Exhibit
10.3


 


BALTIC
TRADING LIMITED


2010
EQUITY INCENTIVE PLAN


 


(as adopted
effective                   ,
2010)


 


ARTICLE I


General


 


1.1          Purpose


 


The Baltic Trading Limited 2010 Equity Incentive Plan
(the “Plan”) is designed to provide certain key persons, on whose initiative
and efforts the successful conduct of the business of Baltic Trading Limited
(the “Company”) depends, with incentives to: (a) enter into and remain in
the service of the Company (b) acquire a proprietary interest in the
success of the Company, (c) maximize their performance and (d) enhance
the long-term performance of the Company.


 


1.2          Administration


 


(a)           Administration
by Board of Directors.  The Plan shall be administered by the Company’s
Board of Directors (the “Administrator”).  The Administrator shall have
the authority (i) to exercise all of the powers granted to it under the
Plan, (ii) to construe, interpret and implement the Plan and any Award
Agreements executed pursuant to Section 2.1 in its sole discretion with
all such determination being final, binding and conclusive, (iii) to
prescribe, amend and rescind rules and regulations relating to the Plan,
including rules governing its own operations, (iv) to make all
determinations necessary or advisable in administering the Plan, and (v) to
correct any defect, supply any omission and reconcile any inconsistency in the
Plan.


 


(b)           Administrator
Action.  Actions of the Administrator shall be taken by the vote of a
majority of its members.  Any action may be taken by a written instrument
signed by a majority of the Administrator members, and action so taken shall be
fully as effective as if it had been taken by a vote at a meeting.


 


(c)           Delegation.  Except to the extent prohibited by applicable
law or the applicable rules of a stock exchange, the Administrator may
allocate all or any portion of its responsibilities and powers to any one or
more of its members and may delegate all or any part of its responsibilities to
any person or persons selected by it, and may revoke any such allocation or
delegation at any time.  Specifically,
the Board of Directors may delegate to one or more officers of the Company the
authority to designate the individuals (other than such officer(s)), who will
receive awards under the Plan and the size of each such grant, to the fullest
extent permitted by applicable law, provided that the Committee shall itself
grant awards to those individuals who could reasonably be considered to be
subject to the insider trading provisions of Section 16 of the Securities
Exchange Act of 1934 (the “1934 Act”).


 


(d)           Deemed
Delegation to Committee.  To the
extent permitted by law, the Board of Directors shall be deemed to have
delegated its all of its responsibilities and powers under the Plan, other than
the authority to amend or terminate the Plan, to the Compensation Committee of
the Board of Directors or such other committee or subcommittee as the Board of
Directors may designate or as shall be formed by the abstention or recusal of a
non-Qualified Member (as defined below) of such committee (the “Committee”).  The members of the Committee shall be
appointed by, and serve at the pleasure of, the Board of Directors.  While it is intended that at all times that
the Committee acts in connection with the Plan, the Committee shall consist
solely of Qualified Members, the number of whom shall not be less than two, the
fact that the Committee is not so comprised will not invalidate any grant
hereunder that otherwise satisfies the terms of the Plan.  For purposes of the foregoing, a “Qualified
Member” is a “non-employee director” within the meaning of Rule 16b-3 (“Rule 16b-3”)
promulgated under the 1934 Act.  In any
circumstance that the Board of Directors elects to act as the Administrator or
to delegate its responsibilities and powers to another person or persons other
than the Committee, the deemed delegation shall not apply.


 

















 


1.3          Persons Eligible for
Awards


 


The persons eligible to
receive awards under the Plan are those officers, directors, and executive,
managerial, administrative and professional employees of and consultants to (i) the
Company, its subsidiaries and joint ventures or (ii) Genco Shipping &
Trading Limited (“Genco”), its subsidiaries and joint ventures, (collectively, “key
persons”) as the Administrator in its sole discretion shall select, taking into
account the duties of the respective employees, their present and potential
contributions to the success of the Company, and such other factors as the
Administrator shall deem relevant in connection with accomplishing the purpose
of the Plan.  The Administrator may from time to time, in its sole
discretion, determine that any key person shall be ineligible to receive awards
under the Plan.  Key persons of Genco
only are eligible to be granted awards as such at such time as Genco continues
to own at least 10% of the aggregate number of outstanding shares of Common
Stock and Class B Stock of the Company.


 


1.4          Types of Awards Under Plan


 


Awards may be made under
the Plan in the form of (a) incentive stock options, (b) non-qualified
stock options, (c) stock appreciation rights, (d) dividend equivalent
rights, (e) restricted stock, (f) unrestricted stock, (g) restricted
stock units, and (h) performance shares, all as more fully set forth in Article II. 
The term “award” means any of the foregoing.  No incentive stock option
may be granted to a person who is not an employee of the Company or a parent or
subsidiary (within the meaning of section 424 of the Code) of the Company on
the date of grant.  Notwithstanding any provision of the Plan, to the
extent any Award would be subject to Section 409A of  the Internal Revenue Code of 1986 (the “Code”),
no such Award may be granted if it would fail to comply with the requirements
set forth in Section 409A of the Code.


 


1.5          Shares Available for
Awards


 


(a)           Subject
to adjustment as provided in Section 3.7(a), awards may at any time be
granted under the Plan with respect to an aggregate of 2,000,000 shares of
common stock of the Company (“Common Stock”).


 


(b)           Shares
issued pursuant to the Plan shall be authorized but unissued Common
Stock.  The Administrator may direct that any stock certificate evidencing
shares issued pursuant to the Plan shall bear a legend setting forth such
restrictions on transferability as may apply to such shares.


 


(c)           Certain
Shares to Become Available Again.  The following shares of Common
Stock shall again become available for awards under the Plan: any shares that
are subject to an award under the Plan and that remain unissued upon the
cancellation or termination of such award for any reason whatsoever; any shares
of restricted stock forfeited pursuant to Section 2.7(e), provided that
any dividends paid on such shares are also forfeited pursuant to such Section 2.7(e);
and any shares in respect of which a stock appreciation right or performance
share award is settled for cash.


 


(d)           Individual
Limit.  Except for the limits set forth in this Section 1.5(d) and
2.2(i), no provision of this Plan shall be deemed to limit the number or value
of shares with respect to which the Administrator may make awards to any
eligible person.  Subject to adjustment as provided in Section 3.7(a),
awards may not be granted to any one employee of the Company during any one
calendar year with respect to more than 800,000 shares of Common Stock. 
Stock options and stock appreciation rights granted and subsequently canceled
or deemed to be canceled in a calendar year count against this limit even after
their cancellation.  The provisions of this Section 1.5(d) shall
not apply in any circumstance with respect to which the Administrator in its
sole discretion determines that compliance with Section 162(m) of the
Code is not necessary.


