Exhibit 10.1


 


Stanley, Inc.


Amended and
Restated


2006
Omnibus incentive Compensation Plan


 


SECTION 1.  Purpose.  The purpose of this Stanley, Inc. 2006
Omnibus Incentive Compensation Plan is to promote the interests of Stanley, Inc.,
a Delaware corporation (the “Company”), and its stockholders by (a) attracting
and retaining exceptional directors, officers, employees and consultants
(including prospective directors, officers, employees and consultants) of the
Company and its Affiliates (as defined below) and (b) enabling such
individuals to participate in the long-term growth and financial success of the
Company.


 


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


 


“Affiliate” means (a) any entity that, directly or indirectly, is
controlled by, controls or is under common control with, the Company and (b) any
entity in which the Company has a significant equity interest, in either case
as determined by the Committee. For purposes of granting Options or SARs, an
entity may not be considered an Affiliate unless the Company holds a “controlling
interest” in such entity, where the term “controlling interest” has the same
meaning as provided in Treasury Regulation 1.414(c)-2(b)(2)(i), provided
that the language “at least 50 percent” is used instead of “at least
80 percent” and, provided further, that where granting of Options or SARs
is based upon a legitimate business criteria, the language “at least
20 percent” is used instead of “at least 80 percent” each place it
appears in Treasury Regulation 1.414(c)-2(b)(2)(i).


 


“Award” means any award that is permitted under Section 6 and
granted under the Plan.


 


“Award Agreement” means any written agreement, contract or other
instrument or document, including any document delivered electronically or
posted on the Company’s intranet, evidencing any Award, which may, but need
not, require execution or acknowledgment by a Participant.


 


“Board” means the Board of Directors of the Company.


 


“Cash Incentive Award” shall have the meaning specified in Section 6(f).


 


“Change of Control” shall (a) have the meaning set forth in an
Award Agreement or (b) if there is no definition set forth in an Award
Agreement, mean the occurrence of any of the following events, not including
any events occurring prior to or in connection with the initial public offering
of Shares (including the occurrence of such initial public offering):


 


(i)  during any period of 24
consecutive months, individuals who were directors of the Company at the
beginning of such period (the “Incumbent Directors”) cease at any time during
such period for any reason to constitute a majority of the Board; provided that
any individual becoming a director subsequent to the beginning of such period
whose election, or nomination for election, by the Company’s stockholders was
approved by a vote of at least a majority of the Incumbent Directors shall be
deemed to be an Incumbent Director, except that any such individual whose
initial assumption of office occurs as a result of an actual or threatened
proxy contest with respect to election or removal of directors or other actual
or threatened solicitation of proxies or consents by or on behalf of any “person”
(as such term is used in Section 13(d) of the Exchange Act) (each, a “Person”),
other than the management of the Company or the Board, shall be deemed to not
be an Incumbent Director;


 


(ii)  the consummation of (A) a
merger, consolidation, statutory share exchange or similar form of corporate
transaction involving (x) the Company or (y) any of its subsidiaries,
but in the case of this clause (y) only if Company Voting Securities
(as defined below) are issued or issuable in connection with such transaction
(each of the transactions referred to in this clause (A), a “Reorganization”)
or (B) a sale or other disposition of all or substantially all the assets
of the Company to a person that is not an Affiliate of the Company (a “Sale”),
in each case, if such


 


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Reorganization or Sale requires the approval of the Company’s
stockholders under the law of the Company’s jurisdiction of organization
(whether such approval is required for such Reorganization or Sale or for the
issuance of securities in such Reorganization or Sale), unless, immediately
following such Reorganization or Sale, (1) all or substantially all the
persons who were the “beneficial owners” (as such term is defined in Rule 13d-3
under the Exchange Act) of the securities eligible to vote for the election of
the Board (“Company Voting Securities”) outstanding immediately prior to the
consummation of such Reorganization or Sale beneficially own, directly or
indirectly, more than 50% of the combined voting power of the then outstanding
voting securities of the corporation or other entity resulting from such
Reorganization or Sale (including a corporation or other entity that as a
result of such transaction directly or indirectly owns the Company or all or
substantially all the Company’s assets) (the “Continuing Company”) in substantially
the same proportions as their ownership, immediately prior to the consummation
of such Reorganization or Sale, of the outstanding Company Voting Securities
(excluding any outstanding voting securities of the Continuing Company that
such beneficial owners hold immediately following the consummation of such
Reorganization or Sale as a result of their ownership prior to such
consummation of voting securities of any corporation or other entity (other
than the Company) involved in or forming part of such Reorganization or Sale), (2) no
Person (excluding (x) any employee benefit plan (or related trust or
fiduciary) sponsored or maintained by the Company or its Affiliates and (y) the
Company and its Affiliates) beneficially owns, directly or indirectly, 20% or
more of the combined voting power of the outstanding voting securities of the
Continuing Company immediately following the consummation of such
Reorganization or Sale and (3) immediately following the consummation of
such Reorganization or Sale, at least a majority of the members of the board of
directors (or equivalent body) of the Continuing Company are Incumbent
Directors;


 


(iii)  the stockholders of the
Company approve a plan of complete liquidation or dissolution of the Company,
unless such liquidation or dissolution is part of a transaction or series of
transactions described in paragraph (ii) above that does not
otherwise constitute a Change of Control; or


 


(iv)  any Person or “group” (as
used in Section 14(d)(2) of the Exchange Act) (excluding (x) any
employee benefit plan (or related trust or fiduciary) sponsored or maintained
by the Company or its Affiliates and (y) the Company and its Affiliates)
becomes the beneficial owner, directly or indirectly, of Company Voting
Securities representing 20% or more of the combined voting power of the then
outstanding Company Voting Securities; provided, however, that, for purposes of
this subparagraph (iv), no acquisition of Company Voting Securities (x) directly
from the Company or (y) by any employee benefit plan (or related trust or
fiduciary) sponsored or maintained by the Company or its Affiliates shall
constitute a Change of Control.


 


“Code” means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated thereunder.


 


“Committee” means the compensation committee of the Board, or such
other committee of the Board as may be designated by the Board from time to
time to administer the Plan.


 


“Exchange Act” means the Securities Exchange Act of 1934, as amended,
or any successor statute thereto.


 


“Exercise Price” means (a) in the case of Options, the price
specified in the applicable Award Agreement as the price-per-Share at which
Shares may be purchased pursuant to such Option or (b) in the case of
SARs, the price specified in the applicable Award Agreement as the reference
price-per-Share used to calculate the amount payable to the Participant.


