Exhibit 10.02(a)


 


1999 EQUITABLE RESOURCES, INC.


NON-EMPLOYEE DIRECTORS’ STOCK INCENTIVE PLAN

(As amended and restated December 3, 2008)


 


SECTION 1   PURPOSE


 


1.01         The
purpose of the 1999 Equitable Resources, Inc. Non-Employee Directors’
Stock Incentive Plan (the “Plan”) is to assist the Company in attracting and
retaining the services of non-employee directors who exhibit a high degree of
business responsibility, personal integrity and professionalism.


 


SECTION 2   DEFINITIONS;
CONSTRUCTION


 


2.01         Definitions.  In addition to the terms defined elsewhere in
the Plan, the following terms as used in the Plan shall have the following
meanings when used with initial capital letters:


 


2.01.1            “Award” means any Option or Other
Stock-Based Award granted under the Plan.


 


2.01.2            “Award Agreement” means any written
agreement, contract or other instrument or document evidencing an Award.


 


2.01.3            “Board” means the Company’s Board of
Directors.


 


2.01.4            “Code” means the Internal Revenue
Code of 1986, as amended from time to time, together with rules, regulations
and interpretations promulgated thereunder. 
References to particular sections of the Code shall include any
successor provisions.


 


2.01.5            “Change of Control” has the meaning
provided in Section 9.03.


 


2.01.6            “Committee” means the Compensation
Committee or such other Committee of the Board as may be designated by the
Board to administer the Plan, as referred to in Section 3.01 hereof;
provided however, that any member of the Committee participating in the taking
of any action under the Plan shall qualify as a “non-employee director” as then
defined under Rule 16b-3.


 


2.01.7            “Common Stock” means shares of the
common stock, without par value, and such other securities of the Company as
may be substituted for Shares pursuant to Section 8.01 hereof.


 


2.01.8            “Disability” means that a
Participant is disabled within the meaning of Section 422(c)(6) of
the Code.


 


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


 

















 


2.01.10          “Fair Market Value” of shares of any
stock, including but not limited to Common Stock, or units of any other
securities (herein “shares”), shall be the closing price for the date as of
which Fair Market Value is to be determined in the principal market in which
such shares are traded, as quoted in The  Wall  Street  Journal  (or in such other reliable publication as the
Committee, in its discretion, may determine to rely upon).  If the Fair Market Value of shares on any
date cannot be determined on the basis set forth in the preceding sentence, or
if a determination is required as to the Fair Market Value on any date of
property other than shares, the Committee shall in good faith determine the
Fair Market Value of such shares or other property on such date.  Fair Market Value shall be determined without
regard to any restriction other than a restriction which, by its terms, will
never lapse.


 


2.01.11          “Option” means a right granted under Section 6.02
hereof to purchase Shares at a specified price during specified time periods as
provided in Section 6.02.  Each
Option shall be a nonstatutory stock option, which is an Option not intended to
meet the requirements of Section 422 of the Code.


 


2.01.12          “Other Stock-Based Award” means an
Award, granted under Section 6.04 hereof, that is denominated or payable
in, valued in whole or in part by reference to, or otherwise based on, or
related to, Shares.


 


2.01.13          “Participant” means at any time any
person who is a member of the Board, but who is not at the time a full-time
employee of the Company or any Subsidiary nor has been a full-time employee
during the preceding 12-month period. 
The term “Participant” does not include advisory, emeritus or honorary
directors.


 


2.01.14          “Reload Option Rights” and “Reload
Option” have the meanings provided in Section 6.02.2(v).


 


2.01.15          “Retirement” means that a Participant
ceases to be a member of the Board for any reason on or after reaching the age
of fifty-eight (58) years with at least sixty (60) months
of service as a director.  Service shall
include the time a director was an employee director.


 


2.01.16          “Rule 16b-3” means Rule 16b-3
under the Exchange Act, as amended from time to time, or any successor to such Rule promulgated
by the Securities and Exchange Commission under Section 16 of the Exchange
Act.