 


1.6          Definitions of Certain
Terms


 


(a)           The
term “applicable company” shall mean any of the Company, Genco, their subsidiaries
or joint ventures, as indicated by the context.


 


(b)           The
term “cause” in connection with a termination of employment for cause shall
mean:


 


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(i)            to the
extent that there is an employment, severance or other agreement governing the
relationship between the grantee and the applicable company, which agreement
contains a definition of “cause,” cause shall consist of those acts or
omissions that would constitute “cause” under such agreement; and otherwise,


 


(ii)           the
grantee’s termination of employment by the applicable company or an affiliate
on account of any one or more of the following:


 


(A)          any failure
by the grantee substantially to perform the grantee’s duties;


 


(B)           any
excessive unauthorized absenteeism by the grantee;


 


(C)           any
refusal by the grantee to obey the lawful orders of the Board or any other
person or Administrator to whom the grantee reports;


 


(D)          any act or
omission by the grantee that is or may be injurious to the applicable company,
monetarily or otherwise;


 


(E)           any act by
the grantee that is inconsistent with the best interests of the applicable
company;


 


(F)           the
grantee’s material violation of any of the applicable company’s policies,
including, without limitation, those policies relating to discrimination or
sexual harassment;


 


(G)           the
grantee’s unauthorized (a) removal from the premises of the applicable
company or an affiliate of any document (in any medium or form) relating to the
applicable company or an affiliate or the customers or clients of the applicable
company or an affiliate or (b) disclosure to any person or entity of any
of the applicable company’s, or its affiliates’ confidential or proprietary
information;


 


(H)          the grantee’s
commission of any felony, or any other crime involving moral turpitude; and


 


(I)            the
grantee’s commission of any act involving dishonesty or fraud.


 


Any rights the Company
may have hereunder in respect of the events giving rise to cause shall be in
addition to the rights an applicable company may have under any other agreement
with a grantee or at law or in equity.  Any determination of whether a
grantee’s employment or board membership is (or is deemed to have been)
terminated for cause shall be made by the Administrator in its sole discretion,
which determination shall be final, binding and conclusive on all
parties.  If, subsequent to a grantee’s voluntary termination of
employment or involuntary termination of employment without cause, it is
discovered that the grantee’s employment could have been terminated for cause,
the Administrator may deem such grantee’s employment or Board membership to
have been terminated for cause.  A grantee’s termination of employment or board
membership for cause shall be effective as of the date of the occurrence of the
event giving rise to cause, regardless of when the determination of cause is
made.


 


(c)           The
term “Code” means the Internal Revenue Code of 1986, as amended.


 


(d)           The
term “employment” shall be deemed to mean an employee’s employment with, or a
consultant’s or advisor’s provision of services to, any applicable company and
each board member’s service as a board member of any applicable company.


 


(e)           The
“Fair Market Value” of a share of Common Stock on any day shall be the closing
price on the New York Stock Exchange as reported for such day in The Wall
Street Journal or, if no such price is reported for such day, the average of
the high bid and low asked price of Common Stock as reported for such
day.  If no 


 


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quotation is made
for the applicable day, the Fair Market Value of a share of Common Stock on
such day shall be determined in the manner set forth in the preceding sentence
using quotations for the next preceding day for which there were quotations,
provided that such quotations shall have been made within the ten (10) business
days preceding the applicable day.  Notwithstanding the foregoing, if
deemed necessary or appropriate by the Administrator in its sole discretion,
the Fair Market Value of a share of Common Stock on any day shall be determined
by the Administrator.  In no event shall the Fair Market Value of any
share of Common Stock be less than its par value.


 


(f)            The
term “incentive stock option” means an option that is intended to qualify for
special federal income tax treatment pursuant to sections 421 and 422 of the
Code as now constituted or subsequently amended, or pursuant to a successor
provision of the Code, and which is so designated in the applicable Award
Agreement.  Any option that is not an incentive stock option is referred
to herein as a “non-qualified stock option.” 
Any option that is not specifically designated as an incentive stock
option shall be a non-qualified stock option.


 


(g)           A
grantee shall be deemed to have terminated employment upon (i) the date
the grantee ceases to be employed by, or to provide consulting or advisory
services for, an applicable company or any entity that assumes the grantee’s
option; or (ii) the date the grantee ceases to be a member of the Board of
Directors of an applicable company; provided, however, that in the case of a
grantee (x) who is, at the time of reference, both an employee or
consultant or advisor and a board member, or (y) who ceases to be engaged
as an employee, consultant, advisor or board member and immediately is engaged
in another of such relationships with an applicable company, the grantee shall
be deemed to have terminated employment upon the later of the dates determined
pursuant to clauses (i) and (ii) of this Section 1.6(g).  For purposes of clause (i) of this Section 1.6(g),
a grantee who continues his or her employment, consulting or advisory
relationship with:  (A) an
applicable company that is a direct or indirect subsidiary of the Company or
Genco subsequent to its sale by the Company or Genco, (B) an applicable
company that is a joint venture of the Company or Genco or any of their
respective subsidiaries subsequent to the sale by the Company or Genco or any
of their respective subsidiaries of its interests in such joint venture or (C) Genco
or its subsidiaries or joint ventures other than the Company or subsidiaries or
joint ventures of the Company after Genco ceases to own at least 10% of the
outstanding shares of Common Stock and Class B Stock of the Company, shall
have a termination of employment upon the date of such sale or the date Genco
ceases to own such percentage of shares unless such grantee has some other
employment with an applicable company that is not terminated as described in
this paragraph.  The Administrator may in
its sole discretion determine whether any leave of absence constitutes a
termination of employment for purposes of the Plan and the impact, if any, of
any such leave of absence on options theretofore made under the Plan.


 


ARTICLE II


Awards
Under The Plan


 


2.1          Agreements Evidencing
Awards


 


Each award granted under
the Plan (except an award of unrestricted stock) shall be evidenced by a
written agreement (“Award Agreement”) which shall contain such provisions as
the Administrator may, in its sole discretion, deem necessary or
desirable.  By executing an Award Agreement pursuant to the Plan, a
grantee thereby agrees that the award shall be subject to all of the terms and
provisions of the Plan and the applicable Award Agreement.


 


2.2          Grant of Stock Options,
Stock Appreciation Rights, Restricted Stock Units and Dividend Equivalent
Rights


 


(a)           Stock
Option Grants.  The Administrator may grant incentive stock options
and non-qualified stock options (“options”) to purchase shares of Common Stock
from the Company, to such key persons, and in such amounts and subject to such
vesting and forfeiture provisions and other terms and conditions, as the
Administrator shall determine, in its sole discretion, subject to the
provisions of the Plan.


