exv10w29






EXHIBIT 10.29




Opnext, Inc.




Second Amended and Restated




2001 Long-Term Stock Incentive Plan




          Opnext, Inc., a Delaware corporation (the “Company”), has adopted this Opnext, Inc. Second
Amended and Restated 2001 Long-Term Stock Incentive Plan (the “Plan”), effective as of the
Effective Date (as defined in Section 14 below). This Plan amends and restates in its entirety the
Opnext, Inc. Amended and Restated 2001 Long-Term Stock Incentive Plan, as amended (the “First
Amended and Restated Plan”).





               SECTION 1. Purpose. The purposes of this Opnext, Inc. 2001 Long-Term Stock
Incentive Plan are to (i) attract and retain exceptional officers and other key
employees, consultants and directors; (ii) motivate such individuals by means of
performance-related incentives to achieve long range performance goals and (iii) enable
such individuals to participate in the long-term growth and financial success of the
Company.




               SECTION 2. Definitions. As used in the Plan, the following terms shall
have the meanings set forth below:




          “Affiliate” shall mean (i) any entity that, directly or indirectly, is controlled by,
or controls or is under common control with, the Company and (ii) any entity in which the
Company has a significant equity interest, in either case as determined by the Committee.




          “Award” shall mean any Option, Stock Appreciation Right, Restricted Stock Award,
Restricted Stock Unit Award, Performance Award, or Other Stock-Based Award.




          “Award Agreement” shall mean any written agreement, contract, or other instrument or
document evidencing any Award.




          “Board” shall mean the Board of Directors of the Company.




          “Change in Control” means and includes each of the following:




          (i) A transaction or series of transactions (other than an offering of Shares to the
general public through a registration statement filed with the Securities and Exchange
Commission) whereby any “person” or related “group” of “persons” (as such terms are used in
Sections 13(d) and 14(d)(2) of the Exchange Act) (other than the Company, any of its
subsidiaries, Hitachi, Ltd., an employee benefit plan maintained by the Company or any of
its subsidiaries or a “person” that, prior to such transaction, directly or indirectly
controls, is controlled by, or is under common control with, the



 









 







Company) directly or indirectly acquires beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act) of securities of the Company possessing more than 50% of
the total combined voting power of the Company’s securities outstanding immediately after
such acquisition; or




          (ii) During any period of two consecutive years, individuals who, at the beginning of
such period, constitute the Board together with any new director(s) (other than a director
designated by a person who shall have entered into an agreement with the Company to effect a
transaction described herein) whose election by the Board or nomination for election by the
Company’s stockholders was approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of the two-year period or whose
election or nomination for election was previously so approved, cease for any reason to
constitute a majority thereof; or




          (iii) The consummation by the Company (whether directly involving the Company or
indirectly involving the Company through one or more intermediaries) of (x) a merger,
consolidation, reorganization, or business combination or (y) a sale or other disposition of
all or substantially all of the Company’s assets in any single transaction or series of
related transactions or (z) the acquisition of assets or stock of another entity, in each
case other than a transaction:




               (a) Which results in the Company’s voting securities outstanding immediately before the
transaction continuing to represent (either by remaining outstanding or by being converted
into voting securities of the Company or the person that, as a result of the transaction,
controls, directly or indirectly, the Company or owns, directly or indirectly, all or
substantially all of the Company’s assets or otherwise succeeds to the business of the
Company (the Company or such person, the “Successor Entity”)) directly or indirectly, at
least a majority of the combined voting power of the Successor Entity’s outstanding voting
securities immediately after the transaction, and




               (b) After which no person or group beneficially owns voting securities representing 50%
or more of the combined voting power of the Successor Entity; provided, however, that no
person or group shall be treated for purposes of this Section as beneficially owning 50% or
more of combined voting power of the Successor Entity solely as a result of the voting power
held in the Company prior to the consummation of the transaction; or




          (iv) The Company’s stockholders approve a liquidation or dissolution of the Company.




          The Committee shall have full and final authority, which shall be exercised in its
discretion, to determine conclusively whether a Change in Control of the Company has
occurred pursuant to the above definition, and the date of the occurrence of such Change in
Control and any incidental matters relating thereto.



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




          “Committee” shall mean either (i) the Board or (ii) a committee of the Board designated
by the Board to administer the Plan.




          “Company” shall mean Opnext, Inc., together with any successor thereto.




          “Covered Employee” means an employee who is, or could be, a “covered employee” within
the meaning of Section 162(m) of the Code.




          “Director Award Election” shall have the meaning set forth in Section 8(f).




          “Effective Date” shall have the meaning set forth in Section 14.




          “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.




          “Fair Market Value” means, as of any given date, (a) if the Shares are traded on an
exchange, the closing price of a Share as reported in the Wall Street Journal (or such other
source as the Company may deem reliable for such purposes) for such date, or if no sale
occurred on such date, the first trading date immediately prior to such date during which a
sale occurred; or (b) if the Shares are not traded on an exchange but are quoted on a
quotation system, the mean between the closing representative bid and asked prices for a
Share on such date, or if no sale occurred on such date, the first date immediately prior to
such date on which sales prices or bid and asked prices, as applicable, are reported by such
quotation system; or (c) if the Shares are not publicly traded, the fair market value
established by the Committee acting in good faith.




          “Incentive Stock Option” shall mean a right 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.




          “Independent Director” means a member of the Board who is not an employee of the
Company.




          “Independent Director Grant” shall mean and include any of an Initial Grant, Pro Rata
Grant, December 2007 Grant, or Annual Grant as set forth in Section 8(e) of the Plan.




          “Newly Elected Director” shall have the meaning set forth in Section 8(f).




          “Non-Employee Director” means a member of the Board who qualifies as a “Non-Employee
Director” as defined in Rule 16b-3(b)(3) under the Exchange Act, or any successor rule.