 


“Fair Market Value” means: (a) with respect to any property other
than Shares, the fair market value of such property determined by such methods
or procedures as shall be established from time to time by the Committee; and (b) with
respect to the Shares, as of any date, (i) the closing market price


 


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of
the Shares (A) as reported by the NYSE for such date, or (B) if the
Shares are listed on any other national stock exchange, as reported on the
stock exchange composite tape for securities traded on such stock exchange for
such date, or with respect to each of clauses (A) and (B), if there
were no sales on such date, on the closest preceding date on which there were
sales of Shares, or (ii) in the event there shall be no public market for
the Shares on such date, the fair market value of the Shares as determined in
good faith by the Committee in such a manner as to comply with Code Section 409A.


 


“Incentive Stock Option” means an option to purchase Shares from the
Company that (a) is granted under Section 6 and (b) is intended
to qualify for special Federal income tax treatment pursuant to
Sections 421 and 422 of the Code, as now constituted or subsequently
amended, or pursuant to a successor provision of the Code, and which is so
designated in the applicable Award Agreement.


 


“Independent Director” means a member of the Board who is neither (a) an
employee of the Company nor (b) an employee of any Affiliate, and who, at
the time of acting, is a “Non-Employee Director” under Rule 16b-3.


 


“IRS” means the Internal Revenue Service or any successor thereto and
includes the staff thereof.


 


“Nonqualified Stock Option” means an option to purchase Shares from the
Company that (a) is granted under Section 6 and (b) is not an
Incentive Stock Option.


 


“NYSE” means the New York Stock Exchange or any successor thereto.


 


“Option” means an Incentive Stock Option or a Nonqualified Stock Option
or both, as the context requires.


 


“Participant” means any director, officer, employee or consultant
(including any prospective director, officer, employee or consultant) of the
Company or its Affiliates who is eligible for an Award under Section 5 and
who is selected by the Committee to receive an Award under the Plan or who
receives a Substitute Award pursuant to Section 4(c).


 


“Performance Compensation Award” means any Award designated by the
Committee as a Performance Compensation Award pursuant to Section 6(i).


 


“Performance Criteria” means the criterion or criteria that the
Committee shall select for purposes of establishing a Performance Goal for a
Performance Period with respect to any Performance Compensation Award under the
Plan.


 


“Performance Formula” means, for a Performance Period, the one or more
objective formulas applied against the relevant Performance Goal to determine,
with regard to the Performance Compensation Award of a particular Participant,
whether all, a portion or none of the Award has been earned for the Performance
Period.


 


“Performance Goal” means, for a Performance Period, the one or more
goals established by the Committee for the Performance Period based upon the
Performance Criteria.


 


“Performance Period” means the one or more periods of time 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 Compensation Award.


 


“Performance Unit” means an Award under Section 6(e) that has
a value set by the Committee (or that is determined by reference to a valuation
formula specified by the Committee or the Fair Market Value of Shares), which
value may be paid to the Participant by delivery of such property as the
Committee shall determine, including without limitation, cash or Shares, or any
combination thereof, upon achievement of such Performance Goals during the
relevant Performance Period as the Committee shall establish at the time of
such Award or thereafter.


 


“Plan” means this Stanley, Inc. Amended and Restated 2006 Omnibus
Incentive Compensation Plan, as in effect from time to time.


 


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“Restricted Share” means a Share delivered under the Plan that is
subject to certain transfer restrictions, forfeiture provisions and/or other
terms and conditions specified herein and in the applicable Award Agreement.


 


“RSU” means a restricted stock unit Award that is designated as such in
the applicable Award Agreement and that represents an unfunded and unsecured
promise to deliver Shares, cash, other securities, other Awards or other
property in accordance with the terms of the applicable Award Agreement.


 


“Rule 16b-3” means Rule 16b-3 as promulgated and interpreted
by the SEC under the Exchange Act or any successor rule or regulation
thereto as in effect from time to time.


 


“SAR” means a stock appreciation right Award that represents an
unfunded and unsecured promise to deliver Shares, cash, other securities, other
Awards or other property equal in value to the excess, if any, of the Fair
Market Value per Share over the Exercise Price per Share of the SAR, subject to
the terms of the applicable Award Agreement.


 


“SEC” means the Securities and Exchange Commission or any successor
thereto and shall include the staff thereof.


 


“Shares” means shares of common stock of the Company, $0.01 par value,
or such other securities of the Company (a) into which such shares shall
be changed by reason of a recapitalization, merger, consolidation, split-up,
combination, exchange of shares or other similar transaction or (b) as may
be determined by the Committee pursuant to Section 4(b).


 


“Subsidiary” means any entity in which the Company, directly or
indirectly, possesses 50% or more of the total combined voting power of all
classes of its stock.


 


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


 


SECTION 3.  Administration.  (a)  Composition
of Committee.  The Plan shall
be administered by the Committee, which shall be composed of one or more
directors, as determined by the Board; provided that after the date of the
consummation of the initial public offering of Shares, to the extent necessary
to comply with the rules of the NYSE and Rule 16b-3 and to satisfy
any applicable requirements of Section 162(m) of the Code and any
other applicable laws or rules, the Committee shall be composed of two or more
directors, all of whom shall be Independent Directors and all of whom shall (i) qualify
as “outside directors” under Section 162(m) of the Code and (ii) meet
the independence requirements of the NYSE.


 


(b)  Authority of Committee.


 


(i)  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
sole and plenary authority to administer the Plan, including, but not limited
to, the 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 Awards, (v) determine the vesting schedules of
Awards and, if certain performance criteria must be attained in order for an
Award to vest or be settled or paid, establish such performance criteria and
certify whether, and to what extent, such performance criteria have been
attained, (vi) 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, (vii) 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, (viii) interpret,
administer, reconcile any inconsistency in, correct any default in and supply
any omission in, the Plan and any instrument or agreement


 


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relating to, or Award made under, the Plan, (ix) 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, (x) accelerate
the vesting or exercisability of, payment for or lapse of restrictions on,
Awards, (xi) amend an outstanding Award or grant a replacement Award for
an Award previously granted under the Plan if, in its sole discretion, the
Committee determines that (A) the tax consequences of such Award to the
Company or the Participant differ from those consequences that were expected to
occur on the date the Award was granted or (B) clarifications or
interpretations of, or changes to, tax law or regulations permit Awards to be
granted that have more favorable tax consequences than initially anticipated,
(xii) modify Awards to eligible individuals who are foreign nationals or
are individuals who are employed outside the United States to recognize
differences in local law, tax policy or custom, and (xiii) make any other
determination and take any other action that the Committee deems necessary or
desirable for the administration of the Plan.