 


(b)           Stock
Appreciation Right Grants; Types of Stock Appreciation Rights.  The
Administrator may grant stock appreciation rights to such key persons, and in
such amounts and subject to such vesting and forfeiture provisions and other
terms and conditions, as the Administrator shall determine, in its sole
discretion, subject to the provisions of the Plan.  Stock appreciation
rights may be granted in connection with all or any part of, or 


 


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independently of,
any option granted under the Plan.  A stock appreciation right granted in
connection with an option may be granted at or after the time of grant of such
option.


 


(c)           Nature
of Stock Appreciation Rights.  The grantee of a stock appreciation
right shall have the right, subject to the terms of the Plan and the applicable
Award Agreement, to receive from the Company an amount equal to (i) the
excess of the Fair Market Value of a share of Common Stock on the date of
exercise of the stock appreciation right over the Fair Market Value of a share
of Common Stock on the date of grant (or over the option exercise price if the
stock appreciation right is granted in connection with an option), multiplied
by (ii) the number of shares with respect to which the stock appreciation
right is exercised.  Payment upon exercise of a stock appreciation right
shall be in cash or in shares of Common Stock (valued at their Fair Market
Value on the date of exercise of the stock appreciation right) or both, all as
the Administrator shall determine in its sole discretion.  Upon the
exercise of a stock appreciation right granted in connection with an option,
the number of shares subject to the option shall be reduced by the number of
shares with respect to which the stock appreciation right is exercised. 
Upon the exercise of an option in connection with which a stock appreciation
right has been granted, the number of shares subject to the stock appreciation
right shall be reduced by the number of shares with respect to which the option
is exercised.


 


(d)           Option
Exercise Price.  Each Award Agreement with respect to an option shall
set forth the amount (the “option exercise price”) payable by the grantee to
the Company upon exercise of the option evidenced thereby.  The option
exercise price per share shall be determined by the Administrator in its sole
discretion; provided, however, that the option exercise price of an incentive
stock option shall be at least 100% of the Fair Market Value of a share of
Common Stock on the date the option is granted, and provided further that in no
event shall the option exercise price be less than the par value of a share of
Common Stock.


 


(e)           Exercise
Period.  Each Award Agreement with respect to an option or stock
appreciation right shall set forth the periods during which the award evidenced
thereby shall be exercisable, whether in whole or in part.  Such periods
shall be determined by the Administrator in its sole discretion; provided,
however, that no option or a stock appreciation right shall be exercisable more
than 10 years after the date of grant.  (See Section 2.3 for additional
provisions relating to the exercise of options and stock appreciation rights.)  The terms of a stock appreciation right may
provide that it shall be automatically exercised for a cash payment upon the
happening of a specified event that is outside the control of the grantee, and
that it shall not be otherwise exercisable.


 


(f)            Reload
Options.  The Administrator may, in its sole discretion, include in
any Award Agreement with respect to an option (the “original option”) a
provision that an additional option (the “reload option”) shall be granted to
any grantee who, pursuant to Section 2.3(e)(ii), delivers shares of Common
Stock in partial or full payment of the exercise price of the original option. 
The reload option shall be for a number of shares of Common Stock equal to the
number thus delivered, shall have an exercise price equal to the Fair Market
Value of a share of Common Stock on the date of exercise of the original
option, and shall have an expiration date no later than the expiration date of
the original option.  In the event that a Award Agreement provides for the
grant of a reload option, such Agreement shall also provide that the exercise
price of the original option be no less than the Fair Market Value of a share
of Common Stock on its date of grant, and that any shares that are delivered
pursuant to Section 2.3 (e) (ii) in payment of such exercise
price shall have been held for at least six months.


 


(g)           Dividend
Equivalent Rights.  The Administrator may, in its sole discretion,
include in any Award Agreement with respect to an option, stock appreciation
right or performance shares, a dividend equivalent right entitling the grantee
to receive amounts equal to the ordinary dividends that would be paid, during
the time such award is outstanding and unexercised, on the shares of Common
Stock covered by such award if such shares were then outstanding.  In the
event such a provision is included in a Award Agreement, the Administrator
shall determine in its sole discretion whether such payments shall be made in
cash or in shares of Common Stock, whether they shall be conditioned upon the
exercise of the award to which they relate, the time or times at which they
shall be made, and such other vesting and forfeiture provisions and other terms
and conditions as the Administrator shall deem appropriate.


 


(h)           Incentive
Stock Option Limitation: Exercisability.  To the extent that the
aggregate Fair Market Value (determined as of the time the option is granted)
of the stock with respect to which incentive stock options are first
exercisable by any employee during any calendar year shall exceed $100,000, or
such higher amount as may be 


 


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permitted from
time to time under section 422 of the Code, such options shall be treated
as non-qualified stock options.


 


(i)            Incentive
Stock Option Limitation: 10% Owners.  Notwithstanding the provisions
of paragraphs (d) and (e) of this Section 2.2, an incentive stock
option may not be granted under the Plan to an individual who, at the time the
option is granted, owns stock possessing more than 10% of the total combined
voting power of all classes of stock of his employer corporation or of its
parent or subsidiary corporations (as such ownership may be determined for
purposes of section 422(b) (6) of the Code) unless (i) at
the time such incentive stock option is granted the option exercise price is at
least 110% of the Fair Market Value of the shares subject thereto and (ii) the
incentive stock option by its terms is not exercisable after the expiration of
5 years from the date it is granted.


 


2.3          Exercise of Options and
Stock Appreciation Rights


 


Subject
to the other provisions of this Article II, each option and stock
appreciation right granted under the Plan shall be exercisable as follows:


 


(a)           Timing
and Extent of Exercise.  Options and stock appreciation rights shall
be exercisable at such times and under such conditions as set forth in the
corresponding Award Agreement, but in no event shall any such award be
exercisable subsequent to the tenth anniversary of the date on which such award
was granted.  Unless the applicable Award Agreement otherwise provides, an
option or stock appreciation right may be exercised from time to time as to all
or part of the shares or units as to which such award is then
exercisable.  A stock appreciation right granted in connection with an
option may be exercised at any time when, and to the same extent that, the
related option may be exercised.


 


(b)           Notice
of Exercise.  An option or stock appreciation right shall be exercised
by the filing of a written notice with the Company or the Company’s designated
exchange agent (the “exchange agent”), on such form and in such manner as the
Administrator shall in its sole discretion prescribe.