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          “Non-Qualified Stock Option” shall mean a right to purchase Shares from the Company
that is granted under Section 6 of the Plan and that is not intended to be an Incentive
Stock Option.




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




          “Other Stock-Based Award” shall mean any right granted under Section 9 of the Plan.




          “Participant” shall mean any officer or other key employee, consultant or director of
the Company or its Subsidiaries eligible for an Award under Section 5 and selected by the
Committee to receive an Award under the Plan.




          “Performance-Based Award” means an Award granted to selected Covered Employees pursuant
to Section 9(c) hereof, but which is subject to the terms and conditions set forth in
Section 10 hereof. All Performance-Based Awards are intended to qualify as Qualified
Performance-Based Compensation.




          “Performance Bonus Award” has the meaning set forth in Section 9(c) hereof.




          “Performance Criteria” means the criteria that the Committee selects for purposes of
establishing the Performance Goal or Performance Goals for a Participant for a Performance
Period. The Performance Criteria that will be used to establish Performance Goals are
limited to the following: net earnings (either before or after interest, taxes, depreciation
and amortization), economic value-added, sales or revenue, net income (either before or
after taxes), operating earnings, cash flow (including, but not limited to, operating cash
flow and free cash flow), cash flow return on capital, return on net assets, return on
stockholders’ equity, return on assets, return on capital, stockholder returns, return on
sales, gross or net profit margin, productivity, expense, margins, operating efficiency,
customer satisfaction, working capital, earnings per share, price per Share, and market
share, any of which may be measured either in absolute terms, by comparison to comparable
performance in an earlier period or periods, or as compared to results of a peer group,
industry index, or other company or companies. The Committee shall define in an objective
fashion the manner of calculating the Performance Criteria it selects to use for such
Performance Period for such Participant.




          “Performance Goals” means, for a Performance Period, the goals established in writing
by the Committee for the Performance Period based upon the Performance Criteria. Depending
on the Performance Criteria used to establish such Performance Goals, the Performance Goals
may be expressed in terms of overall Company performance or the performance of a division,
business unit, or an individual. The Committee, in its discretion, may, within the time
prescribed by Section 162(m) of the Code, adjust or modify the calculation of Performance
Goals for such Performance Period in order to prevent the dilution or enlargement of the
rights of Participants (a) in



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the event of, or in anticipation of, any unusual or extraordinary corporate item,
transaction, event, or development, or (b) in recognition of, or in anticipation of, any
other unusual or nonrecurring events affecting the Company, or the financial statements of
the Company, or in response to, or in anticipation of, changes in applicable laws,
regulations, accounting principles, or business conditions.




          “Performance Period” means the one or more periods of time, which may be of varying and
overlapping durations, as the Committee may select, over which the attainment of one or more
Performance Goals will be measured for the purpose of determining a Participant’s right to,
and the payment of, a Performance-Based Award.




          “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.




          “Plan” shall mean this Opnext, Inc. Second Amended and Restated 2001 Long-Term Stock
Incentive Plan, as amended from time to time.




          “Public Trading Date” means the first date upon which a Share is listed (or approved
for listing) upon notice of issuance on any securities exchange or designated (or approved
for designation) upon notice of issuance as a national market security on an interdealer
quotation system.




          “Qualified Performance-Based Compensation” means any compensation that is intended to
qualify as “qualified performance-based compensation” as described in Section 162(m)(4)(C)
of the Code.




          “Restricted Stock” shall mean any Share granted under Section 8 of the Plan.




          “Restricted Stock Unit” shall mean any unit granted under Section 8 of the Plan.




          “Shares” shall mean shares of common stock of the Company, par value $.01 per share, or
such other securities of the Company (i) into which such common shares shall be changed by
reason of a recapitalization, merger, consolidation, split-up, combination, exchange of
shares or other similar transaction or (ii) as may be determined by the Committee pursuant
to Section 4(b).




          “Stock Appreciation Right” or “SAR” shall mean any right granted under Section 7 of the
Plan to receive a payment equal to the excess of the Fair Market Value of a specified number
of Shares on the date the SAR is exercised over the grant price of the SAR as set forth in
the applicable Award Agreement.




          “Subsidiary” shall mean (i) any entity that, directly or indirectly, is controlled by
the Company and (ii) any entity in which the Company has a significant equity interest, in
either case as determined by the Committee.



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          “Substitute Awards” shall have the meaning specified in Section 4(e).




               SECTION 3. Administration.



          (a) Committee. The Board, at its discretion or as otherwise necessary to comply with
the requirements of Section 162(m) of the Code, Rule 16b-3 promulgated under the Exchange Act or to
the extent required by any other applicable rule or regulation, shall delegate administration of
the Plan to a Committee. Unless otherwise determined by the Board, the Committee shall consist
solely of two or more members of the Board each of whom is an “outside director,” within the
meaning of Section 162(m) of the Code, a Non-Employee Director and an “independent director” under
the rules of the NASDAQ Global Market (or other principal securities market on which Shares are
traded). Notwithstanding the foregoing: the full Board, acting by a majority of its members in
office, shall conduct the general administration of the Plan with respect to all Awards granted to
Independent Directors and for purposes of such Awards the term “Committee” as used in this Plan
shall be deemed to refer to the Board. In its sole discretion, the Board may at any time and from
time to time exercise any and all rights and duties of the Committee under the Plan except with
respect to matters which under Rule 16b-3 under the Exchange Act or Section 162(m) of the Code, or
any regulations or rules issued thereunder, are required to be determined in the sole discretion of
the Committee. Committee members may resign at any time by delivering written notice to the Board.
Vacancies in the Committee may only be filled by the Board.




