Exhibit 10.2





Exhibit 10.2




ICG GROUP, INC.

THIRD AMENDED AND RESTATED 2005 OMNIBUS EQUITY COMPENSATION PLAN

(as amended and restated, effective June 20, 2011)





1. Purpose



The purpose of the Plan is to provide designated (i) Employees of ICG and its Subsidiaries,
(ii) Non-Management Directors of ICG and its Subsidiaries and (iii) Consultants who perform
services for ICG and its Subsidiaries, with the opportunity to receive grants of Options, SARs,
Stock Units, Performance Shares, Stock Awards, Dividend Equivalents and Other Stock-Based Awards.
ICG believes that the Plan will encourage the Participants to contribute materially to the growth
of ICG, thereby benefiting ICG’s stockholders, and will align the economic interests of the
Participants with those of the stockholders.




2. Definitions



Whenever used in this Plan, the following terms will have the respective meanings set forth
below:




(a) “Board” means ICG’s Board of Directors as constituted from time to time.




(b) “Change of Control” means the first to occur of any of the following events:



(i) Any “person” (as such term is used in sections 13(d) and 14(d) of the Exchange Act)
becomes a “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of ICG representing a majority of the voting power of the then
outstanding securities of ICG, except where the acquisition is approved by the Board; or



(ii) the consummation of (A) a merger or consolidation of ICG with another corporation where
the stockholders of ICG, immediately prior to the consummation of the merger or consolidation, will
not beneficially own, immediately after the merger or consolidation, shares of Stock entitling such
stockholders to more than 50% of all votes to which all stockholders of the surviving corporation
would be entitled in the election of directors, (B) the sale or other disposition of all or
substantially all of the assets of ICG, or (C) a liquidation or dissolution of ICG.




(c) “Code” means the Internal Revenue Code of 1986, as amended.



(d) “Committee” means the Compensation Committee of the Board or its delegate or its
successor, or such other committee appointed by the Board to administer the Plan or its delegate or
its successor. Notwithstanding the foregoing, with respect to Grants to Employees that are
intended as “qualified performance-based compensation” (as defined under section 162(m) of the
Code), as well as to Employees who are officers of the Company, the Committee shall consist of two
or more persons appointed by the Board, all of whom shall be “outside directors” (as defined under
section 162(m) of the Code and related Treasury regulations) and “non-employee directors” as
defined under Rule 16b-3 promulgated under the Exchange Act.




(e) “Company” means ICG and any Subsidiary.




(f) “Consultants” means advisors and consultants who perform services for the Company.



(g) “Date of Grant” means the date a Grant is effective; provided, however, that no
retroactive Grants will be made.



(h) “Dividend Equivalent” means an amount determined by multiplying the number of shares of
Stock, Performance Shares or Stock Units subject to a Grant by the per-share cash dividend, or the
per-share fair market value (as determined by the Committee) of any dividend in consideration other
than cash, paid by ICG on its Stock on a dividend payment date.


 


 









 






(i) “Effective Date” means June 11, 2005, subject to approval by the stockholders of ICG.



(j) “Employee” means an employee of the Company (including an officer or director who is also
an employee).




(k) “Exchange Act” means the Securities Exchange Act of 1934, as amended.



(l) “Fair Market Value” of Stock means (i) if the shares of Stock are publicly traded, (A) if
the principal trading market for the shares of Stock is a national securities exchange, the last
reported sale price thereof on such date or, if there were no trades on that date, the next date
upon which a sale is reported, or (B) if the shares of Stock are not publicly traded on such
exchange or market, the mean between the last reported “bid” and “asked” prices of a share of Stock
on such date as reported on NASDAQ or, if not so reported, as reported by the National Daily
Quotation Bureau, Inc. or as reported in a customary financial reporting service, as applicable and
as the Committee determines, or (ii) if the shares of Stock are not publicly traded or, if publicly
traded, are not subject to reported transactions or “bid” or “asked” quotations as set forth above,
as determined in good faith by the Committee, provided, that, if the shares of Stock are publicly
traded, the Committee may make such discretionary determinations where the shares of Stock have not
been traded for 10 trading days. Notwithstanding the foregoing, in the case of a broker-assisted
exercise pursuant to Section 7(g), the Fair Market Value will be the actual sale price of the
shares of Stock issued upon exercise of the Option.



(m) “Grant” means an Option, SAR, Stock Unit, Performance Share, Stock Award, Dividend
Equivalent or Other Stock-Based Award granted under the Plan.



(n) “Grant Instrument” means the written agreement that sets forth the terms and conditions of
a Grant, including all amendments thereto.



(o) “Incentive Stock Option” means a stock option that is intended to meet the requirements of
section 422 of the Code, as described in Section 7.




(p) “ICG” means ICG Group, Inc., a Delaware corporation, or any successor thereto.



(q) “Non-Management Director” means a member of the Board, or a member of the board of
directors of a Subsidiary, who is not a member of management of the Company.



(r) “Nonqualified Stock Option” means a stock option that is not intended to meet the
requirements of section 422 of the Code, as described in Section 7.



