exhibit101.htm


    
      
        Exhibit
10.1

      


      


      


      


      


      


      


      


      


      


      


      


      


      


      


      


      


      MASSEY
ENERGY COMPANY

       

      2006
STOCK AND INCENTIVE COMPENSATION PLAN

       

      (As
Amended and Restated Effective January 1, 2009)

       

      As
amended with repricing clarification amendments adopted on March 25,
2009

      (Article
XIII and Section 14.1)

      



      
        
          
            1821571.1

          

           


        

        
           


          
            

          

        

        
           


        

      


      ARTICLE
I

      Establishment,
Purpose and Duration

      


      1.1           Establishment of the
Plan.  Massey Energy Company (hereinafter referred to as the
“Company”), a Delaware corporation, hereby establishes a stock and incentive
compensation plan to be known as the “2006 Stock and Incentive Compensation
Plan” (hereinafter referred to as the “Plan”), as set forth in this document.
Unless otherwise defined herein, all capitalized terms shall have the meanings
set forth in Section 2.1 herein. The Plan permits, subject to the limitations
herein, the grant of Incentive Stock Options, Non-Qualified Stock Options, Stock
Appreciation Rights, Restricted Stock, Restricted Units, Unrestricted Stock,
and/or Incentive Awards to Members and Non-Employee Service Providers and
Non-Qualified Stock Options, Restricted Stock and Restricted Units to
Non-Employee Directors.

      


      The Plan was adopted by the Board of
Directors of the Company on February 21, 2006, to become effective (the
“Effective Date”) as of May 16, 2006 once approved by the Company’s
shareholders at the May 16, 2006 annual meeting in accordance with
applicable laws and applicable rules of the New York Stock Exchange. Awards may
not be granted under the Plan prior to shareholder approval of the Plan. The
Plan actually became effective once the results of the shareholder meeting were
finally certified by the independent inspectors of election on June 28, 2006 and
was subsequently amended effective August 15, 2006 to place further limitation
on awards that did not require shareholder approval.

      


      The Plan
was further amended effective November 14, 2006 in order (1) to revise
the definition of “Fair Market Value” as used in connection with valuing Stock
under the Plan for awards made on or after November 14, 2006 and
(2) to provide for mandatory equitable adjustments in awards outstanding
under the Plan as a result of a reorganization, merger, consolidation,
recapitalization, restructuring, reclassification, dividend (other than a
regular, quarterly cash dividend) or other distribution, stock split, reverse
stock split, spin-off or the like, or if substantially all of the property and
assets of the Company are sold.

      


      The plan was further amended effective
January 1, 2009 to add provisions to comply with Section 409A of the
Code.

      


      1.2           Purpose of the
Plan.  The purpose of the Plan is to promote the success of the
Company and its Subsidiaries by providing incentives to Members, Non-Employee
Service Providers and/or Non-Employee Directors that will promote the
identification of their personal interest with the long term financial success
of the Company and with growth in shareholder value. The Plan is designed to
provide flexibility to the Company in its ability to motivate, attract, and
retain the services of Members, Non-Employee Service Providers and/or
Non-Employee Directors upon whose judgment, interest, and special effort the
successful conduct of its operation is largely dependent.

      


      1.3           Duration of the
Plan.  The Plan shall commence on the Effective Date, as
described in Section 1.1 herein, and shall remain in effect, subject to the
right of the Board of Directors to terminate the Plan at any time pursuant to
Article XIV herein, until May 15, 2016, at


      
        
           


        

        
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      which
time the Plan shall terminate except with respect to Awards made prior to and
outstanding on that date which shall remain valid in accordance with their
terms.

      


      ARTICLE
II

      Definitions

      


      2.1           Definitions.  Except
as otherwise defined in the Plan, the following terms shall have the meanings
set forth below:

      


      (a)           “Agreement”
means a written agreement implementing the grant of each Award signed by an
authorized officer of the Company or member of the Committee and by the
Participant.

      


      (b)           “Award”
or “Grant” means, individually or collectively, a grant under the Plan of
Incentive Stock Options, Non-Qualified Stock Options, Stock Appreciation Rights,
Restricted Stock, Restricted Units, Unrestricted Stock and/or Incentive
Awards.

      


      (c)           “Award
Date” or “Grant Date” means the date on which an Award is made by the Committee
under the Plan.

      


      (d)           “Board”
or “Board of Directors” means the Board of Directors of the
Company.

      


      (e)           “Change
in Control” means, the occurrence of either of the following events (i) a third
person, including a “group” as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended, acquires (or has acquired during the twelve
(12)-month period ending on the date of the most recent acquisition by such
person) shares of the Company having thirty (30) percent or more of the total
number of votes that may be cast for the election of directors of the Company;
or (ii) as the result of any cash tender or exchange offer, merger or other
business combination, or any combination of the foregoing transactions (a
“Transaction”), the persons who were directors of the Company before the
Transaction shall cease to constitute a majority of the Board of the Company or
any successor to the Company and be replaced by persons whose appointment or
election is not endorsed by the majority of directors before the
Transaction.

      


      To the extent that a Participant must consent to the
change of this definition, the change will not be effective unless such consent
is obtained.  To the extent that a Participant’s consent has not been
obtained, the definition in effect immediately prior to this amendment shall be
controlling with regard to such Participant.

      


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

      


      (g)           “Committee”
means the committee or committees of the Board appointed to administer the Plan
pursuant to Article III herein. With respect to Awards granted pursuant to the
Plan to Members and Non-Employee Service Providers, all of the members of the
Committee shall be “non-employee directors” as defined in Rule 16b-3, as
amended, under the Exchange Act, or any similar or successor rule, and “outside
directors” within the meaning of Section


      
        
           


        

        
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      162(m)(4)(C)(i)
of the Code. Unless otherwise determined by the Board, the Compensation
Committee of the Board, or any successor committee responsible for executive
compensation, shall constitute the Committee with respect to Awards to Members,
Non-Employee Service Providers, and Non-Employee Directors.

      


      (h)           “Company”
means Massey Energy Company, a Delaware corporation, or any successor thereto as
provided in Article XVI herein.

      


      (i)           “Exchange
Act” means the Securities Exchange Act of 1934, as amended from time to
time.

      


      (j)           “Fair
Market Value” of a Share for purposes of this Plan means as of any
date,  the closing market price (that is, the price at which Shares
were last sold in the regular way on the New York Stock Exchange) of the Stock
on the relevant date if it is a trading date or, if no Shares so traded on the
New York Stock Exchange on the date in question, then for the next preceding
date for which Shares so traded on the New York Stock Exchange or if, in the
opinion of the Committee, this method is inapplicable or inappropriate for any
reason, the fair market value as determined pursuant to a reasonable method
adopted by the Committee in good faith for such purpose.

      


      (k)           “Incentive
Award” means an Award, designated as an Incentive Award, which is a bonus
opportunity awarded under Article XI herein pursuant to which a Participant may
become entitled to receive an amount (which may be payable in cash, Shares or
other property) based on satisfaction of such performance criteria as are
specified in the Agreement evidencing the Award.

      


      (l)           “Incentive
Stock Option” or “ISO” means an option to purchase Stock, granted under Article
VI herein, which is designated as an incentive stock option and meets the
requirements of Section 422 of the Code.

      


      (m)           “Member”
means a current or prospective member employed as a common law employee of the
Company or any Subsidiary (including any corporation, partnership, limited
liability company or joint venture which becomes a Subsidiary after the adoption
of the Plan by the Board).

      


      (n)           “Non-Employee
Director” means a director of the Company or any Subsidiary who is not a common
law employee of the Company or any Subsidiary (including any corporation,
partnership, limited liability company or joint venture which becomes a
Subsidiary after the adoption of the Plan by the Board).

      


      (o)           “Non-Employee
Service Provider” means a consultant, advisor or other independent contractor
providing services to the Company or any Subsidiary (including any corporation,
partnership, limited liability company or joint venture which becomes a
Subsidiary after the adoption of the Plan by the Board).


      
        
           


        

        
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      (p)           “Non-Qualified
Stock Option” or “NQSO” means an option to purchase Stock, granted under Article
VI herein, which is not an Incentive Stock Option.

