exv4w6






Exhibit 4.6




U.S. CONCRETE, INC.




2008 INCENTIVE PLAN




     1. Establishment of the Plan. U.S. Concrete, Inc., a Delaware corporation (the “Company”),
hereby establishes this U.S. Concrete, Inc. 2008 Incentive Plan (the “Plan”), effective as of April
11, 2008, subject to stockholder approval of the Plan at the May 2008 annual meeting of
stockholders.



     2. Definitions. The following terms used in the Plan have the following respective meanings:



     “Authorized Officer” means the CEO (or any other senior officer of the Company to whom the CEO
delegates, by written notice to the Committee of that delegation, authority to execute any Award
Agreement).



     “Award” means a Director Award or an Employee Award.



     “Award Agreement” means any written Director Award Agreement or Employee Award Agreement.



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



     “Cash Award” means an award denominated in cash.



     “CEO” means the chief executive officer of the Company at that time.



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



     “Committee” means the Compensation Committee of the Board (or any other committee of the Board
which the Board designates by a written resolution to administer the Plan).



     “Common Stock” means the Common Stock, par value $.001 per share, of the Company.



     “Company” means U.S. Concrete, Inc., a Delaware corporation.



     “Director” means an individual serving as a member of the Board.



     “Director Award” means the grant under the Plan of any Nonqualified Option, SAR, Stock Award,
Cash Award or Performance Award, whether granted singly or in combination or tandem with any other
Award, to a Participant who is a Nonemployee Director on such terms and subject to such conditions
and limitations as the Committee may establish pursuant to the Plan.



     “Director Award Agreement” means a written agreement between the Company and a Participant who
is a Nonemployee Director which sets forth the terms, conditions and limitations applicable to a
Director Award granted to that Nonemployee Director.



 









 





     “Dividend Equivalents” means, with respect to shares of Restricted Stock, an amount equal to
all dividends and other distributions (or the economic equivalent thereof) that are payable to
stockholders of record during the Restriction Period applicable to those shares on a like number of
shares of Common Stock.



     “Employee” means any employee of the Company or any of its Subsidiaries.



     “Employee Award” means the grant under the Plan of any Option, SAR, Stock Award, Cash Award or
Performance Award, whether granted singly or in combination or tandem with any other Award, to a
Participant who is an Employee on such terms and subject to such conditions and limitations as the
Committee may establish pursuant to the Plan.



     “Employee Award Agreement” means a written agreement between the Company and a Participant who
is an Employee which sets forth the terms, conditions and limitations applicable to an Employee
Award granted to that Employee.



     “Fair Market Value” of a share of Common Stock means, as of a particular date, (i) if shares
of Common Stock are listed on a national securities exchange, the closing sales price on such date
or, if such price is unavailable, the average of the closing bid and asked prices per share of
Common Stock on such date (or in either event, if there was no trading in the Common Stock on such
date, on the next preceding date on which such trading was reported) as provided by the
consolidated transaction reporting system for the principal national securities exchange on which
shares of Common Stock are listed on such date; (ii) if shares of Common Stock are not so listed,
the last sales price on such date or, if such price is unavailable, the average of the closing bid
and asked prices per share of Common Stock on such date (or, if there was no trading in the Common
Stock on such date, on the next preceding date on which such trading was reported) as reported by
the National Quotation Bureau Incorporated; or (iii) if shares of Common Stock are not publicly
traded on such date, the most recent value determined by an independent appraiser appointed by the
Company for such purpose.



     “Incentive Option” means an Option intended to comply with Code Section 422.



     “Nonemployee Director” has the meaning specified in Paragraph 4(b).



     “Nonqualified Option” means an Option that is not an Incentive Option.



     “Option” means a right to purchase a specified number of shares of Common Stock at a specified
price.



     “Participant” means a Nonemployee Director or Employee to whom an Award has been made under
the Plan.



     “Performance Award” means an award to a Participant who is an Employee or Director, the
earning of which is subject to the attainment of one or more Performance Goals.



     “Performance Goal” means a standard the Committee establishes to determine in whole or in part
whether a Performance Award will be earned.



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     “Restricted Stock” means any Common Stock that is restricted or subject to forfeiture
provisions.