 


(c)           Payment
of Exercise Price.  Any written notice of exercise of an option shall
be accompanied by payment for the shares being purchased.  Such payment
shall be made: (i) by certified or official bank check (or the equivalent
thereof acceptable to the Company or its exchange agent) for the full option
exercise price; or (ii) with the consent of the Administrator, by delivery
of shares of Common Stock having a Fair Market Value (determined as of the
exercise date) equal to all or part of the option exercise price and a
certified or official bank check (or the equivalent thereof acceptable to the
Company or its exchange agent) for any remaining portion of the full option
exercise price; or (iii) at the sole discretion of the Administrator and
to the extent permitted by law, by such other provision, consistent with the
terms of the Plan, as the Administrator may from time to time prescribe
(whether directly or indirectly through the exchange agent).


 


(d)           Delivery
of Certificates Upon Exercise.  Subject to the provision of sections 2.3(e) and
3.2, promptly after receiving payment of the full option exercise price, or
after receiving notice of the exercise of a stock appreciation right for which
payment will be made partly or entirely in shares, the Company or its exchange
agent shall deliver to the grantee or to such other person as may then have the
right to exercise the award, a certificate or certificates for the shares of
Common Stock for which the award has been exercised.  If the method of
payment employed upon option exercise so requires, and if applicable law
permits, an optionee may direct the Company, or its exchange agent as the case
may be, to deliver the stock certificate(s) to the optionee’s stockbroker.


 


(e)           Investment
Purpose and Legal Requirements.  Notwithstanding the foregoing, at the
time of the exercise of any option, the Company may, if it shall deem it
necessary or advisable for any reason, require the optionee (i) to
represent in writing to the Company that it is the optionee’s then intention to
acquire the Shares with respect to which the option is to be exercised for
investment and not with a view to the distribution thereof, or (ii) to
postpone the date of exercise until such time as the Company has available for
delivery to the optionee a prospectus meeting the requirements of all
applicable securities laws; and no shares shall be issued or transferred upon
the exercise of any option unless and until all legal requirements applicable
to the issuance or transfer of such Shares have been complied with to the
satisfaction of the Company.  The Company shall have the right to
condition any issuance of shares to any optionee hereunder on such optionee’s
undertaking in writing to comply with such restrictions on the subsequent
transfer of such shares as the Company shall deem necessary or advisable as a
result 


 


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of any applicable
law, regulation or official interpretation thereof, and certificates
representing such shares may contain a legend to reflect any such restrictions.


 


(f)            No
Stockholder Rights.  No grantee of an option or stock appreciation
right (or other person having the right to exercise such award) shall have any
of the rights of a stockholder of the Company with respect to shares subject to
such award until the issuance of a stock certificate to such person for such
shares.  Except as otherwise provided in Section 1.5(c), no
adjustment shall be made for dividends, distributions or other rights (whether
ordinary or extraordinary, and whether in cash, securities or other property)
for which the record date is prior to the date such stock certificate is
issued.


 


2.4          Compensation in Lieu of
Exercise of an Option


 


Upon written application
of the grantee of an option, the Administrator may in its sole discretion
determine to substitute, for the exercise of such option, compensation to the
grantee not in excess of the difference between the option exercise price and
the Fair Market Value of the shares covered by such written application on the
date of such application.  Such compensation may be in cash, in shares of
Common Stock, or both, and the payment thereof may be subject to conditions,
all as the Administrator shall determine in its sole discretion.  In the
event compensation is substituted pursuant to this Section 2.4 for the
exercise, in whole or in part, of an option, the number of shares subject to
the option shall be reduced by the number of shares for which such compensation
is substituted.


 


2.5          Termination of Employment;
Death Subsequent to a Termination of Employment


 


(a)           General
Rule.  Except to the extent otherwise provided in paragraphs (b), (c),
(d) or (e) of this Section 2.5 or in Section 3.8(b)(iii) or
by the Administrator in the Award Agreement or otherwise, a grantee who incurs
a termination of employment may exercise any outstanding option or stock
appreciation right on the following terms and conditions: (i) exercise may
be made only to the extent that the grantee was entitled to exercise the award
on the termination of employment date; and (ii) exercise must occur within
three months after termination of employment but in no event after the original
expiration date of the award.


 


(b)           Dismissal
for Cause; Resignation.  If a grantee’s employment is terminated for
cause or a grantee resigns without the Company’s prior consent, as applicable,
all options and stock appreciation rights not theretofore exercised shall
terminate upon the grantee’s termination of employment.


 


(c)           Retirement. 
If a grantee terminates employment as the result of his retirement, then any
outstanding option or stock appreciation right shall be exercisable pursuant to
its terms.  For this purpose “retirement” shall mean a grantee’s
termination of employment, under circumstances other than for cause, on or
after: (x) his 65th birthday, (y) the date on which he has attained
age 60 and completed at least five years of service with the Company, as
applicable, (using any method of calculation the Administrator deems
appropriate) or (z) if approved by the Administrator, on or after he has
completed at least 20 years of service.


 


(d)           Disability. 
If a grantee’s employment terminates by reason of a disability (as defined
below), then any outstanding option or stock appreciation right shall be
exercisable pursuant to its terms.  For this purpose “disability” shall
mean any physical or mental condition that would qualify a grantee for a
disability benefit under the long-term disability plan maintained by the
Company, and if there is no such plan, a physical or mental condition that
prevents the grantee from performing the essential functions of the grantee’s
position (with or without reasonable accommodation) for a period of six
consecutive months.  The existence of a disability shall be determined by
the Administrator in its sole discretion.


 


(e)           Death.


 


(i)            Termination
of Employment as a Result of Grantee’s Death.  If a grantee’s
employment terminates due to his death, then any outstanding option or stock
appreciation right shall be exercisable pursuant to its terms.


 


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(ii)           Restrictions
on Exercise Following Death.  Any such exercise of an award following
a grantee’s death shall be made only by the grantee’s executor or administrator
or other duly appointed representative reasonably acceptable to the
Administrator, unless the grantee’s will specifically disposes of such award,
in which case such exercise shall be made only by the recipient of such
specific disposition.  If a grantee’s personal representative or the
recipient of a specific disposition under the grantee’s will shall be entitled
to exercise any award pursuant to the preceding sentence, such representative
or recipient shall be bound by all the terms and conditions of the Plan and the
applicable Award Agreement which would have applied to the grantee including,
without limitation, the provisions of Sections 3.2 and 3.5 hereof.


 


(f)            Special
Rules for Incentive Stock Options.  An option may not be treated
as an incentive stock option to the extent that it remains exercisable for more
than three months following a grantee’s termination of employment for any
reason other than death or disability, or for more than one year following a
grantee’s termination of employment as the result of his becoming disabled.


