Exhibit 10.1


 


COMERICA
INCORPORATED

2006 AMENDED AND RESTATED LONG-TERM INCENTIVE PLAN


 


SECTION 1

PURPOSE


 


The purpose of Comerica’s 2006 Amended and Restated Long-Term Incentive
Plan is to align the interests of employees of the Corporation selected to receive
awards with those of stockholders by rewarding long term decision-making and
actions for the betterment of the Corporation. 
Accordingly, Eligible Individuals may receive Awards of Options, Stock
Appreciation Rights, Restricted Stock or Restricted Stock Units, Performance
Awards and Other Stock-Based Awards. 
Equity-based compensation assists in the attraction and retention of
qualified employees, and provides them with additional incentive to devote
their best efforts to pursue and sustain the Corporation’s superior long-term
performance.  This enhances the value of
the Corporation for the benefit of its stockholders.


 


SECTION 2 

DEFINITIONS


 


A.                                   “Affiliate” means (i) any corporation,
partnership, joint venture or other entity that is controlled by the Corporation, whether directly or indirectly, and (ii) any
corporation, partnership, joint venture or other entity in which the Corporation has a significant
equity interest, as determined by the Committee; provided, however, that
with respect to an Award of an Incentive Stock Option and an Award that is
subject to Code Section 409A, the term “Affiliate” shall refer solely to a
Subsidiary.


 


B.                                     “Aggregated
Plan” means all agreements, methods, programs, and other arrangements
sponsored by the Corporation that would be aggregated with this Plan under Section 1.409A-1(c) of the Regulations.


 


C.                                     “Award”
means an Option, a Stock Appreciation Right, a Share of Restricted Stock, a
Restricted Stock Unit, a Performance Award, including a Qualified
Performance-Based Award, or an Other Stock-Based Award pursuant to the
Plan.  Each Award shall be evidenced by
an Award Agreement.


 


D.                                    “Award Agreement” means a written
agreement, in a form approved by the Committee, which sets forth the terms and
conditions of an Award, including, but not limited to, the Performance Period
and/or Restriction Period, as appropriate. 
Agreements shall be subject to the express terms and conditions set
forth herein, and to such other terms and conditions not inconsistent with the
Plan as the Committee shall deem appropriate.


 


E.                                      “Award Recipient” means an Eligible
Individual who has been granted an Award under the Plan and has entered into an
Award Agreement evidencing the grant of such Award or otherwise accepted the
terms of an Award Agreement, including by electronic acceptance or
acknowledgement.


 


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F.                                      “Beneficiary” means any person(s) designated
by an Award Recipient on a beneficiary designation form submitted to the Plan
Administrator, or, if no form has been submitted, any person(s) entitled
to receive any amounts owing to such Award Recipient under this Plan upon his
or her death by reason of having been named in the Award Recipient’s will or
trust agreement or having qualified as a taker of the Award Recipient’s
property under the laws of intestacy.  If
an Award Recipient authorizes any person, in writing, to exercise such
individual’s Options or Stock Appreciation Rights following the Award Recipient’s
death, the term “Beneficiary” shall include any person in whose favor such
Options or Stock Appreciation Rights are exercised by the person authorized to
exercise the Options or Stock Appreciation Rights.


 


G.                                     “Board” means the Board of Directors of
the Corporation.


 


H.                                    “Cause”
means (1) conviction of the Award Recipient for committing a felony under
Federal law or the law of the state in which such action occurred, (2) dishonesty
in the course of fulfilling the Award Recipient’s employment duties, (3) willful
and deliberate failure on the part of the Award Recipient to perform his or her
employment duties in any material respect, or (4) before a Change of
Control, such other events as shall be determined by the Committee.  Before a Change of Control, the Committee
shall, unless otherwise provided in an Individual Agreement with the Award
Recipient, have the sole discretion to determine whether “Cause” exists, and
its determination shall be final.


 


I.                                         “Change of Control” shall have the
meaning set forth in Exhibit A to this Plan.


 


J.                                        “Code” means the Internal Revenue Code
of 1986, as amended, and the regulations thereunder.


 


K.                                    “Committee” means the Governance, Compensation
and Nominating Committee of the Board or such other committee of the Board as
the Board may from time to time designate, which, with respect to the
establishment of Performance Measures, shall be composed solely of not less
than two outside directors (as described under Regulations Section 1.162-27(e)(3)),
and shall be appointed by and serve at the pleasure of the Board.


 


L.                                      “Corporation” means Comerica
Incorporated, a Delaware corporation, and its successors and assigns.


 


M.                                 “Date of Grant” means the
effective date of an Award granted by the Committee to an Award Recipient.


 


N.                                    “Disabled” or “Disability” means “Totally
Disabled” (or any derivation of such term) within the meaning of the
Long-Term Disability Plan of Comerica Incorporated, or if there is no
such plan, “Disability” as determined by the Committee.  However, with respect to the rules relating
to Incentive Stock Options, the term “Disabled” shall mean disabled as that
term is utilized in Sections 422 and 22(e)(3) of the Code, or any
successor Code provisions relating to ISOs. 
Furthermore, with 


 


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respect to
Awards subject to Section 409A of the Code, “Disabled” shall not have
either of the prior meanings, but shall mean an Award Recipient’s inability
to engage in any substantial gainful activity due to a medically determinable
physical or mental impairment which can be expected to result in death or can
be expected to last for a continuous period of not less than twelve (12)
months.


 


O.                                    “Disaffiliation”
means a Subsidiary’s or Affiliate’s ceasing to be a Subsidiary or Affiliate for
any reason (including, without limitation, as a result of a public offering, or
a spinoff or sale by the Corporation, of the stock of the Subsidiary or
Affiliate) or a sale of a division of the Corporation and its Affiliates.


 


P.                                      “Eligible Individual” means any
officers and employees of the Corporation or any of its Subsidiaries or
Affiliates, and prospective officers and employees who have accepted offers of
employment from the Corporation or its Subsidiaries or Affiliates. 
Notwithstanding the foregoing, an Eligible Individual for purposes of
receipt of the grant of an ISO shall be limited to those individuals who are
eligible to receive ISOs under rules set forth in the Code and applicable
regulations.


 


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


 


R.                                     “Fair Market Value” means the closing
price of a Share on the New York Stock Exchange as reported on the Composite
Tape as published in the Wall Street Journal; if, however, there is no
trading of Shares on the date in question, then the closing price of the Shares
as so reported, on the last preceding trading day shall instead be used to
determine Fair Market Value.  If Fair
Market Value for any date in question cannot be determined as provided above,
Fair Market Value shall be determined by the Committee in its good faith
discretion based on a reasonable valuation method in accordance with the
Regulations and applicable guidance promulgated under Code Section 409A.


 


S.                                      “Incentive Stock Option” or “ISO
Award” means an Option granted pursuant to the Plan that is
designated in the applicable Award Agreement as an “incentive stock option”
within the meaning of Section 422 of the Code, and that in fact so
qualifies.


 


T.                                     “Nonqualified Stock Option” or “NQSO
Award” means an Option granted 
pursuant to the Plan that is not intended to be, or does not qualify as,
an Incentive Stock Option.


 


U.                                    “Option” means a Nonqualified Stock
Option or an Incentive Stock Option granted pursuant to Section 6(A) of
the Plan.


 


V.                                     “Other Stock-Based Award” means any
right granted under Section 6(F) of the Plan.


 


W.                                “Performance Award” means any Award, including a Qualified
Performance-Based Award, granted pursuant to Section 6(E) of the
Plan.


