exv4w6






Exhibit 4.6




NEWPARK RESOURCES, INC.

2006 EQUITY INCENTIVE PLAN

(As Amended and Restated Effective June 10, 2009)




1. Purpose.




The Newpark Resources, Inc. 2006 Equity Incentive Plan is intended to assist Newpark Resources,
Inc., a Delaware corporation (the “Company”), in attracting, retaining and motivating
designated Employees of the Company and its Subsidiaries and to increase their interest in the
success of the Company in order to promote the Company’s long-term interests. The Plan is designed
to meet this intent by providing eligible Employees with a proprietary interest in pursuing the
long-term growth, profitability and financial success of the Company.



2. Definitions.




In addition to the terms defined elsewhere in the Plan, Exhibit A, which is incorporated by
reference, defines terms used in the Plan and sets forth certain operational rules related to those
terms.



3. Administration of the Plan.




3.1 General. The Plan shall be administered by the Compensation Committee. Each member of
the Compensation Committee shall be a “non-employee director” as that term is defined in Rule
16b-3, an “outside director” within the meaning of Section 162(m) and an “independent director”
under the corporate governance rules of any stock exchange or similar regulatory authority on which
the Common Stock is then listed, but no action of the Committee shall be invalid if this
requirement is not met. The Compensation Committee shall select one of its members as Chairman and
shall act by vote of a majority of the members present at a meeting at which a quorum is present or
by unanimous written consent. A majority of the members of the Compensation Committee shall
constitute a quorum. The Compensation Committee shall be governed by the provisions of the
Company’s Bylaws and of Delaware law applicable to the Board of Directors, except as otherwise
provided herein or determined by the Board of Directors. The Committee’s decisions and
determinations under the Plan need not be uniform and may be made selectively among Participants,
whether or not the Participants are similarly situated.



3.2 Authority of the Compensation Committee. The Compensation Committee shall have full
discretionary power and authority, subject to the general purposes, terms and conditions of the
Plan, to implement, carry out and administer the Plan. Without limiting the generality of the
foregoing, the Compensation Committee shall have the authority to:




(a) interpret and administrator the Plan, any Award Agreement and any other agreement or document
executed pursuant to the Plan;




(b) adopt, amend, modify or rescind rules, procedures and forms relating to the Plan;



 









 






(c) select persons to receive Awards;




(d) determine the number of Shares subject to Awards, the Fair Market Value of the Common Stock
and the other terms and conditions of each Award (which need not be uniform), including, without
limitation, the type of Award to be granted, vesting schedules, forfeiture restrictions and other
terms and conditions relating to the exercisability of Awards, and all other provisions of each
Award Agreement;




(e) determine whether Awards will be granted singly, in combination, or in tandem with, in
replacement of, or as alternatives to, other Awards under the Plan or any other incentive or
compensation plan of the Company or any Subsidiary;




(f) grant waivers of Plan or Award conditions and remove or adjust any restrictions or conditions
upon Awards, including accelerating or otherwise modifying the date on which any Award becomes
vested, exercisable or transferable and extending the term of any Award (subject to the maximum
term limitations set forth in the Plan), including extending the period following the termination
of a Participant’s employment during which any Award may remain outstanding or be exercised;
provided, however, that the Compensation Committee shall not have discretion to accelerate or
waive any term or condition of an Award (i) if such discretion would cause the Award to have
adverse tax consequences to the Participant under Section 409A of the Code or (ii) if the Award
is intended to qualify as “performance-based compensation” for purposes of Section 162(m) of the
Code, and such discretion would cause the Award not to so qualify;




(g) with the consent of the Optionee, amend or terminate any outstanding Award Agreement;




(h) correct any defect, supply any omission or reconcile any inconsistency in the Plan, any Award
or any Award Agreement;




(i) determine whether an Award has been earned; and




(j) make any other determination and take any other action that the Compensation Committee deems
necessary or desirable for administration of the Plan.



All decisions, determinations and other actions of the Compensation Committee made or taken in
accordance with the terms of the Plan shall be final and conclusive and binding upon all parties
having an interest therein.



3.3 Delegation of Authority. Any of the powers and responsibilities of the Compensation
Committee may delegated to any subcommittee, in which case the acts of the subcommittee shall be
deemed to be acts of the Compensation Committee hereunder. In addition, the Compensation Committee
may delegate to one or more officers or Employees of the Company or any Subsidiary the authority,
subject to such terms as the Compensation Committee shall determine, to perform such functions,
including administrative functions, as the Compensation Committee may determine, provided that in
no case shall any such officer or Employee be authorized to take any action that would (a) result
in the loss of an exemption under Rule 16b-3 for Awards granted to Section 16 Insiders, (b) cause
Awards intended to qualify as “performance-based compensation” under Section 162(m) to fail to so
qualify, or (c) be inconsistent with Section 157 and other applicable provisions of the Delaware
General Corporation Law. Any action taken by any such officer or Employee within the scope of the
authority delegated by the Compensation Committee shall be deemed for all purposes to have been
taken by the Compensation Committee, and, except as otherwise specifically provided, references in
the Plan to the Compensation Committee shall



 









 







include any such officer or Employee. The Compensation Committee and, to the extent it so provides,
any subcommittee, shall have sole authority to determine whether to review any actions or
interpretations of any such officer or Employee, and if the Compensation Committee shall decide to
conduct such a review, any such actions or interpretations of any such officer or Employee shall be
subject to approval, disapproval or modification by the Compensation Committee.



3.4 Monitoring Awards. Notwithstanding any delegation of authority by the Compensation
Committee, it shall maintain control of the operation of the Plan. At least annually, the
Compensation Committee, in conjunction with the Audit Committee of the Board of Directors of the
Company, shall conduct or cause the conduct of an audit of the operation of the Plan to verify that
the Plan has been operated and Awards have been documented and maintained by the officers of the
Company in accordance with the directions of the Compensation Committee. Without limiting the
generality of the foregoing, one of the purposes of such an audit will be to determine that the
executed Award Agreements are consistent with the Awards made by the Committee and properly reflect
the names of the Participants to whom such Awards were granted, the applicable Dates of Grant,
vesting provisions and expiration dates, the type and quantity of Awards granted to each
Participant and, if applicable, the applicable exercise prices.  



3.5 Limitation on Liability.




3.5.1 The Compensation Committee may employ attorneys, consultants, accountants, agents and other
persons, and the Compensation Committee shall be entitled, in good faith, to rely and act upon the
advice, opinions and valuations of any such persons. In addition, the Compensation Committee shall
be entitled, in good faith, to rely and act upon any report or other information furnished to it by
any officer, director or Employee of the Company.



3.5.2 No member of the Compensation Committee, nor any person acting pursuant to authority
delegated by the Compensation Committee, nor any officer, director or Employee of the Company
acting at the direction or on behalf of the Compensation Committee, shall be liable for any action,
omission or determination relating to the Plan, and the Company shall, to the fullest extent
permitted by law, indemnify and hold harmless each member of the Compensation Committee, each
person acting pursuant to authority delegated by the Compensation Committee, and each other
officer, director or Employee of the Company to whom any duty or power relating to the
administration or interpretation of the Plan has been delegated against any cost, expense
(including counsel fees), liability or other pecuniary loss (including any sum paid in settlement
of a claim with the approval of the Compensation Committee) arising out of any action, omission or
determination relating to the Plan, unless, in either case, such action, omission or determination
was taken or made by such member, director, Employee or other person in bad faith and without
reasonable belief that it was in the best interests of the Company.



4. Number of Shares Issuable in Connection with Awards.




4.1 Shares Subject to the Plan. The maximum number of Shares that may be issued in
connection with Awards granted under the Plan is 5,000,000, and the number of Shares that
are subject to Awards outstanding at any one time under the Plan may not exceed the number of
Shares that then remain available for issuance under the Plan. The maximum number of Shares that
may be issued in connection with Incentive Stock Options granted under the Plan is
5,000,000. The Company at all times shall reserve and keep available sufficient Shares to
satisfy the requirements of the Plan. Shares issued under the Plan may be either authorized and
unissued shares or treasury shares.



 









 





4.2 Share Counting Rules. For purposes of Section 4.1, the following Shares shall not be
considered to have been issued under the Plan: (a) Shares remaining under an Award that terminates
without having been exercised in full; (b) Shares that have been forfeited in accordance with the
terms of the applicable Award; and (c) Shares withheld, in satisfaction of the grant or exercise
price or tax withholding requirements, from Shares that would otherwise have been delivered
pursuant to an Award. In addition, to the extent permitted by Applicable Laws, Shares subject to
Awards issued in assumption of, or in substitution for, any outstanding awards of any entity
acquired in any form of business combination by the Company or any of its Subsidiaries shall not be
counted against the Shares available for issuance pursuant to the Plan.



