EX-10.2






Exhibit 10.2




GIBRALTAR INDUSTRIES, INC.




2005 EQUITY INCENTIVE PLAN




 






Second Amendment And Restatement




 






     Effective as of May 19, 2005, Gibraltar Industries, Inc., a Delaware corporation with offices
at 3556 Lake Shore Road, Buffalo, New York (the “Company”), adopted an equity based incentive
compensation plan known as the Gibraltar Industries, Inc. 2005 Equity Incentive Plan (the “Plan”)
for the purpose of carrying into effect its objective to provide its employees and its non-employee
directors, consultants and other service providers with equity based incentives to increase their
motivation to improve the profitability of the Company.



     Effective as of December 18, 2006, the Company amended and restated the Plan to limit the form
of payment of certain Awards to an issuance of Shares and to make certain other technical changes.



     The Company now desires to amend and restate the Plan to conform to the provisions of Section
409A of the Internal Revenue Code of 1986, as amended, and to make certain other technical
changes..



     In connection with the foregoing, the Company hereby adopts this document as the Second
Amendment and Restatement of the Gibraltar Industries, Inc. 2005 Equity Incentive Plan effective
December 31, 2008.



ARTICLE 1.

DEFINITIONS




     The following words and phrases, when used in this Plan, shall have the following meanings,
unless a different meaning is plainly required by the context:



     1.01 Affiliate means any corporation under common control with the Company within the
meaning of Section 414(b) of the Internal Revenue Code and any trade or business (whether or not
incorporated) under common control with the Company within the meaning of Section 414(c) of the
Internal Revenue Code.



     1.02 Appreciation Period means the period of time between the Date of Grant of a Right
and the date that the Right is exercised.



     1.03 Award means any Option, Share, Right or Unit granted to any Person under the
Plan.



     1.04 Base Price means the dollar amount used to determine the amount of the increase,
if any, in the value of the Share used to determine the value of a Right, which amount shall not be
less than the Fair Market Value of the Share, determined as of the Date of Grant of the Right.



 









 





     1.05 Beneficiary means any person, firm, corporation, trust or other entity designated
by a Participant in accordance with Section 11.07 to receive any payment that is required to be
made under the Plan upon or after the Participant’s death.



     1.06 Board of Directors means the Board of Directors of the Company.



     1.07 CEO means the Chief Executive Officer of the Company.



     1.08 Change in Control means the occurrence of any of the following:



          (a) During any twelve-consecutive month period, any “person” or group of persons (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”))
other than the Company, an Affiliate of the Company, an employee benefit plan sponsored by the
Company or any one or more members of the Lipke family becomes the “beneficial owner” (as defined
in section 13(d) of the Exchange Act) of thirty five percent (35%) or more of the then outstanding
voting stock of the Company through a transaction which has not (or a series of transactions which
have not) been arranged by or consummated with the prior approval of the Board of Directors; or




          (b) a majority of the members of the Board of Directors is replaced during any consecutive
twelve-month period by Directors whose appointment or election is not endorsed by a majority of the
members of the Board of Directors prior to the date of appointment or election;




          (c) the Company enters into a Merger Sale Agreement; provided however, that the entry into a
Merger Sale Agreement shall only be deemed a “Change in Control” if the Eligible Person’s
employment with or service to the Company and all of its Affiliates is terminated (without cause in
the case of an Eligible Person that is an Employee) during the period beginning on the date the
Merger Sale Agreement is executed and ending on the earlier of: (i) the date the transaction
contemplated by the Merger Sale Agreement is consummated; and (ii) the date the Merger Sale
Agreement is terminated; or




          (d) the consummation of a Merger Sale.




     1.09 Code and Internal Revenue Code mean the Internal Revenue Code of 1986, as
amended.



     1.10 Committee means: (a) the Board of Directors, with respect to any Award that has
been or may be granted to any Eligible Person who is not an Employee; (b) with respect to any Award
that has been or may be granted to any Executive Officer, the Board of Directors upon the
recommendation of the Compensation Committee; or (c) the Compensation Administration Committee,
with respect to Awards to Employees who are not Executive Officers.



     1.11 Common Stock means the common stock (par value $0.01 per share) of the Company.



     1.12 Company means Gibraltar Industries, Inc., a Delaware corporation.



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     1.13 Compensation Administration Committee means a committee comprised of the
Company’s President and two (2) senior level management employees of the Company, selected by the
President and employed in a position which is at the director level or any more senior position;
provided that, the President may, in his discretion and at any time, remove and/or replace with
different senior level management employees, either or both of the senior level management
employees who serve with the President as members of the Compensation Committee.



     1.14 Compensation Committee means the Compensation Committee of the Board of
Directors.



     1.15 Covered Executive means, with respect to any Award granted hereunder, any
individual who at the Date of Grant of such Award is a “Covered Employee” of the Company for such
year for purposes of Section 162(m) of the Code.



     1.16 Covered Individual means any current or former member of the Committee, any
current or former officer or director of the Company or any individual designated by the Committee
to assist it in the administration of this Plan as provided for by the second paragraph of Section
11.02.



     1.17 Date of Grant means, with respect to any Award, the date on which the Committee
approves the grant of such Award, or such later date as may be specified as the date of grant of
such Award in the instrument evidencing the grant of such Award.



     1.18 Disability means, with respect to any Employee, such employee’s “permanent and
total disability” as defined in Section 22(e)(3) of the Code or any successor provision.



     1.19 Dividend Equivalent Units means additional Restricted Units, additional
Performance Units or additional Rights credited to a Participant pursuant to Section 5.04, Section
6.04 or Section 7.02.



     1.20 Dividend Payment Date means each date on which the Company pays a dividend on its
Common Stock.



     1.21 Eligible Person means: (a) each Employee of the Company or any Affiliate; (b)
each member of the Board of Directors who is not an Employee of the Company or any Affiliate; and
(c) any natural person that is a consultant or other independent advisor providing services to the
Company or any Affiliate.



     1.22 Employee means each natural person that is engaged in the performance of services
for the Company or any Affiliate for wages as defined in Section 3101(a) of the Code.



     1.23 Executive Officer means: (a) the CEO; (b) the Company’s President; (c) the
Company’s principal financial officer; (d) the Company’s principal accounting officer; (e) any Vice
President of the Company who is in charge of a principal business unit, division or function; (f)
any other officer of the Company who performs a policy making function for the Company; (g) any
officer of any Affiliate who performs policy making functions for the Company; and (h) any other
person who performs policy making functions for the Company.



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     1.24 Fair Market Value means, for purposes of determining the value of any Share, Unit
or Right, except as otherwise expressly provided by the terms of the instrument containing the
terms of an Award, the closing price of a share of Common Stock as reported by the NASDAQ National
Market System on the date as of which the determination of Fair Market Value is to be made or, if
no sale of Common Stock shall have been made on the NASDAQ National Market System on that day, on
the next preceding day on which there was a sale of Common Stock.



     1.25 Incentive Stock Option means an Option that is an “incentive stock option” within
the meaning of Section 422 of the Code.



     1.26 Merger Sale means the consolidation, merger, or other reorganization of the
Company, other than: (a) any such consolidation, merger or reorganization of the Company in which
holders of Common Stock immediately prior to the earlier of: (i) the Board of Director’s approval
of such consolidation, merger or other reorganization; or (ii) the date of the stockholders meeting
in which such consolidation, merger or other reorganization is approved, continue to hold more than
seventy percent (70%) of the outstanding voting securities of the surviving entity immediately
after the consolidation, merger, or other reorganization; and (b) any such consolidation, merger or
other reorganization which is effected pursuant to the terms of a Merger Sale Agreement which
provides that the consolidation, merger or other reorganization contemplated by the Merger Sale
Agreement will not constitute a Change in Control for purposes of this Plan.



     1.27 Merger Sale Agreement means an agreement between the Company and any one or more
other persons, firms, corporations or other entities (which are not Affiliates of the Company)
providing for a consolidation, merger or other reorganization in which the holders of Common Stock
of the Company immediately prior to the Company’s execution of such agreement do not hold more than
seventy percent (70%) of the outstanding voting securities of the surviving entity immediately
after the consummation of the consolidation, merger, or other reorganization contemplated by such
agreement.



     1.28 Non-Qualified Stock Option means an Option that is not an Incentive Stock Option.



     1.29 Option means an option to purchase Shares granted pursuant to Article 4 of the
Plan or, solely for purposes of Section 4.08(b), granted under any other stock option plan
maintained by the Company.



     1.30 Option Cash Out Payment means an amount, payable to a Participant that is the
holder of Options, equal to the amount by which: (a)(i) the greatest of: (A) the Fair Market Value
of one Share, determined as of the date a Merger Sale Agreement is executed by the Company; (B) the
Fair Market Value of one Share, determined as of the day immediately preceding the date a Change in
Control occurs; and (C) the amount, if any, of cash payable with respect to one Share in connection
with the consummation of the Change in Control as provided for by the certificate filed with the
Delaware Secretary of State to effect the Change in Control; multiplied by (ii) the total number of
Shares which the Participant is entitled to acquire pursuant to all Options (whether or not such
Options are then currently exercisable pursuant to the provisions of the instruments containing the
terms of the Option Awards held by the Participant) held by the



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Participant on the date the Change in Control is effective; exceeds (b) the aggregate amount
which the Participant would be required to pay to the Company in connection with the purchase by
the Participant of all Shares which the Participant is entitled to purchase pursuant to the
exercise of all unexpired and unexercised Options held by the Participant as of the date the Change
in Control is effective (whether or not such Options are then currently exercisable pursuant to the
provisions of the instruments containing the terms of the Option Awards held by the Participant).




     1.31  Participant means any Eligible Person who holds an Award granted under the Plan,
and any successor, permitted transferee or Beneficiary that succeeds to such individual’s interest
in such Award.



     1.32 Performance Goals means the performance goals established by the Committee in
connection with Awards granted to Eligible Persons under Article 6, which performance goals are
used to determine whether any payment will be made to Eligible Persons in connection with Awards
granted under Article 6 and, if any such payments are to be made, the amount of the payments.



     1.33  Performance Period means the period established by the Committee for measuring
whether, and to what extent, any Performance Goals established in connection with any Award granted
under Article 6 hereof have been met.



     1.34 Performance Shares means Shares that may be issued and delivered pursuant to an
Award made to an Eligible Person under Article 6, depending on the achievement, or the level of
achievement, of one or more Performance Goals within such period, as provided in Article 6.



     1.35 Performance Units means Units credited to an Eligible Person at the beginning of
a Performance Period pursuant to an Award made to such individual under Article 6, and any Dividend
Equivalent Units that are credited to the individual with respect to such Units during such
Performance Period, payment with respect to which Units and related Dividend Equivalent Units
depends on the achievement, or the level of achievement, of one or more Performance Goals within
such period, as provided in Article 6.



     1.36 Plan means the Gibraltar Industries, Inc. 2005 Equity Incentive Plan, as set
forth herein and as amended from time to time hereafter.



     1.37 Pro Rata Portion means, with respect to any portion of any Award of Restricted
Shares or Restricted Units made hereunder, with respect to any portion of any Award of Performance
Shares or Performance Units made hereunder, or with respect to any portion of any Award of Rights
made hereunder, the percentage determined by dividing: (a) the number of full and partial calendar
months in the period beginning on the first day of: (i) the Restricted Period established for such
portion of the Restricted Shares or Restricted Units so granted; (ii) the Performance Period
established for such portion of the Performance Shares or Performance Units so awarded; or (iii)
the Appreciation Period established for such portion of the Rights so awarded, and ending on the
date the Eligible Person’s employment with or service to the Company and each of its Affiliates is
terminated; by (b) the total number of full and partial calendar months in such Restricted Period,
in such Performance Period, or in such Appreciation Period, whichever the case may be.