          (b) Governance of the Committee. The governance of the Committee shall be subject to
the charter of the Committee as approved by the Board. Notwithstanding the foregoing, any action
taken by the Committee shall be valid and effective, whether or not members of the Committee at the
time of such action are later determined not to have satisfied the requirements for membership set
forth in Section 3(a) or otherwise provided in the charter of the Committee. Each member of the
Committee is entitled to, in good faith, rely or act upon any report or other information furnished
to that member by any officer or other employee of the Company or any Subsidiary, the Company’s
independent certified public accountants, or any executive compensation consultant or other
professional retained by the Company to assist in the administration of the Plan.




          (c) Authority of Committee. 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 to: (i) designate Participants; (ii) determine the
type or types of Awards to be granted to a Participant; (iii) 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; (iv) determine the terms and conditions of any Award; (v) 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;
(vi) 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;
(vii) interpret, administer or reconcile any inconsistency, correct any



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default and/or supply any omission in the Plan and any instrument or agreement relating to, or
Award made under, the Plan; (viii) 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
(ix) make any other determination and take any other action that the Committee deems necessary or
desirable for the administration of the Plan.




          (d) 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, any Affiliate, any Participant, any holder or
beneficiary of any Award, and any shareholder.




          (e) No member of the Committee shall be liable for any action or determination made in good
faith with respect to the Plan or any Award hereunder.





               SECTION 4. Shares Available for Awards.



          (a) Shares Available. Subject to adjustment as provided in Section 4(b), the
aggregate number of Shares with respect to which Awards may be granted under the Plan shall be
19,000,000. If, after the effective date of the Plan, any Shares covered by an Award granted under
the Plan, or to which such an Award relates, are forfeited, or if an Award has expired, terminated
or been canceled for any reason whatsoever (other than by reason of exercise or vesting), then the
Shares covered by such Award shall again be, or shall become, Shares with respect to which Awards
may be granted hereunder.




          (b) Limitation on Number of Shares Subject to Awards. Notwithstanding any provision
in the Plan to the contrary, and subject to Section 13, the maximum number of Shares with respect
to one or more Awards that may be granted to any one Participant during any calendar year shall be
1,000,000 and the maximum amount that may be paid in cash during any calendar year with respect to
any Performance-Based Award (including, without limitation, any Performance Bonus Award) or any
other Award which is not denominated in Shares or otherwise for which the foregoing limitation
would not be an effective limitation shall be $1,500,000.




          (c) No Other Rights. Except as expressly provided in the Plan, no Participant shall
have any rights by reason of any subdivision or consolidation of shares of stock of any class, the
payment of any dividend, any increase or decrease in the number of shares of stock of any class or
any dissolution, liquidation, merger, or consolidation of the Company or any other corporation.
Except as expressly provided in the Plan or pursuant to action of the Committee under the Plan, no
issuance by the Company of shares of stock of any class, or securities convertible into shares of
stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect
to, the number of Shares subject to an Award or the grant or exercise price of any Award.




          (d) Substitute Awards. Awards may, in the discretion of the Committee, be made under
the Plan in assumption of, or in substitution for, outstanding awards previously granted by the
Company or its Affiliates or a company acquired by the Company or with which the



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Company combines (“Substitute Awards”). The number of Shares underlying any Substitute Awards
shall be counted against the aggregate number of Shares available for Awards under the Plan.




          (e) 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 treasury Shares.





               SECTION 5. Eligibility and Participation.



          (a) Eligibility. Any officer or other key employee, consultant or director of the
Company or any of its Subsidiaries shall be eligible to be designated a Participant.




          (b) Foreign Participants. Notwithstanding any provision of the Plan to the contrary,
in order to comply with the laws in other countries in which the Company and its Subsidiaries
operate or have employees, consultants or Independent Directors, the Committee, in its sole
discretion, shall have the power and authority to: (i) determine which Subsidiaries shall be
covered by the Plan; (ii) determine which such employees, consultants or Independent Directors
outside the United States are eligible to participate in the Plan; (iii) modify the terms and
conditions of any Award granted to such employees, consultants or Independent Directors outside the
United States to comply with applicable foreign laws; (iv) establish subplans and modify exercise
procedures and other terms and procedures, to the extent such actions may be necessary or advisable
(any such subplans and/or modifications shall be attached to this Plan as appendices); provided,
however, that no such subplans and/or modifications shall increase the share limitations contained
in Sections 4(a) and 4(b) of the Plan; and (v) take any action, before or after an Award is made,
that it deems advisable to obtain approval or comply with any necessary local governmental
regulatory exemptions or approvals. Notwithstanding the foregoing, the Committee may not take any
actions hereunder, and no Awards shall be granted, that would violate the Exchange Act, the Code,
any securities law or governing statute or any other applicable law.





               SECTION 6. Stock Options.



          (a) Grant. Subject to the provisions of the Plan, the Committee shall have sole and
complete authority to determine the Participants to whom Options shall be granted, the number of
Shares to be covered by each Option, the exercise price therefor and the conditions and limitations
applicable to the exercise of the Option, which terms shall be set forth in the applicable Award
Agreement. The Committee shall have the authority to grant Incentive Stock Options, or to grant
Non-Qualified Stock Options, or to grant both types of Options. Incentive Stock Options may only
be granted to employees of the Company or employees of any “parent corporation” or “subsidiary
corporation” thereof (within the meaning of Sections 424(e) and (f), respectively, of the Code),
and the terms and conditions of such grants shall be subject to and comply with such rules as may
be prescribed by Section 422 of the Code, as from time to time amended, and any regulations
implementing such statute. All Options when granted under the Plan are intended to be
Non-Qualified Stock Options, unless the applicable Award Agreement expressly states that the Option
is intended to be an Incentive Stock Option. If an Option is



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intended to be an Incentive Stock Option, and if for any reason such Option (or any portion
thereof) shall not qualify as an Incentive Stock Option, then, to the extent of such
nonqualification, such Option (or portion thereof) shall be regarded as a Non-Qualified Stock
Option appropriately granted under the Plan; provided that such Option (or portion thereof)
otherwise complies with the Plan’s requirements relating to Non-Qualified Stock Options.




