exhibit101






1  171936 v1  BGC PARTNERS, INC. EIGHTH AMENDED AND RESTATED LONG TERM INCENTIVE PLAN  (November 22, 2021)  1. Purpose. The purpose of this Eighth Amended and Restated Long Term Incentive Plan (the “Plan”) of BGC Partners, Inc., a Delaware corporation (the “Company”), is to advance the interests of the Company and its stockholders by providing a  means to attract, retain, motivate and reward directors, officers, employees and consultants of and service providers to the  Company and its affiliates and to enable such persons to acquire or increase a proprietary interest in the Company, thereby  promoting a closer identity of interests between such persons and the Company’s stockholders.   The Plan was initially adopted by the Company in 1999 as the eSpeed, Inc. 1999 Long Term Incentive Plan, and was  subsequently amended and restated in 2003. The eSpeed, Inc. 1999 Long Term Incentive Plan was further amended and  restated and, effective as of the closing of the merger between eSpeed, Inc. and BGC Partners, Inc. (the “Effective Date”), was  renamed the “BGC Partners, Inc. Amended and Restated Long Term Incentive Plan.” The Plan was further amended and  restated effective on December 14, 2009 upon approval by the Company’s stockholders and renamed as of such date as the  “BGC Partners, Inc. Second Amended and Restated Long Term Incentive Plan.” The Plan was further amended and restated  effective on December 14, 2011 upon approval by the Company’s stockholders and renamed as of such date as the “BGC  Partners, Inc. Third Amended and Restated Long Term Incentive Plan.” The Plan was further amended and restated effective  on June 4, 2013 upon approval by the Company’s stockholders and renamed as of such date as the “BGC Partners, Inc. Fourth  Amended and Restated Long Term Incentive Plan.” The Plan was further amended and restated effective on June 3, 2014 upon  approval by the Company’s stockholders and renamed as of such date as the “BGC Partners, Inc. Fifth Amended and Restated  Long Term Incentive Plan.” The Plan was further amended and restated effective on June 2, 2015 upon approval by the  Company’s stockholders and renamed as of such date as the “BGC Partners, Inc. Sixth Amended and Restated Long Term  Incentive Plan.” The Plan was further amended and restated effective on June 22, 2016 upon approval by the Company’s  stockholders and renamed as of such date as the “BGC Partners, Inc. Seventh Amended and Restated Long Term Incentive  Plan.”  2. Definitions. The definitions of awards under the Plan, including Options, SARs (including Limited SARs), Restricted Stock, Deferred Stock, Stock granted as a bonus or in lieu of other awards, Dividend Equivalents and Other Stock-Based  Awards, are as set forth in Section 6 of the Plan. Such awards, together with any other right or interest granted to a Participant  under the Plan, are termed “Awards.” For purposes of the Plan, the following additional terms shall be defined as set forth  below:   (a) “Award Agreement” means any written agreement, contract, notice or other instrument or document evidencing an Award.  (b) “Beneficiaries” means the person, persons, trust or trusts which have been designated by a Participant in his or her most recent written beneficiary designation filed with the Committee to receive the benefits specified under the Plan  upon such Participant’s death or, if there is no designated Beneficiary or surviving designated Beneficiary, then the  person, persons, trust or trusts entitled by will or the laws of descent and distribution to receive such benefits.   (c) “Board” means the Board of Directors of the Company. (d) A “Change in Control” shall be deemed to have occurred on: (i) the date of the acquisition by any “person” (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act), excluding the Company, its Parent or any Subsidiary or any employee benefit plan sponsored by  any of the foregoing, of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of shares  of common stock of the Company representing 30% of either (x) the total number of the then-outstanding shares of  common stock, or (y) the total voting power with respect to the election of directors; or   (ii) the date the individuals who constitute the Board upon the Effective Date (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board; provided, however, that any individual  becoming a director subsequent to the Effective Date whose election, or nomination for election by the Company’s  stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board  (other than any individual whose nomination for election to Board membership was not endorsed by the Company’s  Exhibit 10.1 





 