 


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X.                                    “Performance Measures” means the
performance goals established by the Committee and relating to a Performance
Period in connection with the grant of an Award.  In the case of any Qualified
Performance-Based Award, such goals shall be (i) based on the attainment
of specified levels of one or more of the following measures (a) earnings per share, (b) return
measures (including, but not limited to, return on assets, equity or sales), (c) net
income (before or after taxes), (d) cash flow (including, but not limited
to, operating cash flow and free cash flow), (e) cash flow return on
investments, which equals net cash flows divided by owner’s equity, (f) earnings
before or after taxes, interest, depreciation and/or amortization, (g) internal
rate of return or increase in net present value, (h) gross revenues, (i) gross
margins or (j) stock price (including, but not limited to, growth measures
and total stockholder return) and (ii) set by the Committee within
the time period prescribed by Section 162(m) of the Code.  Performance
Measures may be absolute in their terms or measured against or in relationship
to other companies comparably, similarly or otherwise situated and may be based
on or adjusted for any other objective goals, events, or occurrences
established by the Committee for a Performance Period.  Such Performance Measures may be particular
to a line of business, Subsidiary or other unit or may be based on the
performance of the Corporation generally. 
Such Performance Measures may cover the Performance Period(s) as
specified by the Committee.  Performance
Measures may be adjusted by the Committee in its sole discretion to
eliminate the unbudgeted effects of charges for restructurings, charges for discontinued
operations, charges for extraordinary items and other unusual or non-recurring
items of loss or expense, merger related charges, cumulative effect of accounting
changes, the unbudgeted financial impact of any acquisition or divestiture made
during the applicable Performance Period, and any direct or indirect change in
the Federal corporate tax rate affecting the Performance Period, each as
defined by generally accepted accounting principles and identified in the
audited financial statements, notes to the audited financial statements, management’s
discussion and analysis or other Corporation filings with the Securities and Exchange
Commission


 


Y.                                     “Performance Period” means the period
designated by the Committee during which the Performance Measures applicable to
an Award shall be measured.  The
Performance Period shall be established at or before the time of the grant of
the Award, and the length of any Performance Period shall be within the
discretion of the Committee.


 


Z.                                     “Plan” means the Comerica Incorporated
2006 Amended and Restated Long-Term Incentive Plan, as may be amended from time
to time.


 


AA.                         “Qualified
Performance-Based Award” means an Award intended to qualify for the Section 162(m) Exemption,
as provided in Section 7.


 


BB.                             “Regulations” means the Treasury Regulations promulgated under the
Code.


 


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CC.                             “Restriction Period” means the period designated by the Committee
during which Shares of a Restricted Stock Award remain forfeitable or a
Restricted Stock Unit Award is subject to vesting requirements.


 


DD.                           “Restricted Stock” or “Restricted
Stock Award” means an award of Shares pursuant to Section 6(C) of
the Plan subject to the terms, conditions and such restrictions as may be determined by the Committee and set
forth in the applicable Award Agreement.  Shares of Restricted Stock shall constitute
issued and outstanding Shares for all corporate purposes.


 


EE.                               “Restricted
Stock Units” or “Restricted Stock
Unit Award” means an Award granted pursuant to Section 6(D) of
the Plan denominated in Shares subject to the terms, conditions and
restrictions determined by the Committee and set forth in the applicable Award
Agreement.


 


FF.                               “Retirement” means, unless otherwise provided in an Award Agreement
or determined by the Committee, an Award Recipient’s Termination of
Employment (or with respect to Awards subject to Code Section 409A, an
Award Recipient’s Separation from Service) at or after age 65  or after attainment of both age 55 and ten
(10) years of continuous service with the Corporation and Affiliates.


 


GG.                             “Section 162(m) Exemption”
means the exemption from the limitation on deductibility imposed by Section 162(m) of
the Code that is set forth in Section 162(m)(4)(C) of the Code.


 


HH.                           “Separation from Service” means, with respect to any Award that is
subject to Code Section 409A, the date on which the Corporation and the
Award Recipient reasonably anticipate a permanent reduction in the level of
bona fide services performed by the Award Recipient for the Corporation or any
Affiliate to 20% or less of the average level of bona fide services performed
by the Award Recipient for the Corporation or any Affiliate (whether as an
employee or an independent contractor) in the immediately preceding thirty-six
(36) months (or the full period of service to the Corporation and any Affiliate
if the Award Recipient has been providing services to the Corporation and its
Affiliates for less than thirty-six (36) months).  The determination of whether a Separation
from Service has occurred shall be made by the Plan Administrator in accordance
with the provisions of Code Section 409A and the Regulations promulgated
thereunder.


 


II.                                     “Share” means a share of common stock,
$5.00 par value, of the Corporation or such other securities or property as may
become subject to Awards pursuant to an adjustment made under Section 3(D) of
the Plan.


 


JJ.                                   “Specified Employee” means a key
employee of the Corporation as defined in Code Section 416(i) without
regard to paragraph (5) thereof. 
The determination of whether an Award Recipient is a Specified Employee
shall be made by the Committee as of the specified employee identification date
adopted by the 


 


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Corporation in
accordance with the provisions of Code Section 409A and the Regulations
promulgated thereunder.


 


KK.                           “Stock Appreciation Right” or “SAR Award” means a right
granted under Section 6(B) of the Plan.


 


LL.                               “Subsidiary”
means any entity (other than the Corporation) in an unbroken chain of entities
beginning with the Corporation, provided each entity (other than the last
entity) in the unbroken chain owns, at the time of the determination, ownership
interests possessing fifty percent (50%) or more of the total combined voting
power of all classes of ownership interests in one of the other entities in
such chain; provided, however, with respect to any Award that is an Incentive
Stock Option, the term “Subsidiary” shall refer solely to an entity that is
taxed under Federal tax law as a corporation.


 


MM.                     “Tax Withholding Date” shall mean the earliest date the obligation
to withhold tax with respect to an Award arises.


 


NN.                           “Term” means the
maximum period during which an Option or Stock Appreciation Right may remain
outstanding (subject to earlier termination upon Termination of Employment or
otherwise) as specified in the applicable Award Agreement or, to the extent not
specified in the Award Agreement, as provided in the Plan.


 


OO.                           “Termination
of Employment” means the termination of the applicable Award Recipient’s
employment with the Corporation and any of its Affiliates.  An Award Recipient employed by an Affiliate
or a division of the Corporation or any of its Affiliates shall be deemed to
incur a Termination of Employment if, as a result of a Disaffiliation, such
Affiliate or division ceases to be an Affiliate or division, as the case may be,
and the Award Recipient does not immediately thereafter become an employee of
the Corporation or an Affiliate.  Neither
a temporary absence from employment because of illness, vacation or leave of
absence nor a transfer among the Corporation and its Affiliates shall be
considered a Termination of Employment.


 


SECTION 3

STOCK SUBJECT TO THE PLAN


 


A.                                   Plan
Maximums.  The maximum number of Shares that
may be delivered pursuant to Awards under the Plan shall be the sum of (i) eleven
million (11,000,000), (ii) any Shares available for future awards under
the Amended and Restated Comerica Incorporated 1997 Long-Term Incentive Plan
(the “Prior Plan”) as of the Effective Date, and (iii) any Shares
that are represented by awards granted under the Prior Plan which are forfeited,
expire or are cancelled without delivery of Shares or which result in the
forfeiture of Shares back to the Corporation. 
No additional Shares will be granted pursuant to the terms of the Prior
Plan as of the Effective Date of the Plan. 
The maximum number of Shares that may be delivered pursuant to Options
intended to be Incentive Stock Options shall be one million (1,000,000) Shares.  No
more than 2.2 million (2,200,000) Shares may be issued during the term of the
Plan pursuant to 


 


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Awards other than Options and Stock
Appreciation Rights.  Shares subject to an Award under
the Plan may be authorized and unissued Shares or treasury Shares.


 


B.                                     Individual
Limits.  No Award Recipient may be
granted Awards with respect to more than 350,000 Shares in any calendar year,
and the maximum number of Shares underlying Awards of Options and Stock
Appreciation Rights that may be granted to an Award Recipient in any calendar
year is 350,000.