 


2.6          Transferability of Options
and Stock Appreciation Rights


 


Except as otherwise
provided in an applicable Award Agreement evidencing an option or stock
appreciation right, during the lifetime of a grantee, each option or stock
appreciation right granted to a grantee shall be exercisable only by the
grantee and no option or stock appreciation right shall be assignable or
transferable otherwise than by will or by the laws of descent and
distribution.  The Administrator may, in any applicable Award Agreement
evidencing an option (other than an incentive stock option to the extent
inconsistent with the requirements of section 422 of the Code applicable
to incentive stock options) or a stock appreciation right, permit a grantee to
transfer all or some of the options or stock appreciation rights, as
applicable, to (A) the grantee’s spouse, children or grandchildren (“Immediate
Family Members”), (B) a trust or trusts for the exclusive benefit of such
Immediate Family Members, or (C) other parties approved by the
Administrator in its sole discretion.  Following any such transfer, any
transferred options and stock appreciation rights shall continue to be subject
to the same terms and conditions as were applicable immediately prior to the
transfer.


 


2.7          Grant of Restricted Stock


 


(a)           Restricted
Stock Grants.  The Administrator may grant restricted shares of Common
Stock to such key persons, in such amounts, and subject to such vesting and
forfeiture provisions and other terms and conditions as the Administrator shall
determine in its sole discretion, subject to the provisions of the Plan. 
Restricted stock awards may be made independently of or in connection with any
other award under the Plan.  A grantee of a restricted stock award shall
have no rights with respect to such award unless such grantee accepts the award
within such period as the Administrator shall specify by accepting delivery of an
Award Agreement in such form as the Administrator shall determine and, in the
event the restricted shares are newly issued by the Company, makes payment to
the Company or its exchange agent as required by the Administrator and in
accordance with the Marshall Islands Business Corporations Act.


 


(b)           Issuance
of Stock Certificate(s).  Promptly after a grantee accepts a
restricted stock award, the Company or its exchange agent shall issue to the
grantee a stock certificate or stock certificates for the shares of Common
Stock covered by the award or shall establish an account evidencing ownership
of the stock in uncertificated form.  Upon the issuance of such stock
certificate(s), or establishment of such account, the grantee shall have the
rights of a stockholder with respect to the restricted stock, subject to: (i) the
nontransferability restrictions and forfeiture provision described in
paragraphs (d) and (e) of this Section 2.7; (ii) in the
Administrator’s sole discretion, a requirement that any dividends paid on such
shares shall be held in escrow until all such shares have vested; and (iii) any
other restrictions and conditions contained in the applicable Award Agreement.


 


(c)           Custody
of Stock Certificate(s).  Unless the Administrator shall otherwise
determine in its sole discretion, any stock certificates issued evidencing
shares of restricted stock shall remain in the possession of the Company until
such shares are free of any restrictions specified in the applicable Award
Agreement.  The Administrator may direct that such stock certificate(s) bear
a legend setting forth the applicable restrictions on transferability.


 


8














 


(d)           Vesting/Nontransferability. 
Until they vest, shares of restricted stock may not be sold, assigned,
transferred, pledged or otherwise encumbered or disposed of except as otherwise
specifically provided in this Plan or the applicable Award Agreement.  The
Administrator at the time of grant shall specify the date or dates (which may
depend upon or be related to the attainment of performance goals and other
conditions) on which the restricted shares shall vest.


 


(e)           Consequence
of Termination of Employment.  Unless the Administrator, in its sole
discretion, determines otherwise, a grantee’s termination of employment for any
reason (including death) shall cause the immediate forfeiture of all shares of
restricted stock that have not yet vested as of the date of such termination of
employment.  All dividends paid on such shares also shall be forfeited,
whether by termination of any escrow arrangement under which such dividends are
held, by the grantee’s repayment of dividends he received directly, or otherwise,
unless the Administrator determines otherwise in its sole discretion.


 


2.8          Grant of Restricted Stock
Units


 


(a)           Restricted
Stock Unit Grants. The Administrator may grant restricted stock units to
such key persons, in such amounts, and subject to such terms and conditions as
the Administrator shall determine in its sole discretion, subject to the
provisions of the Plan. Restricted stock units may be awarded independently of
or in connection with any other award under the Plan. A grantee of a restricted
stock unit award shall have no rights with respect to such award unless such
grantee accepts the award within such period as the Committee shall specify by
accepting delivery of an award agreement in such form as the Committee shall
determine. A grant of a restricted stock unit entitles the grantee to receive a
share of Common Stock or, in the sole discretion of the Administrator, the
value of a share, on the date that such restricted stock unit vests.


 


 


(b)           Vesting/Nontransferability. 
The Administrator shall specify at the time of grant the date or dates (which
may depend upon or be related to a period of continued employment with the
Company, the attainment of performance goals or other conditions or a
combination of such conditions) on which the restricted stock units shall
vest.  Prior to vesting, restricted stock
units may not be sold, assigned, transferred, pledged or otherwise encumbered
or disposed of except as otherwise specifically provided in this Plan or the applicable
Award Agreement.


 


(c)           Consequence
of Termination of Employment. Except as may otherwise be provided by the
Committee at any time prior to a grantee’s termination of employment, a grantee’s
termination of employment for any reason (including death) shall cause the
immediate forfeiture of all restricted stock units that have not yet vested as
of the date of such termination of employment.


 


(d)           Stockholder
Rights.  The grantee of a restricted stock unit will have the rights
of a stockholder only as to shares for which a stock certificate has been
issued pursuant to the award and not with respect to any other shares subject
to the award.


 


2.9          Grant of Unrestricted
Stock


 


The Administrator may
grant (or sell at a purchase price at least equal to par value) shares of
Common Stock free of restrictions under the Plan, to such key persons and in
such amounts and subject to such forfeiture provisions as the Administrator
shall determine in its sole discretion.  Shares may be thus granted or
sold in respect of past services or other valid consideration.


 


2.10        Grant of Performance
Shares


 


(a)           Performance
Share Grants.  The Administrator may grant performance share awards to
such key persons, and in such amounts and subject to such vesting and
forfeiture provisions and other terms and conditions, as the Administrator
shall in its sole discretion determine, subject to the provisions of the
Plan.  Such an award shall entitle the grantee to acquire shares of Common
Stock, or to be paid the value thereof in cash, as the Administrator shall
determine in its sole discretion, if specified performance goals are met. 
Performance shares may be awarded independently of, or in connection with, any
other award under the Plan.  A grantee shall have no rights with respect 


 


9

















 


to a performance
share award unless such grantee accepts the award by accepting delivery of an
Award Agreement at such time and in such form as the Administrator shall
determine in its sole discretion.


