Exhibit
10.1


AVENTINE RENEWABLE
ENERGY HOLDINGS, INC.

2003 STOCK INCENTIVE PLAN

(Amended and Restated as of April 16, 2007)


 


ARTICLE
1

PURPOSE


 


Aventine Renewable
Energy Holdings, Inc. (the “Company”)
established the Aventine Renewable Energy Holdings, Inc. 2003 Stock Option Plan
effective May 30, 2003, as amended September 6, 2005, was further amended and
renamed the Aventine Renewable Energy Holdings, Inc. 2003 Stock Incentive Plan,
as of December 12, 2005 (as so amended and restated, the “Prior Plan”)
and was further amended and restated as of March 22, and April 16, 2007 (as
amended and restated as of April 16, 2007, the “Plan”).  The purposes of the Plan are to advance the
interests of the Company and its stockholders by providing a means by which the
Company and its Subsidiaries can attract, retain and motivate selected
directors, officers, other key employees and consultants and provide such
personnel with an opportunity to participate in the increased value of the
Company which their effort, initiative and skill have helped produce.


 


ARTICLE
2

DEFINITIONS


 


“Affiliate” of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person
where “control” means the possession, directly
or indirectly, of the power to direct the management and policies of a Person
whether through the ownership of voting securities, by contract or otherwise.


 


“Award” means any grant of an Option, Stock Appreciation
Right, Restricted Stock, Restricted Stock Unit, Performance Share, Performance
Unit or other equity-based award under the Plan.


 


“Award Agreement” means any written agreement, contract or
other instrument or document evidencing any Award, which may, but need not (as
determined by the Committee) be required to be executed or acknowledged by a
Participant as a condition precedent to receiving an Award or the benefits
under an Award.


 


“Board” means the Board of Directors of the Company.


 


“Cause” means, with respect to any Participant, that such
Participant (i) is convicted of or enters a plea of guilty or nolo contendere to a felony, or to a crime or offense
involving the property of the Company or any of its Subsidiaries, (ii) commits
any act involving dishonesty, fraud or disloyalty, or breach of his or her
fiduciary duty to the Company or any of its Subsidiaries, which in any such
case is of material detriment to the business, condition (financial or
otherwise), reputation, character or standing of the Company or any of its
Subsidiaries, (iii) engages in gross negligence or willful 













misconduct with respect to his or her duties on behalf of the Company
or any of its Subsidiaries, or (iv) breaches any of the covenants contained in
the Award Agreement.


 


“Code” means the Internal Revenue Code of 1986, as amended.


 


“Committee” means either the Board or the Compensation
Committee of the Board, as duly appointed from time to time by the Board.


 


“Covered Employee” means a “covered employee” within the
meaning of Section 162(m)(3) of the Code or any successor provision thereto.


 


“Disability” means, with respect to any Participant, (i) any
permanent physical or mental incapacity or disability rendering such
Participant unable or unfit to perform effectively the duties and obligations
under his or her employment, directorship or other consulting relationship with
the Company or any of its Subsidiaries, as applicable, or (ii) any illness,
accident, injury, physical or mental incapacity or other disability, where such
condition has rendered such Participant unable or unfit to perform effectively
the duties and obligations under his or her employment, directorship or other
consulting relationship with the Company or any of its Subsidiaries, as
applicable for a period of at least ninety consecutive days or four months in
any twelve-month period (in either case, as determined in the good faith
judgment of the Committee).


 


“Dividend Equivalent Rights” means a right, granted under
this Plan, to receive cash, Shares, other Awards or other property equal in
value to all or a specified portion of dividends paid with respect to a
specified number of Shares.


 


“Eligible Individual” means any officer, director or employee
of, or consultant to, the Company or a Subsidiary and includes any holders of
Substitute Awards (whether or not employed by the Company or a Subsidiary).


 


“Ending Value” has the meaning set forth in Section 8.01.


 


“Exercise Price” means (i) in the case of an Option, the
price at which a Share may be purchased by a Participant pursuant to such
Option and (ii) in the case of a Stock Appreciation Right, the base price of
such Stock Appreciation Right.


 


“Fair Market Value” means the closing price of a Share (at
the end of the regular session, as reported on the Consolidated Tape) on the
NYSE.


