EX-10.1






 





Exhibit 10.1



 




    COMMERCIAL
    VEHICLE GROUP, INC.

    



 




    THIRD
    AMENDED AND RESTATED

    





    EQUITY
    INCENTIVE PLAN



 


		
	
    1.  
	
    Purpose.




 



    This plan shall be known as the Commercial Vehicle Group, Inc.
    Third Amended and Restated Equity Incentive Plan (the
    “Plan”). The purpose of the Plan shall be to promote
    the long-term growth and profitability of Commercial Vehicle
    Group, Inc. (the “Company”) and its Subsidiaries by
    (i) providing certain directors, officers and employees of,
    and certain other individuals who perform services for, or to
    whom an offer of employment has been extended by, the Company
    and its Subsidiaries with incentives to maximize stockholder
    value and otherwise contribute to the success of the Company and
    (ii) enabling the Company to attract, retain and reward the
    best available persons for positions of responsibility. Grants
    of incentive or non-qualified stock options, stock appreciation
    rights (“SARs”), restricted stock units, restricted
    stock, performance awards or any combination of the foregoing
    may be made under the Plan.



 


		
	
    2.  
	
    Definitions.




 



    (a) “Board of Directors” and “Board”
    mean the board of directors of the Company.



 



    (b) “Cause” shall, with respect to any
    participant, have the equivalent meaning as the term
    “cause” or “for cause” in any employment,
    consulting, or independent contractor’s agreement between
    the participant and the Company or any Subsidiary, or in the
    absence of such an agreement that contains such a defined term,
    shall mean the occurrence of one or more of the following events:



 



    (i) Conviction of any felony or any crime or offense lesser
    than a felony involving the property of the Company or a
    Subsidiary; or



 



    (ii) Deliberate or reckless conduct that has caused
    demonstrable and serious injury to the Company or a Subsidiary,
    monetary or otherwise, or any other serious misconduct of such a
    nature that the participant’s continued relationship with
    the Company or a Subsidiary may reasonably be expected to
    adversely affect the business or properties of the Company or
    any Subsidiary; or



 



    (iii) Willful refusal to perform or reckless disregard of
    duties properly assigned, as determined by the Company; or



 



    (iv) Breach of duty of loyalty to the Company or a
    Subsidiary or other act of fraud or dishonesty with respect to
    the Company or a Subsidiary.



 



    For purposes of this Section 2(b), any good faith
    determination of “Cause” made by the Committee shall
    be binding and conclusive on all interested parties.



 



    (c) “Change in Control” means the occurrence of
    one of the following events:



 



    (i) if any “person” or “group” as those
    terms are used in Sections 13(d) and 14(d) of the Exchange
    Act or any successors thereto, other than an Exempt Person, is
    or becomes the “beneficial owner” (as defined in
    Rule 13d-3
    under the Exchange Act or any successor thereto), directly or
    indirectly, of securities of the Company representing more than
    50% of either the then outstanding shares or the combined voting
    power of the then outstanding securities of the Company; or



 



    (ii) during any period of two consecutive years,
    individuals who at the beginning of such period constitute the
    Board and any new directors whose election by the Board or
    nomination for election by the Company’s stockholders was
    approved by at least two-thirds of the directors then still in
    office who either were directors at the beginning of the period
    or whose election was previously so approved, cease for any
    reason to constitute a majority thereof; or




    

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    (iii) the consummation of a merger or consolidation of the
    Company with any other corporation or other entity, other than a
    merger or consolidation which would result in all or a portion
    of the voting securities of the Company outstanding immediately
    prior thereto continuing to represent (either by remaining
    outstanding or by being converted into voting securities of the
    surviving entity) more than 50% of the combined voting power of
    the voting securities of the Company or such surviving entity
    outstanding immediately after such merger or
    consolidation; or



 



    (iv) the consummation of a plan of complete liquidation of
    the Company or an agreement for the sale or disposition by the
    Company of all or substantially all the Company’s assets,
    other than a sale to an Exempt Person.



 



    (d) “Code” means the Internal Revenue Code of
    1986, as amended.



 



    (e) “Committee” means the Compensation Committee
    of the Board, which shall consist solely of two or more members
    of the Board, and each member of the Committee shall be
    (i) a “non-employee director” within the meaning
    of
    Rule 16b-3
    under the Exchange Act, unless administration of the Plan by
    “non-employee directors” is not then required in order
    for exemptions under
    Rule 16b-3
    to apply to transactions under the Plan, (ii) an
    “outside director” within the meaning of
    Section 162(m) of the Code, unless administration of the
    Plan by “outside directors” is not then required in
    order to qualify for tax deductibility under Section 162(m)
    of the Code, and (iii) independent, as defined by the rules
    of the Nasdaq Stock Market or any national securities exchange
    on which any securities of the Company are listed for trading,
    and if not listed for trading, by the rules of the Nasdaq Stock
    Market.



 



    (f) “Common Stock” means the Common Stock, par
    value $.01 per share, of the Company, and any other shares into
    which such stock may be changed by reason of a recapitalization,
    reorganization, merger, consolidation or any other change in the
    corporate structure or capital stock of the Company.



 



    (g) “Competition” is deemed to occur if a person
    whose employment with the Company or its Subsidiaries has
    terminated obtains a position as a full-time or part-time
    employee of, as a member of the board of directors of, or as a
    consultant or advisor with or to, or acquires an ownership
    interest in excess of 2% of, a corporation, partnership, firm or
    other entity that engages, in any state in which the Company or
    any Subsidiary is doing business at the time of such
    person’s termination of employment, in any business which
    competes with any product or service of the Company or any
    Subsidiary.



 



    (h) “Disability” means a disability that would
    entitle an eligible participant to payment of monthly disability
    payments under any Company disability plan or any agreement
    between the eligible participant and the Company as otherwise
    determined by the Committee.



 



    (i) “Exchange Act” means the Securities Exchange
    Act of 1934, as amended.



 



    (j) “Exempt Person” means (i) Onex
    Corporation, (ii) any person, entity or group controlled by
    or under common control with any party included in clause (i),
    or (iii) any employee benefit plan of the Company or any
    Subsidiary, or a trustee or other administrator or fiduciary
    holding securities under an employee benefit plan of the Company
    or any Subsidiary.