4.3 Individual Award Limits. The maximum number of Shares that may be covered by Options
and Stock Appreciation Rights (in the aggregate) granted under the Plan to any single Participant
in any calendar year shall not exceed 200,000, and the maximum number of Shares that may be covered
by all other Awards (in the aggregate) granted under the Plan to any single Participant in any
calendar year shall not exceed 100,000. This limitation shall be applied and construed consistently
with Section 162(m).



4.4 Adjustments. The limits provided for in this Section 4 shall be subject to adjustment
as provided in Section 15.



5. Eligibility and Participation.




The Compensation Committee will select Participants from among those Employees who, in the opinion
of the Compensation Committee, are in a position to make significant contributions to the long-term
performance and growth of the Company and its Subsidiaries. In addition, the Compensation Committee
may grant Awards in connection with the engagement of an Employee who is expected to make
significant contributions to the long-term performance and growth of the Company, provided that a
prospective Employee may not receive any payment or exercise any right relating to an Award until
such person’s employment with the Company has commenced. An Employee on leave of absence may be
considered as still in the employ of the Company for purposes of eligibility for participation in
the Plan, if so determined by the Compensation Committee. Directors of the Company and its
Subsidiaries who are not also employees of the Company or a Subsidiary shall not be eligible to
receive Awards under the Plan.



6. Award Agreements.




Each Award granted under the Plan shall be evidenced by an Award Agreement in a form approved by
the Compensation Committee. Each Award Agreement shall be subject to all applicable terms and
conditions of the Plan, shall include such terms and conditions as the Compensation Committee deems
appropriate, consistent with the provisions of the Plan, and shall be executed by the Participant
and a person designated by the Compensation Committee.



7. Options.




7.1 Grant of Options. The Compensation Committee may grant Options in such amounts, at
such times and to such Employees as the Compensation Committee, in its discretion, may determine in
accordance with the eligibility criteria set forth in Section 5. The Compensation Committee shall
designate at the time of grant whether the Option is intended to constitute an Incentive Stock
Option or a Nonstatutory Option.



 









 





7.2 Option Price. The Option Price of the Shares subject to each Option shall be
determined by the Compensation Committee, but shall not be less than the Fair Market Value of the
Common Stock on the Date of Grant, except in the case of replacement or substitute Options issued
by the Company in connection with an acquisition or other corporate transaction.



7.3 Option Period. The Award Agreement shall specify the term of each Option. The term
shall commence on the Date of Grant and shall be 10 years or such shorter period as is determined
by the Compensation Committee. Each Option shall provide that it is exercisable over its term from
the Date of Grant or over time in such periodic installments, or based on the satisfaction of such
criteria (including, without limitation, upon the satisfaction of Performance Criteria), as the
Committee in its discretion may determine. The vesting provisions for Options granted under the
Plan need not be uniform. Unless the Committee otherwise determines at the time of grant, if an
Option is subject to vesting in periodic installments and a Participant shall not in any period
purchase all of the Shares that the Participant is entitled to purchase in such period, the
Participant may purchase all or any part of such Shares at any time prior to the expiration of the
Option.



7.4 Exercise of Options. Each Option may be exercised in whole or in part (but not as to
fractional shares) by the delivery of an executed Notice of Exercise in the form prescribed from
time to time by the Compensation Committee, accompanied by payment of the Option Price and any
amounts required to be withheld for tax purposes under Section 14. If an Option is exercised by any
person other than the Participant, the Compensation Committee may require satisfactory evidence
that the person exercising the Option has the right to do so. The Compensation Committee may
require any partial exercise of an Option to equal or exceed a specified minimum number of Shares.



7.5 Payment of Exercise Price. The Option Price shall be paid in full in cash or by check
acceptable to the Compensation Committee or, if and to the extent permitted by the Compensation
Committee, (a) through the delivery of Shares which have been outstanding for at least six months
or such other minimum period as may be required by applicable accounting rules to avoid a charge to
the Company’s earnings for financial reporting purposes (unless the Compensation Committee approves
a shorter period) and which have a Fair Market Value on the date the Option is exercised equal to
the Option Price, (b) to the extent permitted by Applicable Laws, by a Cashless Exercise, or (c) by
any combination of the foregoing permissible forms of payment.



7.6 Employment Requirements. Unless otherwise provided by the Compensation Committee and
except as otherwise provided in Section 7.7, an Option may not be exercised unless from the Date of
Grant to the date of exercise the Participant remains continuously in the employ of the Company.
The Compensation Committee shall determine, in its discretion in the particular case and subject to
any requirements of Applicable Laws, whether and to what the extent the period of continuous
employment shall be deemed to include any period in which the Participant is on leave of absence
with the consent of the Company. Unless the Compensation Committee expressly provides otherwise, a
Participant’s service as an Employee with the Company will be deemed to have ceased upon
termination of the Participant’s employment with the Company and its Subsidiaries (whether or not
the Participant continues in the service of the Company or its Subsidiaries in some capacity other
than that of an Employee). Notwithstanding the foregoing, solely with respect to any Award that is
subject to Section 409A of the Code, a Participant shall be considered to have terminated
employment with the Company and its Subsidiaries only when the Participant incurs a “separation
from service” with respect to the Company and its
Subsidiaries within the meaning of Section 409A(a)(2)(A)(i) of the Code and applicable
administrative guidance issued thereunder.



 









 





7.7 Exercise of Options on Termination of Employment.




7.7.1 Unless otherwise provided by the Compensation Committee, upon the termination of a
Participant’s employment with the Company and its Subsidiaries by reason of death or Disability,
(a) all Options then held by the Participant, to the extent exercisable on the date of termination
of employment, shall remain in full force and effect and may be exercised pursuant to the
provisions thereof at any time until the earlier of the end of the fixed term thereof and the
expiration of 12 months following termination of the Participant’s employment, and (b) all Options
then held by the Participant, to the extent not then presently exercisable, shall terminate as of
the date of such termination of employment and shall not be exercisable thereafter.



7.7.2 Unless otherwise provided by the Compensation Committee, upon the termination of the
Participant’s employment with the Company and its Subsidiaries for any reason other than the
reasons set forth in Section 7.7.1 or a termination for Cause, (a) all Options then held by the
Participant, to the extent exercisable on the date of termination of employment, shall remain in
full force and effect and may be exercised pursuant to the provisions thereof at any time until the
earlier of the end of the fixed term thereof and the expiration of 90 days following termination of
the Participant’s employment (except that the 90-day period shall be extended to 12 months from the
date of termination if the Participant shall die during such 90-day period), and (b) all Options
then held by the Participant, to the extent not then presently exercisable, shall terminate as of
the date of such termination of employment and shall not be exercisable thereafter.



7.7.3 Unless otherwise provided by the Compensation Committee, in the event of a
Participant’s termination for Cause, all Options held by the Participant, whether vested or not,
shall terminate concurrently with the first discovery by the Company of any reason for the
Participant’s termination for Cause and shall not be exercisable thereafter. If an Participant’s
employment with the Company or any Subsidiary is suspended pending an investigation of whether
there shall be a termination for Cause, all of the Participant’s rights under any Options then held
by the Participant, including, without limitation, the right to exercise such Options, shall
likewise be suspended during such period of investigation.



7.8 Incentive Stock Options. Incentive Stock Options shall be subject to the following
additional provisions:



7.8.1 The aggregate Fair Market Value (determined as of the Date of Grant) of the Common Stock with
respect to which Incentive Stock Options are exercisable for the first time by any individual
Participant during any one calendar year (under all plans of the Company and any parent or
Subsidiary) may not exceed the maximum amount permitted under Section 422 of the Code (currently
$100,000). To the extent any Incentive Stock Option would exceed this limit, the portion of the
Option in excess of such limit shall be treated as a Non-Qualified Stock Option for all purposes.
The provisions of this Section 7.8.1 shall be construed and applied in accordance with Section
422(d) of the Code and the regulations promulgated thereunder.



7.8.2 No Incentive Stock Option may be granted to a Participant if, at the time of the proposed
grant, the Participant owns stock possessing more than 10% of the total combined voting power of
all classes of stock of the Company or of any parent or Subsidiary of the Company, unless (a) the
Option Price is at least 110% of the Fair Market Value of a share of Common Stock on the
Date of Grant, and (b) the Incentive Stock Option is not exercisable after the expiration of five
years from the Date of Grant.