          (b) Exercise Price. The exercise price per Share subject to an Option shall be
determined by the Committee and set forth in the Award Agreement; provided, that the exercise price
for any Option shall not be less than 100% of the Fair Market Value of a Share on the date of
grant.




          (c) Exercise. Each Option 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 may impose such conditions with respect to the exercise of
Options, including without limitation, any relating to the application of federal or state
securities laws, as it may deem necessary or advisable.




          (d) Term of Options. The Committee shall determine the term of each Option; provided
that such term shall not exceed ten years.




          (e) Payment.




               (i) No Shares shall be delivered pursuant to any exercise of an Option until payment in full
of the aggregate exercise price therefor and any related tax is received by the Company. Such
payment may be made in cash or its equivalent, or, with the consent of the Committee (x) by
exchanging Shares owned by the optionee (which are not the subject of any pledge or other security
interest) or (y) at any time that the Shares are publicly traded on a nationally recognized stock
exchange, through delivery of irrevocable instructions to a broker (as selected or approved by the
Committee) to sell the Shares otherwise deliverable upon the exercise of the Option and to deliver
promptly to the Company an amount equal to the aggregate exercise price, or (z) by a combination of
the foregoing, provided that the combined value of all cash and cash equivalents and the Fair
Market Value of any such Shares so tendered to the Company as of the date of such tender is at
least equal to such aggregate exercise price. Notwithstanding any other provision of the Plan to
the contrary, after the Public Trading Date, no Participant who is a member of the Board or an
“executive officer” of the Company within the meaning of Section 13(k) of the Exchange Act shall be
permitted to pay the exercise price of an Option, or continue any extension of credit with respect
to the exercise price of an Option with a loan from the Company or a loan arranged by the Company
in violation of Section 13(k) of the Exchange Act.



               (ii) Wherever in this Plan or any Award Agreement a Participant is permitted to pay the
exercise price of an Option or taxes relating to the exercise of an Option by delivering Shares,
the Participant may, subject to procedures satisfactory to the Committee, satisfy such delivery requirement by presenting proof of beneficial ownership of such Shares,
in which case the Company shall treat the Option as exercised without further payment and shall
withhold such number of Shares from the Shares acquired by the exercise of the Option.



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          (f) Incentive Stock Options. The terms of any Incentive Stock Options granted
pursuant to the Plan, in addition to the other requirements of this Section 6, must comply with the
provisions of this Section 6(f).




               (i) Dollar Limitation. The aggregate Fair Market Value (determined as of the time the
Option is granted) of all Shares with respect to which Incentive Stock Options are first
exercisable by a Participant in any calendar year may not exceed $100,000 or such other limitation
as imposed by Section 422(d) of the Code, or any successor provision. To the extent that Incentive
Stock Options are first exercisable by a Participant in excess of such limitation, the excess shall
be considered Non-Qualified Stock Options.



               (ii) Ten Percent Owners. An Incentive Stock Option shall be granted to any individual
who, at the date of grant, owns stock possessing more than ten percent of the total combined voting
power of all classes of stock of the Company only if such Option is granted at a price that is not
less than 110% of Fair Market Value on the date of grant and the Option is exercisable for no more
than five years from the date of grant.



               (iii) Failure to Meet Requirements. Any Option (or portion thereof) purported to be
an Incentive Stock Option, which, for any reason, fails to meet the requirements of Section 422 of
the Code shall be considered a Non-Qualified Stock Option.




               SECTION 7. Stock Appreciation Rights.



          (a) Grant. Subject to the provisions of the Plan, the Committee shall have sole and
complete authority to determine the Participants to whom Stock Appreciation Rights shall be
granted, the number of Shares to be covered by each Stock Appreciation Right Award, the grant price
thereof and the conditions and limitations applicable to the exercise thereof, which terms shall be
set forth in the applicable Award Agreement. Notwithstanding the foregoing, in no event shall the
per share grant price of a Stock Appreciation Right be less than 100% of the Fair Market Value of a
Share on the date of grant. Stock Appreciation Rights shall be subject to such terms and
conditions not inconsistent with the Plan as the Committee shall impose. Stock Appreciation Rights
may be granted in tandem with another Award, in addition to another Award, or freestanding and
unrelated to another Award. Stock Appreciation Rights granted in tandem with or in addition to an
Award may be granted either at the same time as the Award or at a later time.




          (b) Exercise and Payment. A Stock Appreciation Right shall entitle the Participant
(or other person entitled to exercise the Stock Appreciation Right pursuant to the Plan) to
exercise all or a specified portion of the Stock Appreciation Right (to the extent then exercisable
pursuant to its terms) and to receive from the Company an amount equal to the product of (i) the
excess of (A) the Fair Market Value of a Share on the date the Stock Appreciation Right is
exercised over (B) the per Share grant price of the Stock Appreciation Right and (ii) the number of Shares with respect to which the Stock Appreciation Right is
exercised, subject to any limitations the Committee may impose. The Committee shall determine
whether a Stock Appreciation Right shall be settled in cash, Shares or a combination of cash and
Shares.




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          (c) Other Terms and Conditions. Subject to the terms of the Plan and any applicable
Award Agreement, the Committee shall determine, at or after the grant of a Stock Appreciation
Right, the term, methods of exercise, methods and form of settlement, and any other terms and
conditions of any Stock Appreciation Right. Any such determination by the Committee may be changed
by the Committee from time to time and may govern the exercise of Stock Appreciation Rights granted
or exercised prior to such determination as well as Stock Appreciation Rights granted or exercised
thereafter. The Committee may impose such conditions or restrictions on the exercise of any Stock
Appreciation Right as it shall deem appropriate.





               SECTION 8. Restricted Stock and Restricted Stock Units.



