exv10w4






Exhibit 10.4




TRONOX INCORPORATED

2010 MANAGEMENT EQUITY INCENTIVE PLAN




ARTICLE I

PURPOSE




     1.1 Purpose of the Plan. The Plan shall be known as the Tronox Incorporated 2010
Management Equity Incentive Plan (the “Plan”). The Plan is intended to further the growth
and profitability of the Company by increasing incentives and encouraging Share ownership on the
part of the Employees, Members of the Board, and Independent Contractors of Tronox Incorporated
(the “Company”) and its Subsidiaries. The Plan is intended to permit the grant of Awards
that constitute Incentive Stock Options, Non-Qualified Stock Options, Stock Appreciation Rights,
Restricted Stock, Restricted Stock Units, Performance Awards and Other Stock-Based Awards, cash
payments and such other forms as the Committee in its discretion deems appropriate, including any
combination of the above.



     1.2 Effective Date. The Plan shall be effective on the date of the Company’s
emergence from Chapter 11 bankruptcy proceedings (the “Effective Date”).



ARTICLE II

DEFINITIONS




     The following words and phrases shall have the following meanings unless a different meaning
is plainly required by the context:



     “Affiliate” means (i) any person or entity that directly or indirectly controls or is
controlled by the Company and/or (ii) to the extent provided by the Committee, any person or entity
in which the Company has a significant interest. The term “control” (including, with correlative
meaning, the terms “controlled by” and “under common control with”), as applied to any person or
entity, means the possession, directly or indirectly, of the power to direct or cause the direction
of the management and policies of such person or entity, whether through the ownership of voting or
other securities, by contract or otherwise.



     “Award” means, individually or collectively, a grant under the Plan of Incentive Stock
Options, Non-Qualified Stock Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock
Units, Performance Awards and Other Stock-Based Awards, cash payments and such other forms as the
Committee in its discretion deems appropriate.



     “Award Agreement” means the written agreement setting forth the terms and conditions
applicable to an Award.



     “Base Price” means the price at which a SAR may be exercised with respect to a Share.



     “Board” means the Company’s Board of Directors, as constituted from time to time.



     “Cause” means with respect to a Participant’s Termination from and after the date
hereof, the following (unless the applicable Award Agreement states otherwise): (a) in the case
where there



 









 




is no employment agreement, consulting agreement, change in control agreement or similar
agreement in effect between the Company or an Affiliate and the Participant at the time of the
determination (or where there is such an agreement but it does not define “cause” (or words of like
import)), termination due to: (i) the Participant’s material breach of any written agreement
between the Company or any Affiliate and such Participant or the commission by a Participant of any
indictable offense which carries a maximum penalty of imprisonment; (ii) perpetration by a
Participant of an illegal act, or fraud which could cause demonstrable economic injury to the
Company; (iii) continuing failure by the Participant to perform the Participant’s duties in any
material respect, provided that the Participant is given notice and an opportunity to effectuate a
cure as determined by the Committee; or (iv) a Participant’s willful misconduct with regard to the
Company that could have a material adverse effect on the Company; or (b) in the case where there is
an employment agreement, consulting agreement, change in control agreement or similar agreement in
effect between the Company or an Affiliate and the Participant at the time of the determination
that defines “cause” (or words of like import), “cause” as defined under such agreement; provided,
however, that with regard to any agreement under which the definition of “cause” only applies on
occurrence of a change in control, such definition of “cause” shall not apply until a change in
control actually takes place and then only with regard to a termination thereafter. With respect
to a Participant’s Termination of Directorship, “cause” means an act or failure to act that
constitutes cause for removal of a director under applicable law.




     “Change in Control” means the occurrence, after the Effective Date, of any one or more
of the following events; provided that, with respect to any Award that is subject to
Section 409A of the Code, an event shall not be treated as a Change in Control hereunder unless
such event also constitutes a “change in control event” within the meaning of Section 409A of the
Code:



     (a) any “person” as such term is used in Sections 13(d) and 14(d) of the Exchange Act
(other than the Company, any trustee or other fiduciary holding securities under any employee
benefit plan of the Company, or any company owned, directly or indirectly, by the shareholders of
the Company in substantially the same proportions as their ownership of common stock of the
Company), becoming the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing more than fifty percent (50%) of the
combined voting power of the Company’s then outstanding securities;



     (b) any “person” as such term is used in Sections 13(d) and 14(d) of the Exchange Act
(other than the Company, any trustee or other fiduciary holding securities under any employee
benefit plan of the Company, any company owned, directly or indirectly, or by the shareholders of
the Company in substantially the same proportions as their ownership of common stock of the
Company), becoming the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) in one or
a series of related transactions during any twelve (12)-month period, directly or indirectly, of
securities of the Company representing thirty percent (30%) or more of the combined voting power of
the Company’s then outstanding securities;



     (c) during any one-year period, individuals who at the beginning of such period constitute
the Board, and any new director (other than a director whose initial assumption of office occurs as
a result of either an actual or threatened election contest or other actual or threatened
solicitation of proxies or consents by or on behalf of a person other than the Board) whose
election by the Board or nomination for election by the Company’s shareholders was approved by a
vote of



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at least two-thirds (2/3) of the directors then still in office who either were directors at
the beginning of the one-year period or whose election or nomination for election was previously so
approved, cease for any reason to constitute at least a majority of the Board;




     (d) a merger or consolidation of the Company or a direct or indirect subsidiary of the
Company with any other company, other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of the surviving
entity) more than fifty percent (50%) of the combined voting power of the voting securities of the
Company (including any successor to the Company or the ultimate parent company of the Company);
provided, however, that a merger or consolidation effected to implement a recapitalization
of the Company (or similar transaction) in which no person (other than those covered by the
exceptions in subparagraphs (b) and (c)) acquires more than fifty percent (50%) of the combined
voting power of the Company’s then outstanding securities shall not constitute a Change in Control;
or



     (e) the consummation of a sale or disposition of assets of the Company and/or its direct
and indirect subsidiaries having a value constituting at least forty percent (40%) of the total
gross fair market value of all of the assets of the Company and its direct and indirect
subsidiaries (on a consolidated basis) immediately prior to such transaction, other than the sale
or disposition of all or substantially all of the assets of the Company to a person or persons who
beneficially own, directly or indirectly, more than fifty percent (50%) of the combined voting
power of the outstanding voting securities of the Company at the time of the sale.



     “Code” means the Internal Revenue Code of 1986, as amended. Reference to a specific
section of the Code or regulation thereunder shall include such section or regulation, any valid
regulation or other guidance promulgated under such section, and any comparable provision of any
future legislation or regulation amending, supplementing or superseding such section or regulation.



     “Committee” means at least one committee, as described in Article III., appointed by
the Board from time to time to administer the Plan and to perform the functions set forth herein;
provided that if no such committee exists, the “Committee” means the Board.



     “Disability” means with respect to a Participant’s Termination from and after the date
hereof, the following (unless the applicable Award Agreement states otherwise): (a) in the case
where there is no employment agreement, consulting agreement, change in control agreement or
similar agreement in effect between the Company or an Affiliate and the Participant at the time of
the grant of the Award (or where there is such an agreement but it does not define “disability” (or
words of like import)), termination due to: (i) a permanent and total disability as defined in
Section 22(e)(3) of the Code; or (b) in the case where there is an employment agreement, consulting
agreement, change in control agreement or similar agreement in effect between the Company or an
Affiliate and the Participant at the time of the grant of the Award that defines “disability” (or
words of like import), “disability” as defined under such agreement; provided that with respect to
Incentive Stock Options “disability” shall mean a permanent and total disability as defined in
Section 22(e)(3) of the Code and; provided further, that for Awards that are subject to Section
409A of the Code, Disability shall mean that a Participant is disabled under Section



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409A(a)(2)(C)(i) or (ii) of the Code. A Disability shall only be deemed to occur at the time of the
determination by the Committee of the Disability.