 



    (k) “Family Member” has the meaning given to such
    term in General Instructions A.1(a)(5) to
    Form S-8
    under the Securities Act of 1933, as amended, and any successor
    thereto.



 



    (l) “Fair Market Value” of a share of Common
    Stock of the Company means, as of the date in question, the
    officially-quoted closing selling price of the stock (or if no
    selling price is quoted, the bid price) on the principal
    securities exchange on which the Common Stock is then listed for
    trading (including for this purpose the Nasdaq Stock Market)
    (the “Market”) for the applicable trading day or, if
    the Common Stock is not then listed or quoted in the Market, the
    Fair Market Value shall be the fair value of the Common Stock
    determined in good faith by the Board; provided, however, that
    when shares received upon exercise of an option are immediately
    sold in the open market, the net sale price received may be used
    to determine the Fair Market Value of any shares used to pay the
    exercise price or applicable withholding taxes and to compute
    the withholding taxes.



 



    (m) “Good Reason” shall, with respect to any
    participant, have the equivalent meaning as the term “good
    reason” or “for good reason” in any employment,
    consulting, or independent contractor’s agreement between
    the




    

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    participant and the Company or any Subsidiary, or in the absence
    of such an agreement that contains such a defined term, shall
    mean (i) the assignment to the participant of any duties
    materially inconsistent with the participant’s duties or
    responsibilities as assigned by the Company (or a Subsidiary),
    or any other action by the Company (or a Subsidiary) which
    results in a material diminution in such duties or
    responsibilities, excluding for this purpose any isolated,
    insubstantial and inadvertent actions not taken in bad faith and
    which are remedied by the Company (or a Subsidiary) promptly
    after receipt of notice thereof given by the participant;
    (ii) any material failure by the Company (or a Subsidiary)
    to make any payment of compensation or pay any benefits to the
    participant that have been agreed upon between the Company (or a
    Subsidiary) and the participant in writing, other than an
    isolated, insubstantial and inadvertent failure not occurring in
    bad faith and which is remedied by the Company (or a Subsidiary)
    promptly after receipt of notice thereof given by the
    participant; or (iii) the Company’s (or
    Subsidiary’s) requiring the participant to be based at any
    office or location outside of fifty miles from the location of
    employment or service as of the date of award, except for travel
    reasonably required in the performance of the participant’s
    responsibilities.



 



    (n) “Incentive Stock Option” means an option
    conforming to the requirements of Section 422 of the Code
    and any successor thereto.



 



    (o) “Non-Employee Director” has the meaning given
    to such term in
    Rule 16b-3
    under the Exchange Act and any successor thereto.



 



    (p) “Non-qualified Stock Option” means any stock
    option other than an Incentive Stock Option.



 



    (q) “Other Company Securities” mean securities of
    the Company other than Common Stock, which may include, without
    limitation, unbundled stock units or components thereof,
    debentures, preferred stock, warrants and securities convertible
    into or exchangeable for Common Stock or other property.



 



    (r) “Performance Award” means a right, granted to
    a participant under Section 12 hereof, to receive awards
    based upon performance criteria specified by the Committee.



 



    (s) “Retirement” means retirement as defined
    under any Company pension plan or retirement program or
    termination of one’s employment on retirement with the
    approval of the Committee.



 



    (t) “Share” means a share of Common Stock that
    may be issued pursuant to the Plan.



 



    (u) “Subsidiary” means a corporation or other
    entity of which outstanding shares or ownership interests
    representing 50% or more of the combined voting power of such
    corporation or other entity entitled to elect the management
    thereof, or such lesser percentage as may be approved by the
    Committee, are owned directly or indirectly by the Company.



 


		
	
    3.  
	
    Administration.




 



    The Plan shall be administered by the Committee; provided that
    the Board may, in its discretion, at any time and from time to
    time, resolve to administer the Plan, in which case the term
    “Committee” shall be deemed to mean the Board for all
    purposes herein. Subject to the provisions of the Plan, the
    Committee shall be authorized to (i) select persons to
    participate in the Plan, (ii) determine the form and
    substance of grants made under the Plan to each participant, and
    the conditions and restrictions, if any, subject to which such
    grants will be made, (iii) certify that the conditions and
    restrictions applicable to any grant have been met,
    (iv) modify the terms of grants made under the Plan,
    (v) interpret the Plan and grants made thereunder,
    (vi) make any adjustments necessary or desirable in
    connection with grants made under the Plan to eligible
    participants located outside the United States and
    (vii) adopt, amend, or rescind such rules and regulations,
    and make such other determinations, for carrying out the Plan as
    it may deem appropriate. Decisions of the Committee on all
    matters relating to the Plan shall be in the Committee’s
    sole discretion and shall be conclusive and binding on all
    parties. The validity, construction, and effect of the Plan and
    any rules and regulations relating to the Plan shall be
    determined in accordance with applicable federal and state laws
    and rules and regulations promulgated pursuant thereto. No
    member of the Committee and no officer of the Company shall be
    liable for any action taken or omitted to be taken by such
    member, by any other member of the Committee or by any officer
    of the Company in connection with the performance of duties
    under the Plan, except for such person’s own willful
    misconduct or as expressly provided by statute.




    

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    The expenses of the Plan shall be borne by the Company. The Plan
    shall not be required to establish any special or separate fund
    or make any other segregation of assets to assume the payment of
    any award under the Plan, and rights to the payment of such
    awards shall be no greater than the rights of the Company’s
    general creditors.



 


		
	
    4.  
	
    Shares Available
    for the Plan; Limit on Awards.




 



    Subject to adjustments as provided in Section 19, the
    number of Shares that may be issued pursuant to the Plan as
    awards shall not exceed 3,200,000 in the aggregate. Such Shares
    may be in whole or in part authorized and unissued or held by
    the Company as treasury shares. If any grant under the Plan
    expires or terminates unexercised, becomes unexercisable or is
    forfeited as to any Shares, or is tendered or withheld as to any
    Shares in payment of the exercise price of the grant or the
    taxes payable with respect to the exercise, then such
    unpurchased, forfeited, tendered or withheld Shares shall
    thereafter be available for further grants under the Plan.



 



    Without limiting the generality of the foregoing provisions of
    this Section 4 or the generality of the provisions of
    Sections 3, 6 or 21 or any other section of this Plan, the
    Committee may, at any time or from time to time, and on such
    terms and conditions (that are consistent with and not in
    contravention of the other provisions of this Plan) as the
    Committee may, in its sole discretion, determine, enter into
    agreements (or take other actions with respect to the options)
    for new options containing terms (including exercise prices)
    more (or less) favorable than the outstanding options.