 


(ii)  Without limiting the
generality of the foregoing, the Committee may determine to retain the right in
an Award Agreement to cause a forfeiture of the gain realized by a Participant
on account of actions taken by the Participant in violation or breach of or in
conflict with any employment agreement, non-competition agreement, any
agreement prohibiting solicitation of employees or clients of the Company or
any Affiliate thereof or any confidentiality obligation with respect to the
Company or any Affiliate thereof or otherwise in competition with the Company
or any Affiliate thereof, to the extent specified in such Award Agreement
applicable to the Participant.


 


(c)  Committee Decisions.  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 and
plenary 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
stockholder. All authority delegated to the Committee pursuant to this Plan may
be exercised, in its sole discretion, by the Board.


 


(d)  Indemnification.  No member of the Board, the Committee or any
employee of the Company (each such person, a “Covered Person”) shall be liable
for any action taken or omitted to be taken or any determination made in good
faith with respect to the Plan or any Award hereunder. Each Covered Person
shall be indemnified and held harmless by the Company against and from (i) any
loss, cost, liability or expense (including attorneys’ fees) that may be
imposed upon or incurred by such Covered Person in connection with or resulting
from any action, suit or proceeding to which such Covered Person may be a party
or in which such Covered Person may be involved by reason of any action taken
or omitted to be taken under the Plan or any Award Agreement and (ii) any and
all amounts paid by such Covered Person, with the Company’s approval, in
settlement thereof, or paid by such Covered Person in satisfaction of any
judgment in any such action, suit or proceeding against such Covered Person;
provided that the Company shall have the right, at its own expense, to assume
and defend any such action, suit or proceeding, and, once the Company gives
notice of its intent to assume the defense, the Company shall have sole control
over such defense with counsel of the Company’s choice. The foregoing right of
indemnification shall not be available to a Covered Person to the extent that a
court of competent jurisdiction in a final judgment or other final
adjudication, in either case not subject to further appeal, determines that the
acts or omissions of such Covered Person giving rise to the indemnification
claim resulted from such Covered Person’s bad faith, fraud or willful criminal
act or omission or that such right of indemnification is otherwise prohibited
by law or by the Company’s Certificate of Incorporation or Bylaws. The
foregoing right of indemnification shall not be exclusive of any other rights
of indemnification to which Covered Persons may be entitled under the Company’s
Certificate of Incorporation or Bylaws, as a matter of law, or otherwise, or
any other power that the Company may have to indemnify such persons or hold
them harmless.


 


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(e)  Delegation of Authority to
Senior Officers.  The
Committee may delegate, on such terms and conditions as it determines in its
sole and plenary discretion, to one or more senior officers of the Company the
authority to make grants of Awards to officers (other than executive officers),
employees and consultants of the Company and its Affiliates (including any
prospective officer, employee or consultant) and all necessary and appropriate
decisions and determinations with respect thereto.


 


(f)  Awards to Independent
Directors.  Discretionary
Awards to Independent Directors shall be administered only by the Committee
(consisting solely of Independent Directors) and may not be subject to discretion
of or determination by the Company’s management.


 


SECTION 4.  Shares Available for Awards; Other Limits.  (a)  Shares
Available.  Subject to
adjustment as provided in Section 4(b), the aggregate number of Shares
that may be delivered pursuant to Awards granted under the Plan shall be
4,500,000, all of which may be delivered pursuant to Incentive Stock Options
granted under the Plan. If, after the effective date of the Plan, any Award
granted under the Plan is forfeited, or otherwise expires, terminates or is
canceled without the delivery of Shares, then the Shares covered by such
forfeited, expired, terminated or canceled Award shall again become available
to be delivered pursuant to Awards under the Plan. If Shares issued upon
exercise, vesting or settlement of an Award, or Shares owned by a Participant
(which are not subject to any pledge or other security interest), are
surrendered or tendered to the Company in payment of the Exercise Price of an
Award or any taxes required to be withheld in respect of an Award, in each
case, in accordance with the terms and conditions of the Plan and any
applicable Award Agreement, such surrendered or tendered Shares shall again
become available to be delivered pursuant to Awards under the Plan; provided,
however, that in no event shall such Shares increase the number of Shares that
may be delivered pursuant to Incentive Stock Options granted under the Plan.
Subject to adjustment as provided in Section 4(b), (i) the maximum
aggregate number of Shares with respect to which Awards may be granted to any
Participant in any fiscal year of the Company shall be 1,000,000, provided that
such number of Shares does not reflect, and shall automatically be adjusted to
take into account any stock distribution or stock split that occurs in
connection with the initial public offering of Shares, and (ii) the
maximum aggregate amount of cash and other property (valued at its Fair Market
Value) other than Shares that may be paid or delivered pursuant to Awards under
the Plan to any Participant in any fiscal year of the Company shall be
$3,000,000.


 


(b)  Adjustments for Changes in
Capitalization and Similar Events. 
In the event that the Committee determines that any dividend or other
distribution (whether in the form of cash, Shares, other securities or other
property), recapitalization, stock split, reverse stock split, 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 such that an adjustment is
determined by the Committee in its discretion to be appropriate or desirable,
then the Committee may (i) in such manner as it may deem equitable or
desirable, adjust any or all of (A) the 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, including (1) the aggregate
number of Shares that may be delivered pursuant to Awards granted under the
Plan, as provided in Section 4(a) and (2) the maximum 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 to any
Participant in any fiscal year of the Company and (B) the terms of any
outstanding Award, including (1) the number of Shares or other securities
of the Company (or number and kind of other securities or property) subject to
outstanding Awards or to which outstanding Awards relate and (2) the
Exercise Price with respect to any Award, (ii) if deemed appropriate or
desirable by the Committee, make provision for a cash payment to the holder of
an outstanding Award in consideration for the cancelation of such Award,
including, in the case of an outstanding Option or SAR, a cash payment to the
holder of such Option or SAR in consideration for the cancelation of such
Option or SAR in an amount equal to the excess,


 


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if
any, of the Fair Market Value (as of a date specified by the Committee) of the
Shares subject to such Option or SAR over the aggregate Exercise Price of such
Option or SAR and (iii) if deemed appropriate or desirable by the
Committee, cancel and terminate any Option or SAR having a per Share Exercise
Price equal to, or in excess of, the Fair Market Value of a Share subject to
such Option or SAR without any payment or consideration therefor.