     “Eligible Individual” means any of the following individuals who is designated by the
Committee in its discretion as eligible to receive Awards subject to the conditions set forth
herein: (a) any Member of the Board, officer or Employee of the Company or a Subsidiary or
Affiliate of the Company, (b) any individual to whom the Company, or a Subsidiary of the Company,
has extended a formal offer of employment, so long as the grant of any Award shall not become
effective until the individual commences employment or (c) any Independent Contractor or advisor of
the Company or a Subsidiary or Affiliate.



     “Employee” means an employee of the Company or a Subsidiary or Affiliate.
Notwithstanding anything to the contrary contained herein, the Committee may grant Awards to an
individual who has been extended an offer of employment by the Company or a Subsidiary or
Affiliate; provided that any such Award shall be subject to forfeiture if such individual does not
commence employment by a date established by the Committee.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended. Reference to a
specific section of the Exchange Act or regulation thereunder shall include such section or
regulation, any valid regulation or interpretation promulgated under such section, and any
comparable provision of any future legislation or regulation amending, supplementing or superseding
such section or regulation.



     “Exercise Price” means the price at which a Share subject to an Option may be
purchased upon the exercise of the Option.



     “Fair Market Value” means, except as otherwise specified in a particular Award
Agreement, (a) while the Shares are readily traded on an established national or regional
securities exchange, the closing transaction price of such a Share as reported by the principal
exchange on which such Shares are traded on the date as of which such value is being determined or,
if there was no reported transaction for such date, the opening transaction price as reported by
the exchange for the first trading date following the date by which such value is being determined
on the next preceding date for which a transaction was reported, (b) if the Shares are not readily
traded on an established national or regional securities exchange, the value as determined by the
Board, in its sole discretion, on a good faith basis, taking into account the requirements of
Section 409A of the Code.



     “Grant Date” means the date that the Award is granted.



     “Immediate Family” means the Participant’s children, stepchildren, grandchildren,
parents, stepparents, grandparents, spouse, siblings (including half-brothers and half-sisters),
in-laws (including all such relationships arising because of legal adoption) and any other person
required under applicable law to be accorded a status identical to any of the foregoing.



     “Incentive Stock Option” means an Option that is designated as an Incentive Stock
Option and is intended by the Committee to meet the requirements of Section 422 of the Code.



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     “Independent Contractor” means an independent contractor or consultant of the Company
or a Subsidiary. Notwithstanding anything to the contrary contained herein, the Committee may
grant Awards to an individual who has been extended an offer to become an independent contractor or
consultant by the Company or a Subsidiary; provided that any such Award shall be subject to
forfeiture if such individual does not commence his or her duties by a date established by the
Committee.



     “Member of the Board” means an individual who is a member of the Board or of the board
of directors of a Subsidiary or Affiliate.



     “Non-Employee Director” means a director or a member of the Board of the Company or
any Affiliate who is not an active employee of the Company or any Affiliate.



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



     “Option” means an option to purchase Shares granted pursuant to Article VI.



     “Other Stock-Based Award” means an Award under Article X of this Plan that is valued
in whole or in part by reference to, or is payable in or otherwise based on, Shares including,
without limitation, an Award valued by reference to an Affiliate.



     “Participant” means an Employee, Independent Contractor, or Member of the Board with
respect to whom an Award has been granted and remains outstanding.



     “Performance Award” means an Award granted to a Participant pursuant to Article IX
hereof contingent upon achieving certain Performance Goals.



     “Performance Goals” means goals established by the Committee as contingencies for
Awards to vest and/or become exercisable or distributable.



     “Performance Period” means the designated period during which the Performance Goals
must be satisfied with respect to the Award to which the Performance Goals relate.



     “Period of Restriction” means the period during which Awards are subject to forfeiture
and/or restrictions on transferability.



     “Restricted Stock” means a Stock Award granted pursuant to Article VII under which the
Shares are subject to forfeiture upon such terms and conditions as specified in the relevant Award
Agreement.



     “Restricted Stock Unit” or “RSU” means a Stock Award granted pursuant to
Article VII subject to a period or periods of time after which the Participant will receive Shares
(which may be settled in cash at the Company’s discretion) if the conditions contained in such
Stock Award have been met.



     “Securities Act” means the Securities Act of 1933, as amended, and any successor
thereto. Reference in the Plan to any section of (or rule promulgated under) the Securities Act
shall be



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deemed to include any rules, regulations or other interpretative guidance under such
section or rule, and any amendments or successor provisions to such section, rules, regulations or
guidance.




     “Share” means the Company’s common shares, or any security issued by the Company or
any successor in exchange or in substitution therefore.



     “Stock Appreciation Right” or “SAR” means an Award granted pursuant to Article
VIII, granted alone or in tandem with a related Option which is designated by the Committee as a
SAR.



     “Stock Award” means an Award of Restricted Stock or an RSU pursuant to Article VII.



     “Subsidiary” means, with respect to any person, any corporation, limited liability
company, partnership, association or other business entity of which (a) if a corporation, a
majority of the total voting power of shares entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by that person or one or more of the other
Subsidiaries of that person or a combination thereof, or (b) if a limited liability company,
partnership, association or other business entity, a majority of the limited liability company,
partnership or other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by any person or one or more Subsidiaries of that person or a combination
thereof. For purposes hereof, person or persons shall be deemed to have a majority ownership
interest in a limited liability company, partnership, association or other business entity if such
person or persons shall be allocated a majority of limited liability company, partnership,
association or other business entity gains or losses or shall be or control the managing director
or general partner of such limited liability company, partnership, association or other business
entity.



     “Ten Percent Holder” means an Employee (together with persons whose stock ownership is
attributed to the Employee pursuant to Section 424(d) of the Code) who, at the time an Option is
granted, owns shares representing more than ten percent of the voting power of all classes of
securities of the Company.



     “Termination” means a Termination of Consultancy, Termination of Directorship or
Termination of Employment, as applicable. Notwithstanding the foregoing, for Awards that are
subject to Section 409A of the Code and that are settled or distributed upon a “Termination,” the
foregoing definition shall only apply to the extent the applicable event would also constitute a
“separation from service” under Code Section 409A.



     “Termination of Consultancy” means: (a) that the Independent Contractor is no longer
acting as a consultant to the Company or an Affiliate; or (b) when an entity which is retaining a
Participant as an Independent Contractor ceases to be an Affiliate unless the Participant otherwise
is, or thereupon becomes, an Independent Contractor to the Company or another Affiliate at the time
the entity ceases to be an Affiliate. In the event that an Independent Contractor becomes an
Eligible Employee or a Non-Employee Director upon the termination of his or her consultancy,
unless otherwise determined by the Committee, in its sole discretion, no Termination of
Consultancy shall be deemed to occur until such time as such Independent Contractor is no longer an
Independent Contractor, an Eligible Employee or a Non-Employee Director.



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     “Termination of Directorship” means that the Non-Employee Director has ceased to be a
director of the Company; except that if a Non-Employee Director becomes an Eligible Employee or a
Consultant upon the termination of his or her directorship, his or her ceasing to be a director of
the Company shall not be treated as a Termination of Directorship unless and until the Participant
has a Termination of Employment or Termination of Consultancy, as the case may be.



     “Termination of Employment” means: (a) a termination of employment (for reasons other
than a military or personal leave of absence granted by the Company) of a Participant from the
Company and its Affiliates; or (b) when an entity which is employing a Participant ceases to be an
Affiliate, unless the Participant otherwise is, or thereupon becomes, employed by the Company or
another Affiliate at the time the entity ceases to be an Affiliate. In the event that an Eligible
Employee becomes an Independent Director upon the termination of his or her employment, unless
otherwise determined by the Committee, in its sole discretion, no Termination of Employment shall
be deemed to occur until such time as such Eligible Employee is no longer an Eligible Employee or
an Independent Director. Notwithstanding the foregoing, the Committee may otherwise define
Termination of Employment in the Award Agreement, provided that any such change to the
definition of the term “Termination of Employment” does not subject the applicable Award to adverse
consequences under Section 409A of the Code.



