Exhibit 10.8


    
      

      

    

    

      PRIVILEGED
        AND CONFIDENTIAL

      WLR&K
        DRAFT: 9/18/06

    

    
 

    BERRY
      PLASTICS GROUP, INC.


     

    2006
      EQUITY INCENTIVE PLAN

     

    1. Purpose.

     

    The
      purpose of this Plan is to strengthen Berry Plastics Group, Inc., a Delaware
      corporation (the “Company”), by providing an incentive to its and its
      Subsidiaries’ employees, officers, consultants and directors and thereby
      encouraging them to devote their abilities and industry to the success of the
      Company’s business enterprise. It is intended that this purpose be achieved by
      extending to employees, officers, consultants and directors of the Company
      and
      its Subsidiaries an added long-term incentive for high levels of performance
      and
      unusual efforts through the grant of options to acquire shares of the Company’s
      common stock.

     

    2. Definitions.

     

    For
      purposes of the Plan:

     

    2.1 “Award”
      means a Stock Award or grant of Options or SARs pursuant to the terms of the
      Plan.

     

    2.2 “Affiliate”
      means, with respect to any entity, any other entity, directly or indirectly,
      controlled by, controlling or under common control with such
      entity.

     

    2.3 “Agreement”
      means the written agreement between the Company and a Grantee of an Award,
      evidencing the grant of an Option, SAR or Stock Award, as applicable, and
      setting forth the terms and conditions thereof.

     

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

     

    2.5 “BPC”
      means BPC Holding Corporation, a Delaware corporation.

     

    2.6 “Cause”
      means:

     

    (a) in
      the
      case of a Grantee whose employment with the Company or its Subsidiaries is
      subject to the terms of an employment agreement between such Grantee and the
      Company or its Subsidiaries, which employment agreement includes a definition
      of
“Cause,” the meaning set forth in such employment agreement during the period
      that such employment agreement remains in effect; provided, however, that
      notwithstanding the foregoing, to the extent the employment agreement defines
      “Cause” to include the commission of, indictment for, conviction of or plea of
      no contest to a felony or other crime, in no event shall such commission,
      indictment, conviction or plea constitute Cause hereunder unless the act
      constituted a crime that is (a) a serious felony (or equivalent classification)
      under applicable law or (b) a crime against the Company or its Subsidiaries;
      and

     

    (b) in
      all
      other cases, the Grantee’s (a) intentional failure or refusal to perform
      reasonably assigned duties, (b) dishonesty, willful misconduct or gross
      negligence in the performance of the Grantee’s duties to the Company or its
      Subsidiaries, (c) involvement in a 

     

    
      
        
        

      

      
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transaction
        in connection with the performance of the Grantee’s duties to the Company or its
        Subsidiaries which transaction is adverse to the interests of the Company
        or its
        Subsidiaries and which is engaged in for personal profit, (d) willful violation
        of any law, rule or regulation in connection with the performance of the
        Grantee’s duties to the Company or its Subsidiaries (other than misdemeanor
        traffic violations or similar minor offenses), (e) indictment for, conviction
        of
        or plea of no contest to any crime that is (1) a serious felony (or equivalent
        classification) under applicable law or (2) a crime against the Company or
        its
        Subsidiaries or (f) action or inaction materially adversely affecting the
        Company or its Subsidiaries. 

    

     

    2.7 “Change
      in Capitalization” means any change in the Shares or exchange of Shares for a
      different number or kind of shares or other securities of the Company or another
      corporation, by reason of a reclassification, recapitalization, merger,
      consolidation, reorganization, spin-off, split-up, issuance of warrants or
      rights or debentures, stock dividend, stock split or reverse stock split, cash
      dividend, property dividend, combination or exchange of shares, repurchase
      of
      shares, change in corporate structure or otherwise.

     

    2.8 A
“Change
      in Control” means the occurrence of any of the following events:

     

    (a) An
      acquisition of any voting securities of the Company (the “Voting Securities”) by
      any “Person” (as the term person is used for purposes of Section 13(d) or 14(d)
      of the Exchange Act), immediately after which such Person has (i) “Beneficial
      Ownership” (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
      of more than fifty percent (50%) of the then outstanding Shares or the combined
      voting power of the Company’s then outstanding Voting Securities or (ii) the
      power to elect a majority of the Board without the vote of any Investors;
provided,
      however,
      that in
      determining whether a Change in Control has occurred pursuant to this Section
      2.8 (a), an acquisition of Shares or Voting Securities by (i) the Company or
      any
      corporation or other Person of which a majority of its voting power or its
      voting equity securities or equity interest is owned, directly or indirectly,
      by
      the Company (a “Related Entity”) or (ii), any Investors or any Affiliates of any
      Investors, shall not constitute a Change in Control;

     