 


(b)           Stockholder
Rights.  The grantee of a performance share award will have the rights
of a stockholder only as to shares for which a stock certificate has been
issued pursuant to the award and not with respect to any other shares subject
to the award.


 


(c)           Consequence
of Termination of Employment.  Except as may otherwise be provided by
the Administrator, the rights of a grantee of a performance share award shall
automatically terminate upon the grantee’s termination of employment by the
Company or its subsidiaries for any reason (including death).


 


(d)           Exercise
Procedures; Automatic Exercise.  At the sole discretion of the
Administrator, the applicable Award Agreement may set out the procedures to be
followed in exercising a performance share award or it may provide that such
exercise shall be made automatically after satisfaction of the applicable
performance goals.


 


(e)           Tandem
Grants; Effect on Exercise.  Except as otherwise specified by the
Administrator, (i) a performance share award granted in tandem with an
option may be exercised only while the option is exercisable, (ii) the
exercise of a performance share award granted in tandem with any other award
shall reduce the number of shares subject to such other award in the manner
specified in the applicable Award Agreement, and (iii) the exercise of any
award granted in tandem with a performance share award shall reduce the number
of shares subject to the latter in the manner specified in the applicable Award
Agreement.


 


(f)            Nontransferability. 
Performance shares may not be sold, assigned, transferred, pledged or otherwise
encumbered or disposed of except as otherwise specifically provided in this
Plan or the applicable Award Agreement.  The Administrator at the time of
grant shall specify the date or dates (which may depend upon or be related to the
attainment of performance goals and other conditions) on which the
nontransferability of the performance shares shall lapse.


 


ARTICLE III

Miscellaneous


 


3.1          Amendment of the Plan;
Modification of Awards


 


(a)           Amendment
of the Plan.  The Board of Directors may from time to time suspend,
discontinue, revise or amend the Plan in any respect whatsoever, except that no
such amendment shall materially impair any rights or materially increase any
obligations under any award theretofore made under the Plan without the consent
of the grantee (or, upon the grantee’s death, the person having the right to
exercise the award).  For purposes of this Section 3.1, any action of
the Board of Directors or the Administrator that in any way alters or affects
the tax treatment of any award shall not be considered to materially impair any
rights of any grantee.


 


(b)           Stockholder
Approval Requirement.  Stockholder approval shall be required with
respect to any amendment to the Plan that (i) increases the aggregate
number of shares that may be issued pursuant to incentive stock options or
changes the class of employees eligible to receive such options; or (ii) materially
increases the benefits under the Plan to persons whose transactions in Common
Stock are subject to Section 16(b) of the 1934 Act or increases the
benefits under the Plan or materially increases the number of shares which may
be issued to such persons, or materially modifies the eligibility requirements
affecting such persons.


 


(c)           Modification
of Awards.  The Administrator may cancel any award under the
Plan.  The Administrator also may amend any outstanding Award Agreement,
including, without limitation, by amendment which would: (i) accelerate
the time or times at which the award becomes unrestricted or may be exercised; (ii) waive
or amend any goals, restrictions or conditions set forth in the Agreement; or (iii) waive
or amend the operation of Section 2.5 with respect to the termination of
the award upon termination of employment.  However, any such cancellation
or amendment (other than an amendment pursuant to Sections 3.7 or 3.8(b))
that materially 


 


10

















 


impairs the rights
or materially increases the obligations of a grantee under an outstanding award
shall be made only with the consent of the grantee (or, upon the grantee’s
death, the person having the right to exercise the award).


 


3.2          Consent Requirement


 


(a)           No
Plan Action Without Required Consent.  If the Administrator shall at
any time determine in its sole discretion that any Consent (as hereinafter
defined) is necessary or desirable as a condition of, or in connection with,
the granting of any award under the Plan, the issuance or purchase of shares or
other rights thereunder, or the taking of any other action thereunder (each
such action being hereinafter referred to as a “Plan Action”), then such Plan
Action shall not be taken, in whole or in part, unless and until such Consent
shall have been effected or obtained to the full satisfaction of the
Administrator.


 


(b)           Consent
Defined.  The term “Consent” as used herein with respect to any Plan
Action means (i) any and all listings, registrations or qualifications in
respect thereof upon any securities exchange or under any federal, state or
local law, rule or regulation, (ii) any and all written agreements
and representations by the grantee with respect to the disposition of shares,
or with respect to any other matter, which the Administrator shall deem
necessary or desirable to comply with the terms of any such listing,
registration or qualification or to obtain an exemption from the requirement
that any such listing, qualification or registration be made and (iii) any
and all consents, clearances and approvals in respect of a Plan Action by any
governmental or other regulatory bodies.


 


3.3          Nonassignability


 


Except as
provided in Sections 2.5(e), 2.6, 2.7(d) and 2.9(f):  (a) no award or
right granted to any person under the Plan or under any Award Agreement shall
be assignable or transferable other than by will or by the laws of descent and
distribution; and (b) all rights granted under the Plan or any Award
Agreement shall be exercisable during the life of the grantee only by the
grantee or the grantee’s legal representative.


 


3.4          Requirement of
Notification of Election Under Section 83(b) of the Code


 


If any grantee shall, in
connection with the acquisition of shares of Common Stock under the Plan, make
the election permitted under section 83(b) of the Code (i.e., an
election to include in gross income in the year of transfer the value of
unvested restricted stock), such grantee shall notify the Company of such
election within 10 days of filing notice of the election with the Internal
Revenue Service, in addition to any filing and notification required pursuant
to regulations issued under the authority of Code section 83(b).


 


3.5          Requirement of
Notification Upon Disqualifying Disposition Under Section 421(b) of
the Code


 


Each grantee of an
incentive stock option shall notify the Company of any disposition of shares of
Common Stock issued pursuant to the exercise of such option under the
circumstances described in section 421(b) of the Code (relating to
certain disqualifying dispositions), within 10 days of such disposition.


 


3.6          Withholding Taxes


 


(a)           With
Respect to Cash Payments.  Whenever cash is to be paid pursuant to an
award under the Plan, the Company shall be entitled to deduct therefrom an
amount sufficient in its opinion to satisfy all federal, state and other
governmental tax withholding requirements related to such payment.


