exv10w1






Exhibit 10.1



AMERISTAR CASINOS, INC.

2009 STOCK INCENTIVE PLAN


(Effective as of June 3, 2009)



     SECTION 1. Purposes.



     The purposes of the Ameristar Casinos, Inc. 2009 Stock Incentive Plan (the “Plan”) are to (i)
enable Ameristar Casinos, Inc. (the “Company”) and Related Companies (as defined below) to attract,
motivate and retain top-quality directors, officers, employees, consultants, advisers and
independent contractors (including without limitation dealers, distributors and other business
entities or persons providing services on behalf of the Company or a Related Company), (ii) provide
substantial incentives for Participants (as defined in Section 5) to act in the best interests of
the stockholders of the Company and (iii) reward extraordinary effort by Participants on behalf of
the Company or a Related Company. For purposes of the Plan, a “Related Company” means any
corporation, partnership, limited liability company, joint venture or other entity in which the
Company owns, directly or indirectly, at least a fifty percent (50%) beneficial ownership interest.



     SECTION 2. Types of Awards. Awards under the Plan may be in the form of (i) Stock
Options, (ii) Restricted Stock, (iii) Restricted Stock Units, or (iv) Performance Share Units.



     SECTION 3. Administration.



     3.1 Except as otherwise provided herein, the Plan shall be administered by the Compensation
Committee of the Board of Directors of the Company (the “Board”) or such other committee of
directors as the Board shall designate. If no such committee has been appointed by the Board, the
Plan shall be administered by the Board, and the Plan shall be administered by the Board to the
extent provided in the last sentence of this Section. Such committee as shall be designated to
administer the Plan, if any, or the Board, as the case may be, is referred to herein as the
“Committee.” Notwithstanding any other provision of the Plan to the contrary, all actions with
respect to the administration of the Plan in respect of the non-employee directors shall be taken
by the Board.



     3.2 The Committee shall have the following authority with respect to awards under the Plan to
Participants: to grant awards to eligible Participants under the Plan; to adopt, alter and repeal
such administrative rules, guidelines and practices governing the Plan as it shall deem advisable;
to interpret the terms and provisions of the Plan and any award granted under the Plan; to make all
factual and other determinations necessary or advisable for administration of the Plan; and to
otherwise supervise the administration of the Plan. In particular, and without limiting its
authority and powers, the Committee shall have the authority:




     (a) to determine whether and to what extent any award or combination of awards
will be granted hereunder;




     (b) to select the Participants to whom awards will
be granted;



 









 






     (c) to determine the number of shares of the common stock of the Company, $0.01
par value (the “Stock”), to be covered by each award granted hereunder, provided
that (i) no Participant will be granted Stock Options on or with respect to more
than 2,000,000 shares of Stock in any calendar year and (ii) no Participant will be
granted Performance Share Units, or any other award (other than Stock Options)
intended to qualify as “performance-based” within the meaning of Section 162(m) of
the Internal Revenue Code and Treasury Regulations thereunder (“Section 162(m)”, on
or with respect to more than 500,000 shares of Stock in any calendar year;




     (d) to determine the terms and conditions of any award granted hereunder,
including, but not limited to, any vesting or other restrictions based on completion
of a specified period of service, attainment of specified performance goals or such
other criteria as the Committee may determine, and to determine whether the terms
and conditions of the award are satisfied;




     (e) to determine the treatment of awards upon a Participant’s retirement,
disability, death, termination for cause or other termination of employment or other
qualifying relationship with the Company or a Related Company;




     (f) to determine that amounts equal to the amount of any dividends declared
with respect to the number of shares covered by an award (i) will be paid to the
Participant currently or (ii) will be deferred and deemed to be reinvested or (iii)
will otherwise be credited to the Participant, or that the Participant has no rights
with respect to such dividends (in each case, subject to any restrictions imposed by
Section 409A of the Internal Revenue Code and Treasury Regulations thereunder
(“Section 409A”));




     (g) to determine whether, to what extent, and under what circumstances Stock
and other amounts payable with respect to an award will be deferred either
automatically or at the election of a Participant, including providing for and
determining the amount (if any) of deemed earnings on any deferred amount during any
deferral period (in each case, subject to any restrictions imposed by Section 409A);




     (h) to provide that the shares of Stock received as a result of an award shall
be subject to a right of first refusal, pursuant to which the Participant shall be
required to offer to the Company any shares that the Participant wishes to sell,
subject to such terms and conditions as the Committee may specify;




     (i) subject to any restrictions imposed by Section 409A, to amend the terms of
any award, prospectively or retroactively; provided, however, that no amendment
shall impair the rights of the award holder without his or her consent;




     (j) subject to any restrictions imposed by Section 409A, to substitute new
Stock Options for previously granted Stock Options, or for options granted



-2-









 






under other plans, in each case including previously granted options having higher
option prices; and




     (k) to correct defects, supply omissions and reconcile inconsistencies with
respect to any awards made under the Plan in the manner and to the extent it shall
deem desirable to carry out the purpose of the Plan.