 


2.01.17          “Shares” means the common stock of the
Company, without par value, and such other securities of the Company as may be
substituted for Shares pursuant to Section 8.01 hereof.


 


2.01.18          “Subsidiary” means any corporation in
an unbroken chain of corporations beginning with the Company, if each of the
corporations other than the last corporation in the chain owns stock possessing
at least 50% of the total combined voting power of all classes of stock in one
of the other corporations in the chain.


 


2.02         Construction.  For purposes of the Plan, the following rules of
construction shall apply:


 


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2.02.1            The word “or” is disjunctive but not
necessarily exclusive.


 


2.02.2            Words in the singular include the
plural; words in the plural include the singular; words in the neuter gender
include the masculine and feminine genders, and words in the masculine or
feminine gender include the other and neuter genders.


 


SECTION 3   ADMINISTRATION


 


3.01         The
Plan shall be administered by the Committee. 
The Committee shall have full and final authority to take the following
actions, in each case subject to and consistent with the provisions of the
Plan:


 


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


 


(ii)           to adopt, amend, suspend, waive and
rescind such rules and regulations as the Committee may deem necessary or
advisable to administer the Plan;


 


(iii)          to correct any defect or supply any
omission or reconcile any inconsistency, and to construe and interpret the
Plan, the rules and regulations, any Award Agreement or other instrument
entered into or Award granted under the Plan;


 


(iv)          to determine the type or types of
Other Stock-Based Awards to be granted to each Participant;


 


(v)           to determine the number of Other
Stock-Based Awards to be granted, the number of Shares or amount of cash or
other property to which an Other Stock-Based Award will relate, the terms and
conditions of any other Stock-Based Award (including, but not limited to, any
exercise price, grant price or purchase price, any limitation or restriction,
any schedule for lapse of limitations, forfeiture restrictions or restrictions
on exercisability or transferability, and accelerations or waivers thereof,
based in each case on such considerations as the Committee shall determine),
and all other matters to be determined in connection with an Other Stock-Based
Award;


 


(vi)          to determine whether, to what extent
and under what circumstances an Other Stock-Based Award may be settled in, or
the exercise price of an Other Stock-Based Award may be paid in cash, Shares,
other Awards or other property, or an Other Stock-Based Award may be vested,
canceled, forfeited, exchanged or surrendered;


 


(vii)         to determine whether, to what extent
and under what circumstances cash, Shares, other Awards, other property and
other amounts payable with respect to an Other Stock-Based Award shall be
deferred, whether automatically or at the election of the Committee or at the election
of the Participant;


 


(viii)        to prescribe the form of each Award
Agreement, which need not be identical for each Participant;


 


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(ix)           to make all other decisions and
determinations as may be required under the terms of the Plan or as the
Committee may deem necessary or advisable for the administration of the Plan;
and


 


(x)            to make such filings and take such
actions as may be required from time to time by appropriate state, regulatory
and governmental agencies.


 


Any action of
the Committee with respect to the Plan shall be final, conclusive and binding
on all Persons, including the Company, Participants, any Person claiming any
rights under the Plan from or through any Participant and shareholders.  The express grant of any specific power to
the Committee, and the taking of any action by the Committee, shall not be
construed as limiting any power or authority of the Committee.  The Committee may delegate to officers or
managers of the Company the authority, subject to such terms as the Committee
shall determine, to perform administrative functions under the Plan.  Each member of the Committee shall be
entitled to, in good faith, rely or act upon any report or other information
furnished to him by any officer, manager or other employee of the Company, the
Company’s independent certified public accountants, or any executive
compensation consultant or other professional retained by the Company to assist
in the administration of the Plan.  Any
and all powers, authorizations and discretions granted by the Plan to the
Committee shall likewise be exercisable at any time by the Board.


 


SECTION 4   SHARES
SUBJECT TO THE PLAN


 


4.01         The
maximum net number of Shares which may be issued and in respect of which Awards
may be granted under the Plan shall be limited to 1,200,000 shares of Common
Stock, subject to adjustment as provided in Section 8.01.