 


C.                                     Rules for
Calculating Shares Delivered.  Any
Shares covered by an Award that has been granted shall be counted as used under
the Plan as of the Date of Grant.  To the
extent that any Award is forfeited, or any Option or Stock Appreciation Right
terminates, expires or lapses without being exercised, the Shares subject to
such Awards not delivered as a result thereof shall again be available for
Awards under the Plan.  The following
Shares, however, may not again be made available for issuance in respect of
Awards under this Plan: (i) Shares not issued or delivered as a result of
the net settlement of an outstanding Stock Appreciation Right; (ii) Shares
used to pay the exercise price or withholding taxes related to an outstanding
Award; or (iii) Shares repurchased by the Corporation on the open market
with the proceeds of an Option exercise price to settle an Option.


 


D.                                    Adjustment
Provision.  In the event of (i) a
stock dividend, stock split, reverse stock split, share combination, or
recapitalization or similar event affecting the capital structure of the
Corporation (each, a “Share Change”), or (ii) a merger,
consolidation, acquisition of property or shares, separation, spinoff, reorganization,
stock rights offering, liquidation, Disaffiliation, or similar event affecting
the Corporation or any of its Subsidiaries (each, a “Corporate Transaction”),
the Committee or the Board shall make such substitutions or adjustments as it
deems appropriate and equitable, if any, to (A) the aggregate number and
kind of Shares or other securities reserved for issuance and delivery under the
Plan, (B) the various maximum limitations set forth in Sections 3(A) and
3(B) upon certain types of Awards and upon the grants to individuals of
certain types of Awards, (C) the number and kind of Shares or other
securities subject to outstanding Awards, and (D) the exercise price of
outstanding Options and Stock Appreciation Rights, provided that the aggregate
exercise price or aggregate grant price of the Options or Stock Appreciation
Rights is not less than the aggregate exercise price or aggregate grant price
before the Corporate Transaction.  In the
case of Corporate Transactions, such adjustments may include, without
limitation, (1) the cancellation of outstanding Awards in exchange for
payments of cash, property or a combination thereof having an aggregate value
equal to the value of such Awards, as determined by the Committee or the Board
in its sole discretion (it being understood that in the case of a Corporate
Transaction with respect to which stockholders of Common Stock receive
consideration other than publicly traded equity securities of the ultimate
surviving entity, any such determination by the Committee that the value of an
Option or Stock Appreciation Right shall for this purpose be deemed to equal
the excess, if any, of the value of the consideration being paid for each Share
pursuant to such Corporate Transaction over the exercise price of such Option
or Stock Appreciation Right shall conclusively be deemed valid); (2) the
substitution of other property (including, without limitation, cash or other
securities of the Corporation and securities of entities other than 


 


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the Corporation) for the Shares subject to
outstanding Awards; and (3) in connection with any Disaffiliation,
arranging for the assumption of Awards, or replacement of Awards with new
awards based on other property or other securities (including, without
limitation, other securities of the Corporation and securities of entities other
than the Corporation), by the affected Subsidiary, Affiliate, or division or by
the entity that controls such Subsidiary, Affiliate, or division following such
Disaffiliation (as well as any corresponding adjustments to Awards that remain
based upon Corporation securities).  Any
such adjustments shall be made in a manner that (i) with respect to Awards
that are not considered to be deferred compensation within the meaning of Section 409A
of the Code as of immediately prior to such adjustment, would not cause such
Awards to become deferred compensation subject to Section 409A of the Code
and (ii) with respect to Awards that are considered deferred compensation
within the meaning of Section 409A of the Code, would not cause such
Awards to be non-compliant with the requirements of Section 409A of the
Code.


 


SECTION 4

ADMINISTRATION


 


A.                                   Committee.  The Plan shall be administered by
the Committee.  In addition to any
implied powers and duties that may be needed to carry out the provisions of the
Plan, the Committee shall have all the powers vested in it by the terms of the
Plan, including exclusive authority to: 
select Eligible Individuals; to make Awards; to determine the type,
size, terms and timing of Awards (which need not be uniform); to accelerate the
vesting of Awards, including upon the occurrence of a Change of Control of the
Corporation or an Award Recipient’s Termination of Employment; to prescribe the
form of the Award Agreement; to modify, amend or adjust the terms and
conditions of any Award, subject to Sections 7 and 10; to adopt, alter and
repeal such administrative rules, guidelines and practices governing the Plan
as it shall from time to time deem advisable; to interpret the terms and
provisions of the Plan and any Award issued under the Plan (and any Award
Agreement relating thereto); make any
other determinations it believes necessary or advisable in connection with the
administration of the Plan; correct any defect, supply any omission or
reconcile any inconsistency in the Plan or in any Award Agreement; establish
any “blackout” period that the Committee in its sole discretion deems necessary
or advisable; and to otherwise administer the Plan.


 


B.                                     Procedures.  Determinations of the Committee shall be made
by a majority vote of its members at a meeting at which a quorum is present or
pursuant to a unanimous written consent of its members.  A majority of the members of the Committee
shall constitute a quorum.   Subject to Section 7(D),
any authority granted to the Committee may also be exercised by the full
Board.  To the extent that any permitted
action taken by the Board conflicts with action taken by the Committee, the
Board action shall control.  The
Committee may authorize any one or more of its members, or any officer of the
Corporation, to execute and deliver documents on behalf of the Committee.


 


Except to the extent prohibited by applicable law or the applicable rules of
a stock exchange, the Committee may (i) allocate all or any portion of its
responsibilities 


 


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and powers to any one or more of its members and/or (ii) delegate
all or any part of its responsibilities and powers to any person or persons
selected by it, provided that,
the Committee may not delegate its responsibilities and powers if such
delegation would cause an Award made to an individual subject to Section 16
of the Exchange Act not to qualify for an exemption from Section 16(b) of
the Exchange Act or cause an Award intended to be a Qualified Performance-Based
Award not to qualify for, or to cease to qualify for, the Section 162(m) Exemption.  Any such allocation or delegation may be
revoked by the Committee at any time.


 


All decisions made by the Committee (or any person or persons to whom
the Committee has allocated or delegated all or any portion of its
responsibilities and powers in accordance with this Plan) shall be final and
binding on all persons, including the Corporation, its Affiliates,
Subsidiaries, stockholders, Eligible Individuals, Award Recipients, Beneficiaries
and other interested parties.


 


C.                                     Discretion
of the Committee.  Subject to Section 1(G),
any determination made by the Committee or by an appropriately delegated
officer pursuant to delegated authority under the provisions of the Plan with
respect to any Award shall be made in the sole discretion of the Committee or
such delegate at the time of the grant of the Award or, unless in contravention
of any express term of the Plan, at any time thereafter.  All decisions made by the Committee or any
appropriately delegated officer pursuant to the provisions of the Plan shall be
final and binding on all persons, including the Corporation, Award Recipients
and Eligible Individuals.


 


D.                                    Cancellation
or Suspension of Awards.  The Committee may cancel all or any portion of
any Award, whether or not vested or deferred, as set forth below.  Upon cancellation, the Award Recipient shall
forfeit the Award and any benefits attributable to such canceled Award or
portion thereof.  The Committee may
cancel an Award if, in its sole discretion, the Committee determines in good
faith that the Award Recipient has done any of the following:  (i) committed a felony; (ii) committed
fraud; (iii) embezzled; (iv) disclosed confidential information or
trade secrets; (v) was terminated for Cause; (vi) engaged in any
activity in competition with the business of the Corporation or any Subsidiary
or Affiliate of the Corporation; or (vii) engaged in conduct that
adversely affected the Corporation.  The
Executive Vice President — Director of Human Resources, or such other person
designated from time to time by the Chief Executive Officer of the Corporation
(the “Delegate”), shall have the power and authority to suspend all or
any portion of any Award if the Delegate makes in good faith the determination
described in the preceding sentence.  Any
such suspension of an Award shall remain in effect until the suspension shall
be presented to and acted on by the Committee at its next meeting.  This Section 4(D) shall have no
application for a two year period following a Change of Control of the
Corporation.