     “Restricted Stock Unit” (“RSU”) means a unit evidencing the right to receive one share of
Common Stock or equivalent value (as determined by the Committee) that is restricted or subject to
forfeiture provisions.



     “Restriction Period” means a period of time beginning as of the effective date as of which an
Award of Restricted Stock or RSUs is made and ending as of the date on which the Common Stock
subject to that Award is no longer restricted as to its transfer or no longer subject to forfeiture
provisions.



     “SAR” means a right to receive a payment, in cash or Common Stock (as determined by the
Committee), equal to the excess of the Fair Market Value or other specified valuation of a
specified number of shares of Common Stock on the date the right is exercised over a specified
strike price, in each case as set forth in the Award Agreement.



     “Stock Award” means an award in the form of Common Stock or units denominated in Common Stock.



     “Subsidiary” means: (i) in the case of a corporation, any corporation of which the Company
directly or indirectly owns shares representing more than 50% of the combined voting power of the
shares of all classes or series of capital stock of that corporation which have the right to vote
generally on matters submitted to a vote of the stockholders of that corporation; and (ii) in the
case of a partnership or other business entity not organized as a corporation, any such business
entity of which the Company directly or indirectly owns more than 50% of the voting, capital or
profits interests (whether in the form of partnership interests, membership interests or
otherwise).



     3. Objectives. The Company has designed the Plan to (i) attract and retain key Employees and
qualified Nonemployee Directors, (ii) encourage the sense of proprietorship of those persons in the
Company, and (iii) stimulate the active interest of those persons in the development and financial
success of the Company by making Awards.



     4. Eligibility.



          (a) Employees. Employees assigned or to be assigned positions of responsibility and whose
performance, in the judgment of the Committee, can have a significant effect on the success of the
Company are eligible for Employee Awards. The Committee may grant an Employee Award to any
individual who has agreed in writing to become an Employee within six months after the date of that
agreement, provided that the effectiveness of that Award is subject to the condition that the
individual actually becomes an Employee within that time period.




          (b) Directors. Directors who are not employees of the Company or any of its Subsidiaries
(“Nonemployee Directors”) are eligible for Director Awards.




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     5. Common Stock Available for Awards. Subject to the provisions of Paragraph 14, there will
be available for Awards granted wholly or partly in Common Stock (including Options or SARs that
may be exercised for or settled in Common Stock) an aggregate of (i) 2,500,000 shares of Common
Stock, and (ii) shares of Common Stock which are the subject of awards under the 1999 Incentive
Plan or the 2001 Employee Incentive Plan of the Company that are forfeited or terminated, expire
unexercised, are settled in cash in lieu of Common Stock or in a manner such that all or some of
the shares covered thereby are not issued or are exchanged for consideration that does not involve
Common Stock. No more than 2,500,000 shares of Common Stock will be used under the Plan for Awards
of Incentive Options. Shares of Common Stock which are the subject of Awards that are forfeited or
terminated, expire unexercised, are settled in cash in lieu of Common Stock or in a manner such
that all or some of the shares covered thereby are not issued to a Participant or are exchanged for
consideration that does not involve Common Stock will again immediately become available for
Awards. The number of shares reserved for issuance under the Plan shall be reduced only to the
extent that shares of Common Stock are actually issued in connection with the exercise or
settlement of an Award; provided, however, that the number of shares reserved for issuance shall be
reduced by the total number of Options or SARs exercised. The number of shares reserved for
issuance under the Plan shall not be increased by (i) any shares tendered or Award surrendered in
connection with the purchase of shares upon the exercise of an Option as described in Paragraph 10
or (ii) any shares deducted from an Award payment in connection with the Company’s tax withholding
obligations as described in Paragraph 11. Shares of Common Stock delivered under the Plan in
settlement of an Award issued or made (a) upon the assumption, substitution, conversion or
replacement of outstanding awards under a plan or arrangement of an acquired entity or (b) as a
post-transaction grant under such a plan or arrangement of an acquired entity shall not reduce or
be counted against the maximum number of shares of Common Stock available for delivery under the
Plan, to the extent that the exemption for transactions in connection with mergers and acquisitions
from the stockholder approval requirements of the applicable securities exchange for equity
compensation plans applies. The Committee may from time to time adopt and observe such rules and
procedures concerning the counting of shares of Common Stock against the Plan maximum as it may
deem appropriate, including rules more restrictive than those set forth above to the extent
necessary to satisfy the requirements of any national securities exchange on which the Common Stock
is listed or any applicable regulatory requirement. The Board and the appropriate officers of the
Company are authorized to take from time to time whatever actions are necessary, and to file any
required documents with governmental authorities, stock exchanges and transaction reporting systems
to ensure that shares of Common Stock are available for issuance pursuant to the Plan.