     3.3 All determinations made by the Committee pursuant to the provisions of the Plan shall be
final and binding on all persons, including the Company and all Participants.



     3.4 The Committee may from time to time delegate to one or more officers of the Company any or
all of its authority granted hereunder except with respect to awards granted to persons subject to
Section 16 of the Securities Exchange Act of 1934 (the “Exchange Act”). The Committee shall
specify the maximum number of shares that the officer or officers to whom such authority is
delegated may award, and the Committee may in its discretion specify any other limitations or
restrictions on the authority delegated to such officer or officers.



     SECTION 4. Stock Subject to Plan.



     4.1 The total number of shares of Stock reserved and available for distribution under the Plan
shall be 6,000,000 (subject to adjustment as provided in Section 4.3), any or all of which may be
issued with respect to Incentive Stock Options under the Plan. Shares of Stock issued in
connection with any award under the Plan may consist of authorized but unissued shares or treasury
shares.



     4.2 To the extent a Stock Option terminates without having been exercised, or shares awarded
are forfeited or a Restricted Stock Unit award or Performance Share Unit award terminates without
shares having been delivered to the Participant, the shares subject to such award shall again be
available for distribution in connection with future awards under the Plan, subject to the
limitations set forth in Section 4.1.



     4.3 In the event of any merger, reorganization, consolidation, sale of all or substantially
all assets, recapitalization, Stock dividend, Stock split, reverse Stock split, spin-off, split-up,
split-off, extraordinary cash dividend, distribution of assets or other change in corporate
structure affecting the Stock, a substitution or adjustment, as may be determined to be appropriate
by the Committee in its sole discretion, shall be made in the aggregate number and kind of shares
reserved for issuance under the Plan, the number and kind of shares or other property subject to
outstanding awards and the amounts to be paid by award holders or the Company, as the case may be,
with respect to outstanding awards; provided, however, that no such adjustment shall increase the
aggregate value of any outstanding award. In the event any change described in this Section 4.3
occurs and an adjustment is made in the outstanding awards, a similar adjustment shall be made in
the maximum number and kind of shares covered by Stock Options and other awards that may be granted
to any Participant pursuant to Section 3.2(c).



     4.4 No fractional shares shall be issued or delivered under the Plan. The Committee shall
determine whether the value of fractional shares shall be paid in cash or other property, or
whether such fractional shares and any rights thereto shall be cancelled without payment.



-3-









 





     SECTION 5. Eligibility.



     Persons who are or who agree to become directors, officers, employees, consultants, advisers
or independent contractors of the Company or a Related Company (including without limitation
dealers, distributors and other business entities or persons providing services on behalf of the
Company or a Related Company) are eligible to participate in the Plan. All employees of the
Company or a Related Company are eligible to be granted Incentive Stock Options. Persons who are
granted awards under the Plan (“Participants”) shall be selected from time to time by the
Committee, in its sole discretion, from among those eligible.



     SECTION 6. Stock Options.



     6.1 The Stock Options awarded to officers and employees under the Plan may be of two types:
(i) Incentive Stock Options within the meaning of Section 422 of the Internal Revenue Code or any
successor provision thereto (“Section 422”); and (ii) Non-Qualified Stock Options. If any Stock
Option does not qualify as an Incentive Stock Option, or the Committee at the time of grant
determines that any Stock Option shall be a Non-Qualified Stock Option, it shall constitute a
Non-Qualified Stock Option. Stock Options awarded to any Participant who is not an officer or
employee of the Company or a Related Company shall be Non-Qualified Stock Options.



     6.2 Subject to the following provisions, Stock Options awarded to Participants under the Plan
shall be in such form and shall have such terms and conditions as the Committee may determine:




     (a) Option Price. The option price per share of Stock purchasable
under a Stock Option shall be determined by the Committee, but shall not be less
than the Fair Market Value of the Stock on the date of award of the Stock Option.
For purposes of the Plan, Fair Market Value in relation to a share of the Stock
means (i) if the Stock is publicly traded, the mean between the highest and lowest
quoted selling prices of the Stock on the date in question or, if not available, on
the trading date immediately following such date or (ii) if the Stock is not
publicly traded, the fair market value as determined by the Committee in accordance
with Section 409A.