 









 





7.8.3 If a Participant sells or otherwise disposes of any Shares acquired pursuant to the exercise
of an Incentive Stock Option on or before the later of (a) the date two years after the Date of
Grant of the Incentive Stock Option, and (b) the date one year after the exercise of the Incentive
Stock Option (in either case, a “Disqualifying Disposition”), the Participant shall notify
the Company in writing of the Disqualifying Disposition within 10 days of the date thereof. In the
event of a Disqualifying Disposition, the Option will not qualify for incentive stock option
treatment.



7.8.4 If the Compensation Committee exercises its discretion to permit an Incentive Stock Option to
be exercised by a Participant more than three months after the termination of a Participant’s
employment for any reason other than death or Disability, the Incentive Stock Option will
thereafter be treated as a Non-Qualified Stock Option for all purposes. For purposes of this
Section 7.8.4, a Participant’s employment will be treated as continuing uninterrupted during any
period that the Participant is on military leave, sick leave or another approved leave of absence
if the period of leave does not exceed 90 consecutive days, unless reemployment on the expiration
of such leave is guaranteed by statute or by contract.



7.8.5 Any Option which is designated by the Compensation Committee as an Incentive Stock Option but
fails, for any reason, to meet the requirements for Incentive Stock Option treatment shall be
treated for tax purposes as a Non-Qualified Stock Option.



7.9 Additional Terms and Conditions. Each Option, and any shares of Common Stock issued
in connection with an Option, shall be subject to such additional terms and conditions not
inconsistent with the Plan as are determined by the Compensation Committee and set forth in the
applicable Award Agreement.



8. Restricted Stock.




8.1 Grant of Restricted Stock. The Compensation Committee may offer Awards of Restricted
Stock in such amounts, at such times and to such Employees as the Compensation Committee, in its
discretion, may determine in accordance with the eligibility criteria set forth in Section 5.



8.2 Purchase Price. The purchase price of the Shares subject to a Restricted Stock Award
shall be determined by the Compensation Committee and may be less than the Fair Market Value (but
not less than the par value) of the Shares on the Date of Grant. Without limiting the generality of
the foregoing, the Compensation Committee may determine that eligible Employees may be issued
Restricted Stock in consideration for past services actually rendered to the Company and its
Subsidiaries having a value of not less than the par value of the Shares subject to the Award. The
Committee shall determine the methods by which the purchase price may be paid or deemed paid and
the form of payment.



8.3 Award Agreement; Acceptance by Participant. Promptly following the grant of each
Restricted Stock Award, the Compensation Committee shall cause to be delivered to the applicable
Participant an Award Agreement that evidences the Award. The Participant shall accept the Award by
signing and delivering to the Company his or her Award Agreement, accompanied by full payment of
the purchase price, within 30 days from the date the Award Agreement was delivered to the
Participant. If the Participant does not so accept the Restricted Stock Award within such 30-day
period, then the offer of the Award shall terminate unless the Compensation Committee otherwise
determines.



 









 





8.4 Restrictions. At the time of grant of each Restricted Stock Award, the Compensation
Committee shall determine the Restriction Period that will apply to the Award and the forfeiture
and vesting restrictions, restrictions on transferability and other restrictions (including,
without limitation, limitations on the right to vote Restricted Stock or the right to receive
dividends on Restricted Stock) that will apply to the Award during the Restriction Period. These
restrictions may lapse separately or in combination at such times, under such circumstances
(including based on achievement of Performance Criteria or future service requirements or both), in
such installments or otherwise, as the Compensation Committee may determine in its discretion.



8.5 Forfeiture. Except as otherwise determined by the Compensation Committee, upon
termination of the Participant’s employment during the applicable Restriction Period, Restricted
Stock that is at that time subject to restrictions shall be forfeited and reacquired by the Company
or shall be subject to a repurchase option in favor of the Company, as may be specified in the
Award Agreement; provided, however, that, the Compensation Committee, in its discretion, may (a)
provide in any Award Agreement that restrictions or forfeiture conditions relating to Restricted
Stock will be waived in whole or in part in the event of terminations resulting from specified
causes, and (b) in other cases waive in whole or in part restrictions or forfeiture conditions
relating to Restricted Stock.



8.6 Stock Certificates. Restricted Stock granted under the Plan may be evidenced in such
manner as the Compensation Committee shall determine. If certificates representing Restricted Stock
are registered in the name of the Participant, the Compensation Committee may require that such
certificates bear an appropriate legend referring to the terms, conditions and restrictions
applicable to such Restricted Stock, that the Company retain physical possession of the
certificates, and that the Participant deliver a stock power to the Company, endorsed in blank,
relating to the Restricted Stock.



8.7 Dividend Rights. Unless otherwise set forth in the Award Agreement, (a) any regular
cash dividends declared and paid with respect to Shares subject to a Restricted Stock Award shall
be paid to the Participant at the same time they are paid to all other stockholders of the Company,
and (b) Shares distributed in connection with a stock split or stock dividend, and any other cash
or property (including securities of the Company or other issuers) distributed as a dividend (other
than regular cash dividends), shall be subject to restrictions and forfeiture conditions to the
same extent as the Restricted Stock with respect to which such Shares, cash or other property have
been distributed, and all references to Restricted Stock in the Plan or the applicable Award
Agreement shall be deemed to include such Shares, cash or other property.



8.8 Voting Rights. Unless otherwise set forth in the Award Agreement, all voting rights
appurtenant to the Shares subject to a Restricted Stock Award shall be exercised by the
Participant.



8.9 Termination of the Restriction Period. Upon satisfaction of the terms and conditions
specified in the Award Agreement that apply to a Restriction Period, (a) the Participant shall be
entitled to have the legend referred to in Section 8.6 removed from his or her shares of Restricted
Stock after the last day of the Restriction Period, and (b) if the Company has retained possession
of the certificates representing the shares of Restricted Stock, the Company shall promptly deliver
such certificates to the Participant. If the terms and conditions specified in the Award Agreement
that apply to a Restriction Period have not been satisfied, the Restricted Stock subject to the
Award shall be forfeited and reacquired by the Company or shall be subject to a repurchase option
in favor of the Company, as may be specified in the Award Agreement



 









 





8.10 Additional Terms and Conditions. Each Award of Restricted Stock, and all Shares of
Restricted Stock granted or offered for sale hereunder, shall be subject to such additional terms
and conditions not inconsistent with the Plan as are prescribed by the Compensation Committee and
set forth in the applicable Award Agreement.



9. Restricted Stock Units.




9.1 Grant of Restricted Stock Units. The Compensation Committee may make Awards of
Restricted Stock Units in such amounts, at such times and to such Employees as the Compensation
Committee, in its discretion, may determine in accordance with the eligibility criteria set forth
in Section 5. A Participant granted Restricted Stock Units shall not have any of the rights of a
stockholder with respect to the Shares subject to an Award of Restricted Stock Units, including any
right to vote or to receive other distributions on the Shares, until certificates for the Shares
subject to the Award shall have been issued in the Participant’s name in accordance with the terms
of the applicable Award Agreement.



9.2 Vesting and Other Terms. At the time of grant of each Award of Restricted Stock
Units, the Compensation Committee shall determine the Restriction Period that will apply to the
Award. During the Restriction Period, Restricted Stock Units shall be subject to such restrictions
on transferability, risk of forfeiture and other restrictions as the Compensation Committee may
impose, which restrictions may lapse separately or in combination at such times, under such
circumstances (including based on achievement of Performance Criteria or future service
requirements or both), in such installments or otherwise as the Committee may determine in its
discretion. If the terms and conditions specified in the Award Agreement have not been satisfied by
the end of the Restriction Period, the Restricted Stock Units subject to the Restriction Period
shall become null and void, and the Participant shall forfeit all rights with respect to such
Award.



9.3 Termination of Employment. Except as otherwise determined by the Compensation
Committee, upon termination of the Participant’s employment during the applicable Restriction
Period, Restricted Stock Units that are at that time subject to restrictions shall be null and
void, and the Participant shall forfeit all rights with respect to such Awards.



9.4 Settlement. On the vesting date or dates of the Award, the Company shall, subject to
the terms of the Plan and the Award Agreement, transfer to the Participant one Share for each
Restricted Stock Unit scheduled to be paid out on such date and not previously forfeited. The
Compensation Committee shall specify in the Award the purchase price, if any, to be paid by the
Participant to the Company for such Shares and shall determine the methods by which the purchase
price may be paid or deemed paid and the form of payment.



