EX-10.5



 





EXHIBIT 10.5




Pzena Investment Management, Inc.

Equity Incentive Plan





	1.	 	PURPOSE; TYPES OF AWARDS; CONSTRUCTION.




The purposes of the Pzena Investment Management, Inc. Equity Incentive Plan are to attract,
motivate and retain (a) employees of the Company and any Subsidiary or Affiliate, (b) independent
contractors who provide significant services to the Company, any Subsidiary or Affiliate and (c)
nonemployee directors of the Company, any Subsidiary or any Affiliate. The Plan is also designed
to encourage stock ownership by such persons, thereby aligning their interest with those of the
Company’s stockholders and to permit the payment of compensation that qualifies as
performance-based compensation under Section 162(m) of the Code. Pursuant to the provisions
hereof, there may be granted stock options (including “incentive stock options” and “non-qualified
stock options”), and other stock-based awards, including but not limited to restricted stock,
restricted stock units, dividend equivalents, performance units, Stock Appreciation Rights (payable
in cash or shares) and other long-term stock-based or cash-based Awards. Notwithstanding any
provision of the Plan, to the extent that any Award would be subject to Section 409A of the Code,
no such Award may be granted if it would fail to comply with the requirements set forth in Section
409A of the Code and any regulations or guidance promulgated thereunder.





	2.	 	DEFINITIONS. For purposes of the Plan, the following terms shall be defined as set forth
below:





     (a) “Affiliate” means an affiliate of the Company, as defined in Rule 12b-2 promulgated under
Section 12 of the Exchange Act.



     (b) “Award” means individually or collectively, a grant under the Plan of Options, Restricted
Stock, Restricted Stock Units or Other Stock-Based Awards or Other Cash-Based Awards.



     (c) “Award Terms” means any written agreement, contract, or other instrument or document
evidencing an Award.



     (d) “Beneficial Owner” shall have the meaning set forth in Rule 13d-3 under the Exchange Act.



     (e) “Board” means the Board of Directors of the Company.



     (f) “Cause” shall mean, with respect to a Grantee, (a) such Grantee being charged or indicted
for a felony involving the Company or any Affiliate’s business, or being convicted of any other
felony (or guilty plea, or nolo contendere plea in connection therewith), (b) such Grantee’s
willfully and materially defrauding the Company or any Affiliate, or (c) such Grantee’s committing
a willful and material breach of such Grantee’s obligations to protect the Company or any
Affiliate’s confidential information, such Grantee’s obligation of loyalty to the Company or any
Affiliate or such Grantee’s obligation to comply with the Company or any Affiliate’s Code of Ethics
or any other compliance regulations, policies or procedures, (d) the



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gross negligence or willful misconduct of such Grantee in the performance of such Grantee’s
duties which gross negligence or willful misconduct has the purpose, or the reasonable likely
effect, of causing material harm to the Company or any Affiliate, or (e) such Grantee fails to
maintain in good standing any and all licenses, registrations or other permits necessary for the
performance of his duties hereunder. For purposes of the definition of Cause, “materially,” and
“material” shall mean damages caused to the Company or any Affiliate in excess of $100,000 or any
significant damage to the reputation of the Company or any Affiliate.



     (g) “Change in Control” shall have the meaning set forth in Section 7(b) hereof.



     (h) “Code” means the Internal Revenue Code of 1986, as amended from time to time.



     (i) “Committee” means the Compensation Committee of the Board. Unless otherwise determined by
the Board, the Committee shall be comprised solely of directors who are (a) “nonemployee directors”
under Rule 16b-3 of the Exchange Act, (b) “outside directors” under Section 162(m) of the Code and
(c) “independent directors” pursuant to New York Stock Exchange requirements.



     (j) “Company” means Pzena Investment Management, Inc., a corporation organized under the laws
of the State of Delaware, or any successor corporation.



     (k) “Covered Employee” shall have the meaning set forth in Section 162(m)(3) of the Code.



     (l) “Effective Date” means the date that the Plan was adopted by the Board.



     (m) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time,
and as now or hereafter construed, interpreted and applied by regulations, rulings and cases.



     (n) “Excise Tax” shall have the meaning set forth in Section 7(d) hereof.



     (o) “Fair Market Value” means, with respect to Stock or other property, the fair market value
of such Stock or other property determined by such methods or procedures as shall be established
from time to time by the Committee. Unless otherwise determined by the Committee in good faith,
the per share Fair Market Value of Stock as of a particular date shall mean (i) if the Stock is
listed for trading on the New York Stock Exchange, the closing sale price per share of Stock on the
New York Stock Exchange on that date (or, if no closing sale price is reported, the last reported
sale price), (ii) if the Stock is not listed for trading on the New York Stock Exchange, the
closing sale price (or, if no closing sale price is reported, the last reported sale price) as
reported on that date in composite transactions for the principal national securities exchange
registered pursuant to Section 6(g) of the Exchange Act on which the Stock is listed, (iii) if the
Stock is not so listed on a national securities exchange, the last quoted bid price for the Stock
on that date in the over-the-counter market as reported by Pink Sheets LLC or a similar
organization, or (iv) if the Stock is not so quoted by Pink Sheets LLC or a similar organization
such value as the Committee, in its sole discretion, shall determine in good faith.



