exv10w17






Exhibit
10.17


EMDEON INC.

2009 EQUITY INCENTIVE PLAN




 









 








TABLE OF CONTENTS






	 	 	 	 	 
	 
	 	 	 	Page
	 
	Section 1.
	 	Purpose	 	1
	Section 2.
	 	Definitions	 	1
	Section 3.
	 	Administration	 	5
	Section 4.
	 	Shares Available For Awards	 	7
	Section 5.
	 	Eligibility	 	8
	Section 6.
	 	Stock Options And Stock Appreciation Rights	 	8
	Section 7.
	 	Restricted Shares And Restricted Share Units	 	10
	Section 8.
	 	Performance Awards	 	12
	Section 9.
	 	Other Stock-Based Awards	 	13
	Section 10.
	 	Non-Employee Director Awards	 	13
	Section 11.
	 	Provisions Applicable To Covered Officers And Performance Awards	 	13
	Section 12.
	 	Termination Of Employment	 	15
	Section 13.
	 	Change In Control	 	15
	Section 14.
	 	Amendment And Termination	 	16
	Section 15.
	 	General Provisions	 	17
	Section 16.
	 	Term Of The Plan	 	20






 









 






EMDEON INC.

2009 EQUITY INCENTIVE PLAN




Section 1. Purpose.




     This plan shall be known as the “Emdeon Inc. 2009 Equity Incentive Plan” (the “Plan”). The
purpose of the Plan is to promote the interests of Emdeon Inc., a Delaware corporation (the
“Company”), its Subsidiaries and its stockholders by (i) attracting and retaining key officers,
employees, and directors of, and consultants to, the Company and its Subsidiaries and Affiliates;
(ii) motivating such individuals by means of performance-related incentives to achieve long-range
performance goals; (iii) enabling such individuals to participate in the long-term growth and
financial success of the Company; (iv) encouraging ownership of stock in the Company by such
individuals; and (v) linking their compensation to the long-term interests of the Company and its
stockholders. With respect to any awards granted under the Plan that are intended to comply with
the requirements of “performance-based compensation” under Section 162(m) of the Code, the Plan
shall be interpreted in a manner consistent with such requirements.




     The Plan also represents the successor to the EBS Master LLC Amended and Restated EBS Incentive
Plan (the “EBS Master Incentive Plan”), which plan and awards outstanding thereunder were assumed
by the Company in connection with the reorganization transactions effected in connection with the
initial public offering of the Company’s Class A common stock. Awards issued and outstanding under
the EBS Master Incentive Plan as of the effective date of such assumption will be converted to
Awards under the Plan (the “Converted Awards”) and will be subject to the terms and conditions of
the Plan and the Award Agreements evidencing such Converted Awards. For the avoidance of doubt,
Converted Awards shall not constitute Substitute Awards.



Section 2. Definitions.




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



     (a) “Affiliate” shall mean (i) any entity that, directly or indirectly, is controlled by the
Company, (ii) any entity in which the Company has a significant equity interest, (iii) an affiliate
of the Company, as defined in Rule 12b-2 promulgated under Section 12 of the Exchange Act, and (iv)
any entity in which the Company has at least twenty percent (20%) of the combined voting power of
the entity’s outstanding voting securities, in each case as designated by the Board as being a
participating employer in the Plan; provided, that General Atlantic LLC, Hellman & Friedman LLC and
any of their respective affiliates shall not be considered “Affiliates” of the Company.



     (b) “Alternative Award” shall have the meaning set forth in Section 13.3 hereof.



     (c) “Award” shall mean any Option, Stock Appreciation Right, Restricted Share Award,
Restricted Share Unit, Performance Award, Other Stock-Based Award or other award granted under the
Plan, whether singly, in combination or in tandem, to a Participant by the Committee (or the Board)
pursuant to such terms, conditions, restrictions and/or limitations, if any, as the Committee (or
the Board) may establish or which are required by applicable legal requirements.



     (d) “Award Agreement” shall mean any written agreement, contract or other instrument or
document evidencing any Award, which may, but need not, be executed or acknowledged by a
Participant.



     (e) “Beneficial Ownership” (including correlative terms) shall have the meaning given such
term in Rule 13d-3 promulgated under the Exchange Act.



     (f) “Board” shall mean the Board of Directors of the Company.



     (g) “Cause” shall mean, unless otherwise defined in the applicable Award Agreement, the
Company or an Affiliate having “cause” to terminate a Participant’s employment or service, as
defined in any written employment agreement then in effect between the Participant and the Company
or Emdeon Business Services LLC, or, in the absence of such an agreement with respect to any
Participant, such



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Participant’s (i) failure to comply with the employment policies of the Company or any
Affiliate or a material breach of an employment, consulting or other agreement, including any
written confidentiality, non-compete, non-solicitation or business opportunity covenant contained
in any agreement entered into by such Participant and the Company or any Affiliate; (ii) commission
of any material act of dishonesty, breach of trust or misconduct in connection with performance of
employment-related duties; or (iii) conviction of, or pleading guilty or nolo contendere to, any
felony or to any crime involving dishonesty, theft or unethical business conduct, or conduct which
could impair or injure the Company or its reputation.



     (h) “Change in Control” shall mean, unless otherwise defined in the applicable Award
Agreement, any of the following events:




     (i) any person or entity, including a “group” as defined in Section 13(d)(3) of the
Exchange Act, other than (A) General Atlantic LLC, Hellman & Friedman LLC or any of their
respective affiliates or permitted transferees pursuant to the Sixth Limited Liability
Agreement of EBS Master LLC, as amended, (B) the Company or a wholly-owned subsidiary
thereof or (C) any employee benefit plan of the Company or any of its Subsidiaries, acquired
Beneficial Ownership of the Company’s securities having 50% (fifty percent) or more of the
combined voting power of the then outstanding securities of the Company that may be cast for
the election of directors of the Company (other than as a result of an issuance of
securities initiated by the Company in the ordinary course of business);




     (ii) as the result of, or in connection with, any cash tender or exchange offer, merger
or other business combination or any combination of the foregoing transactions, less than a
majority of the combined voting power of the then outstanding securities of the Company or
any successor company or entity entitled to vote generally in the election of the directors
of the Company or such other corporation or entity after such transaction are held in the
aggregate by the holders of the Company’s securities entitled to vote generally in the
election of directors of the Company immediately prior to such transaction;




     (iii) during any period of two (2) consecutive years, individuals who at the beginning
of any such period constitute the Board cease for any reason to constitute at least a
majority thereof, unless the election, or the nomination for election by the Company’s
shareholders, of each Director of the Company first elected during such period was approved
by a vote of at least two-thirds (2/3rds) of the Directors of the Company then still in
office who were (i) Directors of the Company at the beginning of any such period, and (ii)
not initially (a) appointed or elected to office as result of either an actual or threatened
election and/or proxy contest by or on behalf of a Person other than the Board, or (b)
designated by a Person who has entered into an agreement with the Company to effect a
transaction described in (i) or (ii) above or (iv) or (v) below;




     (iv) the Company’s shareholders approve a complete liquidation or dissolution of the
Company; or




     (v) the Company’s shareholders approve the sale or other disposition of all or
substantially all of the assets of the Company to any Person (other than a transfer to
Subsidiary).


Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because any
Person (the “Subject Person”) acquired Beneficial Ownership of more than fifty percent (50%) of the
combined voting power of the then outstanding voting securities of the Company as a result of the
acquisition of voting securities of the Company by the Company which, by reducing the number of
voting


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securities of the Company then outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Persons, provided that if (1) the Subject Person becomes the
Beneficial Owner of any new or additional voting securities of the Company in a related transaction
or (2) after such share acquisition by the Company the Subject Person becomes the Beneficial Owner
of any new or additional voting securities of the Company which in either case increases the
percentage of the then outstanding voting securities of the Company Beneficially Owned by the
Subject Person, then a Change in Control shall be deemed to occur.