     “Transfer” means: (a) when used as a noun, any direct or indirect transfer, sale,
assignment, pledge, hypothecation, encumbrance or other disposition (including the issuance of
equity in a Person), whether for value or no value and whether voluntary or involuntary (including
by operation of law), and (b) when used as a verb, to directly or indirectly transfer, sell,
assign, pledge, encumber, charge, hypothecate or otherwise dispose of (including the issuance of
equity in a Person) whether for value or for no value and whether voluntarily or involuntarily
(including by operation of law). “Transferred” and “Transferable” shall have a correlative
meaning.



ARTICLE III

ADMINISTRATION




     3.1 The Committee. The Plan shall be administered by the Committee. The
Committee shall consist of two (2) or more Members of the Board (as appointed by the Board) and may
consist of the entire Board. Unless otherwise determined by the Board, the Committee shall be the
Compensation Committee.



     3.2 Authority and Action of the Committee. It shall be the duty of the Committee
to administer the Plan in accordance with the Plan’s provisions. The Committee shall have all
powers and discretion necessary or appropriate to administer the Plan and to control its operation,
including, but not limited to, the full and final authority in its discretion to (a) determine
which Eligible Individuals shall be eligible to receive Awards and to grant Awards, (b) prescribe
the form, amount, timing and other terms and conditions of each Award, (c) interpret the Plan and
the Award Agreements (and any other instrument relating to the Plan), (d) adopt such procedures as
it deems necessary or appropriate to permit participation in the Plan by Eligible Individuals, (e)
adopt such
rules as it deems necessary or appropriate for the administration, interpretation and
application of the Plan, (f) interpret, amend or revoke any such procedures or rules, (g) correct
any defect(s) or omission(s), or reconcile any inconsistency(ies), in the Plan and/or any Award
Agreement, (h) accelerate the vesting of any Award, (i) extend the period during which an Option or
SAR may be



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exercisable, and (j) make all other decisions and determinations that may be required
pursuant to the Plan and/or any Award Agreement or as the Committee deems necessary or advisable to
administer the Plan.




     The acts of the Committee shall be acts approved in writing by all of the members of the
Committee. The Committee’s determinations under the Plan need not be uniform and may be made
selectively among Participants, whether or not such Participants are similarly situated. Each
member of the Committee is entitled to rely or act upon any report or other information furnished
to that member by any Employee of the Company or any of its Subsidiaries or Affiliates, the
Company’s independent certified public accountants or any executive compensation consultant or
other professional retained by the Company to assist in the administration of the Plan.



     The Company shall effect the granting of Awards under the Plan, in accordance with the
determinations made by the Committee, by execution of written agreements and/or other instruments
in such form as is approved by the Committee.



     3.3 Delegation by the Committee.



          3.3.1 The Committee, in its sole discretion and on such terms and conditions as it may
provide, may delegate all or any part of its authority and powers under the Plan to one or more
Members of the Board of the Company and/or officers of the Company; provided,
however, that the Committee may not delegate its authority or power if prohibited by
applicable law.



          3.3.2 The Committee may, in its sole discretion, employ such legal counsel, consultants
and agents as it may deem desirable for the administration of this Plan and may rely upon any
opinion received from any such counsel or consultant and any computation received from any such
consultant or agent. Expenses incurred by the Committee or the Board in the engagement of any such
counsel, consultant or agent shall be paid by the Company.



     3.4 Indemnification. Each person who is or shall have been a member of the
Committee, or of the Board and any person designated pursuant to Section 3.3.1, shall be
indemnified and held harmless by the Company against and from (a) any loss, cost, liability, or
expense that may be imposed upon or reasonably incurred by him or her in connection with or
resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which
he or she may be involved by reason of any good faith action taken or good faith failure to act
under the Plan or any Award Agreement, and (b) from any and all amounts paid by him or her in
settlement thereof, with the Company’s approval, or paid by him or her in satisfaction of any
judgment in any such claim, action, suit, or proceeding against him or her, provided he or
she shall give the Company an opportunity, at its own expense, to handle and defend the same before
he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of
indemnification shall not be available to the extent that a final judgment or other final
adjudication (in either case not subject to further appeal) binding upon the person otherwise to
be indemnified under this Section 3.4 determines that the acts or
omissions or determinations of such person giving rise to the indemnification claim resulted
from such person’s bad faith, fraud or willful criminal act or omission or that such right of
indemnification is otherwise prohibited by law or by the Company’s Certificate or Incorporation or
Bylaws. The foregoing right of indemnification shall not be exclusive of any other rights of
indemnification to which such persons may be entitled under the



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Company’s Certificate of
Incorporation or Bylaws (or other organizational document) of the Company or a Subsidiary or
Affiliate, by contract, as a matter of law, or otherwise, or under any power that the Company may
have to indemnify them or hold them harmless.




     3.5 Decisions Binding. All determinations, decisions and interpretations of the
Committee, the Board, and any delegate of the Committee pursuant to the provisions of the Plan or
any Award Agreement shall be final, conclusive, and binding on all persons, and shall be given the
maximum deference permitted by law.



ARTICLE IV

SHARES SUBJECT TO THE PLAN




     4.1 Number of Shares. Subject to adjustment as provided in Section 4.2, the
number of Shares available for delivery pursuant to Awards granted under the Plan shall be
1,200,000 Shares (the “Share Reserve”), of which not more than 360,000 Shares shall be
available for delivery pursuant to Stock Awards or Other Stock Awards under the Plan. Shares
awarded under the Plan may be; authorized but unissued Shares, authorized and issued Shares
reacquired and held as treasury Shares or a combination thereof. To the extent permitted by
applicable law or exchange rules, Shares issued in assumption of, or in substitution for, any
outstanding awards of any entity acquired in any form of combination by the Company or any
Subsidiary or Affiliate shall not reduce the Shares available for grants of Awards under this
Section 4.1. The maximum number of Shares with respect to which Incentive Stock Options may be
granted shall be equal to the Share Reserve. Within ten (10) days following the Effective Date, the
Committee shall grant Restricted Stock Awards (and no other forms of Award) to certain Employees
representing no less than 220,000 Shares.



     4.2 Lapsed Awards. To the extent that Shares subject to an outstanding Option
(except to the extent Shares are issued or delivered by the Company in connection with the exercise
of a tandem SAR) or other Award are not issued or delivered by reason of (i) the expiration,
cancellation, forfeiture or other termination of such Award, (ii) the withholding of such Shares in
satisfaction of applicable federal, state or local taxes or (iii) the settlement of all or a
portion of such Award in cash, then such Shares shall again be available under this Plan.



     4.3 Changes in Capital Structure. Unless otherwise provided in the Award
Agreement, in the event that any extraordinary dividend or other extraordinary distribution
(whether in the form of cash, Shares, other securities, or other property), recapitalization, stock
split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, change of control or exchange of Shares or other securities of the Company, or other
corporate transaction or event (each a “Corporate Event”) affects the Shares, the Board or
the Committee shall make any adjustments in such manner as it, in good faith, deems equitable or
appropriate, in (i) the number of Shares or other securities of the Company (or number and kind of
other securities or property)
which may be delivered in respect of Awards or with respect to which Awards may be granted
under the Plan (including, without limitation, adjusting any or all of the limitations under this
Article IV), (ii) the number of Shares or other securities of the Company (or number and kind of
other securities or property) subject to outstanding Awards or to which outstanding Awards relate,
and (iii) the Exercise Price or Base Price with respect to any Award, or make provision for an



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immediate cash payment to the holder of an outstanding Award in consideration for the cancellation
of such Award (based on the spread).