 


(c)  Substitute Awards.  Awards may, in the discretion of the
Committee, be granted under the Plan in assumption of, or in substitution for,
outstanding awards previously granted by the Company or any of its Affiliates
or a company acquired by the Company or any of its Affiliates or with which the
Company or any of its Affiliates 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; provided, however, that Substitute
Awards issued in connection with the assumption of, or in substitution for,
outstanding awards previously granted by an entity that is acquired by the
Company or any of its Affiliates or with which the Company or any of its
Affiliates combines shall not be counted against the aggregate number of Shares
available for Awards under the Plan; provided further, however, that Substitute
Awards issued in connection with the assumption of, or in substitution for,
outstanding stock options intended to qualify for special tax treatment under
Sections 421 and 422 of the Code that were previously granted by an entity
that is acquired by the Company or any of its Affiliates or with which the
Company or any of its Affiliates combines shall be counted against the
aggregate number of Shares available for Incentive Stock Options under the
Plan.


 


(d)  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.  Any director, officer, employee or consultant
(including any prospective director, officer, employee or consultant) of the
Company or any of its Affiliates shall be eligible to be designated a
Participant.


 


SECTION 6.  Awards.  (a)  Types
of Awards.  Awards may be made
under the Plan in the form of (i) Options, (ii) SARs, (iii) Restricted
Shares, (iv) RSUs, (v) Performance Units, (vi) Cash Incentive
Awards and (viii) other equity-based or equity-related Awards that the Committee
determines are consistent with the purpose of the Plan and the interests of the
Company. Awards may be granted in tandem with other Awards. No Incentive Stock
Option (other than an Incentive Stock Option that may be assumed or issued by
the Company in connection with a transaction to which Section 424(a) of
the Code applies) may be granted to a person who is ineligible to receive an
Incentive Stock Option under the Code.


 


(b)  Options.  (i)  Grant.  Subject to the provisions of the Plan, the
Committee shall have sole and plenary authority to determine the Participants
to whom Options shall be granted, the number of Shares to be covered by each
Option, whether the Option will be an Incentive Stock Option or a Nonqualified
Stock Option and the conditions and limitations applicable to the vesting and
exercise of the Option. In the case of Incentive Stock Options, 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 and any regulations related
thereto, as may be amended from time to time. All Options granted under the
Plan shall be Nonqualified Stock Options unless the applicable Award Agreement
expressly states that the Option is intended to be an Incentive Stock Option. If
an Option is 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 Nonqualified Stock Option appropriately granted
under the Plan; provided that such Option (or portion thereof) otherwise
complies with the Plan’s requirements relating to Nonqualified Stock Options.


 


(ii)  Exercise Price.  Except as otherwise established by the
Committee at the time an Option is granted and set forth in the applicable
Award Agreement, the Exercise Price of each Share


 


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covered by an Option shall be not less than 100% of the Fair Market
Value of such Share (determined as of the date the Option is granted);
provided, however, that (A) except as otherwise established by the
Committee at the time an Option is granted and set forth in the applicable
Award Agreement, the Exercise Price of each Share covered by an Option that is
granted effective as of the Company’s initial public offering of Shares shall
be the initial public offering price per Share and (B) in the case of an
Incentive Stock Option granted to an employee who, at the time of the grant of
such Option, owns stock representing more than 10% of the voting power of all
classes of stock of the Company or any Affiliate, the per Share Exercise Price
shall be no less than 110% of the Fair Market Value per Share on the date of
the grant. Options are intended to qualify as “qualified performance-based
compensation” under Section 162(m) of the Code.


 


(iii)  Vesting and Exercise.  Each Option shall be vested and exercisable
at such times, in such manner and subject to such terms and conditions as the
Committee may, in its sole and plenary discretion, specify in the applicable
Award Agreement or thereafter. Except as otherwise specified by the Committee
in the applicable Award Agreement, an Option may only be exercised to the
extent that it has already vested at the time of exercise. Except as otherwise
specified by the Committee in the Award Agreement, Options shall become vested
and exercisable with respect to one-third of the Shares subject to such Options
on each of the first three anniversaries of the date of grant. An Option shall
be deemed to be exercised when written or electronic notice of such exercise
has been given to the Company in accordance with the terms of the Award by the
person entitled to exercise the Award and full payment pursuant to Section 6(b)(iv) for
the Shares with respect to which the Award is exercised has been received by
the Company. Exercise of an Option in any manner shall result in a decrease in
the number of Shares that thereafter may be available for sale under the Option
and, except as expressly set forth in Section 4(c), in the number of
Shares that may be available for purposes of the Plan, by the number of Shares
as to which the Option is exercised. 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.


 


(iv)  Payment. 
(A)  No Shares shall be delivered pursuant to any exercise of an
Option until payment in full of the aggregate Exercise Price therefor is
received by the Company, and the Participant has paid to the Company an amount
equal to any Federal, state, local and foreign income and employment taxes
required to be withheld. Such payments may be made in cash (or its equivalent)
or, in the Committee’s sole and plenary discretion, (1) by surrendering
Shares owned by the Participant (which are not the subject of any pledge or
other security interest) and valued at their Fair Market Value on the date of
surrender, (2) by withholding Shares that would otherwise be received by
the Participant upon exercise of the Option and valued at their Fair Market
value on the date of withholding, or (3) if there shall be a public market
for the Shares at such time, subject to such rules as may be established
by the Committee, through delivery of irrevocable instructions to a broker 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 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 equal to such
aggregate Exercise Price and the amount of any Federal, state, local or foreign
income or employment taxes required to be withheld. The maximum number of
Shares that may be withheld from any Award to satisfy any federal, state or
local tax withholding requirements upon the exercise, vesting, lapse of
restrictions applicable to such Award or payment of Shares pursuant to such
Award, as applicable, cannot exceed such number of Shares having a Fair Market
Value equal to the minimum statutory amount required by the Company to be
withheld and paid to any such federal, state or local taxing authority with
respect to such exercise, vesting, lapse of restrictions or payment of Shares.


 


A-8
















 


(B)  Wherever in
the 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.


 


(v)  Expiration.  Except as otherwise set forth in the
applicable Award Agreement, each Option shall expire immediately, without any
payment, upon the earlier of (A) the tenth anniversary of the date the
Option is granted and (B) either (x) 90 days after the date the
Participant who is holding the Option ceases to be a director, officer,
employee or consultant of the Company or one of its Affiliates for any reason
other than the Participant’s death or (y) six months after the date the
Participant who is holding the Option ceases to be a director, officer,
employee or consultant of the Company or one of its Affiliates by reason of the
Participant’s death. In no event may an Option be exercisable after the tenth
anniversary of the date the Option is granted.