 


“Good Reason” means, with respect to a Participant, the
occurrence of one or more of the following events, without such Participant’s
consent, following a Sale of the Company: (i) any material diminution in such
Participant’s positions, duties, responsibilities or authority immediately
prior to such Sale of the Company; (ii) the assignment to such Participant of
duties or responsibilities that are materially inconsistent with such
Participant’s position immediately prior to such Sale of the Company; (iii) any
material adverse change to such Participant’s compensation or benefits
structure unless such material adverse change is generally applicable to
Company officers; (iv) a 



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relocation of Participant’s principal place of employment more than 50
miles from such location as in effect immediately prior to such Sale of the
Company.


 


“Initial Value” has the meaning set forth in Section 8.01.


 


“ISOs” has the meaning set forth in Section 6.01.


 


“LLC” means Aventine Renewable Energy Holdings, LLC, a
Delaware limited liability company and its successors.


 


“MSCP Funds” means, collectively, Morgan Stanley Dean Witter
Capital Partners IV, L.P., Morgan Stanley Dean Witter Capital Investors IV,
L.P. and MSDW IV 892 Investors, L.P., and any of their permitted transferees.


 


“Option” means an option to purchase Shares granted to an
Eligible Individual under Article 6.


 


“Participant” means an Eligible Individual who receives an
Award under the Plan.


 


“Performance-based Objectives” means any one or more of the
following:  price of Shares or the stock
of any affiliate; shareholder return; return on assets; return on equity;
return on investment; return on capital; sales productivity; economic profit;
economic value added; net income; operating income; earnings (including
earnings before taxes; earnings before interest and taxes; or earnings before
interest, taxes, depreciation, and amortization); gross margin; sales; sales
growth; product sales growth; free cash flow; earnings per share; earnings per
share growth; operating company contribution or market share; improvements in
or attainment of expense levels or working capital levels; comparisons of gross
selling price over time or with specified competitors; freight, commissions and
other selling expenses;  regulatory
achievements; and implementation, completion or attainment of measurable
objectives with respect to research, development, products or projects,
production volume levels, acquisitions and divestitures; and recruiting and
maintaining personnel.  Such performance
goals may be based solely by reference to the Company’s performance or the
performance of a Subsidiary, division, business segment or business unit of the
Company, or based upon the relative performance of other companies or upon
comparisons of any of the indicators of performance relative to other companies.  The Committee may also exclude charges
related to an event or occurrence which the Committee determines should
appropriately be excluded, including (a) restructurings, discontinued
operations, extraordinary items, and other unusual or non-recurring charges,
(b) an event either not directly related to the operations of the Company or
not within the reasonable control of the Company’s management, or (c) the
cumulative effects of tax or accounting changes in accordance with U.S.
generally accepted accounting principles. 
Such performance goals shall be set by the Committee within the time
period prescribed by, and shall otherwise comply with the requirements of,
Section 162(m) of the Code, and the regulations thereunder.


 


“Performance Period” has the meaning set forth in Section
8.02.


 



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“Performance Shares” means units representing Shares, as
described in Article 8.


 


“Performance Share Account” has the meaning set forth in
Section 8.01.


 


“Performance Units” means units which do not represent Shares
but which may be paid in the form of Shares, as described in Article 8.


 


“Performance Unit Account” has the meaning set forth in
Section 8.02.


 


“Person” means an individual, corporation, partnership,
association, trust, limited liability company or any other entity or
organization, including a government or political subdivision or an agency,
unit or instrumentality thereof.


 


“Restricted Stock” means any Share granted to an Eligible
Individual under Article 7.


 


“Restricted Stock Unit” or “RSU”
means a contractual right granted to an Eligible Individual under Article 7
that is denominated in Shares.  Each unit
represents a right to receive the value of one Share (or a percentage of such
value) upon the terms and conditions set forth in the Plan and the applicable
Award Agreement. 


 


“Sale of the Company” means either (i) a sale, lease,
transfer, conveyance or other disposition, in one or a series of related
transactions, of all or substantially all of the assets of the Company and its
Subsidiaries, taken as a whole or (ii) a transaction or series of transactions
(including by way of merger, consolidation, sale of stock or otherwise) the
result of which is that any Person or “group” (as defined in Section 13 of the
Securities Exchange Act), other than the LLC, the MSCP Funds or any of their
respective Affiliates (or a group containing any of them), becomes the
“beneficial owner” (as such term is defined in Rule 13d-3 and Rule 13d-5
promulgated under the Securities Exchange Act), directly or indirectly, of more
than 50% of the voting power of the outstanding voting stock of the Company.