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



     (j) “Committee” shall mean the Compensation Committee of the Board or a subcommittee thereof,
or such other committee designated by the Board to administer the Plan. To the extent that
compensation realized in respect of Awards is intended to be “performance based” under Section
162(m) and the Committee is not comprised solely of individuals who are “outside directors” within
the meaning of Section 162(m), the Committee may from time to time delegate some or all of its
functions under the Plan to a committee or subcommittee composed of members that meet the relevant
requirements.



     (k) “Consultant” shall mean any consultant to the Company or its Affiliates.



     (l) “Covered Officer” shall mean at any date (i) any individual who, with respect to the
previous taxable year of the Company, was a “covered employee” of the Company within the meaning of
Section 162(m); provided, however, that the term “Covered Officer” shall not include any such
individual who is designated by the Committee, in its discretion, at the time of any Award or at
any subsequent time, as reasonably expected not to be such a “covered employee” with respect to the
current taxable year of the Company or with respect to the taxable year of the Company in which any
applicable Award will be paid or vested and (ii) any individual who is designated by the Committee,
in its discretion, at the time of any Award or at any subsequent time, as reasonably expected to be
such a “covered employee” with respect to the current taxable year of the Company or with respect
to the taxable year of the Company in which any applicable Award will be paid or vested.



     (m) “Director” shall mean a member of the Board.



     (n) “Disability” shall mean, unless otherwise defined in the applicable Award Agreement, the
Company or an Affiliate having cause to terminate a Participant’s employment or service on account
of “disability,” as defined in any written employment agreement then in effect between the
Participant and the Company or Emdeon Business Services LLC, or, in the absence of such an agreement, a condition entitling the Participant to receive
benefits under a long-term disability plan of the Company or an Affiliate or, in the absence of
such a plan, the complete and permanent inability by reason of illness or accident to perform the
duties of the occupation at which a Participant was employed or served when such disability
commenced or, as determined by the Committee based upon medical evidence acceptable to it.



     (o) “Employee” shall mean a current or prospective officer or employee of the Company or any
Affiliate.



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



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     (q) “Fair Market Value” means, as of any date, the value of a Share as determined by the
Committee, in its discretion, subject to the following: (i) if, on such date, Shares are listed on
a national or regional securities exchange or market system, or Share prices are quoted on the Over
the Counter Bulletin Board (OTCBB), the Fair Market Value of a Share shall be the closing price of
a Share (or the mean of the closing bid and asked prices of a Share if the Share price is so quoted
instead) as quoted on such national, regional securities exchange, market system or OTCBB
constituting the primary market for the Shares, as reported in The Wall Street Journal, the
OTCBB or such other source as the Company deems reliable for such date; if the relevant date does
not fall on a day on which the Shares have traded over the counter or on such securities exchange
or market system, the date on which the Fair Market Value shall be established shall be the last
day on which the Shares were so traded prior to the relevant date, or such other appropriate day as
shall be determined by the Committee, in its discretion, and (ii) in the event there is no public
market for the Shares on such date, the fair market value as determined by the Board or Committee
pursuant to the reasonable application of such reasonable valuation method as the Board or
Committee in its sole discretion shall deem appropriate; provided, however, that, with respect to
Incentive Stock Options, “fair market value” shall be determined pursuant to Section 422(c)(7) of
the Code.



     (r) “Good Reason” shall mean, unless otherwise defined in an applicable Award Agreement, the
Participant having “good reason” to terminate employment or service with the Company or an
Affiliate, as defined in any existing employment agreement between the Participant and the Company
or Emdeon Business Services LLC or, in the absence of such an agreement (x) a material reduction in the Participant’s
base salary from the Company or (y) the relocation by more than 50 miles of the Participant’s principal place of employment with the Company.



     (s) “Grant Price” means the price established at the time of grant of an SAR pursuant to
Section 6 used to determine whether there is any payment due upon exercise of the SAR.



     (t) “Incentive Stock Option” shall mean an option to purchase Shares from the Company that is
granted under Section 6 of the Plan and that is intended to meet the requirements of
Section 422 of the Code or any successor provision thereto.



     (u) “Non-Qualified Stock Option” shall mean an option to purchase Shares from the Company that
is granted under Sections 6 or 10 of the Plan and is not an Incentive Stock Option.



     (v) “Non-Employee Director” shall mean a member of the Board who is not an officer or employee
of the Company or any Subsidiary of the Company.



     (w) “Option” shall mean an Incentive Stock Option or a Non-Qualified Stock Option.



     (x) “Option Price” shall mean the purchase price payable to purchase one Share upon the
exercise of an Option.



     (y) “Other Stock-Based Award” shall mean any Award granted under Sections 9 or
10 of the Plan.



     (z) “Participant” shall mean any Employee, Director, Consultant or other person who receives
an Award under the Plan.



     (aa) “Performance Award” shall mean any Award granted under Section 8 of the Plan.



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



     (cc) “Restricted Share” shall mean any Share granted under Sections 7 or 10 of
the Plan.



     (dd) “Restricted Share Award” shall mean any Award of Restricted Shares granted under under
Sections 7 or 10 of the Plan.



     (ee) “Restricted Share Unit” shall mean any unit granted under Sections 7 or
10 of the Plan.



     (ff) “Retirement” shall mean, unless otherwise defined in the applicable Award Agreement the Participant “retiring” from
providing services to the Company or an Affiliate, as defined in any existing employment agreement between the Participant and the Company or Emdeon Business Services LLC or, in the absence of such an agreement,
retirement of a Participant from the employ or service of the Company or any of its Affiliates at
normal retirement age in accordance with the terms of the applicable Company retirement plan or, if
a Participant is not covered by any such plan, retirement on or after such Participant’s 65th
birthday; provided, in no event shall termination by the Company with Cause be deemed Retirement.



     (gg) “SEC” shall mean the Securities and Exchange Commission or any successor thereto.



     (hh) “Section 16” shall mean Section 16 of the Exchange Act and the rules promulgated
thereunder and any successor provision thereto as in effect from time to time.



     (ii) “Section 162(m)” shall mean Section 162(m) of the Code and the regulations promulgated
thereunder and any successor provision thereto as in effect from time to time.



     (jj) “Shares” shall mean shares of the Class A common stock, $0.00001 par value, of the
Company.



     (kk) “Stock Appreciation Right” or “SAR” shall mean a stock appreciation right granted under
Sections 6 or 10 of the Plan that entitles the holder to receive, with respect to
each Share encompassed by the exercise of such SAR, the amount determined by the Committee and
specified in an Award Agreement. In the absence of such a determination, the holder shall be
entitled to receive, with respect to each Share encompassed by the exercise of such SAR, the excess
of the Fair Market Value of such Share on the date of exercise over the Grant Price applicable to
such SAR.



     (ll) “Subsidiary” shall mean any Person (other than the Company) of which a majority of its
voting power or its equity securities or equity interest is owned directly or indirectly by the
Company.



     (mm) “Substitute Awards” shall mean Awards granted solely in assumption of, or in substitution
for, outstanding awards previously granted by a company acquired by the Company or with which the
Company combines.



Section 3. Administration.