     6. Administration.



          (a) The Committee will administer the Plan. Subject to the provisions hereof, the Committee
will have full and exclusive power and authority to administer the Plan and to take all actions
that the Plan specifically contemplates or that are necessary or appropriate in connection with the
administration hereof. The Committee also will have full and exclusive power to interpret the Plan
and to adopt such rules, regulations and guidelines for carrying out the Plan as the Committee may
deem necessary or proper, all of which powers will be exercised in the best interests of the
Company and in keeping with the objectives of the Plan. The Committee may, in its discretion,
provide for the extension of the exercisability of any Award,




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accelerate the vesting or exercisability of any Award, eliminate or make less restrictive any
restrictions any Award contains, waive any restriction or other provision of the Plan or any Award
or otherwise amend or modify any Award in any manner that is either (i) not adverse to the
Participant to whom that Award was granted or (ii) consented to in writing by that Participant.
The Committee may correct any defect or supply any omission or reconcile any inconsistency in the
Plan or in any Award Agreement in the manner and to the extent the Committee deems necessary or
desirable to further the purposes of the Plan. Any decision of the Committee in the interpretation
and administration of the Plan will lie within its sole and absolute discretion and will be final,
conclusive and binding on all parties concerned.




          (b) No Committee member or Company officer to whom the Committee delegates authority (pursuant
to Paragraph 7) will be liable for any action that person takes or omits to take in connection with
the performance of any duties under the Plan, except for his or her own willful misconduct or as
any applicable statute expressly provides.




          (c) No Option or SAR may be repriced, replaced, regranted through cancellation or modified
without stockholder approval (except in connection with a change in the Company’s capitalization),
if the effect would be to reduce the exercise price for the shares underlying such Award.




     7. Delegation of Authority. The Committee may delegate to the CEO and to other senior
officers of the Company its duties under the Plan on such terms and subject to such conditions or
limitations as the Committee may establish.



     8. Awards.



          (a) Employee Awards. The Committee will determine the type or types of Employee Awards to be
made and will designate from time to time the Employees who are to receive Employee Awards. An
Employee Award Agreement will (i) evidence each Employee Award, (ii) contain such terms, conditions
and limitations as the Committee determines in its sole discretion, and (iii) be signed by the
Participant to whom that Employee Award is made and an Authorized Officer. Employee Awards may
consist of those this Paragraph 8(a) lists and may be granted singly or in combination or in tandem
with other Employee Awards. Employee Awards also may be made in combination or in tandem with, in
replacement of or as alternatives to grants or rights under the Plan or any other plan of the
Company or any of its Subsidiaries, including the plan of any acquired entity; provided that,
except as contemplated in Paragraph 14 hereof, no Option or SAR may be issued in exchange for the
cancellation of an Option or SAR with a higher exercise price nor may the exercise price of any
Option or SAR be reduced. An Employee Award may provide for the grant or issuance of additional,
replacement or alternative Employee Awards on the occurrence of specified events, including the
exercise of the original Employee Award granted to a Participant. All or part of an Employee Award
may be subject to such conditions as the Committee may establish, which may include, but are not
limited to, continuous service with the Company and its Subsidiaries, achievement of specific
business objectives, increases or maintenance of levels in specified indices, attainment or
maintenance of specified growth rates and other comparable measurements of performance. If a
Participant holding an Employee Award ceases to be an Employee, any unexercised, deferred,




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unexercisable, unvested or unpaid portion of that Employee Award will be treated as the
applicable Employee Award Agreement sets forth.