      


      (q)           “Option”
means an Incentive Stock Option or a Non-Qualified Stock Option.

      


      (r)           “Option
Price” means the exercise price per share of Stock covered by an
Option.

      


      (s)           “Participant”
means a Member, a Non-Employee Service Provider or a Non-Employee Director who
has been granted an Award or Grant under the Plan and whose Award or Grant
remains outstanding.

      


      (t)           “Performance-Based
Compensation Award” means any Award for which exercise, full enjoyment or
receipt thereof by the Participant is contingent on satisfaction or achievement
of a Performance Goal applicable thereto. If a Performance-Based Compensation
Award is intended to be “performance-based compensation” within the meaning of
Section 162(m)(4)(C) of the Code, the grant of the Award, the establishment of
the Performance Goal, the making of any modifications or adjustments and the
determination of satisfaction or achievement of the Performance Goal shall be
made during the period or periods required under and in conformity with the
requirements of Section 162(m) of the Code. The terms and conditions of each
Performance-Based Compensation Award, including the Performance Goal and
Performance Period, shall be set forth in an Agreement or in a subplan of the
Plan which is incorporated by reference into an Agreement.

      


      (u)           “Performance
Goal” means one or more performance measures or goals set by the Committee in
its discretion for each grant of a Performance-Based Compensation Award. The
extent to which such performance measures or goals are met will determine the
amount or value of the Performance-Based Compensation Award to which a
Participant is entitled to exercise, receive or retain. For purposes of this
Plan, a Performance Goal may include any one or more of the following
performance criteria, either individually, alternatively or in any combination,
applied to either the Company as a whole or to a business unit, subsidiary or
business segment, either individually, alternatively or in any combination, and
measured either annually or cumulatively over a period of years, on an absolute
basis or relative to a pre-established target, to previous years’ results or to
a designated comparison group, in each case as specified by the Committee in the
Award: (i) cash flow, (ii) earnings (including gross margin, earnings before
interest, taxes, depreciation and amortization (“EBITDA”), earnings before
interest and taxes (“EBIT”), earnings before taxes (“EBT”), and net earnings),
(iii) earnings per share (basic or diluted), (iv) growth in earnings or earnings
per share, (v) stock price, (vi) return on equity or average stockholders’
equity, (vii) total stockholder return, (viii) return on capital, (ix) return on
assets or net assets, (x) return on investment, (xi) revenue, (xii) produced
tons, (xiii) delivered tons, (xiv) reserve acquisitions, (xv) income or net
income, (xvi) operating income or net operating income, (xvii) operating profit
or net operating profit, (xviii) operating margin, (xix) return on operating
revenue, (xx) market share, (xxi) contract awards or backlog, (xxii) overhead or
other expense reduction, (xxiii) growth in stockholder value relative to the
one- or two-year moving average of the S&P 600 Smallcap Index, Bloomberg
U.S. Coal Index, or other index of which the Company is a part, (xxiv) credit
rating, (xxv) strategic plan development and


      
        
           


        

        
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      implementation,
(xxvi) succession plan development and implementation, (xxvii)retention of
executive talent, (xxviii) improvement in workforce diversity, (xxix)
improvement in safety records, (xxx) capital resource management plan
development and implementation, (xxxi) improved internal financial controls plan
development and implementation, (xxxii) corporate tax savings, (xxxiii)
corporate cost of capital reduction, (xxxiv) investor relations program
development and implementation, (xxxv) corporate relations program development
and implementation, (xxxvi) public policy accomplishments, (xxxvii) executive
performance plan development and implementation, and (xxxviii) tax provision
rate for financial statement purposes.

      


      The
Committee, in its sole discretion, may adjust any evaluation of performance
under a Performance Goal to take into account any of the following events that
occurs during a performance period:  (i) asset write-downs, (ii)
litigation or claim judgments or settlements, (iii) the effect of changes in tax
law, accounting principles or other such laws or provisions affecting reported
results, (iv) accruals for reorganization and restructuring programs, and (v)
any extraordinary non-recurring items as described in Accounting Principles
Board Opinion No. 30 (or in any replacement thereof) and/or in management’s
discussion and analysis of financial condition and results of operations
appearing in the Company’s annual report to stockholders for the applicable
year. A Performance Goal may include a threshold level of performance below
which no payment or vesting may occur, levels of performance at which specified
payments or specified vesting will occur, and a maximum level of performance
above which no additional payment or vesting will occur. Each of the Performance
Goals shall be determined, where applicable and except as provided above, in
accordance with generally accepted accounting principles. Prior to the payment
of any compensation under an Award intended to qualify as “performance-based
compensation” under Section 162(m) of the Code, the Committee shall certify the
extent to which any Performance Goal and any other material terms under such
Award have been satisfied (other than in cases where such relate solely to the
increase in the value of Stock).

      


      (v)           “Performance
Period” means the time period during which the Performance Goal must be met in
connection with a Performance-Based Compensation Award. Such time period shall
be set by the Committee.

      


      (w)           “Period
of Restriction” means the period during which Restricted Stock or Restricted
Units are restricted as provided in the Plan.

      


      (x)           “Plan”
means the Massey Energy Company 2006 Stock and Incentive Compensation Plan, as
herein described and as hereafter from time to time amended.

      


      (y)           “Restricted
Stock” means an Award of Stock granted to a Participant pursuant to Section 6.7
or 7.6 or Article VIII herein which is subject to restrictions and forfeiture
until the designated conditions for the lapse of the restrictions are
satisfied.

      


      (z)           “Restricted
Unit” means an Award, designated as a Restricted Unit, which is a bookkeeping
entry granted to a Participant pursuant to Article IX herein and valued by
reference


      
        
           


        

        
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      to the
Fair Market Value of a Share, which is subject to restrictions and forfeiture
until the designated conditions for the lapse of the restrictions are satisfied.
A Restricted Unit is sometimes referred to as a “Restricted Unit” or a
“restricted stock unit.” Restricted Units represent an unfunded and unsecured
obligation of the Company, except as otherwise provided for by the
Committee.

      


      (aa)           “Stock”
or “Shares” means the common stock of the Company.

      


      (bb)           “Stock
Appreciation Right” or “SAR” means an Award, designated as a stock appreciation
right, granted to a Participant pursuant to Article VII herein.

      


      (cc)           “Subsidiary”
means any subsidiary corporation of the Company within the meaning of Section
424(f) of the Code (“Section 424(f) Corporation”) and any partnership, limited
liability company or joint venture in which either the Company or Section 424(f)
Corporation is at least a fifty percent (50%) equity participant.

      


      (dd)           “Unrestricted
Stock Award” means an award of Stock granted to a Participant pursuant to
Article X herein.

      


      ARTICLE
III

      Administration

      


      3.1           Administration of the Plan by the
Committee. The Plan shall be administered by the Committee which shall
have all powers necessary or desirable for such administration. The express
grant in the Plan of any specific power to the Committee shall not be construed
as limiting any power or authority of the Committee. In addition to any other
powers and, subject to the provisions of the Plan, the Committee shall have the
following specific powers: (i) to determine the terms and conditions upon
which the Awards may be made and exercised; (ii) to determine all terms and
conditions of each Agreement, which need not be identical; (iii) to
construe and interpret the Agreements and the Plan; (iv) to establish,
amend or waive rules or regulations for the Plan’s administration; (v) to
accelerate the exercisability of any Award, the end of a Performance Period or
termination of any Period of Restriction or other restrictions imposed under the
Plan; and (vi) to make all other determinations and take all other actions
necessary or advisable for the administration of the Plan.

      


      For purposes of determining the
applicability of Section 422 of the Code (relating to Incentive Stock Options),
or in the event that the terms of any Award provide that it may be exercised
only during employment or service or within a specified period of time after
termination of employment or service, the Committee may decide to what extent
leaves of absence for governmental or military service, illness, temporary
disability, or other reasons shall not be deemed interruptions of employment or
service or continuous employment or service.

      


      Subject to limitations under applicable
law, the Committee is authorized in its discretion to issue Awards and/or accept
notices, elections, consents and/or other forms or communications by
Participants by electronic or similar means, including, without limitation,
transmissions through


      
        
           


        

        
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      e-mail,
voice mail, recorded messages on electronic telephone systems, and other
permissible methods, on such basis and for such purposes as it determines from
time to time.