 


(c)  SARs.  (i)  Grant.  Subject to the provisions of the Plan, the
Committee shall have sole and plenary authority to determine the Participants
to whom SARs shall be granted, the number of Shares to be covered by each SAR,
the Exercise Price thereof and the conditions and limitations applicable to the
exercise thereof. SARs may be granted in tandem with another Award, in addition
to another Award or freestanding and unrelated to another Award. SARs 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.


 


(ii)  Exercise Price.  Except as otherwise established by the
Committee at the time a SAR is granted and set forth in the applicable Award
Agreement, the Exercise Price of each Share covered by a SAR shall be not less
than 100% of the Fair Market Value of such Share (determined as of the date the
SAR is granted). SARs are intended to qualify as “qualified performance-based
compensation” under Section 162(m) of the Code.


 


(iii)  Exercise. 
A SAR shall entitle the Participant to receive an amount equal to the
excess, if any, of the Fair Market Value of a Share on the date of exercise of
the SAR over the Exercise Price thereof. The Committee shall determine, in its
sole and plenary discretion, whether a SAR shall be settled in cash, Shares,
other securities, other Awards, other property or a combination of any of the
foregoing.


 


(iv)  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 SAR, the vesting criteria, term, methods of exercise, methods and
form of settlement and any other terms and conditions of any SAR. Any such
determination by the Committee may be changed by the Committee from time to
time and may govern the exercise of SARs granted or exercised thereafter. The
Committee may impose such conditions or restrictions on the exercise of any SAR
as it shall deem appropriate or desirable.


 


(v)  Expiration.  In no event may a SAR be exercisable after
the tenth anniversary of the date the SAR is granted.


 


(d)  Restricted Shares and
RSUs.  (i)  Grant. 
Subject to the provisions of the Plan, the Committee shall have sole and
plenary authority to determine the Participants to whom Restricted Shares and
RSUs shall be granted, the number of Restricted Shares and RSUs to be granted
to each Participant, the duration of the period during which, and the
conditions, if any, under which, the Restricted Shares and RSUs may vest or may
be forfeited to the Company and the other terms and conditions of such Awards.


 


A-9

















 


(ii)  Transfer Restrictions.  Restricted Shares and RSUs may not be sold,
assigned, transferred, pledged or otherwise encumbered except as provided in
the Plan or as may be provided in the applicable Award Agreement; provided,
however, that the Committee may in its discretion determine that Restricted
Shares and RSUs may be transferred by the Participant. Certificates issued in
respect of Restricted Shares may be registered in the name of the Participant
and deposited by such Participant, together with a stock power endorsed in
blank, with the Company or such other custodian as may be designated by the
Committee or the Company, and shall be held by the Company or other custodian,
as applicable, until such time as the restrictions applicable to such
Restricted Shares lapse. In the alternative, in the sole discretion of the
Committee or the Company, record of the Restricted Shares may be made in book
entry form, with no certificates issued. Upon the lapse of the restrictions
applicable to such Restricted Shares, the Company or other custodian, as
applicable, shall deliver such certificates to the Participant or the Participant’s
legal representative, or shall cause any restrictions noted on the book entry
for the Restricted Shares to be eliminated.


 


(iii)  Payment/Lapse of Restrictions.  Each RSU shall be granted with respect to one
Share or shall have a value equal to the Fair Market Value of one Share. RSUs
shall be paid in cash, Shares, other securities, other Awards or other
property, as determined in the sole and plenary discretion of the Committee,
upon the lapse of restrictions applicable thereto, or otherwise in accordance
with the applicable Award Agreement. If a Restricted Share or an RSU is
intended to qualify as “qualified performance-based compensation” under Section 162(m) of
the Code, all requirements set forth in Section 6(i) must be
satisfied in order for the restrictions applicable thereto to lapse.


 


(e)  Performance Units.  (i)  Grant.  Subject to the provisions of the Plan, the
Committee shall have sole and plenary authority to determine the Participants
to whom Performance Units shall be granted and the terms and conditions
thereof.


 


(ii)  Value of Performance Units.  Each Performance Unit shall have an initial
value that is established by the Committee at the time of grant. The Committee
shall set Performance Goals in its discretion which, depending on the extent to
which they are met during a Performance Period, will determine the number and
value of Performance Units that will be paid out to the Participant.


 


(iii)  Earning of Performance Units.  Subject to the provisions of the Plan, after
the applicable Performance Period has ended, the holder of Performance Units
shall be entitled to receive a payout of the number and value of Performance
Units earned by the Participant over the Performance Period, to be determined
by the Committee, in its sole and plenary discretion, as a function of the
extent to which the corresponding Performance Goals have been achieved.


 


(iv)  Form and Timing of Payment of Performance
Units.  Subject to the
provisions of the Plan, the Committee, in its sole and plenary discretion, may
pay earned Performance Units in the form of cash or in Shares (or in a
combination thereof) that has an aggregate Fair Market Value equal to the value
of the earned Performance Units at the close of the applicable Performance
Period. Such Shares may be granted subject to any restrictions in the
applicable Award Agreement deemed appropriate by the Committee. The
determination of the Committee with respect to the form and timing of payout of
such Awards shall be set forth in the applicable Award Agreement. If a
Performance Unit is intended to qualify as “qualified performance-based
compensation” under Section 162(m) of the Code, all requirements set
forth in Section 6(i) must be satisfied in order for a Participant to
be entitled to payment.


 


(f)  Cash Incentive Awards.  Subject to the provisions of the Plan, the
Committee, in its sole and plenary discretion, shall have the authority to
grant Cash Incentive Awards. The Committee shall establish Cash Incentive Award
levels to determine the amount of a Cash Incentive Award payable upon the
attainment of Performance Goals. If a Cash Incentive Award is intended to
qualify as “qualified performance-based compensation” under Section 162(m) of
the Code, all requirements set forth in Section 6(i) must be
satisfied in order for a Participant to be entitled to payment.


 


A-10

















 


(g)  Other Stock-Based Awards.  Subject to the provisions of the Plan, the
Committee shall have the sole and plenary authority to grant to Participants
other equity-based or equity-related Awards (including, but not limited to,
fully-vested Shares) in such amounts and subject to such terms and conditions
as the Committee shall determine. If such an Award is intended to qualify as “qualified
performance-based compensation” under Section 162(m) of the Code, all
requirements set forth in Section 6(i) must be satisfied in order for
a Participant to be entitled to payment. Fully-vested Shares granted pursuant
to this Section 6(g) shall be counted towards the 10% percent Share
limitation set forth in Section 6(d).