 


“Securities Act” means the Securities Act of 1933, as
amended.


 


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


 


“Shares” means shares of common stock of the Company, par
value $0.001 per share.


 


“SAR” or “Stock Appreciation Right”
means any right granted to an  Eligible
Individual under Article 6 to receive, upon exercise by such individual, the
excess of (i) the Fair Market Value of one Share on the date of exercise or at
any time during a specified period before the date of exercise over
(ii) the Exercise Price of the right on the date of grant, or if granted
in connection with an outstanding Option, on the date of grant of the related
Option, as specified by the Committee in its sole discretion.


 



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“Subsidiary” means (i) any company during any period in which
it is a “subsidiary corporation” as that term is defined in Section 424(f) of
the Code with respect to the Company, or (ii) any other entity of which
ownership interests having ordinary voting power to elect a majority of the
Board of Directors or other persons performing similar functions are directly
or indirectly owned by the Company.


 


“Substitute Award” means an Award granted pursuant to Article
5 in assumption of, or as an alternative to or replacement of, an outstanding
award previously granted by a business or entity all or a portion of which is
acquired by the Company or any Affiliate, or with which the Company or any
Affiliate combines.


 


ARTICLE
3

ADMINISTRATION


 


Section 3.01.  Committee.  The Plan shall be administered by
the Committee.  Following an initial
public offering of the Shares, it is intended that each member of the Committee
shall be (a) independent, within the meaning of and to the extent required by
applicable rulings and interpretations of 
the Securities and Exchange Commission and the applicable stock exchange
on which the Shares trade or are quoted, (b) a “Non-Employee Director”, as defined
from time to time for purposes of Section 16 of the Securities Act and the
rules promulgated thereunder and
(c) an outside director pursuant to Section 162(m) of the Code, and any
regulations issued thereunder, in each case at such time as the Company becomes
subject to the respective regulatory regime.


 


Section 3.02.  Authority of the
Committee.  Subject to the
provisions of the Plan, the Committee shall have the authority, in its
discretion and on behalf of the Company:


 


(a)   to select from among the Eligible Individuals
those persons who shall receive Awards, to determine the time or times of
receipt, to determine the types of Awards and the number of Shares covered by
the Awards, to establish the terms, conditions, performance criteria,
restrictions and other aspects of the Awards and the provisions of the
applicable Award Agreement and to modify, amend, cancel or suspend Awards;


(b)   to interpret the Plan;


(c)   to prescribe, amend and rescind any rules and
regulations relating to the Plan;


(d)   to determine whether, to what extent and under
what circumstances Awards may be settled in cash, Shares, other Awards or other
property, including without limitation the authority to settle Awards in cash
or property upon a Sale of the Company or other similar corporate transaction;


(e)   to determine whether, to what extent and
under what circumstances cash, Shares, other Awards, other property and any
other amounts payable with respect to an Award shall or may be deferred either
automatically or at the election of the Participant or of the Committee;


(f)    to determine whether, and to what extent and
under what circumstances an Award shall include Dividend Equivalent Rights;


(g)   subject to Article 16, to accelerate vesting
of an Award previously granted under the Plan; and



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(h)   to make all other determinations and
findings, including factual findings, deemed necessary or advisable for the
administration of the Plan.


 


Section 3.03.  Committee Discretion.  In exercising its authority, the
Committee shall have the broadest possible discretion. Unless otherwise
expressly provided in the Plan, all designations, determinations,
interpretations and other decisions made in good faith by the Committee under
or with respect to the Plan, any Award or Award Agreement shall be final,
binding and conclusive on all persons.


 


Section 3.04.  Committee Delegation.  To the extent permitted by
applicable law or regulation, the Committee may delegate its authority, or
specified items thereof, to one or more designated individuals or other
committees of the Board.