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     (p) “Grantee” means a person who, as an employee of or independent contractor or nonemployee
director with respect to the Company, a Subsidiary or an Affiliate, has been granted an Award under
the Plan.



     (q) “IPO” means the initial public offering of Stock, as contemplated in the Company’s
prospectus, dated [ , 2007].



     (r) “ISO” means any Option intended to be and designated as an incentive stock option within
the meaning of Section 422 of the Code.



     (s) “NQSO” means any Option that is designated as a nonqualified stock option.



     (t) “Option” means a right, granted to a Grantee under Section 6(b)(i), to purchase shares of
Stock. An Option may be either an ISO or an NQSO.



     (u) “Other Cash-Based Award” means an Award granted to a Grantee under Section 6(b)(iv)
hereof, including cash awarded as a bonus or upon the attainment of Performance Goals or otherwise
as permitted under the Plan.



     (v) “Other Stock-Based Award” means an Award granted to a Grantee pursuant to Section 6(b)(iv)
hereof, that may be denominated or payable in, valued in whole or in part by reference to, or
otherwise based on, or related to, Stock including but not limited to performance units, Stock
Appreciation Rights (payable in cash or shares) or dividend equivalents, each of which may be
subject to the attainment of Performance Goals or a period of continued employment or other terms
and conditions as permitted under the Plan.



     (w) “Performance Goals” means performance goals based on one or more of the following
criteria: (i) earnings including operating income, earnings before or after taxes, earnings before
or after interest, depreciation, amortization, or extraordinary or special items or book value per
share (which may exclude nonrecurring items); (ii) pre-tax income or after-tax income; (iii)
earnings per common share (basic or diluted); (iv) operating profit; (v) revenue, revenue growth or
rate of revenue growth; (vi) return on assets (gross or net), return on investment, return on
capital, or return on equity; (vii) returns on sales or revenues; (viii) operating expenses; (ix)
stock price appreciation; (x) cash flow, free cash flow, cash flow return on investment (discounted
or otherwise), net cash provided by operations, or cash flow in excess of cost of capital; (xi)
implementation or completion of critical projects or processes; (xii) economic value created;
(xiii) cumulative earnings per share growth; (xiv) operating margin or profit margin; (xv) common
stock price or total stockholder return; (xvi) cost targets, reductions and savings, productivity
and efficiencies; (xvii) strategic business criteria, consisting of one or more objectives based on
meeting specified market penetration, geographic business expansion, customer satisfaction,
employee satisfaction, human resources management, supervision of litigation, information
technology, and goals relating to acquisitions, divestitures, joint ventures and similar
transactions, and budget comparisons; (xviii) personal professional objectives, including any of
the foregoing performance goals, the implementation of policies and plans, the negotiation of
transactions, the development of long-term business goals, formation of joint ventures, research or
development collaborations, and the completion of other corporate transactions; and (xix) any
combination of, or a specified increase in, any of the foregoing.



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Where applicable, the Performance Goals may be expressed in terms of attaining a specified
level of the particular criteria or the attainment of a percentage increase or decrease in the
particular criteria, and may be applied to one or more of the Company, a Subsidiary or Affiliate,
or a division or strategic business unit of the Company, or may be applied to the performance of
the Company relative to a market index, a group of other companies or a combination thereof, all as
determined by the Committee. The Performance Goals may include a threshold level of performance
below which no payment will be made (or no vesting will occur), levels of performance at which
specified payments will be made (or specified vesting will occur), and a maximum level of
performance above which no additional payment will be made (or at which full vesting will occur).
Each of the foregoing Performance Goals shall be determined in accordance with generally accepted
accounting principles, if applicable, and shall be subject to certification by the Committee;
provided that, to the extent an Award is intended to satisfy the performance-based compensation
exception to the limits of Section 162(m) of the Code and then to the extent consistent with such
exception, the Committee shall have the authority to make equitable adjustments to the Performance
Goals in recognition of unusual or non-recurring events affecting the Company or any Subsidiary or
Affiliate or the financial statements of the Company or any Subsidiary or Affiliate, in response to
changes in applicable laws or regulations, or to account for items of gain, loss or expense
determined to be extraordinary or unusual in nature or infrequent in occurrence or related to the
disposal of a segment of a business or related to a change in accounting principles.




     (x) “Person” shall have the meaning set forth in Section 3(a)(9) of the Exchange Act, as
modified and used in Sections 13(d) and 14(d) thereof and the rules thereunder, except that such
term shall not include (1) the Company or any Subsidiary corporation, (2) a trustee or other
fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary
corporation, (3) an underwriter temporarily holding securities pursuant to an offering of such
securities, or (4) a corporation owned, directly or indirectly, by the stockholders of the Company
in substantially the same proportions as their ownership of stock of the Company.



     (y) “Plan” means this Pzena Investment Management, Inc. Equity Incentive Plan, as amended from
time to time.



     (z) “Plan Year” means a calendar year.



     (aa) “Restricted Stock” means an Award of shares of Stock to a Grantee under Section 6(b)(ii)
that may be subject to certain restrictions and to a risk of forfeiture.



     (bb) “Restricted Stock Unit” means a right granted to a Grantee under Section 6(b)(iii) of the
Plan to receive Stock or cash at the end of a specified period, which right may be subject to the
attainment of Performance Goals in a period of continued employment or other terms and conditions
as permitted under the Plan.