 


SECTION 5

ELIGIBILITY


 


Awards may only be made to Eligible Individuals.


 


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SECTION 6

AWARDS


 


A.                                   Options.  The Committee may grant Options to
Eligible Individuals in accordance with the provisions of this subsection
subject to such additional terms and conditions, not inconsistent with the
provisions of the Plan, as the Committee shall determine to be appropriate.


 


1.                                       Exercise Price.  The
exercise price per Share of an Option shall be determined by the Committee; provided, however, that such exercise
price shall not be less than 100% of the Fair Market Value of a Share on the
Date of Grant of such Option, and such exercise price may not be decreased
during the Term of the Option except pursuant to an adjustment in accordance
with Section 3(D).


 


2.                                       Option Term.  The Term of each Option shall be
fixed by the Committee and the maximum Term of each Option shall be ten (10) years.


 


3.                                       Time and Manner of Exercise.  The
Committee shall determine the time or times at which an Option may be
exercised, and the manner in which (including, without limitation, cash,
Shares, other securities, other Awards or other property, or any combination
thereof, having a Fair Market Value on the exercise date equal to the relevant
exercise price) payment of the exercise price with respect thereto may be made,
or deemed to have been made.  The
Committee may authorize the use of any form of “cashless” exercise of an Option
that is legally permissible.


 


4.                                       Employment Status.  Except
as provided in paragraphs (a) through (d) below or as may otherwise
be provided by the Committee (either at the time of grant of an Option or
thereafter), an Award Recipient’s Options and Stock Appreciation Rights
shall be immediately forfeited upon his or her Termination of Employment.


 


a.                                       Retirement.  An Award Recipient’s Retirement
shall not affect any Option outstanding as of the Termination of Employment due
to Retirement other than those granted in the calendar year of Retirement.  All Options outstanding as of the Termination
of Employment due to Retirement other than those granted in the calendar year
of such Termination of Employment shall continue to vest pursuant to the
vesting schedule applicable to such Options, and any vested Options outstanding
as of the Termination of Employment due to Retirement (including any ISO held
by an Award Recipient who is not Disabled) shall continue in full force and
effect for the remainder of the Term of the Option.  All Options granted in the calendar year of
Termination of Employment due to Retirement that have not otherwise vested as
of such termination shall terminate upon the date of Retirement.


 


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b.                                      Disability.  Upon the cessation of the Award
Recipient’s employment due to Disability, any Option held by such individual that
was exercisable immediately before the Termination of Employment due to
Disability shall continue to be
exercisable until the earlier of (i) the third anniversary of the Award
Recipient’s Termination of Employment (or, in the case of any ISO held by an
Award Recipient who is Disabled, the first anniversary of the Award Recipient’s
Termination of Employment) and (ii) the expiration of the Term of the
Option.


 


c.                                       Death.  Upon the Award Recipient’s death
(whether during his or her employment with the Corporation or an Affiliate or
during any otherwise applicable post-termination exercise period, which in the
case of an ISO, shall not exceed three (3) months), any Option held by
such individual that was exercisable immediately before the Termination
of Employment shall continue to be
exercisable by the Beneficiary(ies) of the decedent, until the earlier of (i) the
first anniversary of the date of the Award Recipient’s death and (ii) the
expiration of the Term of the Option.


 


d.                                      Other Terminations of Employment.  Upon
the Award Recipient’s Termination of Employment for any reason other than
Retirement, Disability, death or for Cause, any Option held by such individual that was exercisable
immediately before the Termination of Employment shall continue to be exercisable until the earlier of (i) the
expiration of the three-month period following the Award Recipient’s
Termination of Employment and (ii) the expiration of the Term of the
Option.


 


e.                                       Extension or Reduction of Exercise Period.  In any
of the foregoing circumstances, subject to Section 8, the Committee may
extend or shorten the exercise period, but may not extend any such period
beyond the Term of the Option as originally established (or, insofar as this
paragraph relates to Stock Appreciation Rights, the Term of the SAR Award as
originally established).  Further, with
respect to ISOs, as a condition of any such extension, the holder shall be
required to deliver to the Corporation a release which provides that such
individual will hold the Corporation and/or Affiliates harmless with respect to
any adverse tax consequences the individual may suffer by reason of any such
extension.


 


B.                                     Stock Appreciation Right Awards.  The
Committee may grant Stock Appreciation Rights to Eligible Individuals in
accordance with the provisions of this subsection subject to such additional terms
and conditions, not inconsistent with the provisions of the Plan, as the
Committee shall determine to be appropriate. 
The Term of each SAR Award shall be fixed by the Committee and the
maximum Term of each SAR Award shall be ten (10) years.  A Stock Appreciation Right granted under the
Plan shall confer on the Award Recipient a right to receive upon exercise
thereof the excess (if any) of (i) the Fair Market Value of one Share on
the date of exercise over (ii) the grant price of the Stock Appreciation
Right Award as specified by the Committee, which 


 


11

















 


price shall not be less than 100% of the Fair
Market Value of one Share on the Date of Grant of the Stock Appreciation
Right.  Subject to the terms of the Plan,
the Committee shall determine the grant price, Term, manner of exercise, dates
of exercise, methods of settlement (cash, Shares or a combination thereof) and
any other terms and conditions of any SAR Award.  The Committee may impose such conditions or
restrictions on the exercise of any SAR Award as it may deem appropriate.  Except as otherwise provided by the Committee
or in an Award Agreement, any SAR Award must be exercised during the period of
the Award Recipient’s employment with the Corporation or Affiliate, provided that the provisions of Section 6(A)(4)(a)-(e) hereof
shall apply for purposes of determining the exercise period in the event of the
Award Recipient’s Retirement, Disability, death or other Termination of
Employment.


 


C.                                     Restricted Stock Awards.  The
Committee may make Restricted Stock Awards to Eligible Individuals in
accordance with the provisions of this subsection subject to such additional
terms and conditions not inconsistent with the provisions of the Plan as the
Committee shall determine to be appropriate.


 


1.                                       Nature of Restrictions. 
Restricted Stock Awards shall be subject to such restrictions, including
Performance Measures, as the Committee may impose (including, without
limitation, any limitation on the right to vote a Share of Restricted Stock or
the right to receive any dividend or other right or property with respect
thereto), which restrictions may lapse separately or in combination at such
time or times, in such installments or otherwise as the Committee may deem appropriate.  Subject to the Committee’s authority under Section 6(C)(3) below,
the minimum Restriction Period with respect to a Restricted Stock Award that is
subject to restrictions that are Performance Measures shall be one (1) year,
and the minimum Restriction Period with respect to a Restricted Stock Award
that is subject to restrictions that are not Performance Measures shall be
three (3) years.  The
Committee may, as of the Date of Grant, designate an Award of Restricted Stock
that is subject to Performance Measures as a Qualified Performance-Based Award.


 


2.                                       Stock Certificates. 
Restricted Stock Awards granted under the Plan shall be evidenced by the
issuance of a stock certificate(s), which shall be held by the
Corporation.  Such certificate(s) shall
be registered in the name of the Award Recipient and shall bear an appropriate
legend which refers to the restrictions applicable to such Restricted Stock
Award.  Alternatively, shares of
Restricted Stock under the Plan may be recorded in book entry form.