 


ARTICLE
4

SHARES SUBJECT TO THE PLAN


 


Section 4.01.  General Limitation.  (a) 
Subject to the provisions of Section 4.02, the maximum number of Shares
that may be delivered to Participants and their beneficiaries under the Plan
shall be 6,701,172 Shares (including shares available for awards under the
Prior Plan).  Notwithstanding the foregoing and subject
to adjustment as provided in Section 4.02, no Covered Employee may be granted
under this Plan in any calendar year (i) Options or SARs that relate to more
than 750,000 Shares, (ii) Restricted Stock, Restricted Stock Units, Performance
Shares or Performance Units that relate to more than 500,000 Shares, or (iii)
Awards payable in cash in any amount exceeding $5 million.


 


Notwithstanding
anything herein to the contrary and subject to adjustment as provided in
Section 4.02, ISOs relating to more than 1,000,000 Shares in the aggregate may
not be granted under the Plan.


(b)           To the extent any Shares covered by
an Award are not delivered to a Participant or beneficiary because the Award is
forfeited, canceled, expires without being exercised, or the Shares are not
delivered because the Award is settled in cash or used to satisfy applicable
minimum tax withholding obligations or otherwise, such Shares shall not be
deemed to have been delivered for purposes of determining the maximum number of
Shares available for delivery under the Plan.


 


(c)           If the Exercise Price of any Option
or SAR granted under the Plan is satisfied by tendering Shares to the Company
(by either actual delivery or by attestation), only the number of Shares issued
net of the Shares tendered shall be deemed delivered for purposes of
determining the maximum number of Shares remaining available for delivery under
the Plan.


 


(d)           Any Shares covered
by a Substitute Award shall not be deemed to have been delivered for purposes
of determining the maximum number of Shares remaining available for delivery
under the Plan.


 


Section 4.02.  Adjustments. 
In the event that any corporate transaction or distribution
(including, without limitation, any stock split, stock dividend, extraordinary 



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cash dividend,
issuance of warrants or other rights to purchase Shares or other securities of
the Company, recapitalization, reorganization, merger, consolidation, split-up,
spin-off, repurchase, combination or exchange of Shares or other securities of
the Company) affects the Shares such that an adjustment is necessary in order
to prevent dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, then the Committee shall, in such
manner as it deems equitable, adjust any or all of (i) the number of Shares or
other securities of the Company (or number and kind of other securities or
property) with respect to which Awards may be granted under Section 4.01; (ii)
the number of Shares or other securities of the Company (or number and kind of
other securities and property) subject to outstanding Awards; and (iii) the
grant, purchase or exercise price or other terms and conditions of any Award
or, if deemed appropriate, the Committee may make provision for a cash payment
to the holder of an outstanding Award in full satisfaction of such Award.


 


ARTICLE
5

ELIGIBILITY
AND PARTICIPATION


 


Subject to the
terms and conditions of the Plan, the Committee shall determine and designate,
from time to time, from among the Eligible Individuals those persons who will
be granted one or more Awards under the Plan and thereby become Participants in
the Plan.  Awards may be granted on
conditions specified by the Committee. Awards may be granted as alternatives to
or in replacement of Awards outstanding under the Plan or any other plan or
arrangement of the Company or an Affiliate (including a plan or arrangement of
a business or entity, all or a portion of which is acquired by or combines with
the Company or an Affiliate).


 


ARTICLE
6

OPTIONS AND STOCK APPRECIATION RIGHTS


 


Section 6.01.  Options.  The Committee is hereby authorized
to grant Options to Participants. 
Options granted pursuant to the Plan may be either “incentive stock
options” within the meaning of Section 422 of the Code (“ISOs”)
or nonqualified stock options. 
“Incentive stock options” may only be granted to officers and other key
employees of the Company or its Subsidiaries. 
Any Option granted under the Plan will be evidenced by an Award
Agreement and shall contain terms and conditions not inconsistent with the
following limitations and conditions.


 


Section 6.02.  Stock Appreciation
Rights.  The Committee is
hereby authorized to grant Stock Appreciation Rights to Participants with terms
and conditions as the Committee shall determine not inconsistent with the
provisions of the Plan.  SARs may be
granted hereunder to Participants either alone or in addition to other Awards
granted under the Plan and may, but need not, relate to a specific Option
granted under this Article 6.  Any SAR
granted under the Plan will be evidenced by an Award Agreement.


 


Section 6.03.  Exercise Price.  Other than in connection with
Substitute Awards or a result of adjustments made pursuant to Section 4.02, the
Exercise Price shall be no less than 100% of the Fair Market Value of a Share
on the date of grant of an Option or SAR, as applicable.  