(s) “Option” means an Incentive Stock Option or Nonqualified Stock Option to purchase shares
of Stock at an Option Price for a specified period of time.



(t) “Option Price” means an amount per share of Stock purchasable under an Option, as
designated by the Committee.



(u) “Other Stock-Based Award” means any Grant based on, measured by or payable in Stock (other
than Grants described in Sections 7, 8, 9, 10, 11 and 12), as described in Section 13.




(v) “Parent” means a “parent corporation,” as defined in section 424(e) of the Code, of ICG.



(w) “Participant” means an Employee, Consultant or Non-Management Director designated by the
Committee to participate in the Plan.



(x) “Performance Shares” means an award of phantom shares, representing one or more shares of
Stock, as described in Section 10.


 


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(y) “Plan” means this ICG Group, Inc. 2005 Omnibus Equity Compensation Plan, as in effect from
time to time.



(z) “Stock” means the common stock, par value $0.001 per share, of ICG or such other
securities of ICG as may be substituted for Stock pursuant to Sections 5(d) or 18.



(aa) “SAR” means an award of a stock appreciation right, as described in Section 8.



(bb) “Stock Award” means an award of Stock, as described in Section 11.



(cc) “Stock Unit” means an award of a phantom unit, representing one or more shares of Stock,
as described in Section 9.



(dd) “Subsidiary” means any entity in which ICG has a greater than 50% economic or voting
interest. For purposes of Sections 7(c), (d) and (h), “Subsidiary” shall mean a “subsidiary
corporation,” as defined in section 424(f) of the Code, of ICG.



(ee) “Successor Participant” means the personal representative or other person entitled to
succeed to the rights of the Participant in accordance with Section 17.




3. Administration



(a) Committee. The Plan shall be administered and interpreted by the Committee.
Ministerial functions may be performed by employees of the Company.



(b) Committee Authority. The Committee shall have the sole authority to (i) determine
the Employees, Consultants and Non-Management Directors to whom Grants shall be made under the
Plan, (ii) determine the type, size and terms of the Grants to be made to each Participant, (iii)
determine the time when the Grants will be made and the duration of any applicable exercise or
restriction period, including the criteria for exercisability and the acceleration of
exercisability, (iv) amend the terms of any previously issued Grant, subject to the provisions of
Section 20, (v) adopt guidelines separate from the Plan that set forth the specific terms and
conditions for Grants under the Plan, and (vi) deal with any other matters arising under the Plan.
However, the Board may ratify or approve any Grants as it deems appropriate and has the authority
to administer the Plan. To the extent that the Board makes Grants and administers the Plan,
references in the Plan to the “Committee” shall be deemed to refer to the Board.



(c) Committee Determinations. The Committee shall have full power and express
discretionary authority to administer and interpret the Plan, to make factual determinations and to
adopt or amend such rules, regulations, agreements and instruments for implementing the Plan and
for the conduct of its business as it deems necessary or advisable, in its sole discretion. The
Committee’s interpretations of the Plan and all determinations made by the Committee pursuant to
the powers vested in it hereunder shall be conclusive and binding on all persons having any
interest in the Plan or in any awards granted hereunder. All powers of the Committee shall be
executed in its sole discretion, in the best interest of ICG, not as a fiduciary, and in keeping
with the objectives of the Plan and need not be uniform as to similarly situated individuals.



(d) Restrictions on Stock Units, Performance Shares and Stock Awards. The vesting
period for any performance-based vesting of Stock Unit, Performance Share or Stock Awards grants
made after June 17, 2009 shall not be less than one (1) year. The vesting period for any
time-based vesting of Stock Unit, Performance Share or Stock Award grants shall not be less than
three (3) years. Notwithstanding the foregoing, with respect to grants made after June 17, 2009,
the vesting period for Stock Unit, Performance Share or Stock Award grants for up to five percent
(5%) of the Shares authorized under the Plan pursuant to Section 5(a) are permitted to have
restriction periods other than in accordance with this Section 3(d).



(e) General Provisions Applicable to Awards—Acceleration. The Committee may provide
for the acceleration of vesting of grants; provided, however, that with respect to grants made
after June 17, 2009, the
Committee may provide for acceleration only upon termination of employment for death,
disability or retirement or upon a Change of Control. Notwithstanding the foregoing, with respect
to grants made after June 17, 2009, the Committee may provide for accelerated vesting for up to
five percent (5%) of the Shares authorized under the Plan pursuant to Section 5(a) for other than
termination of employment for death, disability or retirement or upon a Change of Control.


 


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4. Grants



Grants under the Plan may consist of Options, SARs, Stock Units, Performance Shares, Stock
Awards, Dividend Equivalents and Other Stock-Based Awards. All Grants shall be subject to the
terms and conditions set forth herein and to such other terms and conditions consistent with the
Plan as the Committee deems appropriate and as are specified in writing by the Committee in
separate guidelines or to the individual in the Grant Instrument or an amendment to the guidelines
or Grant Instrument. The Committee shall approve the form and provisions of each Grant Instrument.
All Grants shall be made conditional upon the Participant’s acknowledgement, in writing or by
acceptance of the Grant, that all decisions and determinations of the Committee shall be final and
binding on the Participant, his or her beneficiaries, and any other person having or claiming an
interest under such Grant. Grants under a particular Section of the Plan need not be uniform as
among the Participants.