9.5 Additional Terms and Conditions. Each Award of Restricted Stock Units, and all Shares
issued in settlement of Restricted Stock Units, shall be subject to such additional terms and
conditions not inconsistent with the Plan as are prescribed by the Compensation Committee and set
forth in the applicable Award Agreement.



10. Stock Appreciation Rights.




10.1 Grant of Stock Appreciation Rights. The Compensation Committee may make Awards of
Stock Appreciation Rights in such amounts, at such times and to such Employees as the Compensation
Committee, in its discretion, may determine in accordance with the eligibility criteria set forth
in Section 5. If a Stock Appreciation Right is granted to a Section 16(b) Insider, the Award
Agreement shall incorporate all the terms and conditions at the time necessary to
assure that the subsequent exercise of the Stock Appreciation Right shall qualify for the
safe-harbor exemption from short-swing profit liability provided by Rule 16b-3.



 









 





10.2 General Terms. A Stock Appreciation Right shall confer on the Participant the right
to receive in Shares, cash or a combination thereof (as may be determined by the Compensation
Committee in its discretion) the value equal to the excess of the Fair Market Value of one Share on
the date of exercise over the exercise price for the Stock Appreciation Right, with respect to
every Share for which the Stock Appreciation Right is granted (the “SAR Settlement Value”).
At the time of grant, the Stock Appreciation Right must be designated by the Compensation Committee
as either a tandem Stock Appreciation Right or a stand-alone Stock Appreciation Right and, if not
so designated, shall be deemed to be a stand-alone Stock Appreciation Right. A tandem Stock
Appreciation Right is a Stock Appreciation Right that is granted in tandem with an Option and only
may be granted at the same time as the Option to which it relates. The exercise of a tandem Stock
Appreciation Right shall cancel the related Option for a like number of Shares, and the exercise of
the related Option similarly shall cancel the tandem Stock Appreciation Right for a like number of
Shares. Tandem Stock Appreciation Rights shall, except as specifically set forth in this Section 10
or in the applicable Award Agreement, be subject to the same terms and conditions as apply to the
related Option. Stand-alone Stock Appreciation Rights shall, except as specifically set forth in
this Section 10 or in the applicable Award Agreement, be subject to the same terms and conditions
generally applicable to Nonstatutory Stock Options as set forth in Section 7.



10.3 Exercise Price. The exercise price of each Stock Appreciation Right shall be
determined by the Compensation Committee, but shall not be less than the Fair Market Value of the
Common Stock on the Date of Grant.



10.4 Other Terms. The Compensation Committee shall determine the term of each Stock
Appreciation Right. The term shall commence on the Date of Grant and shall be 10 years or such
shorter period as is determined by the Compensation Committee. The Compensation Committee also
shall determine the time or times at which and the circumstances under which a Stock Appreciation
Right may be exercised in whole or in part, the method of exercise, the method of settlement and
the form of consideration payable in settlement. The Compensation Committee may provide for Stock
Appreciation Rights to become exercisable at one time or from time to time, periodically or
otherwise (including, without limitation, upon the satisfaction of Performance Criteria), as to
such number of Shares or percentage of the Shares subject to the Stock Appreciation Right as the
Compensation Committee determines.



10.5 Exercise. Each Stock Appreciation Right may be exercised in whole or in part (but
not as to fractional shares) by the delivery of an executed Notice of Exercise in the form
prescribed from time to time by the Compensation Committee, accompanied by payment of any amounts
required to be withheld for tax purposes under Section 14. If a Stock Appreciation Right is
exercised by any person other than the Participant, the Compensation Committee may require
satisfactory evidence that the person exercising the Option has the right to do so. Upon the
exercise of a Stock Appreciation Right, the Participant shall be entitled to receive the SAR
Settlement Value from the Company for each Share as to which the Stock Appreciation Right has been
exercised. The Company shall pay the SAR Settlement Value in Shares valued at Fair Market Value on
the exercise date, in cash or any combination thereof, as determined by the Compensation Committee.
The Compensation Committee may permit a Participant to elect to defer receipt of payment of all or
part of the SAR Settlement Value pursuant to such rules and regulations as may be adopted by the
Compensation Committee or as may be specified in the applicable Award
Agreement, provided any such deferral shall satisfy the requirements of Section 409A of the Code
and any regulations or rulings promulgated by the Internal Revenue Service thereunder.



 









 





10.6 Additional Terms and Conditions. Each Award of Stock Appreciation Rights, and all
Shares issued in settlement of Stock Appreciation Rights, shall be subject to such additional terms
and conditions not inconsistent with the Plan as are prescribed by the Compensation Committee and
set forth in the applicable Award Agreement.



11. Other Stock-Based Awards.




The Compensation Committee may grant to Employees equity-based or equity-related Awards not
otherwise described herein, alone or in tandem with other Awards, in such amounts and subject to
such terms and conditions as the Compensation Committee shall determine from time to time in its
sole discretion (“Other Stock-Based Awards”). Without limiting the generality of the
foregoing, Other Stock-Based Awards may (a) involve the transfer of restricted or unrestricted
shares of Common Stock to Participants, either at the time of grant or thereafter, or payment in
cash or otherwise of amounts based on the value of shares of Common Stock, (b) be subject to
performance-based or service-based conditions, (c) be granted as, or in payment of, a bonus, or to
provide incentives or recognize special achievements or contributions, (d) be designed to comply
with Applicable Laws of jurisdictions other than the United States, and (e) be designed to qualify
for the performance-based compensation exception under Section 162(m); provided, that each Other
Stock-Based Award shall be denominated in, or shall have a value determined by reference to, a
number of shares of Common Stock that is specified at the time of the grant of the Award. Cash
awards, as an element of or supplement to any other Award under the Plan, also may be granted
pursuant to this Section 11.



12. Performance Based Awards.




12.1 Performance Criteria. Awards made pursuant to the Plan may be made subject to the
attainment of performance goals relating to one or more business criteria (“Performance
Criteria”). For purposes of Awards that are intended to qualify for the performance-based
compensation exception under Section 162(m), the Performance Criteria shall (a) be objective
business criteria and otherwise meet the requirements of Section 162(m), including the requirement
that the level or levels of performance targeted by the Compensation Committee result in the
achievement of performance goals being “substantially uncertain,” and (b) relate to one or more of
the following performance measures: (i) revenues or net sales; (ii) earnings before or after
deduction for all or any portion of interest, taxes, depreciation, amortization or other items,
whether or not on a continuing operations or an aggregate or per share basis; (iii) return on
equity, investment, capital or assets; (iv) margins; (v) one or more operating ratios; (vi)
borrowing levels, leverage ratios or credit ratings; (vii) market share; (viii) capital
expenditures; (ix) cash flow; (x) stock price, growth in stockholder value relative to one or more
stock indices or total stockholder return; (xi) budget and expense management; (xii) working
capital turnover and targets; (xiii) sales of particular products or services, market penetration,
geographic expansion or new concept development; (xiv) customer acquisition, expansion and
retention; (xv) acquisitions and divestitures (in whole or in part), joint ventures, strategic
alliances, spin-offs, split-ups and the like; (xvi) reorganizations, recapitalizations,
restructurings and financings (debt or equity); (xvii) transactions that would constitute a Change
in Control; or (xviii) any combination of the foregoing. Performance Criteria measures, and targets
with respect thereto, determined by the Compensation Committee need not be based upon an increase,
a positive or improved result or avoidance of loss.



 









 





12.2 Additional Provisions Applicable to Performance Criteria. Any Performance Criteria
may be used to measure the performance of the Company as a whole or with respect to any business
unit, Subsidiary or business segment of the Company, either individually, alternatively or in any
combination, and may be measured either annually or cumulatively over a period of years, on an
absolute basis or relative to a pre-established target, to previous period results or to a
designated comparison group, in each case as specified by the Compensation Committee in the Award.
To the extent required by Section 162(m), prior to the payment of any compensation under an Award
intended to qualify as performance-based compensation under Section 162(m), the Compensation
Committee shall certify the extent to which any such Performance Criteria and any other material
terms under such Award have been satisfied (other than in cases where such Performance Criteria
relate solely to the increase in the value of the Common Stock). To the extent Section 162(m) is
applicable, the Compensation Committee may not in any event increase the amount of compensation
payable to a Participant subject to Section 162(m) upon the satisfaction of any Performance
Criteria.