    (b) The
      consummation of a merger, consolidation or reorganization of, with or into
      the
      Company or in which securities of the Company are issued (a “Merger”), unless
      such Merger is a “Non-Control Transaction.” A “Non-Control Transaction” shall
      mean a Merger where immediately following the Merger the Investors or any
      Affiliates of the Investors own, directly or indirectly, fifty percent (50%)
      or
      more of the combined voting power of the outstanding voting securities of (x)
      the corporation resulting from the Merger (the “Surviving Corporation”) if fifty
      percent (50%) or more of the combined voting power of the then outstanding
      voting securities of the Surviving Corporation is not Beneficially Owned,
      directly or indirectly, by another Person or (y) if more than fifty percent
      (50%) of the combined voting power of the then outstanding voting securities
      of
      the Surviving Corporation is Beneficially Owned, directly or indirectly, by
      another Person (a “Parent Corporation”), the ultimate Parent Corporation or (z)
      an IPO; or

     

    (c) The
      sale
      or other disposition of all or substantially all of the assets of the Company,
      BPC or Berry Plastics Corporation to any Person, other than (i) a transfer
      to a
      Related Entity or under conditions that would constitute a Non-Control
      Transaction if the 

     

    
      
        
        

      

      
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disposition
        of assets is regarded as a Merger for this purpose or (ii) the distribution
        to
        the Company’s stockholders of the stock of a Related Entity or any other
        assets.

    

     

    2.9 “Closing”
      and “Closing Date” have the meanings given such terms in the Agreement and Plan
      of Merger, dated as of June 28, 2006, by and between BPC, BPC Acquisition Corp.,
      and the Company.

     

    2.10 “Code”
      means the Internal Revenue Code of 1986, as amended. 

     

    2.11 “Committee”
      means a committee, as described in Section 3.1, appointed by the Board from
      time
      to time to administer the Plan and to perform the functions set forth
      herein.

     

    2.12 “Company”
      means Berry Plastics Group, Inc.

     

    2.13 “Corporate
      Transaction” means any of the following events:

     

    (a) consummation
      of any merger or consolidation of the Company with or into another corporation;
      or

     

    (b) consummation
      of any sale of all or substantially all of the assets of the Company, BPC or
      Berry other than a transfer of the Company’s assets to a Subsidiary of the
      Company.

     

    2.14 “Disability”
      means:

     

    (a) in
      the
      case of a Grantee whose employment with the Company or a Subsidiary is subject
      to the terms of an employment agreement between such Grantee and the Company
      or
      Subsidiary, which employment agreement includes a definition of “Disability,”
the meaning set forth in such employment agreement during the period that such
      employment agreement remains in effect; and

     

    (b) in
      all
      other cases, a physical or mental infirmity which impairs the Grantee’s ability
      to perform substantially his or her duties for a period of ninety (90) days
      in
      any three-hundred and sixty-five (365) day period.

     

    2.15 “EBITDA”
      means the consolidated income of the Company before interest, taxes,
      depreciation, amortization, gain or loss on the disposal of assets, acquisition
      or attempted acquisition-related expenses and other non-cash charges (including,
      without limitation, revaluations of vested stock options required by generally
      accepted accounting principles, to the extent deducted in computing consolidated
      income, but excluding any non-cash charge that requires an accrual or reserve
      for cash expenditures in future periods or which involve a cash expenditure
      in a
      prior period (determined in accordance with generally accepted accounting
      principles, consistently applied, with inventory valued on a “first-in,
      first-out” basis).

     

    
      
        
        

      

      
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    2.16 “EBITDA
      Target” means, with respect to a fiscal year of the Company or a portion
      thereof, the EBITDA target for such year or a portion thereof, based on which
      a
      Fixed Priced Option or Fixed Priced SAR may vest, as set forth in an
      Agreement. 

     

    2.17 “Eligible
      Individual” means any director, officer, employee or consultant of the Company
      or a Subsidiary who is designated by the Committee as eligible to receive
      Awards.

     

    2.18 “Escalating
      Priced Option” means an Option with an initial exercise price per Share on the
      date the Option is granted equal to the Fair Market Value of a Share, which
      exercise price shall increase at a rate of 15% per year as set forth in the
      Agreement evidencing such Option.

     

    2.19 “Escalating
      Priced SAR” means a SAR with an initial exercise price per Share on the date the
      SAR is granted equal to the Fair Market Value of a Share, which exercise price
      shall increase at a rate of 15% per year as set forth in the Agreement
      evidencing such SAR.

     

    2.20 “Excess
      EBITDA” shall have the meaning set forth in Section 6.3.

     

    2.21 “Excess
      Year” shall have the meaning set forth in Section 6.3.

     

    2.22 “Exchange
      Act” means the Securities Exchange Act of 1934, as amended.

     

    2.23 “Fair
      Market Value” on any date means the value of the Shares determined in good faith
      by the Board or the Committee.

     

    2.24 “Fixed
      Priced Option” means an Option with an exercise price per Share that, subject to
      Sections 11 and 12 hereof, does not change and is equal to the Fair Market
      Value
      of a Share on the date such Option is granted.