      2     171936 v1     management prior to, or at the time of, such individual’s initial nomination for election) shall be, for purposes of  this clause (ii), considered as though such person were a member of the Incumbent Board; or   (iii) the consummation of a merger, consolidation, recapitalization, reorganization, sale or other disposition of  all or substantially all of the Company’s assets, a reverse stock split of outstanding voting securities, or the issuance  of shares of stock of the Company in connection with the acquisition of the stock or assets of another entity;  provided, however, that a Change in Control shall not occur under this clause (iii) if consummation of the  transaction would result in at least 70% of the total voting power represented by the voting securities of the  Company (or, if not the Company, the entity that succeeds to all or substantially all of the Company’s business)  outstanding immediately after such transaction being beneficially owned (within the meaning of Rule 13d-3  promulgated pursuant to the Exchange Act) by at least 75% of the holders of outstanding voting securities of the  Company immediately prior to the transaction, with the voting power of each such continuing holder relative to  other such continuing holders not substantially altered in the transaction.   (e) “Code” means the Internal Revenue Code of 1986, as amended from time to time. References to any provision  of the Code shall be deemed to include regulations thereunder and successor provisions and regulations thereto.   (f) “Committee” means the committee appointed by the Board to administer the Plan, or if no committee is  appointed, the Board.   (g) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. References to any  provision of the Exchange Act shall be deemed to include rules thereunder and successor provisions and rules thereto.   (h) “Fair Market Value” means, with respect to Stock, Awards, or other property, the fair market value of such  Stock, Awards, or other property determined by such methods or procedures as shall be established from time to time by  the Committee; provided, however, that, if the Stock is listed on a national securities exchange, the Fair Market Value of  such Stock on a given date shall be based upon the closing market price or, if unavailable, the average of the closing bid  and asked prices per share of the Stock at the end of regular trading on such date (or, if there was no trading or quotation  in the Stock on such date, on the next preceding date on which there was trading or quotation) as provided by one of such  organizations.   (i) “ISO” means any Option intended to be and designated as an incentive stock option within the meaning of  Section 422 of the Code.   (j) “Parent” means any “person” (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) that  controls the Company on the Effective Date, either directly or indirectly through one or more intermediaries.   (k) “Participant” means a person who, at a time when eligible under Section 5 hereof, has been granted an Award  under the Plan.   (l) “Rule 16b-3” means Rule 16b-3, as from time to time in effect and applicable to the Plan and Participants,  promulgated by the Securities and Exchange Commission under Section 16 of the Exchange Act, and shall be deemed to  include any successor provisions thereto.   (m) “Stock” means the Company’s Class A Common Stock, and such other securities as may be substituted for  Stock pursuant to Section 4(c).   (n) “Subsidiary” means each entity that is controlled by the Company or a Parent, either directly or indirectly  through one or more intermediaries.   3. Administration.   (a) Authority of the Committee. Except as otherwise provided below, the Plan shall be administered by the  Committee. The Committee shall have full and final authority to take the following actions, in each case subject to and  consistent with the provisions of the Plan:   (i) to select persons to whom Awards may be granted;   (ii) to determine the type or types of Awards to be granted to each such person;   (iii) to determine the number of Awards to be granted, the number of shares of Stock to which an Award will  relate, the terms and conditions of any Award granted under the Plan (including, without limitation, any exercise  price, grant price or purchase price, any restriction or condition, any schedule for lapse of restrictions or conditions  relating to transferability or forfeiture, exercisability or settlement of an Award, and waivers or accelerations  





 






      3     171936 v1     thereof, performance conditions relating to an Award (including, without limitation, performance conditions  relating to Awards not intended to be governed by Section 7(e) and waivers and modifications thereof), based in  each case on such considerations as the Committee shall determine), and all other matters to be determined in  connection with an Award;   (iv) to determine whether, to what extent and under what circumstances an Award may be settled, or the  exercise price of an Award may be paid, in cash, Stock, other Awards, or other property, or an Award may be  canceled, forfeited, or surrendered;   (v) to determine whether, to what extent and under what circumstances cash, Stock, other Awards or other  property payable with respect to an Award will be deferred either automatically or at the election of the Committee  or at the election of the Participant;   (vi) to determine the restrictions, if any, to which Stock received upon exercise or settlement of an Award  shall be subject (including, without limitation, lock-ups and other transfer restrictions), including, without  limitation, conditioning the delivery of such Stock upon the execution by the Participant of any agreement  providing for such restrictions;   (vii) to prescribe the form of each Award Agreement, which need not be identical for each Participant;   (viii) to adopt, amend, suspend, waive and rescind such rules and regulations and appoint such agents as the  Committee may deem necessary or advisable to administer the Plan;   (ix) to correct any defect or supply any omission or reconcile any inconsistency in the Plan and to construe  and interpret the Plan and any Award, rules and regulations, Award Agreement or other instrument hereunder; and   (x) to make all other decisions and determinations as may be required under the terms of the Plan or as the  Committee may deem necessary or advisable for the administration of the Plan.   Other provisions of the Plan notwithstanding, the Board shall perform the functions of the Committee for purposes  of granting awards to directors who serve on the Committee, and, to the extent permitted under applicable law and  regulation, the Board may perform any function of the Committee under the Plan for any other purpose, including  without limitation for the purpose of ensuring that transactions under the Plan by Participants who are then subject to  Section 16 of the Exchange Act in respect of the Company are exempt under Rule 16b-3. In any case in which the Board  is performing a function of the Committee under the Plan, each reference to the Committee herein shall be deemed to  refer to the Board, except where the context otherwise requires.   (b) Manner of Exercise of Committee Authority. Any action of the Committee with respect to the Plan shall be taken  in its sole discretion and shall be final, conclusive and binding on all persons, including the Company, its Parent and  Subsidiaries, Participants, any person claiming any rights under the Plan from or through any Participant and  stockholders, except to the extent the Committee may subsequently modify, or take further action not consistent with, its  prior action. If not specified in the Plan, the time at which the Committee must or may make any determination shall be  determined by the Committee, and any such determination may thereafter be modified by the Committee (subject to  Section 8(e)). The express grant of any specific power to the Committee, and the taking of any action by the Committee,  shall not be construed as limiting any power or authority of the Committee. Except as provided under Section 7(e), the  Committee may delegate to officers or managers of the Company the authority, subject to such terms as the Committee  shall determine, to perform such functions as the Committee may determine, to the extent permitted under applicable law  and regulation.   (c) Limitation of Liability; Indemnification. Each member of the Committee and any officer or employee of the  Company acting on behalf of the Committee shall be entitled to, in good faith, rely or act upon any report or other  information furnished to him or her by any officer or other employee of the Company, its Parent or Subsidiaries, the  Company’s independent registered public accounting firm or any legal counsel or other professional retained by the  Company or the Committee to assist in the administration of the Plan. No member of the Committee, or any officer or  employee of the Company acting on behalf of the Committee, shall be personally liable for any action, determination or  interpretation taken or made in good faith with respect to the Plan, and all members of the Committee and any officer or  employee of the Company acting on its behalf shall, to the extent permitted by law, be fully indemnified and protected by  the Company with respect to any such action, determination or interpretation.   4. Stock Subject to Plan.   