     (b) Option Term. The term of each Stock Option shall be fixed by the
Committee, but shall in no event be longer than one hundred twenty (120) months
after the date of grant of such Stock Option.




     (c) Exercisability. Stock Options shall be exercisable at such time or
times and subject to such terms and conditions as shall be determined by the
Committee. The Committee may waive any exercise or vesting provisions contained in
an award or accelerate the exercisability or vesting of outstanding Stock Options at
any time in whole or in part.




     (d) Method of Exercise. Stock Options may be exercised in whole or in
part at any time during the option period by giving written notice of exercise to



-4-









 






the Company specifying the number of shares to be purchased, accompanied by payment
of the purchase price. Payment of the purchase price shall be made in such manner
as the Committee may provide in the award, which may include cash (including cash
equivalents), delivery of shares of Stock acceptable to the Committee already owned
by the optionee or subject to awards hereunder, any other manner permitted by law as
determined by the Committee, or any combination of the foregoing. The Committee may
provide that all or part of the shares received upon the exercise of a Stock Option
which are paid for using Restricted Stock shall be restricted in accordance with the
original terms of the award in question.




     (e) No Stockholder Rights. An optionee shall have no rights to
dividends or other rights of a stockholder with respect to shares subject to a Stock
Option until the optionee has given written notice of exercise and has paid for such
shares, and the optionee has been duly recorded as the owner of the shares on the
books of the Company.




     (f) Surrender Rights. The Committee may provide that Stock Options may
be surrendered for cash upon any terms and conditions set by the Committee.




     (g) Non-Transferability; Limited Transferability. A Stock Option
agreement may permit an optionee to transfer the Stock Option to his or her
children, grandchildren or spouse (“Immediate Family”), to one or more trusts for
the benefit of such Immediate Family members, or to one or more partnerships or
limited liability companies in which such Immediate Family members are the only
partners or members if (i) the agreement setting forth such Stock Option expressly
provides that such Stock Option may be transferred only with the express written
consent of the Committee and (ii) the optionee does not receive any consideration in
any form whatsoever for such transfer other than the receipt of an interest in the
trust, partnership or limited liability company to which the Stock Option is
transferred. Any Stock Option so transferred shall continue to be subject to the
same terms and conditions as were applicable to such Stock Option immediately prior
to the transfer thereof. Any Stock Option not (x) granted pursuant to any agreement
expressly allowing the transfer of such Stock Option or (y) amended expressly to
permit its transfer shall not be transferable by the optionee otherwise than by will
or by the laws of descent and distribution, and such Stock Option shall be
exercisable during the optionee’s lifetime only by the optionee.




     (h) Termination of Relationship. If an optionee’s employment or other
qualifying relationship with the Company or a Related Company terminates by reason
of death, disability, retirement, voluntary or involuntary termination or otherwise,
the Stock Option shall be exercisable to the extent determined by the Committee;
provided, however, that unless employment or such other qualifying relationship is
terminated for cause (as may be defined by the Committee in connection with the
grant of any Stock Option), the Stock Option shall remain exercisable (to the extent
that it was otherwise exercisable on the date of



-5-









 






termination) for (A) at least six (6) months from the date of termination if
termination was caused by death or disability or (B) at least ninety (90) days from
the date of termination if termination was caused by other than death or disability,
but in no event beyond the option term fixed pursuant to Section 6.2(b). To the
extent permitted under Section 409A, the Committee may provide that, notwithstanding
the option term fixed pursuant to Section 6.2(b), a Stock Option which is
outstanding on the date of an optionee’s death shall remain outstanding for an
additional period after the date of such death.




     (i) Option Grants to Participants Subject to Section 16. If for any
reason any Stock Option granted to a Participant subject to Section 16 of the
Exchange Act is not approved in the manner provided for in clause (d)(1) or (d)(2)
of Rule 16b-3 under the Exchange Act or any successor rule (“Rule 16b-3”), neither
the Stock Option (except upon its exercise) nor the Stock underlying the Stock
Option may be disposed of by the Participant until six months have elapsed following
the date of grant of the Stock Option, unless the Committee otherwise specifically
permits such disposition.