 


3.                                       Forfeiture; Delivery of Shares.  Except
as may be otherwise provided in an Award Agreement, upon an Award Recipient’s
Termination of Employment (as determined under criteria established by the
Committee) during the applicable Restriction Period, all Shares of Restricted
Stock shall be immediately forfeited and revert to the Corporation; provided, however, that the Committee may
waive, in whole or in part, any or all remaining restrictions applicable to the
Restricted Stock Award.  Shares
comprising any Restricted Stock Award held by the Corporation that are no
longer subject to restrictions 


 


12

















 


shall be delivered to the Award
Recipient (or his or her Beneficiary) promptly after the applicable restrictions
lapse or are waived.


 


D.                                    Restricted
Stock Unit Awards.  The Committee may
grant Awards of Restricted Stock Units to Eligible Individuals, subject to Section 8
hereof and such other terms and conditions, not inconsistent with the
provisions of the Plan, as the Committee shall determine to be
appropriate.  A Restricted Stock Unit
shall represent an unfunded, unsecured right to receive one Share or cash equal
to the Fair Market Value of a Share.


 


1.                                       Nature of Restrictions. 
Restricted Stock Unit Awards shall be subject to such restrictions,
including Performance Measures, as the Committee may impose, which restrictions
may lapse separately or in combination at such time or times, in such
installments or otherwise as the Committee may deem appropriate.  Subject to the Committee’s authority under Section 6(D)(3) below,
the minimum Restriction Period with respect to a Restricted Stock Unit Award
that is subject to restrictions that are Performance Measures shall be one (1) year,
and the minimum Restriction Period with respect to a Restricted Stock Unit
Award that is subject to restrictions that are not Performance Measures shall
be three (3) years.  The
Committee may, as of the Date of Grant, designate an Award of Restricted Stock
as a Qualified Performance-Based Award.


 


2.                                       Rights as a
Stockholder.  An Eligible Individual
to whom Restricted Stock Units are granted shall not have any rights of a
stockholder of the Corporation with respect to the Share represented by the
Restricted Stock Unit Award.  If so
determined by the Committee, in its sole and absolute discretion, Restricted
Stock Units may include a dividend equivalent right, pursuant to which the
Award Recipient will either receive cash amounts (either paid currently or on a
contingent basis) equivalent to the dividends and other distributions payable
with respect to the number of Shares represented by the Restricted Stock Units,
or additional Restricted Stock Units with a Fair Market Value equal to such
dividends and other distributions, as specified in the Award Agreement.  Dividend equivalent rights that the Committee
determines are subject to Section 409A of the Code shall be paid or
settled in accordance with Section 8 hereof.


 


3.                                       Forfeiture/Settlement.  Except
as may be otherwise provided in an Award Agreement, upon an Award Recipient’s
Termination of Employment (as determined under criteria established by the
Committee) during the applicable Restriction Period, all Restricted Stock Units
shall be immediately forfeited; provided,
however, that the Committee may waive, in whole or in part, any or
all remaining vesting requirements or restrictions applicable to the Restricted
Stock Unit Award.  Subject to Section 11(D) hereof,
an Award of Restricted Stock Units shall be settled in Shares as and
when the Restricted Stock Units vest or at a later time permitted under Section 8
hereof and specified by the Committee in the Award Agreement.


 


E.                                      Performance Awards.  The
Committee may grant Performance Awards (designated as Qualified
Performance-Based Awards or not) to Eligible Individuals in 


 


13

















 


accordance
with the provisions of this Section 6(E), subject to Section 8 hereof
and such additional terms and conditions, not inconsistent with the provisions
of the Plan, as the Committee shall determine to be appropriate.  A Performance Award granted under the Plan (i) may
be denominated or payable in cash, Shares (including, without limitation,
Restricted Shares), other securities, other Awards, or other property, and (ii) shall
confer on the Award Recipient the right to receive a dollar amount or number of
Shares upon the attainment of Performance Measures during any Performance
Period, as established by the Committee. 
Subject to the terms of the Plan and any applicable Award Agreement, the
Performance Measures to be achieved during any Performance Period, the length
of any Performance Period and the amount of any payment or number of Shares in
respect of a Performance Award shall be determined by the Committee.


 


F.                                      Other Stock-Based Awards.  The
Committee may grant Other Stock-Based Awards to Eligible Individuals in
accordance with the provisions of this Section 6(F), subject to Section 8
hereof and such other additional terms and conditions, including Performance
Measures, not inconsistent with the provisions of the Plan, as the Committee
shall determine.  Other Stock-Based
Awards may be denominated or payable in, valued in whole or in part by
reference to, or otherwise based on or related to, Shares (including, without
limitation, securities convertible into Shares), as are deemed by the Committee
to be consistent with the purpose of the Plan.


 


G.                                     General.  Except as otherwise specified in
the Plan or an applicable Award Agreement, the following provisions shall apply
to Awards granted under the Plan:


 


1.                                       Consideration for Awards.  Other
than the payment of the exercise price or grant price in connection with the
exercise of an Option or Stock Appreciation Right, Awards shall be made without
monetary consideration or for such minimal monetary consideration as may be
required by applicable law.  In no
event may any Option or Stock Appreciation Right granted under this Plan be
amended, other than pursuant to Section 3(D), to decrease the exercise or
grant price thereof, be cancelled in conjunction with the grant of any new
Option or Stock Appreciation Right with a lower exercise or grant price, or
otherwise be subject to any action that would be treated, for accounting
purposes, as a “repricing” of such Option or Stock Appreciation Right, unless
such amendment, cancellation, or action is approved by the Corporation’s
stockholders.


 


2.                                       Forms of Payment under Awards. 
Subject to the terms of the Plan and of any applicable Award Agreement,
payments or transfers of Shares to be made by the Corporation or an Affiliate
upon the grant, exercise or satisfaction of an Award may be made in such form
or forms as the Committee shall determine (including, without limitation, cash,
Shares, other securities, other Awards or other property or any combination
thereof), and may be made in a single payment or transfer, or in installments,
and may be made upon vesting or such later date permitted under Section 8
hereof and specified in the applicable Award Agreement, and, in each case, in
accordance with rules and procedures 


 


14

















 


established by the Committee.  Such rules and procedures may include,
without limitation, provisions for the payment or crediting of reasonable
interest on installment or deferred payments.


 


3.                                       Limits on Transfer of Awards.  No
Award and no right under any such Award shall be transferable by an Award
Recipient otherwise than by will or by the laws of intestacy; provided, however, that, an Award
Recipient may, in the manner established by the Committee, designate a
Beneficiary to exercise the rights of the Award Recipient and to receive any
property distributable with respect to any Award upon the death of the Award
Recipient.  Each Award or right under any
Award shall be exercisable during the Award Recipient’s lifetime only by the
Award Recipient or, if permissible under applicable law, by the Award Recipient’s
guardian or legal representative.  No
Award or right under any such Award may be pledged, alienated, attached or
otherwise encumbered, and any purported pledge, alienation, attachment or
encumbrance thereof shall be void and unenforceable against the Corporation or
any Affiliate.


 


4.                                       Term of Awards. 
Subject to any specific provisions of the Plan, the term of each Award
shall be for such period as may be determined by the Committee.


 


5.                                       Securities Law Restrictions.  All
certificates for Shares or other securities delivered under the Plan pursuant
to any Award or the exercise thereof shall be subject to such restrictions as
the Committee may deem advisable under the Plan, or the rules, regulations and
other requirements of the Securities and Exchange Commission, the New York
Stock Exchange, any other exchange on which Shares may be eligible to be traded
or any applicable federal or state securities laws, and the Committee may cause
a legend or legends to be placed on any such certificates to make appropriate
reference to such restrictions.


 


6.                                       Deferring
Awards.  Under no circumstances may
an Award Recipient elect to defer, until a time or times later than the
exercise of an Option or a Stock Appreciation Right or the settlement or
distribution of Shares or cash in respect of other Awards, receipt of all or a
portion of the Shares or cash subject to such Award, or dividends and dividend
equivalents payable thereon.