 






      4     171936 v1     (a) Amount of Stock Reserved. The aggregate number of shares of Stock delivered pursuant to the exercise or  settlement of Awards granted under the Plan shall not exceed 500 million shares, subject to adjustment as provided in  Section 4(b), all of which may be shares of Stock subject to ISOs. If an Award valued by reference to Stock is settled in  cash, the number of shares to which such Award relates shall be deemed to have been delivered for purposes of this  Section 4(a). Any shares of Stock delivered pursuant to an Award may consist, in whole or in part, of authorized and  unissued shares, treasury shares or shares acquired in the market on a Participant’s behalf.   (b) Adjustments. In the event that the Committee shall determine that any recapitalization, forward or reverse split,  reorganization, merger, consolidation, spin-off, combination, repurchase or exchange of Stock or other securities, Stock  dividend or other special, large and non-recurring dividend or distribution (whether in the form of cash, securities or  other property), liquidation, dissolution, or other similar corporate transaction or event, affects the Stock such that an  adjustment is appropriate in order to prevent dilution or enlargement of the rights of Participants under the Plan, then the  Committee shall, in such manner as it may deem equitable, adjust any or all of (i) the number and kind of shares of Stock  reserved and available for Awards under Section 4(a), including shares reserved for ISOs, (ii) the number and kind of  shares of outstanding Restricted Stock or other outstanding Awards in connection with which shares have been issued,  (iii) the number and kind of shares that may be issued in respect of other outstanding Awards and (iv) the exercise price,  grant price or purchase price relating to any Award (or, if deemed appropriate, the Committee may make provision for a  cash payment, including, without limitation, payment based upon the Award’s intrinsic (i.e., in-the-money) value, if any,  with respect to any outstanding Award). In addition, the Committee shall make appropriate adjustments in the terms and  conditions of, and the criteria included in, Awards (including, without limitation, cancellation of unexercised or  outstanding Awards, with or without the payment of any consideration therefor, substitution of Awards using stock of a  successor or other entity) in recognition of unusual or non-recurring events (including, without limitation, events  described in the preceding sentence and events constituting a Change in Control) affecting the Company, its Parent or  any Subsidiary or the financial statements of the Company, its Parent or any Subsidiary, or in response to changes in  applicable law, regulation, or accounting principles.   (c) Repricing. As to any Award granted as an Option or an SAR, the Committee may not, without prior stockholder  approval to the extent required under applicable law, regulation or exchange rule, subsequently reduce the exercise or  grant price relating to such Award, or take such other action as may be considered a repricing of such Award under  generally accepted accounting principles.   5. Eligibility. Directors, officers and employees of the Company or its Parent or any Subsidiary, and persons who provide  consulting or other services to the Company, its Parent or any Subsidiary deemed by the Committee to be of substantial value  to the Company or its Parent or Subsidiaries, are eligible to be granted Awards under the Plan. In addition, persons who have  been offered employment by, or agreed to become a director of, the Company, its Parent or any Subsidiary, and persons  employed by an entity that the Committee reasonably expects to become a Subsidiary of the Company, are eligible to be  granted an Award under the Plan.   6. Specific Terms of Awards.   (a) General. Awards may be granted on the terms and conditions set forth in this Section 6. In addition, the  Committee may impose on any Award or the exercise or settlement thereof such additional terms and conditions, not  inconsistent with the provisions of the Plan, as the Committee shall determine, including, without limitation, terms and  conditions requiring forfeiture of Awards or of the cash, Stock, other Awards or other property received by the  Participant in payment or settlement of Awards, in the event of termination of employment or service of the Participant,  or in the case of the Participant’s violation of Company policies, restrictions or other requirements. Except as expressly  provided by the Committee (including for purposes of complying with the requirements of the Delaware General  Corporation Law relating to lawful consideration for the issuance of shares), no consideration other than services shall be  required as consideration for the grant (but not the exercise or settlement) of any Award.   (b) Options. The Committee is authorized to grant options to purchase Stock (including “reload” options  automatically granted to offset specified exercises of Options) on the following terms and conditions (“Options”):   (i) Exercise Price. The exercise price of one share of Stock purchasable under an Option shall be determined  by the Committee; provided, however, that the price of one share of Stock which may be purchased upon the  exercise of an Option shall not be less than 100% of the Fair Market Value of one share of Stock on the date of  grant of such Option.   