          4.3.1 If the Company enters into or is involved in any Corporate Event, the Board or the
Committee shall, prior to such Corporate Event and upon such Corporate Event, take such action as
it, in good faith, deems to be equitable or appropriate, including, but not limited to, replacing
Awards with substitute awards in respect of the Shares, cash, other securities or other property of
the surviving corporation or any affiliate of the surviving corporation on such terms and
conditions, as to the number of Shares, pricing and otherwise, to substantially preserve the value,
rights and benefits of any affected Awards granted hereunder as of the date of the consummation of
the Corporate Event. Notwithstanding anything to the contrary in the Plan, if a Change in Control
occurs, the Company shall have the right, but not the obligation, to cancel each Participant’s
Awards immediately prior to such Change in Control and to pay to each affected Participant in
connection with the cancellation of such Participant’s Awards, an amount that the Committee, in its
sole discretion, determines to be the equivalent value of such Award (e.g., in the case of an
Option or SAR, the amount of the spread), it being understood that the equivalent value of an
Option or SAR with an exercise price greater than or equal to the Fair Market Value of the
underlying Shares shall be zero.



          4.3.2 Upon receipt by any affected Participant of any such substitute awards (or payment)
as a result of any such Corporate Event, such Participant’s affected Awards for which such
substitute awards (or payment) were received shall be thereupon cancelled without the need for
obtaining the consent of any such affected Participant. Any actions or determinations of the
Committee under this Section 4.3 need not be uniform as to all outstanding Awards, nor treat all
Participants identically.



     4.4 Minimum Purchase Price. Notwithstanding any provision of this Plan to the
contrary, if authorized but previously unissued Shares are issued under this Plan, such Shares
shall not be issued for a consideration that is less than as permitted under applicable law.



ARTICLE V

GENERAL REQUIREMENTS FOR AWARDS




     5.1 Awards Under the Plan. Awards under the Plan may be in the form of Incentive
Stock Options, Non-Qualified Stock Options, Stock Appreciation Rights, Restricted Stock, Restricted
Stock Units, Performance Awards and Other Stock-Based Awards, cash payments and such other forms as
the Committee in its discretion deems appropriate, including any combination of the above. No
fractional Shares shall be issued under the Plan nor shall any right be exercised under the Plan
with respect to a fractional Share.



     5.2 General Eligibility. All Eligible Individuals are eligible to be granted
Awards, subject to the terms and conditions of this Plan. Eligibility for the grant of Awards and
actual participation in this Plan shall be determined by the Committee in its sole discretion.



     5.3 Incentive Stock Options. Notwithstanding anything herein to the contrary,
only eligible Employees of the Company, its Subsidiaries and its parent (if any) are eligible to be
granted



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Incentive Stock Options under this Plan. Eligibility for the grant of an Incentive Stock
Option and actual participation in this Plan shall be determined by the Committee in its sole
discretion.




     5.4 Participation. No person shall have the right to be selected to receive an
Award under this Plan, or, having been so selected, to be selected to receive a future Award. The
Committee’s determination under the Plan (including, without limitation, determination of the
eligible Employees who shall be granted Awards, the form, amount and timing of such Awards, the
terms and provisions of Awards and the Award Agreements and the establishment of Performance Goals)
need not be uniform and may be made by it selectively among eligible Employees who receive or are
eligible to receive Awards under the Plan, whether or not such eligible Employees are similarly
situated.



     5.5 Conditions and Restrictions on Shares. Each Participant to whom an Award is
made under the Plan shall (i) enter into an Award Agreement with the Company that shall contain
such provisions consistent with the provisions of the Plan, as may be approved by the Committee and
(ii) to the extent the Award is made at a time prior to the date Shares are listed for trading on
an established securities exchange, enter into a “Stockholder’s Agreement” that is substantially
similar in all material respect to any stockholder’s agreement entered into by any other employee
of the Company or its Subsidiaries in connection with the Award of any equity-based compensation.
Each Award made hereunder shall be subject to the requirement that if at any time the Company
determines that the listing, registration or qualification of the Shares subject to such Award upon
any securities exchange or under any law, or the consent or approval of any governmental body, or
the taking of any other action is necessary or desirable as a condition of, or in connection with,
the exercise or settlement of such Award or the delivery of Shares thereunder, such Award shall not
be exercised or settled and such Shares shall not be delivered unless such listing, registration,
qualification, consent, approval or other action shall have been effected or obtained, free of any
conditions not acceptable to the Company. The Company may require that certificates evidencing
Shares delivered pursuant to any Award made hereunder bear a legend indicating that the sale,
transfer or other disposition thereof by the holder is prohibited except in compliance with the
Securities Act. Finally, no Shares shall be issued and delivered under the Plan, unless the
issuance and delivery of those Shares shall comply with all relevant regulations and any
registration, approval or action thereunder.



     5.6 Clawback/Forfeiture. Notwithstanding anything to the contrary contained
herein, an Award Agreement may provide that the Committee may in its sole discretion cancel such
Award, in whole or in part, if the Participant, without the consent of the Company, while employed
by or providing services to the Company or any Affiliate or after termination of such employment or
service, violates a non-competition, non-solicitation or non-disclosure covenant or agreement or
otherwise engages in activity that is in conflict with or adverse to the interest of the Company or
any Affiliate, including fraud or conduct contributing to any financial restatements or
irregularities, as determined by the Committee in its sole discretion. The Committee may also
provide in an
Award Agreement that if the Participant engages in any activity referred to in the preceding
sentence, the Participant will forfeit any gain realized on the vesting or exercise of such Award,
and must repay the gain to the Company.



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ARTICLE VI

STOCK OPTIONS




     6.1 Grant of Options. Subject to the provisions of the Plan, Options may be
granted to Participants at such times, and subject to such terms and conditions, as determined by
the Committee in its sole discretion. An Award of Options may include Incentive Stock Options,
Non-Qualified Stock Options, or a combination thereof; provided, however, that an Incentive
Stock Option may only be granted to an Employee of the Company or a Subsidiary and no Incentive
Stock Option shall be granted more than ten years after the earlier of (i) the Effective Date or
(ii) the date this Plan is approved by the Company’s shareholders.



     6.2 Award Agreement. Each Option shall be evidenced by an Award Agreement that
shall specify the Exercise Price, the expiration date of the Option, the number of Shares to which
the Option pertains, any conditions to the exercise of all or a portion of the Option, and such
other terms and conditions as the Committee, in its discretion, shall determine. The Award
Agreement pertaining to an Option shall designate such Option as an Incentive Stock Option or a
Non-Qualified Stock Option. Notwithstanding any such designation, to the extent that the aggregate
Fair Market Value (determined as of the Grant Date) of Shares with respect to which Options
designated as Incentive Stock Options are exercisable for the first time by a Participant during
any calendar year (under this Plan or any other plan of the Company, or any parent or subsidiary as
defined in Section 424 of the Code) exceeds $100,000, such Options shall constitute Non-Qualified
Stock Options. For purposes of the preceding sentence, Incentive Stock Options shall be taken into
account in the order in which they are granted.



     6.3 Exercise Price. Subject to the other provisions of this Section, the Exercise
Price with respect to Shares subject to an Option shall be determined by the Committee in its sole
discretion; provided, however, that the Exercise Price with respect to an Incentive
Stock Option granted to a Ten Percent Holder shall not be less than one hundred and ten percent
(110%) of the Fair Market Value of a Share on the Grant Date.



     6.4 Expiration Dates. Each Option shall terminate not later than the expiration
date specified in the Award Agreement pertaining to such Option; provided, however,
that the expiration date with respect to an Option shall not be later than the tenth (10th)
anniversary of its Grant Date and the expiration date with respect to an Incentive Stock Option
granted to a Ten Percent Holder shall not be later than the fifth (5th) anniversary of its Grant
Date.



     6.5 Exercisability of Options. Subject to Section 6.4, Options granted under the
Plan shall be exercisable at such times, and shall be subject to such restrictions and conditions,
as the Committee shall determine in its sole discretion. The exercise of an Option is contingent
upon payment by the optionee of the amount sufficient to pay all taxes required to be withheld by
any governmental agency. Such payment may be in any form approved by the Committee.