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     1.38 Restricted Period means the period of time during which Restricted Shares or
Restricted Units are subject to Restrictions as set forth in Article 5.



     1.39 Restricted Shares means Shares which are granted subject to Restrictions pursuant
to Article 5.



     1.40 Restricted Units means Units credited to an Eligible Person which are subject to
Restrictions at the beginning of a Restricted Period pursuant to an Award made to such Eligible
Person under Article 5, and any Dividend Equivalent Units that are credited to the Eligible Person
with respect to such Units during such Restricted Period as provided in Article 5.



     1.41 Restrictions means the restrictions to which Restricted Shares or Restricted
Units are subject under the provisions of Section 5.02.



     1.42 Retirement means the termination of a Participant’s employment with or service to
the Company and all of its Affiliates, provided that such termination occurs after: (a) the
Participant has either: (i) been continuously employed by or provided services (as a non-employee
director, consultant or other service provider) to the Company or any of its Affiliates for a
period of at least five (5) years and attained at least age sixty (60); or (ii) attained at least
age sixty-five (65); and (b) the Participant has given at least thirty (30) days advance written
notice to the Company or, if applicable, the Affiliate of the Company by whom the Participant is
employed or for whom the Participant is providing services, which notice states that the
Participant will retire from his or her employment with or service to the Company and its
Affiliates.



     1.43 Right means an Award which enables the Eligible Person to whom the Award has been
made to receive Shares having a Fair Market Value equal to an amount which is based on the amount
by which the Fair Market Value of one Share at the end of the Appreciation Period exceeds the Base
Price of one Share at the beginning of the Appreciation Period.



     1.44 Right Cash Out Payment means an amount, payable to a Participant that is the
holder of Rights, equal to the amount by which: (a)(i) the greatest of: (A) the Fair Market Value
of one Share, determined as of the date a Merger Sale Agreement is executed by the Company; (B) the
Fair Market Value of one Share, determined as of the day immediately preceding the date a Change in
Control occurs; and (C) the amount, if any, of cash payable with respect to one Share in connection
with the consummation of the Change in Control as provided for by the certificate filed with the
Delaware Secretary of State to effect the Change in Control; multiplied by (ii) the total number of
Shares represented by the Rights held by the Participant; exceeds (b) the aggregate Base Price of
the Shares used to calculate the value of the Rights held by the Participant, determined, with
respect to each Right, as of the date the Right was granted to the Participant and adjusted, if
applicable, pursuant to Section 3.02.



     1.45 Share means a share of Common Stock.



     1.46 Termination of Service means: (a) with respect to any Employee, his or her
ceasing to be employed by the Company and each of its Affiliates; (b) with respect to any
non-employee director, his or her ceasing to serve as a member of the Board of Directors; and (c)
with respect to any consultant or other service provider, that is a natural person, the termination



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of all consulting or other service providing arrangements which such consultant or service
provider has with the Company and each Affiliate of the Company.




     1.47 Unit means a unit of measurement equivalent to one Share, with none of the
attendant rights of a shareholder of such Share, (including among the rights which the holder of a
Unit does not have are the right to vote such Share and the right to receive dividends thereon),
except to the extent otherwise specifically provided herein.



ARTICLE 2.

AWARDS




     2.01 Form of Awards. Awards under the Plan may be made in the form of Options,
Restricted Shares, Restricted Units, Performance Shares, Performance Units and Rights. An Award in
any of the foregoing forms may be granted to any Eligible Person or to any group of Eligible
Persons, upon terms and conditions that differ from the terms and conditions upon which any other
Awards in the same form are made to other Eligible Persons or groups of Eligible Persons.



     2.02 Written Instrument. Each Award made to an Eligible Person under the Plan shall
be evidenced by a written instrument in such form as the Committee shall prescribe, setting forth
the terms and conditions of the Award. The instrument evidencing the grant of any Award hereunder
shall specify that the Award shall be subject to all of the terms and provisions of the Plan as in
effect from time to time but subject to the limitation on amendments set forth in Section 11.09 of
the Plan.



     2.03 Surrender and Exchange of Awards. The Committee may, in its discretion, grant an
Award to a Participant who has previously been granted an Award under the Plan or an award under
any other employee compensation or benefit plan maintained by the Company or any of its Affiliates
(any such previously granted Award or award being hereinafter referred to as a “Prior Award”), in
exchange for the surrender and cancellation of such Prior Award or any portion thereof. The new
Award so granted may, in the discretion of the Committee, be in a form which is different than
that of the Prior Award surrendered, and may be granted subject to terms and conditions that differ
from those to which the surrendered Prior Award were subject. Notwithstanding the foregoing, no
grant of a new Award in exchange for a Prior Award may be made hereunder unless: (a) the aggregate
fair value of the new Award does not exceed the aggregate fair value of the Prior Award, determined
as of the time the new Award is granted; and (b) the grant of the new Award would not constitute a
“repricing” of any Option or would not otherwise be treated as a “material revision” of the Plan.



     2.04 Limitations on Aggregate Amount of Certain Awards. Notwithstanding anything to
the contrary contained in this Plan, the maximum number of Shares issuable to any Participant over
any five (5) year period in connection with all Options, Performance Shares, Performance Units and
Rights granted to such Participant during any such five (5) year period shall not exceed Two
Hundred Thousand (200,000) Shares.



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ARTICLE 3.

SHARES SUBJECT TO THE PLAN




     3.01 Shares Available for Awards. Shares distributed in respect of Awards made under
the Plan may be authorized but unissued Shares, Shares held in the treasury of the Company or
Shares purchased by the Company on the open market at such time or times and in such manner as it
may determine. The Company shall be under no obligation to issue or acquire Shares in respect of
an Award made under the Plan before the time when delivery of Shares is due under the terms of the
Award. The number of Shares available for distribution in respect of Awards made under the Plan
shall be subject to the following limitations:



          (a) Subject to the provisions of Section 3.02 hereof, the aggregate number of Shares that may
be distributed in respect of Awards made under the Plan shall be limited to two million two hundred
fifty thousand (2,250,000) Shares. Of that aggregate number, no more than one million three
hundred fifty thousand (1,350,000) Shares in the aggregate shall be available for issuance pursuant
to grants of Restricted Shares and Restricted Units. The maximum number of Shares that are
available for issuance pursuant to Awards of Restricted Units shall not be reduced by Awards of
Restricted Units that are payable only in cash in an amount equal to the Fair Market Value of the
Restricted Units which are the subject of such Awards. The maximum aggregate number of Shares that
may be issued pursuant to all Awards of Incentive Stock Options and Rights granted under the Plan
shall not exceed nine hundred thousand (900,000) Shares.




          (b) Upon the grant of any Award, the overall aggregate number of Shares available for further
Awards under the Plan, and if the Award so granted was in a form subject to a limitation on the
aggregate number of Shares available for Awards in that form, the aggregate number of Shares
available for further Awards under the Plan in that form, shall be reduced by the number of Shares
subject to the Award so granted.




          (c) There shall be added back to the aggregate number of Shares available for the grant of
Awards under the Plan, as determined under (a) and (b) above, the following: (i) any Shares as to
which an Option granted hereunder has not been exercised at the time of its expiration,
cancellation or forfeiture; (ii) any Shares included in any other form of Award granted to an
Eligible Person hereunder, to the extent that the person’s right to receive such Shares, or any
cash payment in settlement of such Award, is forfeited; (iii) any Shares represented by Restricted
Units granted hereunder as to which payment is made in cash instead of by the issuance and delivery
of Shares; and (iv) any Shares subject to an Option granted hereunder, or covered by any other form
of Award made hereunder, to the extent such Option or other Award is surrendered in exchange for
any other Award made hereunder.




     3.02 Certain Adjustments to Shares. In the event of any change in the number of
outstanding Shares of Common Stock without receipt of consideration by the Company resulting from
any stock dividend, stock split, recapitalization, reorganization, merger, consolidation, split-up,
combination or exchange of Shares, or any rights offering to purchase Shares of Common Stock at a
price substantially below fair market value, or any similar change affecting the Shares of Common
Stock: (a) the maximum aggregate number and kind of Shares specified herein as available for the
grant of Awards, or for the grant of any particular form of Award, under the Plan; (b) the number
and kind of Shares that may be issued and delivered to



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Participants upon the exercise of any Option, or in payment with respect to any Award of
Restricted Shares or Performance Shares, that is outstanding at the time of such change; (c) the
number and kind of Shares represented by any Restricted Units, Performance Units, Rights or
Dividend Equivalent Units that are outstanding at the time of such change; (d) the number of Shares
represented by any Award of Rights; (e) the exercise price per share of any Options granted
hereunder that are outstanding at the time of such change; and (f) the Base Price established with
respect to any Rights granted hereunder that are outstanding at the date of such change, shall be
appropriately adjusted consistent with such change in such manner as the Compensation
Administration Committee, in its sole discretion, may deem equitable to prevent substantial
dilution or enlargement of the rights granted to, or available for, the Participants hereunder.




     In the case of any outstanding Incentive Stock Option, any such change shall be made in the
manner that satisfies the requirements that must be met under Section 424 of the Code in order for
such change not to be treated as a “modification” of such Option as defined under Section 424 of
the Code.



     The Committee shall give notice to each Participant of any adjustment made pursuant to this
Section and, upon such notice, such adjustment shall be effective and binding for all purposes.



     3.03 Listing and Qualification of Shares. The Company, in its discretion, may
postpone the issuance, delivery, or distribution of Shares with respect to any Award until
completion of such stock exchange listing or other qualification of such Shares under any state or
federal law, rule or regulation as the Company may consider appropriate, and may require any
Participant to make such representations and furnish such information as it may consider
appropriate in connection with the issuance or delivery of the Shares in compliance with applicable
laws, rules and regulations.



ARTICLE 4.

OPTIONS




     4.01 Awards of Options. Subject to the limitations set forth in Article 3 above and
to the other terms and conditions of the Plan, Options may be granted under the Plan to Eligible
Persons for the purchase of such number of Shares, at such times and, upon such terms and
conditions, as the Committee in its discretion may determine.



     4.02 Type of Options. Each Option granted hereunder shall be identified in the
instrument evidencing such grant as either: (a) an Option intended to be treated as an Incentive
Stock Option; or (b) an Option that shall be treated as a Non-Qualified Stock Option.



     4.03 Term of Options. The period of time during which an Option may be exercised
shall be such period of time as is determined by the Committee and specified in the instrument
setting forth the terms of the Option Award; provided that, in no event may the period of time
during which an Option may be exercised exceed ten (10) years from the Date of Grant of the Option.
Notwithstanding any other provision in this Plan to the contrary, no Option may be exercised after
its expiration.



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     4.04 Exercise of Options. Each Option granted hereunder shall become exercisable, in
whole or in part, at such time or times during its term as the instrument evidencing the grant of
such Option shall specify. To the extent that an Option has become exercisable, it may be
exercised thereafter, in whole or in part, at any time or from time to time prior to its
expiration, as to any or all Shares as to which the Option has become and remains exercisable,
subject to the provisions of Section 4.05 below.



     4.05 Termination of Service. Except as the instrument evidencing the grant of an
Option may otherwise provide, the portion of any outstanding Option held by an Eligible Person on
the date of his or her Termination of Service that has not become exercisable prior to such date,
and the portion of such Option which was exercisable but had not been exercised prior to the date
of the Eligible Person’s Termination of Service, shall be forfeited on such date.



