ENTERED INTO
WITH HOLDERS.
4.2
THE COMMITTEE'S POWERS SHALL INCLUDE, BUT NOT BE LIMITED TO, THE
POWER TO DETERMINE WHETHER, TO WHAT EXTENT AND UNDER WHAT CIRCUMSTANCES AN
OPTION MAY BE EXCHANGED FOR CASH, COMPANY STOCK OR SOME COMBINATION THEREOF; TO
DETERMINE WHETHER, TO WHAT EXTENT AND UNDER WHAT CIRCUMSTANCES AN AWARD IS MADE
HEREUNDER; TO DETERMINE WHETHER, TO WHAT EXTENT AND UNDER WHAT CIRCUMSTANCES
COMPANY STOCK OR CASH PAYABLE WITH RESPECT TO AN AWARD SHALL BE DEFERRED, EITHER
AUTOMATICALLY OR AT THE ELECTION OF THE HOLDER (INCLUDING THE POWER TO ADD
DEEMED EARNINGS TO ANY SUCH DEFERRAL); TO GRANT AWARDS (OTHER THAN INCENTIVE
STOCK OPTIONS) THAT ARE TRANSFERABLE BY THE HOLDER; AND TO DETERMINE THE EFFECT,
IF ANY, OF A CHANGE IN CONTROL OF THE COMPANY UPON OUTSTANDING AWARDS.
UPON A
CHANGE IN CONTROL, THE COMMITTEE MAY, AT ITS DISCRETION, (I) FULLY VEST ALL
AWARDS MADE UNDER THE PLAN, (II) CANCEL ANY OUTSTANDING AWARDS IN EXCHANGE FOR A
CASH PAYMENT OF AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE THEN FAIR MARKET
VALUE OF THE STOCK UNDERLYING THE AWARD LESS THE OPTION OR BASE PRICE OF THE
AWARD, (III) AFTER HAVING GIVEN THE AWARD HOLDER A CHANCE TO EXERCISE ANY
OUTSTANDING OPTIONS, TERMINATE ANY OR ALL OF THE AWARD HOLDER'S UNEXERCISED
OPTIONS, OR (IV) IF THE COMPANY IS NOT THE SURVIVING CORPORATION, CAUSE THE
SURVIVING CORPORATION TO ASSUME OR REPLACE ALL OUTSTANDING AWARDS WITH
COMPARABLE AWARDS.
4.3
THE COMMITTEE SHALL HAVE THE POWER TO ADOPT REGULATIONS FOR
CARRYING OUT THE PLAN AND TO MAKE CHANGES IN SUCH REGULATIONS AS IT SHALL, FROM
TIME TO TIME, DEEM ADVISABLE.
THE COMMITTEE SHALL ENDEAVOR, IN GOOD FAITH, TO
AVOID THE APPLICATION OF SECTION 409A
7
OF THE CODE TO ANY AWARD BY TAKING SUCH ACTION, INCLUDING SUSPENDING THE
OPERATION OF ANY PROVISION OF THIS PLAN OR ANY AWARD, AS IT REASONABLY
DETERMINES TO BE NECESSARY OR APPROPRIATE TO THAT RESULT.
NO SUCH ACTION SHALL
BE DEEMED TO BE AN AMENDMENT ADVERSE TO THE HOLDER WITHIN THE MEANING OF SECTION
12.6.
ANY INTERPRETATION BY THE COMMITTEE OF THE TERMS AND PROVISIONS OF THE
PLAN AND THE ADMINISTRATION THEREOF, AND ALL ACTION TAKEN BY THE COMMITTEE,
SHALL BE FINAL AND BINDING ON HOLDERS.
4.4
THE COMMITTEE MAY CONDITION THE GRANT OF ANY AWARD OR THE LAPSE
OF ANY DEFERRAL OR RESTRICTION PERIOD (OR ANY COMBINATION THEREOF) UPON THE
HOLDER'S ACHIEVEMENT OF A PERFORMANCE GOAL THAT IS ESTABLISHED BY THE COMMITTEE
BEFORE THE GRANT OF THE AWARD.
FOR THIS PURPOSE, A "PERFORMANCE GOAL" SHALL
MEAN A GOAL THAT MUST BE MET BY THE END OF A PERIOD SPECIFIED BY THE COMMITTEE
(BUT THAT IS SUBSTANTIALLY UNCERTAIN TO BE MET BEFORE THE GRANT OF THE AWARD)
BASED UPON: (I) THE PRICE OF COMMON STOCK, (II) THE MARKET SHARE OF THE COMPANY,
ITS SUBSIDIARIES OR AFFILIATES (OR ANY BUSINESS UNIT THEREOF), (III) SALES BY
THE COMPANY, ITS SUBSIDIARIES OR AFFILIATES (OR ANY BUSINESS UNIT THEREOF), (IV)
EARNINGS PER SHARE OF COMMON STOCK, (V) RETURN ON SHAREHOLDER