     (cc) “Rule 16b-3” means Rule 16b-3, as from time to time in effect promulgated by the
Securities and Exchange Commission under Section 16 of the Exchange Act, including any successor to
such Rule.



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     (dd) “Stock” means shares of Class A common stock, par value $0.01 per share, of the Company.



     (ee) “Stock Appreciation Right” means an Other Stock-Based Award, payable in cash or stock,
that entitles a Grantee upon exercise to the excess of the Fair Market Value of the Stock
underlying the Award over the base price established in respect of such Stock.



     (ff) “Subsidiary” means any corporation in an unbroken chain of corporations beginning with
the Company if, at the time of granting of an Award, each of the corporations (other than the last
corporation in the unbroken chain) owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in the chain.



     (gg) “Total Payments” shall have the meaning set forth in Section 7(d) hereof.




	3.	 	ADMINISTRATION.





     (a) The Plan shall be administered by the Committee or, at the discretion of the Board, the
Board, provided that any Award to the Chairman of the Board shall be subject to ratification by the
Board. In the event the Board is the administrator of the Plan, references herein to the Committee
shall be deemed to include the Board. The Board may from time to time appoint a member or members
of the Committee in substitution for or in addition to the member or members then in office and may
fill vacancies on the Committee however caused. The Board or the Committee may delegate the
ability to grant Awards to employees who are not subject to potential liability under Section 16(b)
of the 1934 Act with respect to transactions involving equity securities of the Company at the time
any such delegated authority is exercised.



     (b) The decision of the Committee as to all questions of interpretation and application of the
Plan shall be final, binding and conclusive on all persons. The Committee shall have the authority
in its discretion, subject to and not inconsistent with the express provisions of the Plan, to
administer the Plan and to exercise all the power and authority either specifically granted to it
under the Plan or necessary or advisable in the administration of the Plan, including without
limitation, the authority to grant Awards, to determine the persons to whom and the time or times
at which Awards shall be granted, to determine the type and number of Awards to be granted, the
number of shares of Stock to which an Award may relate and the terms, conditions, restrictions and
Performance Goals relating to any Award; to determine Performance Goals no later than such time as
is required to ensure that an underlying Award which is intended to comply with the requirements of
Section 162(m) of the Code so complies; to determine whether, to what extent, and under what
circumstances an Award may be settled, canceled, forfeited, accelerated, exchanged, or surrendered
(provided that, unless approved by the Company’s stockholders, no Award shall be settled, canceled,
forfeited, exchanged or surrendered in exchange or otherwise in consideration for a new Award with
a value in excess of the value of such settled, canceled, forfeited, exchanged or surrendered
Award); to make adjustments in the terms and conditions (including Performance Goals) applicable to
Awards; to construe and interpret the Plan and any Award; to prescribe, amend and rescind rules and
regulations relating to the Plan; to determine the terms and provisions of the Award Terms (which
need not be identical for each Grantee); and to make all other determinations deemed necessary or
advisable for the administration of the Plan. The Committee may correct any defect or supply any
omission or reconcile any



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inconsistency in the Plan or in any Award Terms granted hereunder in the manner and to the
extent it shall deem expedient to carry the Plan into effect and shall be the sole and final judge
of such expediency. No Committee member (or member of the Management Committee) shall be liable
for any action or determination made with respect to the Plan or any Award.




	4.	 	ELIGIBILITY.





     (a) Awards may be granted to officers, independent contractors, employees and nonemployee
directors of the Company or of any of its Subsidiaries and Affiliates; provided, that ISOs shall be
granted only to employees (including officers and directors who are also employees) of the Company,
its parent or any of its Subsidiaries.



     (b) No ISO shall be granted to any employee of the Company, its parent or any of its
Subsidiaries if such employee owns, immediately prior to the grant of the ISO, stock representing
more than 10% of the voting power or more than 10% of the value of all classes of stock of the
Company or a parent or a Subsidiary, unless the purchase price for the stock under such ISO shall
be at least 110% of its Fair Market Value at the time such ISO is granted and the ISO, by its
terms, shall not be exercisable more than five years from the date it is granted. In determining
the stock ownership under this paragraph, the provisions of Section 424(d) of the Code shall be
controlling.




	5.	 	STOCK SUBJECT TO THE PLAN.





     (a) The maximum number of shares of Stock reserved for the grant or settlement of Awards under
the Plan (the “Share Limit”) shall be 1.0% of the sum of the number of shares of (i) Class A common
stock and (ii) Class B common stock, par value $0.01 per share, of the Company, outstanding
immediately after the consummation of the IPO and shall be subject to adjustment as provided
herein. The aggregate number of shares of Stock made subject to Awards granted during any fiscal
year to any single individual shall not exceed 0.2%. Determinations made in respect of the
limitation set forth in the preceding sentence shall be made in a manner consistent with Section
162(m) of the Code. Such shares may, in whole or in part, be authorized but unissued shares or
shares that shall have been or may be reacquired by the Company in the open market, in private
transactions or otherwise. If any shares subject to an Award are forfeited, canceled, exchanged or
surrendered or if an Award otherwise terminates or expires without a distribution of shares to the
Grantee, the shares of stock with respect to such Award shall, to the extent of any such
forfeiture, cancellation, exchange, surrender, termination or expiration, again be available for
Awards under the Plan. Notwithstanding the foregoing, shares of Stock that are exchanged by a
Grantee or withheld by the Company as full or partial payment in connection with any Award under
the Plan, as well as any shares of Stock exchanged by a Grantee or withheld by the Company or any
Subsidiary to satisfy the tax withholding obligations related to any Award under the Plan, shall
not be available for subsequent Awards under the Plan. Upon the exercise of any Award granted in
tandem with any other Awards, such related Awards shall be canceled to the extent of the number of
shares of Stock as to which the Award is exercised and, notwithstanding the foregoing, such number
of shares shall no longer be available for Awards under the Plan.