 



    In any one calendar year, the Committee shall not grant to any
    one participant awards to purchase or acquire a number of Shares
    in excess of twenty percent (20%) of the total number of Shares
    authorized under the Plan pursuant to this Section 4.



 


		
	
    5.  
	
    Participation.




 



    Participation in the Plan shall be limited to those directors
    (including Non-Employee Directors), officers (including
    non-employee officers) and employees of, and other individuals
    performing services for, or to whom an offer of employment has
    been extended by, the Company and its Subsidiaries selected by
    the Committee (including participants located outside the United
    States). Nothing in the Plan or in any grant thereunder shall
    confer any right on a participant to continue in the employ as a
    director or officer of or in the performance of services for the
    Company or shall interfere in any way with the right of the
    Company to terminate the employment or performance of services
    or to reduce the compensation or responsibilities of a
    participant at any time. By accepting any award under the Plan,
    each participant and each person claiming under or through him
    or her shall be conclusively deemed to have indicated his or her
    acceptance and ratification of, and consent to, any action taken
    under the Plan by the Company, the Board or the Committee.



 



    Incentive Stock Options or Non-qualified Stock Options, SARs,
    restricted stock units, restricted stock awards, performance
    awards, or any combination thereof, may be granted to such
    persons and for such number of Shares as the Committee shall
    determine (such individuals to whom grants are made being
    sometimes herein called “optionees” or
    “grantees,” as the case may be). Determinations made
    by the Committee under the Plan need not be uniform and may be
    made selectively among eligible individuals under the Plan,
    whether or not such individuals are similarly situated. A grant
    of any type made hereunder in any one year to an eligible
    participant shall neither guarantee nor preclude a further grant
    of that or any other type to such participant in that year or
    subsequent years.



 


		
	
    6.  
	
    Incentive
    and Non-qualified Options and SARs.




 



    The Committee may from time to time grant to eligible
    participants Incentive Stock Options, Non-qualified Stock
    Options, or any combination thereof; provided that the Committee
    may grant Incentive Stock Options only to eligible employees of
    the Company or its subsidiaries (as defined for this purpose in
    Section 424(f) of the Code or any successor thereto). The
    options granted shall take such form as the Committee shall
    determine, subject to the following terms and conditions.



 



    It is the Company’s intent that Non-qualified Stock Options
    granted under the Plan not be classified as Incentive Stock
    Options, that Incentive Stock Options be consistent with and
    contain or be deemed to contain all




    

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    provisions required under Section 422 of the Code and any
    successor thereto, and that any ambiguities in construction be
    interpreted in order to effectuate such intent. If an Incentive
    Stock Option granted under the Plan does not qualify as such for
    any reason, then to the extent of such non-qualification, the
    stock option represented thereby shall be regarded as a
    Non-qualified Stock Option duly granted under the Plan, provided
    that such stock option otherwise meets the Plan’s
    requirements for Non-qualified Stock Options.



 



    (a) Price. The price per Share deliverable upon the
    exercise of each option (“exercise price”) shall be
    established by the Committee, except that the exercise price may
    not be less than 100% of the Fair Market Value of a share of
    Common Stock as of the date of grant of the option, and in the
    case of the grant of any Incentive Stock Option to an employee
    who, at the time of the grant, owns more than 10% of the total
    combined voting power of all classes of stock of the Company or
    any of its Subsidiaries, the exercise price may not be less than
    110% of the Fair Market Value of a share of Common Stock as of
    the date of grant of the option, in each case unless otherwise
    permitted by Section 422 of the Code or any successor
    thereto.



 



    (b) Payment. Options may be exercised, in whole or
    in part, upon payment of the exercise price of the Shares to be
    acquired. Unless otherwise determined by the Committee, payment
    shall be made (i) in cash (including check, bank draft,
    money order or wire transfer of immediately available funds),
    (ii) by delivery of outstanding shares of Common Stock with
    a Fair Market Value on the date of exercise equal to the
    aggregate exercise price payable with respect to the
    options’ exercise, (iii) by simultaneous sale through
    a broker reasonably acceptable to the Committee of Shares
    acquired on exercise, as permitted under Regulation T of
    the Federal Reserve Board, (iv), if the Shares are traded on an
    established securities market at the time of exercise, by
    authorizing the Company to withhold from issuance a number of
    Shares issuable upon exercise of the options which, when
    multiplied by the Fair Market Value of a share of Common Stock
    on the date of exercise, is equal to the aggregate exercise
    price payable with respect to the options so exercised, or
    (v) by any combination of the foregoing.



 



    In the event a grantee elects to pay the exercise price payable
    with respect to an option pursuant to clause (ii) above,
    (A) only a whole number of share(s) of Common Stock (and
    not fractional shares of Common Stock) may be tendered in
    payment, (B) such grantee must present evidence acceptable
    to the Company that he or she has owned any such shares of
    Common Stock tendered in payment of the exercise price (and that
    such tendered shares of Common Stock have not been subject to
    any substantial risk of forfeiture) for at least six months
    prior to the date of exercise, and (C) Common Stock must be
    delivered to the Company. Delivery for this purpose may, at the
    election of the grantee, be made either by (A) physical
    delivery of the certificate(s) for all such shares of Common
    Stock tendered in payment of the price, accompanied by duly
    executed instruments of transfer in a form acceptable to the
    Company, or (B) direction to the grantee’s broker to
    transfer, by book entry, such shares of Common Stock from a
    brokerage account of the grantee to a brokerage account
    specified by the Company. When payment of the exercise price is
    made by delivery of Common Stock, the difference, if any,
    between the aggregate exercise price payable with respect to the
    option being exercised and the Fair Market Value of the shares
    of Common Stock tendered in payment (plus any applicable taxes)
    shall be paid in cash. No grantee may tender shares of Common
    Stock having a Fair Market Value exceeding the aggregate
    exercise price payable with respect to the option being
    exercised (plus any applicable taxes).



