EXHIBIT
10.1


 


AMENDED
AND RESTATED TRAVELCENTERS OF AMERICA LLC


2007 EQUITY
COMPENSATION PLAN


 


1.                                      PURPOSE


 


The purpose of
this Amended and Restated 2007 Equity Compensation Plan (the “Plan”) is to
encourage employees, officers, directors and other individuals (whether or not
employees) who render services to TravelCenters of America LLC (the “Company”)
and its Subsidiaries (as hereinafter defined), to continue their association
with the Company and its Subsidiaries by providing opportunities for them to
participate in the ownership of the Company and in its future growth through
the granting of options to acquire the Company’s shares (“Options”), shares to
be transferred subject to restrictions (“Restricted Shares”) and other rights,
including Share Appreciation Rights (as defined in Section 6), to receive
compensation in amounts determined by the value of the Company’s shares (“Other
Rights”). The term “Subsidiary” as used in the Plan means a corporation or
other business entity of which the Company owns, directly or indirectly through
an unbroken chain of ownership, fifty percent or more of the total combined
voting power of all classes of stock, in the case of a corporation, or fifty
percent or more of the total combined interests by value, in the case of any
other type of business entity.


 


2.                                      ADMINISTRATION
OF THE PLAN


 


The Plan shall
be administered by the Compensation Committee of the Company’s Board of
Directors (the “Board”) or by the Board itself. The Compensation Committee
shall from time to time determine to whom Options or Restricted Shares shall be
granted under the Plan, whether Options granted shall be incentive share
options (“ISOs”) or nonqualified share options (“NSOs”), the terms of the
Options (including vesting provisions) and the number of Common Shares (as
hereinafter defined) that may be granted under Options, and the terms and
number of Restricted Shares or Other Rights. The Compensation Committee shall
report to the Board the names of individuals to whom Options, Restricted Shares
or Other Rights are to be granted, the number of shares covered and the terms
and conditions of each grant. The determinations and actions described in this Section 2
and elsewhere in the Plan may be made by the Compensation Committee or by the
Board, as the Board shall direct in its discretion, and references in the Plan
to the Compensation Committee shall be understood to refer to the Board in any
such case.


 


The
Compensation Committee shall have the authority to adopt, amend and rescind
such rules and regulations as, in its opinion, may be advisable in the
administration of the Plan. All questions of interpretation and application of
such rules and regulations of the Plan and of Options or Restricted Shares
granted hereunder shall be subject to the determination of the Compensation
Committee, which shall be final and binding. The Plan shall be administered in
such a manner as to permit those Options granted hereunder and specially
designated under Section 5 hereof as an ISO to qualify as incentive stock
options as described in Section 422 of the Internal Revenue Code of 1986,
as amended (the “Code”).


 


For so long as
Section 16 of the Securities Exchange Act of 1934, as amended from time to
time (the “Exchange Act”), is applicable to the Company, each member of the
Committee shall be a “non-employee director” or the equivalent within the
meaning of Rule 16b-3 under the Exchange Act, and, for so long as Section 162(m) of
the Code is applicable to the Company, an “outside director” within the meaning
of Section 162 of the Code and the regulations thereunder.


 


With respect
to persons subject to Section 16 of the Exchange Act (“Insiders”),
transactions under the Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successor under the Exchange Act. To the
extent any provision of the Plan or action by the Compensation Committee fails
to so comply, it shall be deemed to be modified so as to be in compliance with
such Rule, or, if such modification is not possible, it shall be deemed to be
null and void, to the extent permitted by law and deemed advisable by the
Compensation Committee.


 


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3.                                       STOCK
SUBJECT TO THE PLAN


 


The total
number of Common Shares of the Company that may be subject to Options, Restricted
Share grants and Other Rights under the Plan shall be 3,000,000 shares of the
Company’s common shares (the “Common Shares”), from authorized but unissued
shares or treasury shares. The maximum number of Common Shares subject to
Options that may be granted to any Optionee in the aggregate in any calendar
year shall not exceed 100,000 shares. The number of shares stated in this Section 3
shall be subject to adjustment in accordance with the provisions of Section 10.
Restricted Shares that fail to vest and Common Shares subject to an Option that
is not fully exercised prior to its expiration or other termination shall again
become available for grant under the terms of the Plan.