      


      A majority of the entire Committee
shall constitute a quorum and the action of a majority of the members present at
any meeting, 24 hours notice having been given or waived, at which a quorum is
present (in person or as otherwise permitted by applicable law), or acts
approved in writing by all of the Committee without a meeting, shall be deemed
the action of the Committee.

      


      The Committee may designate the
Secretary of the Company or other Company employees to assist the Committee in
the administration of the Plan, and may grant authority to such persons to
execute agreements evidencing Awards made under this Plan or other documents
entered into under the Plan on behalf of the Committee or the
Company.

      


      3.2           Selection of Participants.
The Committee shall have the authority to grant Awards under the Plan,
from time to time, to such Members, Non-Employee Service Providers and/or
Non-Employee Directors as may be selected by it. Each Award shall be evidenced
by an Agreement.

      


      3.3           Decisions
Binding.  All determinations and decisions made by the
Committee pursuant to the provisions of the Plan shall be final, conclusive and
binding.

      


      3.4           Requirements of Rule 16b-3 of the
Exchange Act and Section 162(m) of the Code.  Notwithstanding
any other provision of the Plan, the Board or the Committee may impose such
conditions on any Award, and amend the Plan in any such respects, as may be
required to satisfy the requirements of Rule 16b-3 of the Exchange Act, as
amended (or any successor or similar rule).

      


      Any provision of the Plan to the
contrary notwithstanding, and except to the extent that the Committee determines
otherwise: (i) transactions by and with respect to officers and directors
of the Company who are subject to Section 16(b) of the Exchange Act (hereafter,
“Section 16 Persons”) shall comply with any applicable conditions of Rule 16b-3
of the Exchange Act; (ii) transactions with respect to persons whose
remuneration is subject to the provisions of Section 162(m) of the Code shall
conform to the requirements of Section 162(m)(4)(C) of the Code; and
(iii) every provision of the Plan shall be administered, interpreted, and
construed to carry out the foregoing provisions of this sentence.

      


      Notwithstanding any provision of the
Plan to the contrary, the Plan is intended to give the Committee the authority
to grant Awards that qualify as performance-based compensation under Section
162(m)(4)(C) of the Code as well as Awards that do not so qualify. Every
provision of the Plan shall be administered, interpreted, and construed to carry
out such intention, and any provision that cannot be so administered,
interpreted, and construed shall to that extent be disregarded; and any
provision of the Plan that would prevent an Award that the Committee intends to
qualify as performance-based compensation under Section 162(m)(4)(C) of the Code
from so qualifying shall be administered, interpreted, and construed to carry
out such intention,


      
        
           


        

        
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      and any
provision that cannot be so administered, interpreted, and construed shall to
that extent be disregarded.

      


      3.5           Indemnification of
Committee.  In addition to such other rights of indemnification
as they may have as directors or as members of the Committee, the members of the
Committee shall be indemnified by the Company against reasonable expenses,
including attorneys’ fees, actually and reasonably incurred in connection with
the defense of any action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan or any Award
granted or made hereunder, and against all amounts reasonably paid by them in
settlement thereof or paid by them in satisfaction of a judgment in any such
action, suit or proceeding, if such members acted in good faith and in a manner
which they believed to be in, and not opposed to, the best interests of the
Company and its Subsidiaries.

      


      ARTICLE
IV

      Stock
Subject to the Plan

      


      4.1           Number of Shares Authorized for
Issuance during Term of the Plan. Subject to adjustment as provided in
Section 4.4 herein and to the next paragraph of this Section, the maximum
aggregate number (the “Maximum Aggregate Number”) of Shares that may be issued
pursuant to Awards made under the Plan during the term of the Plan stated in
Section 1.3 shall not exceed the sum of (i) 3,500,000 and (ii) that
number of Shares that (A) are represented by restricted stock or unexercised
vested or unvested stock options which previously have been granted and are
outstanding under the Massey Energy Company 1988 Executive Stock Plan, the
Massey Energy Company Stock Plan for Non-Employee Directors, the Massey Energy
Company 1996 Executive Stock Plan, the Massey Energy Company 1997 Restricted
Stock Plan for Non-Employee Directors, and the Massey Energy Company 1999
Executive Performance Incentive Plan as of the Effective Date and (B) expire or
otherwise lapse, are terminated or forfeited, are settled in cash, or are
withheld or delivered to the Company for tax purposes at any time after the
Effective Date. No awards shall be granted under the Massey Energy Company 1988
Executive Stock Plan, Massey Energy Company Stock Plan for Non-Employee
Directors, Massey Energy Company 1996 Executive Stock Plan, Massey Energy
Company 1997 Restricted Stock Plan for Non-Employee Directors, and the Massey
Energy Company 1999 Executive Performance Incentive Plan on or after the
Effective Date.

      


      Except as provided in Sections 4.2 and
4.3 herein, only Shares actually issued in connection with the exercise of, or
as other payment for Awards, under the Plan shall reduce the number of Shares
available for future Awards under the Plan. Awards settled in cash shall not
count against the Maximum Aggregate Number.

      


      Stock that may be issued under the Plan
may either be Shares reacquired by the Company, including Shares purchased in
the open market, authorized but unissued Shares, Shares held in treasury, or
Shares held in a grantor trust created by the Company. Such Shares, however,
shall count against the Maximum Aggregate Number, except as provided in the
foregoing paragraph.


      
        
           


        

        
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      The Company, during the term of the
Plan and thereafter during the term of any outstanding Award which may be
settled in Stock, shall reserve and keep available a number of Shares sufficient
to satisfy the requirements of the Plan.

      


      4.2           Lapsed Awards or Forfeited Shares.
If any Award granted under the Plan terminates, expires, or lapses for
any reason other than by virtue of exercise of the Award, or if Shares issued
pursuant to Awards are forfeited, any Stock subject to such Award again shall be
available for the grant of an Award under the Plan.

      


      4.3           Shares Used as Payment of Exercise
Price or for Taxes.  In the event a Participant pays the Option
Price for Shares pursuant to the exercise of an Option with previously acquired
Shares, the number of Shares available for future Awards under the Plan shall be
reduced only by the net number of new Shares issued upon the exercise of the
Option. In addition, in determining the number of shares of Stock available for
Awards, if Stock has been delivered or exchanged by, or withheld from, a
Participant as full or partial payment to the Company for payment of withholding
taxes, or if the number of shares of Stock otherwise deliverable by the Company
has been reduced for payment of withholding taxes, the number of shares of Stock
exchanged by or withheld from a Participant as payment in connection with the
withholding tax or so reduced by the Company shall again be available for the
grant of an Award under the Plan.

      


      4.4           Capital
Adjustments.  If the outstanding securities of the class then
subject to the Plan are increased, decreased or exchanged for or converted into
cash, property or a different number or kind of shares or securities, or if
cash, property or shares or securities are distributed in respect of such
outstanding securities, in either case as a result of a reorganization, merger,
consolidation, recapitalization, restructuring, reclassification, dividend
(other than a regular, quarterly cash dividend) or other distribution, stock
split, reverse stock split, spin-off or the like, or if substantially all of the
property and assets of the Company are sold, then (i) the Committee shall
make appropriate and proportionate adjustments in the number and class of Shares
subject to, or cash or other property that may be acquired pursuant to, each
outstanding Award and the Option Price therefor in such manner as the Committee
shall determine in order to retain the economic value or opportunity provided
immediately prior to the transaction for which the adjustment is made and
(ii) in all cases, unless the terms of such transaction shall provide
otherwise, the Committee may make appropriate and proportionate adjustments in
the maximum number and kind of shares or other securities, and the annual limits
on and aggregate number of Shares for which Awards, that may be issued pursuant
to such Awards thereafter granted under the Plan. Notwithstanding anything to
contrary in the foregoing, any such adjustment shall be made in such a manner
that will not affect the status of any Award intended to be excepted from
treatment as nonqualified deferred compensation under Section 409A of the Code,
qualify as an ISO under Section 422 of the Code or as “performance based
compensation” under Section 162(m) of the Code.  No fractional
interests will be issued under the Plan resulting from any such
adjustments.