 



    In the event a grantee elects to pay the exercise price payable
    with respect to an option pursuant to clause (iv) above,
    (A) only a whole number of Share(s) (and not fractional
    Shares) may be withheld in payment and (B) such grantee
    must present evidence acceptable to the Company that he or she
    has owned a number of shares of Common Stock at least equal to
    the number of Shares to be withheld in payment of the exercise
    price (and that such owned shares of Common Stock have not been
    subject to any substantial risk of forfeiture) for at least six
    months prior to the date of exercise. When payment of the
    exercise price is made by withholding of Shares, the difference,
    if any, between the aggregate exercise price payable with
    respect to the option being exercised and the Fair Market Value
    of the Shares withheld in payment (plus any applicable taxes)
    shall be paid in cash. No grantee may authorize the withholding
    of Shares having a Fair Market Value exceeding the aggregate
    exercise price payable with respect to the option being
    exercised (plus any applicable taxes). Any withheld Shares shall
    no longer be issuable under such option.



 



    (c) Terms of Options. The term during which each
    option may be exercised shall be determined by the Committee,
    but if required by the Code and except as otherwise provided
    herein, no option shall be exercisable in




    

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    whole or in part more than ten years from the date it is
    granted, and no Incentive Stock Option granted to an employee
    who at the time of the grant owns more than 10% of the total
    combined voting power of all classes of stock of the Company or
    any of its Subsidiaries shall be exercisable more than five
    years from the date it is granted. All rights to purchase Shares
    pursuant to an option shall, unless sooner terminated, expire at
    the date designated by the Committee. The Committee shall
    determine the date on which each option shall become exercisable
    and may provide that an option shall become exercisable in
    installments. The Shares constituting each installment may be
    purchased in whole or in part at any time after such installment
    becomes exercisable, subject to such minimum exercise
    requirements as may be designated by the Committee. Prior to the
    exercise of an option and delivery of the Shares represented
    thereby, the optionee shall have no rights as a stockholder with
    respect to any Shares covered by such outstanding option
    (including any dividend or voting rights).



 



    (d) Limitations on Grants. If required by the
    Code, the aggregate Fair Market Value (determined as of the
    grant date) of Shares for which an Incentive Stock Option is
    exercisable for the first time during any calendar year under
    all equity incentive plans of the Company and its Subsidiaries
    (as defined in Section 422 of the Code or any successor
    thereto) may not exceed $100,000.



 



    (e) Termination.



 



    (i) Death or Disability. Except as otherwise
    determined by the Committee, if a participant ceases to be a
    director, officer or employee of, or to perform other services
    for, the Company and any Subsidiary due to death or Disability,
    all of the participant’s options and SARs that were
    exercisable on the date of such cessation shall remain so for a
    period of 180 days from the date of such death or
    Disability, but in no event after the expiration date of the
    options or SARs; provided that the participant does not engage
    in Competition during such
    180-day
    period unless he or she received written consent to do so from
    the Board or the Committee. Notwithstanding the foregoing, if
    the Disability giving rise to the termination of employment is
    not within the meaning of Section 22(e)(3) of the Code or
    any successor thereto, Incentive Stock Options not exercised by
    such participant within 90 days after the date of
    termination of employment will cease to qualify as Incentive
    Stock Options and will be treated as Non-qualified Stock Options
    under the Plan if required to be so treated under the Code.



 



    (ii) Retirement. Except as otherwise determined
    by the Committee, if a participant ceases to be a director,
    officer or employee of, or to perform other services for, the
    Company or any Subsidiary upon the occurrence of his or her
    Retirement, (A) all of the participant’s options and
    SARs that were exercisable on the date of Retirement shall
    remain exercisable for, and shall otherwise terminate at the end
    of, a period of 90 days after the date of Retirement, but
    in no event after the expiration date of the options or SARs;
    provided that the participant does not engage in Competition
    during such
    90-day
    period unless he or she receives written consent to do so from
    the Board or the Committee, and (B) all of the
    participant’s options and SARs that were not exercisable on
    the date of Retirement shall be forfeited immediately upon such
    Retirement; provided, however, that such options and SARs may
    become fully vested and exercisable in the discretion of the
    Committee. Notwithstanding the foregoing, Incentive Stock
    Options not exercised by such participant within 90 days
    after Retirement will cease to qualify as Incentive Stock
    Options and will be treated as Non-qualified Stock Options under
    the Plan if required to be so treated under the Code.



 



    (iii) Discharge for Cause. Except as otherwise
    determined by the Committee, if a participant ceases to be a
    director, officer or employee of, or to perform other services
    for, the Company or a Subsidiary due to Cause, or if a
    participant does not become a director, officer or employee of,
    or does not begin performing other services for, the Company or
    a Subsidiary for any reason, all of the participant’s
    options and SARs shall expire and be forfeited immediately upon
    such cessation or non-commencement, whether or not then
    exercisable.



 



    (iv) Other Termination. Except as otherwise
    determined by the Committee, if a participant ceases to be a
    director, officer or employee of, or to otherwise perform
    services for, the Company or a Subsidiary for any reason other
    than death, Disability, Retirement or Cause, (A) all of the
    participant’s options and SARs that were exercisable on the
    date of such cessation shall remain exercisable for, and shall
    otherwise terminate at the end of, a period of 90 days
    after the date of such cessation, but in no event after the
    expiration date of the options or SARs; provided that the
    participant does not engage in Competition during such
    90-day
    period unless he or she receives written consent to do so from
    the Board or the Committee, and (B) all of the




    

6








 






    participant’s options and SARs that were not exercisable on
    the date of such cessation shall be forfeited immediately upon
    such cessation.



 



    (f) Options Exercisable for Restricted
    Stock. The Committee shall have the discretion to grant
    options which are exercisable for Shares of restricted stock.
    Should the participant cease to be a director, officer or
    employee of, or to perform other services for, the Company or
    any Subsidiary while holding such Shares of restricted stock,
    the Company shall have the right to repurchase, at the exercise
    price paid per share, any or all of those Shares of restricted
    stock. The terms upon which such repurchase right shall be
    exercisable (including the period and procedure for exercise and
    the appropriate vesting schedule for the purchased shares) shall
    be established by the Committee and set forth in the document
    evidencing such repurchase right.



 


		
	
    7.  
	
    Stock
    Appreciation Rights.




 



    The Committee shall have the authority to grant SARs under this
    Plan. SARs shall be subject to such terms and conditions as the
    Committee may specify; provided that the exercise price of an
    SAR may never be less than the fair market value of the Shares
    subject to the SAR on the date the SAR is granted.