 


For purposes
of this Section 4.01, the number of Shares to which an Award relates shall
be counted against the number of Shares available under the Plan at the time of
grant of the Award, unless such number of shares cannot be determined at that
time, in which case the number of Shares actually distributed pursuant to the
Award shall be counted against the number of Shares available under the Plan at
the time of distribution; provided, however, that Awards related to or
retroactively added to, or granted in tandem with, substituted for or converted
into, other Awards shall be counted or not counted against the number of Shares
reserved and available under the Plan in accordance with procedures adopted by
the Committee so as to ensure appropriate counting but avoid double counting.


 


If any Shares
to which an Award relates are forfeited, or payment is made to the Participant
in the form of cash, cash equivalents or other property other than Shares, or
the Award otherwise terminates without payment being made to the Participant in
the form of Shares, any Shares counted against the number of Shares available
under the Plan with respect to such Award shall, to the extent of any such
forfeiture, alternative payment or termination, again be available for Awards
under the Plan.  If the exercise price of
an Award is paid by delivering to the Company Shares previously owned by the
Participant, the Shares covered by the Award equal to the number of Shares so
delivered shall again be available for Awards under the Plan.  Any Shares distributed pursuant to an Award
may consist, in whole or part, of authorized and unissued Shares or of treasury
Shares, including Shares repurchased by the Company for purposes of the Plan.


 


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SECTION 5   ELIGIBILITY


 


5.01         Awards
shall be granted only to Participants as defined in Section 2.01.13.


 


SECTION 6   SPECIFIC
TERMS OF AWARDS


 


6.01         General.  Subject to the terms of the Plan and any
applicable Award Agreement, Awards may be granted as set forth in this Section 6.  In addition, the Committee may impose on any
Award or the exercise thereof, at the date of grant or thereafter (subject to
the terms of Section 10.01), such additional terms and conditions, not
inconsistent with the provisions of the Plan, as the Committee shall
determine.  Except as required by
applicable law, Awards may be granted for no consideration other than prior
and/or future services.


 


6.02         Automatic
Option Grants.


 


6.02.1            Annual Option Grants.  Subject to Section 12.01 hereof, on the
first day of June (or if not a day on which the New York Stock Exchange is
open for trading, then on the first such trading day thereafter) in each year
during the term of the Plan, each Person who is then a Participant shall
automatically be granted an Option for 500 Shares.


 


6.02.2            Terms of Options.  The Options granted under Section 6.02.1
shall be granted to Participants on the following terms and conditions:


 


(i)            Exercise Price.  The exercise price per Share of an Option
shall be 100% of the Fair Market Value of a Share on the date of grant of such
Option.


 


(ii)           Option Term.  The term of each Option shall be five (5) years
from the date of grant, provided however, that the Option shall expire upon the
Participant’s termination of service as a director of the Company for any
reason other than Retirement, Disability or death.


 


(iii)          Exercisability.  The Option shall become exercisable upon the
expiration of three years from the date of grant or, if earlier, upon the
Participant’s termination of service as a director of the Company by reason of
Retirement, Disability or death.


 


(iv)          Methods of Exercise.  The exercise price of any Option may be paid
in cash or Shares, or any combination thereof, having a Fair Market Value on
the date of exercise equal to the exercise price, provided, however, that (1) any
portion of the exercise price representing a fraction of a Share shall in any
event be paid in cash and (2) no Shares which have been held for less than
six months may be delivered in payment of the exercise price of an Option.  Delivery of Shares in payment of the exercise
price of an Option may be accomplished through the effective transfer to the
Company of Shares held by a broker or other agent.  The Company will also cooperate with any
person exercising an Option who participates in a cashless exercise program of
a broker or other agent under which all or part of the Shares received upon
exercise of the Option are sold through the broker or other agent, for the
purpose of 


 


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paying the exercise price
of an Option.  Notwithstanding the
preceding sentence, the exercise of the Option shall not be deemed to occur,
and no Shares will be issued by the Company upon exercise of an Option, until
the Company has received payment in full of the exercise price.