 


(h)  Dividend Equivalents.  In the sole and plenary discretion of the
Committee, an Award, other than an Option, SAR or Cash Incentive Award, may
provide the Participant with dividends or dividend equivalents, payable in
cash, Shares, other securities, other Awards or other property, on a current or
deferred basis, on such terms and conditions as may be determined by the
Committee in its sole and plenary discretion, including, without limitation, payment
directly to the Participant, withholding of such amounts by the Company subject
to vesting of the Award or reinvestment in additional Shares, Restricted Shares
or other Awards.


 


(i)  Performance Compensation
Awards.  (i)  General. 
The Committee shall have the authority, at the time of grant of any
Award, to designate such Award (other than Options and SARs) as a Performance
Compensation Award in order to qualify such Award as “qualified
performance-based compensation” under Section 162(m) of the Code.
Options and SARs granted under the Plan shall not be included among Awards that
are designated as Performance Compensation Awards under this Section 6(i).


 


(ii)  Eligibility.  The Committee shall, in its sole discretion,
designate within the first 90 days of a Performance Period (or, if
shorter, within the maximum period allowed under Section 162(m) of
the Code) which Participants will be eligible to receive Performance
Compensation Awards in respect of such Performance Period. However, designation
of a Participant eligible to receive an Award hereunder for a Performance
Period shall not in any manner entitle the Participant to receive payment in
respect of any Performance Compensation Award for such Performance Period. The
determination as to whether or not such Participant becomes entitled to payment
in respect of any Performance Compensation Award shall be decided solely in
accordance with the provisions of this Section 6(i). Moreover, designation
of a Participant eligible to receive an Award hereunder for a particular
Performance Period shall not require designation of such Participant eligible
to receive an Award hereunder in any subsequent Performance Period and
designation of one person as a Participant eligible to receive an Award
hereunder shall not require designation of any other person as a Participant
eligible to receive an Award hereunder in such period or in any other period.


 


(iii)  Discretion of Committee with Respect to Performance
Compensation Awards.  With
regard to a particular Performance Period, the Committee shall have full
discretion to select the length of such Performance Period, the types of
Performance Compensation Awards to be issued, the Performance Criteria that
will be used to establish the Performance Goals, the kinds and levels of the
Performance Goals that are to apply to the Company or any of its Subsidiaries,
Affiliates, divisions or operational units, or any combination of the
foregoing, and the Performance Formula. Within the first 90 days of a
Performance Period (or, if shorter, within the maximum period allowed under Section 162(m) of
the Code), the Committee shall, with regard to the Performance Compensation
Awards to be issued for such Performance Period, exercise its discretion with
respect to each of the matters enumerated in the immediately preceding sentence
and record the same in writing.


 


(iv)  Performance Criteria.  Notwithstanding the foregoing, the
Performance Criteria that will be used to establish the Performance Goals shall
be based on the attainment of specific levels of


 


A-11

















 


performance of the Company or any of its Subsidiaries, Affiliates,
divisions or operational units, or any combination of the foregoing, and shall
be limited to the following: (A) net income before or after taxes, (B) earnings
before or after taxes (including earnings before interest, taxes, depreciation
and amortization), (C) operating income, (D) earnings per share, (E) return
on stockholders’ equity, (F) return on investment or capital, (G) return
on assets, (H) level or amount of acquisitions, (I) share price, (J) profitability
and profit margins, (K) market share, (L) revenues or sales metrics
(based on units, dollars or growth and including backlog) (M) costs, (N) cash
flow, (O) working capital, (P) management of days sales outstanding, (Q) management
of indirect rates, (R) labor utilization, (S) employee turnover and (T) quality
and/or process improvements. Such performance criteria may be applied on an
absolute basis and/or be relative to one or more peer companies of the Company
or indices or any combination thereof. To the extent required under Section 162(m) of
the Code, the Committee shall, within the first 90 days of the applicable
Performance Period (or, if shorter, within the maximum period allowed under Section 162(m) of
the Code), define in an objective manner the method of calculating the
Performance Criteria it selects to use for such Performance Period.


 


(v)  Modification of Performance Goals.  The Committee is authorized at any time
during the first 90 days of a Performance Period (or, if shorter, within
the maximum period allowed under Section 162(m) of the Code), or any
time thereafter (but only to the extent the exercise of such authority after
such 90-day period (or such shorter period, if applicable) would not cause the
Performance Compensation Awards granted to any Participant for the Performance
Period to fail to qualify as “qualified performance-based compensation” under Section 162(m) of
the Code), in its sole and plenary discretion, to adjust or modify the
calculation of a Performance Goal for such Performance Period to the extent
permitted under Section 162(m) of the Code (A) in the event of,
or in anticipation of, any unusual or extraordinary corporate item, transaction,
event or development affecting the Company or any of its Affiliates,
Subsidiaries, divisions or operating units (to the extent applicable to such
Performance Goal) or (B) in recognition of, or in anticipation of, any
other unusual or nonrecurring events affecting the Company or any of its
Affiliates, Subsidiaries, divisions or operating units (to the extent
applicable to such Performance Goal), or the financial statements of the
Company or any of its Affiliates, Subsidiaries, divisions or operating units
(to the extent applicable to such Performance Goal), or of changes in
applicable rules, rulings, regulations or other requirements of any
governmental body or securities exchange, accounting principles, law or
business conditions.


 


(vi)  Payment of Performance Compensation Awards.  (A)  Condition
to Receipt of Payment.  A
Participant must be employed by the Company on the last day of a Performance
Period to be eligible for payment in respect of a Performance Compensation
Award for such Performance Period. Notwithstanding the foregoing, in the
discretion of the Committee, Performance Compensation Awards may be paid to
Participants who have retired or whose employment has terminated prior to the
last day of a Performance Period for which a Performance Compensation Award is
made or to the designee or estate of a Participant who has died prior to the
last day of a Performance Period.


 


(B)  Limitation.  A Participant shall be eligible to receive
payments in respect of a Performance Compensation Award only to the extent that
(1) the Performance Goals for such period are achieved and certified by
the Committee in accordance with Section 6(i)(vi)(C) and (2) the
Performance Formula as applied against such Performance Goals determines that
all or some portion of such Participant’s Performance Compensation Award has
been earned for the Performance Period.