 


(b)           With
Respect to Delivery of Common Stock.  Whenever shares of Common Stock
are to be delivered pursuant to an award under the Plan, the Company shall be
entitled to require as a condition of delivery that the grantee remit to the
Company an amount sufficient in the opinion of the Company to satisfy all
federal, state and other governmental tax withholding requirements related
thereto.  With the approval of the Administrator, which the Administrator
shall have sole discretion whether or not to give, the grantee may satisfy the
foregoing condition by electing to have the Company withhold from delivery
shares having a value equal to the amount of tax to be withheld. Such shares
shall be valued at their Fair Market Value as of the date on which the amount
of tax to 


 


11

















 


be withheld is
determined. Fractional share amounts shall be settled in cash.  Such a
withholding election may be made with respect to all or any portion of the
shares to be delivered pursuant to an award.


 


3.7          Adjustment Upon Changes in
Common Stock


 


(a)           Corporate
Events.  In the event of any change
in the number of shares of Common Stock outstanding by reason of any stock
dividend or split, reverse stock split, recapitalization, merger,
consolidation, combination or exchange of shares or similar corporate change
(collectively referred to as “corporate events”), the Administrator shall make
the following adjustments:


 


(i)            Shares
Available for Grants.  The maximum number of shares of Common Stock
with respect to which the Administrator may grant awards under Article II
hereof, as described in Section 1.5(a), and the individual annual limit
described in Section 1.5(e), shall be appropriately adjusted by the
Administrator.  In the event of any change in the number of shares of
Common Stock outstanding by reason of any event or transaction other than a
corporate event, the Administrator may, but need not, adjust the maximum number
of shares of Common Stock with respect to which the Administrator may grant
awards under Article II hereof, as described in Section 1.5(a), and
the individual annual limit described in Section 1.5(e), with respect to
the number and class of shares of Common Stock, in each case as the
Administrator may deem appropriate.


 


(ii)           Restricted
Stock.  Unless the Administrator in its sole discretion otherwise
determines, any securities or other property (including dividends paid in cash)
received by a grantee with respect to a share of restricted stock as a result
of a corporate event, the issue date with respect to which occurs prior to such
event, but which has not vested as of the date of such event, will not vest
until such share of restricted stock vests, and shall be promptly deposited
with the Company or other custodian designated pursuant to Section 2.7(c) hereof.


 


(iii)          Restricted
Stock Units and Performance Shares The Administrator shall adjust
outstanding grants of shares of restricted stock units or performance shares to
reflect any corporate event as the Administrator may deem appropriate to
prevent the enlargement or dilution of rights of grantees.


 


(iv)          Options,
Stock Appreciation Rights and Dividend Equivalent Rights.  Subject
to any required action by the stockholders of the Company, in the event of any
increase or decrease in the number of issued shares of Common Stock resulting
from a corporate event or any other increase or decrease in the number of such
shares effected without receipt of consideration by the Company, the
Administrator shall proportionally adjust the number of shares of Common Stock
subject to each outstanding option and stock appreciation right, the exercise
price-per-share of Common Stock of each such option and stock appreciation
right and the number of any related dividend equivalent rights.


 


(b)           Outstanding
Options, Stock Appreciation Rights, Restricted Stock Units, Performance Shares
and Dividend Equivalent Rights — Certain Mergers.  Subject to any
required action by the stockholders of the Company, in the event that the
Company shall be the surviving corporation in any merger or consolidation
(except a merger or consolidation as a result of which the holders of shares of
Common Stock receive securities of another corporation), each option, stock
appreciation right, restricted stock unit, performance share and dividend
equivalent right outstanding on the date of such merger or consolidation shall
pertain to and apply to the securities which a holder of the number of shares
of Common Stock subject to such option, stock appreciation right, restricted
stock unit, performance share or dividend equivalent right would have received
in such merger or consolidation.


 


(c)           Outstanding
Options, Stock Appreciation Rights, Restricted Stock Units, Performance Shares
and Dividend Equivalent Rights — Certain Other Transactions.  In
the event of (i) a dissolution or liquidation of the Company, (ii) a
sale of all or substantially all of the Company’s assets, (iii) a merger
or consolidation involving the Company in which the Company is not the
surviving corporation or (iv) a merger or consolidation involving the
Company in which the Company is the surviving corporation but the holders of
shares of Common Stock receive 


 


12

















 


securities of
another corporation and/or other property, including cash, the Administrator
shall, in its sole discretion, have the power to:


 


(i)            cancel,
effective immediately prior to the occurrence of such event, each option, stock
appreciation right, restricted stock unit and performance share (including each
dividend equivalent right related thereto) outstanding immediately prior to
such event (whether or not then exercisable), and, in full consideration of
such cancellation, pay to the grantee (A) to whom such option or stock
appreciation right was granted an amount in cash, for each share of Common
Stock subject to such option or stock appreciation right, respectively, equal
to the excess of (x) the value, as determined by the Administrator in its
sole discretion, of the property (including cash) received by the holder of a
share of Common Stock as a result of such event over (y) the exercise
price of such option or stock appreciation right and (B) to whom such
restricted stock unit and performance share was granted, for each share of Common
Stock subject to such award, the value, as determined by the Administrator in
its sole discretion, of the property (including cash) received by the holder of
a share of Common Stock as a result of such event; or


 


(ii)           provide
for the exchange of each option, stock appreciation right, restricted stock
unit and performance share (including any related dividend equivalent right)
outstanding immediately prior to such event (whether or not then exercisable)
for an option on, stock appreciation right, restricted stock unit, performance
share and dividend equivalent right with respect to, as appropriate, some or
all of the property which a holder of the number of shares of Common Stock
subject to such option, stock appreciation right or restricted stock unit would
have received and, incident thereto, make an equitable adjustment as determined
by the Administrator in its sole discretion in the exercise price of the option
or stock appreciation right, or the number of shares or amount of property
subject to the option, stock appreciation right, restricted stock unit,
performance share or dividend equivalent right or, if the Administrator so
determines in its sole discretion, provide for a cash payment to the grantee to
whom such option, stock appreciation right, restricted stock unit or
performance share was granted in partial consideration for the exchange of the
option, stock appreciation right, restricted stock unit or performance share.


 


(d)           Outstanding
Options, Stock Appreciation Rights, Restricted Stock Units, Performance Shares
and Dividend Equivalent Rights — Other Changes.  In the event of any change in the
capitalization of the Company or a corporate change other than those
specifically referred to in Sections 3.7(a), (b) or (c) hereof, the
Administrator may, in its sole discretion, make such adjustments in the number
and class of shares subject to options, stock appreciation rights, restricted
stock units, performance shares and dividend equivalent rights outstanding on
the date on which such change occurs and in the per-share exercise price of
each such option and stock appreciation right as the Administrator may consider
appropriate to prevent dilution or enlargement of rights.  In addition, if and to the extent the
Administrator, in its sole discretion, determines it is appropriate, the
Administrator may elect to cancel each option, stock appreciation right,
restricted stock unit and performance share (including each dividend equivalent
right related thereto) outstanding immediately prior to such event (whether or
not then exercisable), and, in full consideration of such cancellation, pay to
the grantee to whom such award was granted an amount in cash, (A) for each
share of Common Stock subject to such option or stock appreciation right,
respectively, equal to the excess of (i) the Fair Market Value of Common
Stock on the date of such cancellation over (ii) the exercise price of
such option or stock appreciation right (B) for each share of Common Stock
subject to such restricted stock unit or performance share equal to the Fair
Market Value of Common Stock on the date of such cancellation.