     Notwithstanding the foregoing, if the Committee so determines, in its discretion, the
instrument evidencing the grant of an Option may provide that the portion of the Option that is
exercisable at the time of the Eligible Person’s Termination of Service will continue to be
exercisable, and that the portion of such Option that is not exercisable at such time will become
exercisable in accordance with the terms of the Option and remain exercisable thereafter, during
such period of time after the date on which the Eligible Person’s Termination of Service occurs
(but not beyond the expiration of the term of the Option), in such circumstances and subject to
such terms and conditions, as are specified in such instrument. However, to the extent that any
Option granted hereunder to an Employee as an Incentive Stock Option is exercised more than three
months after the date of such Employee’s Termination of Service for any reason other than
Disability, or more than one year after such date if the Employee’s Termination of Service occurred
because of Disability, the Option shall be treated as a Non-Qualified Stock Option for purposes of
the Plan.



     4.06 Exercise Price and Method of Exercise. The price at which Shares may be
purchased upon any exercise of an Option shall be the price per share determined by the Committee
and specified in the instrument evidencing the grant of such Option; provided that, in no event
shall the exercise price per Share be less than: (a) the Fair Market Value of a Share determined as
of the Date of Grant of the Option; or (b), if greater, the par value of a Share.



     An Option shall be exercised by delivery of a written notice of exercise, in a form
satisfactory to the Committee, to the Company at its principal business office and addressed to the
attention of the Company’s Secretary or such other person as the Company’s Secretary may have
designated to receive such notice. The notice shall specify the number of Shares with respect to
which the Option is being exercised. The notice shall be accompanied by payment of the exercise
price of the Shares for which the Option is being exercised, which payment shall be made under one
or more of the methods of payment provided in Section 4.07 below.



     4.07 Payment. Payment of the exercise price for Shares purchased upon the exercise of
an Option shall be made by one, or by a combination of any, of the following methods: (a) in cash,
which may be paid by check or other instrument acceptable to the Company, or by wire transfer of
funds, in each case in United States dollars; (b) if permitted by the Committee and subject to any
terms and conditions it may impose on the use of such methods, by: (i) the delivery to the Company
of other Shares owned by the Participant; provided that such shares have been owned by the
Participant for the requisite period necessary to avoid a charge to the



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Company’s earnings; or (ii) the surrender to the Company of Shares that otherwise would have
been delivered to the Participant upon exercise of the Option; (c) to the extent permissible under
applicable law, through any cashless exercise sale and remittance procedure that the Committee in
its discretion may from time to time approve; (d) to the extent permissible under applicable law
and permitted by the Committee, by the execution by the Participant and delivery to the Company of
a promissory note or other instrument evidencing the Participant’s agreement to pay part or all of
the Option exercise price on a deferred or installment payment basis, upon such terms and
conditions (including, without limitation, terms requiring Shares purchased upon the exercise of
the Option to be pledged to the Company to secure payment of any outstanding balance of the option
exercise price) as the Committee shall require; or (e) any other method of payment as the Committee
may from time to time approve.




     For purposes of determining the portion of the exercise price payable upon the exercise of an
Option that will be treated as satisfied by the delivery or surrender of Shares pursuant to clause
(b) (i) or (ii) above, Shares so delivered or surrendered shall be valued at their Fair Market
Value determined as of the business day next preceding the date on which the Option is exercised .



     4.08 Incentive Stock Options. Notwithstanding any other provisions of the Plan,
Incentive Stock Options granted under the Plan shall be subject to the following provisions:



          (a) No Incentive Stock Option may be granted under the Plan after February 9, 2015.




          (b) To the extent that the aggregate Fair Market Value of Shares with respect to which
Incentive Stock Options granted under the Plan and under all other stock option plans maintained by
the Company are exercisable for the first time by a Participant during any calendar year exceeds
$100,000, the Incentive Stock Options so exercisable shall be treated as Non-Qualified Stock
Options. For purposes of the foregoing, the Fair Market Value of Shares as to which any Incentive
Stock Option may be exercised shall be determined as of the Date of Grant of such Option. The
determination of whether the limitation set forth in the first sentence of this Section 4.08(b)
applies with respect to any Incentive Stock Option granted under the Plan shall be made in
accordance with applicable provisions of Section 422 of the Code and the regulations issued
thereunder.




          (c) No Incentive Stock Option shall be granted to an Employee if, as of the Date of Grant of
such Option, such Employee owns stock possessing more than ten percent of the total combined voting
power of all classes of stock of the Company, unless: (i) the exercise price per Share under such
Option is at least 110% percent of the Fair Market Value of a Share determined as of the Date of
Grant of such Option; and (ii) such Option is not exercisable after the expiration of five (5)
years from the Date of Grant of such Option. If an Option, designated as an Incentive Stock
Option, is granted to an Employee who owns more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company and either the price per Share at which the Option is
exercisable or the date on which the Option expires does not satisfy the limitations specified
above, such Incentive Stock Option shall be treated as a Non-Qualified Stock Option.




11









 








          (d) The instrument evidencing the grant of any Incentive Stock Option shall require that if
any Shares acquired upon the exercise of such Option are disposed of within 2 years from the Date
of Grant of such Option, or within one year from the date as of which the Shares disposed of were
transferred to the Participant pursuant to the exercise of such Option, the Participant shall give
the Company written notice of such disposition, within ten days following the date of such
disposition.




     4.09 Other Option Provisions. The instrument evidencing the grant of any Option
hereunder may contain such other terms and conditions, not inconsistent with the provisions of the
Plan or any applicable law, as the Committee may determine.



     4.10 Rights of a Shareholder. Upon the exercise by a Participant of an Option or any
portion thereof in accordance with the Plan, the provisions of the instrument evidencing the grant
of such Option and any applicable rules and regulations established by the Committee and the
issuance to the Participant of a certificate representing the Shares with respect to which the
Option has been exercised, the Participant shall have all of the rights of a stockholder of the
Company with respect to the Shares issued as a result of such exercise. Prior to the issuance to a
Participant of a certificate representing Shares issuable to the Participant upon his or her
exercise of an Option, the Participant shall not have any rights as a stockholder of the Company
with respect to such Shares.



ARTICLE 5.

RESTRICTED SHARES AND RESTRICTED UNITS




     5.01 Awards of Restricted Shares and Restricted Units. Subject to the limitations set
forth in Article 3 and to the other terms and conditions of the Plan, Restricted Shares and
Restricted Units may be granted to such Eligible Persons, at such times, and in such amounts, as
the Committee may determine in its discretion. In addition to Awards of Restricted Shares or
Restricted Units which may be made to any Eligible Person in recognition of services provided to
the Company and its Affiliates or as an incentive for such Eligible Person to continue to
contribute to the profitability and growth of the Company and its Affiliates, the Company has,
effective as of May 19, 2005, adopted a framework under which a specific type of Restricted Unit
Awards will be made, which framework is known as the Gibraltar Industries, Inc. Management Stock
Purchase Plan (the “MSPP”). The MSPP is intended to be treated as an integral part of this Plan
and provides for the granting of Awards of Restricted Units to Eligible Persons in consideration
for and recognition of the agreement of such Eligible Persons to authorize the Company to credit
Restricted Units to an account established for the benefit of such Eligible Persons under the MSSP
in lieu of the payment to such Eligible Persons of a portion of the base salary and/or a portion of
the annual incentive bonus (in the case of an Eligible Person that is an Employee) or all or part
of the Director fees (in the case of an Eligible Person that is a member of the Company’s Board of
Directors) which such Eligible Persons would otherwise be entitled to receive from the Company and
its Affiliates. In this regard, the maximum number of Shares that may be issued pursuant to grants
of Restricted Shares and Restricted Units (as provided by Section 3.01(a)) shall be reduced by
Awards of Restricted Shares and Restricted Units made to Eligible Persons  under the terms of the
MSPP.



     5.02 Restrictions and Restricted Period. At the time of each grant of Restricted
Shares or Restricted Units to any Participant, the Committee shall establish a period of time
within which the Restricted Shares or Restricted Units covered by such grant (and the Participant’s
right to receive payment with respect to such Restricted Units) may not be sold, assigned,
transferred (other than a transfer to the Participant’s Beneficiary occurring by reason of the
Participant’s



12









 




death), made subject to gift, or otherwise disposed of, or mortgaged, pledged or otherwise
encumbered, whether voluntarily or by operation of law. The Committee in its discretion may
prescribe a separate Restricted Period for any specified portion of the Restricted Shares or
Restricted Units granted pursuant to any Award.




     5.03 Rights While Restricted Shares Remain Subject to Restrictions. Restricted Shares
granted to a Participant hereunder may be issued to the Participant as of the Date of Grant as
uncertificated shares or as Shares represented by a stock certificate bearing a legend or legends
making appropriate references to the Restrictions. Until the Restrictions which apply to
Restricted Shares lapse in accordance with the provisions of Section 5.05 below or Section 9.01(c),
the Restricted Shares granted to a Participant which are not certificated shall be held in the
Participant’s name in a bookkeeping account maintained by the Company and Restricted Shares granted
to a Participant and represented by a stock certificate shall continue to bear the legend or
legends making reference to the Restrictions. A separate account shall be maintained for all
Restricted Shares granted to a Participant with a Restricted Period ending on the same date.



     Except for the Restrictions which apply to Restricted Shares, and subject to the forfeiture
provisions applicable under Section 5.06 below, a Participant shall have, with respect to all
Restricted Shares so held for his account, all of the rights of a stockholder of the Company,
including full voting rights with respect to such Shares and the right to receive currently with
respect to the Participant’s Restricted Shares all dividends and other distributions payable
generally on the Company’s Shares. If any dividends or distributions so payable are paid in Shares,
the Shares paid as a dividend or distribution with respect to a Participant’s Restricted Shares
shall be subject to the same Restrictions and provisions relating to forfeiture as apply to the
Restricted Shares with respect to which they were paid. Such stock dividend Shares shall
themselves be treated as Restricted Shares, and shall be credited to the same account which the
Company maintains for those Restricted Shares of the Participant with respect to which such stock
dividends or distributions were paid.



     Notwithstanding the foregoing, if the instrument evidencing the grant of any Restricted Shares
to a Participant so provides, all cash dividends and distributions payable generally on the
Company’s Shares that are otherwise payable with respect to the Restricted Shares granted to the
Participant shall not be paid currently to the Participant but instead, shall be applied to the
purchase of additional Shares for the Participant’s account. The additional Shares so purchased
shall be subject to the same Restrictions and provisions relating to forfeiture as apply to the
Restricted Shares with respect to which they were paid. Such additional Shares shall themselves be
treated as Restricted Shares, and shall be credited to the same account which the Company maintains
for those Restricted Shares of the Participant with respect to which such dividends or
distributions were paid. The purchase of any such additional Shares shall be made in accordance
with such other procedure as may be specified in the instrument evidencing the grant of the
Restricted Shares on which such dividends are paid.



     5.04 Rights While Restricted Units Remain Subject to Restrictions. No Shares shall be
issued at the time an award of Restricted Units is made. Except as provided in the following
paragraph or otherwise provided by the instrument evidencing an Award of Restricted Units, a
Participant that is the holder of an Award of Restricted Units shall not have any rights as a
shareholder with respect to such Restricted Units. Restricted Units granted to a Participant



13









 




hereunder shall be credited to a bookkeeping account maintained by the Company for the
Participant. A separate account shall be maintained for all Restricted Units granted to a
Participant with a Restricted Period ending on the same date and for all Dividend Equivalent Units
that are to be credited to such account in accordance with the next following paragraph.