 


4.                                      ELIGIBILITY


 


The
individuals who shall be eligible to receive Option grants, Restricted Share
grants and Other Rights under the Plan shall be employees, officers, directors
and other individuals who render services to the management, operation or
development of the Company or a Subsidiary and who have contributed or may be expected
to contribute to the success of the Company or a Subsidiary. ISOs shall not be
granted to any individual who is not an employee of the Company or a Subsidiary
that is a corporation. The term “Optionee,” as used in the Plan, refers to any
individual to whom an Option has been granted.


 


5.                                      TERMS
AND CONDITIONS OF OPTIONS


 


Every Option
shall be evidenced by a written Share Option Agreement in such form as the
Compensation Committee shall approve from time to time, specifying the number
of Common Shares that may be purchased pursuant to the Option, the time or
times at which the Option shall become exercisable in whole or in part, whether
the Option is intended to be an ISO or an NSO and such other terms and
conditions as the Compensation Committee shall approve, and containing or
incorporating by reference the following terms and conditions.


 


(a)           DURATION.  Each Option shall expire ten years from its
date of grant; provided, however, that no ISO granted to an employee who owns
(directly or under the attribution rules of Section 424(d) of
the Code) shares possessing more than ten percent of the total combined voting
power of all classes of shares of the Company or any Subsidiary shall expire
later than five years from its date of grant.


 


(b)           EXERCISE
PRICE.  The exercise price of each Option
shall be any lawful consideration, as specified by the Compensation Committee
in its discretion; provided, however, that the price shall be at least 100
percent of the Fair Market Value (as hereinafter defined) of the shares on the
date on which the Compensation Committee awards the Option, which shall be
considered the date of grant of the Option for purposes of fixing the price;
and provided, further, that the price with respect to an ISO granted to an
employee who at the time of grant owns (directly or under the attribution rules of
Section 424(d) of the Code) stock representing more than ten percent
of the voting power of all classes of stock of the Company or of any Subsidiary
shall be at least 110 percent of the Fair Market Value of the shares on the
date of grant of the ISO. For purposes of the Plan, except as may be otherwise
explicitly provided in the Plan or in any Share Option Agreement, the “Fair
Market Value” of a Common Share at any particular date shall be determined
according to the following rules: (i) if the Common Shares are not at the
time listed or admitted to trading on a stock exchange or the Nasdaq Stock
Market, the Fair Market Value shall be the closing price of a Common Share on
the date in question in the over-the-counter market, as such price is reported
in a publication of general circulation selected by the Board and regularly
reporting the price of the Common Shares in such market, including any market
that is outside of the United States; provided, however, that if the price of
the Common Shares is not so reported, the Fair Market Value shall be determined
in good faith by the Board, which may take into consideration (1) the
price paid for Common Shares in the most recent trade of a substantial number
of shares known to the Board to have occurred at arm’s length between willing
and knowledgeable investors, (2) an appraisal by an independent party or
(3)


 


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any
other method of valuation undertaken in good faith by the Board, or some or all
of the above as the Board shall in its discretion elect; or (ii) if the
Common Shares are at the time listed or admitted to trading on any stock
exchange, including any market that is outside of the United States, or the
Nasdaq Stock Market, then the Fair Market Value shall be the mean between the
lowest and highest reported sale prices (or the highest reported bid price and
the lowest reported asked price) of the Common Shares on the date in question
on the principal exchange or the Nasdaq Stock Market, as the case may be, on
which the Common Shares are then listed or admitted to trading. If no reported
sale of Common Stock takes place on the date in question on the principal
exchange or the Nasdaq Stock Market, as the case may be, then the most recent
previous reported closing sale price of the Common Shares (or, in the Board’s
discretion, the reported closing asked price) of the Common Shares on such date
on the principal exchange or the Nasdaq Stock Market, as the case may be, shall
be determinative of Fair Market Value.


 


(c)           METHOD
OF EXERCISE.  To the extent that it has
become exercisable under the terms of the Share Option Agreement, an Option may
be exercised from time to time by notice acceptable to the Chief Executive
Officer of the Company, or his delegate, stating the number of shares with
respect to which the Option is being exercised and accompanied by payment of
the exercise price in cash or check payable to the Company or, if the Share
Option Agreement so provides, other payment or deemed payment described in this
Section 5(c). Such notice shall be delivered in person to the Chief
Executive Officer of the Company, or his delegate, or shall be sent by
registered mail, return receipt requested, to the Chief Executive Officer of
the Company, or his delegate, in which case delivery shall be deemed made on
the date such notice is deposited in the mail.