 






      5     171936 v1     (ii) Time and Method of Exercise. The Committee shall determine the time or times at which an Option may  be exercised in whole or in part, the methods by which such exercise price may be paid or deemed to be paid, the  form of such payment, including, without limitation, cash, Stock, other Awards or other property (including notes  or other contractual obligations of Participants to make payment on a deferred basis, such as through “cashless  exercise” arrangements, to the extent permitted under applicable law and regulation), and the methods by which  Stock will be delivered or deemed to be delivered to Participants.   (iii) Termination of Employment. The Committee shall determine the period, if any, during which Options  shall be exercisable following a Participant’s termination of his or her employment relationship with the Company,  its Parent or any Subsidiary. Unless otherwise determined by the Committee, (A) during any period that an Option  is exercisable following termination of employment, it shall be exercisable only to the extent it was exercisable  upon such termination of employment, and (B) if such termination of employment is for cause, as determined by the  Committee unless the Participant’s employment agreement otherwise defines cause (in which case, cause shall be  determined in accordance with the employment agreement), all Options held by the Participant shall immediately  terminate.      (iv) Sale of the Company. Upon the consummation of any transaction whereby the Company (or any successor  to the Company or substantially all of its business) becomes a wholly owned subsidiary of any corporation, all  Options outstanding under the Plan shall terminate (after taking into account any accelerated vesting pursuant to  Section 7(f)), with or without the payment of any consideration therefor, including, without limitation, payment of  the intrinsic (i.e., in-the-money) value, if any, of such Options, as determined by the Committee pursuant to  Section 4(b), unless such other corporation shall continue or assume the Plan as it relates to Options then  outstanding (in which case, such other corporation shall be treated as the Company for all purposes hereunder, and,  pursuant to Section 4(b), the Committee shall make appropriate adjustment in the number and kind of shares of  Stock subject thereto and the exercise price per share thereof to reflect consummation of such transaction). If the  Plan is not to be so assumed, the Company shall notify the Participant of consummation of such transaction at least  ten days in advance thereof.   (v) Options Providing Favorable Tax Treatment. The Committee may grant Options that may afford a  Participant with favorable treatment under the tax laws applicable to such Participant, including, without limitation,  ISOs. If Stock acquired by exercise of an ISO is sold or otherwise disposed of within two years after the date of  grant of the ISO or within one year after the transfer of such Stock to the Participant, the holder of the Stock  immediately prior to the disposition shall promptly notify the Company in writing of the date and terms of the  disposition and shall provide such other information regarding the disposition as the Company may reasonably  require in order to secure any deduction then available against the Company’s or any other corporation’s taxable  income. The Company may impose such procedures as it determines necessary or advisable to ensure that such  notification is made. Each Option granted as an ISO shall be designated as such in the Award Agreement relating to  such Option.   (c) Stock Appreciation Rights. The Committee is authorized to grant stock appreciation rights on the following  terms and conditions (“SARs”):   (i) Right to Payment. An SAR shall confer on the Participant to whom it is granted a right to receive, upon  exercise thereof, the excess of (A) the Fair Market Value of one share of Stock on the date of exercise (or, if the  Committee shall so determine in the case of any such right other than one related to an ISO, the Fair Market Value  of one share at any time during a specified period before or after the date of exercise), over (B) the grant price of the  SAR as determined by the Committee as of the date of grant of the SAR, which shall be not less than 100% of the  Fair Market Value of one share of Stock on the date of grant.   (ii) Other Terms. The Committee shall determine the time or times at which an SAR may be exercised in  whole or in part, the method of exercise, method of settlement, form of consideration payable in settlement, method  by which Stock will be delivered or deemed to be delivered to Participants, whether or not an SAR shall be in  tandem with any other Award, and any other terms and conditions of any SAR. “Limited SARs” that may only be  exercised upon the occurrence of a Change in Control may be granted on such terms, not inconsistent with this  Section 6(c), as the Committee may determine. Limited SARs may be either freestanding or in tandem with other  Awards.   