     If any dividends or other distributions payable on the Company’s Shares are paid in Shares
during any period that a Participant holds an Award of Restricted Units, as of the applicable
Dividend Payment Date, a number of additional Restricted Units shall be credited to each account
established for the Participant to reflect the number of Restricted Units held by the Participant
as of such Dividend Payment Date. The number of additional Restricted Units to be credited shall
be determined by first multiplying: (a) the total number of Restricted Units standing to
the Participant’s credit in such account on the day immediately preceding such Dividend Payment
Date (including all Dividend Equivalent Units credited to such account on all previous Dividend
Payment Dates); by (b) the per share dollar amount of the dividend paid on such Dividend Payment
Date; and then, (c) dividing the resulting amount by the Fair Market Value of one Share on
such Dividend Payment Date. Dividend Equivalent Units awarded pursuant to this paragraph to a
Participant that holds an Award of Restricted Units shall have the same Restricted Period as the
Restricted Units with respect to which such Dividend Equivalent Units have been awarded.



     5.05 Lapse of Restrictions and Payment. Upon the expiration of the Restricted Period
for any Restricted Shares or Restricted Units granted to a Participant hereunder but subject to the
provisions of Section 5.06 below, the Restrictions applicable to such Restricted Shares or
Restricted Units shall lapse, and payment with respect to such Restricted Shares or Restricted
Units (including any related Dividend Equivalent Units) shall be made in accordance with the
following provisions:



          (a) In the case of Restricted Shares, payment shall be made by delivery to the Participant of
a stock certificate for the number of such Restricted Shares, free and clear of all Restrictions to
which such shares were subject. However, if the Restricted Shares with respect to which the
applicable Restrictions have lapsed includes a fractional Share, payment for such fractional Share
shall be made in cash, in an amount equal to the Fair Market Value of such fractional Share
determined as of the date on which such Restrictions lapsed. Delivery of such stock certificate
and any such cash payment shall be made to the Participant as soon as practicable following the
lapse of the applicable Restrictions.




          (b) In the case of Restricted Units (including related Dividend Equivalent Units), payment
shall be made: (i) in all cases other than Restricted Units issued in connection with the MSPP, by
the issuance and delivery to the Participant of a stock certificate for a number of Shares equal to
the number of whole Restricted Units and related Dividend Equivalent Units with respect to which
the applicable Restrictions have lapsed, and (ii) by payment in cash for any fractional Restricted
Unit payable as a result of the lapse of such Restrictions, in an amount equal to the Fair Market
Value of such fractional Restricted Unit determined as of the date as of which such Restrictions
lapsed. In the case of Restricted Units issued pursuant to the terms of the MSPP, payment shall be
made, in cash, in an amount and at the time provided for in the MSPP. Issuance of certificates for
Shares shall be made in such manner and at such time or times as provided in such instrument.
Unless otherwise provided by the instrument evidencing a grant of Restricted Units, payment with
respect to any part or all of a Participant’s Restricted Units




14









 







(including related Dividend Equivalent Units) may be deferred, at the Participant’s election,
upon such terms and conditions as are specified by the Participant, in writing, subject to the
restrictions on deferral of compensation contained in Code Section 409A.




     5.06 Termination of Service. Except as the instrument evidencing the grant of
Restricted Shares or Restricted Units may otherwise provide, upon an Eligible Person’s Termination
of Service for any reason prior to the expiration of the Restricted Period which is in effect for
any Restricted Shares or Restricted Units (and related Dividend Equivalent Units) standing to his
or her credit immediately prior to such Termination of Service, the Eligible Person’s right to
receive payment with respect to such Restricted Shares, Restricted Units and Dividend Equivalent
Units shall be forfeited and cancelled as of the date of such Termination of Service, and no
payment of any kind shall be made with respect to such Restricted Shares, Restricted Units and
Dividend Equivalent Units.



     Notwithstanding the foregoing, if the Committee so determines, in its discretion, the
instrument evidencing the Award of such Restricted Shares or Restricted Units may provide that if
the Eligible Person’s Termination of Service occurs prior to the end of the Restricted Period
established for such Restricted Shares or Restricted Units as a result of the Eligible Person’s
death, Disability or Retirement (but not for any other reason), payment will be made with respect
to all or a Pro Rata Portion of such Restricted Shares or Restricted Units and any related Dividend
Equivalent Units. In such case, only the Eligible Person’s right to receive payment with respect
to any remaining portion of the Restricted Shares or Restricted Units (and related Dividend
Equivalent Units) for which such Restricted Period was established shall be cancelled and
forfeited. Any payment required to be made with respect to an Eligible Person’s Restricted Shares
or Restricted Units (and related Dividend Equivalent Units) pursuant to this paragraph shall be
made as soon as practicable after the date of such Eligible Person’s Termination of Service, and
shall be made in the manner specified in Section 5.05.



     Notwithstanding the provisions of Section 5.03 or of the above and notwithstanding the absence
of the provisions of this paragraph from provisions of any instrument containing the provisions of
an Award issued prior to the effective date of this Amendment and Restatement, if an Eligible
Person’s Termination of Service occurs, for any reason, prior to the expiration of the Restricted
Period which is in effect for an Award of Restricted Shares, the Eligible Person shall, upon such
Termination of Service, be deemed to forfeit his right to all cash dividends received with respect
to the portion of the Restricted Shares previously awarded to such Eligible Person with respect to
which the Restrictions have not lapsed. In connection with the forfeiture by an Eligible Person of
the cash dividends received by the Eligible Person with respect to the Restricted Shares previously
awarded to the Eligible Person with respect to which the Restrictions have not lapsed, the Eligible
Person shall be obligated to pay to the Company, no later than thirty (30) days following such
Eligible Person’s Termination of Service, the amount of the dividends received by such Eligible
Person which is deemed to be forfeited pursuant to the provision of the preceding sentence. In
connection with the foregoing, if, pursuant to the provisions of the preceding paragraph, the
Committee has provided in the instrument evidencing the Award of Restricted Shares that the
Eligible Person’s right to receive payment for all or a Pro Rata portion of the Restricted Shares
will not be forfeited if the Eligible Person’s Termination of Service occurs prior to the end of
the Restricted Period established for such Restricted Shares as a result of the Eligible Person’s
death, Disability or Retirement (but not for any other reason), the



15









 




Eligible Person will not forfeit his right to all cash dividends received with respect to the
portion of Restricted Shares as to which the Restrictions have not lapsed and such Eligible Person
shall be entitled to retain all or a portion of such cash dividends.




     5.07 Notice of Code Section 83(b) Election. A Participant who files an election under
Section 83(b) of the Code to include in gross income the Fair Market Value of any Restricted Shares
granted hereunder while such Shares are still subject to Restrictions shall furnish the Company
with a copy of the election so filed by the Participant, within ten days of the filing of such
election with the Internal Revenue Service.



ARTICLE 6.

PERFORMANCE SHARES AND PERFORMANCE UNITS




     6.01 Awards of Performance Shares and Performance Units. Subject to the limitations
set forth in Article 3 and to the other terms and conditions of the Plan, Performance Shares or
Performance Units may be granted to such Eligible Persons, at such times, in such amounts, and
upon such terms and conditions, as the Committee may determine in its discretion. Performance
Shares and Performance Units shall be granted in accordance with the provisions set forth below.



     6.02 Establishment of Performance Goals and Performance Targets. In connection with
each Award of Performance Shares or Performance Units, the Committee shall establish in writing,
and the instrument evidencing the grant of such Award shall specify: (a) the Performance Goal or
Goals and the Performance Period that will apply with respect to such Award; (b) the level or
levels of achievement of the Performance Goal or Goals that must be met in order for payment to be
made with respect to the Award; (c) the number of Performance Shares that will be issued and
delivered to the recipient of the Award, or the percentage of the Performance Units (and any
related Dividend Equivalent Units) credited to the recipient in connection with the Award as to
which payment will be made, if the Performance Goal or Goals applicable to such Award: (i) have
been fully achieved; (ii) have been exceeded; or (iii) have not been fully achieved but have been
achieved at or beyond any minimum or intermediate level of achievement specified in the instrument
evidencing the grant of such Award; and (d) such other terms and conditions pertaining to the Award
as the Committee in its discretion may determine. In connection with any such Award made to any
Covered Executive, the matters described in the preceding sentence shall be established within such
period of time as may be permitted by the regulations issued under Section 162(m) of the Code.



     6.03 Rights While Performance Shares Remain subject to Achievement of Performance
Goals. Performance Shares granted to a Participant hereunder may be issued to the Participant
as of the Date of Grant as uncertificated shares or as Shares represented by a stock certificate
bearing a legend or legends making appropriate reference to the restrictions on transferability of
such Performance Shares as hereinafter set forth. Until the Performance Period which applies to
the Performance Shares expires, the Performance Shares granted to a Participant which are not
certificated shall be held in the Participant’s name in a bookkeeping account maintained by the
Company and Performance Shares granted to a Participant and represented by a stock certificate
shall continue to bear the legend or legends making reference to the restrictions on
transferability of such Performance Shares as hereinafter set forth.



          Until the Performance Period which applies to an award of Performance Shares



16









 




has expired, the Performance Shares shall not be sold, assigned, transferred (other than a
transfer to the Participant’s Beneficiary occurring by reason of the Participant’s death), made
subject to gift or otherwise disposed of, mortgaged, pledged or otherwise encumbered, whether
voluntarily or by operation of law. A separate account shall be maintained for all Performance
Shares granted to a Participant with a Performance Period ending on the same date.




     Except for the restrictions on transferability which apply to Performance Shares, and subject
to the forfeiture provisions applicable under Section 6.10 below, a Participant shall have, with
respect to all Performance Shares so held for his account, all of the rights of a stockholder of
the Company, including full voting rights with respect to such Shares and the right to receive
currently with respect to the Participant’s Performance Shares, all dividends and other
distributions payable generally on the Company’s Shares. If any dividends or distributions so
payable are paid in Shares, the Shares paid as a dividend or distribution with respect to a
Participant’s Performance Shares shall be subject to the same Performance Goals and provisions
relating to forfeiture as apply to the Performance Shares with respect to which they were paid.
Such stock dividend Shares shall themselves be treated as Performance Shares, and shall be credited
to the same account which the Company maintains for those Performance Shares of the Participant
with respect to which such stock dividends or distributions were paid.



     Notwithstanding the foregoing, if the instrument evidencing the grant of any Performance
Shares to a Participant so provides, all cash dividends and distributions payable generally on the
Company’s Shares that are otherwise payable with respect to the Performance Shares granted to the
Participant shall not be paid currently to the Participant but instead, shall be applied to the
purchase of additional Shares for the Participant’s account. The additional Shares so purchased
shall be subject to the same Performance Goals and provisions relating to forfeiture as apply to
the Performance Shares, and shall be credited to the same account which the Company maintains for
those Performance Shares of the Participant with respect to which such dividends or distributions
were paid. The purchase of any such additional Shares shall be made in accordance with such other
procedure as may be specified in the instrument evidencing the grant of the Performance Shares on
which such dividends are paid.



     6.04 Rights While Performance Units Remain Subject to Achievement of Performance
Goals. No Shares shall be issued at the time an Award of Performance Units is made. Except as
provided in the following paragraph or otherwise provided in the instrument evidencing an Award of
Performance Units, a Participant that is the holder of an Award of Performance Units shall not have
any rights of a shareholder with respect to such Performance Units. Performance Units granted to a
Participant hereunder shall be credited to a bookkeeping account maintained by the Company for the
Participant. A separate account shall be maintained for all Performance Units granted to a
Participant with a Performance Period ending on the same date and for all Dividend Equivalent Units
that are to be credited to such account in accordance with the following paragraph.