5. Shares of Stock Subject to the Plan



(a) Shares Authorized. The total aggregate number of shares of Stock that may be
issued or transferred under the Plan is 7,600,000 shares, subject to adjustment as described below.
The shares may be authorized but unissued shares of Stock or reacquired shares of Stock, including
shares purchased by ICG on the open market for purposes of the Plan. Grants paid in cash shall not
count against the foregoing share limits.



(b) Share Counting. For administrative purposes, when the Committee makes a Grant
payable in Stock, the Committee shall reserve shares of Stock equal to the maximum number of shares
of Stock that may be payable under the Grant. If and to the extent Options or SARs granted under
the Plan terminate, expire, or are canceled, forfeited, exchanged or surrendered without having
been exercised or if any Stock Awards, Stock Units, Performance Shares, Dividend Equivalents or
Other Stock-Based Awards are forfeited or terminated, or otherwise not paid in full, the shares
subject to such Grants which have not been issued shall again be available for purposes of the
Plan. Shares of Stock surrendered in payment of the Option Price of an Option or withheld for
purposes of satisfying the Company’s minimum tax withholding obligations with respect to Grants
under the Plan shall again be available for issuance or transfer under the Plan. To the extent
that any Grants are paid in cash, and not in shares of Stock, any shares previously reserved for
issuance or transfer pursuant to such Grants shall again be available for issuance or transfer
under the Plan.



(c) Individual Limits. All Grants under the Plan, other than Dividend Equivalents,
shall be expressed in shares of Stock. The maximum aggregate number of shares of Stock with
respect to which all Grants, other than Dividend Equivalents, may be made under the Plan to any
individual during any calendar year shall be 1,000,000 shares, subject to adjustment as described
below. A Participant may not accrue Dividend Equivalents during any calendar year in excess of
$1,000,000. The individual limits described in this subsection (c) shall apply without regard to
whether the Grants are to be paid in Stock or in cash. All cash payments (other than Dividend
Equivalents) shall equal the Fair Market Value of the shares of Stock to which the cash payment
relates.



(d) Adjustments. If there is any change in the number or kind of shares of Stock
outstanding (i) by reason of a stock dividend, spinoff, recapitalization, stock split, or
combination or exchange of shares, (ii) by reason of a merger, reorganization or consolidation,
(iii) by reason of a reclassification or change in par value, or (iv) by reason of any other
extraordinary or unusual event affecting the outstanding Stock as a class without ICG’s receipt of
consideration, or if the value of outstanding shares of Stock is substantially reduced as a result
of a spinoff or ICG’s payment of an extraordinary dividend or distribution, the maximum number of
shares of Stock available for issuance under the Plan, the maximum number of shares of Stock for
which any individual may receive pursuant to Grants in any year, the number of shares covered by
outstanding Grants, the kind of shares to be issued or transferred under the Plan, and the price
per share or the applicable market value of such Grants shall be appropriately adjusted to reflect
any increase or decrease in the number of, or change in the kind or value of, issued shares of
Stock to preclude, to the extent practicable, the enlargement or dilution of rights and benefits
under such Grants; provided,
however, that any fractional shares resulting from such adjustment shall be eliminated. Any
adjustments shall be final, binding and conclusive.


 


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6. Eligibility for Participation



(a) Eligible Persons. All Employees, including persons who have accepted employment
with the Company and Employees who are officers or members of the Board, and all Non-Management
Directors shall be eligible to participate in the Plan. Consultants are eligible to participate in
the Plan if they perform bona fide services for the Company, the services are not in connection
with the offer or sale of securities in a capital-raising transaction, and the Consultants do not
directly or indirectly promote or maintain a market for ICG’s securities.



(b) Selection of Participants. The Committee shall select the Employees, Consultants
and Non-Management Directors to receive Grants and shall determine the terms and conditions of the
Grant and the number of shares of Stock subject to each Grant.




7. Options



(a) General Requirements. The Committee may grant Options to any Employee, Consultant
or Non-Management Director upon such terms and conditions as the Committee deems appropriate under
this Section 7.



(b) Number of Shares. The Committee shall determine the number of shares of Stock
that will be subject to each Grant of Options to Employees, Consultants and Non-Management
Directors.




(c) Type of Option and Price.



(i) The Committee may grant Incentive Stock Options or Nonqualified Stock Options or any
combination of Incentive Stock Options and Nonqualified Stock Options. Incentive Stock Options may
be granted only to Employees who have actually commenced employment with ICG or its Parent or
Subsidiaries. Nonqualified Stock Options may be granted to Employees, Consultants and
Non-Management Directors.



(ii) The Option Price shall be determined by the Committee and may be equal to, greater than
or less than the Fair Market Value of the shares of Stock subject to the Grant on the Date of
Grant; provided, however, that an Incentive Stock Option may not be granted to an Employee who, at
the Date of Grant, owns stock possessing more than 10 percent of the total combined voting power of
all classes of stock of ICG or any Parent or Subsidiary, unless the Option Price is not less than
110% of the Fair Market Value on the Date of Grant.