     6.6 Method of Exercise. Options shall be exercised in whole or in part by the
Participant’s delivery of a written notice of exercise to the General Counsel of the Company (or
his or her designee) setting forth the number of Shares with respect to which the Option is to be
exercised, accompanied by full payment of the Exercise Price with respect to each such Share and an
amount sufficient to pay all taxes required to be withheld by any governmental agency. The
Exercise Price



12









 




 shall be payable to the Company in full in cash or its equivalent and no Shares
resulting from the exercise of an Option shall be issued until full payment therefore has been
made. The Committee, in its sole discretion, also may permit exercise (a) by tendering previously
acquired Shares or (b) by any other means which the Committee, in its sole discretion, determines
to both provide legal consideration for the Shares, and to be consistent with the purposes of the
Plan (including, without limitation, a cashless exercise whereby the Company withholds that number
of Shares with a Fair Market Value equal to the aggregate exercise price of the Options being
exercised). As soon as practicable after receipt of a written notification of exercise and full
payment for the Shares with respect to which the Option is exercised, the Company shall deliver to
the Participant Share certificates (or the equivalent if such Shares are held in book entry form)
for such Shares with respect to which the Option is exercised.




     6.7 Restrictions on Share Transferability. Incentive Stock Options are not
transferable, except by will or the laws of descent. The Committee may impose such additional
restrictions on any Shares acquired pursuant to the exercise of an Option as it may deem advisable,
including, but not limited to, restrictions related to applicable federal securities laws, the
requirements of any national securities exchange or system upon which Shares are then listed or
traded, or any blue sky or state securities laws.



     6.8 Cashing Out of Option. Unless otherwise provided in the Award Agreement, on
receipt of written notice of exercise, the Committee may elect to cash out all or part of the
portion of the Shares for which an Option is being exercised by paying the optionee an amount, in
cash or Shares, equal to the excess of the Fair Market Value of the Shares over the Exercise Price
times the number of Shares for which the Option is being exercised on the effective date of such
cash-out.



     6.9 Certain Powers. Notwithstanding anything herein to the contrary, unless
otherwise provided in the Award Agreement, the Committee may, at its sole and absolute discretion,
(i) lower the Exercise Price of an Option after it is granted, or take any other action with the
effect of lowering the Exercise Price of an Option after it is granted or (ii) permit Participants
to cancel an Option in exchange for another Award.



     6.10 Incentive Stock Options. Should any Option granted under this Plan be
designated an “Incentive Stock Option,” but fail, for any reason, to meet the requirements of the
Code for such a designation, then such Option shall be deemed to be a Non-Qualified Stock Option
and shall be valid as such according to its terms.



ARTICLE VII

STOCK AWARDS




     7.1 Grant of Stock Awards. Subject to the provisions of the Plan, Stock Awards
may be granted to such Participants at such times, and subject to such terms and conditions, as
determined
by the Committee in its sole discretion. Stock Awards may be issued either alone or in
addition to other Awards granted under the Plan.



     7.2 Stock Award Agreement. Each Stock Award shall be evidenced by an Award
Agreement that shall specify the number of Shares granted, the price, if any, to be paid for the
Shares and the Period of Restriction applicable to a Restricted Stock Award or RSU Award and



13









 




such
other terms and conditions as the Committee, in its sole discretion, shall determine including,
without limitation, that an RSU Award may be settled in cash or a combination of cash and Shares.




     7.3 Acceptance. Awards of Restricted Stock must be accepted within a period of
thirty (30) days (or such other period as the Committee may specify) after the grant date, by
executing a Restricted Stock Award Agreement and by paying whatever price (if any) the Committee
has designated thereunder.



     7.4 Transferability/Share Certificates. Shares subject to an Award of Restricted
Stock may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated
during the Period of Restriction. During the Period of Restriction, a Restricted Stock Award may
be registered in the holder’s name or a nominee’s name at the discretion of the Company and may
bear a legend as described in Section 7.5.2. Unless the Committee determines otherwise, shares of
Restricted Stock shall be held by the Company as escrow agent during the applicable Period of
Restriction, together with stock powers or other instruments of assignment (including a power of
attorney), each endorsed in blank with a guarantee of signature if deemed necessary or appropriate
by the Company, which would permit transfer to the Company of all or a portion of the Shares
subject to the Restricted Stock Award in the event such Award is forfeited in whole or part.



     7.5 Other Restrictions. The Committee, in its sole discretion, may impose such
other restrictions on Shares subject to an Award of Restricted Stock as it may deem advisable or
appropriate.



          7.5.1 General Restrictions. The Committee may set restrictions based upon
applicable federal or state securities laws, or any other basis determined by the Committee in its
discretion.



          7.5.2 Legend on Certificates. The Committee, in its sole discretion, may legend
the certificates representing Restricted Stock during the Period of Restriction to give appropriate
notice of such restrictions. For example, the Committee may determine that some or all
certificates representing Shares of Restricted Stock shall bear the following legend: “The sale or
other transfer of the shares of stock represented by this certificate, whether voluntary,
involuntary, or by operation of law, is subject to certain restrictions on transfer as set forth in
the Tronox Incorporated 2010 Management Equity Incentive Plan (the “Plan”), and in a
Restricted Stock Award Agreement (as defined by the Plan). A copy of the Plan and such Restricted
Stock Award Agreement may be obtained from the General Counsel of Tronox Incorporated”



     7.6 Removal of Restrictions. Shares of Restricted Stock covered by a Restricted
Stock Award made under the Plan shall be released from escrow as soon as practicable after the
termination of the Period of Restriction and, subject to the Company’s right to require payment of
any taxes, a certificate or certificates evidencing ownership of the requisite number of
Shares shall be delivered to the Participant.



     7.7 Voting Rights. During the Period of Restriction, Participants holding Shares
of Restricted Stock granted hereunder may exercise full voting rights with respect to those Shares,
unless otherwise provided in the Award Agreement.



14









 





     7.8 Dividends and Other Distributions. Unless otherwise provided in the Award
Agreement, Participants shall be entitled to receive all dividends and other distributions paid
with respect to Stock Awards provided, that any such dividends or other distributions will be
subject to the same vesting requirements as the underlying Stock Awards and shall be paid at the
time the Stock Award becomes vested. If any dividends or distributions are paid in Shares, such
Shares shall be deposited with the Company and shall be subject to the same restrictions on
transferability and forfeitability as the Stock Awards with respect to which they were paid.



ARTICLE VIII

STOCK APPRECIATION RIGHTS




     8.1 Grant of SARs. Subject to the provisions of the Plan, SARs may be granted to
such Participants at such times, and subject to such terms and conditions, as shall be determined
by the Committee in its sole discretion.



     8.2 Base Price and Other Terms. The Committee, subject to the provisions of the
Plan, shall have complete discretion to determine the terms and conditions of SARs granted under
the Plan. Without limiting the foregoing, the Base Price with respect to Shares subject to a
tandem SAR shall be the same as the Exercise Price with respect to the Shares subject to the
related Option.



     8.3 SAR Agreement. Each SAR grant shall be evidenced by an Award Agreement that
shall specify the Base Price, the term of the SAR, the conditions of exercise, and such other terms
and conditions as the Committee, in its sole discretion, shall determine.



     8.4 Expiration Dates. Each SAR shall terminate no later than the tenth (10th)
anniversary of its Grant Date; provided, however, that the expiration date with
respect to a tandem SAR shall not be later than the expiration date of the related Option.



     8.5 Exercisability.



          8.5.1 Method of Exercise. Unless otherwise specified in the Award Agreement
pertaining to a SAR, a SAR may be exercised (a) by the Participant’s delivery of a written notice
of exercise to the General Counsel of the Company (or his or her designee) setting forth the number
of whole SARs which are being exercised, (b) in the case of a tandem SAR, by surrendering to the
Company any Options which are cancelled by reason of the exercise of such SAR, and (c) by executing
such documents as the Company may reasonably request.