      
        
           


        

        
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      ARTICLE
V

      Eligibility

      


      Persons eligible to participate in the
Plan are (i) Members, (ii) Non-Employee Service Providers and
(iii) Non-Employee Directors. Multiple grants of Awards under the Plan may
be made in any calendar year to one or more Participants.

      


      ARTICLE
VI

      Stock
Options

      


      6.1           Grant of Options. Subject to
the terms and conditions of the Plan, the Committee, at any time and from time
to time, may grant Options under the Plan (with one Option representing one
Share) to Members, Non-Employee Service Providers and Non-Employee Directors in
such amounts as it shall determine; provided, however, that
(i) Non-Employee Service Providers and Non-Employee Directors may only be
granted Non-Qualified Stock Options, (ii) no Participant may be granted
Options in any calendar year for more than 400,000 Shares, provided that only
for purposes of qualifying for the performance-based compensation exception
under Section 162(m) of the Code, Options which are awarded and then cancelled
and Options for which the exercise price is lowered both continue to count
against this limit, and (iii) the aggregate Fair Market Value (determined
at the time the Award is made) of Shares with respect to which any Participant
may first exercise ISOs granted under the Plan during any calendar year may not
exceed $100,000 or such amount as shall be specified in Section 422 of the Code
and rules and regulations thereunder.

      


      6.2           Option Agreement. Each Option
grant shall be evidenced by an Agreement that shall specify the type of Option
granted, the Option Price (as hereinafter defined), the duration of the Option,
the number of Shares to which the Option pertains, any conditions imposed upon
the exercisability of Options in the event of retirement, death, disability or
other termination of employment or service, and such other provisions as the
Committee shall determine. The Agreement shall specify whether the Option is
intended to be an Incentive Stock Option within the meaning of Section 422 of
the Code, or a Non-Qualified Stock Option not intended to be an Incentive Stock
Option within the meaning of Section 422 of the Code; provided, however, that if
an Option is intended to be an Incentive Stock Option but fails to be such for
any reason, it shall continue in full force and effect as a Non-Qualified Stock
Option. If an Option is intended to be a Performance-Based Compensation Award,
the terms and conditions thereof, including the Performance Goal and Performance
Period, shall be set forth in an Agreement or in a subplan of the Plan which is
incorporated by reference into an Agreement and the requirements to satisfy or
achieve the Performance Goal as so provided therein shall be considered to be
restrictions under the Plan.

      


      6.3           Option Price. The Option
Price of an Option shall be determined by the Committee subject to the following
limitations. The Option Price shall not be less than 100% of the Fair Market
Value of such Stock on the Grant Date. In addition, an ISO granted to a Member
who, at the time of grant, owns (within the meaning of Section 424(d) of the
Code) stock possessing more than 10% of the total combined voting power of all
classes of stock of the


      
        
           


        

        
          10

          
            

          

        

        
           


        

      


      Company,
shall have an Option Price which is at least equal to 110% of the Fair Market
Value of such Stock on the Grant Date.

      


      6.4           Duration of Options. Each
Option shall expire at such time as the Committee shall determine; provided,
however, that no Option shall be exercisable after the expiration of ten years
from its Award Date. In addition, an ISO granted to a Member who, at the time of
grant, owns (within the meaning of Section 424(d) of the Code) stock possessing
more than 10% of the total combined voting power of all classes of stock of the
Company, shall not be exercisable after the expiration of five years from its
Grant Date.

      


      6.5           Exercisability. Options
granted under the Plan shall be exercisable at such times and be subject to such
restrictions and conditions as the Committee shall determine, which need not be
the same for all Participants.

      


      6.6           Method of Exercise. Options
shall be exercised by the delivery of a written notice to the Company in the
form prescribed by the Committee setting forth the number of Shares with respect
to which the Option is to be exercised, accompanied by full payment for the
Shares and payment of (or an arrangement satisfactory to the Company for the
Participant to pay) any tax withholding required in connection with the Option
exercise. The Option Price shall be payable to the Company in full either in
cash, by delivery of Shares of Stock valued at Fair Market Value at the time of
exercise, or by a combination of the foregoing, except as otherwise provided
below.

      


      To the extent permitted under the
applicable laws and regulations, at the request of the Participant and with the
consent of the Committee, the Company agrees to cooperate in a “cashless
exercise” of an Option. The cashless exercise shall be effected by the
Participant delivering to a securities broker, selected or approved by the
Committee, instructions to exercise all or part of the Option, including
instructions to sell a sufficient number of shares of Stock to cover the costs
and expenses associated therewith.

      


      As soon as practicable, after receipt
of written notice and payment of the Option Price and completion of payment of
(or an arrangement satisfactory to the Company for the Participant to pay) any
tax withholding required in connection with the Option exercise, the Company
shall cause the appropriate number of Shares to be issued in the Participant’s
name, which issuance shall be effected in book entry or electronic form,
provided that issuance and delivery in certificated form shall occur if the
Participant so requests in writing or the Committee so directs.

      


      6.7           Restrictions on Stock
Transferability.  The Committee may impose such restrictions on
any Shares acquired pursuant to the exercise of an Option under the Plan as it
may deem advisable, including, without limitation, restrictions under applicable
Federal securities law, under the requirements of the New York Stock Exchange or
any stock exchange upon which such Shares are then listed and under any blue sky
or state securities laws applicable to such Shares. In the event the Committee
so provides in an Agreement pertaining to an Option, Stock delivered on exercise
of the Option may be designated as Restricted Stock or Stock subject to
a


      
        
           


        

        
          11

          
            

          

        

        
           


        

      


      buyback
right by the Company in the amount of, or based on, the Option Price therefor or
otherwise in the event the Participant does not complete a specified service
period after exercise.

      


      ARTICLE
VII

      Stock
Appreciation Rights

      


      7.1           Grant of Stock Appreciation Rights.
Subject to the terms and conditions of the Plan, the Committee, at any
time and from time to time, may grant Stock Appreciation Rights under the Plan
to Members and Non-Employee Service Providers in such amounts as it shall
determine; provided, however, that no Participant may be granted more than
400,000 SARs in any calendar year; and provided, further, that only for purposes
of qualifying for the performance-based compensation exception under Section
162(m) of the Code, SARs for which the Base Value provided in Section 7.5
against which the stock appreciation is determined is lowered continue to count
against this limit.

      


      7.2           SAR
Agreement.  Each SAR grant shall be evidenced by an Agreement
that shall specify the Base Value (as defined in Section 7.5), the duration of
the SAR, the number of Shares to which the SAR pertains, any conditions imposed
upon the exercisability of the SAR in the event of retirement, death, disability
or other termination of employment or service, and such other provisions as the
Committee shall determine. SARs granted under the Plan shall be exercisable at
such times and be subject to such restrictions and conditions as the Committee
shall determine, which need not be the same for all Participants consistent with
the Plan. If a SAR Grant is intended to be a Performance-Based Compensation
Award, the Performance Goal and Performance Period shall be set forth in an
Agreement or in a subplan of the Plan which is incorporated by reference into an
Agreement and the requirements to satisfy or achieve the Performance Goal as so
provided therein shall be considered to be restrictions under the
Plan.

      


      7.3           Exercise of SARs. SARs may be
exercised with respect to all or part of the Shares upon whatever terms and
conditions the Committee, in its sole discretion, imposes upon such SARs. SARs
shall be exercised by delivery to the Committee of a notice of exercise in the
form prescribed by the Committee.

      


      7.4           Other Conditions Applicable to
SARs.  In no event shall the term of any SAR granted under the
Plan exceed ten years from the Grant Date. A SAR may be exercised only when the
Fair Market Value of a Share exceeds the Base Value (as defined in Section
7.5).