12.3 Adjustments to Performance Criteria. The Compensation Committee may, with respect to
any Performance Period, make such adjustments to Performance Criteria as it may deem appropriate to
compensate for, or reflect, (a) asset write-downs or write-ups; (b) litigation, claims, judgments
or settlements; (c) the effect of changes in tax law, accounting principles or other laws or
provisions affecting reported results; (d) discontinued operations and divestitures; (e) mergers,
acquisitions and accruals for reorganization and restructuring programs; and (f) extraordinary or
other unusual or non-recurring item; provided, however, with respect to Awards intended to qualify
as performance-based compensation under Section 162(m), such adjustments shall be made only to the
extent that the Compensation Committee determines that such adjustments may be made without a loss
of deductibility of the compensation includible with respect to the Awards under Section 162(m).



12.4 Performance Periods. The attainment of Performance Criteria shall be measured over
performance periods of one year or more (“Performance Periods”), as may be established by
the Compensation Committee. Performance Criteria for any Performance Period shall be established
not later than the earlier of (a) 90 days after the beginning of the Performance Period, or (b) the
time 25% of the Performance Period has elapsed.



12.5 Right of Recapture. If, at any time after the date on which a Participant has been
granted or becomes vested in or paid an Award pursuant to the achievement of Performance Criteria,
the Compensation Committee determines that the earlier determination as to the achievement of the
Performance Criteria was based on incorrect data and that in fact the Performance Criteria had not
been achieved or had been achieved to a lesser extent than originally determined and a portion of
the Award would not have been granted, vested or paid given the correct data, then (a) any portion
of the Award that was so granted shall be forfeited and any related Shares (or, if such Shares were
disposed of, the cash equivalent) shall be returned to the Company, (b) any portion of the Award
that became so vested shall be deemed to be not vested and any related Shares (or, if such Shares
were disposed of, the cash equivalent) shall be returned to the Company, and (c) any portion of the
Award so paid to the Participant shall be repaid by the Participant to the Company upon notice from
the Company, in each case as and to the extent provided by the Compensation Committee.



12.6 Section 162(m). In the case of an Award intended to be eligible for the
performance-based compensation exception under Section 162(m), the Plan and such Award shall be
construed to the maximum extent permitted by law in a manner consistent with qualifying the Award
for such exception.



 









 





13. Restrictions on Transfer.




13.1 Restrictions on Transfer. Subject to the further provisions of this Section 13.1,
Awards may not be transferred other than by will or by the laws of descent and distribution, and
during a Participant’s lifetime an Award requiring exercise may be exercised only by the
Participant (or in the event of the Participant’s incapacity, the person or persons legally
appointed to act on the Participant’s behalf). No Award or any interest therein shall be subject to
attachment, execution, garnishment, sequestration, the laws of bankruptcy or any other legal or
equitable process. The foregoing notwithstanding, Awards (other than Incentive Stock Options and
Stock Appreciation Rights granted in tandem therewith) may be transferred to one or more
transferees during the lifetime of the Participant, and may be exercised by such transferees in
accordance with the terms of such Award, but only if and to the extent such transfers are permitted
by the Compensation Committee in its discretion, subject to any terms and conditions which the
Committee may impose thereon. If a transfer is approved by the Compensation Committee, the transfer
shall only be effective upon written notice to the Company given in such form and manner as may be
prescribed by the Compensation Committee. Anything herein to the contrary notwithstanding,
transfers of an Award by a Participant for consideration are prohibited.



13.2 Designation and Change of Beneficiary. Each Participant may file with the
Compensation Committee a written designation of one or more persons as the beneficiary who shall be
entitled to receive the rights or amounts payable with respect to an Award due under the Plan upon
the Participant’s death. A Participant may, from time to time, revoke or change his or her
beneficiary designation without the consent of any prior beneficiary by filing a new designation
with the Compensation Committee. The last such designation received by the Compensation Committee
shall be controlling; provided, however, that no designation, or change or revocation thereof,
shall be effective unless received by the Compensation Committee prior to the Participant’s death,
and in no event shall it be effective as of a date prior to such receipt. If no beneficiary
designation is filed by the Participant, the beneficiary shall be deemed to be the Participant’s
estate.



13.3 Provisions Applicable to Transferees. A beneficiary, transferee or other person
claiming any rights under the Plan from or through any Participant shall be subject to all terms
and conditions of the Plan and any Award Agreement or other document applicable to the Participant,
except as otherwise determined by the Compensation Committee, and to any additional terms and
conditions deemed necessary or appropriate by the Compensation Committee. The Compensation
Committee shall have full and exclusive authority to interpret and apply the provisions of the Plan
to transferees to the extent not specifically addressed herein.



14. Withholding and Other Tax Provisions.




14.1 Withholding. The Company may require the Participant to pay to the Company the
amount of any taxes that the Company is required by applicable federal, state, foreign, local or
other law to withhold with respect to the grant, vesting, exercise or settlement of an Award. The
Company shall not be required to issue any Shares under the Plan until such obligations are
satisfied in full. The Compensation Committee may, in its sole and absolute discretion in the
particular case, permit or require a Participant to satisfy his or her tax withholding obligations
by any of the following means (or a combination of any of the following means): (a) by paying cash
to the Company, (b) by having the Company withhold a number of Shares that would otherwise be
issued to the Participant (or become vested in the case of Restricted Shares) having a Fair Market
Value equal to the tax withholding obligations, (c) surrendering a number of Shares the Participant
already owns having a Fair Market Value equal to the tax withholding obligations, or



 









 





(d) entering into such other arrangement as is acceptable to the Compensation Committee in its sole
discretion. The value of any Shares withheld or surrendered may not exceed the employer’s minimum
tax withholding obligation and, to the extent such Shares were acquired by the Participant from the
Company as compensation, the Shares must have been held for the minimum period required by
applicable accounting rules to avoid a charge to the Company’s earnings for financial reporting
purposes. The Company shall also have the right to deduct from any and all cash payments otherwise
owed to a Participant any federal, state, foreign, local or other taxes required to be withheld
with respect to the Participant’s participation in the Plan.



14.2 Required Consent to and Notification of Section 83(b) Election. No election under
Section 83(b) of the Code (to include in gross income in the year of transfer the amounts specified
in Section 83(b) of the Code) or under a similar provision of the laws of a jurisdiction outside
the United States may be made in connection with an Award unless expressly permitted by the terms
of the Award Agreement or by action of the Committee in writing prior to the making of such
election. In any case in which a Participant is so permitted to make such an election, the
Participant shall notify the Company of such election within 10 days of filing notice of the
election with the Internal Revenue Service or other governmental authority, in addition to any
filing and notification required pursuant to regulations issued under Section 83(b) of the Code or
other applicable provisions of any tax law.



15. Effect of Certain Corporate Changes and Changes in Control.




15.1 Basic Adjustment Provisions. In the event the Compensation Committee determines that
any stock dividend, stock split, combination of shares, extraordinary dividend of cash or assets,
merger, consolidation, spin-off, recapitalization (other than the conversion of convertible
securities according to their terms), reorganization, liquidation, dissolution or other similar
corporate change, or any other increase, decrease or change in the Common Stock without receipt or
payment of consideration by the Company, in the Compensation Committee’s sole discretion, affects
the Common Stock such that an adjustment to the Awards or the Plan is determined by the
Compensation Committee to be appropriate in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be made available under the Plan or with respect to an
Award, then the Compensation Committee shall, in such manner as it may deem equitable, adjust any
or all of:




(a) The number and kind of shares of Common Stock (or other securities or property) with respect
to which an Award may be granted under the Plan (including, but not limited to, adjustments of
the limitations in Section 4.1 on the maximum number and kind of Shares which may be issued under
the Plan and the limitations in Section 4.3 on the maximum number of Shares that may be covered
by Awards granted under the Plan to any single Participant in any calendar year);




(b) The number and kind of shares of Common Stock (or other securities or property) subject to
outstanding Awards;




(c) The grant, exercise or other purchase price per Share under any outstanding Awards; and




(d) The terms and conditions of any outstanding Awards (including, without limitation, any
applicable Performance Criteria specified in an Award Agreement).



 









 





Notwithstanding the foregoing, (x) with respect to Incentive Stock Options, any such adjustments
shall be made in accordance with Section 424(h) of the Code, (b) the Committee shall consider
the impact of Section 409A of the Code on any such adjustments, and (z) no such adjustments may
materially change the value of benefits available to a Participant under a previously granted
Award.