 


SECTION 7

QUALIFIED PERFORMANCE-BASED AWARDS


 


A.                                   Section 162(m) Exemption.  The
provisions of this Plan are intended to ensure that all Options and Stock
Appreciation Rights granted hereunder to any Award Recipient who is or may be a
“covered employee” (within the meaning of Section 162(m)(3) of the
Code) in the tax year in which such Option or Stock Appreciation Right is
expected to be deductible to the Corporation qualify for the Section 162(m) Exemption,
and all such Awards shall therefore be considered Qualified Performance-Based
Awards and this Plan shall be interpreted and operated consistent with that
intention (including, without limitation, to require that all such Awards be
granted by a 


 


15

















 


committee composed solely of members who
satisfy the requirements for being “outside directors” for purposes of the Section 162(m) Exemption
(“Outside Directors”)).  When
granting any Award other than an Option or Stock Appreciation Right, the
Committee may designate such Award as a Qualified Performance-Based Award,
based upon a determination that (i) the recipient is or may be a “covered
employee” (within the meaning of Section 162(m)(3) of the Code) with
respect to such Award, and (ii) the Committee wishes such Award to qualify
for the Section 162(m) Exemption, and the terms of any such Award
(and of the grant thereof) shall be consistent with such designation
(including, without limitation, that all such Awards be granted by a committee
composed solely of Outside Directors).


 


B.                                     Limitation
on Amendment.  Each Qualified
Performance-Based Award (other than an Option or Stock Appreciation Right)
shall be earned, vested and payable (as applicable) only upon the achievement
of one or more Performance Measures, together with the satisfaction of any
other conditions, such as continued employment, as the Committee may determine
to be appropriate, and no Qualified Performance-Based Award may be amended, nor
may the Committee exercise any discretionary authority it may otherwise have
under this Plan with respect to a Qualified Performance-Based Award, in any
manner that would cause the Qualified Performance-Based Award to cease to
qualify for the Section 162(m) Exemption; provided, however, that (i) the Committee may provide,
either in connection with the grant of the applicable Award or by amendment
thereafter, that achievement of such Performance Measure will be waived upon
the death or Disability of the Award Recipient (or under any other circumstance
with respect to which the existence of such possible waiver will not cause the
Award to fail to qualify for the Section 162(m) Exemption), and (ii) any
rights to vesting or accelerated payment on a Change of Control shall apply
notwithstanding this Section 7(B).


 


C.                                     Maximum Cash Award.  For
purposes of the Section 162(m) Exemption, the maximum amount of
compensation payable with respect to an Award granted under the Plan to any
Award Recipient who is a “covered employee” (as defined in Section 162(m) of
the Code) that is denominated as a dollar amount will not exceed $5,000,000 for
any calendar year.


 


D.                                    Limitation
on Action by the Full Board.  The
full Board shall not be permitted to exercise authority granted to the
Committee to the extent that the grant or exercise of such authority would
cause an Award designated as a Qualified Performance-Based Award not to qualify
for, or to cease to qualify for, the Section 162(m) Exemption.


 


SECTION 8

SECTION 409A OF THE CODE


 


It is the intention of the
Corporation that no Award shall be “deferred compensation” subject to Section 409A
of the Code, unless and to the extent that the Committee specifically
determines otherwise, and the Plan and the terms and conditions of all Awards
shall be interpreted accordingly.  If the
Committee determines 


 


16

















 


that an Award is subject to Section 409A
of the Code, then the Award shall be paid or settled only upon the Award
Recipient’s death, Disability, or Separation from Service, or upon a Change of
Control, or upon such date(s) or pursuant to a schedule designated by the
Committee, as specified in the applicable Award Agreement, subject to the
following provisions:


 


1.                                       Delay for
Specified Employees.  Notwithstanding
any provision of this Plan or the terms of an Award Agreement to the contrary,
an Award that is granted to a Specified Employee and that is to be paid or
settled upon such Specified Employee’s Separation from Service shall not be
paid or settled prior to the earlier of (i) the first day of the seventh
(7th) month following the date of such Specified Employee’s Separation from
Service or (ii) the Specified Employee’s death.


 


2.                                       Distribution in the Event of Income
Inclusion Under Code Section 409A.  If an Award fails to
meet the requirements of Section 409A of the Code, the Award Recipient may
receive payment in connection with the Award before the Award would otherwise
be paid, provided, however, that the amount paid to the Award Recipient shall
not exceed the lesser of: (i) the amount payable under such Award, or (ii) the
amount to be reported pursuant to Section 409A of the Code on the
applicable Form W-2 (or Form 1099) as taxable income to the Award
Recipient.


 


3.                                       Distribution
Necessary to Satisfy Applicable Tax Withholding.  If the Corporation is required to withhold
amounts to pay the Award Recipient’s portion of the Federal Insurance
Contributions Act (FICA) tax imposed under Code Sections 3101, 3121(a) or
3121(v)(2) with respect to an amount that is or will be paid to the Award
Recipient under the Award before the amount otherwise would be paid, the
Committee may withhold an amount equal to the lesser of: (i) the amount
payable under such Award, or (ii) the aggregate of the FICA taxes imposed
and the income tax withholding related to such amount.


 


4.                                       Delay in
Payments Subject to Code Section 162(m).  In the event the Corporation reasonably
anticipates that the payment of benefits under an Award would result in the
loss of the Corporation’s Federal income tax deduction with respect to such
payment due to the application of Code Section 162(m), the Committee may
delay the payment of all such benefits under the Award until (i) the first
taxable year in which the Corporation reasonably anticipates, or should reasonably
anticipate, that if the payment were made during such year, the deduction of
such payment would not be barred by application of Code Section 162(m) or
(ii) during the period beginning with the date of the Award Recipient’s
Separation from Service (or, for Specified Employees, the date which is six (6) months
after the date of the Award Recipient’s Separation from Service) and ending on
the later of (A) the last day of the taxable year of the Corporation which
includes such date or (B) the 15th day of the third month following the
date of the Award Recipient’s Separation from Service (or, for Specified
Employees, 


 


17

















 


the date which is six (6) months after
the date of the Award Recipient’s Separation from Service).


 


5.                                       Delay for
Payments in Violation of Federal Securities Laws or Other Applicable Law.  In the event the Corporation reasonably
anticipates that the payment of benefits under an Award would violate Federal
securities laws or other applicable law, the Committee may delay the payment
until the earliest date at which the Corporation reasonably anticipates that
making of such payment would not cause such violation.


 


6.                                       Delay for
Insolvency or Compelling Business Reasons. 
In the event the Corporation determines that the making of any payment
of benefits on the date specified under an Award would jeopardize the ability
of the Corporation to continue as a going concern, the Committee may delay the
payment of benefits until the first calendar year in which the Corporation
notifies the Committee that the payment of benefits would not have such effect.


 


7.                                       Administrative
Delay in Payment.  In the case of
administrative necessity, the payment of benefits under an Award may be delayed
up to the later of the last day of the calendar year in which payment would
otherwise be made or the 15th day of the third calendar month following the
date on which payment would otherwise be made. 
Further, if, as a result of events beyond the control of the Award
Recipient (or following the Award Recipient’s death, the Award Recipient’s
Beneficiary), it is not administratively practicable to calculate the amount of
benefits due to the Award Recipient as of the date on which payment would
otherwise be made, the payment may be delayed until the first calendar year in
which calculation of the amount is administratively practicable.


 


8.                                       No Award
Recipient Election.  Notwithstanding
the foregoing provisions, if the period during which payment of benefits under
an Award will be made occurs, or will occur, in two calendar years, the Award
Recipient shall not be permitted to elect the calendar year in which the
payment shall be made.