 


(C)  Certification.  Following the completion of a Performance
Period, the Committee shall meet to review and certify in writing whether, and
to what extent, the Performance Goals for the Performance Period have been
achieved and, if so, to calculate and certify in writing


 


A-12

















 


that amount of the Performance Compensation Awards earned for the
period based upon the Performance Formula. The Committee shall then determine
the actual size of each Participant’s Performance Compensation Award for the
Performance Period and, in so doing, may apply negative discretion as
authorized by Section 6(i)(vi)(D).


 


(D)  Negative Discretion.  In determining the actual size of an
individual Performance Compensation Award for a Performance Period, the
Committee may, in its sole and plenary discretion, reduce or eliminate the
amount of the Award earned in the Performance Period, even if applicable
Performance Goals have been attained.


 


(E)  Timing of Award Payments.  The Performance Compensation Awards granted
for a Performance Period shall be paid to Participants as soon as
administratively possible following completion of the certifications required
by Section 6(i)(vi)(C), unless the Committee shall determine that any
Performance Compensation Award shall be deferred.


 


(F)  Discretion.  In no event shall any discretionary authority
granted to the Committee by the Plan be used to (1) grant or provide
payment in respect of Performance Compensation Awards for a Performance Period
if the Performance Goals for such Performance Period have not been attained, (2) increase
a Performance Compensation Award for any Participant at any time after the first
90 days of the Performance Period (or, if shorter, the maximum period
allowed under Section 162(m)) or (3) increase a Performance
Compensation Award above the maximum amount payable under Section 4(a) of
the Plan.


 


SECTION 7.  Amendment and Termination.  (a)  Amendments
to the Plan.  Subject to any
applicable law or government regulation, to any requirement that must be
satisfied if the Plan is intended to be a stockholder approved plan for
purposes of Section 162(m) of the Code and to the rules of the
NYSE or any successor exchange or quotation system on which the Shares may be
listed or quoted, the Plan may be amended, modified or terminated by the Board
without the approval of the stockholders of the Company except that stockholder
approval shall be required for any amendment that would (i) increase the
maximum number of Shares for which Awards may be granted under the Plan or
increase the maximum number of Shares that may be delivered pursuant to
Incentive Stock Options granted under the Plan; provided, however, that any
adjustment under Section 4(b) shall not constitute an increase for
purposes of this Section 7(a), (ii) change the class of employees or
other individuals eligible to participate in the Plan, or (iii) materially
increase the benefits accruing to Participants under the Plan. No modification,
amendment or termination of the Plan may, without the consent of the
Participant to whom any Award shall theretofor have been granted, materially
and adversely affect the rights of such Participant (or his or her transferee)
under such Award, unless otherwise provided by the Committee in the applicable
Award Agreement.


 


(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 theretofor granted, prospectively or retroactively;
provided, however, that, except as set forth in the Plan, unless otherwise
provided by the Committee in the applicable Award Agreement, any such waiver,
amendment, alteration, suspension, discontinuance, cancelation or termination
that would materially and adversely impair the rights of any Participant or any
holder or beneficiary of any Award theretofor granted shall not to that extent
be effective without the consent of the impaired Participant, holder or
beneficiary.


 


(c)  Adjustment of Awards Upon
the Occurrence of Certain Unusual or Nonrecurring Events.  The Committee is hereby authorized to make
adjustments in the terms and conditions of, and the criteria included in, Awards
in recognition of unusual or nonrecurring events (including, without
limitation, the events described in Section 4(b) or the occurrence of
a Change of Control) affecting the Company, any Affiliate, or the financial
statements of the Company or any Affiliate, or of changes in applicable rules,
rulings, regulations or other requirements of any governmental body or
securities exchange, accounting principles or law (i) whenever the
Committee, in its sole and plenary discretion, determines that such


 


A-13

















 


adjustments
are appropriate or desirable, including, without limitation, providing for a
substitution or assumption of Awards, accelerating the exercisability of, lapse
of restrictions on, or termination of, Awards or providing for a period of time
for exercise prior to the occurrence of such event, (ii) if deemed
appropriate or desirable by the Committee, in its sole and plenary discretion,
by providing for a cash payment to the holder of an Award in consideration for
the cancelation of such Award, including, in the case of an outstanding Option
or SAR, a cash payment to the holder of such Option or SAR in consideration for
the cancelation of such Option or SAR in an amount equal to the excess, if any,
of the Fair Market Value (as of a date specified by the Committee) of the
Shares subject to such Option or SAR over the aggregate Exercise Price of such
Option or SAR and (iii) if deemed appropriate or desirable by the
Committee, in its sole and plenary discretion, by canceling and terminating any
Option or SAR having a per Share Exercise Price equal to, or in excess of, the
Fair Market Value of a Share subject to such Option or SAR without any payment
or consideration therefor.


 


(d)  Section 409A
Limitation on Action.  The
Committee shall take no action under this Section 7 that would cause an
Award under the Plan to fail to be either exempt from Code Section 409A or
in compliance with Code Section 409A.


 


SECTION 8.  Change of Control.  Unless otherwise provided in the applicable
Award Agreement, in the event of a Change of Control after the date of the
adoption of the Plan, unless provision is made in connection with the Change of
Control for (a) assumption of Awards previously granted or (b) substitution
for such Awards of new awards covering stock of a successor corporation or its “parent
corporation” (as defined in Section 424(e) of the Code) or “subsidiary
corporation” (as defined in Section 424(f) of the Code) with
appropriate adjustments as to the number and kinds of shares and the Exercise
Prices, if applicable, (i) any outstanding Options or SARs then held by
Participants that are unexercisable or otherwise unvested shall automatically
be deemed exercisable or otherwise vested, as the case may be, as of immediately
prior to such Change of Control, (ii) all Performance Units and Cash
Incentive Awards shall be paid out as if the date of the Change of Control were
the last day of the applicable Performance Period and “target” performance
levels had been attained and (iii) all other outstanding Awards
(i.e., other than Options, SARs, Performance Units and Cash Incentive
Awards) then held by Participants that are unexercisable, unvested or still
subject to restrictions or forfeiture, shall automatically be deemed
exercisable and vested and all restrictions and forfeiture provisions related
thereto shall lapse as of immediately prior to such Change of Control.