 



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Section 6.04.  Vesting.  Unless the Committee at any time
determines otherwise, subject to Article 16, Options or SARs granted to
employees of the Company or any Subsidiary will not be exercisable before the
first anniversary of the date of grant.


 


Section 6.05.  Terms of Exercise.  An Option or SAR shall be
exercisable only in accordance with the terms and conditions and during such
periods as may be established by the Committee in the Award Agreement or
otherwise in accordance with the Plan and the Award Agreement. The Committee
may, in its discretion, provide that such an Option or SAR may be exercised in
whole or in part, in installments, cumulative or otherwise, for any period of
time specified by the Committee or based on performance or other criteria
established by the Committee.


 


Section 6.06.  Payment.  No Shares shall be delivered pursuant
to any exercise of an Option until payment in full of the Exercise Price, or
adequate provision therefor (in the discretion of the Committee), is received
by the Company.  The Committee shall
determine the method or methods by which such payment shall be made, and the
form or forms of such payment, which shall include:  (i) cash, (ii) Shares owned by the
Participant or in Shares which may be received by the Participant upon exercise
of the Option or SAR (in each case, the value of such Shares shall be their
Fair Market Value on the date of exercise), or (iii) any combination thereof.


 


Section 6.07.  Expiration and
Termination.  An Option or SAR
and all rights and obligations thereunder shall expire on the date to be
determined by the Committee and set forth in the Award Agreement, which shall
not be greater than ten years from the date of grant of such Option or SAR, as
applicable, provided, however,
that except as otherwise determined by the Committee at the time of grant or
thereafter, upon any termination of a Participant’s employment or service with
the Company or the Subsidiaries, the unvested portion of an Option or SAR, as
applicable, held by such Participant shall be deemed immediately forfeited and
cancelled without any payment or consideration being due from the Company.


 


Section 6.08.  Special Rules Applicable To
ISOs.  


 


(a)  10% Shareholders.  Notwithstanding any other provision of this
Plan to the contrary, no Participant may receive an ISO under the Plan if such
Participant, at the time the award is granted, owns (after application of the
rules contained in Section 424(d) of the Code) Shares possessing more than ten
(10) percent of the total combined voting power of all classes of stock of the
Company or its subsidiaries, unless (i) the option price for such ISO is at
least 10 percent of the fair market value of the Shares subject to such ISO on
the date of grant and (ii) such Option is not exercisable after the date five
(5) years from the date such ISO is granted.


 


(b)  Limitation on Grants.  The aggregate fair market value (determined
with respect to each ISO at the time such ISO is granted) of the Shares with
respect to which 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 a Subsidiary) shall not exceed $100,000.


 



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(c)  Limitations on Time of
Grant.  No grant of an ISO
shall be made under this Plan more than ten (10) years after the earlier of the
date of adoption of the Plan by the Board or the date the Plan is approved by
stockholders.


 


ARTICLE
7

RESTRICTED
STOCK AND RESTRICTED STOCK UNITS


 


Section 7.01.  Restricted Stock and
Restricted Stock Units. (a) 
The Committee is hereby authorized to grant Awards of Restricted Stock
and Restricted Stock Units (payable in shares) to Participants.  Restricted Stock and Restricted Stock Units
shall be subject to such restrictions on transferability, risk of forfeiture
and other restrictions, if any, as the Committee may impose (including, without
limitation, any limitation on the right to vote Shares underlying the
Restricted Stock or the right to receive any dividend, other rights or
property), which restrictions may lapse separately or in combination at such
times, under such circumstances (including future service requirements), in
such installments or otherwise and under such other circumstances as the
Committee may determine at the date of grant or thereafter.  Awards of Restricted Stock and Restricted
Stock Units may be issued to Participants for no consideration, for such
minimum consideration as may be required by applicable law or for other
consideration, as determined by the Committee in its sole discretion.


 


(b)  Forfeiture.  Except as otherwise determined by the
Committee at any time, upon termination of employment or service during the
applicable restriction period, Restricted Stock or Restricted Stock Units that
are at that time subject to restrictions shall be forfeited and reacquired by
the Company; provided 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 and Restricted Stock Units will lapse in whole or in part on
certain events, including in the event of terminations resulting from specified
causes.