 


SECTION 9

WITHHOLDING OF TAXES


 


The Corporation will, if required by applicable law, withhold the minimum
statutory amount of Federal, state and/or local withholding taxes no later than
the date as of which an amount first becomes includible in the gross income of
an Award Recipient for Federal, state, local or foreign income or employment or
other tax.  Unless otherwise provided in
the applicable Award Agreement, each Award Recipient may satisfy any such tax
withholding obligation by any of the following means, or by a combination of
such means:  (i) a cash payment; (ii) by
delivery to the Corporation of already-owned Shares which have been held by the
individual for at least six (6) months having a Fair Market Value, as of
the Tax Withholding Date, sufficient to satisfy the amount of the withholding
tax obligation arising from an exercise or vesting of an Award; (iii) by
authorizing the Corporation to withhold from the Shares otherwise issuable to
the


 


18














 


individual pursuant to
the exercise or vesting of an Award, a number of shares having a Fair Market
Value, as of the Tax Withholding Date, which will satisfy the amount of the
withholding tax obligation; or (iv) by a combination of such methods of
payment.  If the amount requested is not
paid, the Corporation may refuse to satisfy the Award.  The obligations of the Corporation under the
Plan shall be conditional on such payment or arrangements, and the Corporation
and its Affiliates shall, to the extent permitted by law, have the right to
deduct any such taxes from any payment otherwise due to such Award
Recipient.  The Committee may establish
such procedures as it deems appropriate, including making irrevocable elections,
for the settlement of withholding obligations with Shares.


 


SECTION 10 

AMENDMENT AND TERMINATION


 


A.                                   Amendments
to and Termination of the Plan.  The
Committee or the Board may amend, alter, or discontinue the Plan at any time by
written consent executed by its members, but no amendment, alteration or
discontinuation shall be made which would materially impair the rights of the
Award Recipients with respect to a previously granted Award without such Award
Recipient’s consent, except such an amendment made to comply with applicable
law, including without limitation Section 409A of the Code, stock exchange
rules or accounting rules.  In
addition, no such amendment shall be made without the approval of the
Corporation’s stockholders to the extent such approval is required by
applicable law (including Section 422 of the Code) or the listing
standards of the applicable stock exchange.


 


B.                                     Amendments
to Awards.  Subject to Section 6(G)(1),
the Committee may unilaterally amend the terms of any Award theretofore
granted, but no such amendment shall cause a Qualified Performance-Based Award
to cease to qualify for the Section 162(m) Exemption or, without the
Award Recipient’s consent, materially impair the rights of any Award Recipient
with respect to an Award, except such an amendment made to cause the Plan or
Award to comply with applicable law, stock exchange rules or accounting
rules.  Furthermore, no amendment may be
made to a NQSO Award or a SAR Award which would cause the exercise price or the
grant price (as applicable) to be less than 100% of the Fair Market Value of
one Share as of the Date of Grant except as provided in Section 3(D).


 


C.                                     Payment
of Benefits Upon Termination of Plan. 
Upon termination of the Plan, the Corporation may settle any outstanding
Award that is not subject to Code Section 409A as soon as is practicable
following such termination and may settle any outstanding Award that is subject
to Code Section 409A in accordance with one of the following:


 


1.                                       the
termination and liquidation of the Plan within twelve (12)  months of a complete dissolution of the
Corporation taxed under Section 331 of the Code or with the approval of a
bankruptcy court pursuant to 11 U.S.C. § 503(b)(1)(A); provided that the
amounts deferred under this Plan are included in the Participants’ gross
incomes in the latest of the following years (or, if earlier,


 


19

















 


the taxable year in which the amount is
actually or constructively received): (i) the calendar year in which the
Plan is terminated; (ii) the first calendar year in which the amount is no
longer subject to a substantial risk of forfeiture; or (iii) the first
calendar year in which the payment is administratively practicable.


 


2.                                       the
termination and liquidation of the Plan pursuant to irrevocable action taken by
the Committee or the Corporation within the thirty (30) days preceding or the
twelve (12) months following a Change of Control; provided that all Aggregated
Plans are terminated and liquidated with respect to each Participant that
experienced the Change of Control, so that under the terms of the termination
and liquidation, all such Participants are required to receive all amounts of
deferred compensation under this Plan and any other Aggregated Plans within
twelve (12) months of the date the Committee or the Corporation irrevocably
takes all necessary action to terminate and liquidate this Plan and the
Committee or the Corporation, as the case may be, takes all necessary action to
terminate and liquidate such other Aggregated Plans;


 


3.                                       the
termination and liquidation of the Plan, provided that: (i) the
termination and liquidation does not occur proximate to a downturn in the
Corporation’s financial health; (2) the Committee or the Corporation, as
the case may be, terminates and liquidates all Aggregated Plans; (3) no
payments in liquidation of this Plan are made within twelve (12) months of the
date the Committee or the Corporation irrevocably takes all necessary action to
terminate and liquidate this Plan, other than payments that would be payable
under the terms of this Plan if the action to terminate and liquidate this Plan
had not occurred; (4) all payments are made within twenty four (24) months
of the date on which the Committee or the Corporation irrevocably takes all
action necessary to terminate and liquidate this Plan; and (5) the
Corporation does not adopt a new Aggregated Plan at any time within three (3) years
following the date on which the Committee or the Corporation irrevocably takes
all action necessary to terminate and liquidate the Plan.


 


SECTION 11 

MISCELLANEOUS PROVISIONS


 


A.                                   Conditions
for Issuance.  The Committee may
require each person purchasing or receiving Shares pursuant to an Award to
represent to and agree with the Corporation in writing that such person is
acquiring the Shares without a view to the distribution thereof.  The certificates for such Shares may include
any legend which the Committee deems appropriate to reflect any restrictions on
transfer.  Notwithstanding any other
provision of the Plan or Award Agreements made pursuant thereto, with respect
to any Award other than an Award that is subject to Code Section 409A, the
Corporation shall not be required to issue or deliver any certificate or
certificates for Shares under the Plan prior to fulfillment of all of the
following conditions:  (i) listing
or approval for listing upon notice of issuance, of such Shares on the
applicable stock exchange; (ii) any registration or other qualification of
such Shares of the Corporation


 


20

















 


under any state or Federal law
or regulation, or the maintaining in effect of any such registration or other
qualification which the Committee shall, in its absolute discretion upon the
advice of counsel, deem necessary or advisable; and (iii) obtaining any
other consent, approval, or permit from any state or Federal governmental
agency which the Committee shall, in its absolute discretion after receiving
the advice of counsel, determine to be necessary or advisable, and, with
respect to any Award that is subject to Code Section 409A, the Corporation
shall not be required to issue or deliver any certificate or certificates for
Shares under the Plan if the Corporation reasonably anticipates that such
issuance or delivery would violate applicable Federal securities laws or other
applicable law, provided the Corporation issues or delivers the Shares at the
earliest date on which the Corporation reasonably anticipates that such
issuance or delivery would not cause such violation.


 


B.                                     Additional
Compensation Arrangements.  Nothing
contained in the Plan shall prevent the Corporation or any Subsidiary or
Affiliate from adopting other or additional compensation arrangements for its
employees.  Participation in the Plan shall not affect an individual’s eligibility to
participate in any other benefit or incentive plan of the Corporation.


 


C.                                     No
Contract of Employment or Rights to Awards. 
The Plan shall not constitute a contract of employment, and adoption of
the Plan shall not confer upon any employee any right to continued employment,
nor shall it interfere in any way with the right of the Corporation or any
Subsidiary or Affiliate to terminate the employment of any employee at any
time. No employee or other person shall
have any claim or right to receive an Award under the Plan.  Receipt of an Award shall not confer upon the
Award Recipient any rights of a stockholder with respect to any Shares subject
to such Award except as specifically provided in the Agreement relating to the
Award.