     3.1 Authority of Committee. The Plan shall be administered by the Committee, which shall be
appointed by and serve at the pleasure of the Board; provided, however, with respect to Awards to
Non-Employee Directors, all references in the Plan to the Committee shall be deemed to be
references to the Board. Subject to the terms of the Plan and applicable law, and in addition to
other express powers and authorizations conferred on the Committee by the Plan, the Committee shall
have full power and authority in its discretion to:



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     (i) designate Participants;




     (ii) determine eligibility for participation in the Plan and decide all questions
concerning eligibility for and the amount of Awards under the Plan;




     (iii) determine the type or types of Awards to be granted to a Participant;




     (iv) determine the number of Shares to be covered by, or with respect to which
payments, rights or other matters are to be calculated in connection with Awards;




     (v) determine the timing, terms, and conditions of any Award;




     (vi) accelerate the time at which all or any part of an Award may be settled or
exercised;




     (vii) determine whether, to what extent, and under what circumstances, Awards may be
settled or exercised in cash, Shares, other securities, other Awards or other property, or
canceled, forfeited or suspended and the method or methods by which Awards may be settled,
exercised, canceled, forfeited or suspended;




     (viii) determine whether, to what extent, and under what circumstances cash, Shares,
other securities, other Awards, other property, and other amounts payable with respect to an
Award shall be deferred either automatically or at the election of the holder thereof or of
the Committee;




     (ix) grant Awards as an alternative to, or as the form of payment for grants or rights
earned or payable under, other bonus or compensation plans, arrangements or policies of the
Company or any Affiliate;




     (x) grant Substitute Awards on such terms and conditions as the Committee may
prescribe, subject to compliance with the Incentive Stock Option rules under Section 422 of
the Code and the nonqualified deferred compensation rules under Section 409A of the Code,
where applicable;




     (xi) make all determinations under the Plan concerning termination of any Participant’s
employment or service with the Company or an Affiliate, including whether such termination
occurs by reason of Cause, Disability; Retirement, or in connection with a Change in Control
and whether a leave constitutes a termination of employment;




     (xii) interpret and administer the Plan and any instrument or agreement relating to, or
Award made under, the Plan;




     (xiii) except to the extent prohibited by Section 6.2, amend or modify the
terms of any Award at or after grant with the consent of the holder of the Award;




     (xiv) establish, amend, suspend or waive such rules and regulations and appoint such
agents as it shall deem appropriate for the proper administration of the Plan; and



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     (xv) make any other determination and take any other action that the Committee deems
necessary or desirable for the administration of the Plan, subject to the exclusive
authority of the Board under Section 14 hereunder to amend or terminate the Plan.
The exercise of an Option or receipt of an Award shall be effective only if an Award
Agreement shall have been duly executed and delivered on behalf of the Company following the
grant of the Option or other Award.



     3.2 Committee Discretion Binding. Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations, and other decisions under or with respect to the
Plan or any Award shall be within the sole discretion of the Committee, may be made at any time and
shall be final, conclusive, and binding upon all Persons, including the Company and any Affiliate,
any Participant and any holder or beneficiary of any Award. A Participant or other holder of an
Award may contest a decision or action by the Committee with respect to such person or Award only
on the grounds that such decision or action was arbitrary or capricious or was unlawful, and any
review of such decision or action shall be limited to determining whether the Committee’s decision
or action was arbitrary or capricious or was unlawful.



     3.3 Delegation. Subject to the terms of the Plan, the Committee’s charter and applicable law,
the Committee may delegate to one or more officers or managers of the Company or of any Affiliate,
or to a Committee of such officers or managers, the authority, subject to such terms and
limitations as the Committee shall determine, to grant Awards to or to cancel, modify or waive
rights with respect to, or to alter, discontinue, suspend or terminate Awards held by Participants
who are not officers or directors of the Company for purposes of Section 16 or who are otherwise
not subject to such Section.



Section 4. Shares Available For Awards.




     4.1 Shares Available. Subject to the provisions of Section 4.2 hereof, the stock to
be subject to Awards under the Plan shall be the Shares of the Company and the number of Shares
that may be delivered pursuant to Awards under the Plan shall be 17,300,000. Subject to, in the
case of ISOs, any limitations applicable thereto under the Code, if (a) any Shares are subject to
an Option, SAR, or other Award which for any reason expires or is terminated or canceled without
having been fully exercised or satisfied, or are subject to any Restricted Share Award (including
any Shares subject to a Participant’s Restricted Share Award that are repurchased by the Company at
the Participant’s cost), Restricted Share Unit Award or other Award granted under the Plan which
are forfeited, or (b) any Award based on Shares is settled for cash, expires or otherwise
terminates without the issuance of such Shares, the Shares subject to such Award shall, to the
extent of any such expiration, termination, cancellation, forfeiture or cash settlement, be
available for delivery in connection with future Awards under the Plan. If any Shares subject to
an Award are not delivered to a Participant because the Award is exercised through a reduction of
Shares subject to the Award (i.e., “net exercised”) or an appreciation distribution in respect of a
SAR is paid in Shares, then the number of Shares subject to the Award that are not delivered to the
Participant shall remain available for subsequent issuance under the Plan. If any Shares subject to
an Award are not delivered to a Participant because such Shares are withheld in satisfaction of the
withholding of taxes incurred in connection with the exercise of an Option, Stock Appreciation
Right, or the issuance of Shares under a Restricted Share Award or Restricted Share Unit, the
number of Shares that are not delivered to the Participant shall remain available for subsequent
issuance under the Plan. If the exercise price of any Award is satisfied by tendering Shares by
the Participant (either by actual delivery or attestation), then the number of Shares so tendered
shall remain available for subsequent issuance under the Plan. Notwithstanding the foregoing and
subject to adjustment as provided in Section 4.2 hereof, no Participant may receive Options
or SARs under the Plan in any calendar year that, taken together, relate to more than 1,500,000
Shares.



     4.2 Adjustments. In the event that any dividend or other distribution (whether in the form of
cash, Shares, other securities or other property), recapitalization, stock split, reverse stock
split,



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reorganization, merger, consolidation, split-up, spin-off, combination, repurchase or exchange of
Shares or other securities of the Company, issuance of warrants or other rights to purchase Shares
or other securities of the Company, or other similar corporate transaction or event affects the
Shares, then the Committee shall in an equitable and proportionate manner as deemed appropriate by
the Committee (and, as applicable, in such manner as is consistent with Sections 162(m), 422 and
409A of the Code and the regulations thereunder) either: (i) adjust any or all of (1) the aggregate
number of Shares or other securities of the Company (or number and kind of other securities or
property) with respect to which Awards may be granted under the Plan; (2) the number of Shares or
other securities of the Company (or number and kind of other securities or property) subject to
outstanding Awards under the Plan, provided that the number of Shares subject to any Award shall
always be a whole number; (3) the grant or exercise price with respect to any Award under the Plan;
and (4) the limits on the number of Shares or Awards that may be granted to Participants under the
Plan in any calendar year; (ii) provide for an equivalent award in respect of securities of the
surviving entity of any merger, consolidation or other transaction or event having a similar
effect; or (iii) make provision for a cash payment to the holder of an outstanding Award.



     4.3 Substitute Awards. Any Shares issued by the Company as Substitute Awards in connection
with the assumption or substitution of outstanding grants from any acquired corporation shall not
reduce the Shares available for Awards under the Plan.



     4.4 Sources of Shares Deliverable Under Awards. Any Shares delivered pursuant to an Award may
consist, in whole or in part, of authorized and unissued Shares or of issued Shares which have been
reacquired by the Company.



Section 5. Eligibility.




     Any Employee, Director or Consultant shall be eligible to be designated a Participant;
provided, however, that Non-Employee Directors shall only be eligible to receive Awards granted
consistent with Section 10.