          8.5.2 Tandem SARs. Tandem SARs (i.e., SARs issued in tandem with Options) shall
be exercisable only at such time or times and to the extent that the Options to which they
relate shall be exercisable in accordance with the provisions of Article VI. The related
Options which have been surrendered by the exercise of a tandem SAR, in whole or in part, shall no
longer be exercisable to the extent the related tandem SARs have been exercised.



          8.5.3 Discretionary Limitations. If the Committee provides, in its discretion,
that any such right is exercisable subject to certain limitations (including, without limitation,
that it is exercisable only in installments or within certain time periods), the Committee may
waive such



15









 




limitations on the exercisability at any time at or after grant in whole or in part
(including, without limitation, waiver of the installment exercise provisions or acceleration of
the time at which such right may be exercised), based on such factors, if any, as the Committee
shall determine, in its sole discretion. Unless otherwise set forth in an Award Agreement, in the
event that a written employment agreement between the Company and a Participant provides for a
vesting schedule that is more favorable than the vesting schedule provided in the form of Award
agreement, the vesting schedule in such employment agreement shall govern, provided that such
agreement is in effect on the date of grant and applicable to the specific Award.




     8.6 Payment. Except as otherwise provided in the relevant Award Agreement, upon
exercise of a SAR, the Participant shall be entitled to receive payment from the Company in an
amount determined by multiplying: (i) the amount by which the Fair Market Value of a Share on the
date of exercise exceeds the Base Price specified in the Award Agreement pertaining to such SAR by
(ii) the number of Shares with respect to which the SAR is exercised.



     8.7 Payment Upon Exercise of SAR. Payment to a Participant upon the exercise of
the SAR shall be made, as determined by the Committee in its sole discretion, either (a) in cash,
(b) in Shares with a Fair Market Value equal to the amount of the payment or (c) in a combination
thereof, as set forth in the applicable Award Agreement.



ARTICLE IX

PERFORMANCE AWARDS




     9.1 General. The Committee may grant a Performance Award to a Participant,
payable in any form described in Section 5.1, upon the attainment of specific Performance Goals.
If the Performance Award is payable in shares of Restricted Stock, such shares shall be
transferable to the Participant only upon attainment of the relevant Performance Goal in accordance
with Article VII. If the Performance Award is payable in cash, it may be paid upon attainment of
the relevant Performance Goals either in cash or in shares of Restricted Stock (based on the then
current Fair Market Value of such Shares), as determined by the Committee, in its sole and absolute
discretion. Each Performance Award shall be evidenced by an Award Agreement in such form that is
not inconsistent with the Plan and that the Committee may from time to time approve. Performance
Awards granted under the Plan shall be subject to the following terms and conditions and such
additional terms and conditions, not inconsistent with the terms of the Plan, as the Committee
shall deem desirable, which additional terms and conditions shall be reflected in the applicable
Award Agreement.



     9.2 Performance Goals. Unless otherwise prohibited by applicable law, the
Committee shall have the authority to grant Awards under this Plan that are contingent upon the
achievement
of Performance Goals. Such Performance Goals are to be specified in the relevant Award
Agreement and may be based on such factors including, but not limited to: (a) revenue, (b) earnings
per Share (basic and diluted), (c) net income per Share, (d) Share price, (e) pre-tax profits, (f)
net earnings, (g) net income, (h) operating income, (i) cash flow (including, without limitation,
operating cash flow, free cash flow, discounted cash flow, return on investment and cash flow in
excess of cost of capital), (j) earnings before interest, taxes, depreciation and amortization, (k)
earnings before interest and taxes, (l) sales, (m) total stockholder return relative to assets, (n)
total stockholder return relative to peers, (o) financial returns (including, without limitation,
return on



16









 




assets, return on net assets, return on equity and return on investment), (p) cost
reduction targets, (q) customer satisfaction, (r) customer growth, (s) employee satisfaction, (t)
gross margin, (u) revenue growth, (v) market share, (w) book value per share, (x) expenses and
expense ratio management, (y) system-wide sales or system-wide sales growth, (z) traffic or
customer counts, (aa) new product sales, (bb) any combination of the foregoing or (cc) such other
criteria as the Committee may determine. Performance Goals may be in respect of the performance of
the Company, any of its Subsidiaries or Affiliates or any combination thereof on either a
consolidated, business unit or divisional level. Performance Goals may be absolute or relative (to
prior performance of the Company or to the performance of one or more other entities or external
indices) and may be expressed in terms of a progression within a specified range. Multiple
Performance Goals may be established and may have the same or different weighting.




     9.3 Additional Criteria. The foregoing criteria shall have any reasonable
definitions that the Committee may specify, which may include or exclude any or all of the
following items, as the Committee may specify: extraordinary, unusual or non-recurring items;
effects of accounting changes; effects of currency fluctuations; effects of financing activities
(e.g., effect on earnings per share of issuing convertible debt securities); expenses for
restructuring, productivity initiatives or new business initiatives; non-operating items;
acquisition expenses; and effects of divestitures. Any such performance criterion or combination
of such criteria may apply to the Participant’s award opportunity in its entirety or to any
designated portion or portions of the award opportunity, as the Committee may specify.



     9.4 Adjustment to Performance Goals. At any time prior to payment of an Award,
the Committee may adjust previously established Performance Goals and other terms and conditions of
the Award to reflect major unforeseen events, including, without limitation, changes in laws,
regulations or accounting policies or procedures, mergers, acquisitions or divestitures or
extraordinary, unusual or non-recurring items.



     9.5 Value, Form and Payment of Performance Award. The Committee will establish
the value or range of value of the Performance Award, the form in which the Award will be paid, and
the date(s) and timing of payment of the Award. The Participant will be entitled to receive the
Performance Award only upon the attainment of the Performance Goals and such other criteria as may
be prescribed by the Committee during the Performance Period.



ARTICLE X

OTHER STOCK-BASED AWARDS




     10.1 Grant. Subject to the provisions of the Plan, the Committee may grant Other
Stock-Based Awards that are payable in, valued in whole or in part by reference to, or otherwise
based on
or related to Shares, including, but not limited to, Shares awarded purely as a bonus and not
subject to any restrictions or conditions, Shares in payment of the amounts due under an incentive
or performance plan sponsored or maintained by the Company or a Subsidiary, performance units,
dividend equivalent units, stock equivalent units, and deferred stock units. To the extent
permitted by law, the Committee may, in its sole discretion, permit Eligible Individuals to defer
all or a portion of their cash compensation in the form of Other Stock-Based Awards granted under this Plan,
 subject to the terms and conditions of any deferred compensation arrangement
 established by the Company, which shall be intended to comply with Section 409A of the Code. Other Stock-



17









 




Based
Awards may be granted either alone or in addition to or in tandem with other Awards granted under
the Plan.




     10.2 Non-Transferability. Subject to the applicable provisions of the Award
agreement and this Plan, Shares subject to Awards made under this Article X may not be Transferred
prior to the date on which the Shares are issued, or, if later, the date on which any applicable
restriction, performance or deferral period lapses.



     10.3 Dividends. Unless otherwise determined by the Committee at the time of
Award, subject to the provisions of the Award agreement and this Plan, the recipient of an Award
under this Article X shall be entitled to receive all dividends and other distributions paid with
respect to such Award; provided, that any such dividends or other distributions will be
subject to the same vesting requirements as the underlying Award and shall be paid at the time the
Award becomes vested. If any dividends or distributions are paid in Shares, such Shares shall be
deposited with the Company and shall be subject to the same restrictions on transferability and
forfeitability as the Award with respect to which they were paid.



     10.4 Vesting. Any Award under this Article X and any Shares covered by any such
Award shall vest or be forfeited to the extent so provided in the Award agreement, as determined by
the Committee, in its sole discretion. Unless expressly provided otherwise in an Award Agreement,
in the event that a written employment agreement between the Company and a Participant provides for
a vesting schedule that is more favorable than the vesting schedule provided in the form of Award
agreement, the vesting schedule in such employment agreement shall govern, provided that
such agreement is in effect on the date of grant and applicable to the specific Award.