          If any dividends or other distributions payable on the Company’s Shares are paid in Shares
during any period that a Participant holds an Award of Performance Units, as of the applicable
Dividend Payment Date, a number of additional Performance Units shall be credited to each account
established for the Participant to reflect the number of Performance Units held by the Participant
as of such Dividend Payment Date. The number of such additional



17









 






Performance Units to be credited shall be determined by first multiplying: (a) the
total number of Performance Units standing to the Participant’s credit in such account on the day
immediately preceding such Dividend Payment Date (including all Dividend Equivalent Units credited
to such account on all previous Dividend Payment Dates); by (b) the per Share dollar amount of the
dividend paid on such Dividend Payment Date; and then, (c) dividing the resulting
amount by the Fair Market Value of one Share on such Dividend Payment Date. Dividend Equivalent
Units awarded pursuant to this paragraph to a Participant that holds an Award of Performance Units
shall have the same Performance Goals and Performance Period as the Performance Units with respect
to which such Dividend Equivalent Units have been awarded.




     6.05 Performance Goals for Covered Executives. In the case of any Award of
Performance Shares or Performance Units to any Eligible Person who is a Covered Executive, the
Performance Goal or Goals established in connection with such Award shall be based on one or more
of the following business criteria, as determined by the Committee in its discretion: (a) the
attainment of specified levels of, or increases in, the Company’s after-tax or pretax return on
stockholder’s equity; (b) the attainment of specified levels in the fair market value of the
Company’s Shares; (c) the attainment of specified levels of growth in the value of an investment in
the Company’s Shares, assuming that all dividends paid on the Company’s Common Stock are reinvested
in additional Shares; (d) the attainment of specified levels of, or increases in, the Company’s
pre-tax or after-tax earnings, profits, net income, or earnings per share; (e) the attainment of
specified levels of, or increases in, the Company’s earnings before income tax, depreciation and
amortization (EBITDA); (f) attainment of specified levels of, or increases in, the Company’s net
sales, gross revenues or cash flow from operations; (g) the attainment of specified levels of, or
increases in, the Company’s working capital, or in its return on capital employed or invested; (h)
the attainment of specified levels of, or decreases in, the Company’s operating costs or any one or
more components thereof, or in the amount of all or any specified portion of the Company’s debt or
other outstanding financial obligations; and (i) such other business performance criteria as may,
from time to time, be established by the Committee in the instrument which contains the Award of
Performance Shares or Performance Units.



     Any of the business criteria described in the preceding paragraph which the Committee
establishes as a Performance Goal may be measured either by the performance of the Company and its
Affiliates on a consolidated basis, or by the performance of any one or more of the Company’s
subsidiaries, divisions, or other business units, as the Committee in its discretion may determine.
In its discretion, the Committee may also establish Performance Goals, based on any of the
business criteria described in this Section 6.05, that require the attainment of a specified level
of performance of the Company, or any of its subsidiaries, divisions or other business units,
relative to the performance of other specified corporations, in order for such Performance Goals to
be met.



     The Committee may also, in its discretion, include in any Performance Goal the attainment of
which depends on a determination of the net earnings or income of the Company or any of its
subsidiaries, divisions or other business units, provisions which require such determination to be
made by eliminating the effects of any decreases in or charges to earnings for: (a) the effect of
foreign currency exchange rates; (b) any acquisitions, divestitures, discontinuances of business
operations, restructurings or other special charges; (c) the cumulative effect of any accounting
changes; and (d) any “extraordinary items” as determined



18









 




under generally accepted accounting principles, to the extent that such decreases or charges
referred to in clauses (a) through (d) of this paragraph are separately disclosed in the Company’s
Annual Report for each fiscal year within the applicable Performance Period.




     6.06 Performance Goals for Non-Covered Executives. In the case of Awards of
Performance Shares or Performance Units made hereunder to Eligible Persons who are not Covered
Executives, the Performance Goal or Goals applicable to such Awards shall be such corporate or
individual goals as the Committee in its discretion may determine.



     6.07 Measurement of Performance. At the end of the Performance Period established in
connection with any Award of Performance Shares or Performance Units, the Committee shall determine
the extent to which the Performance Goal or Goals established for such Award have been met, and
shall determine, on that basis, the number of Performance Shares or Performance Units included in
such Award that have been earned and as to which payment will be made pursuant to Section 6.09
below, subject to the adjustments provide for in Section 6.08 and the forfeiture provisions of
Section 6.10. In the case of any Award granted to a Covered Executive, unless the Committee shall
certify in writing the extent to which it has determined that the Performance Goal or Goals
established by it for such Award have been met, the issuance of Performance Shares to the Covered
Executive shall be subject to Section 162(m) of the Code.



     6.08 Adjustment of Award Amounts. The number of Shares issuable with respect to an
Award on the basis of the level of attainment of the applicable Performance Goals as determined by
the Committee under Section 6.07 shall be subject to adjustment in accordance with the following
provisions:



          (a) To the extent not inconsistent with the terms of the Plan and if the instrument evidencing
the Award so provides, the number of Shares otherwise issuable with respect to an Award to an
Eligible Person who is not a Covered Executive may be increased or decreased to the extent
determined by the Committee in its discretion, based on the Committee’s evaluation of the Eligible
Person’s individual performance or to reflect such other events, circumstances or factors as the
Committee in its discretion deems appropriate in determining the extent to which payment should be
made with respect to the Eligible Person’s Award.




          (b) Notwithstanding the provisions of Section 6.08(a) above, the Committee shall not have any
authority to increase the number of Shares otherwise issuable with respect to any Award of
Performance Shares or Performance Units to a Covered Executive. However, if the instrument
evidencing an Award to a Covered Executive so provides, the Committee may, in its discretion,
reduce the number of Shares otherwise issuable with respect to such Award: (i) to reflect any
decreases in or charges to earnings that were not taken into account pursuant to clause (a), (b),
(c), or (d) of the last paragraph of Section 6.05 in determining net earnings or income for
purposes of any Performance Goal established in connection with such Award; (ii) to reflect any
credits to earnings for extraordinary items of income or gain that were taken into account in
determining net earnings or income for such purposes; (iii) to reflect the Committee’s evaluation
of the Covered Executive’s individual performance; or (iv) to reflect any other events,
circumstances or factors which the Committee believes to be appropriate in determining the extent
to which payment should be made with respect to the Covered Executive’s Award.




19









 








     6.09 Payment of Awards. Payment with respect to that number of Performance Shares or
Performance Units subject to any Award which the Committee has determined under Section 6.07 above
to have been earned, as adjusted to the extent determined by the Committee under Section 6.08,
shall be made in accordance with the following provisions:



          (a) In the case of any such Performance Shares, payment shall be made by the issuance and
delivery to the Participant of a stock certificate for the requisite number of such Shares free of
the legends making reference to restrictions on transferability of the Performance Shares provided
for by this Plan. However, if the Performance Shares with respect to which payment is to be made
include a fractional Share, payment of such fractional Share shall be made in cash, in an amount
equal to the Fair Market Value of such fractional Share determined as of the end of the Performance
Period. Such Shares shall be issued and delivered, and, if applicable, such cash payment shall be
made, to the Participant as soon as practicable after the end of the Performance Period applicable
to the Award in question.




          (b) In the case of Performance Units, (including related Dividend Equivalent Units), payment
shall be made: (i) by the issuance and delivery to the Participant of a stock certificate for a
number of Shares equal to the total number of such whole Performance Units and related Dividend
Equivalent Units; and (ii) by payment in cash for any fractional Unit in an amount equal to the
Fair Market Value of such fractional Unit determined as of the day immediately preceding the date
as of which payment is to be made. Payment shall be made in such manner and at such time or times
as provided in such instrument. Unless otherwise provided by the instrument evidencing the grant
of Performance Units, issuance of certificates for Shares with respect to any part or all of a
Participant’s Performance Units (including any related Dividend Equivalent Units) may be deferred,
at the Participant’s election, upon such terms and conditions as are specified by the Participant,
in writing, subject to the restrictions on deferral of compensation contained in Code Section 409A.




     6.10 Termination of Service. Except as the instrument evidencing the grant of
Performance Shares or Performance Units may otherwise provide, upon an Eligible Person’s
Termination of Service for any reason prior to the end of the Performance Period established for
any Award of Performance Shares or Performance Units, such Award shall be cancelled, all
Performance Shares or Performance Units included in such Award, and all Dividend Equivalent Units
that were credited with respect to such Performance Shares or Performance Units, shall be
forfeited, and no payment of any kind shall be made with respect to such Award.



     Notwithstanding the foregoing, if the Committee so determines, in its discretion, the
instrument evidencing any such Award may provide that if the Eligible Person’s Termination of
Service occurs prior to the end of the Performance Period established for such Award as a result of
the Eligible Person’s death, Disability or Retirement (but not for any other reason), payment will
be made at the end of the Performance Period, in accordance with the provisions of Section 6.09,
with respect to all or a Pro Rata Portion of the number of Shares and/or the amount of cash that
otherwise would have been payable to the Eligible Person, as determined in accordance with the
provisions of Sections 6.07 and 6.08, if the Eligible Person’s Termination of Service had not
occurred prior to the end of such Performance Period. In such case, only the Eligible Person’s
right to receive payment with respect to any remaining portion of the Performance Shares or
Performance Units (and related Dividend Equivalent Units) included in such Award shall be cancelled
and forfeited.



20









 





     Notwithstanding the provisions of Section 6.03 above and notwithstanding the absence of the
provisions of this paragraph from provisions of any instrument containing the provisions of an
Award issued prior to the effective date of this Amendment and Restatement, if an Eligible Person’s
Termination of Service occurs, for any reason, prior to the expiration of the Performance Period
which is in effect for an Award of Performance Shares, the Eligible Person shall, upon such
Termination of Service, be deemed to forfeit his right to all cash dividends received with respect
to the portion of the Performance Shares previously awarded to such Eligible Person with respect to
which the Restrictions have not lapsed. In connection with the forfeiture by an Eligible Person of
the cash dividends received by the Eligible Person with respect to the Performance Shares
previously awarded to the Eligible Person with respect to which the Restrictions have not lapsed,
the Eligible Person shall be obligated to pay to the Company, no later than thirty (30) days
following such Eligible Person’s Termination of Service, the amount of the dividends received by
such Eligible Person which is deemed to be forfeited pursuant to the provision of the preceding
sentence. In connection with the foregoing, if, pursuant to the provisions of the preceding
paragraph, the Committee has provided in the instrument evidencing the Award of Performance Shares
that the Eligible Person shall have the right to receive payment for Performance Shares awarded to
the Eligible Person if the Eligible Person’s Termination of Service occurs prior to the end of the
Performance Period established for such Performance Shares as a result of the Eligible Person’s
death, Disability or Retirement (but not for any other reason), the Eligible Person will not
forfeit his right to all cash dividends received with respect to the portion of Performance Shares
as to which the Restrictions have not lapsed and that such Eligible Person shall be entitled to
retain all or a portion of such cash dividends.



     6.11 Notice of Code Section 83(b) Election. A Participant who files an election under
Section 83(b) of the Code to include in gross income the Fair Market Value of any Performance
Shares granted hereunder while such Shares are still subject to achievement of Performance Goals
shall furnish the Company with a copy of the election so filed by the Participant within ten (10)
days of the filing of such election with the Internal Revenue Service.



ARTICLE 7.