     The types of Employee Awards that may be made under the Plan are as follows:




     (i) Option. An Employee Award may be in the form of an Incentive Option or a
Nonqualified Option. The Committee may designate an Option as an “incentive stock
option” for purposes of Code Section 422, and any Stock Option that is not so
designated shall be a Nonqualified Option. The price at which any share of Common
Stock may be purchased on the exercise of any Option will be not less than the Fair
Market Value of a share of the Common Stock on the date of grant of that Option. No
Option may be exercised after the expiration of 10 years from the date such Option
is granted. No Option may include provisions that “reload” the Option upon exercise
(i.e. automatically grant additional options upon the exercise of the original
grant). Subject to the foregoing limitations, the Committee will determine the
other terms, conditions and limitations applicable to each Option, including its
term and the date or dates on which it becomes exercisable.




     (ii) SAR. An Employee Award may be in the form of an SAR. The strike price
for an SAR shall not be less than the Fair Market Value of the Common Stock on the
date on which the SAR is granted. The term of an SAR shall not exceed 10 years from
the date of grant. Subject to the foregoing limitations, the terms, conditions and
limitations applicable to any SAR awarded pursuant to the Plan, including its term
and the date or dates on which it becomes exercisable, shall be determined by the
Committee.




     (iii) Stock Award. An Employee Award may be in the form of a Stock Award. The
terms, conditions and limitations of the Stock Award shall be determined by the
Committee, subject to the following limitations. Any such Stock Award which is not
a Performance Award shall have a minimum Restriction Period of three years from the
date of grant, provided that (i) the Committee may provide for earlier vesting (A)
following a change of control or other specified event involving the Company or (B)
upon termination of the applicable Employee’s employment by reason of death,
disability or retirement, or, if provided in a written employment or severance
agreement between the Company and such Employee (whether such agreement is in effect
as of the effective date of this Plan or entered into thereafter), upon termination
of such Employee’s employment by the Company without cause or termination of such
Employee’s employment by such Employee for good reason or good cause, (ii) such
three-year minimum Restricted Period shall not apply to a Stock Award that is
granted in lieu of salary or bonus, and (iii) vesting of a Stock Award may occur
incrementally over the three-year minimum Restricted Period.




     (iv) Cash Award. An Employee Award may be in the form of a Cash Award, the
terms, conditions and limitations applicable to which the Committee will determine.



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     (v) Performance Awards. Without limiting the type or number of Awards that may
be made under the other provisions of the Plan, an Award may be in the form of a
Performance Award. The terms, conditions and limitations applicable to any
Performance Awards granted to Participants pursuant to the Plan shall be determined
by the Committee, subject to the limitations specified below. Any Stock Award which
is a Performance Award shall have a minimum Restriction Period of one year from the
date of grant, provided that the Committee may provide for earlier vesting following
a change in control or other specified events involving the Company, or upon a
termination of employment by reason of death, disability or retirement. The
Committee shall set Performance Goals in its discretion which, depending on the
extent to which they are met, will determine the value and/or amount of Performance
Awards that will be paid out to the Participant and/or the portion of an Award that
may be exercised.




          (a) Nonqualified Performance Awards. Performance Awards granted to
Employees or Nonemployee Directors that are not intended to qualify as qualified
performance-based compensation under Code Section 162(m) shall be based on
achievement of such Performance Goals and be subject to such terms, conditions and
restrictions as the Committee or its delegate shall determine.




          (b) Qualified Performance Awards. Performance Awards granted to
Employees under the Plan that are intended to qualify as qualified performance-based
compensation under Code Section 162(m) shall be paid, vested or otherwise
deliverable solely on account of the attainment of one or more pre-established,
objective Performance Goals established by the Committee in accordance with Code
Section 162(m) prior to the earlier to occur of (x) 90 days after the commencement
of the period of service to which the Performance Goal relates and (y) the lapse of
25% of the period of service (as scheduled in good faith at the time the goal is
established), and in any event while the outcome is substantially uncertain. A
Performance Goal is objective if a third party having knowledge of the relevant
facts could determine whether the goal is met. Such a Performance Goal may be based
on one or more business criteria that apply to the Employee, one or more business
units, divisions or sectors of the Company, or the Company as a whole, and if so
desired by the Committee, by comparison with a peer group of companies. A
Performance Goal may apply to the individual, one or more lines or classes of
products or services of the Company, one or more business divisions, groups or units
of the Company, or the Company as a whole, and may include, among other criteria,
one or more of the following: increased revenue, net income, stock price, market
share, earnings per share, return on equity, return on assets or decrease in costs.
Unless otherwise stated, such a Performance Goal need not be based upon an increase
or positive result under a particular business criterion and could include, for
example, maintaining the status quo or limiting economic losses (measured, in each
case, by reference to specific business criteria). In interpreting Plan provisions
applicable to qualified Performance Awards, it is the intent of the Plan to conform
with the standards of Code Section 162(m) and Treasury Regulation
§1.162-27(e)(2)(i), as to grants to those Participants whose compensation is, or is
likely to be, subject to Code