     

    2.25 “Fixed
      Priced SAR” means a SAR with an exercise price per Share that, subject to
      Sections 11 and 12 hereof, does not change and is equal to the Fair Market
      Value
      of a Share on the date such SAR is granted..

     

    2.26 “Grantee”
      means an individual to whom an Award is granted under the Plan.

     

    2.27 “Investors”
      means any Person (as the term person is used for purposes of Section 13(d)
      or
      14(d) of the Exchange Act) who owns Shares immediately following the
      Closing.

     

    2.28 “IPO”
      means the initial underwritten offering of the Shares pursuant to a registration
      statement (other than a Form S-8 or any successor form) declared effective
      with
      the Securities and Exchange Commission.

     

    2.29 “IRR
      Event” means a transaction constituting a Change in Control, pursuant to which
      each of the Investors attain a 

     

    
      
        
        

      

      
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32.5%
        compounded annual rate of return based on the price per Share paid by the
        Investors at the Closing Date and the price per Share obtained upon the Change
        in Control, as appropriately adjusted for any Change in
        Capitalization.

    

     

    2.30 “Missed
      Year” shall have the meaning set forth in Section 6.3.

     

    2.31 “Option”
      means a stock option granted under the Plan, which is not an “incentive stock
      option” within the meaning of Section 422 of the Code.

     

    2.32 “Optionee”
      means a person under the Plan to whom an Option has been granted under the
      Plan.

     

    2.33 “Parent”
      means any corporation which is a parent corporation (within the meaning of
      Section 424(e) of the Code) with respect to the Company.

     

    2.34 “Performance
      Period” means the period set forth in an Agreement over which an Award may
      become vested and exercisable based on the achievement by the Company of EBITDA
      Targets.

     

    2.35 “Permitted
      Transferee” means a Grantee’s spouse, parents, children (whether natural or
      adopted), stepchildren and grandchildren and the spouses of such parents,
      children, stepchildren and grandchildren (the Grantee’s “Immediate Family”), a
      trust solely for the benefit of members of the Grantee’s Immediate Family (a
“Family Trust”) and a partnership in which members of the Grantee’s Immediate
      Family and/or Family Trusts are the only partners.

     

    2.36 “Plan”
      means the Berry Plastics Group, Inc. 2006 Equity Incentive Plan, as amended
      and/or restated from time to time.

     

    2.37 “Redundancy”
      means the termination of the employment of a Grantee within six months following
      a material acquisition or disposition by the Company, provided that the Board
      determines in good faith that such acquisition or disposition resulted in the
      elimination of, or a redundancy in, the Grantee’s position.

     

    2.38 “Retirement”
      means the retirement of a Grantee from the employment of the Company and all
      of
      its Subsidiaries on or after attaining the age of 60 with ten years of service
      with the Company and/or one or more of its subsidiaries.

     

    2.39 “SAR”
      means a stock appreciation right granted under the Plan, pursuant to which
      the
      grantee of such stock appreciation right is entitled, upon exercise thereof,
      to
      receive an amount in cash equal to the product of (i) the excess of the Fair
      Market Value of one Share on the date of exercise over the exercise price of
      such stock appreciation right, multiplied by (ii) the number of Shares in
      respect of which the stock appreciation right has been exercised.

     

    2.40 “Section
      409A” shall mean Section 409A of the Code and any guidance or regulations with
      respect thereto.

     

    2.41 “Securities
      Act” means the Securities Act of 1933, as amended.

     

    
      
        
        

      

      
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    2.42 “Sell”
      means to sell, or in any other way directly or indirectly transfer, assign,
      distribute, pledge, hypothecate, encumber or otherwise dispose of, either
      voluntarily or involuntarily; and the terms “Sale” and “Sold” shall have
      meanings correlative to the foregoing.

     

    2.43 “Shares”
      means the common stock, par value $0.01 per share, of the Company and any other
      securities into which such shares are changed or for which such shares are
      exchanged.

     

    2.44 “Stock
      Award” means an award of the right to purchase Shares under Section 8 of the
      Plan.

     

    2.45 “Subsidiary”
      means any entity, whether or not incorporated, in which the Company directly
      or
      indirectly owns fifty percent (50%) or more of the outstanding equity or other
      ownership interests.

     

    3. Administration.

     

    3.1 The
      Plan
      shall be administered by the Committee, which shall hold meetings at such times
      as may be necessary for the proper administration of the Plan. The Committee
      shall keep minutes of its meetings. A quorum shall consist of not fewer than
      two
      members of the Committee and a majority of a quorum may authorize any action.
      Any decision or determination reduced to writing and signed by all of the
      members of the Committee shall be as fully effective as if made by a majority
      vote at a meeting duly called and held. The Committee shall consist of at least
      two members of the Board and may consist of the entire Board. Subject to
      applicable law, the Committee may delegate its authority under the Plan to
      any
      other person or persons.