 



    Prior to the exercise of the SAR and delivery of the cash
    and/or
    Shares represented thereby, the participant shall have no rights
    as a stockholder with respect to Shares covered by such
    outstanding SAR (including any dividend or voting rights).



 



    Upon the exercise of an SAR, the participant shall be entitled
    to a distribution in an amount equal to (A) the difference
    between the Fair Market Value of a share of Common Stock on the
    date of exercise and the exercise price of the SAR multiplied by
    (B) the number of Shares as to which the SAR is exercised.
    The Committee shall decide whether such distribution shall be in
    cash or in Shares having a Fair Market Value equal to such
    amount. Upon distribution, the full number of Shares covered by
    the SAR, rather than the actual number of Shares distributed,
    will be counted as issued under the Plan for purposes of the
    limit on awards set forth in Section 4 above.



 



    All SARs will be exercised automatically on the last day prior
    to the expiration date of the SAR so long as the Fair Market
    Value of a share of Common Stock on that date exceeds the
    exercise price of the SAR.



 


		
	
    8.  
	
    Restricted
    Stock.




 



    The Committee may at any time and from time to time grant Shares
    of restricted stock under the Plan to such participants and in
    such amounts as it determines. Each grant of restricted stock
    shall specify the applicable restrictions on such Shares, the
    duration of such restrictions (which shall be at least six
    months except as otherwise determined by the Committee or
    provided in the third paragraph of this Section 8), and the
    time or times at which such restrictions shall lapse with
    respect to all or a specified number of Shares that are part of
    the grant.



 



    The participant will be required to pay the Company the
    aggregate par value of any Shares of restricted stock (or such
    larger amount as the Board may determine to constitute capital
    under Section 154 of the Delaware General Corporation Law,
    as amended, or any successor thereto) within ten days of the
    date of grant, unless such Shares of restricted stock are
    treasury shares. Unless otherwise determined by the Committee,
    certificates representing Shares of restricted stock granted
    under the Plan will be held in escrow by the Company on the
    participant’s behalf during any period of restriction
    thereon and will bear an appropriate legend specifying the
    applicable restrictions thereon, and the participant will be
    required to execute a blank stock power therefor. Except as
    otherwise provided by the Committee, during such period of
    restriction the participant shall have all of the rights of a
    holder of Common Stock, including but not limited to the rights
    to receive dividends and to vote, and any stock or other
    securities received as a distribution with respect to such
    participant’s restricted stock shall be subject to the same
    restrictions as then in effect for the restricted stock.



 



    At such time as a participant ceases to be a director, officer,
    or employee of, or to otherwise perform services for, the
    Company and its Subsidiaries due to death, Disability or
    Retirement during any period of restriction, all restrictions on
    Shares granted to such participant shall lapse. At such time as
    a participant ceases to be, or in the event a participant does
    not become, a director, officer or employee of, or otherwise
    performing services for, the Company or its Subsidiaries for any
    other reason, all Shares of restricted stock granted to such
    participant on which the restrictions have not lapsed shall be
    immediately forfeited to the Company.




    

7








 





		
	
    9.  
	
    Restricted
    Stock Units; Deferred Stock Units.




 



    The Committee may at any time and from time to time grant
    restricted stock units under the Plan to such participants and
    in such amounts as it determines. Each grant of restricted stock
    units shall specify the applicable restrictions on such units,
    the duration of such restrictions (which shall be at least six
    months except as otherwise determined by the Committee or
    provided in the third paragraph of this Section 9), and the
    time or times at which such restrictions shall lapse with
    respect to all or a specified number of units that are part of
    the grant.



 



    Each restricted stock unit shall be equivalent in value to one
    share of Common Stock and shall entitle the participant to
    receive one Share from the Company at the end of the vesting
    period (the “Vesting Period”) of the applicable
    restricted stock unit, unless the participant elects in a timely
    fashion, as provided below, to defer the receipt of such Shares
    with respect to the restricted stock units. The Committee may
    require the payment by the participant of a specified purchase
    price in connection with any restricted stock unit award.



 



    Except as otherwise provided by the Committee, during the
    Vesting Period the participant shall not have any rights as a
    shareholder of the Company; provided that the participant shall
    have the right to receive accumulated dividends or distributions
    with respect to the corresponding number of shares of Common
    Stock underlying each restricted stock unit at the end of the
    Vesting Period, unless the participant elects in a timely
    fashion, as provided below, to defer the receipt of the Shares
    with respect to the restricted stock units, in which case such
    accumulated dividends or distributions shall be paid by the
    Company to the participant at such time as the payment of the
    Shares with respect to the deferred stock units.



 



    Except as otherwise provided by the Committee, immediately prior
    to a Change in Control or at such time as a participant ceases
    to be a director, officer or employee of, or to otherwise
    perform services for, the Company and any of its Subsidiaries
    due to death, Disability or Retirement during any Vesting
    Period, all restrictions on restricted stock units granted to
    such participant shall lapse and the participant shall be then
    entitled to receive payment in Shares with respect to the
    applicable restricted stock units. At such time as a participant
    ceases to be a director, officer or employee of, or otherwise
    performing services for, the Company and any of its Subsidiaries
    for any other reason, all restricted stock units granted to such
    participant on which the restrictions have not lapsed shall be
    immediately forfeited to the Company.



 



    A participant may elect by written notice to the Company, which
    notice must be made before the later of (i) the close of
    the tax year preceding the year in which the restricted stock
    units are granted or (ii) 30 days of first becoming
    eligible to participate in the Plan (or, if earlier, the last
    day of the tax year in which the participant first becomes
    eligible to participate in the plan) and on or prior to the date
    the restricted stock units are granted, to defer the receipt of
    all or a portion of the Shares due with respect to the vesting
    of such restricted stock units; provided that the Committee may
    impose such additional restrictions with respect to the time at
    which a participant may elect to defer receipt of Shares subject
    to the deferral election, and any other terms with respect to a
    grant of restricted stock units to the extent the Committee
    deems necessary to enable the participant to defer recognition
    of income with respect to such units until the Shares underlying
    such units are issued or distributed to the participant. Upon
    such deferral, the restricted stock units so deferred shall be
    converted into deferred stock units. Except as provided below,
    delivery of Shares with respect to deferred stock units shall be
    made at the end of the deferral period set forth in the
    participant’s deferral election notice (the “Deferral
    Period”). Deferral Periods shall be no less than one year
    after the vesting date of the applicable restricted stock units.