 


Alternatively,
payment of the exercise price may be made:


 


(1)           In
whole or in part in Common Shares already owned by the Optionee or to be
received upon exercise of the Option; provided, however, that such shares are fully vested and free of all
liens, claims and encumbrances of any kind; and provided, further, that the
Optionee may not make payment in Common Shares that he acquired upon the
earlier exercise of any ISO (or other “incentive stock option”), unless he has
held the shares for at least two years after the date the ISO was granted and
at least one year after the date the ISO was exercised. If payment is made in
whole or in part in Common Shares, then the Optionee shall deliver to the
Company share certificates or other evidence of legal and beneficial ownership
registered in his name representing a number of Common Shares legally and
beneficially owned by him, fully vested and free of all liens, claims and
encumbrances of every kind and having a Fair Market Value on the date of
delivery that is not greater than the exercise price, such share certificates
or other evidence of legal and beneficial ownership to be duly endorsed, or
accompanied by stock powers duly endorsed, by the record holder of the Common
Shares being delivered. If the exercise price exceeds the Fair Market Value of
the shares so delivered, the Optionee shall also deliver cash or a check payable
to the order of the Company in an amount equal to the amount of that excess or,
if the Share Option Agreement so provides, his promissory note as described in
paragraph (2) of this Section 5(c); or


 


(2)           By
payment of the exercise price in whole or in part by delivery of the Optionee’s
recourse promissory note, in a form specified by the Company, secured by the
Common Shares acquired upon exercise of the Option and such other security as
the Compensation Committee may require.


 


At the time
specified in an Optionee’s notice of exercise, the Company shall, without issue
or transfer tax to the Optionee, deliver to the Optionee at the main office of
the Company, or such other place as shall be mutually acceptable, a certificate
for the Common Shares or other evidence of legal and beneficial ownership as to
which such Optionee’s Option is exercised. If the Optionee fails to pay for or
to accept delivery of all or any part of the number of Common Shares specified
in the Optionee’s notice upon tender of delivery thereof, the Optionee’s right
to exercise the Option with respect to those shares shall be terminated, unless
the Company otherwise agrees.


 


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(d)           EXERCISABILITY.  An Option may be exercised so long as it is
outstanding from time to time in whole or in part, to the extent and subject to
the terms and conditions that the Compensation Committee in its discretion may
provide in the Share Option Agreement. Such terms and conditions shall include
provisions for exercise within twelve (12) months after the Optionee’s death or
disability (within the meaning of Section 22(e)(3) of the Code),
provided that no Option shall be exercisable after the expiration of the period
described in paragraph (a) above. Except as the Compensation Committee in
its discretion may otherwise provide in the Share Option Agreement, an Option
shall cease to be exercisable upon the expiration of ninety (90) days following
the termination of the Optionee’s employment with, or the Optionee’s other
provision of services to, the Company or a subsidiary, subject to paragraph (a) above
and Section 10 hereof.


 


(e)           NOTICE
OF ISO STOCK DISPOSITION. The Optionee must notify the Company promptly in the
event that he sells, transfers, exchanges or otherwise disposes of any Common
Shares issued upon exercise of an ISO before the later of (i) the second
anniversary of the date of grant of the ISO and (ii) the first anniversary
of the date the shares were issued upon the exercise of the ISO.


 


(f)            NO
RIGHTS AS STOCKHOLDER. An Optionee shall have no rights as a shareholder with
respect to any shares covered by an Option until the date of issuance of a
share certificate or other evidence of legal and beneficial ownership to him
for the shares. No adjustment shall be made for dividends or other rights for
which the record date is earlier than the date the share certificate or other
evidence of legal and beneficial ownership is issued, other than as required or
permitted pursuant to Section 9.


 


(g)           TRANSFERABILITY
OF OPTIONS. Options shall not be transferable by the Optionee otherwise than by
will or under the laws of descent and distribution, and shall be exercisable
during the Optionee’s lifetime only by the Optionee, except that the
Compensation Committee may specify in a Share Option Agreement that pertains to
an NSO that the Optionee may transfer such NSO to a member of the Immediate
Family (as hereinafter defined) of the Optionee, to a trust solely for the
benefit of the Optionee and the Optionee’s Immediate Family, or to a
partnership or limited liability company whose only partners or members are the
Optionee and members of the Optionee’s Immediate Family. “Immediate Family”
shall mean, with respect to any Optionee, such Optionee’s child, stepchild,
grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law,
and shall include adoptive relationships.