 


(v)           Reload Option Rights.  Options granted under this Section 6.02
shall have Reload Option Rights which shall entitle the holder of the Option,
upon exercise of the Option or any portion thereof through delivery of
previously owned Shares, to automatically be granted on the date of such
exercise a new nonstatutory stock option (a “Reload Option”) (1) for a
number of Shares equal to the number of full Shares delivered in payment of the
option price of the original Option, (2) having an option price equal to
100% of the Fair Market Value per Share of the Common Stock on such date of
grant, (3) becoming exercisable six months from such date of grant, (4) having
the same expiration date as the original Option so exercised and (5) having
the same other terms and conditions as apply to an Option granted under Section 6.02.1.  Subject to the preceding sentence and the
other provisions of the Plan, Reload Option Rights and Reload Options shall
have such additional terms and be subject to such additional restrictions and
conditions, if any, as shall be determined, in its discretion, by the
Committee.  The Committee may, in its
discretion, provide in an Award Agreement for such limitations on the number or
frequency of exercises of Reload Option Rights, or the minimum numbers of
Shares for which such rights may be exercised, as the Committee may deem
advisable for the efficient administration of the Plan.  Reload Option Rights granted under this Section 6.02
shall entitle the holder of an Option to be granted a Reload Option only if the
underlying Option to which they relate is exercised during service as a
director of the Company of the original grantee of the underlying Option.  Except as otherwise specifically provided
herein or required by the context, the term Option as used in this Plan shall
include Reload Options granted under this paragraph.


 


6.02.3            Allocation of Shares.  If on any date on which Options would
otherwise be granted under this Section 6.02 the number of Shares
remaining available under Section 4.01 is not sufficient for each
Participant otherwise entitled to the grant of an Option to be granted an
Option for the full number of Shares provided in this Section 6.02, then
each such Participant shall automatically be granted an Option for the number
of whole Shares (if any) equal to (a) the number of Shares then remaining
available under the Plan, multiplied by (b) a fraction of which (1) the
numerator is the number of Shares for which such Participant would otherwise be
granted an Option on such date and (2) the denominator is the number of
Shares for which all Participants would otherwise be granted Options on such
date, with any fractional shares being disregarded.


 


6.03         Nature
of Automatic Award Grants; Award Agreements.  The grant of the Awards provided for in Section 6.02
shall be automatic and not subject to the discretion of the Committee or any
other Person; provided that the Committee may suspend the automatic award
grants prior to the grant of an Option under Section 6.02 and grant Other
Stock-Based Awards to Participants.  In
addition, the Committee may condition the right of a Participant to be granted
any such Award upon the execution and delivery by the Participant of an Award
Agreement setting forth the terms and conditions of the Award as provided
herein and such other terms, conditions and restrictions, not inconsistent with
the provisions of the Plan, as the Committee in its discretion may determine.


 


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6.04         Other
Stock-Based Awards.  The Committee is
authorized, subject to limitations under applicable law, to grant to
Participants such other Awards that are denominated or payable in, valued in
whole or in part by reference to, or otherwise based on, or related to, Shares,
as deemed by the Committee to be consistent with the purposes of the Plan,
including, without limitation, stock options or purchase rights having terms
and conditions similar to or different from Options granted under 6.02, Shares
awarded subject to restrictions, Shares awarded which are not subject to any
restrictions or conditions, convertible securities, exchangeable securities or
other rights convertible or exchangeable into Shares, as the Committee in its
discretion may determine.  In the
discretion of the Committee, such Other Stock-Based Awards, including Shares,
or other types of Awards authorized under the Plan, may be used in connection
with, or to satisfy obligations of the Company under, other compensation or
incentive plans, programs or arrangements of the Company for eligible
Participants; provided, however, that no Awards constituting deferred
compensation under this Plan may be substituted for or in respect of amounts
payable under other plans, programs or arrangements.