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     (b) Except
as provided in any Award Terms or as otherwise provided in the Plan, in the event
that the Committee shall determine that any dividend or other distribution (whether in the form of
cash, Stock, or other property), recapitalization, Stock split, reverse split, reorganization,
merger, consolidation, spin-off, combination, repurchase, or share exchange, or other similar
corporate transaction or event, affects the Stock such that an adjustment is appropriate in order
to prevent dilution or enlargement of the rights of Grantees under the Plan, then the Committee
shall make such equitable changes or adjustments as it deems necessary or appropriate to any or all
of (i) the number and kind of shares of Stock or other property (including cash) that may
thereafter be issued in connection with Awards or the total number of Awards issuable under the
Plan, (ii) the number and kind of shares of Stock or other property issued or issuable in respect
of outstanding Awards, (iii) the exercise price, grant price or purchase price relating to any
Award, (iv) the Performance Goals and (v) the individual limitations applicable to Awards; provided
that, with respect to ISOs, any adjustment shall be made in accordance with the provisions of
Section 424(h) of the Code and any regulations or guidance promulgated thereunder, and provided
further that no such adjustment shall cause any Award hereunder which is or becomes subject to
Section 409A of the Code to fail to comply with the requirements of such section.




	6.	 	SPECIFIC TERMS OF AWARDS.





     (a) General. The term of each Award shall be for such period as may be determined by
the Committee. Subject to the terms of the Plan and any applicable Award Terms, payments to be made
by the Company or a Subsidiary or Affiliate upon the grant, maturation, or exercise of an Award may
be made in such forms as the Committee shall determine at the date of grant or thereafter,
including, without limitation, cash, Stock, or other property, and may be made in a single payment
or transfer, in installments, or, subject to the requirements of Section 409A of the Code, on a
deferred basis.



     (b) Awards. The Committee is authorized to grant to Grantees the following Awards, as
deemed by the Committee to be consistent with the purposes of the Plan. The Committee shall
determine the terms and conditions of such Awards.




	 	(i)	 	Options. The Committee is authorized to grant Options
to Grantees on the following terms and conditions:






	 	(A)	 	The Award Terms evidencing the grant of an
Option under the Plan shall designate the Option as an ISO or an NQSO.
	 
	 	(B)	 	The exercise price per share of Stock
purchasable under an Option shall be determined by the Committee, but
in no event shall the exercise price of an Option per share of Stock be
less than the Fair Market Value of a share of Stock as of the date of
grant of such Option. The purchase price of Stock as to which an
Option is exercised shall be paid in full at the time of exercise;
payment may be made in cash, which may be paid by check, or other
instrument acceptable to the Company, or, with the consent of the
Committee, in shares of Stock, valued at the Fair Market Value on the
date of




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	 	 	 	exercise (including shares of Stock that otherwise would be
distributed to the Grantee upon exercise of the Option), or if there
were no sales on such date, on the next preceding day on which there
were sales or (if permitted by the Committee and subject to such
terms and conditions as it may determine) by surrender of outstanding
Awards under the Plan, or the Committee may permit such payment of
exercise price by any other method it deems satisfactory in its
discretion. In addition, subject to applicable law and pursuant to
procedures approved by the Committee, payment of the exercise price
may be made through the sale of Stock acquired on exercise of the
Option, valued at Fair Market Value on the date of exercise,
sufficient to pay for such Stock (together with, if requested by the
Company, the amount of federal, state or local withholding taxes
payable by Grantee by reason of such exercise). Any amount necessary
to satisfy applicable federal, state or local tax withholding
requirements shall be paid promptly upon notification of the amount
due. The Committee may permit such amount of tax withholding to be
paid in shares of Stock previously owned by the employee, or a
portion of the shares of Stock that otherwise would be distributed to
such employee upon exercise of the Option, or a combination of cash
and shares of such Stock.
	 
	 	(C)	 	Options shall be exercisable over the exercise
period (which shall not exceed ten years from the date of grant), at
such times and upon such conditions as the Committee may determine, as
reflected in the Award Terms; provided that, the Committee shall have
the authority to accelerate the exercisability of any outstanding
Option at such time and under such circumstances as it, in its sole
discretion, deems appropriate. An Option may be exercised to the extent
of any or all full shares of Stock as to which the Option has become
exercisable, by giving written notice of such exercise to the Committee
or its designated agent. No partial exercise may be made for less than
one hundred (100) full shares of Stock.
	 