Section 6. Stock Options And Stock Appreciation Rights.




     6.1 Grant. Subject to the provisions of the Plan including, without limitation, Section
3.3 above and other applicable legal requirements, the Committee shall have sole and complete
authority to determine the Participants to whom Options and SARs shall be granted, the number of
Shares subject to each Award, the exercise price and the conditions and limitations applicable to
the exercise of each Option and SAR. An Option may be granted with or without a related SAR. A
SAR may be granted with or without a related Option. The grant of an Option shall take place when
the Committee by resolution, written consent or other appropriate action determines to grant such
Option for a particular number of Shares to a particular Participant at a particular Option Price.
The Committee shall have the authority to grant Incentive Stock Options and to grant Non-Qualified
Stock Options. In the case of Incentive Stock Options, the terms and conditions of such grants
shall be subject to and comply with Section 422 of the Code, as from time to time amended, and any
regulations implementing such statute. A person who has been granted an Option or SAR under this
Plan may be granted additional Options or SARs under the Plan if the Committee shall so determine;
provided, however, that to the extent the aggregate Fair Market Value (determined at the time the
Incentive Stock Option is granted) of the Shares with respect to which all Incentive Stock Options
are exercisable for the first time by an Employee during any calendar year (under all plans
described in of Section 422(d) of the Code of the Employee’s employer corporation and its parent
and Subsidiaries) exceeds $100,000, such Options shall be treated as Non-Qualified Stock Options.



     6.2 Price. The Committee in its sole discretion shall establish the Option Price at the time
each Option is granted and the Grant Price at the time each SAR is granted. Except in the case of
Substitute



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Awards, the Option Price of an Option may not be less than one hundred percent (100%) of the Fair
Market Value of the Shares with respect to which the Option is granted on the date of grant of such
Option. In the case of Substitute Awards or Awards granted in connection with an adjustment
provided for in Section 4.2 of the Plan in the form of Options, such grants shall have an
Option Price per Share that is intended to maintain the economic value of the Award that was
replaced or adjusted, as determined by the Committee. Notwithstanding the foregoing and except as
permitted by the provisions of Section 4.2 hereof, the Committee shall not have the power
to (i) amend the terms of previously granted Options or SARs to reduce the Option Price of such
Options or the Grant Price of such SARs, or (ii) cancel such Options or SARs and grant substitute
Options or SARs with a lower Option Price or Grant Price than the cancelled Options or SARs, in
each case without the approval of the Company’s stockholders. Except with respect to Substitute
Awards, SARs may not have a Grant Price less than the Fair Market Value of a Share on the date of
grant.



     6.3 Term. Subject to the Committee’s authority under Section 3.1 and the provisions
of Section 6.6, each Option and SAR and all rights and obligations thereunder shall expire
on the date determined by the Committee and specified in the Award Agreement. The Committee shall
be under no duty to provide terms of like duration for Options or SARs granted under the Plan.
Notwithstanding the foregoing, but subject to the last sentence of Section 6.4(a), no
Option or SAR shall be exercisable after the expiration of ten (10) years from the date such Option
or SAR was granted.



     6.4 Exercise.



     (a) Each Option and SAR shall be exercisable at such times and subject to such terms and
conditions as the Committee may, in its sole discretion, specify in the applicable Award Agreement
or thereafter. The Committee shall have full and complete authority to determine whether an Option
or SAR will be exercisable in full at any time or from time to time during the term of the Option
or SAR, or to provide for the exercise thereof in such installments, upon the occurrence of such
events and at such times during the term of the Option or SAR as the Committee may determine. An
Award Agreement may provide that the period of time over which an Option, other than an Incentive
Stock Option, may be exercised shall be automatically extended if on the scheduled expiration of
such Option, the Participant’s exercise of such Option would violate applicable securities law;
provided, however, that during the extended exercise period the Option may only be exercised to the
extent the Option was exercisable in accordance with its terms immediately prior to such scheduled
expiration date; provided further, however, that such extended exercise period shall end not later
than thirty (30) days after the exercise of such Option first would no longer violate such laws.



     (b) The Committee may impose such conditions with respect to the exercise of Options,
including without limitation, any relating to the application of federal, state or foreign
securities laws or the Code, as it may deem necessary or advisable. The exercise of any Option
granted hereunder shall be effective only at such time as the sale of Shares pursuant to such
exercise will not violate any state or federal securities or other laws.



     (c) An Option or SAR may be exercised in whole or in part at any time, with respect to whole
Shares only, within the period permitted thereunder for the exercise thereof, and shall be
exercised by written notice of intent to exercise the Option or SAR, delivered to the Company at
its principal office, and payment in full to the Company at the direction of the Committee of the
amount of the Option Price for the number of Shares with respect to which the Option is then being
exercised.



     (d) Payment of the Option Price shall be made in (i) cash or cash equivalents, or, (ii) at the
discretion of the Committee, by transfer, either actually or by attestation, to the Company of
unencumbered Shares previously acquired by the Participant, valued at the Fair Market Value of such
Shares on the date of exercise (or next succeeding trading date, if the date of exercise is not a
trading date), together with any



9









 







applicable withholding taxes, such transfer to be upon such terms and conditions as determined
by the Committee, (iii) by a combination of (i) or (ii), or (iv) by any other method approved or
accepted by the Committee in its sole discretion, including, if the Committee so determines, (x) a
cashless (broker-assisted) exercise that complies with applicable laws or (y) withholding Shares
(net-exercise) otherwise deliverable to the Participant pursuant to the Option having an aggregate
Fair Market Value at the time of exercise equal to the total Option Price. Until the optionee has
been issued the Shares subject to such exercise, he or she shall possess no rights as a stockholder
with respect to such Shares.



     (e) At the Committee’s discretion, the amount payable to the Participant as a result of the
exercise of a SAR may be settled in cash, Shares or a combination of cash and Shares. A fractional
Share shall not be deliverable upon the exercise of a SAR but a cash payment will be made in lieu
thereof.



     6.5 Termination of Employment or Service. Except as otherwise provided in the applicable
Award Agreement, an Option may be exercised only to the extent that it is then exercisable, and if
at all times during the period beginning with the date of granting such Option and ending on the
date of exercise of such Option the Participant is an Employee, Non-Employee Director or
Consultant, and shall terminate immediately upon a termination of employment of the Participant.
Notwithstanding the foregoing provisions of this Section 6.5 to the contrary, the Committee
may determine in its discretion that an Option may be exercised following any such termination of
employment, whether or not exercisable at the time of such termination of employment; provided,
however, that in no event may an Option be exercised after the expiration date of such Option
specified in the applicable Award Agreement, except as provided in the last sentence of Section
6.4(a).



     6.6 Ten Percent Stock Rule. Notwithstanding any other provisions in the Plan, if at the time
an Option is otherwise to be granted pursuant to the Plan, the optionee or rights holder owns
directly or indirectly (within the meaning of Section 424(d) of the Code) Shares of the Company
possessing more than ten percent (10%) of the total combined voting power of all classes of Stock
of the Company or its parent or Subsidiary corporations (within the meaning of Section 422(b)(6) of
the Code), then any Incentive Stock Option to be granted to such optionee or rights holder pursuant
to the Plan shall satisfy the requirement of Section 422(c)(5) of the Code, and the Option Price
shall be not less than one hundred ten percent (110%) of the Fair Market Value of the Shares of the
Company, and such Option by its terms shall not be exercisable after the expiration of five (5)
years from the date such Option is granted.



     6.7 Buyout Provisions. Notwithstanding any other provision of the Plan, the Committee may at
any time offer to buy out for a payment in cash, Shares or Restricted Shares an Option previously
granted, based on such terms and conditions as the Committee shall establish and communicate to the
Participant at the time that such offer is made.