 


(c)  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, the Committee may require that
such certificates bear an appropriate legend referring to the terms, conditions
and restrictions applicable to such Restricted Stock, that the Company retain
physical possession of the certificates, and that the Participant deliver a
stock power to the Company, endorsed in blank, relating to the Restricted
Stock.


 


ARTICLE
8

PERFORMANCE SHARES AND UNITS


 


Section 8.01.  Award of Performance Shares.  


 


(i)  For each Performance Period (as defined in
Section 8.02), Performance Shares or Performance Units may be granted under the
Plan.  Each Performance Share shall be
deemed to be equivalent to one (1) Share. 
Performance Shares granted to a Participant shall be credited to an
account (a 



 9
 









“Performance Share Account”)
established and maintained for such Participant.


 


(ii)  The Award Agreement covering Performance
Units shall specify a value for each Performance Unit or shall set forth a
formula for determining the value of each Performance Unit at the time of
payment (the “Ending Value”).  If necessary to make the calculation of the
amount to be paid to the Participant pursuant to Section 8.03, the Committee
shall also state in the Award Agreement the initial value of each Performance
Unit (the “Initial Value”).  Performance Units granted to a Participant
shall be credited to an account (a “Performance Unit Account”)
established and maintained for such Participant.


 


Section 8.02.  Performance Period.  “Performance
Period” shall mean such period of time as shall be determined by the
Committee in its sole discretion; provided, however, that a Performance period
shall not be shorter than 12 months nor longer than five years.  Different Performance Periods may be established
for different Participants receiving Performance Shares.  Performance Periods may run consecutively or
concurrently.


 


Section 8.03.  Right to Payment of
Performance Shares and Performance Units. 
With respect to each award of Performance Shares or
Performance Units under this Plan, the Committee shall specify
Performance-Based Objectives which must be satisfied in order for the
Participant to vest in the Performance Shares which have been awarded the
Participant for the Performance Period. 
The Committee may also determine, in its sole discretion, that
Performance Shares or Performance Units awarded to a Participant shall become
partially or fully vested upon the Participant’s death, Disability or
retirement, or the termination of the Participant’s employment prior to the end
of the Performance Period.


 


Section 8.04.  Payment for Performance Shares
and Performance Units.  


 


(a)  As soon as practicable following the end of a
Performance Period, the Committee shall determine whether and to what extent
the Performance Objectives for the Performance Period have been achieved.  If the Performance Objectives for the
Performance Period have been exceeded, the Committee shall determine whether
additional Performance Shares or Performance Units shall be granted to the
Participant pursuant to Section 8.03.


 


(b)  As soon as reasonably practicable after such
determinations, or at such later date as the Committee shall determine at the
time of grant, the Company shall pay to the Participant one Share with respect
to each vested Performance Share.  


 


(c)  As soon as reasonably practicable after such
determinations, or at such later date as the Committee shall determine, the
Company shall pay to the Participant an amount with respect to each vested
Performance Unit equal to the Ending Value of the Performance Unit.  Payment shall be made entirely in cash,
entirely in Shares (including Restricted Shares) or in such combination of cash
and Shares as the Committee shall determine.


 



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Section 8.05.  Voting and Dividend
Rights.  Except as the
Committee may otherwise provide, no Participant shall be entitled to any voting
rights, to receive any dividends, or to have his or her Performance Share
Account credited or increased as a result of any dividends or other
distribution with respect to Common Shares. 
Notwithstanding the foregoing, within sixty (60) days from the date of
payment of a dividend by the Company on its Shares, the Committee, in its
discretion, may credit a Participant’s Performance Share Account with
additional Performance Shares having an aggregate fair market value equal to
the dividend per share paid on the Shares multiplied by the number of
Performance Shares credited to his or her account at the time the dividend was
declared.


 


ARTICLE
9

OTHER
STOCK-BASED AWARDS


 


The Committee is
authorized, subject to limitations under applicable law, to grant to
Participants 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,
Shares.  The Committee shall determine
the terms and conditions of such Awards, which shall be consistent with the
terms of the Plan.  Shares or other
securities delivered pursuant to an Award in the nature of a purchase right
granted under this Article 9 shall be purchased for such consideration, which
may be paid by such method or methods and in such form or forms, including,
without limitation, cash, Shares, other securities, other Awards, or other
property, or any combination thereof, as the Committee shall determine.