 






      6     171936 v1     (d) Restricted Stock. The Committee is authorized to grant Stock that is subject to restrictions based on continued  employment on the following terms and conditions (“Restricted Stock”):   (i) Grant and Restrictions. Restricted Stock shall be subject to such restrictions on transferability and other  restrictions, if any, as the Committee may impose, which restrictions may lapse separately or in combination at such  times, under such circumstances, in such installments, or otherwise, as the Committee may determine. Except to the  extent restricted under the terms of the Plan and any Award Agreement relating to the Restricted Stock, a  Participant granted Restricted Stock shall have all of the rights of a stockholder, including, without limitation, the  right to vote Restricted Stock or the right to receive dividends thereon.   (ii) Forfeiture. Except as otherwise determined by the Committee, upon termination of employment or service  (as determined under criteria established by the Committee) during the applicable restriction period, Restricted  Stock that is at that time subject to restrictions shall be forfeited and reacquired by the Company; provided,  however, that the Committee may provide, by rule or regulation or in any Award Agreement, or may determine in  any individual case, that restrictions or forfeiture conditions relating to Restricted Stock will be waived in whole or  in part in the event of termination resulting from specified causes.   (iii) Certificates for Stock. Restricted Stock granted under the Plan may be evidenced in such manner as the  Committee shall determine. If certificates representing Restricted Stock are registered in the name of the  Participant, such certificates may bear an appropriate legend referring to the terms, conditions, and restrictions  applicable to such Restricted Stock, and the Company may retain physical possession of the certificate, in which  case the Participant shall be required to have delivered a stock power to the Company, endorsed in blank, relating to  the Restricted Stock.   (iv) Dividends. Dividends paid on Restricted Stock shall be either paid at the dividend payment date in cash or  in shares of unrestricted Stock having a Fair Market Value equal to the amount of such dividends, or the payment of  such dividends shall be deferred and/or the amount or value thereof automatically reinvested in additional  Restricted Stock, other Awards, or other  investment vehicles, as the Committee shall determine or permit the  Participant to elect. Stock distributed in connection with a Stock split or Stock dividend, and other property  distributed as a dividend, shall be subject to restrictions and a risk of forfeiture to the same extent as the Restricted  Stock with respect to which such Stock or other property has been distributed, unless otherwise determined by the  Committee.   (e) Deferred Stock. The Committee is authorized to grant units representing the right to receive Stock at a future  date subject to the following terms and conditions (“Deferred Stock”):   (i) Award and Restrictions. Delivery of Stock shall occur upon expiration of the deferral period specified for  an Award of Deferred Stock by the Committee (or, if permitted by the Committee, as elected by the Participant). In  addition, Deferred Stock shall be subject to such restrictions as the Committee may impose, if any, which  restrictions may lapse at the expiration of the deferral period or at earlier specified times, separately or in  combination, in installments or otherwise, as the Committee may determine.   (ii) Forfeiture. Except as otherwise determined by the Committee, upon termination of employment or service  (as determined under criteria established by the Committee) during the applicable deferral period or portion thereof  to which forfeiture conditions apply (as provided in the Award Agreement evidencing the Deferred Stock), all  Deferred Stock that is at that time subject to such forfeiture conditions shall be forfeited; provided, however, that  the Committee may provide, by rule or regulation or in any Award Agreement, or may determine in any individual  case, that restrictions or forfeiture conditions relating to Deferred Stock will be waived in whole or in part in the  event of termination resulting from specified causes.   (f) Bonus Stock and Awards in Lieu of Cash Obligations. The Committee is authorized to grant Stock as a bonus, or  to grant Stock or other Awards in lieu of Company obligations to pay cash under other plans or compensatory  arrangements.   (g) Dividend Equivalents. The Committee is authorized to grant awards entitling the Participant to receive cash,  Stock, other Awards or other property equal in value to dividends paid with respect to a specified number of shares of  Stock (“Dividend Equivalents”). Dividend Equivalents may be awarded on a free-standing basis or in connection with  any other Award. The Committee may provide that Dividend Equivalents shall be paid or distributed when accrued or  shall be deemed to have been reinvested in additional Stock, Awards or other investment vehicles, and be subject to such  





 