 



    Except as otherwise provided by the Committee, during such
    Deferral Period the participant shall not have any rights as a
    shareholder of the Company; provided that, the participant shall
    have the right to receive accumulated dividends or distributions
    with respect to the corresponding number of shares of Common
    Stock underlying each deferred stock unit at the end of the
    Deferral Period.



 



    Except as otherwise provided by the Committee, if a participant
    ceases to be a director, officer or employee of, or to otherwise
    perform services for, the Company or any Subsidiary due to his
    or her death prior to the end of the Deferral Period, the
    participant shall receive payment in Shares in respect of such
    participant’s deferred stock units which would have matured
    or been earned at the end of such Deferral Period as if the
    applicable Deferral Period had ended as of the date of such
    participant’s death.




    

8








 






    Except as otherwise provided by the Committee, if a participant
    ceases to be a director, officer or employee of, or to otherwise
    perform services for, the Company or any Subsidiary upon
    becoming disabled (as defined under Section 409A(a)(2)(C)
    of the Code) or Retirement or for any other reason except
    termination for Cause prior to the end of the Deferral Period,
    the participant shall receive payment in Shares in respect of
    such participant’s deferred stock units at the end of the
    applicable Deferral Period or on such accelerated basis as the
    Committee may determine, to the extent permitted by regulations
    issued under Section 409A(a)(3) of the Code.



 



    Except as otherwise provided by the Committee, if a participant
    ceases to be a director, officer or employee of, or to otherwise
    perform services for, the Company or any Subsidiary due to
    termination for Cause such participant shall immediately forfeit
    any deferred stock units which would have matured or been earned
    at the end of the applicable Deferral Period.



 



    Except as otherwise provided by the Committee, in the event of a
    Change in Control that also constitutes a “change in the
    ownership or effective control of” the Company, or a
    “change in the ownership of a substantial portion of the
    assets” of the Company (in each case as determined under
    IRS Notice
    2005-1, as
    amended or supplemented from time to time, or regulations issued
    pursuant to Section 409A(a)(2)(A)(v) of the Code), a
    participant shall receive payment in Shares in respect of such
    participant’s deferred stock units which would have matured
    or been earned at the end of the applicable Deferral Period as
    if such Deferral Period had ended immediately prior to the
    Change in Control; provided, however, that if an event that
    constitutes a Change in Control hereunder does not constitute a
    “change in control” under Section 409A of the
    Code (or the regulations promulgated thereunder), no payments
    with respect to the deferred stock units shall be made under
    this paragraph to the extent such payments would constitute an
    impermissible acceleration under Section 409A of the Code.



 


		
	
    10.  
	
    Dividend
    Equivalents.




 



    The Committee is authorized to grant dividend equivalents to a
    participant entitling the participant to receive cash, Shares,
    other awards, or other property equal in value to dividends paid
    with respect to a specified number of shares of Common Stock of
    the Company, or other periodic payments. Dividend equivalents
    may be awarded on a free-standing basis or in connection with
    another award. The Committee may provide that dividend
    equivalents shall be paid or distributed when accrued or shall
    be deemed to have been reinvested in additional shares of Common
    Stock of the Company, awards, or other investment vehicles, and
    subject to such restrictions on transferability and risks of
    forfeiture, as the Committee may specify.



 


		
	
    11.  
	
    Other
    Stock-Based Awards.




 



    The Committee is authorized, subject to limitations under
    applicable law, to grant to participants such other awards that
    may be denominated or payable in, valued in whole or in part by
    reference to, or otherwise based on, or related to, shares of
    Common Stock of the Company, as deemed by the Committee to be
    consistent with the purposes of the Plan, including, without
    limitation, convertible or exchangeable debt securities, other
    rights convertible or exchangeable into Shares, purchase rights
    for Shares, awards with value and payment contingent upon
    performance of the Company or any other factors designated by
    the Committee, and awards valued by reference to the book value
    of Shares or the value of securities of or the performance of
    specified Subsidiaries. The Committee shall determine the terms
    and conditions of such awards. Shares delivered pursuant to an
    award in the nature of a purchase right granted under this
    Section 11 shall be purchased for such consideration
    (including without limitation loans from the Company or a
    Subsidiary to the extent permissible under the Sarbanes Oxley
    Act of 2002 and other applicable law), paid for at such times,
    by such methods, and in such forms, including, without
    limitation, cash, Shares, other awards or other property, as the
    Committee shall determine. Cash awards, as an element of or
    supplement to any other award under the Plan, may also be
    granted pursuant to this Section 11.



 


		
	
    12.  
	
    Performance
    Awards.




 



    The Committee is authorized to make Performance Awards payable
    in cash, Shares, or other awards, on terms and conditions
    established by the Committee, subject to the provisions of this
    Section 12.



 



    The performance goals for such Performance Awards shall consist
    of one or more business criteria and a targeted level or levels
    of performance with respect to each of such criteria, or such
    other personal or business goals




    

9








 






    and objectives, as the Committee shall determine. The Committee
    may determine that such Performance Awards shall be granted,
    exercised
    and/or
    settled upon achievement of any one performance goal or that two
    or more of the performance goals must be achieved as a condition
    to grant, exercise
    and/or
    settlement of such Performance Awards. Performance goals may
    differ for Performance Awards granted to any one participant or
    to different participants.



 



    Achievement of performance goals in respect of such Performance
    Awards shall be measured over any performance period determined
    by the Committee. During the performance period, the Committee
    shall have the authority to adjust the performance goals and
    objectives for such performance period for such reasons as it
    deems equitable. A performance award shall be paid no later than
    two and one-half months after the last day of the tax year in
    which a performance period is completed.



 



    The Committee may establish a Performance Award pool, which
    shall be an unfunded pool, for purposes of measuring Company
    performance in connection with Performance Awards. The amount of
    such Performance Award pool shall be based upon the achievement
    of a performance goal or goals during the given performance
    period, as specified by the Committee. The Committee may specify
    the amount of the Performance Award pool as a percentage of any
    of such business criteria, a percentage thereof in excess of a
    threshold amount, or as another amount which need not bear a
    strictly mathematical relationship to such business criteria.