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Section 162(m), and the Committee in establishing such goals and interpreting the
Plan shall be guided by such provisions. Prior to the payment of any compensation
based on the achievement of Performance Goals for qualified Performance Awards, the
Committee must certify in writing that applicable Performance Goals and any of the
material terms thereof were, in fact, satisfied. Subject to the foregoing
provisions, the Committee will determine the terms, conditions and limitations
applicable to Performance Awards.



          (b) The following limitations will apply to each Employee Award:





     (i) no Participant may be granted, during any one-year period, Employee Awards
consisting of Options or SARs that are exercisable for more than 150,000 shares of
Common Stock;




     (ii) no Participant may be granted, during any one-year period, Stock Awards
that are intended to be Qualified Performance Awards covering or relating to more
than 150,000 shares of Common Stock (this limitation and the limitation clause in
(x) above being the “Stock-based Awards Limitations”); and




     (iii) no Participant may be granted Employee Awards that are intended to be
Qualified Performance Awards consisting of cash or that are in any other form the
Plan permits (other than Employee Awards consisting of Options or SARs, or otherwise
consisting of Common Stock or units denominated in Common Stock) in respect of any
one-year period having a value determined on the date of grant in excess of
$2,000,000.00.



          (c) Director Awards. The Committee may grant a Nonemployee Director one or more Awards and
establish the terms thereof consistent with the foregoing provisions of this Paragraph 8 for
granting awards to Employees and subject to the applicable terms, conditions and limitations set
forth in the Plan and the applicable Award Agreement.




     9. Payment of Awards.




     (a) General. Payment of Awards may be made in the form of cash or Common Stock, or a
combination thereof, and may include such restrictions as the Committee may determine,
including, in the case of Common Stock, restrictions on transfer and forfeiture provisions.
If payment of an Award is made in the form of shares of Restricted Stock, the applicable
Award Agreement relating to those shares will specify whether they are to be issued at the
beginning or end of the applicable Restriction Period. If shares of Restricted Stock are to
be issued at the beginning of their Restriction Period, the certificates evidencing those
shares (to the extent that those shares are so evidenced) will contain appropriate legends
and restrictions that describe the terms and conditions of the restrictions applicable
thereto. If shares of Restricted Stock are to be issued at the end of the applicable
Restricted Period, the right to receive those shares will be evidenced by book-entry
registration or in such other manner as the Committee may determine.




     (b) Deferral. With the approval of the Committee, amounts payable in respect of Awards
may be deferred and paid either in the form of installments or as a lump-sum



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payment. The Committee may permit selected Participants to elect to defer payments of
some or all types of Awards in accordance with procedures the Committee establishes. Any
deferred payment of an Award, whether elected by the Participant or specified by the
applicable Award Agreement or by the Committee, may be forfeited if and to the extent that
the applicable Award Agreement so provides.




     (c) Dividends and Interest. Rights to dividends or Dividend Equivalents may be
extended to and made part of any Award consisting of shares of Common Stock or units
denominated in shares of Common Stock, subject to such terms, conditions and restrictions as
the Committee may establish. The Committee also may establish rules and procedures for the
crediting of interest on deferred cash payments and Dividend Equivalents for Awards
consisting of Common Stock or units denominated in Common Stock.



     10. Option Exercise. The price at which shares of Common Stock may be purchased under an
Option will be paid in full at the time of exercise in cash or, if the Participant so elects, the
Participant may purchase those shares by such means as approved by the Committee which may include
tendering shares of Common Stock or surrendering another Award, including shares of Restricted
Stock, valued at their Fair Market Value per share on the date of exercise, or any combination
thereof. The Committee will determine acceptable methods for Participants to tender Common Stock
or other Awards to exercise an Option. The Committee may provide for procedures to permit the
exercise or purchase of any Award by use of the proceeds to be received from the sale of Common
Stock issuable pursuant to such an Award. Unless the applicable Award Agreement otherwise
provides, if shares of Restricted Stock are tendered as consideration for the exercise of an
Option, the number of the shares issued on the exercise of the Option which equals the number of
shares of Restricted Stock used as consideration therefor will be subject to the same restrictions
as the Restricted Stock so submitted as well as to any additional restrictions the Committee may
impose.