          (a) Grant. Subject to the provisions of the Plan, the Committee shall have sole and
complete authority to determine the Participants to whom Shares of Restricted Stock and Restricted
Stock Units shall be granted, the number of Shares of Restricted Stock and/or the number of
Restricted Stock Units to be granted to each Participant, the duration of the period during which,
and the conditions, if any, under which, the Restricted Stock and Restricted Stock Units may be
forfeited to the Company, and the other terms and conditions of such Awards, which terms shall be
set forth in the applicable Award Agreement.




          (b) Transfer Restrictions. Shares of Restricted Stock and Restricted Stock Units may
not be sold, assigned, transferred, pledged or otherwise encumbered, except, in the case of
Restricted Stock, as provided in the Plan or the applicable Award Agreements. Certificates issued
in respect of Shares of Restricted Stock shall be registered in the name of the Participant and
deposited by such Participant, together with a stock power endorsed in blank, with the Company.
Upon the lapse of the restrictions applicable to such Shares of Restricted Stock, the Company shall
deliver such certificates to the Participant or the Participant’s legal representative.




          (c) Payment. Each Restricted Stock Unit shall have a value equal to the Fair Market
Value of a Share. Restricted Stock Units shall be paid to the Participant 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. Dividends paid on any Shares of Restricted Stock may be paid directly to the
Participant, withheld by the Company subject to vesting of the Shares of Restricted Stock pursuant
to the terms of the applicable Award Agreement, or may be reinvested in additional Shares of
Restricted Stock or in additional Restricted Stock Units, as determined by the Committee in its
sole discretion.




          (d) Exercise or Purchase Price. The Committee may establish the exercise or purchase
price, if any, of any Award of Restricted Stock or Restricted Stock Units; provided, however, that such price shall not be less than the par value of a Share on the date of grant,
unless otherwise permitted by applicable state law.




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          (e) Independent Director Grants.




               (i) Newly Elected Independent Directors — Initial Grant. During the term of the
Plan, each individual who is newly elected as an Independent Director (a “Newly Elected Independent
Director”) shall, on the date on which such individual initially becomes an Independent Director
(the “Initial Grant Date”), automatically be granted a number of Restricted Stock Units equal to
the quotient obtained by dividing (x) $35,000 by (y) the Fair Market Value of a Share on the
Initial Grant Date (the “Initial Grant”). Subject to the Independent Director’s continued service
with the Company, each Initial Grant shall vest in full on the one-year anniversary of the Initial
Grant Date.



               (ii) Existing Independent Directors Initially Elected in Connection with Initial Public
Offering. Each individual who was initially elected as an Independent Director during the
period commencing on February 1, 2007 and ending on December 12, 2007, shall on December 12, 2007,
automatically be granted 3,193 Restricted Stock Units (the “December 2007 Grant”). Subject to the
Independent Director’s continued service with the Company, each December 2007 Grant shall vest in
full on the one-year anniversary of the date of grant.



               (iii) Annual Grants. During the term of the Plan, on the date of each annual meeting
of stockholders of the Company, each individual who becomes an Independent Director at such annual
meeting and each individual who otherwise continues to be an Independent Director immediately
following such meeting shall automatically be granted a number of Restricted Stock Units equal to
the quotient obtained by dividing (x) $35,000 by (y) the Fair Market Value of a Share on the date
of such meeting (the “Annual Grant”). Subject to the Independent Director’s continued service with
the Company, each Annual Grant shall vest in full on the one-year anniversary of the date of grant.
For purposes of clarification, a Newly Elected Independent Director who becomes an Independent
Director at an annual meeting of stockholders of the Company shall receive both an Initial Grant
and an Annual Grant (but not a Pro Rata Grant (as defined below)) on the date of such annual
meeting of stockholders. A Newly Elected Independent Director who is initially elected at an
annual meeting of stockholders of the Company but who does not become an Independent Director on
the date of such annual meeting shall receive both an Initial Grant and a Pro Rata Grant (but not
an Annual Grant) on the date on which he or she initially becomes an Independent Director.



               (iv) Newly Elected Independent Directors — Pro Rata Grant. In the event that a Newly
Elected Independent Director first becomes an Independent Director on a date other than the date of
an annual meeting of stockholders of the Company, then, in addition to such Independent Director’s
Initial Grant, such individual shall automatically be granted on the Initial Grant Date a number of
Restricted Stock Units equal to the product of (A) the quotient obtained by dividing (x) $35,000 by
(y) the Fair Market Value of a Share on the Initial Grant Date, multiplied by (B) the quotient
obtained by dividing (x) 365 minus the number of days that have elapsed from the immediately
preceding annual meeting of stockholders of the Company to the Initial Grant Date, by (y) 365 (the
“Pro Rata Grant”). Subject to the Independent Director’s continued service with the Company, each
Pro Rata Grant shall vest in full on the one-year anniversary of the immediately preceding annual
meeting of stockholders of the Company.



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          (f) Timing of Payment for Independent Director Grants. Each Independent Director
Grant of Restricted Stock Units shall provide that the cash, Shares or other securities or property
payable in respect of the vested Restricted Stock Units shall be paid to the Independent Director
upon the earliest to occur of (i) a “change in control event” (within the meaning of Section 409A
of the Code), (ii) such director’s “separation from service” from the Company (within the meaning
of Section 409A of the Code), and (iii) such director’s death; provided, however, that no such
payment shall be made to an Independent Director during the 6-month period following such
Independent Director’s separation from service if such Independent Director is a “specified
employee” at the time of such separation from service (as determined by the Company in accordance
with Section 409A of the Code) and the Company determines that paying such amounts at the time or
times set forth in this subsection (f) would be a prohibited distribution under Section
409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the
previous sentence, then on the first day following the end of such 6-month period, the Company
shall pay the Independent Director the cumulative payments that would have otherwise been payable
to the Independent Director during such 6-month period




          (g) Effect of Termination of Service. To the extent otherwise eligible, members of
the Board who are employees of the Company who subsequently retire from the Company and remain on
the Board shall receive a Pro Rata Grant on the date of such individual’s retirement from
employment and shall, subject to his or her continued directorship, receive an Annual Grant at each
annual meeting of stockholders after his or her retirement from employment with the Company, but
shall not receive an Initial Grant.