Section 7. Restricted Shares And Restricted Share Units.




     7.1 Grant.



     (a) Subject to the provisions of the Plan and other applicable legal requirements, the
Committee shall have sole and complete authority to determine the Participants to whom Restricted
Shares and Restricted Share Units shall be granted, the number of Restricted Shares and/or the
number of Restricted Share Units to be granted to each Participant, the duration of the period
during which, and the conditions under which, the Restricted Shares and Restricted Share Units may
be forfeited to the Company, and the other terms and conditions of such Awards. The Restricted
Share and Restricted Share Unit Awards shall be evidenced by Award Agreements in such form as the
Committee shall from time to time approve, which agreements shall comply with and be subject to the
terms and conditions provided hereunder and any additional terms and conditions established by the
Committee that are consistent with the terms of the Plan.



10









 





     (b) Each Restricted Share and Restricted Share Unit Award made under the Plan shall be for
such number of Shares as shall be determined by the Committee and set forth in the Award Agreement
containing the terms of such Restricted Share or Restricted Share Unit Award. Such agreement shall
set forth a period of time during which the grantee must remain in the continuous employment of the
Company in order for the forfeiture and transfer restrictions to lapse. If the Committee so
determines, the restrictions may lapse during such restricted period in installments with respect
to specified portions of the Shares covered by the Restricted Share or Restricted Share Unit Award.
The Award Agreement may also, in the discretion of the Committee, set forth performance or other
conditions that will subject the Shares to forfeiture and transfer restrictions. The Committee
may, at its discretion, waive all or any part of the restrictions applicable to any or all
outstanding Restricted Share and Restricted Share Unit Awards.



     7.2 Dividends and Other Distributions.



     (a) Prior to the lapse of any applicable transfer restrictions, Participants holding
Restricted Shares shall be credited with any cash dividends paid with respect to such Restricted
Shares while they are so held, unless determined otherwise by the Committee and set forth in the
Award Agreement. The Committee may apply any restrictions to such dividends that the Committee
deems appropriate. Except as set forth in the Award Agreement or otherwise determined by the
Committee, in the event (a) of any adjustment as provided in Section 4.2, or (b) any shares
or securities are received as a dividend, or an extraordinary dividend is paid in cash, on
Restricted Shares, any new or additional shares or securities or any extraordinary dividends paid
in cash received by a Participant on such Restricted Shares shall be subject to the same terms and
conditions, including any transfer restrictions, as relate to the original Restricted Shares.



     (b) The applicable Award Agreement will specify whether a Participant will be entitled to
receive dividend equivalent rights in respect of Restricted Stock Units at the time of any payment
of dividends to stockholders on Shares. If the applicable Award Agreement specifies that a
Participant will be entitled to receive dividend equivalent rights, (i) the amount of any such
dividend equivalent right shall equal the amount that would be payable to the Participant as a
stockholder in respect of a number of Shares equal to the number of Restricted Stock Units then
credited to the Participant, (ii) any such dividend equivalent right shall be paid in accordance
with the Company’s payment practices as may be established from time to time and as of the date on
which such dividend would have been payable in respect of outstanding Shares, and (iii) the
applicable Award Agreement will specify whether dividend equivalents shall be paid in respect of
Restricted Share Units that are not yet vested.



     7.3 Transfer Restrictions on Restricted Shares. At the time of a Restricted Share Award, a
certificate representing the number of Shares awarded thereunder shall be registered in the name of
the grantee. Such certificate shall be held by the Company or any custodian appointed by the
Company for the account of the grantee subject to the terms and conditions of the Plan, and shall
bear such a legend setting forth the restrictions imposed thereon as the Committee, in its
discretion, may determine. The foregoing to the contrary notwithstanding, the Committee may, in
its discretion, provide that a Participant’s ownership of Restricted Shares prior to the lapse of
any transfer restrictions or any other applicable restrictions shall, in lieu of such certificates,
be evidenced by a “book entry” (i.e., a computerized or manual entry) in the records of the Company
or its designated agent in the name of the Participant who has received such Award, and
confirmation and account statements sent to the Participant with respect to such book-entry Shares
may bear the restrictive legend referenced in the preceding sentence. Such records of the Company
or such agent shall, absent manifest error, be binding on all Participants who receive Restricted
Share Awards evidenced in such manner. The holding of Restricted Shares by the Company or such an
escrow holder, or the use of book entries to evidence the ownership of Restricted Shares, in
accordance with this Section 7.3, shall not affect the rights of Participants as owners of the
Restricted Shares awarded to them, nor affect the



11









 







restrictions applicable to such shares under the Award Agreement or the Plan, including the
transfer restrictions.



     7.4 Other Rights of Restricted Stockholders. Unless otherwise provided in the applicable
Award Agreement, the grantee shall have all other rights of a stockholder with respect to the
Restricted Shares, including the right to vote such Shares, subject to the following restrictions:
(i) the grantee shall not be entitled to delivery of the stock certificate until the expiration of
the restricted period and the fulfillment of any other restrictive conditions set forth in the
Award Agreement with respect to such Shares; (ii) none of the Shares may be sold, assigned,
transferred, pledged, hypothecated or otherwise encumbered or disposed of during such restricted
period or until after the fulfillment of any such other restrictive conditions; and (iii) except as
otherwise determined by the Committee at or after grant, all of the Shares shall be forfeited and
all rights of the grantee to such Shares shall terminate, without further obligation on the part of
the Company, unless the grantee remains in the continuous employment of the Company for the entire
restricted period in relation to which such Shares were granted and unless any other restrictive
conditions relating to the Restricted Share Award are met.



     7.5 Termination of Restrictions on Restricted Shares. At the end of the restricted period and
provided that any other restrictive conditions of the Restricted Share Award are met, or at such
earlier time as otherwise determined by the Committee, all restrictions set forth in the Award
Agreement relating to the Restricted Share Award or in the Plan shall lapse as to the restricted
Shares subject thereto, and a stock certificate for the appropriate number of Shares, free of the
restrictions and restricted stock legend, shall be delivered to the Participant or the
Participant’s beneficiary or estate, as the case may be (or, in the case of book-entry Shares, such
restrictions and restricted stock legend shall be removed from the confirmation and account
statements delivered to the Participant or the Participant’s beneficiary or estate, as the case may
be, in book-entry form).



     7.6 Payment of Restricted Share Units. Each Restricted Share Unit shall have a value equal to
the Fair Market Value of a Share. Restricted Share Units shall be paid in cash, Shares, other
securities or other property, as determined in the sole discretion of the Committee, upon the lapse
of the restrictions applicable thereto, or otherwise in accordance with the applicable Award
Agreement. Except as otherwise determined by the Committee at or after grant, Restricted Share
Units may not be sold, assigned, transferred, pledged, hypothecated or otherwise encumbered or
disposed of, and all Restricted Share Units and all rights of the grantee to such Restricted Share
Units shall terminate, without further obligation on the part of the Company, unless the grantee
remains in continuous employment of the Company for the entire restricted period in relation to
which such Restricted Share Units were granted and unless any other restrictive conditions relating
to the Restricted Share Unit Award are met. Except as otherwise provided in the Plan or the
applicable Award Agreement, a Participant shall have no rights of a stockholder with respect to
Restricted Share Units.



Section 8. Performance Awards.




     8.1 Grant. The Committee shall have sole and complete authority to determine the Participants
who shall receive a Performance Award, which shall consist of a right that is (i) denominated in
cash or Shares (including but not limited to Restricted Shares and Restricted Share Units), (ii)
valued, as determined by the Committee, in accordance with the achievement of such performance
goals during such performance periods as the Committee shall establish, and (iii) payable at such
time and in such form as the Committee shall determine.