(d) Option Term. The Committee shall determine the term of each Option. The term of
an Option shall not exceed ten years from the Date of Grant. However, an Incentive Stock Option
that is granted to an Employee who, at the Date of Grant, owns stock possessing more than 10
percent of the total combined voting power of all classes of stock of ICG, or any Parent or
Subsidiary, may not have a term that exceeds five years from the Date of Grant.



(e) Exercisability of Options. Options shall become exercisable in accordance with
such terms and conditions as may be determined by the Committee and specified in the Grant
Instrument. The Committee may accelerate the exercisability of any or all outstanding Options at
any time for any reason.



(f) Termination of Employment or Service. Except as provided in the Grant Instrument,
an Option may only be exercised while the Participant is employed by, or providing service to, the
Company. The Committee shall specify in the Grant Instrument under what circumstances and during
what time periods a Participant may exercise an Option after termination of employment or service,
subject to the limitations of Section 3(e).


 


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(g) Exercise of Options. A Participant may exercise an Option that has become
exercisable, in whole or in part, by delivering a notice of exercise to ICG or its designated
agent. The Participant shall pay the Option Price and any withholding taxes for the Option (i) in
cash or by check, (ii) with the approval of the Committee, by delivering shares of Stock owned by
the Participant and having a Fair Market Value on the date of exercise equal to the Option
Price or by attestation (on a form prescribed by the Committee) to ownership of shares of
Stock having an aggregate Fair Market Value on the date of exercise equal to the Option Price,
(iii) in cash, on the T+3 settlement date that occurs after the exercise date specified in the
notice of exercise, provided that the Participant exercises the Option through an irrevocable
agreement with a registered broker and the payment is made in accordance with procedures permitted
by Regulation T of the Federal Reserve Board and such procedures do not violate applicable law, or
(iv) by such other method as the Committee may approve, to the extent permitted by applicable law.
Shares of Stock used to exercise an Option shall have been held by the Participant for the
requisite period of time to avoid adverse accounting consequences to ICG with respect to the
Option. Payment for the shares pursuant to the Option, and any required withholding taxes, must be
received by the time specified by the Committee depending on the type of payment being made.



(h) Limits on Incentive Stock Options. Each Incentive Stock Option shall provide that
if the aggregate Fair Market Value on the Date of Grant with respect to which Incentive Stock
Options are exercisable for the first time by a Participant during any calendar year, under the
Plan or any other stock option plan of ICG or a Parent or Subsidiary, exceeds $100,000, then the
Option, as to the excess, shall be treated as a Nonqualified Stock Option.




8. SARs



(a) General Requirements. The Committee may grant SARs to any Employee, Consultant or
Non-Management Director, upon such terms and conditions as the Committee deems appropriate under
this Section 8. Each SAR shall represent the right of the Participant to receive, upon settlement
of the SAR, shares of Stock or cash equal to the amount by which the Fair Market Value of a share
of Stock on the date of exercise of the SAR exceeds the base amount of the SAR as described below
in Section 8(c).



(b) Terms of SARs. The Committee shall determine the terms and conditions of SARs and
may grant SARs separately from or in tandem with any Option (for all or a portion of the applicable
Option). Tandem SARs may be granted either at the time the Option is granted or any time
thereafter while the Option remains outstanding; provided, however, that in the case of an
Incentive Stock Option, SARs may be granted only at the time of the grant of the Incentive Stock
Option. The Committee will determine the number of SARs to be granted, the base amount, the
vesting and other restrictions applicable to SARs and the period during which SARs will remain
exercisable.



(c) Base Amount. The Committee shall establish the base amount of the SAR at the time
the SAR is granted.



(d) Payment With Respect to SARs. The Committee shall determine whether the
appreciation in an SAR shall be paid in the form of cash, in Stock, or in a combination of the two,
in such proportion as the Committee deems appropriate. For purposes of calculating the number of
shares of Stock to be received, Stock shall be valued at its Fair Market Value on the date of
exercise of the SAR. If shares of Stock are to be received upon exercise of an SAR, cash shall be
delivered in lieu of any fractional share.



(e) Requirement of Employment or Service. The Committee shall determine in the Grant
Instrument under what circumstances a Participant may retain SARs after termination of the
Participant’s employment or service, and the circumstances under which SARs may be forfeited,
subject to the limitations of Section 3(e).




9. Stock Units



(a) General Requirements. The Committee may grant Stock Units to any Employee,
Consultant or Non-Management Director, upon such terms and conditions as the Committee deems
appropriate under this Section 9, subject to the limitations of Section 3(d). Each Stock Unit
shall represent the right of the Participant to receive a share of Stock or an amount based on the
value of a share of Stock. All Stock Units shall be credited to accounts on ICG’s records for
purposes of the Plan.



(b) Terms of Stock Units. The Committee may grant Stock Units that are payable if
specified performance goals or other conditions are met, or under other circumstances. Stock Units
may be paid at the end of
a specified period, or payment may be deferred to a date authorized by the Committee. The
Committee shall determine the number of Stock Units to be granted and the requirements applicable
to such Stock Units.