15.2 Change in Control. The Compensation Committee may provide with respect to any
transaction that results in a Change in Control, either at the time an Award is granted or by
action taken prior to the occurrence of the Change in Control, that a Change in Control shall have
such effect as is specified by the Compensation Committee, or no effect, as the Compensation
Committee in its sole discretion may provide. Without limiting the foregoing, the Compensation
Committee may provide, either at the time an Award is granted or by action taken prior to the
occurrence of the Change in Control, and without the consent or approval of any Participant, for
one or more of the following actions or combination of actions with respect to some or all
outstanding Awards (which actions may vary among individual Participants and may be subject to such
terms and conditions as the Compensation Committee deems appropriate):




(a) Acceleration of the time at which Awards then outstanding vest and (as applicable) may be
exercised in full for a limited period of time on or before a specified date fixed by the
Compensation Committee (which will permit the Participant to participate with the Common Stock
received upon exercise of an Award in the Change in Control transaction), after which specified
date all unexercised Awards and all rights of Participants thereunder shall terminate;




(b) Acceleration of the time at which Awards then outstanding vest (and, in the case of Options,
Stock Appreciation Rights and other applicable Awards, may be exercised so that such Options,
Stock Appreciation Rights and other applicable Awards may be exercised in full for their then
remaining term);




(c) The assumption of Awards (or any portion thereof) by the successor or survivor corporation,
or a parent or Subsidiary thereof, or the substitution of awards covering the stock of the
successor or survivor corporation, or a parent or Subsidiary thereof, for then outstanding Awards
that have been issued under the Plan, with appropriate adjustments as to the number and kind of
shares and grant, exercise or other purchase prices;




(d) The mandatory surrender to the Company for cancellation of any outstanding Awards and the
purchase of the surrendered Awards for an amount of cash, securities or other property equal to
the excess of the Fair Market Value of the vested shares of Common Stock subject to any such
Award immediately prior to the occurrence of the Change in Control (and such additional portion
of the Award as the Compensation Committee may determine) over the aggregate exercise or other
purchase price (if any) of such shares; and




(e) The termination of any Award (or any portion thereof) concurrently with the closing or other
consummation of the Change in Control transaction. If the Compensation Committee provides that an
Award shall terminate concurrently with the closing or other consummation of the Change in
Control transaction, each Participant shall have the right up to the closing or other
consummation of the transaction to exercise all or any part of the Participant’s vested Awards.



15.3 Determination of Adjustments. All determination of the Compensation Committee
pursuant to this Section 15 shall be conclusive and binding on all persons for all purposes of the
Plan.



 









 





15.4 No Restriction on Right of Company to Effect Corporate Changes. The Plan shall not
affect in any way the right or power of the Company to make or authorize any adjustments,
recapitalizations, reorganizations or other changes in the Company’s capital structure or its
business, any merger or consolidation, any issue of stock or of options, warrants or rights to
purchase stock or of bonds, debentures, preferred or prior preference stocks whose rights are
superior to or affect the Common Stock or the rights thereof or that are convertible into or
exchangeable for Common Stock, the dissolution or liquidation of the Company, any sale or transfer
of all or any part of the assets or business of the Company or any of its Subsidiaries, or any
other corporate act or proceeding, whether of a similar character or otherwise. Except as
specifically provided in this Section 15 and authorized by the Compensation Committee, a
Participant shall have no rights by reason of any such corporate act or proceeding, and no
adjustment by reason thereof shall be made with respect to any outstanding Award or the Plan.



16. Regulatory Compliance.




16.1 Conditions to Obligations of the Company. The Company may, to the extent deemed
necessary or advisable by the Compensation Committee, postpone the issuance or delivery of Shares
or the payment of other benefits under any Award until:




(a) The completion of any registration or other qualification of such Shares under any state or
federal securities law or under the rules and regulations of the Securities and Exchange
Commission or any other governmental regulatory body, which the Compensation Committee shall, in
its sole discretion, deem necessary or advisable;




(b) The admission to listing of, or other required action with respect to, such Shares on any and
all stock exchanges or automated quotation systems upon which the Common Stock or other
securities of the Company are then listed or quoted; and




(c) The compliance with all other requirements of Applicable Laws, as the Compensation Committee
shall, in its sole discretion, deem necessary or advisable;



The Compensation Committee also may require any Participant to make such representations, furnish
such information and comply with or be subject to such other conditions as the Compensation
Committee shall, in its sole discretion, deem necessary or advisable to comply with any
requirements of Applicable Laws in connection with the grant of any Award or the issuance or
delivery of Shares or the payment of other benefits under any Award. Without limiting the
generality of the foregoing, if the Shares offered for sale or sold under the Plan are offered or
sold pursuant to an exemption from registration under federal, state or foreign securities laws,
(x) the Company may require the Participant to represent and agree at the time of grant or
exercise, as the case may be, that such Shares are being acquired for investment, and not with a
view to the sale or distribution thereof, and to make such other representations as are deemed
necessary or appropriate by the Company and its counsel, and (y) the Company may restrict the
transfer of such Shares, issue stop-transfer instructions and legend the certificates representing
such Shares, in each case in such manner as it deems advisable to ensure the availability of any
such exemption.



16.2 Limitation on Company Obligations. The inability of the Company (after reasonable
efforts) to obtain authority from any regulatory body having jurisdiction, which authority is
deemed by the Company’s counsel to be necessary to the lawful issuance or sale of any Awards or
Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or
sell such Awards or Shares as to which such requisite authority shall not have been obtained.
Nothing contained herein shall be construed to impose on the Company any obligation to register for
offering or resale under the Securities Act, or to register or qualify under any other state,



 









 







federal or foreign securities laws, any Shares, securities or interests in a security paid or
issued under, or created by, the Plan, or to continue in effect any such registrations or
qualifications if made, and the Company shall have no liability for any inability or failure to do
so.



16.3 Provisions Applicable to a Change in Control. Anything in this Section 16 to the
contrary notwithstanding, in connection with a Change in Control, the Company shall not take or
cause to be taken any action, and shall not undertake or permit to arise any legal or contractual
obligation, that results or would result in any postponement of the issuance or delivery of Shares
or the payment of benefits under any Award or the imposition of any other conditions on such
issuance, delivery or payment, to the extent that such postponement or other condition would
represent a greater burden on a Participant than existed on the 90th day preceding the effective
date of the Change in Control.



16.4 Exchange Act. Notwithstanding anything contained in the Plan or any Award Agreement
to the contrary, if the consummation of any transaction under the Plan would result in the possible
imposition of liability on a Participant pursuant to Section 16(b) of the Exchange Act, the
Compensation Committee shall have the right, in its sole discretion, but shall not be obligated, to
defer such transaction to the extent necessary to avoid such liability.



17. Amendment or Termination of the Plan.




The Board of Directors may at any time and from time to time amend, suspend or terminate the Plan
in whole or in part; provided that no such amendment may, without the approval of the stockholders
of the Company, increase the number of shares of Common Stock that may be issued under the Plan
(except for adjustments pursuant to Section 15) or effectuate a change for which stockholder
approval is required: (a) in order for the Plan to continue to qualify under Section 422 of the
Code; (b) under the corporate governance standards of any national securities exchange or automated
quotation system applicable to the Company; or (c) for Awards to be eligible for the
performance-based compensation exception under Section 162(m). In addition, no termination or
amendment of the Plan shall materially alter or adversely affect the rights of any Participant in
any outstanding Awards, without the consent of the Participant to whom the Awards have been
granted.



18. Term of the Plan.




The Plan shall continue until terminated by the Board of Directors pursuant to Section 17 or as
otherwise set forth in the Plan, and no further Awards shall be made hereunder after the date of
such termination. Unless earlier terminated, the Plan shall terminate 10 years after its initial
approval by the Board of Directors (provided that Awards granted before termination shall continue
in accordance with their terms).



19. No Right to Awards or Continued Employment.




No person shall have any claim or right to receive grants of Awards under the Plan, and neither the
Plan nor any action taken or omitted to be taken hereunder shall create or confer on any
Participant the right to continued employment with the Company or its Subsidiaries or interfere
with or to limit in any way the right of the Company or its Subsidiaries to terminate the
employment of any Participant at any time or for any reason. The loss of any existing or potential
profit in Awards shall not constitute an element of damages in the event of the termination of the
employment of any Participant for any reason, even if the termination is in violation of an
obligation of the Company or its Subsidiaries to the Participant. No Participant shall have any
rights as a stockholder with respect to any Shares covered by or relating to any Award until the
date of the issuance of a stock certificate with respect to such Shares.