     8.2 Terms and Conditions. Subject to the terms of the Plan and any applicable Award
Agreement, the Committee shall determine the performance goals to be achieved during any
performance period, the length of any performance period, the amount of any Performance Award and
the amount and



12









 







kind of any payment or transfer to be made pursuant to any Performance Award, and may amend
specific provisions of the Performance Award; provided, however, that such amendment may not
adversely affect existing Performance Awards made within a performance period commencing prior to
implementation of the amendment.



     8.3 Payment of Performance Awards. Performance Awards may be paid in a lump sum or in
installments following the close of the performance period or, in accordance with the procedures
established by the Committee, on a deferred basis. Notwithstanding the foregoing, the Committee
may in its discretion, waive any performance goals and/or other terms and conditions relating to a
Performance Award. A Participant’s rights to any Performance Award may not be sold, assigned,
transferred, pledged, hypothecated or otherwise encumbered or disposed of in any manner, except by
will or the laws of descent and distribution, and/or except as the Committee may determine at or
after grant.



     8.4 Termination of Employment or Service. Each Award Agreement shall set forth the extent to
which the Participant shall have the right to retain Performance Awards following such
Participant’s termination of employment. Such provisions shall be determined in the sole
discretion of the Committee, shall be included in the applicable Award Agreement, not need be
uniform among all such Awards issued pursuant to the Plan, and may reflect distinctions based on
the reasons for the termination of employment.



Section 9. Other Stock-Based Awards.




     The Committee shall have the authority to determine the Participants who shall receive an
Other Stock-Based Award, which shall consist of any right that is (i) not an Award described in
Sections 6 or 7 above and (ii) an Award of Shares or an Award denominated or
payable in, valued in whole or in part by reference to, or otherwise based on or related to, Shares
(including, without limitation, securities convertible into Shares), as deemed by the Committee to
be consistent with the purposes of the Plan. Subject to the terms of the Plan and any applicable
Award Agreement, the Committee shall determine the terms and conditions of any such Other
Stock-Based Award.



Section 10. Non-Employee Director Awards.




     10.1 The Board may provide that all or a portion of a Non-Employee Director’s annual retainer,
meeting fees and/or other awards or compensation as determined by the Board, be payable (either
automatically or at the election of a Non-Employee Director) in the form of Non-Qualified Stock
Options, Restricted Shares, Restricted Share Units and/or Other Stock-Based Awards, including
unrestricted Shares. The Board shall determine the terms and conditions of any such Awards,
including the terms and conditions which shall apply upon a termination of the Non-Employee
Director’s service as a member of the Board, and shall have full power and authority in its
discretion to administer such Awards, subject to the terms of the Plan and applicable law.



     10.2 Subject to applicable legal requirements, the Board may also grant Awards to Non-Employee
Directors pursuant to the terms of the Plan, including any Award described in Sections 6,
7 or 9 above.



Section 11. Provisions Applicable To Covered Officers And Performance Awards.




     11.1 Notwithstanding anything in the Plan to the contrary, unless the Committee determines
that a Performance Award to be granted to a Covered Officer should not qualify as
“performance-based compensation” for purposes of Section 162(m), Performance Awards granted to
Covered Officers shall be subject to the terms and provisions of this Section 11.
Accordingly, unless otherwise determined by the Committee, if any provision of the Plan or any
Award Agreement relating to such an Award does not



13









 







comply or is inconsistent with Section 162(m), such provision shall be construed or deemed amended
to the extent necessary to conform to such requirements, and no provision shall be deemed to confer
upon the Committee discretion to increase the amount of compensation otherwise payable to a Covered
Officer in connection with any such Award upon the attainment of the performance criteria
established by the Committee.



     11.2 The Committee may grant Performance Awards to Covered Officers based solely upon the
attainment of performance targets related to one or more performance goals selected by the
Committee from among the goals specified below. For the purposes of this Section 11,
performance goals shall be limited to one or more of the following Company, Subsidiary, operating
unit, business segment or division financial performance measures:




	 	(a)	 	earnings before interest, taxes, depreciation and/or amortization;
	 
	 	(b)	 	operating income or profit;
	 
	 	(c)	 	operating efficiencies;
	 
	 	(d)	 	return on equity, assets, capital, capital employed or investment;
	 
	 	(e)	 	net income;
	 
	 	(f)	 	earnings (gross, net, pre-tax, after tax or per share);
	 
	 	(g)	 	utilization;
	 
	 	(h)	 	gross or net profit margins;
	 
	 	(i)	 	stock price or total stockholder return;
	 
	 	(j)	 	customer growth or sales;
	 
	 	(k)	 	debt reduction;
	 
	 	(l)	 	revenue
	 
	 	(m)	 	market share
	 
	 	(n)	 	strategic business objectives, consisting of one or more objectives based on meeting
specified cost targets, business expansion goals or goals relating to acquisitions or
divestitures; or
	 
	 	(o)	 	any combination thereof.




Each goal may be expressed on an absolute and/or relative basis, may be based on or otherwise
employ comparisons based on internal targets, the past performance of the Company or any
Subsidiary, operating unit, business segment or division of the Company and/or the past or current
performance of other companies, and in the case of earnings-based measures, may use or employ
comparisons relating to capital, stockholders’ equity and/or Shares outstanding, or to assets or
net assets. The Committee may appropriately adjust any evaluation of performance under criteria
set forth in this Section 11.2 to exclude any of the following events that occurs during a
performance period: (i) asset write-downs, (ii) litigation




14









 





or claim judgments or settlements, (iii) the effect of changes in tax law, accounting principles or
other such laws or provisions affecting reported results, (iv) accruals for reorganization and
restructuring programs and (v) any extraordinary non-recurring 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.




     11.3 With respect to any Covered Officer, the maximum annual number of Shares in respect of
which all Performance Awards may be granted under Section 8 of the Plan is 1,500,000 and
the maximum amount of all Performance Awards that are settled in cash and that may be granted under
Section 8 of the Plan in any year is $5,000,000.



     11.4 To the extent necessary to comply with Section 162(m), with respect to grants of
Performance Awards, no later than 90 days following the commencement of each performance period (or
such other time as may be required or permitted by Section 162(m) of the Code), the Committee
shall, in writing, (1) select the performance goal or goals applicable to the performance period,
(2) establish the various targets and bonus amounts which may be earned for such performance
period, and (3) specify the relationship between performance goals and targets and the amounts to
be earned by each Covered Officer for such performance period. Following the completion of each
performance period, the Committee shall certify in writing whether the applicable performance
targets have been achieved and the amounts, if any, payable to Covered Officers for such
performance period. In determining the amount earned by a Covered Officer for a given performance
period, subject to any applicable Award Agreement, the Committee shall have the right to reduce
(but not increase) the amount payable at a given level of performance to take into account
additional factors that the Committee may deem relevant in its sole discretion to the assessment of
individual or corporate performance for the performance period.



Section 12. Termination Of Employment.




     The Committee shall have the full power and authority to determine the terms and conditions
that shall apply to any Award upon a termination of employment with the Company or its Affiliates,
including a termination by the Company with or without Cause, by a Participant voluntarily, or by
reason of death, Disability or Retirement, and may provide such terms and conditions in the Award
Agreement or in such rules and regulations as it may prescribe.



Section 13. Change In Control.