 


The Committee
shall determine the terms and conditions of other Stock-Based Awards.  Except as provided in this Section 6.04,
Shares or securities delivered pursuant to a stock option or other purchase
right granted under this Section 6.04 shall be purchased for such
consideration, paid for by such methods and in such forms, including, without
limitation, cash, Shares, or other property or any combination thereof, as the
Committee shall determine, but the value of such consideration shall not be
less than the Fair Market Value of such Shares or other securities on the date
of grant of such purchase right.  Delivery
of Shares or other securities in payment of a purchase right, if authorized by
the Committee, may be accomplished through the effective transfer to the
Company of Shares or other securities held by a broker or other agent.  Unless otherwise determined by the Committee,
the Company will also cooperate with any person exercising a purchase right who
participates in a cashless exercise program of a broker or other agent under
which all or part of the Shares or securities received upon exercise of a
purchase right are sold through the broker or other agent, or under which the
broker or other agent makes a loan to such person, for the purpose of paying
the exercise price of a purchase right. 
Notwithstanding the preceding sentence, unless the Committee, in its
discretion, shall otherwise determine, the exercise of the purchase right shall
not be deemed to occur, and no Shares or other securities will be issued by the
Company upon exercise of a purchase right, until the Company has received
payment in full of the exercise price.


 


Shares,
securities, cash or other payments made with respect to an Other Stock-Based
Award that constitutes deferred compensation under Section 409A of the
Code may only be payable upon a permissible payment event under Section 409A
and the terms and conditions of such Award shall be in compliance with such,
and all related, requirements.


 


Awards granted
under this Section 6.04 may, in the discretion of the Committee, be
granted either alone or in addition to, or in tandem with any other Award under
the Plan or any award under any other plan, program or arrangement of the
Company (subject to the terms of Section 10.01) or any business entity
acquired or to be acquired by the Company or a Subsidiary.


 


6.05         Exchange
Provisions.  The Committee may at any
time offer to exchange or buy out any previously granted Award for a payment in
cash, Shares, another Award or other property, based on such terms and
conditions as the Committee shall determine and communicate to the Participant
at the time that such offer is made.


 


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SECTION 7   GENERAL
TERMS OF AWARDS


 


7.01         Certain
Restrictions Under Rule 16b-3. 
Upon the effectiveness of any amendment to Rule 16b-3, this Plan
and any Award Agreement for an outstanding Award held by a Participant then
subject to Section 16 of the Exchange Act shall be deemed to be amended,
without further action on the part of the Committee, the Board or the
Participant, to the extent necessary for Awards under the Plan or such Award
Agreement to qualify for the exemption provided by Rule 16b-3, as so
amended, except to the extent any such amendment requires shareholder approval.


 


7.02         Decisions
Required to be Made by the Committee. 
Other provisions of the Plan and any Award Agreement notwithstanding, if
any decision regarding an Award or the exercise of any right by a Participant,
at any time such Participant is subject to Section 16 of the Exchange Act,
is required to be made or approved by the Committee in order that a transaction
by such Participant will be exempt under Rule 16b-3, then the Committee
shall retain full and exclusive power and authority to make such decision or to
approve or disapprove any such decision by the Participant.


 


7.03         Limits
on Transfer of Awards; Beneficiaries. 
No right or interest of a Participant in any Award shall be pledged,
encumbered or hypothecated to or in favor of any Person other than the Company,
or shall be subject to any lien, obligation or liability of such Participant to
any Person other than the Company or a Subsidiary.  Except to the extent otherwise determined by
the Committee, no Award and no rights or interests therein shall be assignable
or transferable by a Participant otherwise than by will or the laws of descent
and distribution, and any Option or other right to purchase or acquire Shares
granted to a Participant under the Plan shall be exercisable during the
Participant’s lifetime only by such Participant.  A beneficiary, guardian, legal representative
or other Person claiming any rights under the Plan from or through any
Participant shall be subject to all the terms and conditions of the Plan and
any Award Agreement applicable to such Participant as well as any additional
restrictions or limitations deemed necessary or appropriate by the Committee.