      


      7.5           Payment after Exercise of
SARs.  Subject to the provisions of the Agreement, upon the
exercise of SARs, the Participant is entitled to receive, without any payment to
the Company (other than applicable tax withholding when due), an amount equal
(the “SAR Value”) to the product of multiplying (i) the number of Shares with
respect to which the SAR is exercised by (ii) an amount equal to the excess of
(A) the Fair Market Value per Share on the date of exercise of the SAR over (B)
the “Base Value” of the SAR designated in the Agreement (which “Base Value”
shall be the Fair Market Value per Share on the Award Date or any amount greater
than such Fair Market Value stated as the Base Value in the Agreement). The
Agreement may provide for payment of the SAR Value at the time of exercise or,
on an elective or non-elective


      
        
           


        

        
          12

          
            

          

        

        
           


        

      


      basis,
for payment of the SAR Value at a later date, adjusted (if so provided in the
Agreement) from the date of exercise based on an interest, dividend equivalent,
earnings, or other basis (including deemed investment of the SAR Value in
Shares) set out in the Agreement (the “adjusted SAR Value”). The Committee is
expressly authorized to grant SARs which are deferred compensation covered by
Section 409A of the Code, as well as SARs which are not deferred compensation
covered by Section 409A of the Code.

      


      Payment of the SAR Value or adjusted
SAR Value to the Participant shall be made (i) in Shares, valued at the
Fair Market Value on the date of exercise in the case of an immediate payment
after exercise or at the Fair Market Value on the date of settlement in the
event of an elective or non-elective delayed payment, (ii) in cash or
(iii) in a combination thereof as determined or permitted by the Committee,
either at the time of the Award or, unless otherwise provided in the applicable
Agreement, thereafter, and as provided in the Agreement. Any payment in Shares
shall be effected in book entry or electronic form, provided that issuance and
delivery in certificated form shall occur if the Participant so requests in
writing or the Committee so directs.

      


      7.6           Restrictions on Stock
Transferability.  The Committee may impose such restrictions on
any Shares acquired pursuant to the exercise of a SAR under the Plan as it may
deem advisable, including, without limitation, restrictions under applicable
Federal securities law, under the requirements of the New York Stock Exchange or
any stock exchange upon which such Shares are then listed and under any blue sky
or state securities laws applicable to such Shares. In the event the Committee
so provides in an Agreement pertaining to a SAR, Stock delivered on exercise of
the SAR may be designated as Restricted Stock or Stock subject to a buyback
right by the Company in the amount of, or based on, the Base Value (as defined
in Section 7.5) therefor or otherwise in the event the Participant does not
complete a specified service period after exercise.

      


      ARTICLE
VIII

      Restricted
Stock

      


      8.1           Grant of Restricted
Stock.  Subject to the terms and conditions of the Plan, the
Committee, at any time and from time to time, may grant Shares of Restricted
Stock under the Plan to such Members, Non-Employee Service Providers and
Non-Employee Directors and in such amounts as it shall determine; provided,
however, that no Participant may be granted more than 200,000 Shares of
Restricted Stock in any calendar year. Participants receiving Restricted Stock
Awards are not required to pay the Company therefor (except for applicable tax
withholding when due) other than the rendering of services. As determined by the
Committee, Shares of Restricted Stock may be issued in book entry or electronic
form or in certificated form.

      


      Notwithstanding anything to the
contrary in the foregoing, the Committee is expressly authorized to make Awards
of Restricted Stock based on a Member’s, Non-Employee Service Provider’s or
Non-Employee Director’s acquisition and/or holding of Stock (including for this
purpose any deemed investment in Stock) in his individual capacity or under any
nonqualified


      
        
           


        

        
          13

          
            

          

        

        
           


        

      


      deferred
compensation plan or tax qualified plan (if permissible under applicable
qualification rules of the Code) maintained by the Company or a
Subsidiary.

      


      8.2           Restricted Stock
Agreement.  Each Restricted Stock Award shall be evidenced by
an Agreement that shall specify the Period of Restriction, the number of Shares
of Restricted Stock granted, and the applicable restrictions (whether
service-based restrictions, with or without performance acceleration, and/or
performance-based restrictions) and such other provisions as the Committee shall
determine. If an Award of Restricted Stock is intended to be a Performance-Based
Compensation Award, the terms and conditions of such Award, including the
Performance Goal and Performance Period, which shall be no less than one year,
shall be set forth in an Agreement or in a subplan of the Plan which is
incorporated by reference into an Agreement and the requirements to satisfy or
achieve the Performance Goal as so provided therein shall be considered to be
restrictions under the Plan. If vesting of an Award of Restricted Stock is
intended to be service-based (whether solely service-based or service-based with
performance acceleration), the Award’s service-based vesting period shall be at
least three years, though the Award’s service-based vesting may occur ratably
over the course of such period (e.g. a three year service-based award may vest
one-third on each of the first, second and third anniversaries of the Grant
Date). Unless otherwise determined by the Committee, custody of Shares of
Restricted Stock maintained in certificated form shall be retained by the
Company until the termination of the restrictions pertaining
thereto.

      


      8.3           Other
Restrictions.  The Committee may impose such other restrictions
under applicable Federal or state securities laws as it may deem advisable, and
may legend the certificates representing Restricted Stock to give appropriate
notice of such restrictions.

      


      8.4           Certificate
Legend.  In addition to any legends placed on certificates
pursuant to Section 8.3 herein, each certificate representing Shares of
Restricted Stock issued pursuant to the Plan shall bear the following
legend:

      


      “The sale
or other transfer of the shares of Massey Energy Company stock represented by
this certificate, whether voluntary, involuntary, or by operation of law, is
subject to certain restrictions on transfer set forth in the Massey Energy
Company 2006 Stock and Incentive Compensation Plan, in the rules and
administrative procedures adopted pursuant to such Plan, and in an associated
Restricted Stock Agreement. A copy of the Plan, such rules and procedures, and
the applicable Restricted Stock Agreement may be obtained from the Secretary of
Massey Energy Company.”

      


      8.5           Removal of
Restrictions.  Except as otherwise provided in this Article,
Shares of Restricted Stock covered by each Award of, or payable in, Restricted
Stock made under the Plan shall become freely transferable by the Participant
after the last day of the Period of Restriction and, where applicable, after a
determination of the satisfaction or achievement on any applicable Performance
Goal by the Committee. The Shares of Stock shall remain in book entry or
electronic form, unless and until the Participant requests in writing, or the
Committee directs, for certificates evidencing the Shares to be
issued.  Such Shares, having been released from the restrictions,
shall not bear the restrictive legends required by Section 8.3 or
8.4.


      
        
           


        

        
          14

          
            

          

        

        
           


        

      


      


      8.6           Voting
Rights.  Unless otherwise provided in the Agreement, during the
Period of Restriction, Participants holding Shares of Restricted Stock granted
hereunder may exercise voting rights with respect to those Shares.

      


      8.7           Dividends and Other
Distributions.  Unless otherwise provided in the Agreement
(which may or may not provide for the accumulation and payment of dividends and
other distributions made in cash or property other than Shares until the Shares
of Restricted Stock to which the dividends and other distributions relates
vest), during the Period of Restriction, Participants entitled to or holding
Shares of Restricted Stock granted hereunder shall be entitled to receive all
dividends and other distributions paid in cash or property other than Shares
with respect to those Shares of Restricted Stock. If any dividends or
distributions are paid in Shares, such Shares shall be subject to the same
restrictions on transferability and the same rules for vesting, forfeiture and
custody as the Shares of Restricted Stock with respect to which they were
distributed. If provided in the Agreement and if a Participant timely elects in
accordance with the requirements for compliance with the nonqualified deferred
compensation provisions of Section 409A of the Code, Participants may be given
the right to elect to defer the receipt of such dividends and other
distributions until the Participant ceases employment or service with the
Company and its Subsidiaries, until a specified time or until the Shares of
Restricted Stock to which the dividends and other distributions relate
vest.

      


      ARTICLE
IX

      Restricted
Units

      


      9.1           Grant of Restricted
Units.  Subject to the terms and conditions of the Plan, the
Committee, at any time and from time to time, may grant Restricted Units under
the Plan (with one Restricted Unit representing one Share) to such Members,
Non-Employee Service Providers and Non-Employee Directors and in such amounts as
it shall determine; provided, however, that no Participant may be granted more
than 200,000 Restricted Units in any calendar year. Participants receiving
Restricted Unit Awards are not required to pay the Company therefor (except for
applicable tax withholding when due) other than the rendering of
services.