     13.1 Accelerated Vesting and Payment of Awards. The Committee may, in its discretion, either
by the terms of an Award Agreement or by resolution adopted prior to the occurrence of a Change in
Control, provide that in the event of a Change in Control, each Option and SAR then outstanding
shall be fully exercisable regardless of the exercise schedule otherwise applicable to such Option
and/or SAR, and the Restricted Period shall lapse as to each Restricted Share and each Restricted
Share Unit then outstanding. In connection with such a Change in Control, the Committee may, in
its discretion, either by the terms of the Award Agreement applicable to any Award or by resolution
adopted prior to the occurrence of the Change in Control, provide that each Option, SAR, Restricted
Share, Restricted Share Unit and/or Other Stock-Based Award shall, upon the occurrence of such
Change in Control, be cancelled in exchange for a payment in cash in an amount based on the fair
market value of the Shares subject to the Award (less any Exercise or Grant Price) with reference
to the Change in Control consideration, which amount may be zero (0) if applicable.



     13.2 Performance Awards. The Committee may, in its discretion, either by the terms of an Award
Agreement or by resolution adopted prior to the occurrence of a Change in Control, provide that in
the event of a Change in Control, (a) any outstanding Performance Awards relating to performance
periods



15









 







ending prior to the Change in Control which have been earned but not paid shall become immediately
payable, (b) all then-in-progress Performance periods for Performance Awards that are outstanding
shall end, and either (i) all Participants shall be deemed to have earned an award equal to the
Participant’s target award opportunity for the Performance period in question, or (ii) at the
Committee’s discretion, the Committee shall determine the extent to which performance criteria have
been met with respect to each such Performance Awards and (c) the Company shall cause to be paid to
each Participant such partial or full Performance Awards, in cash, Shares or other property as
determined by the Committee, within thirty (30) days of such Change in Control, based on the Change
in Control consideration, which amount may be zero (0) if applicable.



     13.3 No Implied Rights; Other Limitations. No Participant shall have any right to prevent the
consummation of any of the acts described in Section 4.2 or Section 13.1 affecting
the number of Shares available to, or other entitlement of, such Participant under the Plan or such
Participant’s Award. Any actions or determinations of the Committee under this Section 13
need not be uniform as to all outstanding Awards, nor treat all Participants identically. Any
changes to Incentive Stock Options pursuant to this Section 13 shall, unless the Committee
determines otherwise, only be effective to the extent such adjustments or changes do not cause a
“modification” (within the meaning of Section 424(h)(3) of the Code) of such Incentive Stock
Options or adversely affect the tax status of such Incentive Stock Options.



     13.4 Termination, Amendment, and Modifications of Change in Control Provisions.
Notwithstanding any other provision of the Plan (but subject to the limitations of Section
14.1 and Section 14.2) or any Award Agreement provision, the provisions of this
Section 13 may not be terminated, amended, or modified on or after the date of a Change in
Control to materially impair any Participant’s Award theretofore granted and then outstanding under
the Plan without the prior written consent of such Participant.



Section 14. Amendment And Termination.




     14.1 Amendments to the Plan. The Board may amend, alter, suspend, discontinue or terminate
the Plan or any portion thereof at any time; provided that no such amendment, alteration,
suspension, discontinuation or termination shall be made without stockholder approval if such
approval is necessary to comply with any tax or regulatory requirement for which or with which the
Board deems it necessary or desirable to comply.



     14.2 Amendments to Awards. Subject to the restrictions and shareholder approval requirements
set forth in Section 6.2, the Committee may waive any conditions or rights under, amend any
terms of or alter, suspend, discontinue, cancel or terminate, any Award theretofore granted,
prospectively or retroactively; provided that any such waiver, amendment, alteration, suspension,
discontinuance, cancellation or termination that would materially and adversely affect the rights
of any Participant or any holder or beneficiary of any Award theretofore granted shall not to that
extent be effective without the consent of the affected Participant, holder or beneficiary.



     14.3 Adjustments of Awards Upon the Occurrence of Certain Unusual or Nonrecurring Events. The
Committee is hereby authorized to make equitable and proportionate adjustments in the terms and
conditions of, and the criteria included in, Awards in recognition of unusual or nonrecurring
events (and shall make such adjustments for events described in Section 4.2 hereof)
affecting the Company or any Affiliate, or the financial statements of the Company or any
Affiliate, or of changes in applicable laws, regulations or accounting principles.



     14.4 Section 409A Compliance. No Award (or modification thereof) shall provide for deferral
of compensation that does not comply with Section 409A of the Code unless the Committee, at the
time



16









 







of grant, specifically provides that the Award is not intended to comply with Section 409A of the
Code. Notwithstanding any provision of this Plan to the contrary, if one or more of the payments
or benefits received or to be received by a Participant pursuant to an Award would cause the
Participant to incur any additional tax or interest under Section 409A of the Code, the Committee
may reform such provision to maintain to the maximum extent practicable the original intent of the
applicable provision without violating the provisions of Section 409A of the Code.



Section 15. General Provisions.




     15.1 Limited Transferability of Awards. Subject to this Section 15.1, each Award
shall be exercisable only by a Participant during the Participant’s lifetime, or, if permissible
under applicable law, by the Participant’s legal guardian or representative. No Award may be
assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a
Participant other than by will or by the laws of descent and distribution and any such purported
assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and
unenforceable against the Company and its Affiliates; provided that the designation of a
beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or
encumbrance.



          (a) Notwithstanding the foregoing, the Committee may, in its sole discretion, permit Awards
other than Incentive Stock Options to be transferred by a Participant, without consideration,
subject to such rules as the Committee may adopt consistent with any applicable Award Agreement to
preserve the purposes of the Plan, to:





	 	(i)	 	any person who is a “family member” of the Participant, as such term
is used in the instructions to Form S-8 (collectively, the “Immediate
Family Members”);
	 
	 	(ii)	 	a trust solely for the benefit of the Participant and his or her
Immediate Family Members;
	 
	 	(iii)	 	a partnership or limited liability company whose only partners or
shareholders are Persons descrtibed in (i) or (ii) above; or
	 
	 	(iv)	 	any other transferee as may be approved by the Committee in its sole
discretion or as provided in the applicable Award agreement;




(each transferee described in clauses (i), (ii), (iii) and (iv) above is hereinafter referred
to as a “Permitted Transferee”); provided that the Participant gives the Committee
advance written notice describing the terms and conditions of the proposed transfer and the
Committee notifies the Participant in writing that such a transfer would comply with the
requirements of the Plan and any applicable Award Agreement.




          (b) The terms of any Award transferred in accordance with the immediately preceding Section
shall apply to the Permitted Transferee and any reference in the Plan, or in any applicable Award
Agreement, to a Participant shall be deemed to refer to the Permitted Transferee, except that (i)
Permitted Transferees shall not be entitled to transfer any Award, other than by will or the laws
of descent and distribution; (ii) Permitted Transferees shall not be entitled to exercise any
transferred Option unless there shall be in effect a registration statement on an appropriate form
covering the Shares to be acquired pursuant to the exercise of such Option if the Committee
determines, consistent with any applicable Award Agreement, that such a registration statement is
necessary or appropriate, (iii) the Committee or the Company shall not be required to provide any
notice to a Permitted Transferee, whether or not such notice is or would otherwise have been
required to be given to the Participant under the Plan or otherwise, and (iv) the consequences of
the termination of the Participant’s employment by, or services



17









 






to, the Company or an Affiliate under the terms of the Plan and the applicable Award agreement
shall continue to be applied with respect to the Participant, including, without limitation, that
an Option shall be exercisable by the Permitted Transferee only to the extent, and for the periods,
specified in the Plan and the applicable Award Agreement.