          (h) Independent Director Grant Compliance with Section 409A. Any Independent Director
Grant that constitutes, or provides for, a deferral of compensation subject to Section 409A of the
Code shall satisfy the requirements of Section 409A of the Code and this Section 8, to the extent
applicable. The Award Agreement with respect to such Award shall incorporate the terms and
conditions required by Section 409A of the Code and this Section 8. Without limiting the generality
of the foregoing, the time or schedule of any distribution or payment of any cash, Shares or other
securities or property payable in respect of vested Restricted Stock Units subject to Section 409A
of the Code shall not be accelerated, except as otherwise permitted under Section 409A(a)(3) of the
Code and the Treasury Regulations thereunder.





               SECTION 9. Other Stock-Based Awards.



          (a) General. The Committee shall have authority to grant to Participants an “Other
Stock-Based Award”, which shall consist of any right which is (i) not an Award described in
Sections 6 through 8 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, including the price, if any, at which securities may be purchased pursuant to
any Other Stock-Based Award granted under this Plan.




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          (b) Dividend Equivalents. In the sole and complete discretion of the Committee, an
Award, whether made as an Other Stock-Based Award under this Section 9 or as an Award granted
pursuant to Sections 6 through 8 hereof, may provide the Participant with dividends or dividend
equivalents, payable in cash, Shares, other securities or other property on a current or deferred
basis.




          (c) Performance Bonus Awards. Any Participant selected by the Committee may be
granted a cash bonus (a “Performance Bonus Award”) payable upon the attainment of Performance Goals
that are established by the Committee and relate to one or more of the Performance Criteria or
other specific performance criteria determined to be appropriate by the Committee, in each case on
a specified date or dates or over any period or periods determined by the Committee. Any such
Performance Bonus Award paid to a Covered Employee may be a Performance-Based Award and be based
upon objectively determinable bonus formulas established in accordance with Section 10.




          (d) Form of Payment. Payments with respect to any Awards granted under this Section 9
shall be made in cash, in Shares or a combination of both, as determined by the Committee.





               SECTION 10. Performance-Based Awards.



          (a) Purpose. The purpose of this Section 10 is to provide the Committee the ability
to qualify Awards other than Options and SARs and that are granted pursuant to Sections 8 and 9 as
Qualified Performance-Based Compensation. If the Committee, in its discretion, decides to grant a
Performance-Based Award to a Covered Employee, the provisions of this Section 10 shall control over
any contrary provision contained in 8 and 9; provided, however, that the Committee may in its
discretion grant Awards to Covered Employees that are based on Performance Criteria or Performance
Goals but that do not satisfy the requirements of this Section 10.




          (b) Applicability. This Section 10 shall apply only to those Covered Employees
selected by the Committee to receive Performance-Based Awards. The designation of a Covered
Employee as a Participant for a Performance Period shall not in any manner entitle the Participant
to receive an Award for the period. Moreover, designation of a Covered Employee as a Participant
for a particular Performance Period shall not require designation of such Covered Employee as a
Participant in any subsequent Performance Period and designation of one Covered Employee as a
Participant shall not require designation of any other Covered Employees as a Participant in such
period or in any other period.




          (c) Procedures with Respect to Performance-Based Awards. To the extent necessary to
comply with the Qualified Performance-Based Compensation requirements of Section 162(m)(4)(C) of
the Code, with respect to any Award granted under Section 8 or 9 which may be granted to one or
more Covered Employees, no later than ninety (90) days following the commencement of any fiscal
year in question or any other designated fiscal period or period of service (or such other time as
may be required or permitted by Section 162(m) of the Code), the Committee shall, in writing, (a)
designate one or more Covered Employees, (b) select the



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Performance Criteria applicable to the Performance Period, (c) establish the Performance
Goals, and amounts of such Awards, as applicable, which may be earned for such Performance Period,
and (d) specify the relationship between Performance Criteria and the Performance Goals and the
amounts of such Awards, as applicable, to be earned by each Covered Employee for such Performance
Period. Following the completion of each Performance Period, the Committee shall certify in
writing whether the applicable Performance Goals have been achieved for such Performance Period.
In determining the amount earned by a Covered Employee, the Committee shall have the right to
reduce or eliminate (but not to increase) the amount payable at a given level of performance to
take into account additional factors that the Committee may deem relevant to the assessment of
individual or corporate performance for the Performance Period.




          (d) Payment of Performance-Based Awards. Unless otherwise provided in the applicable
Award Agreement, a Participant must be employed by the Company or a Subsidiary on the day a
Performance-Based Award for such Performance Period is paid to the Participant. Furthermore, a
Participant shall be eligible to receive payment pursuant to a Performance-Based Award for a
Performance Period only if the Performance Goals for such period are achieved. In determining the
amount earned under a Performance-Based Award, the Committee may reduce or eliminate the amount of
the Performance-Based Award earned for the Performance Period, if in its sole and absolute
discretion, such reduction or elimination is appropriate.




          (e) Additional Limitations. Notwithstanding any other provision of the Plan, any
Award which is granted to a Covered Employee and is intended to constitute Qualified
Performance-Based Compensation shall be subject to any additional limitations set forth in Section
162(m) of the Code (including any amendment to Section 162(m) of the Code) or any regulations or
rulings issued thereunder that are requirements for qualification as qualified performance-based
compensation as described in Section 162(m)(4)(C) of the Code, and the Plan shall be deemed amended
to the extent necessary to conform to such requirements.





               SECTION 11. Amendment and Termination.