RIGHTS




     7.01 Awards of Rights. (a) Subject to the limitations set forth in Article 3
above and to the other terms and conditions of the Plan, Rights may be granted under the Plan to
any Eligible Person at such times and upon such terms and conditions as the Committee, in its
discretion may determine. Rights shall be granted in accordance with the provisions of this
Article 7.



          (b) The terms of the instrument which contains the terms of an Award of Rights shall specify
the number of Shares which shall be used as the basis for determining the value of the Rights at
the end of the Appreciation Period and the Base Price in effect for those Shares.




          (c) Rights shall be exercisable at such time and upon such terms as may be established by the
Committee in the instrument setting forth the terms of the Award; provided
that, in no event shall the period of time that an Award of Rights is exercisable extend
beyond the ten (10) year period beginning on the Date of Grant.




21









 








          (d) Rights shall be subject to the same transferability restrictions applicable to all Awards
and may not be transferred during the holder’s lifetime, except to one or more family members as
provided in Section 8.02.




          (e) The holder of a Right shall not have any stockholder rights with respect to the Shares
used to determine the value of the Right.




     7.02 Dividend Equivalent Units. If any dividends or other distributions payable on
the Company’s Shares are paid in Shares during any period that a Participant holds an Award of
Rights, as of the applicable Dividend Payment Date, a number of additional Rights shall be credited
to any account established for the Participant to reflect the number of Rights held by the
Participant as of such Dividend Payment Date. The number of such additional Rights to be credited
shall be determined by first multiplying: (a) the total number of Rights standing to the
Participant’s credit in such account on the day immediately preceding such Dividend Payment Date
(including all Dividend Equivalent Units credited to such account on all previous Dividend Payment
Dates); by (b) the per share dollar amount of the dividend paid on such Dividend Payment Date; and
then (c) dividing the resulting amount by the Fair Market Value of one Share on such
Dividend Payment Date. Additional Rights awarded pursuant to this Section to a Participant that
holds an Award of Rights shall be exercisable at the same time and upon the same terms as the
Rights with respect to which such additional Rights are to be issued; provided that, the Base Price
of such rights shall be equal to the Fair Market Value of a Share, determined as of the applicable
Dividend Payment Date.



     7.03 Termination of Service. Except as the instrument evidencing the grant of an
Award of Rights may otherwise provide, upon an Eligible Person’s Termination of Service for any
reason prior to the expiration of the Appreciation Period which is in effect for any Right (and
related Dividend Equivalent Units) standing to his or her credit immediately prior to such
Termination of Service, the Eligible Person’s right to exercise such Right shall be forfeited and
cancelled as of the date of such Termination of Service, and no payment of any kind shall be made
with respect to such Right and related Dividend Equivalent Units.



          Notwithstanding the foregoing, if the Committee so determines, in its discretion, the
instrument evidencing the Award of such Right may provide that if the Eligible Person’s Termination
of Service occurs prior to the end of the Appreciation Period established for such Right as a
result of the Eligible Person’s death, Disability or Retirement (but not for any other reason),
payment will be made with respect to all or a Pro Rata Portion of such Right and any related
Dividend Equivalent Units. In such case, only the Eligible Person’s right to receive payment with
respect to any remaining portion of the Right (and related Dividend Equivalent Units) for which
such Appreciation Period was established shall be cancelled and forfeited. Any payment required to
be made with respect to an Eligible Person’s Right (and related Dividend Equivalent Units) pursuant
to this paragraph shall be made as soon as practicable after the date of such person’s Termination
of Service, and shall be made in the manner specified in Section 7.04.




     7.04 Payment of Awards. In the case of Rights, (including related Dividend Equivalent
Units), payment shall be made: (a) by the issuance and delivery to the Participant of a
stock certificate for a number of Shares having a Fair Market Value on the date the Rights are
exercised equal to: (i) the aggregate Fair Market Value of the Shares used as the basis for
determining the value of the Rights being exercised, determined as of the date the Rights are



22









 




exercised; minus (ii) the aggregate Base Price in effect for the Rights being exercised; and (b) by
payment in cash for any fractional Shares which would be issued using the formula contained in (a)
above. Issuance of certificates for Shares shall be made in such manner and at such time or times
as provided in such instrument. Unless otherwise provided by the instrument evidencing the grant
of Rights, issuance of certificates for Shares with respect to any part or all of a Participant’s
Rights (including any related Dividend Equivalent Units) may be deferred, at the Participant’s
election, upon such terms and conditions as are specified by the Participant, in writing, subject
to the restrictions on deferral of compensation contained in Code Section 409A.




ARTICLE 8.

TRANSFERABILITY OF AWARDS




     8.01 Restrictions on Transfers. Except as otherwise provided by Section 8.02 below:
(a) any Option granted to an Eligible Person under the Plan shall be nontransferable and may be
exercised during the Eligible Person’s lifetime only by the Eligible Person; (b) any Restricted
Shares, Restricted Units, Performance Shares, Performance Units and Rights granted to an Eligible
Person under the Plan shall not be transferrable by the Eligible Person during his or her lifetime;
and (c) a Participant’s right to receive payment of Shares or cash with respect to any Award
granted to the Participant under the Plan shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by
creditors of the Participant.



     8.02 Permitted Transfers. Notwithstanding the provisions of Section 8.01 above, if
the instrument evidencing the grant of any Award other than an Incentive Stock Option so provides,
the recipient of such Award may transfer his or her rights with respect to such Award, or any
portion thereof, to any “family member” of the recipient, as that term is defined in the General
Instructions to Form S-8 promulgated by the Securities and Exchange Commission under the Securities
Act of 1933, as amended, subject to such limitations, terms and conditions as may be specified in
such instrument.



ARTICLE 9.

EFFECTS OF CHANGE IN CONTROL




     9.01 Change in Control. Notwithstanding any other provision in the Plan to the
contrary, except as otherwise provided in the Merger Sale Agreement entered into by the Company in
connection with a Change in Control, upon the occurrence of a Change in Control, the following
provisions shall apply:



          (a) Each Option outstanding on the day immediately preceding the date on which the Change in
Control occurs shall be converted to a right to receive an Option Cash Out Payment. Payment of the
Option Cash Out Payment shall be made to the holder of the Option in one lump sum payment, less
applicable withholding taxes, on the date on which the Change in Control occurs.




          (b) Each Right outstanding on the day immediately preceding the date on which the Change in
Control occurs shall be converted to a right to receive the Right Cash Out Payment. Payment of the
Right Cash Out Payment shall be made to the holder of the Right in





23









 







one lump sum payment, less
applicable withholding taxes, on the date on which the Change in Control occurs.




          (c) The Restricted Periods applicable to all Restricted Shares and Restricted Units (including
any related Dividend Equivalent Units) granted to a Participant hereunder that are still
outstanding on the day immediately preceding the date on which such Change in Control occurs shall
expire on such date; all Restrictions applicable to such outstanding Restricted Shares, Restricted
Units and related Dividend Equivalent Units shall lapse on such date; and the Participant’s rights
to receive delivery or payment with respect to all such outstanding Restricted Shares, Restricted
Units and related Dividend Equivalent Units shall become nonforfeitable as of such date. Payment
with respect to such outstanding Restricted Shares, Restricted Units and related Dividend
Equivalent Units shall be made on the date the Change in Control occurs. Unless the Committee
determines that payment with respect to Restricted Shares and Restricted Units is to be made in the
form of a cash payment instead of the issuance and delivery of Shares, the Company shall take
whatever steps are necessary to cause all such Restricted Shares and Shares attributable to
Restricted Units to be issued to the applicable Participants, and to be treated as outstanding, as
of the date the Change in Control occurs.




          (d) The Performance Periods applicable to all Performance Shares and Performance Units
(including any related Dividend Equivalent Units) granted to a Participant hereunder that are still
outstanding on the day immediately preceding the date on which such Change in Control occurs shall
end on such date; all Performance Goals that were established in connection with the Award of such
Performance Shares or Performance Units shall be deemed to have been satisfied in full as of such
date; the number of Performance Shares or the percentage of the Performance Units as to which
payment is to be made in the event the Performance Goal or Goals applicable to the Award of such
Shares or Units are met at the targeted level of performance, as specified in the instrument
evidencing the grant of such Award, shall be deemed to be earned in full as of such date; and the
Participant shall acquire on such date a nonforfeitable right to receive payment with respect to
such number of Performance Shares (including any cash payment for dividends payable thereon, if the
instrument evidencing the grant of such shares provides for such cash payment), or with respect to
such percentage of the Performance Units (and any related Dividend Equivalent Units), determined
without any adjustment under Section 6.09(a) or (b). Payment with respect to such Performance
Shares, Performance Units and related Dividend Equivalent Units shall be made on the date the
Change in Control occurs. Unless the Committee determines that payment with respect to such
Performance Shares and Performance Units is to be made in the form of a cash payment instead of by
the issuance and delivery of Shares, the Company shall take whatever steps are necessary to cause
all such Performance Shares and Shares attributable to Performance Units to be issued to the
applicable Participants, and to be treated as outstanding, as of the date the Change in Control
occurs.




     9.02 Substitution of New Awards. Notwithstanding the provisions of Section 9.01, if
provided for by a Merger Sale Agreement entered into in connection with a Change in Control, the
rights of Participants under any Awards outstanding on the day immediately preceding the Change in
Control shall be honored or assumed or new rights issued therefor by the entity which
survives the Change in Control (each such honored, assumed or substituted option being
hereinafter an “Alternative Award”); provided that, any such Alternative Award satisfies the



24









 




following criteria:




          (a) the Alternative Award must be based on stock which is traded on an established securities
market, or which will be so traded within thirty (30) days of the Change in Control;




          (b) the Alternative Award must provide the Participant with rights and entitlements
substantially equivalent to or better than the rights, terms and conditions applicable under such
Award, including, but not limited to, an identical or better exercise schedule; and




          (c) the Alternative Award must have economic value substantially equivalent to the value of
such Award (determined at the time of the Change in Control).




ARTICLE 10.

COMPLIANCE WITH CODE SECTION 409A




     10.01
In General. This Article 10 is intended to comply with final regulations
promulgated under Code Section 409A. It is effective January 1, 2009 and shall govern
notwithstanding any contrary provision elsewhere in the Plan or in any instrument pursuant to which
an Award is granted under the Plan (an “Award Instrument”).