 


D.                                    Limitation
on Dividend Reinvestment and Dividend Equivalents.  Reinvestment of dividends in additional
Restricted Stock at the time of any dividend payment, and the reinvestment of
dividend equivalent rights in additional Restricted Stock Units payable in
Shares shall only be permissible if sufficient Shares are available under Section 3
for such reinvestment or payment (taking into account then outstanding
Awards).  In the event that sufficient
Shares are not available, such reinvestment of dividends and dividend equivalent
rights shall be made in the form of a grant of Restricted Stock Units equal in
number to the Shares that would have been obtained by such reinvestment and the
terms of which Restricted Stock Units shall provide for settlement in cash.


 


E.                                      Subsidiary
Employees.  In the case of a grant of
an Award to any employee of a Subsidiary of the Corporation, the Corporation
may, if the Committee so directs, issue or transfer the Shares, if any, covered
by the Award to the Subsidiary, for such lawful consideration as the Committee
may specify, upon the condition or understanding that the Subsidiary will
transfer the Shares to the employee in accordance with the terms of the Award
specified by the Committee pursuant to the provisions of the Plan.  All Shares underlying Awards that are
forfeited or canceled shall revert to the Corporation.


 


21

















 


F.                                      Governing
Law and Interpretation.  The Plan and all Awards made and
actions taken thereunder shall be governed by and construed in accordance with
the laws of the State of Delaware, without reference to principles of conflict
of laws, except to the extent preempted by Federal law.  To the extent that any Award is subject to
Code Section 409A, the terms of the Award Agreement and this Plan shall be
construed and interpreted in accordance with Code Section 409A and the
Regulations and interpretative guidance promulgated thereunder.  The captions of this Plan are not part of the
provisions hereof and shall have no force or effect.


 


G.                                     Foreign
Employees and Foreign Law Considerations. 
The Committee may grant Awards to Eligible Individuals who are foreign
nationals, who are located outside the United States  or who are not compensated from a payroll maintained in the
United States, or who are otherwise subject to (or could cause the Corporation
to be subject to) legal or regulatory provisions of countries or jurisdictions
outside the United States, on such terms and conditions different from those
specified in the Plan as may, in the judgment of the Committee, be necessary or
desirable to foster and promote achievement of the purposes of the Plan, and,
in furtherance of such purposes, the Committee may make such modifications,
amendments, procedures, or subplans as may be necessary or advisable to comply
with such legal or regulatory provisions.


 


H.                                    Expenses.  The expenses of the Plan shall be
borne by the Corporation.


 


I.                                         Acceptance of Terms.  By
accepting an Award under the Plan or payment pursuant to any Award, each Award
Recipient, legal representative and Beneficiary shall be conclusively deemed to
have indicated his or her acceptance and ratification of, and consent to, any
action taken under the Plan by the Committee or the Corporation.  A breach by any Award Recipient, his or her
Beneficiary(ies), or legal representative, of any restrictions, terms or
conditions contained in the Plan, any Award Agreement, or otherwise established
by the Committee with respect to any Award will, unless waived in whole or in
part by the Committee, cause a forfeiture of such Award.


 


SECTION 12 

EFFECTIVE AND TERMINATION


 


The Plan was originally adopted by the Board on March 28,
2006, and was effective on May 16, 2006 (the “Effective Date”), the
date of stockholder approval.  The Plan
was amended and restated effective November 14, 2006 and subsequently
effective December 31, 2008.  The
Plan will terminate on the tenth (10th) anniversary of the Effective Date,
unless earlier terminated in accordance with Section 10.  Awards outstanding as of the date of
termination of the Plan shall not be affected or impaired by the termination of
the Plan.


 


Corporate Governance and
Nominating Committee Approved:  February 22, 2006 (Original Plan); November 14, 2006 (prior
Amendment and Restatement).


Governance, Compensation and
Nominating Committee Approved: November 18,
2008 (this Amendment and Restatement).


 


22

















 


Board Approved:  March 28, 2006 (Original Plan); November 14, 2006 (prior
Amendment and Restatement); November 18, 2008 (this Amendment and
Restatement).


Stockholders Approved:  May 16, 2006 (Original Plan).


 


23





















 


EXHIBIT A


 


CHANGE OF CONTROL


 


A.                                   For
the purpose of this Plan, a “Change of Control” shall mean:


 


1.                                        The
acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or
more of either (i) the then outstanding shares of common stock of the
Corporation (the “Outstanding Corporation
Common Stock”) or (ii) the combined voting power of the then
outstanding voting securities of the Corporation entitled to vote generally in
the election of directors (the “Outstanding
Corporation Voting Securities”); provided,
however, that for purposes of this subsection 1, the following
acquisitions shall not constitute a Change of Control:  (i) any acquisition directly from the
Corporation, (ii) any acquisition by the Corporation, (iii) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Corporation or any corporation controlled by the Corporation
or (iv) any acquisition by any corporation pursuant to a transaction which
complies with clauses (i), (ii) and (iii) of subsection A.3. of this Exhibit A;
or


 


2.                                        Individuals
who, as of the date hereof, constitute the Corporation’s Board of Directors
(the “Incumbent Board”) cease for
any reason to constitute at least a majority of the Board; provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or nomination
for election by the Corporation’s stockholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board; or


 


3.                                        Consummation
of a reorganization, merger or consolidation or sale or other disposition of
all or substantially all of the Corporation’s assets (a “Business Combination”), in each case,
unless, following such Business Combination, (i) all or substantially all
of the individuals and entities who were the beneficial owners, respectively,
of the Outstanding Corporation Common Stock and Outstanding Corporation Voting
Securities immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% 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 directors, as
the case may be, of the company resulting from such Business


 


A-1

















 


Combination (including,
without limitation, a corporation which as a result of such transaction owns
the Corporation or all or substantially all of the Corporation’s assets either
directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business Combination
of the Outstanding Corporation Common Stock and Outstanding Corporation Voting
Securities, as the case may be, (ii) no Person (excluding any corporation
resulting from such Business Combination or any employee benefit plan (or
related trust) of the Corporation or such corporation resulting from such
Business Combination) beneficially owns, directly or indirectly, 20% or more
of, respectively, the then outstanding shares of common stock of the company
resulting from such Business Combination or the combined voting power of the
then outstanding voting securities of such corporation except to the extent
that such ownership existed prior to the Business Combination and (iii) at
least a majority of the members of the board of directors of the company
resulting from such Business Combination were members of the Incumbent Board at
the time of the execution of the initial agreement, or of the action of the
Board, providing for such Business Combination; or


 


4.                                        Approval
by the Corporation’s stockholders of a complete liquidation or dissolution of
the Corporation.


 


B.                                     With
respect to any Award subject to Section 409A of the Code, the above
definition of “Change of Control” shall mean:


 


1.                                        any
one person, or more than one person acting as a group, acquires ownership of
stock of the Corporation that, together with stock held by such person or
group, constitutes more than 50% of the total fair market value or total voting
power of the stock of the Corporation;


 


2.                                        any
one person, or more than one person acting as a group, acquires (or has
acquired during any twelve (12) month period) ownership of stock of the
Corporation possessing 30% or more of the total voting power of the stock of
the Corporation;


 


3.                                        a
majority of the members of the Board is replaced during any twelve (12) month
period by directors whose appointment is not endorsed by a majority of the
members of the Board before the date of the appointment or election; or


 


4.                                        any
one person, or more than one person acting as a group, acquires (or has
acquired during any twelve (12) month period) assets from the Corporation that
have a total gross fair market value equal to or more than 40% of the total
gross fair market value of all of the assets of the Corporation immediately
before such acquisition or acquisitions.


 


A-2

















 


The determination of whether a Change of Control has
occurred under this Section B of Exhibit A shall be made by the
Committee in accordance with the provisions of Code Section 409A and the
Regulations promulgated thereunder.


 


A-3