 


7.04         Registration
and Listing Compliance.  No Award
shall be paid and no Shares shall be distributed with respect to any Award in a
transaction subject to the registration requirements of the Securities Act of
1933, as amended, or any state securities law or subject to a listing
requirement under any listing agreement between the Company and any national
securities exchange, and no Award shall confer upon any Participant rights to
such payment or distribution until such laws and contractual obligations of the
Company have been complied with in all material respects.  Neither the grant of any Award nor anything
else contained herein shall obligate the Company to take any action to comply
with any requirements of any such securities laws or contractual obligations
relating to the registration (or exemption therefrom) or listing of any Shares
or other securities, whether or not necessary in order to permit any such
delivery or distribution.


 


7.05         Stock
Certificates.  All certificates for Shares
delivered under the terms of the Plan shall be subject to such stop-transfer
orders and other restrictions as the Committee may deem advisable under federal
or state securities laws, rules and regulations thereunder, and the rules of
any national securities exchange or automated quotation system on which Shares
are listed or quoted.  The Committee may
cause a legend or legends to be placed on any such certificates to make
appropriate reference to such restrictions or any other restrictions or limitations
that may be applicable to Shares.


 


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SECTION 8   ADJUSTMENT
PROVISIONS


 


8.01         In
the event that the Committee shall determine that any dividend or other
distribution (whether in the form of cash, Shares, other securities or other
property), recapitalization, stock split, reverse stock split, reorganization,
merger, consolidation, split-up, spin-off, combination, repurchase, exchange of
Shares or other securities of the Company, or other similar corporate transaction
or event affects the Shares such that an adjustment is determined by the
Committee to be appropriate in order to prevent dilution or enlargement of
Participants’ rights under the Plan, then the Committee shall, in such manner
as it may deem equitable, adjust any or all of (i) the number and kind of
Shares which may thereafter be issued in connection with Awards; (ii) the
number and kind of Shares issued or issuable in respect of outstanding Awards;
and (iii) the exercise price, grant price or purchase price relating to
any Award or, if deemed appropriate, make provision for a cash payment with
respect to any outstanding Award; provided, however, no acceleration of payment
of any deferred compensation amounts may occur.


 


SECTION 9   CHANGE
OF CONTROL PROVISIONS


 


9.01         Acceleration
of Exercisability and Lapse of Restrictions.  Unless otherwise determined by the Committee
at the time of grant of an Award or unless otherwise provided in the applicable
Award Agreement, if the shareholders of the Company shall approve a transaction
which upon consummation would constitute a Change of Control of the Company, or
if any Change of Control of the Company not subject to shareholder approval
shall occur:


 


(i)            all outstanding Awards pursuant to
which the Participant may have rights, the exercise of which is restricted or
limited, shall become fully exercisable; and


 


(ii)           all restrictions or limitations
(including risks of forfeiture and deferrals) on outstanding Awards subject to
restrictions or limitations under the Plan shall lapse.


 


(iii)          all
conditions to payment of Awards under which payments of cash, Shares or other
property are subject to conditions shall be deemed to be achieved or fulfilled
and shall be waived by the Company; provided further,
that such Awards identified in this subsection (iii) shall remain payable
on the date(s) provided in the underlying Award Agreements.


 


9.02         Termination
of Service Following Change of Control. 
If within three years following the date of any Change of Control the
service of a Participant as a director of the Company shall be terminated
voluntarily or involuntarily for any reason, then unless otherwise provided in
the applicable Award Agreement, and in addition to any other rights of post-termination
exercise which the Participant (or other holder of the Award) may have under
the Plan or the applicable Award Agreement, any Option or other Award granted
to the Participant and outstanding on the date of the Change of Control, the
payment or receipt of which is dependent upon exercise by the Participant (or
other holder of the Award) shall be exercisable for a period of 90 days
following the date of such termination of service but not later than the
expiration date of the Award.