 


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(c) Payment With Respect to Stock Units. Payment with respect to Stock Units shall be
made in cash, in Stock, or in a combination of the two, as determined by the Committee. The Grant
Instrument shall specify the maximum number of shares that shall be paid under the Stock Units.



(d) Requirement of Employment or Service. The Committee shall determine in the Grant
Instrument under what circumstances a Participant may retain Stock Units after termination of the
Participant’s employment or service, and the circumstances under which Stock Units may be
forfeited.




10. Performance Shares



(a) General Requirements. The Committee may grant Performance Shares to any Employee,
Consultant or Non-Management Director, upon such terms and conditions as the Committee deems
appropriate under this Section 10, subject to the limitations of Section 3(d). Each Performance
Share shall represent the right of the Participant to receive a share of Stock or an amount based
on the value of a share of Stock, if specified performance goals are met. All Performance Shares
shall be credited to accounts on ICG’s records for purposes of the Plan.



(b) Terms of Performance Shares. The Committee shall establish the performance goals
and other conditions for payment of Performance Shares. Performance Shares may be paid at the end
of a specified performance or other period, or payment may be deferred to a date authorized by the
Committee. The Committee shall determine the number of Performance Shares to be granted and the
requirements applicable to such Performance Shares.



(c) Payment With Respect to Performance Shares. Payment with respect to Performance
Shares shall be made in cash, in Stock, or in a combination of the two, as determined by the
Committee. The Committee shall establish in the Grant Instrument a target amount to be paid under
a Performance Share based on achievement of the performance goals.



(d) Requirement of Employment or Service. The Committee shall determine in the Grant
Instrument under what circumstances a Participant may retain Performance Shares after termination
of the Participant’s employment or service, and the circumstances under which Performance Shares
may be forfeited.




11. Stock Awards



(a) General Requirements. The Committee may issue or transfer shares of Stock to any
Employee, Consultant or Non-Management Director under a Stock Award, upon such terms and conditions
as the Committee deems appropriate under this Section 11, subject to the limitations of Section
3(d). Shares of Stock issued or transferred pursuant to Stock Awards may be issued or transferred
for cash consideration or for no cash consideration, and subject to restrictions or no
restrictions, as determined by the Committee. The Committee may establish conditions under which
restrictions on Stock Awards shall lapse over a period of time or according to such other criteria
as the Committee deems appropriate, including restrictions based upon the achievement of specific
performance goals.



(b) Number of Shares. The Committee shall determine the number of shares of Stock to
be issued or transferred pursuant to a Stock Award and any restrictions applicable to such shares.



(c) Requirement of Employment or Service. The Committee shall determine in the Grant
Instrument under what circumstances a Participant may retain Stock Awards after termination of the
Participant’s employment or service, and the circumstances under which Stock Awards may be
forfeited.



(d) Restrictions on Transfer. While Stock Awards are subject to restrictions, a
Participant may not sell, assign, transfer, pledge or otherwise dispose of the shares of a Stock
Award except upon death as described in Section 17. Each certificate, or electronic book entry
equivalent, for a share of a Stock Award shall contain a legend
giving appropriate notice of the restrictions in the Grant. The Participant shall be entitled
to have the legend removed when all restrictions on such shares have lapsed. The Committee may
retain possession of any stock certificates for Stock Awards until all restrictions on such shares
have lapsed.


 


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(e) Right to Vote and to Receive Dividends. Unless the Committee determines
otherwise, the Participant shall have the right to vote shares subject to Stock Awards and to
receive any dividends or other distributions paid on such shares during the restriction period.
The Committee may determine that a Participant’s entitlement to dividends or other distributions
with respect to a Stock Award shall be subject to achievement of performance goals or other
conditions.




12. Dividend Equivalents.



(a) General Requirements. When the Committee makes a Grant under the Plan, the
Committee may grant Dividend Equivalents in connection with such Grants, under such terms and
conditions as the Committee deems appropriate under this Section 12. Dividend Equivalents may be
paid to Participants currently or may be deferred, as determined by the Committee. All Dividend
Equivalents that are not paid currently shall be credited to accounts on ICG’s records for purposes
of the Plan. Dividend Equivalents may be accrued as a cash obligation, or may be converted to
Stock Units for the Participant, as determined by the Committee. Unless otherwise specified in the
Grant Instrument, deferred Dividend Equivalents will not accrue interest. The Committee may
provide that Dividend Equivalents shall be payable based on the achievement of specific performance
goals.



(b) Payment with Respect to Dividend Equivalents. Dividend Equivalents may be payable
in cash, shares of Stock, or other property, or in a combination of the foregoing, as determined by
the Committee.




13. Other Stock-Based Awards



The Committee may grant other awards that are cash-based or based on, measured by or payable
in Stock to Employees, Consultants or Non-Management Directors, on such terms and conditions as the
Committee deems appropriate under this Section 13. Other Stock-Based Awards may be granted subject
to achievement of performance goals or other conditions and may be payable in Stock or cash, or in
a combination of the two, as determined by the Committee in the Grant Instrument.