          (a) Amendments to the Plan. The Board may amend, alter, suspend, discontinue, or
terminate the Plan or any portion thereof at any time; provided that any such amendment,
alteration, suspension, discontinuance or termination that would impair 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; provided,
however, that (a) to the extent necessary and desirable to comply with any applicable law,
regulation, or stock exchange rule, the Company shall obtain stockholder approval of any Plan
amendment in such a manner and to such a degree as required, and (b) stockholder approval shall be
required for any amendment to the Plan that (i) increases the number of shares available under the
Plan (other than any adjustment as provided by Section 13), (ii) permits the Committee to grant
Options with an exercise price that is below Fair Market Value on the date of grant or (iii)
permits the Committee to extend the exercise period for an Option beyond ten years from the date of
grant.




          (b) Amendments to Awards. The Committee may waive any conditions or rights under,
amend any terms of, or alter, suspend, discontinue, cancel or terminate, any Award



15









 






theretofore granted, prospectively or retroactively; provided that any such waiver, amendment,
alteration, suspension, discontinuance, cancellation or termination that would impair 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.





               SECTION 12. General Provisions.



          (a) Nontransferability.




               (i) Each Award, and each right under any Award, shall be exercisable only by the Participant,
except that upon death or disability of a Participant, if permissible under applicable law, it
shall be exercisable by the Participant’s legal guardian or representative.



               (ii) Unless otherwise specified in an Award Agreement, no Award may be transferred or assigned
by a Participant otherwise than by will or by the laws of descent and distribution, and any such
purported transfer or assignment shall be void and unenforceable against the Company or any
Affiliate; provided that the designation of a beneficiary shall not constitute a transfer or
assignment.



          (b) No Rights to Awards. No Participant or other 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 and the Committee’s
determinations and interpretations with respect thereto need not be the same with respect to each
Participant (whether or not such Participants are similarly situated).




          (c) Share Certificates. All certificates for Shares or other securities of the
Company or any Affiliate 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 Securities and
Exchange Commission, any stock exchange 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 to make appropriate reference to such restrictions.




          (d) Withholding.




               (i) 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 taxes in respect of an Award, its exercise, 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 Awards to defray or offset any tax arising
from the grant, vesting, exercise or payments of any Award.



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               (ii) Without limiting the generality of clause (i) above, a Participant may satisfy, in whole
or in part, the foregoing withholding liability by delivery of Shares owned by the Participant
(which are not subject to any pledge or other security interest) with a Fair Market Value equal to
such withholding liability or by having the Company withhold from the number of Shares otherwise
issuable pursuant to the exercise of the Award a number of Shares with a Fair Market Value equal to
such withholding liability. Notwithstanding any other provision of the Plan, the number of Shares
which may be withheld with respect to the issuance, vesting, exercise or payment of any Award in
order to satisfy the Participant’s federal, state, local and foreign income and payroll tax
liabilities with respect to the issuance, vesting, exercise or payment of the Award shall be
limited to the number of shares which have a Fair Market Value on the date of withholding or
repurchase equal to the aggregate amount of such liabilities based on the minimum statutory
withholding rates for federal, state, local and foreign income tax and payroll tax purposes that
are applicable to such supplemental taxable income.



               (iii) Notwithstanding any provision of this Plan to the contrary, in connection with the
transfer of an Award pursuant to Section 11(a) of the Plan, the transferee shall remain liable for
any withholding taxes required to be withheld upon the exercise of such Award by such transferee.



          (e)  Award Agreements. Each Award hereunder shall be evidenced by an Award Agreement
which shall be delivered to the Participant and shall specify the terms and conditions of the Award
and any rules applicable thereto, including but not limited to the effect on such Award of the
death, disability or termination of employment or service of a Participant and the effect, if any,
of such other events as may be determined by the Committee.




          (f) 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 stock, Shares
and other types of Awards provided for hereunder (subject to shareholder approval if such approval
is required), and such arrangements may be either generally applicable or applicable only in
specific cases.




          (g) 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, or in any consulting relationship to, the
Company or any Affiliate. Further, the Company or an Affiliate may at any time dismiss a
Participant from employment or discontinue any consulting relationship, free from any liability or
any claim under the Plan, unless otherwise expressly provided in the Plan or in any Award Agreement
or any other written agreement between such Participant and the Company.




          (h) No Rights as Stockholder. Subject to the provisions of the applicable Award, 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 he or she has become the holder of
such Shares. Notwithstanding the foregoing, in connection with each grant of Restricted Stock
hereunder, the applicable Award shall specify if and to what extent the Participant shall not be
entitled to the rights of a stockholder in respect of such Restricted Stock.




17









 








          (i) 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 New York, without regard to principles of conflicts of laws.




          (j) 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 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.




          (k) 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
or entitle the Company to recover the same under Section 16(b) of the Exchange Act, 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. Notwithstanding any other provision of the Plan, the Plan and any Award granted or
awarded to any Participant who is then subject to Section 16 of the Exchange Act, shall be subject
to any additional limitations set forth in any applicable exemptive rule under Section 16 of the
Exchange Act (including any amendment to Rule 16b-3 under the Exchange Act) that are requirements
for the application of such exemptive rule. To the extent permitted by applicable law, the Plan
and Awards granted or awarded hereunder shall be deemed amended to the extent necessary to conform
to such applicable exemptive rule. Without limiting the generality of the foregoing, no Award
granted hereunder shall be construed as an offer to sell securities of the Company, and no such
offer shall be outstanding, unless and until the Committee in its sole discretion has determined
that any such offer, if made, would be in compliance with all applicable requirements of the U.S.
federal securities laws.