 



    Settlement of Performance Awards shall be in cash, Shares, other
    awards or other property, in the discretion of the Committee.
    The Committee may, in its discretion, reduce the amount of a
    settlement otherwise to be made in connection with such
    Performance Awards. The Committee shall specify the
    circumstances in which such Performance Awards shall be paid or
    forfeited in the event of termination of the participant’s
    employment or service prior to the end of a performance period
    or settlement of Performance Awards.



 


		
	
    13.  
	
    Change
    in Control.




 



    Unless otherwise determined by the Committee, if there is a
    Change in Control of the Company and a participant’s
    employment or service as a director, officer, or employee of the
    Company or a Subsidiary, is terminated (1) by the Company
    without Cause, (2) by reason of the participant’s
    death, Disability, or Retirement, or (3) by the participant
    for Good Reason, within twelve months after such Change in
    Control:



 



    (i) any award carrying a right to exercise that was not
    previously vested and exercisable as of the time of the Change
    in Control, shall become immediately vested and exercisable, and
    shall remain so for up to 180 days after the date of
    termination (but in no event after the expiration date of the
    award), subject to applicable restrictions;



 



    (ii) any restrictions, deferral of settlement, and
    forfeiture conditions applicable to any other award granted
    under the Plan shall lapse and such awards shall be deemed fully
    vested as of the time of the Change in Control, except to the
    extent of any waiver by the participant, and subject to
    applicable restrictions; and



 



    (iii) with respect to any outstanding Performance Award,
    the Committee may, within its discretion, deem the performance
    goals and other conditions relating to the Performance Award as
    having been met as of the date of the Change in Control. Such
    performance award shall be paid no later than two and one-half
    months after the last day of the tax year in which such Change
    of Control occurred (or in the event that such Change in Control
    causes the tax year to end, no later than two and one-half
    months after the closing of such Change in Control).



 



    Notwithstanding the foregoing, or any other provision of this
    Plan to the contrary, in connection with any transaction of the
    type specified by clause (iii) of the definition of a
    Change in Control in Section 2(c), the Committee may, in
    its discretion, (i) cancel any or all outstanding options
    under the Plan in consideration for payment to the holders
    thereof of an amount equal to the portion of the consideration
    that would have been payable to such holders pursuant to such
    transaction if their options had been fully exercised
    immediately prior to such transaction, less the aggregate
    exercise price that would have been payable therefor, or
    (ii) if the amount that would have been payable to the
    option holders pursuant to such transaction if their options had
    been fully exercised immediately prior thereto would be equal to
    or less than the aggregate exercise price that would have been
    payable therefor, cancel any or all such options for no
    consideration or payment of any kind. Payment of any amount
    payable




    

10








 






    pursuant to the preceding sentence may be made in cash or, in
    the event that the consideration to be received in such
    transaction includes securities or other property, in cash
    and/or
    securities or other property in the Committee’s discretion.



 


		
	
    14.  
	
    Withholding
    Taxes.




 



    (a) Participant Election. Unless otherwise
    determined by the Committee, a participant may elect to deliver
    shares of Common Stock (or have the Company withhold shares
    acquired upon exercise of an option or SAR or deliverable upon
    grant or vesting of restricted stock, as the case may be) to
    satisfy, in whole or in part, the amount the Company is required
    to withhold for taxes in connection with the exercise of an
    option or SAR or the delivery of restricted stock upon grant or
    vesting, as the case may be. Such election must be made on or
    before the date the amount of tax to be withheld is determined.
    Once made, the election shall be irrevocable. The fair market
    value of the shares to be withheld or delivered will be the Fair
    Market Value as of the date the amount of tax to be withheld is
    determined. In the event a participant elects to deliver or have
    the Company withhold shares of Common Stock pursuant to this
    Section 14(a), such delivery or withholding must be made
    subject to the conditions and pursuant to the procedures set
    forth in Section 6(b) with respect to the delivery or
    withholding of Common Stock in payment of the exercise price of
    options.



 



    (b) Company Requirement. The Company may
    require, as a condition to any grant or exercise under the Plan
    or to the delivery of certificates for Shares issued hereunder,
    that the grantee make provision for the payment to the Company,
    either pursuant to Section 14(a) or this
    Section 14(b), of federal, state or local taxes of any kind
    required by law to be withheld with respect to any grant or
    delivery of Shares. The Company, to the extent permitted or
    required by law, shall have the right to deduct from any payment
    of any kind (including salary or bonus) otherwise due to a
    grantee, an amount equal to any federal, state or local taxes of
    any kind required by law to be withheld with respect to any
    grant or delivery of Shares under the Plan.



 


		
	
    15.  
	
    Written
    Agreement; Vesting.




 



    Each employee to whom a grant is made under the Plan shall enter
    into a written agreement with the Company that shall contain
    such provisions, including without limitation vesting
    requirements, consistent with the provisions of the Plan, as may
    be approved by the Committee. Unless the Committee determines
    otherwise and except as otherwise provided in Sections 6,
    7, and 8 in connection with a Change in Control or certain
    occurrences of termination, no grant under this Plan may be
    exercised, and no restrictions relating thereto may lapse,
    within six months of the date such grant is made.



 


		
	
    16.  
	
    Transferability.




 



    Unless the Committee determines otherwise, no award granted
    under the Plan shall be transferable by a participant other than
    by will or the laws of descent and distribution or to a
    participant’s Family Member by gift or a qualified domestic
    relations order as defined by the Code. No award granted under
    the Plan shall be transferable by a participant for
    consideration. Unless the Committee determines otherwise, an
    option, SAR or performance award may be exercised only by the
    optionee or grantee thereof; by his or her Family Member if such
    person has acquired the option, SAR or performance award by gift
    or qualified domestic relations order; by the executor or
    administrator of the estate of any of the foregoing or any
    person to whom the Option is transferred by will or the laws of
    descent and distribution; or by the guardian or legal
    representative of any of the foregoing; provided that Incentive
    Stock Options may be exercised by any Family Member, guardian or
    legal representative only if permitted by the Code and any
    regulations thereunder. All provisions of this Plan shall in any
    event continue to apply to any option, SAR, performance award or
    restricted stock granted under the Plan and transferred as
    permitted by this Section 16, and any transferee of any
    such option, SAR, performance award or restricted stock shall be
    bound by all provisions of this Plan as and to the same extent
    as the applicable original grantee.



 


		
	
    17.  
	
    Listing,
    Registration and Qualification.