 


ARTICLE
10

OTHER
PROVISIONS APPLICABLE TO ALL AWARDS


 


Section 10.01.  Sale of the Company.  Unless otherwise determined by the
Committee and specified in the Award Agreement, upon a Sale of the Company in
which the successor company assumes or substitutes for any unvested Award, if a
Participant terminates employment for Good Reason or there is a termination of
a Participant’s employment other than for Cause, in
each case within the 24-month period beginning on the date of such Sale, any
unvested Awards held by such Participant shall become fully vested and
nonforfeitable.  Unless otherwise
determined by the Committee and specified in the Award Agreement, upon a Sale
of the Company in which the successor company does not assume or substitute for
any unvested Award, any unvested Awards held by such Participant shall become
fully vested and nonforfeitable.


 


Section 10.02.  Settlement of Award.  Shares delivered pursuant to the
exercise of an Option or SAR or upon settlement of any other Award shall be
subject to such conditions, restrictions and contingencies as the Committee may
establish pursuant to the Plan and any Award Agreement, in addition to the
conditions set forth herein.


 


Section 10.03.  Amendment to Awards.  Subject to Article 16, the
Committee may waive any conditions or rights under, amend any terms of, or
alter, suspend, discontinue, cancel or terminate, any Award theretofore
granted, prospectively or retroactively.


 



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Section 10.04.  Other Provisions. The
grant of any Award may also be subject to such other provisions as the
Committee deems appropriate (whether or not applicable to any Award granted to
any other Participant), including the treatment of Awards and Shares upon the
occurrence of any corporate transaction or distribution involving the Company,
including any merger, reorganization, recapitalization or other similar
corporate event.  


 


ARTICLE
11

DEFERRALS


 


This Plan shall be
operated and interpreted in accordance with Code Section 409A, any regulations
promulgated thereunder or any other applicable guidance.  Subject to the foregoing, the Committee, in
an Award Agreement or otherwise, may permit a Participant to defer such
Participant’s receipt of the payment of cash or delivery of Shares that would
otherwise be due to such Participant by virtue of the exercise of an Option or SAR
or the settlement of any other Award made under this Plan.


 


ARTICLE
12

TAX WITHHOLDING


 


All distributions
under the Plan are subject to withholding of all applicable taxes, and the
Committee may condition the delivery of Shares or other benefits upon satisfaction
of all applicable withholding requirements. The Committee, in its discretion
and subject to such requirements as it may prescribe, may permit such
withholding obligations to be satisfied through any combination of the
following:  (i) cash payment by the
Participant, (ii) payroll withholding of the Participant’s salary, wages or
other compensation, (iii) surrender of Shares which the Participant already
owns (either by actual surrender or attestation), or (iv) surrender of Shares
or other benefits to which the Participant is otherwise entitled (e.g., upon exercise of an Option or SAR or the settlement of
any other Award made under this Plan) under the terms of the Plan.


 


ARTICLE
13

TRANSFERABILITY OF OPTIONS AND OTHER AWARDS


 


Except as
otherwise expressly provided in an Award Agreement, no Award granted under this
Plan may be anticipated, assigned, attached, garnished, optioned, transferred
or made subject to any creditor’s process, whether voluntarily, involuntarily
or by operation of law.  An Option or any
other Award granted under this Plan may be exercised during the lifetime of the
Participant only by him or her or by his or her legal representative. 


 


ARTICLE
14

LIMITATION ON IMPLIED RIGHTS


 


Section 14.01.  Property Rights.  Neither a Participant nor any
other Person shall, by reason of participation in the Plan, acquire any right
in or title to any assets, funds or property of the Company or any Affiliate
whatsoever including without limitation, any 



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specific funds, assets or other property which the
Company or any Affiliate, in its or their sole discretion, may set aside in
anticipation of a liability under the Plan. 
Subject to the terms of the Plan, a Participant shall have only a
contractual right to the Shares or amounts, if any, payable under the Plan,
unsecured by any assets of the Company or any Affiliate, and nothing contained
in the Plan shall constitute a representation or guarantee that the assets of
the Company or any Affiliate shall be sufficient to pay any benefits to any
Person.