	 	(D)	 	Upon the termination of a Grantee’s employment
or service with the Company and its Subsidiaries or Affiliates, the
Options granted to such Grantee, to the extent that they are
exercisable at the time of such termination, shall remain exercisable
for such period as may be provided in the applicable Award Terms, but
in no event following the expiration of their term. The treatment of
any Option that is unexercisable as of the date of such termination
shall be as set forth in the applicable Award Terms.
	 
	 	(E)	 	Options may be subject to such other conditions
including, but not limited to, restrictions on transferability of, or
provisions for recovery of, the shares acquired upon exercise of such
Options (or




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	 	 	 	proceeds of sale thereof), as the Committee may prescribe in its
discretion or as may be required by applicable law.






	 	(ii)	 	Restricted Stock.






	 	(A)	 	The Committee may grant Awards of Restricted
Stock, alone or in tandem with other Awards under the Plan, subject to
such restrictions, terms and conditions, as the Committee shall
determine in its sole discretion and as shall be evidenced by the
applicable Award Terms (provided that any such Award is subject to the
vesting requirements described herein). The vesting of a Restricted
Stock Award granted under the Plan may be conditioned upon the
completion of a specified period of employment or service with the
Company or any Subsidiary or Affiliate, upon the attainment of
specified Performance Goals, and/or upon such other criteria as the
Committee may determine in its sole discretion.
	 
	 	(B)	 	The Committee shall determine the price, which,
to the extent required by law, shall not be less than par value of the
Stock, to be paid by the Grantee for each share of Restricted Stock or
unrestricted stock or stock units subject to the Award. Each Award
Terms with respect to such stock award shall set forth the amount (if
any) to be paid by the Grantee with respect to such Award and when and
under what circumstances such payment is required to be made.
	 
	 	(C)	 	Except as provided in the applicable Award
Terms, no shares of Stock underlying a Restricted Stock Award may be
assigned, transferred, or otherwise encumbered or disposed of by the
Grantee until such shares of Stock have vested in accordance with the
terms of such Award.
	 
	 	(D)	 	If and to the extent that the applicable Award
Terms may so provide, a Grantee shall have the right to vote and
receive dividends on Restricted Stock granted under the Plan. Unless
otherwise provided in the applicable Award Terms, any Stock received as
a dividend on or in connection with a stock split of the shares of
Stock underlying a Restricted Stock Award shall be subject to the same
restrictions as the shares of Stock underlying such Restricted Stock
Award.
	 
	 	(E)	 	Upon the termination of a Grantee’s employment
or service with the Company and its Subsidiaries or Affiliates, the
Restricted Stock granted to such Grantee shall be subject to the terms
and conditions specified in the applicable Award Terms.




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	 	(iii)	 	Restricted Stock Units. The Committee is authorized to
grant Restricted Stock Units to Grantees, subject to the following terms and
conditions:






	 	(A)	 	At the time of the grant of Restricted Stock
Units, the Committee may impose such restrictions or conditions to the
vesting of such Awards as it, in its discretion, deems appropriate,
including, but not limited to, the achievement of Performance Goals.
The Committee shall have the authority to accelerate the settlement of
any outstanding award of Restricted Stock Units at such time and under
such circumstances as it, in its sole discretion, deems appropriate,
subject to the requirements of Section 409A of the Code.
	 
	 	(B)	 	Unless otherwise provided in Award Terms or
except as otherwise provided in the Plan, upon the vesting of a
Restricted Stock Unit there shall be delivered to the Grantee, as soon
as practicable following the date on which such Award (or any portion
thereof) vests (but in any event within such period as is required to
avoid the imposition of a tax under Section 409A of the Code), that
number of shares of Stock equal to the number of Restricted Stock Units
becoming so vested.
	 
	 	(C)	 	Subject to the requirements of Section 409A of
the Code, an Award of Restricted Stock Units may provide the Grantee
with the right to receive dividend equivalent payments with respect to
Stock subject to the Award (both before and after the Stock subject to
the Award is earned or vested), which payments may be either made
currently or credited to an account for the Participant, and may be
settled in cash or Stock, as determined by the Committee. Any such
settlements and any such crediting of dividend equivalents may be
subject to such conditions, restrictions and contingencies as the
Committee shall establish, including the reinvestment of such credited
amounts in Stock equivalents.
	 
	 	(D)	 	Upon the termination of a Grantee’s employment
or service with the Company and its Subsidiaries or Affiliates, the
Restricted Stock Units granted to such Grantee shall be subject to the
terms and conditions specified in the applicable Award Terms.






	 	(iv)	 	Other Stock-Based or Cash-Based Awards.






	 	(A)	 	The Committee is authorized to grant Awards to
Grantees in the form of Other Stock-Based Awards or Other Cash-Based
Awards, as deemed by the Committee to be consistent with the purposes
of the Plan. The Committee shall determine the terms and conditions of
such Awards, consistent with the terms of the Plan, at the date of
grant or thereafter, including the Performance Goals and




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	 	 	 	performance periods. Stock or other securities or property delivered
pursuant to an Award in the nature of a purchase right granted under
this Section 6(b)(iv) shall be purchased for such consideration, paid
for at such times, by such methods, and in such forms, including,
without limitation, Stock, other Awards, notes or other property, as
the Committee shall determine, subject to any required corporate
action.
	 