14. Qualified Performance-Based Compensation



(a) Designation as Qualified Performance-Based Compensation. The Committee may
determine that Stock Units, Performance Shares, Stock Awards, Dividend Equivalents or Other
Stock-Based Awards granted to an Employee shall be considered “qualified performance-based
compensation” under section 162(m) of the Code. The provisions of this Section 14 shall apply to
any such Grants that are to be considered “qualified performance-based compensation” under section
162(m) of the Code. To the extent that Grants of Stock Units, Performance Shares, Stock Awards,
Dividend Equivalents or Other Stock-Based Awards designated as “qualified performance-based
compensation” under section 162(m) of the Code are made, no such Grant may be made as an
alternative to another Grant that is not designated as “qualified performance based compensation”
but instead must be separate and apart from all other Grants made.



(b) Performance Goals. When Stock Units, Performance Shares, Stock Awards, Dividend
Equivalents or Other Stock-Based Awards that are to be considered “qualified performance-based
compensation” are granted, the Committee shall establish in writing (i) the objective performance
goals that must be met, (ii) the period during which performance will be measured, (iii) the
maximum amounts that may be paid if the performance goals are met, and (iv) any other conditions
that the Committee deems appropriate and consistent with the Plan and the requirements of section
162(m) of the Code for “qualified performance-based compensation.” The performance goals shall
satisfy the requirements for “qualified performance-based compensation,” including the requirement
that the achievement of the goals be substantially uncertain at the time they are established and
that the performance goals be established in such a way that a third party with knowledge of the
relevant facts could determine whether and to what extent the performance goals have been met. The
Committee shall not have discretion to increase the
amount of compensation that is payable upon achievement of the designated performance goals,
but the Committee may reduce the amount of compensation that is payable upon achievement of the
designated performance goals.


 


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(c) Criteria Used for Objective Performance Goals. The Committee shall use
objectively determinable performance goals based on one or more of the following criteria: Stock
price, earnings per share of Stock, net earnings, operating earnings, return on assets, stockholder
return, return on equity, growth in assets, share volume, sales, market share, change in net asset
value, EBIT, EBITDA, cash flow, backlog or deferred revenue, strategic business criteria, meeting
specific revenue targets, market penetration, geographic business expansion, cost targets or goals
relating to acquisitions or divestitures. The performance goals may relate to the Participant’s
business unit or the performance of ICG or one or more ICG partner companies, or any combination of
the foregoing. Performance goals need not be uniform as among Participants.



(d) Timing of Establishment of Goals. The Committee shall establish the performance
goals in writing either before the beginning of the performance period or during a period ending no
later than the earlier of (i) 90 days after the beginning of the performance period or (ii) the
date on which 25% of the performance period has been completed, or such other date as may be
required or permitted under applicable regulations under section 162(m) of the Code.



(e) Certification of Results. The Committee shall certify and announce the results
for the performance period to all Participants after ICG determines the financial results for the
performance period. The Committee shall determine the amount, if any, to be paid pursuant to each
Grant based on the achievement of the performance goals and the terms of each Grant Instrument.



(f) Death, Disability or Other Circumstances. The Committee may provide in the Grant
Instrument that Grants shall be payable, in whole or in part, in the event of the Participant’s
death or disability, a Change of Control or under other circumstances consistent with the Treasury
regulations and rulings under section 162(m) of the Code.




15. Deferrals



The Committee may permit or require a Participant to defer receipt of the payment of cash or
the delivery of shares of Stock that would otherwise be due to the Participant in connection with
any Grant. The Committee shall establish rules and procedures for such deferrals, which shall be
consistent with the requirements of section 409A of the Code and the corresponding Treasury
regulations and rulings.




16. Withholding of Taxes



(a) Required Withholding. All Grants under the Plan shall be subject to applicable
federal (including FICA), state and local tax withholding requirements. The Company may (i)
require that the Participant or other person receiving or exercising Grants pay to the Company the
amount of any federal, state or local taxes that the Company is required to withhold with respect
to such Grants, or (ii) deduct from other wages paid by the Company the amount of any withholding
taxes due with respect to such Grants.



(b) Election to Withhold Shares. If the Committee so permits, a Participant may elect
to satisfy the Company’s tax withholding obligation with respect to Grants paid in Stock by having
shares withheld, at the time such Grants become taxable, up to an amount that does not exceed the
minimum applicable withholding tax rate for federal (including FICA), state and local tax
liabilities. In addition, with respect to any required tax withholding amount that exceeds the
minimum applicable withholding tax rate, the Committee may permit a Participant to satisfy such tax
withholding obligation with respect to such excess amount by providing that the Participant may
elect to deliver to the Company shares of Stock owned by the Participant that have been held by the
Participant for the requisite period of time to avoid adverse accounting consequences to ICG. The
elections described in this subsection (b) must be in a form and manner prescribed by the Committee
and may be subject to the prior approval of the Committee.