     11. Taxes. The Company will have the right to deduct applicable taxes from any Employee Award
payment and withhold, at the time of delivery or vesting of cash or shares of Common Stock under
the Plan, or at the time applicable law otherwise requires, an appropriate amount of cash or number
of shares of Common Stock or a combination thereof for payment of taxes required by law or to take
such other action as may be necessary in the opinion of the Company to satisfy all obligations for
withholding of those taxes. The Committee may permit withholding to be satisfied by the transfer
to the Company of shares of Common Stock theretofore owned by the holder of the Employee Award with
respect to which withholding is required. If shares of Common Stock are used to satisfy tax
withholding, those shares will be valued at their Fair Market Value per share when the tax
withholding is required to be made.



     12. Amendment, Modification, Suspension or Termination. The Board may amend, modify, suspend
or terminate the Plan for the purpose of meeting or addressing any changes in legal requirements or
for any other purpose applicable law permits, except that (a) no amendment or alteration that would
adversely affect the rights of any Participant under any Award previously granted to that
Participant will be made without the written consent of that Participant and (b) no amendment or
alteration that would constitute a material revision to the Plan requiring stockholder approval
under applicable legal requirements or the applicable



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requirements of the NASDAQ Stock Market or such other securities exchange on which the Common
Stock is listed will be made without stockholder approval. The Plan shall terminate on April 10,
2018 unless sooner terminated by the Board pursuant to the preceding sentence. Termination of the
Plan shall not affect any of the rights of any Participant under any Award outstanding on the
termination date of the Plan, and such rights shall continue to be subject to the terms of the
applicable Award Agreement and the Plan, notwithstanding the termination of the Plan. Subject to
Section 14 below, no amendment, alteration or modification to an Option or SAR that has the effect
of a repricing thereof or the cancellation and regrant of same which has the effect of reducing the
exercise or strike price is allowable. Further, the Committee may not establish or maintain any
program under which outstanding Options or SARs are surrendered or canceled in exchange for Options
or SARs with a lower exercise price or greater economic value. After it is granted, no Option or
SAR may be amended to decrease the purchase price, no Option or SAR may be granted in substitution
for an outstanding Option or SAR with a purchase price lower than the purchase price of an
outstanding Option or SAR, and no Option or SAR may be otherwise repriced at a lower purchase price
directly or indirectly.




     13. Assignability. Unless the Committee otherwise determines and provides in the applicable
Award Agreement, no Award or any other benefit under the Plan will be assignable or otherwise
transferable except by will or the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined by the Code or Title I of the Employee Retirement Income
Security Act of 1974, as amended, or the rules thereunder. The Committee may prescribe and include
in any Award Agreement other restrictions on transfer. Any attempted assignment of an Award or any
other benefit under the Plan in violation of this Paragraph 13 will be null and void.



     14. Adjustments.



          (a) The existence of outstanding Awards will not affect in any manner the right or power of
the Company or its stockholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the capital stock of the Company or its business or any merger
or consolidation of the Company, or any issue of bonds, debentures, preferred or other stock
(whether or not that issue is prior to, on a parity with or junior to the Common Stock) or the
dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets
or business, or any other corporate act or proceeding of any kind, whether or not of a character
similar to that of the acts or proceedings enumerated above.




          (b) In the event of any subdivision or consolidation of outstanding shares of Common Stock,
declaration of a dividend payable in shares of Common Stock or other stock split, then (i) the
number of shares of Common Stock reserved under the Plan, (ii) the number of shares of Common Stock
covered by outstanding Awards in the form of Common Stock or units denominated in Common Stock,
(iii) the exercise or other price in respect of such Awards, (iv) the Stock-based Award Limitations
described in Paragraph 8(b) hereof, and (v) the appropriate Fair Market Value and other price
determinations for such Awards shall each be proportionately adjusted by the Board to reflect such
transaction. In the event of any other recapitalization or capital reorganization of the Company,
any consolidation or merger of the Company with another corporation or entity, the adoption by the
Company of any plan of exchange affecting the Common Stock or any distribution to holders of Common
Stock of securities or property (other