     10.02 409A Excluded Stock Rights. All Non-Qualified Stock Options and Rights awarded
under the Plan are intended not to provide for the deferral of compensation, in accordance with
Treas. Reg. §1.409A-1(b)(5)(i)(A) and (B) (said Awards are hereinafter referred to as “409A
Excluded Stock Rights”), except where an Award Instrument states explicitly that the Award is
intended to provide for a deferral of compensation (such Award is hereinafter referred to as a
“409A Non-Excluded Stock Right”). Accordingly, the Plan shall be construed, and may be amended, in
such manner as will ensure that 409A Excluded Stock Rights remain excluded from the application of
Code Section 409A. Without limiting the generality of the foregoing:



          (a) no 409A Excluded Stock Right shall be awarded with an exercise price that is less than the
Fair Market Value of the Common Stock on the Date of Grant where Fair Market Value is determined in
a manner permitted under Treas. Reg. §1.409A-1(b)(5)(iv);




          (b) no 409A Excluded Stock Right shall be modified, extended or exchanged for a new Award if
such modification, extension or exchange would cause the 409A Excluded Stock Right to become (or be
replaced by) a 409A Non-Excluded Stock Right or other Award that is subject to Code Section 409A;




          (c) a 409A Excluded Stock Right shall expire no later than its original expiration date and,
if a Excluded Stock Right would expire after its original expiration date, because the Participant
has died or otherwise become unable to exercise the Stock Right due to a mental or physical
disability, the Stock Right shall be deemed exercised by the owner thereof on
the day preceding its original expiration date if the then Fair Market Value of the Common
Stock exceeds the exercise price;




25









 








          (d) any extension of a 409A Excluded Stock Right, whether pursuant to a provision of the Plan
or an exercise of Committee discretion, shall not extend the term of the Award beyond the earlier
of (i) the original expiration date stated in the Award Instrument, or (ii) the tenth anniversary
of the Award;




          (e) no 409A Excluded Stock Right shall permit the deferral of compensation beyond the date of
exercise;




          (f) no dividends shall be paid or credited on a 409A Excluded Stock Right that would have the
effect of reducing the exercise price of the 409A Excluded Stock Right below Fair Market Value of
the Common Stock on the Date of Grant in violation of Code Section 409A and the Treas. Reg.
§1.409A-1(b)(5)(i)(E); and




          (g) any Common Stock, cash or other consideration to be transferred to the Participant in
connection with the exercise of the 409A Excluded Stock Right shall be transferred as soon as
practicable and in all events within 30 days following the exercise date and the Participant shall
have no right to determine the calendar year in which such transfer occurs.




     10.03 409A Non-Excluded Stock Rights. If an Award Instrument states explicitly that
the Non-Qualified Stock Option or the Right granted thereunder is intended to provide for a
deferral of compensation in accordance with Treas. Reg. §1.409A-1(b)(5)(i)(C) (such Award is
hereinafter referred to as “409A Non-Excluded Stock Right”), the Award Instrument shall be deemed
to incorporate the terms and conditions necessary to avoid inclusion of the Award in the
Participant’s gross income pursuant to Section 409A(a)(1) of the Code and the Plan and Award
Instrument shall be interpreted in accordance with Section 409A of the Code and the regulations and
other interpretive guidance issued thereunder so as to avoid the inclusion of the Award in gross
income pursuant to Section 409A(a)(1) of the Code. Without limiting the generality of the
foregoing:



          (a) the Award Instrument shall specify that the 409A Non-Excluded Stock Right will expire on
the last day of the calendar year in which the 409A Non-Excluded Stock Right becomes exercisable,
and that any Common Stock, cash or other consideration to be transferred to the Participant in
connection with the exercise of the 409A Non-Excluded Stock Right shall be transferred to the
Participant on or before March 15 of the calendar year following the calendar year in which the
409A Non-Excluded Stock Right becomes exercisable;




          (b) the date on which the 409A Non-Excluded Stock Right becomes exercisable may not be
accelerated except as may be permitted under Treas. Reg. §1.409A-3(j); and




          (c) in the case of a 409A Non-Excluded Stock Right that becomes exercisable as a result of the
separation from service of a Participant who is a “specified employee” within the meaning of Treas.
Reg. §1.409A-1(i) as applied by the Company, no Common Stock, cash or other consideration shall be
transferred to the Participant in connection with the exercise of the
409A Non-Excluded Stock Right until the day following the 6-month anniversary of the
Participant’s separation from service.




26









 








     10.04 409A Excluded Current Property Transfers. Restricted Shares and Performance
Shares (“Current Property Transfers”) awarded under the Plan are intended not to provide for the
deferral of compensation, in accordance with Treas. Reg. §1.409A-1(b)(6) (said Awards are
hereinafter referred to as “409A Excluded Current Property Transfers”), unless the Award Instrument
states explicitly that the Award is intended to provide for a deferral of compensation (such an
Award is hereinafter referred to as “409A Non-excluded Current Property Transfer”). Accordingly,
the Plan shall be construed, and may be amended, to ensure that 409A Excluded Current Property
Transfers remain excluded from the application of Code Section 409A. Without limiting the
generality of the foregoing, no Award Instrument shall provide for or permit the deferral of
compensation resulting from a 409A Excluded Current Property Transfer beyond the date on which the
409A Excluded Current Property Transfer would otherwise become includable in gross income in
accordance with the rules of Code Section 83 (or would have become includable but for the exercise
of an election under Code Section 83(b)).



     10.05 409A Non-Excluded Current Property Transfers. If, under the terms of an Award
Instrument, a Current Property Transfer would be deemed to be a deferral of compensation under
Section 409A of the Code (such Award is hereinafter referred to as “409A Non-Excluded Current
Property Transfer”), the Award Instrument shall be deemed to incorporate the terms and conditions
necessary to avoid inclusion of the Award in the Participant’s gross income pursuant to Section
409A(a)(1) of the Code and the Plan and Award Instrument shall be interpreted in accordance with
Section 409A of the Code and the regulations and other interpretive guidance issued thereunder so
as to avoid the inclusion of the Award in gross income pursuant to Section 409A(a)(1) of the Code.
Without limiting the generality of the foregoing:



          (a) the Award Instrument shall specify one or more dates or events permitted under Code
Section 409A(a)(2)(A) at which time the Award will be settled in cash or vested property;




          (b) the Award Instrument shall specify the manner in which the Award will be paid (e.g., lump
sum or installments) and the dates on or periods within which payment will occur;




          (c) the date of settlement of the Award shall not be accelerated except as otherwise permitted
under Treas. Reg. §1.409A-3(j); and




          (d) in the case of a 409A Non-excluded Current Property Transfer that becomes payable as a
result of the separation from service of a Participant who is a “specified employee” within the
meaning of Treas. Reg. §1.409A-1(i) as applied by the Company, no cash or property shall be paid to
the Participant in connection with the settlement of the Award until the day following the 6-month
anniversary of the Participant’s separation from service.




     10.06 409A Excluded Future Property Transfers. Any Awards permitted under the Plan
other than those referred to in Sections 10.02, 10.03, 10.04 and 10.05 including, but not limited
to, Restricted Units and Performance Units (“Future Property Transfers”), are intended not to
provide for the deferral of compensation, in accordance with the short-term deferral rule set
forth in Treas. Reg. §1.409A-1(b)(4) (said Awards are hereinafter referred to as “409A Excluded



27









 




Future Property Transfers”) unless the terms of the Award Instrument, the Future Property Transfer
would be deemed to result in a deferral of compensation under Section 409A of the Code (such an
Award is hereinafter referred to as a “409A Non-excluded Future Property Transfer”). Accordingly,
the Plan shall be construed, and may be amended, to ensure that 409A Excluded Future Property
Transfers remain excluded from the application of Code Section 409A. Without limiting the
generality of the foregoing, the Award Instrument shall provide (or shall be construed to provide)
that a 409A Excluded Future Property Transfer must be settled in cash or vested property on or
before March 15 of the calendar year following the calendar year in which the 409A Excluded Future
Property Transfer ceased to be subject to a substantial risk of forfeiture within the meaning of
Treas. Reg. §1.409A-1(b)(4).




     10.07 409A Non-excluded Future Property Transfers. If, under the terms of an Award
Instrument, a Future Property Transfer would be deemed to result in a deferral of compensation in
accordance with Treas. Reg. §1.409A-1(b)(4) (“409A Non-excluded Future Property Transfer”), the
Award Instrument shall be deemed to incorporate the terms and conditions necessary to avoid
inclusion of the Award in the Participant’s gross income pursuant to Section 409A(a)(1) of the Code
and the Plan and Award Instrument shall be interpreted in accordance with Section 409A of the Code
and the regulations and other interpretive guidance issued thereunder so as to avoid the inclusion
of the Award in gross income pursuant to Section 409A(a)(1) of the Code. Without limiting the
generality of the foregoing:



          (a) the Award Instrument shall specify one or more dates or events permitted under Code
Section 409A(a)(2)(A) at which time the Award will be settled in cash or vested property;




          (b) the Award Instrument shall specify the manner in which the Award will be paid (e.g., lump
sum or installments) and the dates on or periods within which payment will occur;




          (c) the date of settlement of the Award shall not be accelerated except as otherwise permitted
under Treas. Reg. §1.409A-3(j); and




          (d) in the case of a 409A Non-excluded Future Property Transfer that becomes payable as a
result of the separation from service of a Participant who is a “specified employee” within the
meaning of Treas. Reg. §1.409A-1(i) as applied by the Company, no cash or property shall be paid to
the Participant in connection with the settlement of the Award until the day following the 6-month
anniversary of the Participant’s separation from service.




     10.08 Authority To Amend Plan And/Or Award Instrument. Notwithstanding any provision
of the Plan to the contrary, in the event that the Committee determines that any Award may be
subject to Section 409A of the Code and related Department of Treasury guidance (including such
Department of Treasury guidance as may be issued after the date of this Plan amendment), the
Committee may adopt such amendments to the Plan and/or the applicable Award Instrument as the
Committee determines are necessary or appropriate to (1) exempt the Award from Section 409A of the
Code and/or preserve the intended tax treatment of the benefits
provided with respect to the Award, or (2) comply with the requirements of Section 409A of
the Code and related Department of Treasury guidance.



28









 





     10.09 Protection of the Committee and Others. Notwithstanding the foregoing
provisions of this Article 10, neither the Company, nor any officer, employee, director or agent of
the Company or any affiliate of the Company, nor any member of the Committee, shall have any
liability to any Participant on account of an Award hereunder being taxable under Code Section 409A
regardless of whether such person could have taken action to prevent such result and failed to do
so. To the extent permitted by law, the Company shall indemnify and defend any officer, employee,
director or agent of the Company or of any affiliate of the Company, and any member of the
Committee, from any claim based on an Award becoming taxable under Code Section 409A resulting from
such person’s action taken, or action failed to be taken, in connection with the Plan or any Award
Instrument.



ARTICLE 11.

ADMINISTRATION




     11.01 Administration of the Plan. (a) Except as otherwise specifically provided
in the Plan, the Plan shall be administered by: (i) the Board of Directors, with respect to all
matters pertaining to Awards that may be granted or that have been granted hereunder to any
Director that is an Eligible Person; (ii) by the Compensation Committee, with respect to all
matters pertaining to Awards that may be made or that have been made to Employees, except as
otherwise provided in (iii); and (iii) by the Compensation Administration Committee, with respect
to those specific matters pertaining to Awards to Employees who are not Executive Officers that are
within the scope of the authority granted to the Compensation Administration Committee under
Section 10.05 below or delegated by the Compensation Committee to the Compensation Administration
Committee pursuant to Section 10.02 below.



          (b) No Covered Individual shall be liable for any action or determination made in good faith
with respect to the Plan or any Award granted under the Plan. The Company shall, to the maximum
extent permitted by applicable law and the Certificate of Incorporation and By-laws of the Company,
indemnify and hold each Covered Individual harmless from and against any loss, cost or expense
(including reasonable attorney fees) or liability (including any amount paid in settlement of a
claim with the approval of the Company) arising out of any act or omission to act in connection
with the Plan or any Award granted pursuant to the Plan. Such indemnification shall be in addition
to any rights of indemnification such individuals may have under applicable law or under the
Certificate of Incorporation and By-laws of the Company.




     11.02 The Committee’s Power and Authority. In addition to the responsibilities and
powers assigned to the Committee elsewhere in the Plan, the Committee shall have the authority, in
its discretion, to establish, from time to time, guidelines or regulations for the administration
of the Plan, to interpret the Plan, and to make all determinations it considers necessary or
advisable for the administration of the Plan. All decisions, actions or interpretations of the
Committee under the Plan shall be final, conclusive and binding upon all parties.