 


6.                                      SHARE
APPRECIATION RIGHTS


 


The Committee
may grant Share Appreciation Rights (“SARs”) in respect of such number of
Common Shares subject to the Plan as it shall determine, in its discretion, and
may grant SARs either separately or in connection with Options, as described in
the following sentence. SARs granted in connection with an Option may be
exercised only to the extent of the surrender of the related Option, and to the
extent of the exercise of the related Option the SAR shall terminate. Common
Shares covered by an Option that terminates upon the exercise of a related SAR
shall cease to be available under the Plan. The terms and conditions of a SAR
related to an Option shall be contained in the Share Option Agreement, and the
terms of a SAR not related to any Option shall be contained in a SAR Agreement.


 


Upon exercise
of a SAR, the Optionee shall be entitled to receive from the Company an amount
equal to the excess of the Fair Market Value, on the exercise date, of the
number of shares of Common Stock as to which the SAR is exercised, over the
exercise price for those shares under a related Option or, if there is no
related Option, over the base value stated in the SAR Agreement. Any amount
payable by the Company upon exercise of a SAR shall be paid in the form of cash
or other property (including Common Shares), as provided in the Share Option
Agreement or SAR Agreement governing the SAR.


 


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7.                                      RESTRICTED
SHARES


 


The
Compensation Committee may grant or award Restricted Shares in respect of such
number of Common Shares, and subject to such terms or conditions, as it shall
determine and specify in a Restricted Share Agreement, and may provide in a
Share Option Agreement for an Option to be exercisable for Restricted Shares.


 


A holder of
Restricted Shares shall have all of the rights of a shareholder of the Company,
including the right to vote the shares and the right to receive any cash
dividends, unless the Compensation Committee shall otherwise determine. Unless
a grantee’s Restricted Share Agreement provides to the contrary, unvested
Restricted Shares granted under the Plan shall not be transferred without the
written consent of the Board. In addition, at the time of termination for any
reason of a grantee’s employment or other service relationship with the Company
or a Subsidiary, the Company shall have the right, in the case of unvested
Restricted Shares, to purchase all or any of such shares at a price equal to
the lower of (a) the price paid to the Company for such shares or (b) the
Fair Market Value of such shares at the time of repurchase. Nothing in the Plan
shall be construed to give any person the right to require the Company to
purchase any Common Shares granted as Restricted Shares.


 


Share
certificates, if any, representing Restricted Shares shall be imprinted with a
legend to the effect that the shares represented may not be sold, exchanged,
transferred, pledged, hypothecated or otherwise disposed of except in
accordance with the terms of the Restricted Share Agreement and, if the
Compensation Committee so determines, the holder may be required to deposit the
share certificates or other evidence of legal and beneficial ownership with the
President, Treasurer, Secretary or other officer of the Company or with an
escrow agent designated by the Compensation Committee, together with a stock
power or other instrument of transfer appropriately endorsed in blank. In the
event that the Restricted Shares are not represented by a shares certificate,
the Company shall direct the Company’s registrar and transfer agent to make an
appropriate notation of the restrictions on transfer to which the Restricted
Shares are subject in the stock books and records of the Company.


 


8.                                      METHOD
OF GRANTING OPTIONS, RESTRICTED SHARES AND OTHER RIGHTS


 


The grant of
Options, Restricted Shares and Other Rights shall be made by action of the
Board or the Compensation Committee, at a meeting at which a quorum of its
members is present, or by unanimous written consent of all its members;
provided, however, that if an individual to whom a grant has been made fails to
execute and deliver to the Compensation Committee a Share Option Agreement,
Restricted Share Agreement or SAR Agreement within thirty days after it is
submitted to him, the Option, Restricted Shares or SAR granted under the
applicable agreement shall be voidable by the Company at its election, without
further notice to the grantee.