     6.3 Notwithstanding the provisions of Section 6.2, no Incentive Stock Option shall (i) have an
option price which is less than one hundred percent (100%) of the Fair Market Value of the Stock on
the date of the award of the Stock Option (or less than one hundred ten percent (110%) of the Fair
Market Value of the Stock on the date of award of the Stock Option if the Participant owns, or
would be considered to own by reason of Section 424(d) of the Internal Revenue Code or any
successor provision thereto, more than ten percent (10%) of the total combined voting power of all
classes of stock of the Company or any parent or subsidiary of the Company at the time of the grant
of the Stock Option), (ii) be exercisable more than ten (10) years after the date such Incentive
Stock Option is awarded (five (5) years after the date of award if the Participant owns, or would
be considered to own by reason of Section 424(d) of the Internal Revenue Code or any successor
provision thereto, more than ten percent (10%) of the total combined voting power of all classes of
stock of the Company or any parent or subsidiary of the Company at the time of the grant of the
Stock Option), (iii) be awarded more than ten (10) years after the effective date of the Plan or
(iv) be transferable other than by will or by the laws of descent and distribution. In addition,
the aggregate Fair Market Value (determined as of the time a Stock Option is granted) of Stock with
respect to which Incentive Stock Options are exercisable for the first time by a Participant in any
calendar year (under the Plan and any other plans of the Company or any subsidiary or parent
corporation) shall not exceed $100,000.



     SECTION 7. Restricted Stock.



     Subject to the following provisions, all awards of Restricted Stock to Participants shall be
in such form and shall have such terms and conditions as the Committee may determine:




     (a) The Restricted Stock award shall specify the number of shares of Restricted
Stock to be awarded, the price, if any, to be paid by the recipient of the
Restricted Stock and the date or dates on which, or the conditions upon the
satisfaction of which, the Restricted Stock will vest. The vesting of Restricted
Stock may be conditioned upon the completion of a specified period of service



-6-









 






with the Company or a Related Company, upon the attainment of specified performance
goals or upon such other criteria as the Committee may determine.




     (b) Stock certificates representing the Restricted Stock awarded to an employee
shall be registered in the Participant’s name, but the Committee may direct that
such certificates be held by the Company on behalf of the Participant. Except as
may be permitted by the Committee, no share of Restricted Stock may be sold,
transferred, assigned, pledged or otherwise encumbered by the Participant until such
share has vested in accordance with the terms of the Restricted Stock award. At the
time Restricted Stock vests, a certificate for such vested shares shall be delivered
to the Participant (or his or her designated beneficiary in the event of death),
free of all restrictions.




     (c) The Committee may provide that the Participant shall have the right to vote
or receive dividends, or both, on Restricted Stock. Unless the Committee provides
otherwise, Stock received as a dividend on, or in connection with a stock split of,
Restricted Stock shall be subject to the same restrictions as the Restricted Stock.




     (d) Except as may be provided by the Committee, in the event of a Participant’s
termination of employment or other qualifying relationship with the Company or a
Related Company before all of his or her Restricted Stock has vested, or in the
event any conditions to the vesting of Restricted Stock have not been satisfied
prior to any deadline for the satisfaction of such conditions set forth in the
award, the shares of Restricted Stock which have not vested shall be forfeited, and
the Committee may provide that the lower of (i) any purchase price paid by the
Participant and (ii) the Restricted Stock’s aggregate Fair Market Value on the date
of forfeiture shall be paid in cash to the Participant.




     (e) The Committee may waive, in whole or in part, any or all of the conditions
to receipt of, or restrictions with respect to, any or all of the Participant’s
Restricted Stock.




     (f) If for any reason any Restricted Stock awarded to a Participant subject to
Section 16 of the Exchange Act is not approved in the manner provided for in clause
(d)(1) or (d)(2) of Rule 16b-3, the Restricted Stock may not be disposed of by the
Participant until six months have elapsed following the date of award of the
Restricted Stock, unless the Committee otherwise specifically permits such
disposition.



     SECTION 8. Restricted Stock Units and Performance Share Units.



     Subject to the following provisions, all awards of Restricted Stock Units (sometimes referred
to herein as “RSUs”) and Performance Share Units (sometimes referred to herein as “PSUs”) shall be
in such form and shall have such terms and conditions as the Committee may determine:



-7-









 






     (a) The Restricted Stock Unit or Performance Share Unit award shall specify the
number of RSUs or PSUs to be awarded and the duration of the period (the “Deferral
Period”) during which, and the conditions under which, receipt of the Stock will be
deferred. The Committee may condition the grant or vesting of Restricted Stock
Units, or receipt of Stock or cash at the end of the Deferral Period, upon the
completion of a specified period of service with the Company or a Related Company,
upon the attainment of specified performance goals or upon such other criteria as
the Committee may determine. RSUs whose grant or vesting is in whole or in part
conditioned on the attainment of specified performance goals may be referred to as
PSUs.




     (b) Except as may be provided by the Committee, RSU and PSU awards may not be
sold, transferred, assigned, pledged or otherwise encumbered by the Participant
during the Deferral Period.