 


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17. Transferability of Grants



(a) In General. Except as provided in this Section 17, only the Participant may
exercise rights under a Grant during the Participant’s lifetime. A Participant may not transfer
those rights except by will or by the laws of descent and distribution, or, with respect to Grants
other than Incentive Stock Options, if permitted in any specific case by the Committee, pursuant to
a domestic relations order. When a Participant dies, the Successor Participant may exercise such
rights in accordance with the terms of the Plan. A Successor Participant must furnish proof
satisfactory to ICG of his or her right to receive the Grant under the Participant’s will or under
the applicable laws of descent and distribution.



(b) Transfer of Nonqualified Stock Options. Notwithstanding the foregoing, the
Committee may provide in a Grant Instrument that a Participant may transfer Nonqualified Stock
Options to family members or other persons or entities, consistent with applicable securities laws,
according to such terms as the Committee may determine; provided that the Participant receives no
consideration for the transfer of a Nonqualified Stock Option and the transferred Nonqualified
Stock Option shall continue to be subject to the same terms and conditions as were applicable to
the Nonqualified Stock Option immediately before the transfer.




18. Consequences of a Change of Control



(a) Assumption of Grants. Upon a Change of Control where ICG is not the surviving
corporation (or survives only as a subsidiary of another corporation), unless the Committee
determines otherwise, all outstanding Options and SARs that are not exercised shall be assumed by,
or replaced with comparable options and rights by, the surviving corporation (or a parent or
subsidiary of the surviving corporation), and other Grants that remain outstanding shall be
converted to similar grants of the surviving corporation (or a parent or subsidiary of the
surviving corporation).



(b) Other Alternatives. Notwithstanding the foregoing, in the event of a Change of
Control, the Committee may take any of the following actions with respect to any or all outstanding
Grants, without the consent of any Participant: (i) determine that outstanding Options and SARs
shall accelerate and become exercisable, in whole or in part; (ii) determine that the restrictions
and conditions on outstanding Stock Awards shall lapse, in whole or in part; (iii) provide that
Participants holding outstanding Performance Shares shall receive payment, in whole or in part, in
settlement of such Performance Shares, in an amount determined by the Committee, based on the
Participant’s target payment for the performance period and the portion of the performance period
that precedes the Change of Control; (iv) determine that outstanding Stock Units shall become
payable, in whole or in part, in cash, Stock or other property in an amount not less than their
target amount, as determined by the Committee; (v) provide that Dividend Equivalents and Other
Stock-Based Awards shall become fully payable, in whole or in part, in cash, Stock or other
property, in amounts determined by the Committee; (vi) the Committee may require that Participants
surrender their outstanding Options and SARs in exchange for a payment by ICG, in cash, Stock or
other property, as determined by the Committee, in an amount equal to the amount by which the then
Fair Market Value subject to the Participant’s unexercised Options and SARs exceeds the Option
Price of the Options or the base amount of the SARs, as applicable; (vii) after giving Participants
an opportunity to exercise their outstanding Options and SARs, the Committee may terminate any or
all unexercised Options and SARs at such time as the Committee deems appropriate; and (viii) with
respect to Participants holding Stock Units, Performance Shares, Dividend Equivalents or Other
Stock-Based Awards, the Committee may determine that such Participants shall receive a payment in
settlement of such Stock Units, Performance Shares, Dividend Equivalents or Other Stock-Based
Awards, in such amount and form as may be determined by the Committee. Such acceleration,
surrender, termination or settlement shall take place as of the date of the Change of Control or
such other date as the Committee may specify.



(c) Other Transactions. The Committee may provide in a Grant Instrument that a sale
or other transaction involving a Subsidiary or other business unit of ICG shall be considered a
Change of Control for purposes of a Grant, or the Committee may establish other provisions that
shall be applicable in the event of a specified transaction.


 


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19. Requirements for Issuance of Shares



No shares of Stock shall be issued or transferred in connection with any Grant hereunder
unless and until all legal requirements applicable to the issuance of such shares have been
complied with to the satisfaction of the Committee. The Committee shall have the right to
condition any Grant made to any Participant hereunder on such Participant’s undertaking in writing
to comply with such restrictions on his or her subsequent disposition of such shares of Stock as
the Committee shall deem necessary or advisable, and certificates representing such shares may be
legended to reflect any such restrictions. Certificates representing shares of Stock issued or
transferred under the Plan will be subject to such stop-transfer orders and other restrictions as
may be required by applicable laws, regulations and interpretations, including any requirement that
a legend be placed thereon.




20. Amendment and Termination of the Plan



(a) Amendment. The Board may amend or terminate the Plan at any time; provided,
however, that the Board shall not amend the Plan without approval of the stockholders of ICG if
such approval is required in order to comply with the Code or applicable laws, or to comply with
applicable stock exchange requirements. No amendment or termination of this Plan shall, without
the consent of the Participant, impair any rights or obligations under any Grant previously made to
the Participant, unless such right has been reserved in the Plan or the Grant Instrument, or except
as provided in Section 21(b) below.