          (l) Section 409A. To the extent that the Committee determines that any Award granted
under the Plan is subject to Section 409A of the Code, the Award Agreement evidencing such Award
shall incorporate the terms and conditions required by Section 409A of the Code. To the extent
applicable, the Plan and Award Agreements shall be interpreted in accordance with Section 409A of
the Code and Department of Treasury regulations and other interpretive guidance issued thereunder,
including without limitation any such regulations or other guidance that may be issued after the
Effective Date. Notwithstanding any provision of the Plan to the contrary, in the event that
following the Effective Date the Committee determines that any Award may be subject to Section 409A
of the Code and related Department of Treasury guidance (including such Department of Treasury
guidance as may be issued after the Effective Date), the Committee may adopt such amendments to the
Plan and the applicable Award Agreement or adopt other policies and procedures (including
amendments, policies and procedures with retroactive effect), or take any other actions, that the
Committee determines are necessary or appropriate to (a) exempt the Award from Section 409A of the
Code and/or preserve the intended



18









 






tax treatment of the benefits provided with respect to the Award, or (b) comply with the
requirements of Section 409A of the Code and related Department of Treasury guidance.




          (m) 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.




          (n) 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.




          (o) 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.




          (p) Paperless Exercise. In the event that the Company establishes, for itself or
using the services of a third party, an automated system for the exercise of Awards, such as a
system using an internet website or interactive voice response, then the paperless exercise of
Awards by a Participant may be permitted through the use of such an automated system.





               SECTION 13. Changes in Capital Structure and Corporate Transactions.



          (a) In the event of any stock dividend, stock split, combination or exchange of shares,
merger, consolidation, spin-off, recapitalization or other distribution (other than normal cash
dividends) of Company assets to stockholders, or any other change affecting the Shares or the Share
price, the Committee shall make proportionate adjustments to reflect such change with respect to
(a) the aggregate number and kind of shares that may be issued under the Plan (including, but not
limited to, adjustments of the limitations in Sections 4(a) and 4(b)); (b) the terms and conditions
of any outstanding Awards (including, without limitation, any applicable performance targets or
criteria with respect thereto); and (c) the grant or exercise price per share for any outstanding
Awards under the Plan. Any adjustment affecting an Award intended as Qualified Performance-Based
Compensation shall be made consistent with the requirements of Section 162(m) of the Code.




          (b) In the event of a Change in Control or any transaction or event described in Section 13(a)
or any unusual or nonrecurring transactions or events affecting the Company, any affiliate of the
Company, or the financial statements of the Company or any affiliate, or of changes in applicable
laws, regulations or accounting principles, the Committee, on such terms and conditions as it deems
appropriate, either by the terms of the Award or by action taken prior to the occurrence of such
transaction or event, is hereby authorized to take any one or more of



19









 






the following actions in order to prevent dilution or enlargement of the benefits or potential
benefits intended to be made available under the Plan or with respect to any Award under the Plan,
to facilitate such transactions or events or to give effect to such changes in laws, regulations or
principles:




               (i) To provide for either (A) termination of any such Award in exchange for an amount of cash,
if any, equal to the amount that would have been attained upon the exercise of such Award or
realization of the Participant’s rights (and, for the avoidance of doubt, if as of the date of the
occurrence of the transaction or event described in this Section 4(b) the Committee determines in
good faith that no amount would have been attained upon the exercise of such Award or realization
of the Participant’s rights, then such Award may be terminated by the Company without payment) or
(B) the replacement of such Award with other rights or property selected by the Committee in its
sole discretion;



               (ii) To provide that such Award be assumed by the successor or survivor corporation, or a
parent or subsidiary thereof, or shall be substituted for by similar options, rights or awards
covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof,
with appropriate adjustments as to the number and kind of shares and prices;



               (iii) To make adjustments in the number and type of Shares (or other securities or property)
subject to outstanding Awards, and in the number and kind of outstanding Restricted Stock and/or in
the terms and conditions of (including the grant or exercise price), and the criteria included in,
outstanding options, rights and awards and options, rights and awards which may be granted in the
future;



               (iv) To provide that such Award shall be exercisable or payable or fully vested with respect
to all shares covered thereby, notwithstanding anything to the contrary in the Plan or the
applicable Award Agreement; and



               (v) To provide that the Award cannot vest, be exercised or become payable after such event.



          (c) Acceleration Upon a Change in Control. Notwithstanding the foregoing, and except
as may otherwise be provided in any applicable Award Agreement or other written agreement entered
into between the Company and a Participant, if a Change in Control occurs and a Participant’s
Awards are not converted, assumed, or replaced by a successor entity, then immediately prior to the
Change in Control such Awards shall become fully exercisable and all forfeiture restrictions on
such Awards shall lapse. Upon, or in anticipation of, a Change in Control, the Committee may cause
any and all Awards outstanding hereunder to terminate at a specific time in the future, including
but not limited to the date of such Change in Control, and shall give each Participant the right to
exercise such Awards during a period of time as the Committee, in its sole and absolute discretion,
shall determine.




20









 









               SECTION 14. Effective and Expiration Date.



          (a) Effective Date. This Opnext, Inc. Second Amended and Restated 2001 Long-Term
Stock Incentive Plan shall be effective as of the date on which it is duly approved by the
Company’s stockholders (the “Effective Date”).




          (b) Expiration Date. This Opnext, Inc. Second Amended and Restated 2001 Long-Term
Stock Incentive Plan will expire on, and no Award may be granted pursuant to this Plan after the
tenth anniversary of the date on which the First Amended and Restated Plan was adopted by the
Board. Any Awards that are outstanding on the tenth anniversary of such date shall remain in force
according to the terms of this Plan and the applicable Award Agreement.




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* * * * *



I hereby certify that the foregoing Plan was duly adopted by the Board of Directors of Opnext,
Incorporated on August 5, 2008.




* * * * *



I hereby certify that the foregoing Plan was approved by the stockholders of Opnext, Incorporated
on January 6, 2009.



Executed on this 6th day of January, 2009.




	 	 	 	 	 
	 	 	 
	 	                                                      /s/ Tammy L. Wedemeyer
 	 
	 	Corporate Secretary 	 
	 	 	 
	 




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