     (c) At the expiration of the Deferral Period, the Participant (or his or her
designated beneficiary in the event of death) shall receive (i) certificates for the
number of shares of Stock equal to the number of shares covered by the RSU or PSU
award, (ii) cash equal to the Fair Market Value of such Stock or (iii) a combination
of shares and cash, as the Committee may determine.




     (d) Except as may be provided by the Committee, in the event of a Participant’s
termination of employment or other qualifying relationship with the Company or a
Related Company before the RSU or PSU has vested, his or her RSU or PSU award shall
be forfeited.




     (e) The Committee may waive, in whole or in part, any or all of the conditions
to receipt of, or restrictions with respect to, Stock or cash under a Restricted
Stock Unit award or Performance Share Unit award. However, the Committee shall not
accelerate the payment of an RSU or PSU if such acceleration would violate Section
409A.




     (f) If for any reason any RSU or PSU awarded to a Participant subject to
Section 16 of the Exchange Act is not approved in the manner provided for in clause
(d)(1) or (d)(2) of Rule 16b-3, the shares issuable with respect to such RSU or PSU
may not be disposed of by the Participant until six months have elapsed following
the date of award of the RSU or PSU, unless the Committee otherwise specifically
permits such disposition.



     SECTION 9. Performance Goals and Section 162(m) Requirements.



     9.1 The grant or vesting of any awards (other than Stock Options) intended to qualify as
“performance-based” within the meaning of Section 162(m) shall be subject to the achievement of
performance goals established by the Committee based on one or more of the following criteria:





	 	(1)	 	sales or other sales or revenue measures;




-8-









 






	 	(2)	 	operating income, earnings from operations,
earnings before or after taxes, or earnings before or after interest,
depreciation, amortization, or extraordinary or designated items;
	 
	 	(3)	 	net income or net income per common share
(basic or diluted);
	 
	 	(4)	 	operating efficiency ratio;
	 
	 	(5)	 	return on average assets, return on investment,
return on capital, or return on average equity;
	 
	 	(6)	 	cash flow, free cash flow, cash flow return on
investment, or net cash provided by operations;
	 
	 	(7)	 	economic profit or value created;
	 
	 	(8)	 	gross margin, operating margin or EBITDA
margin;
	 
	 	(9)	 	stock price or total stockholder return; and
	 
	 	(10)	 	strategic business criteria, consisting of one
or more objectives based on meeting specified business goals, such as
market share or geographic business expansion goals, cost targets,
customer satisfaction and goals relating to acquisitions, divestitures
or joint ventures.





     The targeted level or levels of performance with respect to such business criteria may be
established for the Company on a consolidated basis, and/or for specified subsidiaries or
affiliates or other business units of the Company, or for an individual, and may be established at
such levels and on such terms as the Committee may determine, in its discretion, including in
absolute terms, in relation to one another, as a goal relative to performance in prior periods, or
as a goal compared to the performance of one or more comparable companies or an index covering
multiple companies.



     The Committee may provide in any award granted under the Plan that any evaluation of
performance may include or exclude any of the following events that occurs during the performance
period for such award: (i) asset write-downs, (ii) litigation or claim judgments or settlements,
(iii) the effect of changes in tax laws, accounting principles or other laws or provisions
affecting reported results, (iv) any reorganization and restructuring programs, (v) extraordinary
nonrecurring items as described in Accounting Principles Board Opinion No. 30 and/or in
management’s discussion and analysis of financial condition and results of operations appearing in
the Company’s annual report to stockholders for the applicable year, (vi) the impact of adjustments
to the Company’s deferred tax asset valuation allowance, (vii) acquisitions or divestitures and
(viii) foreign exchange gains and losses. To the extent such inclusions or exclusions affect awards
intended to be performance-based within the meaning of Section 162(m), they shall be prescribed in
a form that meets the requirements of Section 162(m).



     9.2 The following additional requirements shall apply to awards (other than Stock Options)
that are intended to qualify as performance-based under Section 162(m):




     (a) the performance goals shall be established by the Committee not later than
the earlier of (i) 90 days after the beginning of the applicable performance period
or (ii) the time 25% of such performance period has elapsed;



-9-









 






     (b) the performance goals shall be objective and the achievement of such
performance goals shall be substantially uncertain (within the meaning of Section
162(m)) at the time the performance goals are established;




     (c) the amount of the award payable upon each level of achievement of the
performance goals must be objectively determinable, except that the Committee shall
have the right to reduce (but not increase) the amount payable, in its sole
discretion; and




     (d) prior to payment of any award, the Committee shall certify in writing, in a
manner which satisfies the requirements of Section 162(m), that the performance
goals have been satisfied.