     10.5 Price. Shares issued on a bonus basis under this Article X may be issued for
no cash consideration; Shares purchased pursuant to a purchase right awarded under this Article X
shall be priced, as determined by the Committee in its sole discretion.



     10.6 Payment. The form of payment for the Other Stock-Based Award shall be
specified in the Award Agreement.



ARTICLE XI

PARTICIPANT TERMINATION




     11.1 Rules Applicable to Options and SARs. Unless otherwise determined by the
Committee or as set forth in the applicable Award Agreement:



          11.1.1 Termination by Reason of Death or Disability. If a Participant’s
Termination is by reason of death or Disability, all Options or SARs that are held by such
Participant that are vested and exercisable at the time of the Participant’s Termination may be
exercised by the Participant (or, in the case of death, by the legal representative of the
Participant’s estate) at any time within a one-year period from the date of such Termination, but
in no event beyond the expiration of the stated term of such Options or SARs.



18









 





          11.1.2 Termination Without Cause. If a Participant’s Termination is by the
Company without Cause, all Options or SARs that are held by such Participant that are vested and
exercisable at the time of the Participant’s Termination may be exercised by the Participant at any
time within a period of ninety (90) days from the date of such Termination, but in no event beyond
the expiration of the stated term of such Options or SARs.



          11.1.3 Termination by the Participant. If a Participant terminates his or her
service with the Company for any reason, all Options or SARs that are held by such Participant that
are vested and exercisable at the time of the Participant’s Termination may be exercised by the
Participant at any time within a period of ninety (90) days from the date of such Termination, but
in no event beyond the expiration of the stated terms of such Options or SARs.



          11.1.4 Termination for Cause. If a Participant’s Termination is for Cause all
Options or SARs, whether vested or unvested, that are held by such Participant shall thereupon
terminate and expire as of the date of such Termination.



          11.1.5 Unvested Options and SARs. Except as set forth in the applicable Award
Agreement, Options or SARs that are not vested as of the date of a Participant’s Termination for
any reason shall terminate and expire as of the date of such Termination.



     11.2 Rules Applicable to Stock Awards, Performance Awards and Other Stock-Based
Awards. Unless otherwise determined by the Committee in the applicable Award Agreement, upon a
Participant’s Termination for any reason: (i) during the relevant Restriction Period, all Stock
Awards still subject to restriction shall be forfeited; and (ii) any unvested Performance Award or
Other Stock-Based Awards shall be forfeited.



ARTICLE XII

CHANGE IN CONTROL




     Unless otherwise provided in an Award Agreement, in the event of a Change in Control, the
Committee may, but is not required to, cause all restrictions and risks of forfeiture on Awards
(other than those imposed by law or regulation) to lapse, and all deferral or vesting periods
relating to Awards to immediately expire. In addition, the Board can unilaterally implement and/or
negotiate a procedure with any party to the Change in Control pursuant to which all Participants’
unexercised Options may be cashed out as part of the purchase transaction, without requiring
exercise, for the difference between the purchase price and the Exercise Price. For the sake of
clarity, an Award Agreement may provide for the treatment of Awards upon a Change in Control, which
shall be given effect in accordance with its terms.



ARTICLE XIII

AMENDMENT, TERMINATION AND DURATION




     13.1 Amendment, Suspension or Termination. The Board, in its sole discretion, may
amend, suspend or terminate the Plan, or any part thereof, at any time and for any reason, subject
to any requirement of stockholder approval required by applicable law, rule or regulation,
including, without limitation, Section 422 of the Code and the rules of the applicable securities
exchange; provided, however, the Board may amend the Plan and any Award Agreement
without shareholder



19









 




approval as necessary to avoid the imposition of any taxes under Section 409A
of the Code. Subject to the preceding sentence, the amendment, suspension or termination of the
Plan shall not, without the consent of the Participant, materially adversely alter or impair any
rights or obligations under any Award theretofore granted to such Participant. Notwithstanding the
foregoing, the Committee may, but shall not be required to, amend or modify any Award to the extent
necessary to avoid the imposition of taxes under Section 409A of the Code. The Company intends to
administer the Plan and all Awards granted thereunder in a manner that complies with Code Section
409A, however, the Company shall not be responsible for any additional tax imposed pursuant to Code
Section 409A, nor will the Company indemnify or otherwise reimburse Participant for any liability
incurred as a result of Code Section 409A. No Award may be granted during any period of suspension
or after termination of the Plan.




     13.2 Duration of the Plan. The Plan shall, subject to Section 13.1, terminate ten
(10) years after adoption by the Board, unless earlier terminated by the Board and no further
Awards shall be granted under the Plan. The termination of the Plan shall not affect any Awards
granted prior to the termination of the Plan.



ARTICLE XIV

MISCELLANEOUS




     14.1 No Effect on Employment or Service. Nothing in the Plan shall interfere with
or limit in any way the right of the Company to terminate any Participant’s employment or service
at any time, for any reason and with or without cause.



     14.2 Unfunded Status. 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 by
the Company, nothing set forth herein shall give any Participant any rights that are greater than
those of a general creditor of the Company. In its sole and absolute discretion, the Committee may
authorize the creation of trusts or other arrangements to meet the obligations created under the
Plan to deliver Shares or payments in lieu of or with respect to Awards hereunder;
provided, however, that the existence of such trusts or other arrangements is
consistent with the unfunded status of the Plan.



     14.3 Successors. All obligations of the Company under the Plan, with respect to
Awards granted hereunder, shall be binding on any successor to the Company, whether the existence
of such successor is the result of a direct or indirect purchase, merger, consolidation or
otherwise, of all or substantially all of the business or assets of the Company.



     14.4 Beneficiary Designations. Subject to the restrictions in Section 14.5 below,
a Participant under the Plan may name a beneficiary or beneficiaries to whom any vested but unpaid
Award shall be paid in the event of the Participant’s death. For purposes of this Section, a
beneficiary may include a designated trust having as its primary beneficiary a family member of a
Participant. Each such designation shall revoke all prior designations by the Participant and
shall be effective only if given in a form and manner acceptable to the Committee. In the absence
of any such designation, any vested benefits remaining unpaid at the Participant’s death shall be
paid to the Participant’s estate and, subject to the terms of the Plan and of the applicable Award



20









 




Agreement, any unexercised vested Award may be exercised by the administrator or executor of the
Participant’s estate.




     14.5 Nontransferability of Awards. No Award granted under the Plan may be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will, by the
laws of descent and distribution; provided, however, that except as provided by in
the relevant Award Agreement, a Participant may transfer, without consideration, an Award other
than an Incentive Stock Option to one or more members of his or her Immediate Family, to a trust
established for the exclusive benefit of one or more members of his or her Immediate Family, to a
partnership in which all the partners are members of his or her Immediate Family, or to a limited
liability company in which all the members are members of his or her Immediate Family;
provided, further, that any such Immediate Family, and any such trust, partnership and
limited liability company, shall agree to be and shall be bound by the terms of the Plan, and by
the terms and provisions of the applicable Award Agreement and any other agreements covering the
transferred Awards. All rights with respect to an Award granted to a Participant shall be
available during his or her lifetime only to the Participant and may be exercised only by the
Participant or the Participant’s legal representative.



     14.6 No Rights as Shareholder. Except to the limited extent provided in Sections
7.7 and 7.8, no Participant (nor any beneficiary) shall have any of the rights or privileges of a
shareholder of the Company with respect to any Shares issuable pursuant to an Award (or exercise
thereof), unless and until certificates representing such Shares, if any, or in the event the
Shares are non-certificate, such other method of recording beneficial ownership, shall have been
issued, recorded on the records of the Company or its transfer agents or registrars, and delivered
to the Participant (or beneficiary).