     

    3.2 No
      member
      of the Committee shall be liable for any action, failure to act, determination
      or interpretation made in good faith with respect to this Plan or any
      transaction hereunder. The Company hereby agrees to indemnify each member of
      the
      Committee for all costs and expenses and, to the extent permitted by applicable
      law, any liability incurred in connection with defending against, responding
      to,
      negotiating for the settlement of or otherwise dealing with any claim, cause
      of
      action or dispute of any kind arising in connection with any actions in
      administering this Plan or in authorizing or denying authorization to any
      transaction hereunder.

     

    3.3 Subject
      to the express terms and conditions set forth herein, the Committee shall have
      the power from time to time to:

     

    (a) determine
      those Eligible Individuals to whom Awards shall be granted under the Plan and
      the number of Shares subject to such Awards and to prescribe the terms and
      conditions (which need not be identical) of each such Award, including the
      exercise price per Share, the vesting schedule and the duration of Options
      and
      SARs, and make any amendment or modification to any Agreement consistent with
      the terms of the Plan;

     

    (b) to
      construe and interpret the Plan and the Awards granted hereunder and to
      establish, amend and revoke rules and regulations for the administration of
      the
      Plan, including, but not limited to, correcting any defect or supplying any
      omission, or reconciling 

     

    
      
        
        

      

      
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any
        inconsistency in the Plan or in any Agreement, in the manner and to the extent
        it shall deem necessary or advisable and otherwise to make the Plan fully
        effective. All decisions and determinations by the Committee in the exercise
        of
        this power shall be final, binding and conclusive upon the Company, its
        Subsidiaries, the Grantees, and all other persons having any interest
        therein;

    

     

    (c) to
      determine the duration and purposes for leaves of absence which may be granted
      to a Grantee on an individual basis without constituting a termination of
      employment or service for purposes of the Plan;

     

    (d) to
      exercise its discretion with respect to the powers and rights granted to it
      as
      set forth in the Plan; and

     

    (e) generally,
      to exercise such powers and to perform such acts as are deemed necessary or
      advisable to promote the best interests of the Company with respect to the
      Plan.

     

    4. Stock
      Subject to the Plan; Grant Obligations and Limitations.

     

    4.1 Subject
      to Section 11 of the Plan, the maximum number of Shares that may be made the
      subject of Fixed Priced Options and Fixed Priced SARs granted under the Plan
      is
      384,838. Subject to Section 11 of the Plan, the maximum number of Shares that
      may be made the subject of Escalating Priced Options and Escalating Priced
      SARs
      granted under the Plan is 192,414. Subject to Section 11 of the Plan, the
      maximum number of Shares that may be made the subject of Stock Awards granted
      under the Plan is 942,258. The Company shall reserve for the purposes of the
      Plan, out of its authorized but unissued Shares or out of Shares held in the
      Company’s treasury, or partly out of each, such number of Shares as shall be
      determined by the Board. The Committee may in its sole discretion elect to
      grant
      Options that are intended to qualify as “incentive stock options” within the
      meaning of Section 422 of the Code (“ISOs”); provided,
      however,
      that
      Options with respect to at least 95% of the Shares that may be made subject
      to
      Options under the Plan shall be nonqualified stock options not intended to
      qualify as ISOs. 

     

    4.2 Upon
      the
      granting of an Option or SAR, the number of Shares available under Section
      4.1
      for the granting of further Options and SARs of the same type (i.e.,
      Fixed
      Priced Options/SARs or Escalating Priced Options/SARs) shall be reduced by
      the
      number of Shares in respect of which the Option or SAR is granted or
      denominated.

     

    4.3 Whenever
      any outstanding Option or SAR or portion thereof expires, is canceled, is
      settled in cash (including the settlement of tax withholding obligations using
      Shares) or is otherwise terminated for any reason without having been exercised
      or payment having been made in respect of the entire Option or SAR, the Shares
      allocable to the expired, canceled, settled or otherwise terminated portion
      of
      the Option or SAR may again be the subject of Options or SARs granted hereunder
      of the same type of Option or SAR (i.e.,
      Fixed
      Priced Options/SARs or Escalating Priced Options/SARs) so expired, cancelled,
      settled or otherwise terminated.

     

    4.4 The
      Committee shall grant Options and SARs with respect to at least 486,300 Shares
      as of the Closing Date.

     

    
      
        
        

      

      
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    5. Option
      and SAR Grants.

     

    Subject
      to the provisions of the Plan, the Committee shall have full and final authority
      to select those Eligible Individuals who will receive Options and/or SARs and
      to
      determine the terms and conditions of the grant to such Eligible Individuals,
      including the number of Shares subject to each Option and SAR, the term of
      the
      Option and/or SAR (which shall not exceed ten (10) years from the date of grant)
      and any other terms or conditions not inconsistent with the Plan that the
      Committee determines. The terms and conditions of each Option and SAR shall
      be
      set forth in an Agreement. The Committee may, subsequent to the granting of
      any
      Option or SAR, extend the term thereof, but in no event shall the term as so
      extended exceed the maximum term set forth in the first sentence of this Section
      5.