     SECTION 10. Election to Defer Awards.



     Subject to any restrictions imposed by Section 409A, the Committee may permit a Participant to
elect to defer receipt of an award for a specified period or until a specified event, upon such
terms as are determined by the Committee.



     SECTION 11. Tax Withholding.



     11.1 Each Participant shall, no later than the date as of which the value of an award first
becomes includible in such person’s gross income for applicable tax purposes, pay to the Company,
or make arrangements satisfactory to the Committee (which may include delivery of shares of Stock
already owned by the optionee or subject to awards hereunder) regarding payment of, any federal,
state, local or other taxes of any kind required by law to be withheld with respect to the award.
The obligations of the Company under the Plan shall be conditional on such payment or arrangements,
and the Company (and, where applicable, any Related Company) shall, to the extent permitted by law,
have the right to deduct any such taxes from any payment of any kind otherwise due to the
Participant.



     11.2 To the extent permitted by the Committee, and subject to such terms and conditions as the
Committee may provide, a Participant may elect to have the minimum withholding tax obligation with
respect to any awards hereunder satisfied by (i) having the Company withhold shares of Stock
otherwise deliverable to such person with respect to the award or (ii) delivering to the Company
unrestricted shares of Stock. 



     SECTION 12. Amendments and Termination.



     No awards may be granted under the Plan more than ten (10) years after the date of approval of
the Plan by the stockholders of the Company, which was June 3, 2009. No award intended to qualify
as “performance-based compensation” within the meaning of Section 162(m) (other than Stock Options)
shall be granted after the first stockholder meeting that occurs in the fifth year after the most
recent stockholder approval of the material terms of the performance goals under the Plan.



-10-









 





     The Board may terminate the Plan at any earlier time and may amend it from time to time, in
each case after consideration of the consequences under Section 409A. No amendment or termination
of the Plan shall adversely affect any award previously granted without the award holder’s written
consent. Amendments may be made without stockholder approval except (i) if and to the extent
necessary to satisfy any applicable mandatory legal or regulatory requirements (including the
requirements of any stock exchange or over-the-counter market on which the Stock is listed or
qualified for trading and any requirements imposed under any state securities laws or regulations
as a condition to the registration of securities distributable under the Plan or otherwise) or (ii)
as required for the Plan to satisfy the requirements of Section 162(m), Section 422 or any other
non-mandatory legal or regulatory requirements if the Board deems it desirable for the Plan to
satisfy any such requirements.



     SECTION 13. Acceleration of Vesting in Certain Circumstances.



     13.1 Notwithstanding any other provision of the Plan, unless otherwise determined by the
Committee and expressly set forth in the agreement evidencing an award, in the event of a Change in
Control, (i) each Stock Option outstanding under the Plan which is not otherwise fully vested or
exercisable with respect to all of the shares of Stock at that time subject to such Stock Option
shall automatically accelerate so that each such Stock Option shall, immediately upon the effective
time of the Change in Control, become exercisable for all the shares of Stock at the time subject
to such Stock Option and may be exercised for any or all of those shares as fully vested shares of
Stock and (ii) all shares of Restricted Stock and all RSU and PSU awards outstanding under the Plan
which are not otherwise fully vested shall automatically accelerate so that all such shares of
Restricted Stock and RSU and PSU awards shall, immediately upon the effective time of the Change in
Control, become fully vested, free of all restrictions. In addition, to the extent permitted under
Section 409A, the Committee may, in the award agreement or otherwise, accelerate the payment date
of all or any portion of a Participant’s RSU and PSU awards upon or after a Change in Control.



     13.2 Notwithstanding any other provision of the Plan, unless otherwise determined by the
Committee and expressly set forth in the agreement evidencing an award, in the event of a Corporate
Transaction, (i) each Stock Option outstanding under the Plan which is not otherwise fully vested
or exercisable with respect to all of the shares of Stock at that time subject to such Stock Option
shall automatically accelerate so that each such Stock Option shall, immediately prior to the
effective time of the Corporate Transaction, become exercisable for all the shares of Stock at the
time subject to such Stock Option and may be exercised for any or all of those shares as fully
vested shares of Stock, and (ii) all shares of Restricted Stock and all RSU and PSU awards
outstanding under the Plan which are not otherwise fully vested shall automatically accelerate so
that all such shares of Restricted Stock and RSU and PSU awards shall, immediately prior to the
effective time of the Corporate Transaction, become fully vested, free of all restrictions. In
addition, to the extent permitted under Section 409A, the Committee may, in the award agreement or
otherwise, accelerate the payment date of all or any portion of a Participant’s RSU and PSU awards
immediately prior to or upon or after a Corporate Transaction.