	 	(B)	 	The maximum value of the aggregate payment that
any Grantee may receive with respect to Other Cash-Based Awards
pursuant to this Section 6(b)(iv) in respect of any annual performance
period is $15 million and for any other performance period in excess of
one year, such amount multiplied by a fraction, the numerator of which
is the number of months in the performance period and the denominator
of which is twelve. No payment shall be made to a Covered Employee
prior to the certification by the Committee that the Performance Goals
have been attained. The Committee may establish such other rules
applicable to the Other Stock- or Cash-Based Awards to the extent not
inconsistent with Section 162(m) of the Code.
	 
	 	(C)	 	Payments earned in respect of any Cash-Based
Award may be decreased or, with respect to any Grantee who is not a
Covered Employee, increased in the sole discretion of the Committee
based on such factors as it deems appropriate. Notwithstanding the
foregoing, any Awards may be adjusted in accordance with Section 5(b)
hereof.






	7.	 	CHANGE IN CONTROL PROVISIONS.





     (a) Unless otherwise determined by the Committee or evidenced in an applicable Award Terms or
employment or other agreement, in the event of a Change in Control, the Committee shall have the
discretion, exercisable either in advance of such Change in Control or at the time thereof, to
provide for one or more of the following:




	 	(i)	 	the continuation of outstanding Awards after the Change in
Control without change;
	 
	 	(ii)	 	the cash-out of outstanding Options as of the time of the
transaction as part of the transaction for an amount equal to the difference
between the price that would have been paid for the shares of Stock subject to
such outstanding Options if such Options were exercised upon the closing of
such transaction and the exercise price of such outstanding Options; provided
that if the exercise price of the Options exceeds the price that would have
been paid for the shares of Stock subject to the outstanding Options if such
Options were exercised upon the closing of the transaction,




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	 	 	 	then such Options may be cancelled without making a payment to the
Optionees;
	 
	 	(iii)	 	the expiration of the exercise period for outstanding Options
upon the closing of the transaction;
	 
	 	(iv)	 	the cancellation of outstanding Restricted Stock, Restricted
Stock Units and/or Other Stock-Based Awards and payment to the Participants
holding such Awards equal to the value of the underlying shares of Stock as of
the closing date of the transaction, in such form and at such time as the
Committee shall determine;
	 
	 	(v)	 	a requirement that the buyer in the transaction assume
outstanding Options and/or Restricted Stock and/or Restricted Stock Units;
	 
	 	(vi)	 	a requirement that the buyer in the transaction substitute
outstanding Options with comparable options to purchase the equity interests of
the buyer or its parent and/or substitute outstanding Restricted Stock Units
and/or Other Stock-Based Awards with comparable restricted stock or units of
the buyer or its parent; and
	 
	 	(vii)	 	the acceleration of outstanding Options, Restricted Stock
Units and Other Stock-Based Awards.




Notwithstanding any other provision of the Plan, in the event of a Change in Control in which the
consideration paid to the holders of shares of Stock is solely cash, the Committee may, in its
discretion, provide that each Award shall, upon the occurrence of a Change in Control, be canceled
in exchange for a payment in an amount equal to (i) the excess of the consideration paid per share
of Stock in the Change in Control over the exercise or purchase price (if any) per share of Stock
subject to the Award multiplied by (ii) the number of Shares granted under the Award.




     (b) A “Change in Control” shall be deemed to have occurred if the event set forth in any one
of the following paragraphs shall have occurred:




	 	(i)	 	any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the securities
beneficially owned by such Person any securities acquired directly from the
Company or its Affiliates) representing 30% or more of the combined voting
power of the Company’s then outstanding securities, excluding any Person who
becomes such a Beneficial Owner in connection with a transaction described in
clause (I) of paragraph (iii) below; or
	 
	 	(ii)	 	the following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals who, on the date
hereof, constitute the Board and any new director (other than a director whose
initial assumption of office is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation, relating
to the election of directors of the Company) whose appointment or




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	 	 	 	election by the Board or nomination for election by the Company’s
stockholders was approved or recommended by a vote of at least two-thirds
(2/3) of the directors then still in office who either were directors on the
date hereof or whose appointment, election or nomination for election was
previously so approved or recommended; or
	 
	 	(iii)	 	there is consummated a merger or consolidation of the Company
or any direct or indirect subsidiary of the Company with any other corporation
or other entity, other than (I) a merger or consolidation which results in (A)
the voting securities of the Company outstanding immediately prior to such
merger or consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity or any parent thereof), in combination with the ownership of any trustee
or other fiduciary holding securities under an employee benefit plan of the
Company or any subsidiary of the Company, at least 60% of the combined voting
power of the securities of the Company or such surviving entity or any parent
thereof outstanding immediately after such merger or consolidation and (B) the
individuals who comprise the Board immediately prior thereto constituting
immediately thereafter at least a majority of the board of directors of the
Company, the entity surviving such merger or consolidation or, if the Company
or the entity surviving such merger is then a subsidiary, the ultimate parent
thereof, or (II) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no Person is
or becomes the Beneficial Owner, directly or indirectly, of securities of the
Company (not including in the securities Beneficially Owned by such Person any
securities acquired directly from the Company or its Affiliates) representing
30% or more of the combined voting power of the Company’s then outstanding
securities; or
	 
	 	(iv)	 	the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company or there is consummated an agreement
for the sale or disposition by the Company of all or substantially all of the
Company’s assets (it being conclusively presumed that any sale or disposition
is a sale or disposition by the Company of all or substantially all of its
assets if the consummation of the sale or disposition is contingent upon
approval by the Company’s stockholders unless the Board expressly determines in
writing that such approval is required solely by reason of any relationship
between the Company and any other Person or an Affiliate of the Company and any
other Person), other than a sale or disposition by the Company of all or
substantially all of the Company’s assets to an entity (i) at least 60% of the
combined voting power of the voting securities of which are owned by
stockholders of the Company in substantially the same proportions as their
ownership of the Company immediately prior to such sale or disposition and (ii)
the majority of whose board of directors immediately following such sale or
disposition consists of individuals who comprise the Board immediately prior
thereto.