     

    6. Vesting
      and Exercisability of Options and SARs.

     

    6.1 Unless
      earlier terminated pursuant to the terms of the Plan or an Agreement, or as
      otherwise provided in an Agreement, each Escalating Priced Option and each
      Escalating Priced SAR shall vest and become exercisable with respect to twenty
      percent of the Shares subject to such Option or SAR on an annual basis,
      beginning with the year commencing January 1, 2007 (the “Initial Vesting Date”).
      Twenty percent of the Shares subject to such Option or SAR shall have vested
      by
      the first anniversary of the Initial Vesting Date, and an additional twenty
      percent of the Shares subject to such Options or SARs shall be vested by each
      of
      the second, third, fourth and fifth anniversaries of the Initial Vesting
      Date.

     

    6.2 Unless
      earlier terminated pursuant to the terms of the Plan or an Agreement, or as
      otherwise provided in an Agreement, each Fixed Priced Option and Fixed Priced
      SAR shall vest and become exercisable either (i) with respect to twenty percent
      of the Shares subject to such Option or SAR on an annual basis, beginning with
      the Initial Vesting Date (i.e., twenty percent of the Shares subject to such
      Option or SAR shall have vested by the first anniversary of the Initial Vesting
      Date, and an additional twenty percent of the Shares subject to such Option
      or
      SAR shall be vested by each of the second, third, fourth and fifth anniversaries
      of the Initial Vesting Date), or (ii) subject to Section 6.3, based on the
      achievement by the Company of EBITDA Targets over the Performance Period as
      set
      forth in an Agreement. Fifty percent of the aggregate number of Shares subject
      to Fixed Priced Options and Fixed Priced SARs granted to an Optionee shall
      be
      subject to time based vesting under Section 6.2(i) and the remaining fifty
      percent shall be subject to performance based vesting under Section
      6.2(ii).

     

    6.3 Unless
      earlier terminated pursuant to the terms of the Plan or an Agreement, or as
      otherwise provided in an Agreement, with respect to each Fixed Priced Option
      and
      Fixed Priced SAR, in the event that the EBITDA Target for any fiscal year or
      portion thereof in a Performance Period is not achieved (such fiscal year,
      a
“Missed Year”) and the EBITDA Target with respect to (x) the immediately
      preceding fiscal year (except in the case that the Missed Year is the first
      fiscal year in the Performance Period), or (y) the immediately following fiscal
      year (except in the case that the Missed Year is the last year in such
      Performance Period), is exceeded (each such immediately preceding or immediately
      following year, an “Excess Year”), then the excess of EBITDA over the EBITDA
      Target for such Excess Year or Excess Years (the excess with respect to an
      Excess Year, the “Excess EBITDA”) shall be applied to the Missed Year, and if
      the application of such Excess 

     

    
      
        
        

      

      
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EBITDA
        results in EBITDA with respect to the Missed Year equal to or in excess of
        the
        EBITDA Target with respect to such Missed Year, then the number of Shares
        that
        failed to vest by reason of the Company’s failure to achieve the EBITDA Target
        for the Missed Year shall become vested on the date the Committee determines
        that such EBITDA Target with respect to the Missed Year was achieved with
        the
        application of such Excess EBITDA; provided,
        with
        respect to any Excess Year, Excess EBITDA for such year may only be applied
        to
        one Missed Year; provided,
        further,
        that
        the Grantee remains employed by the Company or one of its Subsidiaries for
        the
        duration of any such Excess Year and the Missed Year to which any such Excess
        EBITDA is applied. 

    

     

    6.4 Unless
      earlier terminated pursuant to the terms of the Plan, or as otherwise provided
      in an Agreement, with respect to each Fixed Priced Option and Fixed Priced
      SAR,
      on the ninth anniversary of the date such Option or SAR is granted it shall
      become vested and exercisable to the extent not already vested.

     

    6.5 EBITDA
      Targets for each fiscal year or portion thereof during a Performance Period
      shall be established by the Committee on or prior to the date an Option or
      SAR
      is granted and shall be set forth on a schedule attached to the Agreement
      evidencing such Option or SAR and may be adjusted from time to time thereafter
      by the Committee in its sole discretion to take into account acquisitions,
      divestitures, significant deviations in capital expenditures or leasing or
      other
      extraordinary events.

     

    6.6 Notwithstanding
      the foregoing, the Committee may grant an Option or SAR after the Closing Date
      to a Grantee that was employed by the Company as of the Closing Date, and such
      Option or SAR may have an adjusted vesting schedule that causes the Option
      or
      SAR to be treated, for purposes of vesting, as if it were granted as of the
      Closing Date. The Committee may accelerate the exercisability of any Option
      or
      SAR or portion thereof at any time.

