to whom Limited Rights shall
      be
      granted, the number of Shares to be covered by each Award of Limited Rights,
      the
      grant price thereof and the conditions and limitations applicable to the
      exercise thereof. Limited Rights may be granted in tandem with another Award,
      in
      addition to another Award, or freestanding and unrelated to any Award. Limited
      Rights granted in tandem with or in addition to an Award may be granted either
      at the same time as the Award or at a later time. Limited Rights shall not
      be
      exercisable after the expiration of 10 years after the date of grant and shall
      only be exercisable during a period determined at the time of grant by the
      Committee beginning not earlier than one day and ending not more than ninety
      days after the expiration date of an Offer. Except in the case of a Limited
      Right granted in assumption of or substitution for an outstanding award of
      a
      company acquired by the Company or with which the Company combines, the grant
      price of any Limited Right granted under this Plan shall not be less than 100%
      of the fair market value of the Shares covered by such Limited Right on the
      date
      of grant or, in the case of a Limited Right granted in tandem with a then
      outstanding Option or other Award, on the date of grant of such related Option
      or Award.

     

    (b)  A
      Limited
      Right shall entitle the holder thereof to receive upon exercise, for each Share
      to which the Limited Right relates, an amount equal to the excess, if any,
      of
      the Offer Price on the date of exercise of the Limited Right over the grant
      price. Any Limited Right shall be settled in cash, unless the Committee shall
      determine at the time of grant of a Limited Right that it shall or may be
      settled in cash, Shares or a combination of cash and Shares.

     

    SECTION
      9  

     

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

     

    (b)  The
      Restricted Period.
      At the
      time that an Award of Restricted Stock is made, the Committee shall establish
      a
      period of time during which the transfer of the Shares of Restricted Stock
      shall
      be restricted (the “Restricted Period”). Each Award of Restricted Stock may have
      a different Restricted Period. A Restricted Period of at least three years
      is
      required, except that if vesting of the Shares is subject to the attainment
      of
      specified performance goals, a Restricted Period of one year or more is
      permitted. The expiration of the Restricted Period shall also occur as provided
      under Section 12(a) hereof.

     

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

     

    The
      transferability of this certificate and the shares of Common Stock represented
      by it are subject to the terms and conditions (including conditions of
      forfeiture) contained in the Freeport-McMoRan Copper & Gold Inc. 1999 Stock
      Incentive Plan (the “Plan”) and a notice of grant issued thereunder to the
      registered owner by Freeport-McMoRan Copper & Gold Inc. Copies of the Plan
      and the notice of grant are on file at the principal office of Freeport-McMoRan
      Copper & Gold Inc.

    


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

     

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

     

    (f)  Expiration
      of Restricted Period.
      Upon
      the expiration or termination of the Restricted Period and the satisfaction
      of
      any other conditions prescribed by the Committee or at such earlier time as
      provided for in Section 9(b) and in the Award Agreement or an amendment thereto,
      the restrictions applicable to the Restricted Stock shall lapse and a stock
      certificate for the number of Shares of Restricted Stock with respect to which
      the restrictions have lapsed shall be delivered, free of all such restrictions
      and legends, except any that may be imposed by law, to the Participant or the
      Participant’s estate, as the case may be.

     

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

     

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

     

    SECTION
      10  

     

    (a)  Other
      Stock-Based Awards.
      The
      Committee is hereby authorized to grant to Eligible Individuals an “Other
      Stock-Based Award,” which shall consist of an Award, the value of which is based
      in whole or in part on the value of Shares, that is not an instrument or Award
      specified in Sections 6 through 9 of this Plan. Other Stock-Based Awards may
      be
      awards of Shares or may be denominated or payable in, valued in whole or in
      part
      by reference to, or otherwise based on or related to, Shares (including, without
      limitation, restricted stock units or securities convertible or exchangeable
      into or exercisable for Shares), as deemed by the Committee consistent with
      the
      purposes of the Plan. The Committee shall determine the terms and conditions
      of
      any such Other Stock-Based Award and may provide that such awards would be
      payable in whole or in part in cash. An Other Stock-Based Award may be subject
      to the attainment of such specified performance goals or targets as the
      Committee may determine, subject to the provisions of the Plan. To the extent
      that an Other Stock-Based Award is intended to qualify as “performance-based
      compensation” under Section 162(m), it must meet the additional requirements
      imposed thereby. Except in the case of an Other Stock-Based Award granted in
      assumption of or in substitution for an outstanding award of a company acquired
      by the Company or with which the Company combines, the price at which securities
      may be purchased pursuant to any Other Stock-Based Award granted under this
      Plan, or the provision, if any, of any such Award that is analogous to the
      purchase or exercise price, shall not be less than 100% of the fair market
      value
      of the securities to which such Award relates on the date of grant. An
      Other-Stock Based Award, including an outright grant of Shares, may be made
      in
      lieu of the payment of cash compensation otherwise due to an Eligible
      Individual.