      7     171936 v1     restrictions on transferability and risks of forfeiture, as the Committee may specify. Dividend Equivalents may be paid,  distributed or accrued in connection with any Award, whether or not vested.   (h) Other Stock-Based Awards. The Committee is authorized, subject to limitations under applicable law and  regulation, to grant such other Awards that may be denominated or payable in, valued in whole or in part by reference to,  or otherwise based on, or related to, Stock and factors that may influence the value of Stock, as deemed by the  Committee to be consistent with the purposes of the Plan, including, without limitation, convertible or exchangeable debt  securities, other rights convertible or exchangeable into Stock, purchase rights for Stock, Awards with value and payment  contingent upon performance of the Company or any other factors designated by the Committee, and Awards valued by  reference to the book value of Stock or the value of securities of or the performance of specified Subsidiaries (“Other  Stock-Based Awards”). An award granted under the BGC Holdings, L.P. Participation Plan that involves a limited  partnership interest in BGC Holdings, L.P. that is exchangeable for or otherwise represents a right to acquire Stock in  accordance with Section 4.5 of that plan shall also constitute an Other Stock-Based Award within the meaning of this  Section 6(h). In addition, Awards granted to provide shares of Stock issuable upon the exchange of exchangeable  compensatory BGC Holdings, L.P. founding partner interests shall constitute Other Stock-Based Awards within the  meaning of this Section 6(h). The Committee shall determine the terms and conditions of Other Stock-Based Awards.  Stock issued pursuant to such an Award in the nature of a purchase right granted under this Section 6(h) shall be  purchased for such consideration, paid for at such times, by such methods, and in such forms, including, without  limitation, cash, Stock, other Awards, or other property, as the Committee shall determine. Cash awards, as an element of  or supplement to any other Award under the Plan, may be granted pursuant to this Section 6(h).   7. Certain Provisions Applicable to Awards.   (a) Stand-Alone, Additional, Tandem, and Substitute Awards. Awards granted under the Plan may, as determined by  the Committee, be granted either alone or in addition to, in tandem with or in substitution for any other Award granted  under the Plan or any award granted under any other plan of the Company, its Parent or Subsidiaries or any business  entity to be acquired by the Company or a Subsidiary, or any other right of a Participant to receive payment from the  Company, its Parent or Subsidiaries. Awards granted in addition to or in tandem with other Awards, awards or rights may  be granted either as of the same time as or a different time from the grant of such other Awards, awards or rights.   (b) Term of Awards. The term of each Award shall be for such period as may be determined by the Committee;  provided, however, that in no event shall the term of any ISO or SAR granted in tandem therewith exceed a period of ten  years from the date of its grant (or such shorter period as may be applicable under Section 422 of the Code).      (c) Form of Payment Under Awards. Subject to the terms of the Plan and any applicable Award Agreement,  payments to be made by the Company, its Parent or Subsidiaries upon the grant, exercise or settlement of an Award may  be made in such forms as the Committee shall determine, including, without limitation, cash, Stock, other Awards or  other property, and may be made in a single payment or transfer, in installments or on a deferred basis. Such payments  may include, without limitation, provisions for the payment or crediting of reasonable interest on installment or deferred  payments or the grant or crediting of Dividend Equivalents in respect of installment or deferred payments denominated in  Stock.   (d) Loans in Connection with an Award. The Company may not, in connection with any Award, extend, maintain,  renew, guarantee or arrange for credit in the form of a personal loan to any Participant who is a director or executive  officer of the Company (within the meaning of the Exchange Act); provided, however, that, with the consent of the  Committee, and subject at all times to, and only to the extent, if any, permitted under applicable law and regulation and  other binding obligations or provisions applicable to the Company, the Company may extend, maintain, renew, guarantee  or arrange for credit in the form of a personal loan to a Participant who is not such a director or executive officer in  connection with any Award, including the payment by such Participant of any or all federal, state or local income or other  taxes due in connection with any Award. Subject to such limitations, the Committee shall have full authority to decide  whether to make a loan hereunder and to determine the amount, terms and provisions of any such loan, including, without  limitation, the interest rate to be charged in respect of any such loan, whether the loan is to be with or without recourse  against the borrower, the terms on which the loan is to be repaid and the conditions, if any, under which the loan may be  forgiven.   (e) Performance-Based Awards.   





 