 


Section 14.02.  Employment Rights.  Nothing in this Plan nor in any
Award Agreement shall confer upon any Participant any promise or commitment by
the Company or an Affiliate regarding employment, employment positions, work
assignments, compensation or any other term or condition of employment or
affiliation.


 


Section 14.03.  No Implied Rights or
Obligations.  The Company, in
establishing and maintaining this Plan as a voluntary and unilateral
undertaking, expressly disavows the creation of any rights in Participants or
others claiming entitlement under the Plan or any obligations on the part of
the Company, any Affiliate or the Committee, except as expressly provided
herein. In particular, unless otherwise expressly provided for in the Award
Agreement, no third-party beneficiary rights shall be created under the Plan.  


 


Section 14.04.  No Trust or Fund Created.  Neither the Plan nor any Award
shall create or be construed to create a trust or separate fund of any kind or
a fiduciary relationship between the Company or any Affiliate and a Participant
or any other Person. To the extent that any Person acquires a right to receive
payments from the Company or any Affiliate pursuant to an Award, such right
shall be no greater than the right of any unsecured general creditor of the
Company or any Affiliate.


 


Section 14.05.  Rights as a Shareholder.  No Participant or holder of any
Option or of any other Award under this Plan shall have any rights as a
shareholder with respect to any Shares to be issued with respect to any Option
or other Award under the Plan until he or she shall have become the holder of
such Shares in accordance with the terms of the Plan.


 


ARTICLE
15

GOVERNMENT AND STOCK EXCHANGE REGULATIONS


 


The Committee may
refuse to issue or transfer any Shares or other consideration under an Award
if, acting in its sole discretion, it determines that the issuance or transfer
of such Shares or such other consideration might violate any applicable law or
regulation or entitle the Company to recover the same under Section 16(b) of
the Exchange Act, and any payment tendered to the Company by a Participant,
other holder or beneficiary in connection with the exercise of such Award shall
be promptly refunded to the relevant Participant, holder or beneficiary. Without
limiting the generality of the foregoing, no Award granted hereunder shall be
construed as an offer to sell securities of the Company, and no such offer
shall be outstanding, unless and until the Committee in its sole discretion has
determined that any such offer, if made, would be in compliance with all
applicable requirements of the U.S. federal and state securities laws and any
other laws to which such offer, if made, would be subject.


 



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Upon the exercise
of an Option or settlement of any other Award under this Plan at a time when
there is not in effect a registration statement under the Securities Act
relating to the Shares issuable upon exercise or payment thereof and available
for delivery a prospectus meeting the requirements of Section 10(a)(3) of the
Securities Act or if the rules or interpretations of the Securities and
Exchange Commission so require, the Shares may be issued only if the holder
represents and warrants in writing to the Company that the Shares purchased are
being acquired for investment and not with a view to distribution thereof.


 


The Company is
under no duty to ensure that Shares may legally be delivered under the Plan,
and shall have no liability to Award recipients in the event such delivery of
Shares may not be made.


 


ARTICLE
16

AMENDMENTS,
SUSPENSIONS OR TERMINATION OF PLAN


 


The Board may at
any time suspend or terminate the Plan and may amend it from time to time in
such respects as the Board may deem advisable in order that Awards granted
thereunder shall conform to any change in the law, or in any other respect
which the Board may deem to be in the best interests of the Company; provided, however, that any amendment that would constitute
a “material revision” of the Plan within the meaning of NYSE Rule 303A(8) shall
be subject to the approval of the holders of a majority of the voting power
represented by the securities of the Company entitled to vote.  If the Plan is terminated, the terms of the
Plan shall, notwithstanding such termination, continue to apply to Awards
granted prior to such termination.  No
suspension, termination, modification or amendment of the Plan may, without the
written consent of the Participants to whom an Award shall theretofore have
been granted, adversely affect the rights of such Participant under such Award.


 


ARTICLE
17

TERMINATION


 


The Plan shall
continue in effect until March 21, 2017, unless earlier terminated by the Board
pursuant to Article 16.


 


ARTICLE
18

GOVERNING LAW


 


The validity,
construction and effect of the Plan, the Award Agreements and any rules,
regulations or procedures relating thereto shall be determined in accordance
with the laws of the State of Delaware, without application of the conflict of
laws principles thereof.



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