(b) No Repricing Without Stockholder Approval. Notwithstanding anything in the Plan
to the contrary, without the prior approval of the Company’s stockholders, no Grant under the Plan
may be repriced, replaced, regranted through cancellation or modified if the effect would be to
reduce the exercise price for the shares underlying such Grant; provided, however, that the
foregoing shall not apply to any adjustment made to a Grant pursuant to Section 5(d) of the Plan.
In addition, the Committee may not cancel an outstanding Grant that is underwater for the purpose
of granting a replacement Grant of a different type.



(c) Stockholder Approval for “Qualified Performance-Based Compensation.” If Stock
Units, Performance Shares, Stock Awards, Dividend Equivalents or Other Stock-Based Awards are
granted as “qualified performance-based compensation” under Section 14 above, the Plan must be
reapproved by ICG’s stockholders no later than the first stockholders meeting that occurs in the
fifth year following the year in which the stockholders previously approved the provisions of
Section 14, if additional Grants are to be made under Section 14 and if required by section 162(m)
of the Code or the regulations thereunder.



(d) Termination of Plan. The Plan shall terminate on the day immediately preceding
the tenth anniversary of its Effective Date, unless the Plan is terminated earlier by the Board or
is extended by the Board with the approval of the stockholders. The termination of the Plan shall
not impair the power and authority of the Committee with respect to an outstanding Grant.




21. Miscellaneous



(a) Grants in Connection with Corporate Transactions and Otherwise. Nothing contained
in this Plan shall be construed to (i) limit the right of the Committee to make Grants under this
Plan in connection with the acquisition, by purchase, lease, merger, consolidation or otherwise, of
the business or assets of any corporation, firm or association, including Grants to employees
thereof who become Employees, or for other proper corporate purposes, or (ii) limit the right of
ICG to grant stock options or make other awards outside of this Plan. Without limiting the
foregoing, the Committee may make a Grant to an employee of another corporation who becomes an
Employee by reason of a corporate merger, consolidation, acquisition of stock or property,
reorganization or liquidation involving ICG in substitution for a grant made by such corporation.
The terms and conditions of the substitute Grants may vary from the terms and conditions required
by the Plan and from those of the substituted stock incentives. The Committee shall prescribe the
provisions of the substitute Grants.


 


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(b) Compliance with Law. The Plan, the exercise of Options and the obligations of ICG
to issue or transfer shares of Stock under Grants shall be subject to all applicable laws and to
approvals by any governmental or regulatory agency as may be required. With respect to persons
subject to section 16 of the Exchange Act, it is the
intent of ICG that the Plan and all transactions under the Plan comply with all applicable
provisions of Rule 16b-3 or its successors under the Exchange Act. In addition, it is the intent
of ICG that the Plan and applicable Grants comply with the applicable provisions of sections
162(m), 409A and 422 of the Code. To the extent that any legal requirement of section 16 of the
Exchange Act or sections 162(m), 409A or 422 of the Code as set forth in the Plan ceases to be
required under section 16 of the Exchange Act or sections 162(m), 409A or 422 of the Code, that
Plan provision shall cease to apply. The Committee may revoke any Grant if it is contrary to law
or modify a Grant to bring it into compliance with any valid and mandatory government regulation.
The Committee may also adopt rules regarding the withholding of taxes on payments to Participants.
The Committee may, in its sole discretion, agree to limit its authority under this Section.



(c) Enforceability. The Plan shall be binding upon and enforceable against ICG and
its successors and assigns.



(d) Funding of the Plan; Limitation on Rights. This Plan shall be unfunded. Neither
ICG nor any other Company shall be required to establish any special or separate fund or to make
any other segregation of assets to assure the payment of any Grants under this Plan. Nothing
contained in the Plan and no action taken pursuant hereto shall create or be construed to create a
fiduciary relationship between ICG or any other Company and any Participant or any other person.
No Participant or any other person shall under any circumstances acquire any property interest in
any specific assets of ICG or any other Company. To the extent that any person acquires a right to
receive payment from ICG hereunder, such right shall be no greater than the right of any unsecured
general creditor of ICG.



(e) Rights of Participants. Nothing in this Plan shall entitle any Employee,
Consultant, Non-Management Director or other person to any claim or right to receive a Grant under
this Plan. Neither this Plan nor any action taken hereunder shall be construed as giving any
individual any rights to be retained by or in the employment or service of the Company.



(f) No Fractional Shares. No fractional shares of Stock shall be issued or delivered
pursuant to the Plan or any Grant. The Committee shall determine whether cash, other awards or
other property shall be issued or paid in lieu of such fractional shares or whether such fractional
shares or any rights thereto shall be forfeited or otherwise eliminated.



(g) Employees Subject to Taxation Outside the United States. With respect to
Participants who are subject to taxation in countries other than the United States, the Committee
may make Grants on such terms and conditions as the Committee deems appropriate to comply with the
laws of the applicable countries, and the Committee may create such procedures, addenda and
subplans and make such modifications as may be necessary or advisable to comply with such laws.



(h) Governing Law. The validity, construction, interpretation and effect of the Plan
and Grant Instruments issued under the Plan shall be governed and construed by and determined in
accordance with the laws of the State of Delaware, without giving effect to the conflict of laws
provisions thereof.




 


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