 


9.                                      REQUIREMENTS
OF LAW


 


The Company
shall not be required to transfer Restricted Shares or to sell or issue any
Common Shares upon the exercise of any Option if the issuance of such
restricted Shares or Common Shares will result in a violation by the Optionee
or the Company of any provisions of any law, statute or regulation of any
governmental authority. Specifically, in connection with the Securities Act of 1933,
as amended from time to time (the “Securities Act”), upon the transfer of
Restricted Shares or the exercise of any Option, the Company shall not be
required to issue Restricted Shares or Common Shares, as the case may be,
unless the Compensation Committee has received evidence satisfactory to it to
the effect that the holder of the Restricted Shares or the Option will not
transfer such shares except pursuant to a registration statement in effect
under the Securities Act or unless an opinion of counsel satisfactory to the
Company has been received by the Company to the effect that registration is not
required. Any determination in this connection by the Compensation Committee
shall be conclusive. The Company shall not be obligated to take any other affirmative
action in order to cause the transfer of Restricted Shares or the exercise of
an Option to comply with any law or regulations of any governmental authority,
including, without limitation, the Securities Act or applicable state
securities laws.


 


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10.                               CHANGES
IN CAPITAL STRUCTURE


 


In the event
that the outstanding Common Shares are hereafter changed for a different number
or kind of shares or other securities of the Company, by reason of a
reorganization, recapitalization, exchange of shares, share split, combination
of shares or dividend payable in shares or other securities, a corresponding
adjustment shall be made by the Compensation Committee in the number and kind
of shares or other securities covered by outstanding Options and Other Rights
and for which Options and Other Rights may be granted under the Plan. Any such
adjustment in outstanding Options shall be made without change in the total
price applicable to the unexercised portion of the Option, but the price per
share specified in each Share Option Agreement shall be correspondingly
adjusted; provided, however, that no adjustment shall be made with respect to
an ISO that would constitute a modification as defined in Section 424 of
the Code without the consent of the holder. Any such adjustment made by the
Compensation Committee shall be conclusive and binding upon all affected
persons, including the Company and all Optionees and holders of Other Rights.


 


If while
unexercised Options remain outstanding under the Plan the Company merges or
consolidates with a wholly-owned subsidiary for the purpose of incorporating
itself, including under the laws of another jurisdiction, the Optionees will be
entitled to acquire shares of common stock of the incorporated Company upon the
same terms and conditions as were in effect immediately prior to such
reincorporation (unless such incorporation involves a change in the number of
shares or the capitalization of the Company, in which case proportional
adjustments shall be made as provided above) and the Plan, unless otherwise
rescinded by the Board, will remain the Plan of the incorporated Company.


 


Except as
otherwise provided in the preceding paragraph, if the Company is merged or
consolidated with another corporation, whether or not the Company is the
surviving entity, or if the Company is liquidated or sells or otherwise
disposes of all or substantially all of its assets to another entity while
unexercised Options remain outstanding under the Plan, or if other circumstances
occur in which the Compensation Committee in its sole and absolute discretion
deems it appropriate for the provisions of this paragraph to apply (in each
case, an “Applicable Event”), then: (a) in the discretion of the
Compensation Committee, each holder of an outstanding Option shall be entitled,
upon exercise of the Option, to receive in lieu of Common Shares, such stock or
other securities or property as he or she would have received had he exercised
the Option immediately prior to the Applicable Event; or (b) the
Compensation Committee may, in its sole and absolute discretion, waive,
generally or in one or more specific cases, any limitations imposed on exercise
(including without limitation a change in any existing vesting schedule) so
that some or all Options from and after a date prior to the effective date of
such Applicable Event, specified by the Compensation Committee, in its sole and
absolute discretion, shall be exercisable; or (c) the Compensation
Committee may, in its sole and absolute discretion, cancel all outstanding and
unexercised Options as of the effective date of any such Applicable Event; or (d) the
Compensation Committee may, in its sole discretion, convert some or all Options
into Options to purchase the stock or other securities of the surviving
corporation pursuant to an Applicable Event; or (e) the Compensation
Committee may, in its sole and absolute discretion, assume the outstanding and
unexercised options to purchase stock or other securities of any corporation
and convert such options into Options to purchase Common Stock, whether
pursuant to this Plan or not, pursuant to an Applicable Event; provided,
however, that notice of any cancellation pursuant to clause (c) shall be
given to each holder of an Option not less than thirty days preceding the
effective date of such Applicable Event; and provided, further, that the
Compensation Committee may, in its sole and absolute discretion waive,
generally or in one or more specific instances, any limitations imposed on
exercise (including a change in any existing exercise schedule) with respect to
any Option so that such Option shall be exercisable in full or in part, as the
Compensation Committee may, in its sole and absolute discretion, determine,
during such thirty day period.