     13.3 In addition, upon the dissolution or liquidation of the Company or upon any
reorganization, merger or consolidation as a result of which the Company is not the surviving



-11-









 







corporation (or survives as a wholly owned subsidiary of another corporation), or upon a sale
of substantially all the assets of the Company, the Committee may take such action as it in its
discretion deems appropriate to (i) cash out outstanding awards at or immediately prior to the date
of such event (based on the fair market value of the Stock at the time) and/or (ii) provide that
Stock Options shall be exercisable for a period of at least 10 business days from the date of
receipt of a notice from the Company of such proposed event, following the expiration of which
period any unexercised Stock Options shall terminate.



     13.4 As used in the Plan, a “Change in Control” shall be deemed to have occurred if:




     (a) Individuals who, as of January 30, 2009, constitute the entire Board
(“Incumbent Directors”) cease for any reason to constitute a majority of the Board;
provided, however, that any individual becoming a director subsequent to such date
whose election, or nomination for election by the Company’s stockholders, was
approved by the vote of a majority of the then Incumbent Directors (other than an
election or nomination of an individual whose assumption of office is the result of
an actual or threatened election contest relating to the election of directors of
the Company), also shall be an Incumbent Director; or




     (b) Any Person (as defined below) other than a Permitted Holder (as defined
below) shall become the beneficial owner (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act), directly or indirectly, of securities of the Company representing
in the aggregate fifty percent (50%) or more of either (i) the then outstanding
shares of Stock or (ii) the Combined Voting Power (as defined below) of all then
outstanding Voting Securities (as defined below) of the Company; provided, however,
that notwithstanding the foregoing, a Change in Control shall not be deemed to have
occurred for purposes of this clause (b) solely as the result of:




	 	(A)	 	An acquisition of securities by the Company which,
by reducing the number of shares of Stock or other Voting Securities
outstanding, increases (i) the proportionate number of shares of Stock
beneficially owned by any Person to fifty percent (50%) or more of the
shares of Stock then outstanding or (ii) the proportionate voting power
represented by the Voting Securities beneficially owned by any Person to
fifty percent (50%) or more of the Combined Voting Power of all then
outstanding Voting Securities; or
	 
	 	(B)	 	An acquisition of securities directly from the
Company, except that this Paragraph (B) shall not apply to:






	 	(1)	 	any conversion of a security
that was not acquired directly from the Company; or
	 
	 	(2)	 	any acquisition of securities
if the Incumbent Directors at the time of the initial approval
of such acquisition would not





-12-









 






	 	 	 	immediately after (or otherwise as a result of) such acquisition
constitute a majority of the Board.





     13.5 As used in the Plan, “Corporate Transaction” means (a) any merger, consolidation or
recapitalization of the Company (or, if the capital stock of the Company is affected, any
subsidiary of the Company), or any sale, lease or other transfer (in one transaction or a series of
transactions contemplated or arranged by any party as a single plan) of all or substantially all of
the assets of the Company (each of the foregoing being an “Acquisition Transaction”) where (i) the
stockholders of the Company immediately prior to such Acquisition Transaction would not immediately
after such Acquisition Transaction beneficially own, directly or indirectly, shares representing in
the aggregate more than fifty percent (50%) of (A) the then outstanding common stock of the
corporation surviving or resulting from such merger, consolidation or recapitalization or acquiring
such assets of the Company, as the case may be (the “Surviving Corporation”) (or of its ultimate
parent corporation, if any) and (B) the Combined Voting Power of the then outstanding Voting
Securities of the Surviving Corporation (or of its ultimate parent corporation, if any) or (ii) the
Incumbent Directors at the time of the initial approval of such Acquisition Transaction would not
immediately after such Acquisition Transaction constitute a majority of the board of directors of
the Surviving Corporation (or of its ultimate parent corporation, if any) or (b) the liquidation or
dissolution of the Company.