     

    7. Method
      of Exercise; Rights of Optionees.

     

    7.1 The
      exercise of an Option or SAR shall be made only by a written notice delivered
      in
      person or by mail to the Secretary of the Company at the Company’s principal
      executive office, specifying the number of Shares with respect to which such
      Option or SAR is to be exercised and, to the extent applicable, accompanied
      by
      payment therefore and otherwise in accordance with the Agreement pursuant to
      which the Option or SAR was granted. Unless otherwise determined by the
      Committee and except as otherwise set forth in an Agreement, the exercise price
      paid with respect to the exercise of an Option or SAR shall be paid in cash.
      If
      requested by the Committee, the Grantee shall deliver the Agreement evidencing
      the Option or SAR to the Secretary of the Company who shall endorse thereon
      a
      notation of such exercise and return such Agreement to the Grantee. No
      fractional Shares (or cash in lieu thereof) shall be issued upon exercise of
      an
      Option or SAR and the number of Shares (or, in the case of SARs, the cash
      equivalent thereof) that may be purchased upon exercise shall be rounded to
      the
      nearest number of whole Shares (or, in the case of SARs, the cash equivalent
      thereof).

     

    7.2 No
      Optionee shall be deemed for any purpose to be the owner of any Shares subject
      to any Option unless and until (a) the Option shall have been exercised pursuant
      to the terms thereof, (b) the Company shall have issued and delivered Shares
      to
      the Optionee, 

     

    
      
        
        

      

      
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and
        (c)
        the Optionee’s name shall have been entered as a stockholder of record on the
        books of the Company.

    

     

    8. Stock
      Awards.

     

    8.1 Stock
      Awards may be granted under the Plan at any time and from time to time. Each
      Stock Award shall be evidenced by an Agreement that shall be executed by the
      Company and the grantee of such Stock Award. The Agreement shall specify the
      terms and conditions of the Stock Award, including without limitation the number
      of Shares covered by the Stock Award, the purchase price, if any, for such
      Shares (the “Purchase Price”) and the deadline for the purchase of such
      Shares.

     

    8.2 The
      Purchase
      Price if
      any,
      at which each Share covered by the Stock Award may be purchased upon exercise
      of
      a Stock Award shall be determined by the Committee and set forth in the
      applicable Agreement. The Company will not be obligated to issue certificates
      evidencing Shares purchased under this Section 8 unless and until it receives
      full payment of the aggregate Purchase Price therefor and all other conditions
      to the purchase, as determined by the Committee, have been satisfied. The
      Purchase Price of any Shares subject to a Stock Award must be paid in full
      at
      the time of the purchase.

     

    9. Non-Transferability.

     

    No
      Award
      shall be Sold, transferred or otherwise disposed of by the Grantee otherwise
      than by will or by the laws of descent and distribution, and an Award shall
      be
      exercisable during the lifetime of such Grantee only by the Grantee or his
      or
      her guardian or legal representative. Notwithstanding the foregoing, the
      Committee may set forth in the Agreement evidencing an Award at the time of
      grant or permit thereafter, that the Award may be transferred for estate
      planning purposes to a Permitted Transferee. For purposes of this Plan, a
      Permitted Transferee of an Award shall be deemed to be the Grantee. The terms
      of
      an Award shall be final, binding and conclusive upon the beneficiaries,
      executors, administrators, heirs and successors of the Grantee.

     

    10. Effect
      of a Termination of Employment.

     

    10.1 If
      the
      employment or engagement of the Grantee is terminated for any reason other
      than
      for Cause (or to the extent set forth in an Agreement, other than by reason
      of
      death, Disability or Redundancy), the portion of the Option or SAR that is
      not
      then vested and exercisable shall immediately terminate. Except as set forth
      in
      an Agreement, to the extent the Option or SAR is vested and exercisable as
      of
      the date of such termination of employment or engagement, the Option or SAR
      shall remain exercisable for a period of ninety (90) days immediately following
      such termination of employment or engagement, after which time the Option or
      SAR
      shall automatically terminate in full.

     

    10.2 If
      the
      employment or engagement of a Grantee is terminated for Cause (i) any Options
      or
      SARs granted to the Grantee hereunder shall immediately terminate in full and
      no
      rights thereunder may be exercised, (ii) the Company shall have the right to
      purchase from such Grantee and the Grantee (or his successor or representative,
      as the case may be) shall be required to Sell to the Company, at the election
      of
      the Company at any time following such termination, 

     

    
      
        
        

      

      
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any
        of
        the Shares acquired by the Grantee upon the exercise of an Option or Stock
        Award, at a per Share purchase price equal to the lesser of (x) the Fair
        Market
        Value of a Share on the date of such purchase by the Company, and (y) the
        exercise price or Purchase Price paid by the Grantee, if any and (iii) the
        Grantee (or his successor or representative, as the case may be) shall, at
        the
        election of the Company at any time following such termination of employment,
        be
        required to pay to the Company with respect to each SAR exercised prior to
        such
        date, an amount in cash equal to the greater of (x) any proceeds received
        by the
        Grantee pursuant to the exercise of such SAR and (y) the amount, if any,
        by
        which the Fair Market Value of a Share on the date of exercise of such SAR
        exceeded the Fair Market Value of a Share on the date the Company elects
        to
        receive such payment.