 


SECTION 9.  General Provisions.  (a)  Nontransferability.  Except as otherwise specified in the
applicable Award Agreement, during the Participant’s lifetime each Award (and
any rights and obligations thereunder) shall be exercisable only by the
Participant, or, if permissible under applicable law, by the Participant’s
legal guardian or representative, and no Award (or any rights and obligations
thereunder) may be assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by a Participant otherwise 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 or any Affiliate; provided that (i) the
designation of a beneficiary shall not constitute an assignment, alienation,
pledge, attachment, sale, transfer or encumbrance and (ii) the Board or the
Committee may permit further transferability, on a general or specific basis,
and may impose conditions and limitations on any permitted transferability;
provided, however, that Incentive Stock Options granted under the Plan shall
not be transferable in any way that would violate Section 1.422-2(a)(2) of
the Treasury Regulations. All terms and conditions of the Plan and all Award
Agreements shall be binding upon any permitted successors and assigns.


 


(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


 


A-14

















 


interpretations
with respect thereto need not be the same with respect to each Participant and
may be made selectively among Participants, whether or not such Participants
are similarly situated.


 


(c)  No Repricing.  Other than pursuant to Section 7(c) or
Section 8, notwithstanding any other provision in the Plan to the
contrary, the terms of outstanding Options or SARs may not be amended without
stockholder approval to (i) reduce their Exercise Price, or (ii) cancel,
exchange, substitute, buyout or surrender such outstanding Options or SARs in
exchange for cash, other Awards or Options or SARs with an Exercise Price that
is less than the Exercise Price of the original Options or SARs.


 


(d)  Accounting Restatements.  If the Company is required to prepare an
accounting restatement due to the material noncompliance of the Company, as a
result of misconduct, with any financial reporting requirement under the
securities laws, (i) the individuals subject to automatic forfeiture under
Section 304 of the Sarbanes-Oxley Act of 2002 and (ii) any
Participant who (A) knowingly engaged in the misconduct, (B) was grossly
negligent in engaging in the misconduct, (C) knowingly failed to prevent
the misconduct or (D) was grossly negligent in failing to prevent the
misconduct, shall reimburse the Company the amount of any payment in settlement
of an Award earned or accrued during the 12-month period following the first
public issuance or filing with the United States Securities and Exchange
Commission (whichever first occurred) of the financial document that contained
such material noncompliance.


 


(e)  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, the
applicable Award Agreement or the rules, regulations and other requirements of
the SEC, the NYSE or any other stock exchange or quotation system upon which
such Shares or other securities are then listed or reported 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.


 


(f)  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 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 Committee or the Company to satisfy all obligations for the payment
of such taxes.


 


(g)  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.


 


(h)  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 equity-based awards
(subject to stockholder approval if such approval is required), and such
arrangements may be either generally applicable or applicable only in specific
cases.


 


(i)  No Right to Employment.  The grant of an Award shall not be construed
as giving a Participant the right to be retained as a director, officer,
employee or consultant of or to the Company or any Affiliate, nor shall it be
construed as giving a Participant any rights to continued service on the Board.
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.


 


A-15

















 


(j)  No Rights as Stockholder.  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. In connection with each grant of Restricted Shares, except as provided
in the applicable Award Agreement, the Participant shall not be entitled to the
rights of a stockholder in respect of such Restricted Shares. Except as
otherwise provided in Section 4(b), Section 7(c) or the
applicable Award Agreement, no adjustments shall be made for dividends or
distributions on (whether ordinary or extraordinary, and whether in cash,
Shares, other securities or other property), or other events relating to, Shares
subject to an Award for which the record date is prior to the date such Shares
are delivered.


 


(k)  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 the conflict of laws provisions thereof.


 


(l)  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 construed or deemed 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.


 


(m)  Other Laws.  The Committee may refuse to issue or transfer
any Shares or other consideration under an Award if, acting in its sole and
plenary 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. 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 and plenary
discretion has determined that any such offer, if made, would be in compliance
with all applicable requirements of the U.S. Federal and any other applicable
securities laws.


 


(n)  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, on one hand, and a
Participant or any other Person, on the other hand. 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 such Affiliate.


 


(o)  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.


 


(p)  Requirement of Consent and
Notification of Election Under Section 83(b) of the Code or Similar
Provision.  No election under Section 83(b) of
the Code (to include in gross income in the year of transfer the amounts
specified in Section 83(b) of the Code) or under a similar provision
of law may be made unless expressly permitted by the terms of the applicable
Award Agreement or by action of the Committee in writing prior to the making of
such election. If an Award recipient, in connection with the acquisition of
Shares under the Plan or otherwise, is expressly permitted under the terms of
the applicable Award Agreement or by such Committee action to make such an
election and the Participant makes the election, the Participant shall notify
the Committee of such election within


 


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ten days
of filing notice of the election with the IRS or other governmental authority,
in addition to any filing and notification required pursuant to regulations
issued under Section 83(b) of the Code or other applicable provision.


 


(q)  Requirement of
Notification Upon Disqualifying Disposition Under Section 421(b) of
the Code.  If any Participant
shall make any disposition of Shares delivered pursuant to the exercise of an
Incentive Stock Option under the circumstances described in Section 421(b) of
the Code (relating to certain disqualifying dispositions) or any successor
provision of the Code, such Participant shall notify the Company of such
disposition within ten days of such disposition.


 


(r)  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.


 


(s)  Code Section 409A.  Awards under the Plan are intended to be
either exempt from Code Section 409A or in compliance with Code Section 409A
and the Plan shall be so administered and interpreted. In that regard, any
Option or SAR with an exercise price of less than the Fair Market Value of the
subject shares on the grant date or that are otherwise subject to Code Section 409A
will be issued pursuant to an Award Agreement that complies with Section 409A.
Any Award, other than an Option or SAR, which does not meet the requirements
for a “short-term deferral” under Treasury Regulations Section 1.409A-1(b)(4) or
is otherwise not exempt from Section 409A will also be issued pursuant to
an Award Agreement that complies with Section 409A. The Committee shall
take no action under the Plan that would cause an Award under the Plan to fail
to be either exempt from Code Section 409A or in compliance with Code Section 409A.
Notwithstanding the foregoing, Participants are solely responsible for the tax
consequences to them of Awards under the Plan including any tax consequences
under Code Section 409A.


 


SECTION 10.  Term of the Plan.  (a)  Effective
Date.  The Plan shall be
effective as of the date of its adoption by the Board and approval by the
Company’s stockholders; provided, however, that no Incentive Stock Options may
be granted under the Plan unless it is approved by the Company’s stockholders
within twelve (12) months before or after the date the Plan is adopted by
the Board.


 


(b)  Expiration Date.  No Award shall be granted under the Plan
after the tenth anniversary of August 7, 2009, the date the amendment and
restatement of the Plan was approved by the Company’s stockholders. 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, nevertheless
continue thereafter.


 


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