 


In the case of
an Applicable Event, the Compensation Committee shall have discretion to make
adjustments or take other action with respect to Other Rights corresponding to
the provisions of the preceding paragraph.


 


Except as
expressly provided to the contrary in this Section 10, the issuance by the
Company of Common Shares or other equity securities of any class for cash or
property or for services, either upon direct sale or upon the exercise of
rights or warrants, or upon conversion of shares or obligations of the Company
convertible into


 


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such shares or
other securities, shall not affect the number, class or price of Common Shares
then subject to outstanding Options or Other Rights.


 


11.                               FORFEITURE
FOR DISHONESTY, VIOLATION OF AGREEMENTS OR TERMINATION FOR CAUSE


 


Notwithstanding
any provision of the Plan to the contrary, if the Compensation Committee
determines, after full consideration of the facts, that:


 


(a)           the
Optionee (or holder of Restricted Shares or Other Rights) has been engaged in
fraud, embezzlement or theft in the course of his or her employment by or
involvement with the Company or a Subsidiary, has made unauthorized disclosure
of trade secrets or other proprietary information of the Company or a
Subsidiary or of a third party who has entrusted such information to the
Company or a Subsidiary, or has been convicted of a felony, or crime involving
moral turpitude or any other crime which reflects negatively upon the Company;
or


 


(b)           the
Optionee (or holder of Restricted Shares or Other Rights) has violated the
terms of any employment, noncompetition, nonsolicitation, confidentiality,
nondisclosure or other similar agreement with the Company to which he is a
party; or


 


(c)           the
employment or involvement with the Company or a Subsidiary of the Optionee (or
holder of Restricted Shares or Other Rights) was terminated for “cause,” as
defined in any employment agreement with the Optionee (or holder of Restricted
Shares or Other Rights), if applicable, or if there is no such agreement, as
determined by the Compensation Committee, which may determine that “cause”
includes among other matters the willful failure or refusal of the Optionee (or
holder of Restricted Shares or Other Rights) to perform and carry out his or
her assigned duties and responsibilities diligently and in a manner
satisfactory to the Compensation Committee; then the Optionee’s right to
exercise an Option shall terminate as of the date of such act (in the case of (a) or
(b)) or such termination (in the case of (c)), the Optionee shall forfeit all
unexercised Options (or the holder shall forfeit all unvested Restricted Shares
or unvested Other Rights) and the Company shall have the right to repurchase
all or any part of the Common Shares acquired by the Optionee upon any previous
exercise of any Option (or any previous acquisition by the holder of Restricted
Shares or Other Rights, whether then vested or unvested), at a price equal to
the lower of (a) the amount paid to the Company upon such exercise or
acquisition, or (b) the Fair Market Value of such shares at the time of
repurchase. If an Optionee whose behavior the Company asserts falls within the
provisions of the clauses above has exercised or attempts to exercise an Option
prior to consideration of the application of this Section 11 or prior to a
decision of the Compensation Committee, the Company shall not be required to
recognize such exercise until the Compensation Committee has made its decision
and, in the event any exercise shall have taken place, it shall be of no force
and effect (and shall be void AB INITIO) if the Compensation Committee makes an
adverse determination; provided, however, that if the Compensation Committee
finds in favor of the Optionee then the Optionee will be deemed to have
exercised the Option retroactively as of the date he or she originally gave
notice of his or her attempt to exercise or actual exercise, as the case may
be. The decision of the Compensation Committee as to the cause of an Optionee’s
(or holder of Restricted Shares or Other Rights) discharge and the damage done
to the Company shall be final, binding and conclusive. No decision of the
Compensation Committee, however, shall affect in any manner the finality of the
discharge of such Optionee (or holder of Restricted Shares or Other Rights) by
the Company. For purposes of this Section 11, reference to the Company
shall include any Subsidiary.


 


12.                               MISCELLANEOUS


 


(a)           NO
GUARANTEE OF EMPLOYMENT OR OTHER SERVICE RELATIONSHIP. Neither the Plan nor any
Share Option Agreement, Restricted Share Agreement or SAR Agreement shall give
an employee the right to continue in the employment of the Company or a
Subsidiary or give the Company or a Subsidiary the right to require an employee
to continue in employment. Neither the Plan nor any Share Option Agreement,
Restricted Share Agreement or SAR Agreement shall give a director or other
service provider the right to continue to perform services for the Company or a
Subsidiary


 


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or
give the Company or a Subsidiary the right to require the director or service
provider to continue to perform services.