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than normal cash dividends or dividends payable in Common Stock), the Board shall make
appropriate adjustments to (i) the number of shares of Common Stock reserved under the Plan, (ii)
the number of shares of Common Stock covered by Awards in the form of Common Stock or units
denominated in Common Stock, (iii) the exercise or other price in respect of such Awards, (iv) the
appropriate Fair Market Value and other price determinations for such Awards, and (v) the
Stock-based Award Limitations described in Paragraph 8(b) hereof, to give effect to such
transaction; provided that such adjustments shall only be such as are necessary to maintain the
proportionate interest of the holders of the Awards and preserve, without exceeding, the value of
such Awards.




          (c) In the event of a corporate merger, consolidation, acquisition of property or stock,
separation, reorganization or liquidation, the Board may make such adjustments to Awards or other
provisions for the disposition of Awards as it deems equitable, and shall be authorized, in its
discretion, (i) to provide for the substitution of a new Award or other arrangement (which, if
applicable, may be exercisable for such property or stock as the Board determines) for an Award or
the assumption of the Award, regardless of whether in a transaction to which Code Section 424(a)
applies, (ii) to provide, prior to the transaction, for the acceleration of the vesting and
exercisability of, or lapse of restrictions with respect to, the Award and, if the transaction is a
cash merger, provide for the termination of any portion of the Award that remains unexercised at
the time of such transaction or (iii) to cancel any such Awards and to deliver to the Participants
cash in an amount that the Board shall determine in its sole discretion is equal to the fair market
value of such Awards on the date of such event, which in the case of Options or SARS shall be the
excess of the Fair Market Value of Common Stock on such date over the grant price of such Award
(for the avoidance of doubt, if the exercise price is less than Fair Market Value, the Option or
SAR may be canceled for no consideration).




     15. Restrictions. No Common Stock or other form of payment will be issued with respect to any
Award unless the Company is satisfied, on the basis of advice of its counsel, that the issuance
will comply with applicable federal and state securities laws, including the Securities Act of
1933, as amended. Certificates evidencing shares of Common Stock delivered under the Plan (to the
extent that the shares are so evidenced) may be subject to such stop-transfer orders and other
restrictions as the Committee may deem advisable under the rules, regulations and other
requirements of the Securities and Exchange Commission, any securities exchange or transaction
reporting system on which the Common Stock is then listed or to which it is admitted for quotation
and any applicable federal or state securities law. The Committee may cause a legend or legends to
be placed upon those certificates (if any) to make appropriate reference to those restrictions.



     16. Unfunded Plan. Insofar as the Plan provides for Awards of cash, Common Stock or rights
thereto, it will be unfunded. Although the Company may establish bookkeeping accounts with respect
to Participants who are entitled to cash, Common Stock or rights thereto under the Plan, it will
use any such accounts merely as a bookkeeping convenience. The Company will not be required to
segregate any assets that may at any time be represented by cash, Common Stock or rights thereto,
nor will the Plan be construed as providing for that segregation, nor shall the Company, the Board
or the Committee be deemed to be a trustee of any cash, Common Stock or rights thereto to be
granted under the Plan. Any liability or obligation of the Company to any Participant with respect
to an Award of cash, Common Stock



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or rights thereto under the Plan will be based solely on any contractual obligations that the
Plan and any Award Agreement create, and no such liability or obligation of the Company will be
deemed to be secured by any pledge or other encumbrance on any property of the Company. Neither
the Company nor the Board nor the Committee will be required to give any security or bond for the
performance of any obligation that the Plan creates.




     17. Code Section 409A. Notwithstanding anything in the Plan to the contrary, if any Plan
provision or Award under the Plan would result in the imposition of an applicable tax under Code
Section 409A and related regulations and Treasury pronouncements, that Plan provision or Award will
be reformed to avoid imposition of the applicable tax and no such action shall be deemed to
adversely affect the Participant’s rights to an Award.



     18. Governing Law. The Plan and all determinations made and actions taken pursuant hereto, to
the extent not otherwise governed by mandatory provisions of the Code or the securities laws of the
United States, will be governed by and construed in accordance with the laws of the State of
Delaware.




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