      8     171936 v1     (i) Setting of Performance Objectives. The Committee may designate any Award, the grant, exercisability or  settlement of which is subject to the achievement of performance conditions, as a performance-based Award subject  to this Section 7(e), in order to qualify such Award as “qualified performance-based compensation” within the  meaning of Section 162(m) of the Code. The performance objectives for an Award subject to this Section 7(e) shall  consist of one or more business criteria and a targeted level or levels of performance with respect to such criteria, as  specified by the Committee but subject to this Section 7(e). Performance objectives shall be objective and shall  otherwise meet the requirements of Section 162(m)(4)(C) of the Code. Business criteria used by the Committee in  establishing performance objectives for Awards subject to this Section 7(e) shall be based exclusively on one or  more of the following corporate-wide or subsidiary, division or operating unit financial and strategic measures:   (i) pre-tax or after-tax net income,   (ii) pre-tax or after-tax operating income,   (iii) gross revenue,   (iv) profit margin,   (v) stock price,   (vi) cash flow(s),   (vii) market share,   (viii) pre-tax or after-tax earnings per share,   (ix) pre-tax or after-tax operating earnings per share,   (x) expenses,   (xi) return on equity, or   (xii) strategic business criteria, consisting of one or more objectives based on meeting specified  revenue, market penetration, or geographic business expansion goals, cost targets, or goals relating to  acquisitions or dispositions.   The levels of performance required with respect to such business criteria may be expressed on an absolute and/or relative  basis, may be based on or otherwise employ comparisons based on current internal targets, the past performance of the  Company (including the performance of one or more subsidiaries, divisions and/or operating units) and/or the past or current  performance of other companies, and in the case of earnings-based measures, may use or employ comparisons relating to  capital (including, without limitation, the cost of capital), stockholders’ equity and/or shares outstanding, or to assets or net  assets. Performance objectives may differ for such Awards to different Participants. The Committee shall specify the weighting  to be given to each performance objective for purposes of determining the final amount payable with respect to any such  Award. The Committee may, in its discretion, reduce the amount of a payout otherwise to be made in connection with an  Award subject to this Section 7(e), but may not exercise discretion to increase such amount, and the Committee may consider  other performance criteria in exercising such discretion.      The Committee may not delegate any responsibility with respect to an Award subject to this Section 7(e).   (ii) Impact of Extraordinary Items or Changes in Accounting. To the extent applicable, the measures used in  setting performance objectives for any given performance period shall be determined in accordance with generally  accepted accounting principles (“GAAP”) in a manner consistent with the methods used in the Company’s audited  financial statements, without regard to (i) extraordinary items as determined by the Company’s independent  registered public accounting firm in accordance with GAAP, (ii) changes in accounting, unless, in each case, the  Committee decides otherwise within the period described in Treas. Reg. Sec. 1.162-27(e)(2) (as may be amended  from time to time) for a given performance period, or (iii) non-recurring acquisition expenses and restructuring  charges. Notwithstanding the foregoing, in calculating operating earnings or operating income (including on a per  share basis), the Committee may, within the period described in Treas. Reg. Sec. 1.162-27(e)(2) (as may be  amended from time to time) for a given performance period, provide that such calculation shall be made on the  





 






      9     171936 v1     same basis as reflected in a release of the Company’s earnings for a previously completed period as specified by the  Committee.   (f) Acceleration Upon a Change of Control. Notwithstanding anything contained herein to the contrary, except as  set forth in an Award Agreement, all conditions and/or restrictions relating to the continued performance of services  and/or the achievement of performance objectives with respect to the exercisability or full enjoyment of an Award shall  accelerate or otherwise lapse immediately prior to a Change in Control.   8. General Provisions.   (a) Issuance of Stock; Compliance with Laws and Obligations. The Company shall not be obligated to issue or  deliver Stock in connection with any Award or take any other action under the Plan in a transaction subject to the  requirements of any applicable federal or state securities law, any requirement under any listing agreement between the  Company and any national securities exchange or any other law, regulation or contractual obligation of the Company  until the Company is satisfied that such laws, requirements, regulations, and other obligations of the Company have been  complied with in full. Certificates representing shares of Stock issued under the Plan will be subject to such stop-transfer  orders and other restrictions as may be applicable under such laws, requirements, regulations and other obligations of the  Company, including any requirement that a legend or legends be placed thereon.   (b) Limitations on Transferability. Awards and other rights under the Plan shall not be transferable by a Participant  except by will or the laws of descent and distribution or to a Beneficiary in the event of the Participant’s death, shall not  be pledged, mortgaged, hypothecated or otherwise encumbered, or otherwise subject to the claims of creditors, and, in the  case of ISOs and SARs in tandem therewith, shall be exercisable during the lifetime of a Participant only by such  Participant or his guardian or legal representative; provided, however, that such Awards and other rights (other than ISOs  and SARs in tandem therewith) may be transferred to one or more transferees during the lifetime of the Participant to the  extent and on such terms and conditions as then may be permitted by the Committee. A Beneficiary, transferee, or other  person claiming any rights under the Plan from or through any Participant shall be subject to all of the terms and  conditions of the Plan and any Award Agreement applicable to such Participant, except as otherwise determined by the  Committee, and to any additional terms and conditions determined by the Committee, whether imposed at or subsequent  to the grant or transfer of the Award.   (c) No Right to Continued Employment or Service. Neither the Plan nor any action taken hereunder shall be  construed as giving any employee, director or other person the right to be retained in the employ or service of the  Company, its Parent or any Subsidiary, nor shall it interfere in any way with the right of the Company, its Parent or any  Subsidiary to terminate any employee’s employment or other person’s service at any time or with the right of the Board  or stockholders to remove any director. Unless otherwise specified in the applicable Award Agreement, (i) an approved  leave of absence shall not be considered a termination of employment or service for purposes of an Award, and (ii) any  Participant who is employed by or performs services for a Parent or a Subsidiary shall be considered to have terminated  employment or service for purposes of an Award if such Parent or Subsidiary no longer qualifies as a Parent or  Subsidiary, unless such Participant remains employed by the Company, a Parent, or a Subsidiary.   (d) Taxes. The Company, its Parent and Subsidiaries are authorized to withhold from any delivery of Stock in  connection with an Award, any other payment relating to an Award or any payroll or other payment to a Participant  amounts of withholding and other taxes due or potentially payable in connection with any transaction involving an  Award, and to take such other action as the Committee may deem necessary or advisable to enable the Company, its  Parent and Subsidiaries and Participants to satisfy obligations for the payment of withholding taxes and other tax  obligations relating to any Award. This authority shall include authority to withhold or receive Stock or other property  and to make cash payments in respect thereof in satisfaction of a Participant’s tax obligations.   (e) Changes to the Plan and Awards. The Board may amend, alter, suspend, discontinue or terminate the Plan or the  Committee’s authority to grant Awards under the Plan without the consent of stockholders or Participants, except that  any such action shall be subject to the approval of the Company’s stockholders at or before the next annual meeting of  stockholders for which the record date is after such Board action if such stockholder approval is required by any federal  or state law or regulation or the applicable rules of any stock exchange, and the Board may otherwise determine to submit  other such changes to the Plan to stockholders for approval; provided, however, that, without the consent of an affected  Participant, no such action may materially impair the rights of such Participant under any Award theretofore granted to  him or her (as such rights are set forth in the Plan and the Award Agreement). The Committee may waive any conditions  or rights under, or amend, alter, suspend, discontinue, or terminate, any Award theretofore granted and any Award  