     14.7 Withholding. Subject to the terms of the applicable Award Agreement or any
other agreement addressing the withholding obligations of the Company or the Participant in
connection with the issuance or settlement of an Award granted hereunder, as a condition to the
settlement of any Award hereunder, a Participant shall be required to pay in cash, or to make other
arrangements satisfactory to the Company (including, without limitation, if permitted by the
Committee, authorizing withholding from payroll, reducing the number of Shares otherwise
deliverable, delivering Shares already owned and any other amounts payable to the Participant), an
amount sufficient to satisfy any federal, state, local and foreign taxes of any kind (including,
but not limited to, the Participant’s FICA and SDI obligations) which the Company, in its sole
discretion, deems necessary to comply with the Code and/or any other applicable law, rule or
regulation with respect to the Award. Unless the tax withholding obligations of the Company are
satisfied, the Company
shall have no obligation to issue a certificate or book-entry transfer for such Shares. Unless
otherwise provided in an Award Agreement or other written agreement with a Participant, the
Committee, in its sole discretion and pursuant to such procedures as it may specify from time to
time, may permit or require a Participant to satisfy all or part of the tax withholding obligations
in connection with an Award by (a) paying cash, (b) having the Company withhold otherwise
deliverable Shares, (c) delivering to the Company already-owned Shares having a Fair Market Value
equal to the tax obligation, or (d) any combination of the foregoing.



     14.8 No Corporate Action Restriction. The existence of the Plan, any Award
Agreement and/or the Awards granted hereunder shall not limit, affect or restrict in any way the
right or power



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of the Board or the shareholders of the Company to make or authorize (a) any
adjustment, recapitalization, reorganization or other change in the Company’s or any Subsidiary’s
or Affiliate’s capital structure or business, (b) any merger, consolidation or change in the
ownership of the Company or any Subsidiary or Affiliate, (c) any issue of bonds, debentures,
capital, preferred or prior preference stocks ahead of or affecting the Company’s or any
Subsidiary’s or Affiliate’s capital stock or the rights thereof, (d) any dissolution or liquidation
of the Company or any Subsidiary or Affiliate, (e) any sale or transfer of all or any part of the
Company’s or any Subsidiary’s or Affiliate’s assets or business, or (f) any other corporate act or
proceeding by the Company or any Subsidiary or Affiliate. No Participant, beneficiary or any other
person shall have any claim against any Member of the Board or the Committee, the Company or any
Subsidiary or Affiliate, or any employees, officers, shareholders or agents of the Company or any
Subsidiary or Affiliate, as a result of any such action.




     14.9 Gender and Number. Except where otherwise indicated by the context, any
masculine term used herein also shall include the feminine; the plural shall include the singular
and the singular shall include the plural.



     14.10 Severability. In the event any provision of the Plan or of any Award
Agreement shall be held illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Plan or the Award Agreement, and the Plan and/or the Award
Agreement shall be construed and enforced as if the illegal or invalid provision had not been
included.



     14.11 Requirements of Law. The granting of Awards and the issuance of Shares
under the Plan shall be subject to all applicable laws, rules and regulations, and to such
approvals by any governmental agencies or national securities exchanges as may be required.



     14.12 Governing Law. The Plan and all determinations made and actions taken
pursuant hereto to the extent not otherwise governed by the Code or the securities laws of the
United States, shall be governed by the law of the State of New York and construed accordingly.



     14.13 Jurisdiction; Waiver of Jury Trial. Any suit, action or proceeding with
respect to this Plan or any Award Agreement, or any judgment entered by any court of competent
jurisdiction in respect of any thereof, shall be resolved only in the courts of the State of New
York in New York County or the United States District Court for the Southern District of New York
and the appellate courts having jurisdiction of appeals in such courts. In that context, and
without limiting the generality of the foregoing, the Company and each Participant shall
irrevocably and unconditionally (a) submit in any proceeding relating to this Plan or any Award
Agreement, or for
the recognition and enforcement of any judgment in respect thereof (a “Proceeding”),
to the exclusive jurisdiction of the courts of the State of New York in New York County, the court
of the United States of America for the Southern District of New York, and appellate courts having
jurisdiction of appeals from any of the foregoing, and agree that all claims in respect of any such
Proceeding shall be heard and determined in such New York State court or, to the extent permitted
by law, in such federal court, (b) consent that any such Proceeding may and shall be brought in
such courts and waives any objection that the Company and each Participant may now or thereafter
have to the venue or jurisdiction of any such Proceeding in any such court or that such Proceeding
was brought in an inconvenient court and agree not to plead or claim the same, (c) waive all right
to trial by jury in any Proceeding (whether based on contract, tort or otherwise) arising out of or



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relating to this Plan or any Award Agreement, (d) agree that service of process in any such
Proceeding may be effected by mailing a copy of such process by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to such party, in the case of a
Participant, at the Participant’s address shown in the books and records of the Company or, in the
case of the Company, at the Company’s principal offices, attention General Counsel, and (e) agree
that nothing in this Agreement shall affect the right to effect service of process in any other
manner permitted by the laws of the State of New York.




     14.14 Notices. Any notice which may be required or permitted under this Plan
shall be in writing, and shall be delivered in person or via facsimile transmission, overnight
courier service or certified mail, return receipt requested, postage prepaid, properly addressed as
follows:



          14.14.1 If such notice is to the Company, to the attention of the General Counsel of the
Company or at such other address as the Company, by notice to the Participant, shall designate in
writing from time to time.



          14.14.2 If such notice is to the Participant, at his/her address as shown on the Company’s
records, or at such other address as the Participant, by notice to the Company, shall designate in
writing from time to time.



     14.15 Captions. Captions are provided herein for convenience only, and shall not
serve as a basis for interpretation or construction of the Plan.



     14.16 Payments to Minors. Any benefit payable to or for the benefit of a minor, an
incompetent person or other person incapable of receipt thereof shall be deemed paid when paid to
such person’s guardian or to the party providing or reasonably appearing to provide for the care of
such person, and such payment shall fully discharge the Committee, the Board, the Company, its
Affiliates and their employees, agents and representatives with respect thereto.



     14.17 Section 409A of the Code. The Plan is intended to comply with the
applicable requirements of Section 409A of the Code and shall be limited, construed and
interpreted in accordance with such intent. To the extent that any Award is subject to Section
409A of the Code, it shall be paid in a manner that will comply with Section 409A of the Code,
including proposed, temporary or final regulations or any other guidance issued by the Secretary of
the Treasury and the Internal Revenue Service with respect thereto. Notwithstanding anything
herein to the contrary, any provision in the Plan that is inconsistent with Section 409A of the
Code shall be deemed to be amended to comply with Section 409A of the Code and to the extent such
provision cannot be
amended to comply therewith, such provision shall be null and void. The Company shall have no
liability to a Participant, or any other party, if an Award that is intended to be exempt from, or
compliant with, Code Section 409A is not so exempt or compliant or for any action taken by the
Committee or the Company and, in the event that any amount or benefit under the Plan becomes
subject to penalties under Section 409A, responsibility for payment of such penalties shall rest
solely with the affected Participant(s) and not with the Company.



     14.18 Other Benefits. No Award granted or paid out under this Plan shall be
deemed compensation for purposes of computing benefits under any retirement plan of the Company or
its



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Affiliates nor affect any benefits under any other benefit plan now or subsequently in effect
under which the availability or amount of benefits is related to the level of compensation.




     14.19 Costs. The Company shall bear all expenses associated with administering
this Plan, including expenses of issuing Shares pursuant to any Awards hereunder.



     14.20 Award Agreement. Notwithstanding any other provision of the Plan, to the
extent the provisions of any Award Agreement are inconsistent with terms of the Plan and such
inconsistency is a result of compliance with laws of the jurisdiction in which the Participant is
resident or is related to taxation of such Award in such jurisdiction, the relevant provisions of
the particular Award Agreement shall govern.




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