     15.2 Dividend Equivalents. In the sole and complete discretion of the Committee, an Award may
provide the Participant with dividends or dividend equivalents, payable in cash, Shares, other
securities or other property on a current or deferred basis. All dividend or dividend equivalents
which are not paid currently may, at the Committee’s discretion, accrue interest, be reinvested
into additional Shares, or, in the case of dividends or dividend equivalents credited in connection
with Performance Awards, be credited as additional Performance Awards and paid to the Participant
if and when, and to the extent that, payment is made pursuant to such Award. The total number of
Shares available for grant under Section 4 shall not be reduced to reflect any dividends or
dividend equivalents that are reinvested into additional Shares or credited as Performance Awards.



     15.3 No Rights to Awards. No Person shall have any claim to be granted any Award, and there
is no obligation for uniformity of treatment of Participants or holders or beneficiaries of Awards.
The terms and conditions of Awards need not be the same with respect to each Participant.



     15.4 Share Certificates. All certificates for Shares or other securities of the Company or
any Affiliate (or, if any such Shares or securities are in book-entry form, such book-entry
balances and confirmation and account statements with respect thereto) delivered under the Plan
pursuant to any Award or the exercise thereof shall be subject to such stop transfer orders and
other restrictions as the Committee may deem advisable under the Plan or the rules, regulations and
other requirements of the SEC or any state securities commission or regulatory authority, any stock
exchange or other market upon which such Shares or other securities are then listed, and any
applicable Federal or state laws, and the Committee may cause a legend or legends to be put on any
such certificates (or confirmation and account statements for book-entry Shares) to make
appropriate reference to such restrictions.



     15.5 Tax Withholding. A Participant may be required to pay to the Company or any Affiliate
and the Company or any Affiliate shall have the right and is hereby authorized to withhold from any
Award, from any payment due or transfer made under any Award or under the Plan, or from any
compensation or other amount owing to a Participant the amount (in cash, Shares, other securities,
other Awards or other property) of any applicable withholding or other tax-related obligations in
respect of an Award, its exercise or any other transaction involving an Award, or any payment or
transfer under an Award or under the Plan and to take such other action as may be necessary in the
opinion of the Company to satisfy all obligations for the payment of such taxes. The Committee may
provide for additional cash payments to holders of Options to defray or offset any tax arising from
the grant, vesting, exercise or payment of any Award.



     15.6 Withholding or Tendering Shares. Without limiting the generality of Section
15.5, the Committee may in its discretion permit a Participant to satisfy or arrange to
satisfy, in whole or in part, the tax obligations incident to an Award by: (a) electing to have the
Company withhold Shares or other property otherwise deliverable to such Participant pursuant to his
or her Award (provided, however, that the amount of any Shares so withheld shall not exceed the
amount necessary to satisfy required federal, state local and foreign withholding obligations using
the minimum statutory withholding rates for federal, state, local and/or foreign tax purposes,
including payroll taxes, that are applicable to supplemental taxable income) and/or (b) tendering
to the Company Shares owned by such Participant (or by such Participant and his or her spouse
jointly) and purchased or held for the requisite period of time as may be required to avoid the
Company’s or the Affiliates’ incurring an adverse accounting charge, based, in each case, on the
Fair Market Value of the Shares on the payment date as determined by the Committee. All such
elections shall



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be irrevocable, made in writing, signed by the Participant, and shall be subject to any
restrictions or limitations that the Committee, in its sole discretion, deems appropriate.



     15.7 Award Agreements. Each Award hereunder shall be evidenced by an Award Agreement that
shall be delivered to the Participant and may specify the terms and conditions of the Award and any
rules applicable thereto. In the event of a conflict between the terms of the Plan and any Award
Agreement, the terms of the Plan shall prevail. The Committee shall, subject to applicable law,
determine the date an Award is deemed to be granted. The Committee or, except to the extent
prohibited under applicable law, its delegate(s) may establish the terms of agreements or other
documents evidencing Awards under this Plan and may, but need not, require as a condition to any
such agreement’s or document’s effectiveness that such agreement or document be executed by the
Participant, including by electronic signature or other electronic indication of acceptance, and
that such Participant agree to such further terms and conditions as specified in such agreement or
document. The grant of an Award under this Plan shall not confer any rights upon the Participant
holding such Award other than such terms, and subject to such conditions, as are specified in this
Plan as being applicable to such type of Award (or to all Awards) or as are expressly set forth in
the agreement or other document evidencing such Award.



     15.8 No Limit on Other Compensation Arrangements. Nothing contained in the Plan shall prevent
the Company or any Affiliate from adopting or continuing in effect other compensation arrangements,
which may, but need not, provide for the grant of Options, Restricted Shares, Restricted Share
Units, Other Stock-Based Awards or other types of Awards provided for hereunder.



     15.9 No Right to Employment. The grant of an Award shall not be construed as giving a
Participant the right to be retained in the employ of the Company or any Affiliate. Further, the
Company or an Affiliate may at any time dismiss a Participant from employment, free from any
liability or any claim under the Plan, unless otherwise expressly provided in an Award Agreement.



     15.10 No Rights as Stockholder. Subject to the provisions of the Plan and the applicable
Award Agreement, no Participant or holder or beneficiary of any Award shall have any rights as a
stockholder with respect to any Shares to be distributed under the Plan until such person has
become a holder of such Shares. Notwithstanding the foregoing, in connection with each grant of
Restricted Shares hereunder, the applicable Award Agreement shall specify if and to what extent the
Participant shall not be entitled to the rights of a stockholder in respect of such Restricted
Shares.



     15.11 No Guarantee of Favorable Tax Treatment. Although the Company intends to administer the
Plan so that Awards will be exempt from, or will comply with, the requirements of Section 409A of
the Code, the Company does not warrant that any Award under the Plan will qualify for favorable tax
treatment under Section 409A of the Code or any other provision of federal, state, local or foreign
law. The Company shall not be liable to any Participant for any tax, interest, or penalties that
Participant might owe as a result of the grant, holding, vesting, exercise, or payment of any Award
under the Plan.



     15.12 Governing Law. The validity, construction and effect of the Plan and any rules and
regulations relating to the Plan and any Award Agreement shall be determined in accordance with the
laws of the State of Delaware without giving effect to conflicts of laws principles.



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



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provision shall be stricken as to such jurisdiction, Person or Award and the remainder of the Plan
and any such Award shall remain in full force and effect.



     15.14 Other Laws. The Committee may refuse to issue or transfer any Shares or other
consideration under an Award if, acting in its sole discretion, it determines that the issuance or
transfer of such Shares or such other consideration might violate any applicable law or regulation
(including applicable non-U.S. laws or regulations) or entitle the Company to recover the same
under Exchange Act Section 16(b), and any payment tendered to the Company by a Participant, other
holder or beneficiary in connection with the exercise of such Award shall be promptly refunded to
the relevant Participant, holder or beneficiary.



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



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



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



Section 16. Term Of The Plan.




     16.1 Effective Date. The Plan shall be effective as of the date adopted by the Board,
provided it is approved by the Company’s stockholders.



     16.2 Expiration Date. No new Awards shall be granted under the Plan after the tenth
anniversary of the Effective Date. Unless otherwise expressly provided in the Plan or in an
applicable Award Agreement, any Award granted hereunder may, and the authority of the Board or the
Committee to amend, alter, adjust, suspend, discontinue or terminate any such Award or to waive any
conditions or rights under any such Award shall, continue after the tenth anniversary of the
Effective Date.




	 	 	 
	Date Adopted by the Board:

	 	July 20, 2009
	 
	 	 
	Date Approved by the Stockholders:

	 	July, 20, 2009








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