 






      10     171936 v1     Agreement relating thereto; provided, however, that, without the consent of an affected Participant, no such action may  materially impair the rights of such Participant under such Award (as such rights are set forth in the Plan and the Award  Agreement). Notwithstanding the foregoing, the Board or the Committee may take any action, including, without  limitation, actions affecting or terminating outstanding Awards if and to the extent permitted by the Plan or applicable  Award Agreement. The Board or the Committee shall also have the authority to establish separate sub-plans under the  Plan with respect to Participants resident in a particular jurisdiction (the terms of which shall not be inconsistent with  those of the Plan) if necessary or advisable to comply with applicable law or regulation of such jurisdiction.   (f) No Rights to Awards; No Stockholder Rights. No person shall have any claim to be granted any Award under the  Plan, and there is no obligation for uniformity of treatment of Participants. No Award shall confer on any Participant any  of the rights of a stockholder of the Company unless and until Stock is duly issued or transferred and delivered to the  Participant in accordance with the terms of the Award or, in the case of an Option, the Option is duly exercised.   (g) Unfunded Status of Awards; Creation of Trusts. The Plan is intended to constitute an “unfunded” plan for  incentive and deferred compensation. With respect to any payments not yet made to a Participant pursuant to an Award,  nothing contained in the Plan or any Award shall give any such Participant any rights that are greater than those of a  general creditor of the Company; provided, however, that the Committee may authorize the creation of trusts or make  other arrangements to meet the Company’s obligations under the Plan to deliver cash, Stock, other Awards, or other  property pursuant to any Award, which trusts or other arrangements shall be consistent with the “unfunded” status of the  Plan unless the Committee otherwise determines with the consent of each affected Participant.   (h) Non-exclusivity of the Plan. Neither the adoption of the Plan by the Board nor any submission of the Plan or  amendments thereto to the stockholders of the Company for approval shall be construed as creating any limitations on the  power of the Board or the Committee to adopt such other compensatory arrangements as it may deem necessary or  advisable, including, without limitation, the granting of stock options otherwise than under the Plan, and such  arrangements may be either applicable generally or only in specific cases.   (i) No Fractional Shares. No fractional shares of Stock shall be issued or delivered pursuant to the Plan or any  Award. The Committee shall determine whether cash, other Awards, or other property shall be issued or paid in lieu of  such fractional shares or whether such fractional shares or any rights thereto shall be forfeited or otherwise eliminated.   (j) Compliance with Law and Regulation. It is the intent of the Company that employee Options, SARs and other  Awards designated as Awards subject to Section 7(e) shall constitute “qualified performance-based compensation”  within the meaning of Section 162(m) of the Code. Accordingly, if any provision of the Plan or any Award Agreement  relating to such an Award does not comply or is inconsistent with the requirements of Section 162(m) of the Code, such  provision shall be construed or deemed amended to the extent necessary to conform to such requirements, and no  provision shall be deemed to confer upon the Committee or any other person discretion to increase the amount of  compensation otherwise payable in connection with any such Award upon attainment of the performance objectives.  With respect to persons subject to Section 16 of the Exchange Act, it is the intent of the Company that the Plan and all  transactions under the Plan comply with applicable provisions of Rule 16b-3. In addition, it is the intent of the Company  that ISOs comply with applicable provisions of Section 422 of the Code, and that, to the extent applicable, Awards  comply with the requirements of Sections 409A and 280G of the Code or an exception from such requirements. The  Committee may revoke any Award if it is contrary to law or regulation or modify an Award to bring it into compliance  with any applicable law or regulation.   (k) Governing Law. The validity, construction and effect of the Plan, any rules and regulations relating to the Plan  and any Award Agreement shall be determined in accordance with the laws of the State of Delaware, without giving  effect to principles of conflicts of laws, and applicable federal law.   (l) Plan Termination. The Plan shall continue in effect until terminated by the Board.