    

     

    10.3 Prior
      to
      an IPO, upon the termination of the employment or engagement of a Grantee for
      any reason other than Cause, the Company shall have the right to purchase from
      such Grantee and the Grantee (or his successor or representative, as the case
      may be) shall be required to Sell to the Company, at the election of the
      Company, all Shares acquired by the Grantee pursuant to the exercise of an
      Option or Stock Award, which Shares have been held by the Grantee for at least
      six months, at a per Share purchase price equal to the Fair Market Value of
      a
      Share on the date of such purchase. The Company’s right of repurchase described
      herein shall expire one year following the later of (i) the date on which the
      Grantee’s employment is terminated or (ii) the date on which the Shares being
      purchased by the Company were acquired by the Grantee.

     

    11. Adjustment
      Upon Changes In Capitalization.

     

    11.1 In
      the
      event of a Change in Capitalization, the Committee shall make appropriate
      equitable adjustments, to (i) the maximum number and class of Shares or other
      stock or securities with respect to which Awards may be granted under the Plan
      and (ii) the number and class of Shares or other stock or securities which
      are
      subject to outstanding Options and SARs granted under the Plan and the exercise
      price or Purchase Price therefor, if applicable; provided,
      that in
      the event of any extraordinary dividend (other than the payment of any
      management fees to the Investors), such equitable adjustments (x) shall preserve
      the Grantee’s rights substantially proportionate to his or her rights existing
      immediately prior to such extraordinary dividend (but subject to the limitations
      and restrictions on such existing rights), and (y) shall comply in all respects
      with Section 409A..

     

    11.2 If,
      by
      reason of a Change in Capitalization, an Optionee shall be entitled to exercise
      an Option with respect to new, additional or different shares of stock or
      securities of the Company or any other corporation, such new, additional or
      different shares shall thereupon be subject to all of the conditions,
      restrictions and performance criteria which were applicable to the Shares
      subject to the Option, as the case may be, prior to such Change in
      Capitalization. 

     

    12. Effect
      of Certain Transactions.

     

    12.1 Except
      as
      otherwise provided in an Agreement evidencing an Award at the time of grant,
      in
      the event of a Corporate Transaction, each outstanding Award shall be assumed
      or
      an equivalent award or right substituted by the successor or surviving
      corporation or a Parent or Subsidiary of the successor or surviving corporation
      (the “Successor Corporation”); provided,
      however,
      that,


     

    
      
        
        

      

      
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unless
        otherwise determined by the Committee, such Awards shall remain subject to
        all
        of the conditions, restrictions and performance criteria which were applicable
        to such Awards prior to such assumption or substitution. For the purpose
        of this
        Section 12.1, the Award shall be considered assumed if, following the Corporate
        Transaction, the Award confers the right to purchase or receive, for each
        Share
        subject to the Award immediately prior to the Corporate Transaction, the
        consideration (whether stock, cash or other securities or property) received
        in
        the merger or sale of assets by holders of Shares for each Share held on
        the
        effective date of the transaction (and if holders were offered a choice of
        consideration, of the type of consideration chosen by the holders of a majority
        of the outstanding Shares). All Options and SARs shall terminate and cease
        to
        remain outstanding immediately following the consummation of a Corporate
        Transaction, except to the extent assumed or substituted by the Successor
        Corporation.

    

     

    12.2 Notwithstanding
      anything to the contrary contained herein, in the event of a Corporate
      Transaction pursuant to which each outstanding Award is not assumed or an
      equivalent award or right substituted by the successor or surviving corporation,
      the Committee shall (a) authorize the redemption of the unexercised vested
      portion of the Awards for a consideration per Share equal to the excess of
      (i)
      the consideration payable per Share in connection with such Corporate
      Transaction, over (ii) the exercise price per Share or Purchase Price subject
      to
      the Award, and (b) terminate the unvested portion of such Award.

     

    12.3 The
      Agreement evidencing an Award shall set forth the effect, if any, of a Change
      in
      Control or IRR Event on an Award.

     

    12.4 Upon
      the
      consummation date of an IPO, the exercise price per Share with respect to each
      Escalating Priced Option and Escalating Priced SAR shall be increased by a
      percentage equal to the product of (i) 15% multiplied by (ii) a fraction, the
      numerator of which is the number of days since the last increase in the exercise
      price of the Option or SAR and the denominator of which is 365, and shall be
      fixed at such level for the remainder of the term of the Option or
      SAR.