 



    If the Committee determines that the listing, registration or
    qualification upon any securities exchange or under any law of
    Shares subject to any option, SAR, performance award, restricted
    stock unit, or restricted stock grant is




    

11








 






    necessary or desirable as a condition of, or in connection with,
    the granting of same or the issue or purchase of Shares
    thereunder, no such option or SAR may be exercised in whole or
    in part, no such performance award may be paid out, and no
    Shares may be issued, unless such listing, registration or
    qualification is effected free of any conditions not acceptable
    to the Committee.



 


		
	
    18.  
	
    Transfers
    Between Company and Subsidiaries.




 



    The transfer of an employee, consultant or independent
    contractor from the Company to a Subsidiary, from a Subsidiary
    to the Company, or from one Subsidiary to another shall not be
    considered a termination of employment or services; nor shall it
    be considered a termination of employment if an employee is
    placed on military or sick leave or such other leave of absence
    which is considered by the Committee as continuing intact the
    employment relationship.



 


		
	
    19.  
	
    Adjustments.




 



    In the event of a reorganization, recapitalization, stock split,
    stock dividend, combination of shares, merger, consolidation,
    distribution of assets, or any other change in the corporate
    structure or shares of the Company, the Committee shall make
    such adjustment as it deems appropriate in the number and kind
    of Shares or other property available for issuance under the
    Plan (including, without limitation, the total number of Shares
    available for issuance under the Plan pursuant to
    Section 4), in the number and kind of options, SARs, Shares
    or other property covered by grants previously made under the
    Plan, and in the exercise price of outstanding options and SARs;
    provided, however, that the Committee shall not be required to
    make any adjustment that would (i) require the inclusion of
    any compensation deferred pursuant to provisions of the Plan (or
    an award thereunder) in a participant’s gross income
    pursuant to Section 409A of the Code and the regulations
    issued thereunder from time to time
    and/or
    (ii) cause any award made pursuant to the Plan to be
    treated as providing for the deferral of compensation pursuant
    to such Code section and regulations. Any such adjustment shall
    be final, conclusive and binding for all purposes of the Plan.
    In the event of any merger, consolidation or other
    reorganization in which the Company is not the surviving or
    continuing corporation or in which a Change in Control is to
    occur, all of the Company’s obligations regarding awards
    that were granted hereunder and that are outstanding on the date
    of such event shall, on such terms as may be approved by the
    Committee prior to such event, be (a) canceled in exchange
    for payment of cash or other property determined by the
    Committee to be equal to the intrinsic value of such awards at
    the time of the Change in Control (but, with respect to deferred
    stock units, only if such merger, consolidation, other
    reorganization, or Change in Control constitutes a “change
    in ownership or control” of the Company or a “change
    in the ownership of a substantial portion of the assets” of
    the Company, as determined pursuant to regulations issued under
    Section 409A(a)(2)(A)(v) of the Code) or (b) assumed
    by the surviving or continuing corporation.



 


		
	
    20.  
	
    Amendment
    and Termination of the Plan.




 



    The Board of Directors or the Committee, without approval of the
    stockholders, may amend or terminate the Plan, except that no
    amendment shall become effective without prior approval of the
    stockholders of the Company if stockholder approval would be
    required by applicable law or regulations, including if required
    for continued compliance with the performance-based compensation
    exception of Section 162(m) of the Code or any successor
    thereto, under the provisions of Section 422 of the Code or
    any successor thereto, or by any listing requirement of the
    principal stock exchange on which the Common Stock is then
    listed.



 



    Notwithstanding any other provisions of the Plan, and in
    addition to the powers of amendment set forth in this
    Section 20 and Section 21 hereof or otherwise, the
    provisions hereof and the provisions of any award made hereunder
    may be amended unilaterally by the Committee from time to time
    to the extent necessary (and only to the extent necessary) to
    prevent the implementation, application or existence (as the
    case may be) of any such provision from (i) requiring the
    inclusion of any compensation deferred pursuant to the
    provisions of the Plan (or an award thereunder) in a
    participant’s gross income pursuant to Section 409A of
    the Code, and the regulations issued thereunder from time to
    time and/or
    (ii) inadvertently causing any award hereunder to be
    treated as providing for the deferral of compensation pursuant
    to such Code section and regulations.




    

12








 





		
	
    21.  
	
    Amendment
    of Awards under the Plan.




 



    The terms of any outstanding award under the Plan may be amended
    from time to time by the Committee in its discretion in any
    manner that it deems appropriate, including, but not limited to,
    any acceleration of the date of exercise of any award
    and/or
    payments (but, with respect to deferred stock units, only to the
    extent permitted by regulations issued under
    Section 409A(a)(3) of the Code) thereunder or of the date
    of lapse of restrictions on Shares; provided that, except as
    otherwise provided in Section 16, no such amendment shall
    adversely affect in a material manner any right of a participant
    under the award without his or her written consent. Neither the
    Board nor the Committee may amend the Plan or the terms of any
    outstanding options or SARs awarded under the Plan to reduce the
    exercise price of outstanding options or SARs without prior
    stockholder approval.



 


		
	
    22.  
	
    Commencement
    Date; Termination Date.




 



    The date of commencement of the Plan shall be the date of the
    closing of the Company’s initial public offering of its
    Common Stock. If required by the Code, the Plan will also be
    subject to reapproval by the shareholders of the Company prior
    to the fifth anniversary of such commencement date.



 



    Unless previously terminated upon the adoption of a resolution
    of the Board terminating the Plan, the Plan shall terminate at
    the close of business on the tenth anniversary of the date of
    commencement. No termination of the Plan shall materially and
    adversely affect any of the rights or obligations of any person,
    without his or her written consent, under any grant of options
    or other incentives theretofore granted under the Plan.



 


		
	
    23.  
	
    Severability.




 



    Whenever possible, each provision of the Plan shall be
    interpreted in such manner as to be effective and valid under
    applicable law, but if any provision of the Plan is held to be
    prohibited by or invalid under applicable law, such provision
    shall be ineffective only to the extent of such prohibition or
    invalidity, without invalidating the remainder of the Plan.



 


		
	
    24.  
	
    Governing
    Law.




 



    The Plan shall be governed by the corporate laws of the State of
    Delaware, without giving effect to any choice of law provisions
    that might otherwise refer construction or interpretation of the
    Plan to the substantive law of another jurisdiction.




    

13