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     (c) Notwithstanding the foregoing, a “Change in Control” shall not be deemed to have occurred
by virtue of the consummation of any transaction or series of integrated transactions immediately
following which the record holders of the common stock of the Company immediately prior to such
transaction or series of transactions continue to have substantially the same proportionate
ownership in an entity which owns all or substantially all of the assets of the Company immediately
following such transaction or series of transactions.



     (d) Unless otherwise provided by the Committee or set forth in a Grantee’s Award Terms,
notwithstanding the provisions of this Plan, in the event that any payment or benefit received or
to be received by the Grantee in connection with a Change in Control or the termination of the
Grantee’s employment or service (whether pursuant to the terms of this Plan or any other plan,
arrangement or agreement with the Company, any Subsidiary, any Affiliate, any Person whose actions
result in a Change in Control or any Person affiliated with the Company or such Person) (all such
payments and benefits, “Total Payments”) would be subject (in whole or part), to the excise tax
imposed by Section 4999 of the Code (the “Excise Tax”), then, after taking into account any
reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan,
arrangement or agreement, the payment or benefit to be received by the Grantee upon a Change in
Control shall be reduced to the extent necessary so that no portion of the Total Payments is
subject to the Excise Tax but only if the net amount of such Total Payments, as so reduced (and
after subtracting the net amount of federal, state and local income taxes on such reduced Total
Payments) is greater than or equal to the net amount of such Total Payments without such reduction
(but after subtracting the net amount of federal, state and local income taxes on such Total
Payments and the amount of Excise Tax to which the Executive would be subject in respect of such
unreduced Total Payments).




	8.	 	GENERAL PROVISIONS.





     (a) Nontransferability, Deferrals and Settlements. Unless otherwise determined by the
Committee or provided in an Award Terms, Awards shall not be transferable by a Grantee except by
will or the laws of descent and distribution and shall be exercisable during the lifetime of a
Grantee only by such Grantee or his guardian or legal representative. Notwithstanding the
foregoing, any transfer of Awards to independent third parties for cash consideration without
stockholder approval is prohibited. Any Award shall be null and void and without effect upon any
attempted assignment or transfer, except as herein provided, including without limitation any
purported assignment, whether voluntary or by operation of law, pledge, hypothecation or other
disposition, attachment, divorce, trustee process or similar process, whether legal or equitable,
upon such Award. The Committee may require or permit Grantees to elect to defer the issuance of
shares of Stock (with settlement in cash or Stock as may be determined by the Committee or elected
by the Grantee in accordance with procedures established by the Committee), or the settlement of
Awards in cash under such rules and procedures as established under the Plan to the extent that
such deferral complies with Section 409A of the Code and any regulations or guidance promulgated
thereunder. It may also provide that deferred settlements include the payment or crediting of
interest, dividends or dividend equivalents on the deferral amounts.



     (b) No Right to Continued Employment, etc. Nothing in the Plan or in any Award
granted or any Award Terms, promissory note or other agreement entered into pursuant hereto shall
confer upon any Grantee the right to continue in the employ or service of the Company, any



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Subsidiary or any Affiliate or to be entitled to any remuneration or benefits not set forth in
the Plan or such Award Terms, promissory note or other agreement or to interfere with or limit in
any way the right of the Company or any such Subsidiary or Affiliate to terminate such Grantee’s
employment or service.



     (c) Clawback. If a Grantee engages in misconduct (as defined herein), the Grantee:
(i) forfeits the right to receive any future Awards or other equity-based incentive compensation
under the Plan; and (ii) the Company may demand repayment of any Awards or cash payments already
received by a Grantee, including without limitation repayment due to making retroactive adjustments
to any Awards or cash payments already received by a Grantee under the Plan where such Award or
cash payment was predicated upon the achievement of certain financial results that were
subsequently the subject of a restatement as a result of misconduct by the Grantee. The Grantee
shall be required to provide repayment within ten (10) days following such written demand. For the
purposes of the Plan, “misconduct” means (i) Grantee’s employment or service is terminated for
Cause, or (ii) the breach of a noncompete or confidentiality covenant set out in the employment
agreement between the Grantee and the Company or an Affiliate, or (iii) the Company has been
required to prepare an accounting restatement due to material noncompliance, as a result of fraud
or misconduct, with any financial reporting requirement under the securities laws, and the
Committee has determined in its sole discretion that the Grantee: (A) had knowledge of the material
noncompliance or the circumstances that gave rise to such noncompliance and failed to take
reasonable steps to bring it to the attention of appropriate individuals within the Company; or (B)
personally and knowingly engaged in practices which materially contributed to the circumstances
that enabled a material noncompliance to occur.