 









 





20. Effect of Plan Upon Other Awards and Compensation Plans.




Nothing in the Plan shall be construed to limit the right of the Company or any of its Subsidiaries
(a) to establish any other forms of incentives or compensation for Employees, or (b) to grant or
assume options, restricted stock or other equity-based awards otherwise than under the Plan in
connection with any proper corporate purpose, including, but not by way of limitation, the grant or
assumption of options, restricted stock or other awards in connection with the acquisition of the
business, securities or assets of any corporation, firm or business. The adoption of the Plan shall
not affect any other compensation or incentive plans in effect for the Company or any of its
Subsidiaries, and no payment under the Plan shall be taken into account in determining any benefits
under any pension, retirement, profit sharing, group insurance or other benefit plan of the Company
except as otherwise specifically provided in such other plan.



21. General Provisions.




21.1 Other Documents. All documents prepared, executed or delivered in connection with
the Plan shall be, in substance and form, as established and modified by the Compensation Committee
or by persons under its direction and supervision; provided, however, that all such documents shall
be subject in every respect to the provisions of the Plan, and in the event of any conflict between
the terms of any such document and the Plan, the provisions of the Plan shall prevail.



21.2 No Fractional Shares. No fractional Shares shall be issued or delivered pursuant to
the Plan or any Award. The Compensation Committee shall determine whether cash or other property
shall be issued or paid in lieu of fractional shares of Common Stock or whether such fractional
shares of Common Stock and any rights thereto shall be forfeited or otherwise eliminated (including
by rounding to the nearest whole Share).



21.3 Payments in the Event of Forfeitures. Unless otherwise determined by the
Compensation Committee or otherwise specified in the applicable Award Agreement, in the event of
the forfeiture of an Award with respect to which a Participant paid cash consideration, the
Participant shall be repaid the amount of such cash consideration within 10 days of the date of
forfeiture or as soon thereafter as practicable.



21.4 Limitation on Repricing. The Compensation Committee shall not, without the approval
of the stockholders of the Company, amend or replace previously granted Options or Stock
Appreciation Rights in a transaction that constitutes a “repricing,” as such term is used in
Section 303A.08 of the Listed Company Manual of the New York Stock Exchange or the rules and
regulations of the Securities and Exchange Commission.



21.5 Misconduct of a Participant. Notwithstanding any other provision of the Plan or an
Award Agreement, if a Participant commits fraud or dishonesty toward the Company or wrongfully uses
or discloses any trade secret, confidential data or other information proprietary to the Company,
or intentionally takes any other action materially inimical to the best interests of the Company,
as determined by the Compensation Committee, in its sole and absolute discretion, such Participant
shall forfeit all rights and benefits under the Plan and any outstanding Awards.



 









 





21.6 Restrictive Legends. The certificates for Shares delivered under the Plan shall
include such legends, and shall be subject to such stop-transfer instructions, as the Compensation
Committee deems appropriate to reflect any restrictions on the Shares.



21.7 Successors in Interest. The provisions of the Plan, the terms and conditions of any
Award and the actions of the Compensation Committee shall be binding upon the successors and
assigns of the Company and permitted successors and assigns, heirs, executors, administrators and
other legal representatives of Participants.



21.8 Severability. If any provision of the Plan or any Award is determined to be invalid,
illegal or unenforceable in any jurisdiction, or as to any person, or would disqualify the Plan or
any Award under any law deemed applicable by the Compensation Committee, such provision shall be
construed or deemed amended to conform to Applicable Laws, or, if it cannot be so construed or
deemed amended without, in the Compensation Committee’s determination, 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.



21.9 Headings. The headings of sections and subsections herein are included solely for
convenience of reference and shall not affect the meaning of any of the provisions of the Plan.



21.10 Governing Law. To the extent not preempted by federal law, the Plan and all rights
hereunder shall be governed by and construed in accordance with the laws of the State of Delaware,
without reference to rules relating to conflicts of law.



21.11 Compliance With Section 162(m). If any provision of the Plan or any Award Agreement
relating to an Award that is designated as intended to comply with Section 162(m) does not comply
or is inconsistent with the requirements of Section 162(m), such provision shall be construed or
deemed amended to the extent necessary to conform to such requirements.



21.12 Compliance With Section 409A. Awards under the Plan are intended either to (a)
qualify as compensatory arrangements that do not constitute “deferred compensation” subject to
Section 409A of the Code, or (b) satisfy the requirements of Section 409A of the Code so that
Participants will not be liable for the payment of interest or additional tax thereunder, and the
Plan and all Awards shall be construed accordingly. Any provision of the Plan or an Award Agreement
that would cause the grant of an Award, or the payment, settlement or deferral thereof, to fail to
satisfy Section 409A of the Code shall be amended to comply with Section 409A of the Code on a
timely basis, which may be made on a retroactive basis, in accordance with regulations and other
guidance issued under Section 409A of the Code. To the extent necessary to comply with Section 409A
of the Code, if a Participant is a specified employee, as defined in Treas. Reg. 1.409A-1(i), and
any stock of the Company or of any affiliate is publicly traded on an established securities market
or otherwise, no payment or benefit that is subject to Section 409A of the Code shall be made under
this Plan on account of the Participant’s separation from service with the Company or its
Subsidiaries within the meaning of Section 409A(a)(2)(A)(i) of the Code before the date that is the
first day of the seventh month beginning after the date the Participant’s separation from service
(or, if earlier, the date of death of the Participant or any other date permitted under Section
409A of the Code). To the extent necessary to comply with Section 409A Code, no Award that is a
Nonstatutory Option or a Stock Appreciation Right shall contain or be amended to contain a
“deferral feature” or an “additional deferral feature” within the meaning and usage of those terms
under Section 409A of the Code and the administrative guidance thereunder.



 









 





21.13 Administration of the Plan in Foreign Countries. The Compensation Committee may
take any action consistent with the terms of the Plan, either before or after an Award has been
granted, which the Compensation Committee deems necessary or advisable in order for the
administration of the Plan and the grant of Awards thereunder to comply with the Applicable Laws of
any foreign country, including but not limited to, modifying or amending the terms and conditions
governing any Awards, modifying exercise procedures and other terms and procedures and establishing
local country plans as sub-plans to the Plan.



21.14 Effective Date. The Plan shall become effective upon adoption by the Board of
Directors, subject to approval by the stockholders of the Company. The Plan will be submitted for
the approval of the Company’s stockholders within 12 months of the date of the Board of Director’s
initial adoption of the Plan. No Award may be exercised to any extent unless and until the Plan is
so approved by the stockholders, and if such approval has not been obtained by the end of said
12-month period, the Plan and all Awards theretofore granted shall thereupon be canceled and become
null and void.



 









 





Exhibit A




DEFINITIONS




The following terms, when used in the Plan, shall have the meanings, and shall be subject to the
provisions, set forth below:



“Award” means an Option, Restricted Stock award, Restricted Stock Unit award, Stock
Appreciation Right or Other Stock-Based Award granted to a Participant pursuant to the Plan.



“Award Agreement” means any written agreement, contract or other instrument or document
evidencing an Award.



“Applicable Laws” means the requirements relating to the administration of stock option and
restricted stock plans under U.S. state corporate laws, U.S. federal and state securities laws, the
Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the
applicable laws of any other country or jurisdiction where Awards are granted under the Plan.



“Board of Directors” means the Board of Directors of the Company.



“Cashless Exercise” means the exercise of an Option through (a) the delivery of irrevocable
instructions to a broker (i) to make a sale of a number of Shares issuable upon the exercise of the
Option that results in proceeds in the amount required to pay the aggregate Option Price for all
the shares as to which the Option is being exercised (and any required withholding tax, if
authorized by the Compensation Committee) and (ii) to deliver such proceeds to the Company in
satisfaction of such aggregate Option Price (and withholding tax obligation, if applicable), or (b)
any other surrender to the Company of Shares issuable upon the exercise of the Option or vested
Options in satisfaction of such aggregate Option Price (and withholding tax obligation, if
applicable).