     13.6 For purposes of this Section 13:




     (a) “Combined Voting Power” shall mean the aggregate votes entitled to be cast
generally in the election of directors of a corporation by holders of the then
outstanding Voting Securities of such corporation;




     (b) “Permitted Holder” shall mean (i) the Company or any trustee or other
fiduciary holding securities under an employee benefit plan of the Company, (ii) to
the extent they hold securities in any capacity whatsoever, the Estate of Craig H.
Neilsen, deceased, and the heirs, ancestors, lineal descendants, stepchildren,
legatees and legal representatives of Craig H. Neilsen or his Estate, and the
trustees from time to time of any bona fide trusts of which Craig H. Neilsen or one
or more of the foregoing are the sole beneficiaries or grantors, including but not
limited to The Craig H. Neilsen Foundation, Ray H. Neilsen and his estate, spouse,
heirs, ancestors, lineal descendants, stepchildren, legatees and legal
representatives, and the trustees from time to time of any bona fide trusts of which
one or more of the foregoing are the sole beneficiaries or grantors and (iii) any
Person controlled, directly or indirectly, by one or more of the foregoing Persons
referred to in the immediately preceding clause (ii), whether through the ownership
of voting securities, by contract, in a fiduciary capacity, through possession of a
majority of the voting rights (as directors and/or members) of a not-for-profit
entity, or otherwise;




     (c) “Person” shall mean any individual, entity (including, without limitation,
any corporation (including, without limitation, any charitable corporation or
private foundation), partnership, limited liability company, trust (including,
without limitation, any private, charitable or split-interest trust), joint venture,



-13-









 






association or governmental body) or group (as defined in Section 13(d)(3) or
14(d)(2) of the Exchange Act and the rules and regulations thereunder); provided,
however, that “Person” shall not include the Company, any of its subsidiaries, any
employee benefit plan of the Company or any of its majority-owned subsidiaries or
any entity organized, appointed or established by the Company or such subsidiary for
or pursuant to the terms of any such plan; and




     (d) “Voting Securities” shall mean all securities of a corporation having the
right under ordinary circumstances to vote in an election of the board of directors
of such corporation.



     SECTION 14. General Provisions.



     14.1 If the granting of any award under the Plan or the issuance, purchase or delivery of
Stock thereunder shall require, in the determination of the Committee from time to time and at any
time, (i) the listing, registration or qualification of the Stock subject or related thereto upon
any securities exchange or over-the-counter market or under any federal or state law or (ii) the
consent or approval of any government regulatory body, then any such award shall not be granted or
exercised, and shares of Stock shall not be delivered thereunder, in whole or in part, unless such
listing, registration, qualification, consent or approval shall have been effected or obtained on
conditions, if any, as shall be acceptable to the Committee. In addition, in connection with the
granting or exercising of, or delivery of shares of Stock under, any award under the Plan, the
Committee may require the recipient to agree not to dispose of any Stock issuable in connection
with such award, except upon the satisfaction of specified conditions, if the Committee determines
such agreement is necessary or desirable in connection with any requirement or interpretation of
any federal or state securities law, rule or regulation.



     14.2 Nothing set forth in this Plan shall prevent the Board from adopting other or additional
compensation arrangements. Neither the adoption of the Plan nor any award hereunder shall confer
upon any employee of the Company, or of a Related Company, any right to continued employment, and
no award under the Plan shall confer upon any director, consultant, adviser or independent
contractor any right to continued service as such.



     14.3 Determinations by the Committee under the Plan relating to the form, amount and terms and
conditions of awards need not be uniform, and may be made selectively among persons who receive or
are eligible to receive awards under the Plan, whether or not such persons are similarly situated.



     14.4 No member of the Board or the Committee, nor any officer or employee of the Company
acting on behalf of the Board or the Committee, shall be personally liable for any action,
determination or interpretation taken or made with respect to the Plan, and all members of the
Board or the Committee and all officers or employees of the Company acting on their behalf shall,
to the extent permitted by law, be fully indemnified and protected by the Company in respect of any
such action, determination or interpretation.



     14.5 All awards granted under the Plan are intended to be exempt from the requirements of
Section 409A or, if not exempt, to satisfy the requirements of Section 409A, and



-14-









 







the provisions of the Plan and any award granted under the Plan shall be construed in a manner
consistent therewith. Notwithstanding any provision of the Plan or an award to the contrary, any
amounts payable under the Plan on account of termination of employment to a Participant who is a
“specified employee” within the meaning of Section 409A, as determined by the Committee in
accordance with Section 409A, which constitute “deferred compensation” within the meaning of
Section 409A and which are otherwise scheduled to be paid during the first six months following the
Participant’s termination of employment (other than any payments that are permitted under Section
409A to be paid within six months following termination of employment of a specified employee)
shall be suspended until the six-month anniversary of the Participant’s termination of employment,
at which time all payments that were suspended shall be paid to the Participant in a lump sum.



     SECTION 15. Effective Date of Plan.



     The Plan was adopted by the Board on January 30, 2009 subject to stockholder approval and
became effective upon approval by the stockholders of the Company on June 3, 2009.




-15-