 


9.03         Definition
of Change of Control.  For purposes
of this Section 9, a “Change of Control” of the Company shall mean any of
the following events:


 


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(a)           The sale or other disposition by the
Company of all or substantially all of its assets to a single purchaser or to a
group of purchasers, other than to a corporation with respect to which,
following such sale or disposition, more than eighty percent (80%) of,
respectively, the then outstanding shares of Common Stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of the Board is then owned beneficially, directly or
indirectly, by all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the outstanding Common Stock and
the combined voting power of the then outstanding voting securities immediately
prior to such sale or disposition in substantially the same proportion as their
ownership of the outstanding Common Stock and voting power immediately prior to
such sale or disposition;


 


(b)           The acquisition in one or more
transactions by any person or group, directly or indirectly, of beneficial
ownership of twenty percent (20%) or more of the outstanding shares of Common
Stock or the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of the Board; provided,
however, the following shall not constitute a Change of Control:  (i) any acquisition by the Company or
any of its subsidiaries, or any employee benefit plan (or related trust)
sponsored or maintained by the Company or any of its subsidiaries and (ii) an acquisition by any person or
group of persons of not more than forty percent (40%) of the outstanding shares
of Company common stock or the combined voting power of the then outstanding
voting securities of the Company if such acquisition resulted from the issuance
of capital stock by the Company and the issuance and the acquiring person or
group was approved in advance of such issuance by at least two-thirds of the
Continuing Directors then in office;


 


(c)           The Company’s termination of its
business and liquidation of its assets;


 


(d)           There is consummated a merger,
consolidation, reorganization, share exchange, or similar transaction involving
the Company (including a triangular merger), in any case, unless immediately
following such transaction:  (i) all
or substantially all of the persons who were the beneficial owners of the
outstanding Common Stock and outstanding voting securities of the Company
immediately prior to the transaction beneficially own, directly or indirectly,
more than sixty percent (60%) of the outstanding shares of Common Stock and the
combined voting power of the then outstanding voting securities entitled to vote
generally in the election of directors of the corporation resulting from such
transaction (including a corporation or other person which as a result of such
transaction owns the Company or all or substantially all of the Company’s
assets through one or more subsidiaries (a “Parent Company”)) in substantially
the same proportion as their ownership of the Common Stock and other voting
securities of the Company immediately prior to the consummation of the
transaction, (ii) no person (other than (A) the Company, any employee
benefit plan sponsored or maintained by the Company or, if reference was made
to equity ownership of any Parent Company for purposes of determining whether
clause (i) above is satisfied in connection with the transaction, such
Parent Company, or (B) any person or group that satisfied the requirements
of subsection (b)(ii), above) beneficially owns, directly or indirectly, 20% or
more of the outstanding shares of Common Stock or the combined voting power of
the voting securities entitled to vote generally in the election of directors
of the corporation resulting from such transaction and (iii) individuals
who were members of the Board 


 


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immediately prior to the
consummation of the transaction constitute at least a majority of the members
of the board of directors resulting from such transaction (or, if reference was
made to equity ownership of any Parent Company for purposes of determining
whether clause (i) above is satisfied in connection with the transaction,
such Parent Company); or


 


(e)           The following individuals (sometimes
referred to herein as “Continuing Directors”) cease for any reason to
constitute a majority of the number of directors then serving: individuals who,
on the date hereof, constitute the entire Board and any new director (other
than a director whose initial assumption of office is in connection with an
actual or threatened election contest, including but not limited to a consent
solicitation, relating to the election of directors of the Company) whose
appointment or election by the Board or nomination for election by the Company’s
shareholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors on the effective date
of the Plan or whose appointment, election or nomination for election was
previously so approved.


 


SECTION 10   AMENDMENTS
TO AND TERMINATION OF THE PLAN


 


10.01       The
Board may amend, alter, suspend, discontinue or terminate the Plan without the
consent of shareholders or Participants, except that, without the approval of
the shareholders of the Company, no amendment, alteration, suspension,
discontinuation or termination shall be made if shareholder approval is
required by any federal or state law or regulation or by the rules of any
stock exchange on which the Shares may then be listed, or if the Board
determines that obtaining such shareholder approval is for any reason
advisable; provided, however, that except as provided in Section 7.01,
without the consent of the Participant, no amendment, alteration, suspension,
discontinuation or termination of the Plan may materially and adversely affect
the rights of such Participant under any Award theretofore granted to him.