      


      Notwithstanding anything to the
contrary in the foregoing, the Committee is expressly authorized to make Awards
of Restricted Units based on a Member’s, Non-Employee Service Provider’s or
Non-Employee Director’s acquisition and/or holding of Stock (including for this
purpose any deemed investment in Stock) in his individual capacity or under any
nonqualified deferred compensation plan or tax qualified plan (if permissible
under applicable qualification rules of the Code) maintained by the Company or a
Subsidiary.

      


      9.2           Restricted Unit
Agreement.  Each Restricted Unit Award shall be evidenced by an
Agreement that shall specify the Period of Restriction, the number of Restricted
Units granted, and the applicable restrictions (whether service-based
restrictions, with or without performance acceleration, and/or performance-based
restrictions) and such other provisions as the Committee shall determine. If an
Award of Restricted Units is intended to be a Performance-Based Compensation
Award, the terms and conditions of such Award, including the Performance
Goal


      
        
           


        

        
          15

          
            

          

        

        
           


        

      


      and
Performance Period, which shall be no less than one year, shall be set forth in
an Agreement or in a subplan of the Plan which is incorporated by reference into
an Agreement and the requirements to satisfy or achieve the Performance Goal as
so provided therein shall be considered to be restrictions under the Plan. If
vesting of an Award of Restricted Units is intended to be service-based (whether
solely service-based or service-based with performance acceleration), the
Award’s service-based vesting period shall be at least three years, though
vesting may occur ratably over the course of such period (e.g. a three year
service-based award may vest one-third on each of the first, second and third
anniversaries of the Grant Date).

      


      9.3           Dividends and Other
Distributions.  Unless otherwise provided in the Agreement
(which may or may not provide for the current payment, or for the accumulation
subject to the same restrictions, vesting, forfeiture and payment as the
Restricted Units to which they are attributable, of dividends and other
distributions made in cash or property other than Shares), during the Period of
Restriction, Participants holding Restricted Units shall have no rights to
dividends and other distributions made in cash or property other than Shares
which would have been paid with respect to the Shares represented by those
Restricted Units if such Shares were outstanding. Unless otherwise provided in
the Agreement, if any deemed dividends or other distributions would be paid in
Shares, such Shares shall be considered to increase the Participant’s Restricted
Units with respect to which they were declared based on one Share equaling one
Restricted Unit. In addition, unless otherwise provided in the Agreement, during
the Period of Restriction, any such deemed dividends and other distributions for
which rights are provided but which are not paid currently shall be deemed
converted to additional Restricted Units based on the Fair Market Value of a
Share on the date of payment or distribution of the deemed dividend or
distribution. If provided in the Agreement and if a Participant timely elects in
accordance with the requirements for compliance with the nonqualified deferred
compensation provisions of Section 409A of the Code, Participants may be given
the right to elect to receive or defer the payment of any such deemed dividends
and other distributions until the Participant ceases employment or service with
the Company and its Subsidiaries, until a specified time or until the Restricted
Units to which the dividends and other distributions relate vest.

      


      9.4           Payment after Lapse of
Restrictions.  Subject to the provisions of the Agreement, upon
the lapse of restrictions with respect to a Restricted Unit, the Participant is
entitled to receive, without any payment to the Company (other than applicable
tax withholding when due), an amount equal to the product of multiplying (i) the
number of Shares with respect to which the restrictions lapse by (ii) the Fair
Market Value per Share on the date the restrictions lapse (such amount, the “RU
Value”).

      


      The Agreement may provide for payment
of the RU Value at the time of vesting or, on an elective or non-elective basis,
for payment of the RU Value at a later date, adjusted (if so provided in the
Agreement) from the date of exercise based on an interest, dividend equivalent,
earnings, or other basis (including deemed investment of the RU Value in Shares)
set out in the Agreement (the “adjusted RU Value”). The Committee is expressly
authorized to grant Restricted Units which are deferred compensation covered by
Section 409A of the Code, as well as Restricted Units which are not deferred
compensation covered by Section 409A of the Code.


      
        
           


        

        
          16

          
            

          

        

        
           


        

      


      Payment of the RU Value or adjusted RU
Value to the Participant shall be made (i) in Shares, valued at the Fair
Market Value on the date or dates the restrictions on the Award lapse in the
case of an immediate payment after vesting or at the Fair Market Value on the
date of settlement in the event of an elective or non-elective delayed payment,
(ii) in cash or (iii) in a combination thereof as determined or
permitted by the Committee, either at the time of the Award or, unless otherwise
provided in the applicable Agreement, thereafter, and as provided in the
Agreement. Any payment in Shares shall be effected in book entry or electronic
form, provided that issuance and delivery in certificated form shall occur if
the Participant so requests in writing or the Committee so directs.

      


      ARTICLE
X

      Unrestricted
Stock

      


      Grant of Unrestricted Stock
Awards.  Subject to the terms and provisions of the Plan, the
Committee, at any time and from time to time, may grant Unrestricted Stock
Awards under the Plan to one or more Members and Non-Employee Service Providers
in such amount or amounts as it shall determine; provided, however, that no
Participant may be granted Unrestricted Stock Awards in any calendar year for
more than 200,000 Shares and that the aggregate number of Shares that may be
issued under the Plan as Unrestricted Stock Awards during the term of the Plan
shall not exceed 5% of the Maximum Aggregate Number of Shares as determined in
Section 4.1. Participants receiving Unrestricted Stock Awards are not required
to pay the Company therefor (except for applicable tax withholding when due).
Payment of a Unrestricted Stock Award shall be effected as soon as practicable
after the Award Date in book entry or electronic form, provided that issuance
and delivery in certificated form shall occur if the Participant so requests in
writing or the Committee so directs.

      


      Notwithstanding anything to the
contrary in the foregoing, the Committee is expressly authorized to make Awards
of Unrestricted Stock based on a Member’s, Non-Employee Service Provider’s or
Non-Employee Director’s acquisition and/or holding of Stock (including for this
purpose any deemed investment in Stock) in his individual capacity or under any
nonqualified deferred compensation plan or tax qualified plan (if permissible
under applicable qualification rules of the Code) maintained by the Company or a
Subsidiary.

      


      ARTICLE
XI

      Incentive
Awards

      


      11.1           Incentive
Award.  Subject to the terms and conditions of the Plan,
Incentive Awards may be granted to Members and Non-Employee Service Providers at
any time and from time to time as shall be determined by the Committee. Each
Incentive Award will confer upon the Participant the opportunity to earn a
future payment tied to the level of achievement with respect to one or more
performance criteria established for a performance period of not less than one
year. Each Incentive Award shall contain provisions regarding (i) the target,
minimum and maximum amounts payable to the Participant as an Incentive Award,
(ii) the performance criteria and level of achievement versus these criteria
which shall determine the amount of such payment, (iii) the period as to which
performance shall be measured for establishing the amount


      
        
           


        

        
          17

          
            

          

        

        
           


        

      


      of any
payment, (iv) the timing of any payment earned by virtue of performance, (v)
restrictions on the alienation or transfer of the Incentive Award prior to
actual payment, (vi) forfeiture provisions, (vii) immediate vesting provisions,
and (viii) such further terms and conditions, in each case not inconsistent with
the Plan as may be determined from time to time by the Committee. In
establishing the provisions of Incentive Awards, the Committee may refer to
categories of such Awards as parts of a subplan or a “Program” under the Plan,
which names will not affect the applicability of this Plan. The maximum amount
payable as an Incentive Award may be a multiple of the target amount payable,
but the total of the maximum amount payable pursuant to that portion of an
Incentive Award granted under this Plan for any fiscal year to any Participant
that is intended to satisfy the requirements for “performance based
compensation” under Section 162(m) of the Code and that portion of an Incentive
Award granted under this Plan for any fiscal year that is not intended to
satisfy the requirements for “performance based compensation” under Section
162(m) of the Code shall not exceed $10,000,000.

      


      11.2           Performance
Criteria.  The Committee shall establish the performance
criteria and level of achievement versus the criteria which shall determine the
target and the minimum and the maximum amounts payable under an Incentive Award,
which criteria may be based on financial performance and/or personal performance
evaluations. The Committee may specify the percentage of the target Incentive
Award that is intended to satisfy the requirements for “performance-based
compensation” under Section 162(m) of the Code. Notwithstanding anything to the
contrary herein, the performance criteria for any portion of an Incentive Award
that is intended by the Committee to satisfy the requirements for
“performance-based compensation” under Section 162(m) of the Code shall be a
measure based on one or more Performance Goals selected by the Committee and
specified at the time required under Section 162(m) of the Code.