     (d) Taxes. The Company or any Subsidiary or Affiliate is authorized to withhold from
any Award granted, any payment relating to an Award under the Plan, including from a distribution
of Stock, or any other payment to a Grantee, amounts of withholding and other taxes due in
connection with any transaction involving an Award, and to take such other action as the Committee
may deem advisable to enable the Company and Grantees to satisfy obligations for the payment of
withholding taxes and other tax obligations relating to any Award. This authority shall include
authority to withhold or receive Stock or other property with a Fair Market Value not in excess of
the minimum amount required to be withheld and to make cash payments in respect thereof in
satisfaction of a Grantee’s tax obligations.



     (e) Stockholder Approval; Amendment and Termination. The Plan shall take effect on
the Effective Date but the Plan (and any grants of Awards made prior to the stockholder approval
mentioned herein) shall be subject to the requisite approval of the stockholders of the Company,
which approval must occur within twelve (12) months of the date that the Plan is adopted by the
Board. In the event that the stockholders of the Company do not ratify the Plan at a meeting of the
stockholders at which such issue is considered and voted upon, then upon such event the Plan and
all rights hereunder shall immediately terminate and no Grantee (or any permitted transferee
thereof) shall have any remaining rights under the Plan or any Award Terms entered into in
connection herewith. The Board may amend, alter or discontinue the Plan, but no amendment,
alteration, or discontinuation shall be made that would impair the rights of a Grantee under any
Award theretofore granted without such Grantee’s consent, or that without the approval of the
stockholders (as described below) would, except as provided in Section 5, increase the total number
of shares of Stock reserved for the purpose of the Plan. In addition,



15









 







stockholder approval shall be required with respect to any amendment that materially increases
benefits provided under the Plan or materially alters the eligibility provisions of the Plan or
with respect to which stockholder approval is required under the rules of any stock exchange on
which Stock is then listed. Unless earlier terminated by the Board pursuant to the provisions of
the Plan, the Plan shall terminate on the tenth anniversary of its Effective Date. No Awards shall
be granted under the Plan after such termination date.



     (f) No Rights to Awards; No Stockholder Rights. No individual shall have any claim to
be granted any Award under the Plan, and there is no obligation for uniformity of treatment of
Grantees. No individual shall have any right to an Award or to payment or settlement under any
Award unless and until the Committee or its designee shall have determined that an Award or payment
or settlement is to be made. Except as provided specifically herein, a Grantee or a transferee of
an Award shall have no rights as a stockholder with respect to any shares covered by the Award
until the date of the issuance of such shares.



     (g) Unfunded Status of Awards. The Plan is intended to constitute an “unfunded” plan
for incentive and deferred compensation. With respect to any payments not yet made to a Grantee
pursuant to an Award, nothing contained in the Plan or any Award shall give any such Grantee any
rights that are greater than those of a general creditor of the Company.



     (h) No Fractional Shares. No fractional shares of Stock shall be issued or delivered
pursuant to the Plan or any Award. The Committee shall determine whether cash, other Awards, or
other property shall be issued or paid in lieu of such fractional shares or whether such fractional
shares or any rights thereto shall be forfeited or otherwise eliminated.



     (i) Regulations and Other Approvals.




	 	(i)	 	The obligation of the Company to sell or deliver Stock with
respect to any Award granted under the Plan shall be subject to all applicable
laws, rules and regulations, including all applicable federal and state
securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Committee.
	 
	 	(ii)	 	Each Award is subject to the requirement that, if at any time
the Committee determines, in its absolute discretion, that the listing,
registration or qualification of Stock issuable pursuant to the Plan is
required by any securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory body is necessary or
desirable as a condition of, or in connection with, the grant of an Award or
the issuance of Stock, no such Award shall be granted or payment made or Stock
issued, in whole or in part, unless listing, registration, qualification,
consent or approval has been effected or obtained free of any conditions not
acceptable to the Committee.
	 
	 	(iii)	 	In the event that the disposition of Stock acquired pursuant
to the Plan is not covered by a then current registration statement under the
Securities Act of 1933, as amended (the “Securities Act”), and is not otherwise




16









 






	 	 	 	exempt from such registration, such Stock shall be restricted against
transfer to the extent required by the Securities Act or regulations
thereunder, and the Committee may require a Grantee receiving Stock pursuant
to the Plan, as a condition precedent to receipt of such Stock, to represent
to the Company in writing that the Stock acquired by such Grantee is
acquired for investment only and not with a view to distribution.





     (j) Section 409A. This Plan is intended to comply and shall be administered in a
manner that is intended to comply with Section 409A of the Code and shall be construed and
interpreted in accordance with such intent. To the extent that an Award, issuance and/or payment
is subject to Section 409A of the Code, it shall be awarded and/or issued or 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. Any provision of this Plan that would cause an Award, issuance and/or payment to
fail to satisfy Section 409A of the Code shall have no force and effect until amended to comply
with Code Section 409A (which amendment may be retroactive to the extent permitted by applicable
law).



     (k) Governing Law. The Plan and all determinations made and actions taken pursuant
hereto shall be governed by the laws of the State of Delaware without giving effect to the conflict
of laws principles thereof.




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