 


10.02       Notwithstanding
any of the provision of this Plan to the contrary, except as provided in Section 8.01
of the Plan, the exercise price of any outstanding Option or the exercise price
or minimum purchase price of any Other Stock-Based Award may not be reduced,
whether through amendment, cancellation or replacement, unless such reduction
is approved by the shareholders of the Company.


 


SECTION 11   GENERAL
PROVISIONS


 


11.01       No
Shareholder Rights.  No Award shall
confer on any Participant any of the rights of a shareholder of the Company
unless and until Shares are in fact issued to such Participant in connection
with such Award.


 


11.02       No
Right to Directorship.  Nothing
contained in the Plan or any Award Agreement shall confer, and no grant of an
Award shall be construed as conferring, upon any Participant any right to
continue as a director of the Company or interfere in any way with the rights
of the shareholders of the Company or the Board to elect and remove directors.


 


11.03       Unfunded
Status of Awards; Creation of Trusts. 
The Plan is intended to constitute an “unfunded” plan for incentive
compensation.  With respect to any Shares
not yet issued or payments not yet made to a Participant pursuant to an Award,
nothing contained in the Plan or any Award Agreement shall give any such Participant
any rights that are greater than those of a general unsecured creditor of the
Company; provided, however, that the Committee 


 


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may authorize the creation of trusts or make other arrangements to meet
the Company’s obligations under the Plan to deliver cash, Shares or other
property pursuant to any Award, which trusts or other arrangements shall be
consistent with the “unfunded” status of the Plan unless the Committee
otherwise determines.


 


11.04       No
Unit on Other Compensatory Arrangements. 
Nothing contained in the Plan shall prevent the Company from adopting
other or additional compensation arrangements, and such arrangements may be
either generally applicable or applicable only in specific cases.  To the extent consistent with the Plan, the
terms of each Award shall be construed so as to be consistent with such other
arrangements in effect at the time the Award is granted.


 


11.05       No
Fractional Shares.  No fractional
Shares shall be issued or delivered pursuant to the Plan or any Award.  The Committee shall determine whether cash,
other Awards or other property shall be issued or paid in lieu of fractional
Shares or whether such fractional Shares or any rights thereto shall be
forfeited or otherwise eliminated.


 


11.06       Governing
Law.  The validity, interpretation,
construction and effect of the Plan and any rules and regulations relating
to the Plan shall be governed by the laws of the Commonwealth of Pennsylvania
(without regard to the conflicts of laws thereof), and applicable federal law.


 


11.07       Severability.  If any provision of the Plan or any Award is
or becomes or is deemed invalid, illegal or unenforceable in any jurisdiction,
or would disqualify the Plan or any Award under any law deemed applicable by
the Committee, such provision shall be construed or deemed amended to conform
to applicable laws or if it cannot be construed or deemed amended without, in
the determination of the Committee, materially altering the intent of the Plan
or Award, it shall be deleted and the remainder of the Plan or Award shall
remain in full force and effect; provided, however, that, unless otherwise
determined by the Committee, the provision shall not be construed or deemed
amended or deleted with respect to any Participant whose rights and obligations
under the Plan are not subject to the law of such jurisdiction or the law
deemed applicable by the Committee.


 


SECTION 12   EFFECTIVE
DATE AND TERM OF THE PLAN


 


12.01       The
effective date and date of adoption of the Plan is March 17, 1999, the
date of adoption of the Plan by the Board, and the Plan was approved by a
majority of the votes cast at a duly held meeting of shareholders held on May 26,
1999, at which a quorum representing a majority of the outstanding voting stock
of the Company was, either in person or by proxy, present and voting.  As amended and restated, the Plan is
effective December 3, 2008.


 


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