      


      11.3           Timing and Form of
Payment.  The Committee shall determine the timing of payment
of any Incentive Award. The Committee may provide for or, subject to such terms
and conditions as the Committee may specify in the Incentive Award Agreement and
subject to the requirements of Section 409A of the Code, may permit a
Participant to elect for the payment of any Incentive Award to be deferred to a
specified date or dates or to an event. Payment of the amount to which a
Participant shall be entitled upon the settlement of an Incentive Award shall be
made in cash, Shares, property or a combination thereof as determined by the
Committee. Payment may be made in a lump sum or installments as determined or
permitted by the Committee in the Incentive Award Agreement. Payment may be made
(i) in Shares, valued at the Fair Market Value on the date of settlement,
(ii) in cash or (iii) in a combination thereof as determined or
permitted by the Committee, either at the time of the Award or, unless otherwise
provided in the applicable Agreement, thereafter, and as provided in the
Agreement. Any payment in Shares shall be effected in book entry or electronic
form, provided that issuance and delivery in certificated form shall occur if
the Participant so requests in writing or the Committee so directs.

      


      11.4           Restrictions on Stock
Transferability.  The Committee may impose such restrictions on
any Shares acquired in connection with the settlement of an Incentive Award
under the Plan as it may deem advisable, including, without limitation,
restrictions under


      
        
           


        

        
          18

          
            

          

        

        
           


        

      


      applicable
Federal securities law, under the requirements of the New York Stock Exchange or
any stock exchange upon which such Shares are then listed and under any blue sky
or state securities laws applicable to such Shares. In the event the Committee
so provides in an Agreement pertaining to Incentive Award, Stock delivered
connection with the settlement of an Incentive Award may be designated as
Restricted Stock or Stock subject to a buyback right by the Company on such
basis as the Committee may provide in the event the Participant does not
complete a specified service period after vesting in the Award.

      


      11.5           Discretionary
Adjustments.  Notwithstanding satisfaction of any performance
goals, the amount paid under an Incentive Award on account of either financial
performance or personal performance evaluations may be reduced by the Committee
on the basis of such further considerations as the Committee in its sole
discretion shall determine.

      


      ARTICLE
XII

      Change
in Control

      


      In the event of a Change in Control of
the Company, the Committee, as constituted before such Change in Control, in its
sole discretion may, as to any outstanding Award, either at the time the Award
is made or any time thereafter, take any one or more of the following actions:
(i) provide for the acceleration of any time periods relating to the exercise or
realization of any such Award so that such Award may be exercised or realized in
full on or before a date initially fixed by the Committee; (ii) provide for the
purchase or settlement of any such Award by the Company, with or without a
Participant’s request, for an amount of cash equal to the amount which could
have been obtained upon the exercise of such Award or realization of such
Participant’s rights had such Award been currently exercisable or payable; (iii)
make such adjustment to any such Award then outstanding as the Committee deems
appropriate to reflect such Change in Control; or (iv) cause any such Award then
outstanding to be assumed, or new rights substituted therefor, by the acquiring
or surviving corporation in such Change in Control.

      


       

      ARTICLE
XIII

      Modification,
Extension and Renewal of Awards

      


      Subject to the terms and conditions and
within the limitations of the Plan, the Committee may modify, extend or renew
outstanding Awards and may modify the terms of an outstanding Agreement, may
accept the surrender of outstanding Awards granted under the Plan or outstanding
awards granted under any other equity compensation plan of the Company and
authorize the granting of new Awards pursuant to the Plan in substitution
therefor so long as the new or substituted awards are not of a different type
(with Options and SARs being one type and thus not eligible to be exchanged for
any Award other than Options or SARs), and otherwise the new Awards may specify
a longer term than the surrendered Awards or awards, may provide for more rapid
vesting and exercisability than the surrendered Awards or awards, and may
contain any other provisions that are authorized by the Plan. Notwithstanding
the foregoing, however, no modification of an Award, shall, without the consent
of the Participant, adversely affect the rights or obligations of the
Participant.


      
        
           


        

        
          19

          
            

          

        

        
           


        

      


      Notwithstanding anything to the
contrary in the foregoing other than an adjustment pursuant to Section 4.4
herein, except in connection with a corporate transaction involving the Company
(including, without limitation, any stock dividend, stock split, extraordinary
cash dividend, recapitalization, reorganization, merger, consolidation,
split-up, spin-off, combination, or exchange of shares), the terms of
outstanding awards may not be amended to reduce the exercise price or Base Value
of outstanding Options or SARs or cancel outstanding Options or SARs in exchange
for cash, other Awards or awards or Options or SARs with an exercise price or
Base Value that is less than exercise price or Base Value of the original
Options or SARs without shareholder approval.

      


       

      ARTICLE
XIV

      Amendment,
Modification and Termination of the Plan

      


      14.1           Amendment, Modification and
Termination.  At any time and from time to time, the Board may
terminate, amend, or modify the Plan. Such amendment or modification may be
without shareholder approval except to the extent that such approval is required
by the Code, pursuant to the rules under Section 16 of the Exchange Act, by any
national securities exchange or system on which the Stock is then listed or
reported, by any regulatory body having jurisdiction with respect thereto or
under any other applicable laws, rules or
regulations.  Notwithstanding the foregoing, the Plan shall not be
amended to permit the actions prohibited by the last paragraph of Article XIII
without shareholder approval.

      


      14.2           Awards Previously
Granted.  No termination, amendment or modification of the Plan
herein shall in any manner adversely affect any Award theretofore granted under
the Plan, without the written consent of the Participant.

      


       

      ARTICLE
XV

      Withholding

      


      15.1           Tax
Withholding.  The Company shall have the power and the right to
deduct or withhold, or require a Participant to remit to the Company, an amount
sufficient to satisfy Federal, State and local taxes (including the
Participant’s FICA obligation) required by law to be withheld with respect to
any grant, exercise, or payment made under or as a result of the Plan or any
Agreement.

      


      15.2           Stock
Withholding.  With respect to withholding required upon the
exercise of Non-Qualified Stock Options, or upon the lapse of restrictions on
Restricted Stock, or upon the occurrence of any other taxable event with respect
to any Award, Participants may elect, subject to the approval of the Committee,
or the Committee may require Participants to satisfy the withholding
requirement, in whole or in part, by having the Company withhold Shares of Stock
having a Fair Market Value equal to the amount required to be withheld. The
value of the Shares to be withheld shall be based on the Fair Market Value of
the Shares on the date that the amount of tax to be withheld is to be
determined. All elections by Participants shall be irrevocable and
be


      
        
           


        

        
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      made in
writing and in such manner as determined by the Committee in advance of the day
that the transaction becomes taxable.

      


      ARTICLE
XVI

      Successors

      


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

      


       

      ARTICLE
XVII

      General

      


      17.1           Requirements of
Law.  The granting of Awards and the issuance of Shares of
Stock under the Plan shall be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or
self-regulatory organizations as may be required.

      


      17.2           Effect of the
Plan.  The establishment of the Plan shall not confer upon any
Member, Non-Employee Service Provider or Non-Employee Director any legal or
equitable right against the Company, a Subsidiary or the Committee, except as
expressly provided in the Plan. The Plan does not constitute an inducement or
consideration for the employment or service of any Member, Non-Employee Service
Provider or Non-Employee Director, nor is it a contract between the Company or
any of its Subsidiaries and any Member, Non-Employee Service Provider or
Non-Employee Director. Participation in the Plan shall not give any Member,
Non-Employee Service Provider or Non-Employee Director any right to be retained
in the service of the Company or any of its Subsidiaries. Except as may be
otherwise expressly provide in the Plan or in an Agreement, no Member,
Non-Employee Service Provider or Non-Employee Director who receives an Award
shall have rights as a shareholder of the Company prior to the date Shares are
issued to the Participant pursuant to the Plan, regardless of whether such
Shares are held in book entry or electronic form or in certificated
form.

      


      17.3           Creditors.  The
interests of any Participant under the Plan or any Agreement are not subject to
the claims of creditors and may not, in any way, be assigned, alienated or
encumbered.