          The Committee may designate Employees of the Company and professional advisors to assist the
Committee in its administration of the Plan and may grant authority to Employees of the Company to
execute agreements or other documents on behalf of the




29









 







Committee in connection with the
administration of the Plan. The Committee may employ such legal counsel, consultants and agents as
it may deem desirable for the administration of the Plan and may rely upon any advice and any
computation received from any such counsel, consultant or agent. The Company shall pay all
expenses and costs incurred by the Committee for the engagement of any such counsel, consultant or
agent.




     11.03
Modification of Awards. (a) To the extent not inconsistent with the terms
of the Plan or any provision of applicable law (including, but limited to Code Section 409A), the
Committee, in its discretion, may waive or modify any of the terms and conditions set forth in the
instrument evidencing the grant of any Award made to a Participant hereunder, including without
limitation: (i) in the case of any Option, to permit such Option to become exercisable as to any
portion of the Shares subject to the Option at any time earlier than the time specified in such
instrument, to extend the term of such Option beyond the date specified in such instrument as the
expiration date for the term of the Option (but not beyond the day immediately preceding the tenth
anniversary of the Date of Grant of the Option), or to permit such Option, to the extent it has
become or becomes exercisable, to remain exercisable for any period of time (including any period
after the Eligible Person’s Termination of Service for any reason) beyond the period of time
specified in such instrument but not beyond the date of expiration of the Option, including any
extension thereof permitted under this clause (a); (ii) in the case of any Award of Restricted
Shares or Restricted Units, to cause the Restricted Period applicable to such Restricted Shares or
Restricted Units (including any related Dividend Equivalent Units) to expire, and the Restrictions
applicable to such Restricted Shares or Restricted Units to lapse, as of any date earlier than the
date provided for in such instrument; (iii) in the case of any Award of Performance Shares or
Performance Units (including any related Dividend Equivalent Units), to cause the Performance
Period applicable to such Performance Shares or Performance Units to expire and to treat the
Performance Goal or Goals established with respect to such Performance Shares or Performance Units
as having been met, in full or in part; and (iv) in the case of any Award of Rights (including any
related Dividend Equivalent Units), to cause the Appreciation Period applicable to such Rights to
expire as of any date earlier than the date provided for in such instrument.



          (b) Notwithstanding the foregoing, no waiver or amendment may be authorized or directed by the
Committee pursuant to this Section 10.03 without the consent of the Participant if: (i) it would
adversely affect, to any material extent, any of the rights or obligations of the Participant with
respect to such Award; or (ii) in the case of any Option granted hereunder that was intended to
constitute an Incentive Stock Option, if such waiver or amendment would cause such Option to fail
to be treated as an “incentive stock option” within the meaning of Section 422 of the Code. In
addition, no such waiver or amendment may be authorized or directed by the Committee pursuant to
this Section 10.03 with respect to any Option, Restricted Shares or Restricted Units, Performance
Shares or Performance Units or Rights awarded to any Covered Executive, if such waiver or amendment
would cause the delivery of Shares or the payment of any cash amounts that are made with respect to
such Award to fail to be deductible
for federal income tax purposes pursuant to the applicable provisions of Section 162(m) of the
Code and the regulations issued thereunder.




     11.04  Power and Authority of the Compensation Administration Committee. With respect
to such number of Shares as the Compensation Committee may in its discretion



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determine to be
available from time to time for the grant of Awards in any form to Employees who are not Executive
Officers, the Compensation Administration Committee shall have the authority: (a) to determine
which of such Employees shall receive Awards in each form; (b) to determine the time or times when
Awards in such form shall be made to such Eligible Employees; (c) to determine the number of Shares
that will be subject to any Option, or the number of Restricted Shares, Restricted Units,
Performance Shares, Performance Units or Rights, to be included in any Award to any such Employee;
(d) with respect to any Award of Performance Shares or Performance Units made to any such
Employees, to make all determinations which the Committee is authorized to make with respect to
such Award under the provisions of Section 6.02, Section 6.07 and Section 6.09(a); and (e) with
respect to any Awards made to any such Employees pursuant to the Compensation Administration
Committee’s exercise of the authority granted to it under this Section 10.04, to exercise all of
the authority and powers granted to the Committee under Section 10.02 above and under the second
paragraph of Section 10.05 below, but only to the extent that any such exercise by the Compensation
Administration Committee is not inconsistent with any action taken by the Compensation Committee,
or with any determination, decision or interpretation of the Plan made by the Compensation
Committee, under Section 11.02 above or any delegation made by the Compensation Committee under the
second paragraph of Section 11.05 below.




     Except for the matters specified in the foregoing paragraph and any additional matters
pertaining to Awards to Employees who are not Executive Officers with respect to which authority
has been granted to the Compensation Administration Committee pursuant to this Section 11.04, the
Compensation Administration Committee shall not have any of the authority or powers otherwise
granted to the Compensation Committee under any other provisions of the Plan.



     The Compensation Committee in its discretion may at any time, by resolution duly adopted by it
and without any amendment of the Plan, revoke or modify in any manner or respect the authority and
powers granted to the Compensation Administration Committee under this Section 11.04.



     11.05 Delegation. In addition to the authority and powers granted to the Compensation
Administration Committee under Section 11.04 above, the Compensation Committee in its discretion
may, by resolution duly adopted by it, delegate to the Compensation Administration Committee
authority with respect to such other matters pertaining to Awards to Employees who are not
Executive Officers as the Compensation Committee may specify in such resolution. Any authority so
delegated to the Compensation Administration Committee may be revoked or modified by the
Compensation Committee, in whole or in part, at any time.



     The Committee may delegate any ministerial or nondiscretionary function pertaining to the
administration of the Plan to any one or more officers or other employees of the Company or any of
its Affiliates.



     11.06 Non-U.S. Participants. In order to comply with any applicable provisions of
local law and regulations in any foreign country in which the Company or any of its Affiliates
operates, the Committee may in its sole discretion: (a) modify the terms and conditions of Awards
granted under the Plan to Eligible Persons located in such foreign
country; (b) establish



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subplans
with such modifications to the terms of the Plan as it determines to be necessary or appropriate
under the circumstances applicable in such foreign country; or (c) take any other action that it
deems necessary or appropriate in order to comply with, or obtain any exemptions from the
applicability of, the local laws and regulations in such foreign country.




     11.07 Designation and Change of Beneficiary. Each Participant shall file with the
Committee, or with such Employee of the Company who has been designated by the Committee to receive
same, a written designation of one or more persons as the Beneficiary who shall be entitled to
receive any Shares or cash amount payable with respect to any Award upon or after the Participant’s
death. A Participant may, from time to time, revoke or change his or her Beneficiary designation
without the consent of any previously designated Beneficiary by filing a new designation with the
Committee or its designee. The last such designation received by the Committee or its designee
shall be controlling; provided, however, that no designation, or change or revocation thereof,
shall be effective unless received by the Committee prior to the Participant’s death, and in no
event shall it be effective as of a date prior to such receipt. If at the date of a Participant’s
death, there is no designation of a Beneficiary in effect for the Participant pursuant to the
provisions of this Section 11.07, or if no Beneficiary designated by the Participant in accordance
with the provisions hereof survives to receive any Shares or cash amount payable under the Plan
with respect to the Participant after his or death, the Participant’s estate shall be treated as
the Participant’s Beneficiary for purposes of the Plan.



     11.08 Taxes. Notwithstanding any other provision of the Plan, the Company and each of
its Affiliates may make such provisions and take such steps as it may deem necessary or appropriate
for the withholding of all federal, state and local taxes required by law to be withheld with
respect to the exercise of any Option or with respect any payments to be made in respect of any
other form of Award granted to a Participant under the Plan, including but not limited to: (a)
deducting the amount of taxes so required to be withheld from any other compensation or other
amounts then or thereafter payable to the Participant, and/or (b) withholding delivery of any
Shares or payment of any cash amount otherwise required to be delivered or paid to the Participant
with respect to the exercise of such Option, or with respect to such other form of Award, until the
amount of taxes so required to be withheld has been paid in full to the Company or any of its
Affiliated Companies. With the approval of the Compensation Committee and subject to such terms
and conditions as it may require, such amount may be paid in Shares previously owned by the
Participant, or by the surrender of a portion of the Shares that otherwise would be delivered or
paid to such Participant with respect to his or her Award, or by a combination of payments in cash
and Shares.



     11.09 Amendment or Termination. The Board of Directors may, with prospective or
retroactive effect, amend, suspend or terminate the Plan or any portion thereof at any time;
provided, however, that: (a) no amendment, suspension or termination of the Plan shall, without the
Participant’s written consent, adversely affect the rights of any Participant with respect to any
Awards previously granted to the Participant; and (b) no amendment which constitutes a
“material revision” of the Plan, as the term material revision is defined in the applicable
NASDAQ rules, shall be effective unless approved by the stockholders of the Company in the manner
required by such rules and by applicable law.



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     11.10 Participant Rights Unsecured. A Participant shall have the status of a general
unsecured creditor of the Company with respect to his or her right to receive any cash payment
provided for by the instrument containing the terms of any Award made pursuant to the Plan. The
Plan and the instrument containing the terms of any Award providing for the payment of cash shall
constitute a mere promise by the Company to make payments in the future of the benefits provided
for therein. It is intended that the arrangements reflected in the Plan be treated as unfunded for
tax purposes, as well as for purposes of any applicable provisions of Title I of ERISA.



     11.11 Terms of Employment Not Affected. Neither the Plan nor any Award granted to a
Participant hereunder or any other action taken in connection with the Plan shall be construed as
giving any Participant any right to be retained in the employment of the Company or any of its
Affiliates. In addition, the Plan, any Award granted to a Participant hereunder and any other
action taken by the Committee pursuant to the Plan shall not be deemed or construed to interfere
with the right of the Company or any of its Affiliates to terminate a Participant’s employment or
service at any time subject, however, to the Participant’s rights under any employment contract in
effect between the Participant and the Company or any of its Affiliates.



     No Award made to a Participant under the Plan, and no payment made with respect to such Award,
shall be considered as compensation or wages payable to the Participant for purposes of determining
the amount of contributions or benefits the Participant may be entitled to receive under any
employee benefit plan of the Company or any of its Affiliates, except as specifically provided in
such plan or as otherwise determined by the Board of Directors.



     11.12 Successors. The obligations of the Company under the Plan shall be binding upon
any successor Company or organization resulting from the merger, consolidation or other
reorganization of the Company, or upon any successor Company or organization succeeding to
substantially all of the assets and business of the Company. The Company agrees that it will make
appropriate provision for the preservation of Participants’ rights under the Plan in any agreement
or plan which it may enter into or adopt to effect any such merger, consolidation, reorganization
or transfer of assets.



     11.13 Binding Effect. The provisions of the Plan and the terms and conditions
contained in the instrument evidencing any Award made to a Participant hereunder shall be binding
upon the Participant, his or her successors and permitted transferees.



     11.14 Governing Law. The Plan shall be governed by and construed in accordance with
the laws of the State of New York without reference to its conflicts of law principles.



     11.15 Effective Date. The initial adoption of the Plan was approved by the Board of
Directors on November 30, 2004, and by the stockholders of the Company on May 19, 2005. This
amendment and restatement was approved by the Board of Directors on November 5, 2008 and, upon
execution by an authorized officer of the Company, shall be effective as of December
31, 2008, and shall supercede the provisions of the Plan as in effect immediately prior to
such date.




     IN WITNESS WHEREOF, Gibraltar Industries, Inc. has caused this Plan to be executed as of the
 30th day of December, 2008.



GIBRALTAR INDUSTRIES, INC.





By
/s/ Paul M. Murray           





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