     

    13. Plan
      Amendment or Termination; Modification of Awards.

     

    13.1 The
      Plan
      shall terminate on the day preceding the tenth anniversary of the date of its
      adoption by the Board and no Award may be granted thereafter. The Board may
      sooner terminate the Plan and the Board may at any time and from time to time
      amend, modify or suspend the Plan; provided,
      however,
      that:

     

    (a) no
      such
      amendment, modification, suspension or termination shall impair or adversely
      alter any Awards theretofore granted under the Plan, except with the consent
      of
      the Grantee, nor shall any amendment, modification, suspension or termination
      deprive any Grantee of any Shares which he or she may have acquired through
      or
      as a result of the Plan; and

     

    (b) to
      the
      extent necessary under any applicable law, regulation or exchange requirement,
      no amendment shall be effective unless approved by the stockholders of the
      Company in accordance with applicable law, regulation or exchange
      requirement.

     

    13.2 No
      modification of an Award shall adversely alter or impair any rights or
      obligations under the Award without the consent of the Grantee.

     

    
      
        
        

      

      
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    14. Non-Exclusivity
      of the Plan.

     

    The
      adoption of the Plan by the Board shall not be construed as amending, modifying
      or rescinding any previously approved incentive arrangement or as creating
      any
      limitations on the power of the Board to adopt such other incentive arrangements
      as it may deem desirable, including, without limitation, the granting of stock
      options otherwise than under the Plan, and such arrangements may be either
      applicable generally or only in specific cases.

     

    15. Limitation
      of Liability.

     

    As
      illustrative of the limitations of liability of the Company, but not intended
      to
      be exhaustive thereof, nothing in the Plan shall be construed to:

     

    (a) give
      any
      person any right to be granted an Award other than at the sole discretion of
      the
      Committee;

     

    (b) give
      any
      person any rights whatsoever with respect to Shares except as specifically
      provided in the Plan;

     

    (c) limit
      in
      any way the right of the Company or any Subsidiary to terminate the employment
      of any person at any time; or

     

    (d) be
      evidence of any agreement or understanding, expressed or implied, that the
      Company will employ any person at any particular rate of compensation or for
      any
      particular period of time.

     

    16. Regulations
      and Other Approvals; Governing Law.

     

    16.1 Except
      as
      to matters of federal law, the Plan and the rights of all persons claiming
      hereunder shall be construed and determined in accordance with the laws of
      the
      State of Delaware without giving effect to conflicts of laws principles
      thereof.

     

    16.2 The
      obligation of the Company to sell or deliver Shares with respect to Awards
      granted under the Plan shall be subject to all applicable laws, rules and
      regulations, including all applicable federal and state securities laws, and
      the
      obtaining of all such approvals by governmental agencies as may be deemed
      necessary or appropriate by the Committee.

     

    16.3 Each
      Award is subject to the requirement that, if at any time the Committee
      determines, in its discretion, that the listing, registration or qualification
      of Shares issuable pursuant to the Plan is required by any securities exchange
      or under any state or federal law, or the consent or approval of any
      governmental regulatory body is necessary or desirable as a condition of, or
      in
      connection with, the grant of an Award or the issuance of Shares, no Awards
      shall be granted or payment made or Shares issued, in whole or in part, unless
      listing, registration, qualification, consent or approval has been effected
      or
      obtained free of any conditions not acceptable to the Committee.

     

    
      
        
        

      

      
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    17. Multiple
      Agreements.

     

    The
      terms
      of each Award may differ from other Awards granted under the Plan at the same
      time, or at different times. The Committee may also grant more than one Award
      to
      a given Eligible Individual during the term of the Plan, either in addition
      to,
      or in substitution for, one or more Award previously granted to that Eligible
      Individual.

     

    18. Withholding
      of Taxes.

     

    At
      such
      times as a Grantee recognizes taxable income in connection with the receipt
      of
      Shares or cash or other property hereunder (a “Taxable Event”), the Grantee
      shall pay to the Company an amount equal to the minimum statutory withholding
      taxes in connection with the Taxable Event (the “Withholding Taxes”) prior to
      the issuance of such Shares or the payment of such cash or other property.
      The
      Committee may provide in the Agreement at the time of grant, or at any time
      thereafter, that the Grantee, in satisfaction of the obligation to pay
      Withholding Taxes to the Company, may elect to have withheld a portion of the
      Shares then issuable to him or her having an aggregate Fair Market Value equal
      to the Withholding Taxes.

     

    18. Code
      Section 409A Compliance.

     

    To
      the
      extent applicable, it is intended that this Plan and any Awards granted
      hereunder comply with the requirements of Section 409A of the Code and any
      related regulations or other guidance promulgated with respect to that section
      by the U.S. Department of the Treasury or the Internal Revenue Service. Any
      provision that would cause the Plan or any Award granted under the Plan to
      fail
      to satisfy Section 409A will have no force or effect until amended to comply
      with Section 409A, which amendment may be retroactive to the extent permitted
      by
      Section 409A; provided, however, that the present value of Awards granted to
      Participants after such modification shall not be materially less than the
      present value of the Awards granted to Participant prior to the
      modification.

    


     

    


    
      
        
        

      

      
        -14-