      


      17.4           Governing Law.  The
Plan, and all Agreements hereunder, shall be governed, construed and
administered in accordance with and governed by the laws of the State of
Delaware and applicable federal law. The Committee may provide that any dispute
as to any Award shall be presented and determined in such forum as the Committee
may specify, including through binding arbitration. Any reference in this Plan
or in an Agreement evidencing any Award to a provision of law or to a rule or
regulation shall be deemed to include any successor law, rule or regulation of
similar effect or applicability.


      
        
           


        

        
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      17.5           Conflicts between the Plan and an
Agreement.  In the event of a conflict between the Plan and an
Agreement, the terms of the Plan shall control.

      


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

      


      17.7           Unfunded Status of
Plan.  The Plan is intended to constitute an “unfunded” plan
for incentive and deferred compensation. With respect to any payments as to
which a Participant has a fixed and vested interest but which are not yet made
to a Participant by the Company, nothing contained herein shall give any such
Participant any rights that are greater than those of a general unsecured
creditor of the Company.

      


      17.8           Transferability.  Except
for family transfers authorized in this Section (but only if the Agreement
evidencing an Award, or an amendment thereto authorized by the Committee,
expressly states that it is transferable as provided herein), no Award granted
under the Plan, nor any interest in such Award, may be sold, assigned, conveyed,
gifted, pledged, hypothecated or otherwise transferred in any manner, other than
by will or the laws of descent and distribution, prior to the vesting or lapse
of any and all restrictions applicable to any Shares issued under an Award. The
Committee may in its sole discretion grant an Award (other than an ISO) or amend
an outstanding Award (other than an ISO) to provide that the Award is
transferable or assignable to a member or members of the Participant’s
“immediate family,” as such term is defined under Exchange Act Rule 16a-l(e), or
to a trust for the benefit solely of a member or members of the Participant’s
immediate family, or to a partnership or other entity whose only owners are
members of the Participant’s family; provided that following any such transfer
or assignment the Award will remain subject to substantially the same terms
applicable to the Award while held by the Participant, as modified as the
Committee in its sole discretion shall determine appropriate, and the
Participant shall execute an agreement agreeing to be bound by such
terms.

      


      17.9           Termination of Employment or
Service.  Unless otherwise provided in the Agreement pertaining
to an Award, in the event that a Participant terminates his employment or
service with the Company and its Subsidiaries for any reason, then the unvested
portion of such Award shall automatically be forfeited to, and be acquired at no
cost by, the Company. Unless otherwise provided in the Agreement pertaining to
an Award, in determining cessation of employment or service, transfers between
the Company and/or any Subsidiary shall be disregarded, and changes in status
between that of a Member, a Non-Employee Service Provider and a Non-Employee
Director shall be disregarded. The Committee may provide in an Agreement made
under the Plan for vesting of Awards in connection with the termination of a
Participant’s employment or service on such basis as it deems appropriate,
including, without limitation, any provisions for vesting at death, disability,
retirement or in connection with a Change in Control with or without the further
consent of the Committee. The Agreements evidencing Awards may contain such
provisions as the Committee may approve with reference to the effect of approved
leaves of absence.


      
        
           


        

        
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      17.10                      Registration and Other Laws And
Regulations.  The Plan, the grant and exercise of Awards
hereunder, and the obligation of the Company to sell, issue or deliver Shares
under such Awards, shall be subject to all applicable federal, state and foreign
laws, rules and regulations and to such approvals by any governmental or
regulatory agency as may be required. The Company shall not be required to
register in a Participant’s name or deliver any Shares prior to the completion
of any registration or qualification of such Shares under any federal, state or
foreign law or any ruling or regulation of any government body which the
Committee shall, in its sole discretion, determine to be necessary or
advisable.

      


      No Option shall be exercisable unless a
registration statement with respect to the Option is effective or the Company
has determined that such registration is unnecessary. Unless the Awards and
Shares covered by the Plan have been registered under the Securities Act of
1933, as amended, or the Company has determined that such registration is
unnecessary, each person receiving an Award and/or Shares pursuant to any Award
may be required by the Company to give a representation in writing that such
person is acquiring such Shares for his or her own account for investment and
not with a view to, or for sale in connection with, the distribution of any
party thereof.

      


      17.11                      Beneficiary
Designation.  Each Participant shall have the right to notify
the Committee in writing in a form acceptable to the Committee of any
designation of a successor in interest (a “Beneficiary”) to receive, if alive,
benefits under the Plan or, if permitted by the Committee, with respect to any
Award in the event of his death. Such designation may be changed from time to
time by notice in writing to the Committee in a form acceptable to the
Committee. If a Participant dies without having designated a Beneficiary, or if
the Beneficiary so designated has predeceased the Participant or cannot be
located by the Committee within one year after the date when the Committee
commenced making a reasonable effort to locate such Beneficiary, then the
executor or the administrator of the Participant’s estate shall be deemed to be
his Beneficiary. Any Beneficiary designation may include multiple, contingent or
successive Beneficiaries and may specify the proportionate distribution to each
Beneficiary. If a Beneficiary shall survive the Participant, but shall die
before the entire benefit payable to such Beneficiary has been distributed, then
absent any other provision by the Participant, the unpaid amount of such benefit
shall be distributed to the estate of the deceased Beneficiary. If multiple
Beneficiaries are designated, absent provisions by the Participant, those named
or the survivors of them shall share equally any benefits payable under the
Plan. Any Beneficiary, including the Participant’s spouse, shall be entitled to
disclaim any benefit otherwise payable to him under the Plan.

      


      17.12                      Nonqualified Deferred Compensation
Plan Omnibus Provision.  It is intended that any compensation,
benefits or other remuneration which is provided pursuant to or in connection
with the Plan which is considered to be nonqualified deferred compensation
subject to Section 409A of the Code shall be provided and paid in a manner, and
at such time and in such form, as complies with the applicable requirements of
Section 409A of the Code to avoid the unfavorable tax consequences provided
therein for non-compliance. For purposes of
Sections 4.4, 6.5, 7.3, and 8.5 and Articles XII, XIII, and XIV, actions taken
by the Board or the Committee, as applicable, shall be undertaken in a manner
that either (a) will not negatively affect the status of any compensation,
benefits or other remuneration intended to be excepted from treatment
as


      
        
           


        

        
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      deferred compensation subject to Section 409A of the
Code, or (b) will otherwise comply with Section 409A of the
Code.  The Committee is authorized to amend any Agreement and
to amend or declare void any election by a Participant as may be determined by
it to be necessary or appropriate to evidence or further evidence required
compliance with Section 409A of the Code.

      


                 For purposes of this Plan and the Agreements, unless
otherwise provided in the Agreement, where the Agreement provides nonqualified
deferred compensation subject to Section 409A of the Code, termination of
employment or service will be read to mean a “separation from service” within
the meaning of Section 409A of the Code where it is reasonably anticipated that
no further services would be performed after that date or that the level of bona
fide services Participant would perform after that date (whether as an employee
or independent contractor) would permanently decrease to no more than 20 percent
of the average level of bona fide services performed over the immediately
preceding thirty-six (36)-month period (or if less, the period of the
Participant’s employment or service).

      


                 Where an Agreement provides nonqualified deferred
compensation subject to Section 409A of the Code, payments or settlement in
connection with a separation from service payment event will be delayed, to the
extent applicable, until six months after the separation from service or, if
earlier, the Participant’s death, if the Participant is a key employee of a
publicly traded corporation under Section 409A(a)(2)(B)(i) of the Code (the
“409A Deferral Period”).  In the event such payments are otherwise due
to be made in installments or periodically during the 409A Deferral Period, the
payment or settlement which would otherwise have been made in the 409A Deferral
Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral
Period ends, and the balance of the payments shall be made as otherwise
scheduled.  

      


                 Where an Agreement provides or may provide nonqualified
deferred compensation subject to Section 409A of the Code, no elective deferral
of payment or settlement of the Award to which the Agreement relates shall be
permitted unless the election deferral provisions therefore are set out in the
Agreement or in another written document authorized by the Committee in
accordance with the election requirements of Section 409A of the
Code.


      
        
           


        

        
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