     

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

     

    (c)  Dividend
      Equivalents.
      In the
      sole and complete discretion of the Committee, an Award, whether made as an
      Other Stock-Based Award under this Section 10 or as an Award granted pursuant
      to
      Sections 6 through 9 hereof, may provide the holder thereof with dividends
      or
      dividend equivalents, payable in cash, Shares, Subsidiary securities, other
      securities or other property on a current or deferred basis.

     

    SECTION
      11  

     

    (a)  Amendments
      to the Plan.
      The
      Board may amend, suspend or terminate the Plan or any portion thereof at any
      time, provided that no amendment shall be made without stockholder approval
      if
      such approval is necessary to comply with any tax or regulatory requirement,
      including for these purposes any approval necessary to qualify Awards as
“performance based” compensation under Section 162(m) or any successor provision
      if such qualification is deemed necessary or advisable by the Committee.
      Notwithstanding anything to the contrary contained herein, the Committee may
      amend the Plan in such manner as may be necessary for the Plan to conform with
      local rules and regulations in any jurisdiction outside the United
      States.

     

    (b)  Adjustment
      of Awards Upon the Occurrence of Certain Unusual or Nonrecurring
      Events.
      The
      Committee is hereby authorized to make adjustments in the terms and conditions
      of, and the criteria included in, Awards in recognition of unusual or
      nonrecurring events (including, without limitation, the events described in
      Section 5(b) hereof) affecting the Company, or the financial statements of
      the
      Company or any Subsidiary, or of changes in applicable laws, regulations, or
      accounting principles, whenever the Committee determines that such adjustments
      are appropriate to prevent dilution or enlargement of the benefits or potential
      benefits intended to be made available under the Plan.

     

    (c)  Cancellation.
      Any
      provision of this Plan or any Award Agreement to the contrary notwithstanding,
      the Committee may cause any Award granted hereunder to be canceled in
      consideration of a cash payment or alternative Award made to the holder of
      such
      canceled Award equal in value to such canceled Award. Notwithstanding the
      foregoing, no Options granted under the Plan shall be repriced without the
      approval of the stockholders of the Company. The determinations of value under
      this subparagraph shall be made by the Committee in its sole
      discretion.

     

    SECTION
      12  

     

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

     

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

     

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

     

    (iii)
      If
      permitted by the Committee, a Participant may also satisfy up to his or her
      total tax liability related to an Award by delivering Shares owned by the
      Participant, which Shares may be subject to holding period requirements
      determined by the Committee. The value of the Shares delivered shall be based
      on
      the fair market value of the Shares on the Tax Date.

     

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

     

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

     

    (d)  Share
      Certificates.
      All
      certificates for Shares or other securities delivered under the Plan pursuant
      to
      any Award or the exercise thereof shall be subject to such stop transfer orders
      and other restrictions as the Committee may deem advisable under the Plan or
      the
      rules, regulations, and other requirements of the SEC, any stock exchange upon
      which such Shares or other securities are then listed, and any applicable
      federal or state laws, and the Committee may cause a legend or legends to be
      put
      on any such certificates to make appropriate reference to such
      restrictions.

     

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

     

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

     

    (g)  Governing
      Law.
      The
      validity, construction, and effect of the Plan, any rules and regulations
      relating to the Plan and any Award Agreement shall be determined in accordance
      with the laws of the State of Delaware.

     

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

     

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

     

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

     

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

     

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

     

    SECTION
      13  

     

    Term
      of the Plan.
      Subject
      to Section 11(a), no Awards may be granted under the Plan later than May 6,
      2009, which is ten years after the date the Plan was approved by the Company’s
      stockholders; provided, however, that Awards granted prior to such date shall
      remain in effect until all such Awards have either been satisfied, expired
      or
      canceled under the terms of the Plan, and any restrictions imposed on Shares
      in
      connection with their issuance under the Plan have lapsed.