 


(b)           TAX
WITHHOLDING. To the extent required by law, the Company shall withhold or cause
to be withheld income and other taxes with respect to any income recognized by
an grantee by reason of the exercise or vesting of an Option or Restricted
Shares, or payments with respect to Other Rights, and as a condition to the
receipt of any Option, Restricted Share or Other Rights the grantee shall agree
that if the amount payable to him by the Company and any Subsidiary in the
ordinary course is insufficient to pay such taxes, then he shall upon the
request of the Company pay to the Company an amount sufficient to satisfy its tax
withholding obligations.


 


Without
limiting the foregoing, the Compensation Committee may in its discretion permit
any grantee’s withholding obligation to be paid in whole or in part in the form
of Common Shares by withholding from the shares to be issued or by accepting
delivery from the grantee of shares already owned by him. The Fair Market Value
of the shares for such purposes shall be determined as set forth in Section 5(b).
An Optionee may not make any such payment in the form of Common Shares acquired
upon the exercise of an ISO until the shares have been held by him for at least
two years after the date the ISO was granted and at least one year after the
date the ISO was exercised. If payment of withholding taxes is made in whole or
in part in Common Shares, the grantee shall deliver to the Company share
certificates registered in his name or other evidence of legal and beneficial
ownership of Common Shares owned by him, fully vested and free of all liens,
claims and encumbrances of every kind, duly endorsed or accompanied by stock
powers duly endorsed by the record holder of the shares represented by such
share certificates. If the grantee is subject to Section 16(a) of the
Exchange Act, his ability to pay his withholding obligation in the form of Common
Shares shall be subject to such additional restrictions as may be necessary to
avoid any transaction that might give rise to liability under Section 16(b) of
the Exchange Act.


 


(c)           USE
OF PROCEEDS.  The proceeds from the sale
of shares pursuant to Options shall constitute general funds of the Company.


 


(d)           CONSTRUCTION.  All masculine pronouns used in this Plan
shall include both sexes; the singular shall include the plural and the plural
the singular unless the context otherwise requires. The titles of the sections
of the Plan are included for convenience only and shall not be construed as
modifying or affecting their provisions. All other provisions of this Plan
notwithstanding, this Plan shall be administered and construed so as to avoid
any person who receives an Option or Other Right incurring any adverse tax
consequences under Code Section 409A. The Compensation Committee shall
suspend the application of any provision of the Plan which could, in the sole
determination of the Board of Directors, result in an adverse tax consequence
to any person under Code Section 409A.


 


(e)           GOVERNING
LAW.  This Plan shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to the principles of conflict of laws.


 


13.                               EFFECTIVE
DATE, DURATION, AMENDMENT AND TERMINATION OF PLAN


 


The Plan shall
be effective as of January 12, 2007, subject to ratification by (a) the
holders of a majority of the outstanding Common Shares present, or represented,
and entitled to vote thereon (voting as a single class) at a duly held meeting
of the shareholders of the Company or (b) by the written consent of the
holders of a majority (or such greater percentage as may be prescribed under
the Company’s Limited Liability Operating Company Agreement and applicable
state law) of the Common Shares entitled to vote thereon (voting as a single
class) within twelve months after such date. Options or Restricted Shares that
are conditioned upon the ratification of the Plan by the shareholders may be
granted prior to ratification. The Compensation Committee may grant Options,
Restricted Shares or Other Rights under the Plan from time to time until the
close of business on May 22, 2019. The Board may at any time amend the
Plan; provided, however, that without approval of the Company’s shareholders
there shall be no: (a) change in the number of Common Shares that may be
issued under the Plan, except by operation of the provisions of Section 10,
either to any one grantee or in the aggregate; (b) change in the class of
persons eligible to receive Options, Restricted Shares or Other Rights; or (c) other
change in the Plan that requires shareholder approval under applicable law. No
amendment shall adversely affect outstanding Options (or


 


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Restricted
Shares or Other Rights) without the consent of the Optionee (or holder of
Restricted Shares or Other Rights). The Plan may be terminated at any time by
action of the Board, but any such termination will not terminate any Option,
Restricted Shares or Other Rights then outstanding without the consent of the
Optionee or the holder of such Restricted Shares or Other Rights.


 


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