“Cause” means, with respect to any Participant, (a) ”cause” as defined in an employment or
consulting agreement applicable to the Participant, or (b) in the case of a Participant who does
not have an employment or consulting agreement that defines “cause”: (i) any act or omission that
constitutes a material breach by the Participant of any of his or her obligations under any
agreement with the Company or any of its Subsidiaries; (ii) the willful and continued failure or
refusal of the Participant substantially to perform the duties required of him or her as an
Employee, or performance significantly below the level required or expected of the Participant, as
determined by the Compensation Committee; (iii) the Participant’s willful misconduct, gross
negligence or breach of fiduciary duty that, in each case or in the aggregate, results in material
harm to the Company or any of its Subsidiaries; (iv) any willful violation by the Participant of
any federal, state or foreign law or regulation applicable to the business of the Company or any of
its Subsidiaries, or the Participant’s commission of any felony or other crime involving moral
turpitude, or the Participant’s commission of an act of fraud, embezzlement or misappropriation; or
(iv) any other misconduct by the Participant that is materially injurious to the financial
condition or business reputation of, or is otherwise materially injurious to, the Company or any of
its Subsidiaries. The Compensation Committee shall determine whether there has been a termination
of employment for Cause, and each Participant shall agree, by acceptance of the grant of an Award
and the execution of an Award Agreement, that the Compensation Committee’s determination is
conclusive and binding on all persons for all purposes of the Plan.



 









 





“Change in Control” means the occurrence of any one of the following:




(a) Any election of directors of the Company takes place (whether by the directors then in office
or by the stockholders at a meeting or by written consent) and a majority of the directors in
office following such election are individuals who were not nominated by a vote of two-thirds of
the members of the Board of Directors immediately preceding such election;




(b) One or more occurrences or events as a result of which any “person” (as such term is used in
Sections 13(d) and 14(d)(2) of the Exchange Act) becomes the “beneficial owner” (as such term is
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 30% or more of the
combined voting power of the Company’s then outstanding securities;




(c) A merger or consolidation of the Company with, or an acquisition of the Company or all or
substantially all of its assets by, any other entity, other than a merger, consolidation or
acquisition in which the individuals who were members of the Board of Directors of the Company
immediately prior to such transaction continue to constitute a majority of the Board of Directors
of the surviving corporation (or, in the case of an acquisition involving a holding company,
constitute a majority of the Board of Directors of the holding company) for a period of not less
than 12 months following the closing of such transaction; or




(d) The stockholders of the Company approve a plan of complete liquidation or dissolution of the
Company.



Notwithstanding the foregoing, solely with respect to any Award that is subject to Section 409A of
the Code and payable upon a Change in Control, the term “Change in Control” shall mean an event
described in one or more of the foregoing provisions of this definition, but only if it also
constitutes a “change in control event” within the meaning of Treas. Reg. 1.409A-3(i)(5).



“Code” means the Internal Revenue Code of 1986, as amended, including the rules and
regulations promulgated thereunder.



“Common Stock” means shares of Common Stock, par value $0.01 per share, of the Company and
any other equity securities of the Company that may be substituted or resubstituted for such Common
Stock pursuant to Section 15.



“Company” means Newpark Resources, Inc., a Delaware corporation, and any successor.



“Compensation Committee” means the Compensation Committee of the Board of Directors.



“Date of Grant” means the date of grant of an Award as set forth in the applicable Award
Agreement.



“Disqualifying Disposition” has the meaning set forth in Section 7.8.3.



“Disability” means, with respect to any Participant who has an employment or consulting
agreement that defines such term or a similar term, “disability” as defined in such agreement or,
in the case of a Participant who does not have an employment or consulting agreement that defines
such term or a similar term, the inability of the Participant to perform substantially all his
duties as an Employee by reason of illness or incapacity for a period of more than six months, or
six months in the aggregate during any 12-month period, established by medical evidence reasonably
satisfactory to the Compensation Committee.



 









 





“Employee” means any person who is employed by the Company or one of its Subsidiaries,
provided, however, that the term “Employee” does not include a non-employee Director or an
individual performing services for the Company or a Subsidiary who is treated for tax purposes as
an independent contractor at the time of performance of the services, whether such person is so
employed at the time this Plan is adopted or becomes so employed subsequent to the adoption of this
Plan. For purposes of awards of Incentive Stock Options, “Employee” means any person, including an
officer, who is so employed by the Company or any “parent corporation” or “subsidiary corporation”
of the Company as defined in Sections 424(e) and 424(f) of the Code, respectively. An Employee
shall not cease to be an Employee in the case of (a) any leave of absence approved by the Company,
or (b) transfers between locations of the Company or between the Company, any of its Subsidiaries
or any successor.



“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.



“Fair Market Value” means, as of any given date, the value of a share of Common Stock
determined as follows:




(a) If the Common Stock is listed on an established stock exchange or a national market system,
the Fair Market Value of a share of Common Stock shall be the closing sales price for such stock
(or the closing bid, if no sales were reported), as quoted on the principal exchange or system on
which the Common Stock is then traded and as reported in The Wall Street Journal or such other
source as the Compensation Committee deems reliable, on such date or, if such date is not a
trading day, on the trading day immediately preceding such date;




(b) If the Common Stock is regularly quoted by a recognized securities dealer but selling prices
are not reported, the Fair Market Value of a share of Common Stock shall be the mean between the
high bid and low asked prices for the Common Stock, as reported in The Wall Street Journal or
such other source as the Compensation Committee deems reliable, on such date or, if such date is
not a trading day, on the trading day immediately preceding such date; or




(c) In all other cases, the “fair market value” as determined by the Compensation Committee in
good faith and using such financial sources as it deems relevant and reliable (but in any event
not less than fair market value within the meaning of Section 409A of the Code).



“Incentive Stock Option” means an Option which qualifies as an “incentive stock option”
under Section 422 of the Code and is designated as an Incentive Stock Option by the Compensation
Committee. For avoidance of doubt, no Option awarded under the Plan will be an Incentive Stock
Option unless the Compensation Committee expressly provides for Incentive Stock Option treatment in
the applicable Award Agreement.



“Non-Qualified Stock Option” means an Option which is not an “incentive stock option” under
Section 422 of the Code and includes any Option which is designated as a Non-Qualified Stock Option
by the Compensation Committee.



“Option” means a right to purchase Shares upon payment of the Option Price.



“Option Price” means the purchase price per Share deliverable upon the exercise of an
Option in order for the Option (or applicable portion thereof) to be exchanged for Shares.



“Other Stock-Based Awards” has the meaning set forth in Section 11.



 









 





“Participant” means any Employee who has been granted an Award.



“Performance Criteria” has the meaning set forth in Section 12.1 of the Plan.



“Performance Period” has the meaning set forth in Section 12.4 of the Plan.



“Plan” means the Newpark Resources, Inc. 2006 Equity Incentive Plan.



“Restricted Stock” means Shares awarded to a Participant under Section 8, the rights of
ownership of which are subject to restrictions prescribed by the Compensation Committee.



“Restricted Stock Unit” means a right granted to a Participant under Section 9 to receive
Shares upon the satisfaction of Performance Criteria or other criteria specified by the
Compensation Committee, such as continuous service, at the end of a specified Restriction Period.



“Restriction Period” means the period or periods during which any forfeiture or vesting
restrictions, restrictions on transferability or other restrictions shall apply to any Award, as
determined by the Compensation Committee in its discretion, consistent with the provisions of the
Plan.



“Rule 16b-3” means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in
effect when discretion is being exercised with respect to the Plan.



“SAR Settlement Value” has the meaning set forth in Section 10.2.



“Section 16(b) Insider” means an officer or director of the Company or any other person
whose transactions in the Company’s Common Stock are subject to Section 16 of the Exchange Act.



“Section 162(m)” means Section 162(m) of the Code and the regulations promulgated
thereunder.



“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.



“Shares” means shares of the Company’s Common Stock reserved for issuance under the Plan,
as adjusted pursuant to Sections 15, and any successor security.



“Stock Appreciation Right” means a right granted to a Participant under Section 10 that
entitles the Participant to receive a payment in Shares, cash or a combination thereof measured by
the increase in the Fair Market Value of a Share over the exercise price of the Stock Appreciation
Right, as established by the Compensation Committee on the Date of Grant.



“Subsidiary” means any “subsidiary” within the meaning of Rule 405 under the Securities
Act; provided, however, for purposes of Awards of Incentive Stock Options, “Subsidiary” means any
entity that is a subsidiary of the Company within the meaning of Section 424(f) of the Code”, and
for purposes of Awards of Nonstatutory Options, “Subsidiary” means a corporation or other entity in
an chain of corporations and/or other entities in which the Company has a “controlling interest”
within the meaning of Treas. Reg. 1.414(c)-2(b)(2)(i), but using the threshold of 50% ownership
wherever 80% appears.