 


(e)           No
Other Rights.  Except as expressly provided in the Plan, no grantee
shall have any rights by reason of any subdivision or consolidation of shares
of stock of any class, the payment of any dividend, any increase or decrease in
the number of shares of stock of any class or any dissolution, liquidation,
merger or consolidation of the Company or any other corporation.  Except
as expressly provided in the Plan, no issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any
class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number of shares of Common Stock subject to an award or the
exercise price of any option or stock appreciation right.


 


13

















 


3.8          Change in Control


 


(a)           Change
in Control Defined.  For purposes of this Section 3.8, “Change in
Control” shall mean the occurrence of any of the following:


 


(i)            any
person or “group” (within the meaning of Section 13(d)(3) of the 1934
Act), other than Genco or Peter C. Georgiopoulos acquiring “beneficial
ownership” (as defined in Rule 13d-3 under the 1934 Act), directly or
indirectly, of fifty percent (50%) or more of the aggregate voting power of the
capital stock ordinarily entitled to elect directors of the Company;


 


(ii)           the sale
of all or substantially all of the Company’s assets in one or more related
transactions to a person other than such a sale to a subsidiary of the Company
which does not involve a change in the equity holdings of the Company or to an
entity which Genco or Peter C. Georgiopoulos directly or indirectly controls;
or


 


(iii)          any
merger, consolidation, reorganization or similar event of the Company or any of
its subsidiaries, as a result of which the holders of the voting stock of the
Company immediately prior to such merger, consolidation, reorganization or
similar event do not directly or indirectly hold at least fifty-one percent
(51%) of the aggregate voting power of the capital stock of the surviving
entity.


 


Notwithstanding
the foregoing, for each award subject to Section 409A of the Code, a
Change in Control shall be deemed to occur under this Plan with respect to such
Award only if a change in the ownership or effective control of the Company or
a change in the ownership of a substantial portion of the assets of the Company
shall also be deemed to have occurred under Section 409A of the Code.


 


(b)           Effect
of a Change in Control.  Unless the Administrator provides
otherwise in an Award Agreement, upon the occurrence of a Change in Control:


 


(i)            notwithstanding
any other provision of this Plan, any award then outstanding shall become fully
vested and any award in the form of an option or stock appreciation right shall
be immediately exercisable;


 


(ii)           to the
extent permitted by law, the Administrator may, in its sole discretion, amend
any Award Agreement in such manner as it deems appropriate;


 


(iii)          a
grantee whose employment terminates for any reason, other than for cause,
concurrent with or within one year following the Change in Control, may
exercise any outstanding option or stock appreciation right, but only to the
extent that the grantee was entitled to exercise the award on his termination
of employment date, until the earlier of (A) the original expiration date
of the award and (B) the later of (x) the date provided for under the
terms of Section 2.5 without reference to this Section 3.8(b)(iii) and
(y) the first anniversary of the grantee’s termination of employment.


 


(c)           Miscellaneous. 
Whenever deemed appropriate by the Administrator, any action referred to in
paragraph (b)(ii) of this Section 3.8 may be made conditional upon
the consummation of the applicable Change in Control transaction.


 


3.9          Right of Discharge
Reserved


 


Nothing in the Plan or in
any Award Agreement shall confer upon any grantee the right to continue his
employment with the Company or affect any right that the Company may have to
terminate such employment.


 


14

















 


3.10        Non-Uniform Determinations


 


The Administrator’s
determinations under the Plan need not be uniform and may be made by it
selectively among persons who receive, or who are eligible to receive, awards
under the Plan (whether or not such persons are similarly situated). 
Without limiting the generality of the foregoing, the Administrator shall be
entitled, among other things, to make non-uniform and selective determinations,
and to enter into non-uniform and selective Award Agreements, as to (a) the
persons to receive awards under the Plan, and (b) the terms and provisions
of awards under the Plan.


 


3.11        Other Payments or Awards


 


Nothing contained in the
Plan shall be deemed in any way to limit or restrict the Company from making
any award or payment to any person under any other plan, arrangement or
understanding, whether now existing or hereafter in effect.


 


3.12        Headings


 


Any section, subsection,
paragraph or other subdivision headings contained herein are for the purpose of
convenience only and are not intended to expand, limit or otherwise define the
contents of such subdivisions.


 


3.13        Effective Date and Term of
Plan


 


(a)           Adoption;
Stockholder Approval.  The Plan was adopted by the Board of Directors
and although the Company intends to obtain approval of the Plan by the Company’s
stockholders within the time period required to allow grants of options
hereunder to qualify as incentive stock options, awards under the Plan prior to
such stockholder approval may, but need not, be made subject to such approval.


 


(b)           Termination
of Plan.  Unless sooner terminated by the Board of Directors or
pursuant to Paragraph (a) above, the provisions of the Plan respecting the
grant of incentive stock options shall terminate on the tenth anniversary of
the adoption of the Plan by the Board of Directors, and no incentive stock
option awards shall thereafter be made under the Plan.  All such awards
made under the Plan prior to its termination shall remain in effect until such
awards have been satisfied or terminated in accordance with the terms and
provisions of the Plan and the applicable Award Agreements.


 


3.14        Restriction on Issuance of
Stock Pursuant to Awards


 


The Company shall not
permit any shares of Common Stock to be issued pursuant to Awards granted under
the Plan unless such shares of Common Stock are fully paid and non-assessable
under applicable law.


 


3.15        Governing Law


 


Except to the extent
preempted by any applicable federal law, the Plan will be construed and
administered in accordance with the laws of the State of New York, without
giving effect to principles of conflict of laws.


 


3.16        Compliance with Section 409A
of the Code


 


Notwithstanding anything
to the contrary contained in the Plan or in any Agreement, to the extent that
the Administrator determines that the Plan or any Award is subject to Section 409A
of the Code and fails to comply with the requirements of Section 409A of
the Code, the Administrator reserves the right to amend or terminate the Plan
and/or amend, restructure, terminate or replace the Award in order to cause the
Award to either not be subject to Section 409A of the Code or to comply
with the applicable provisions of such section.


 


15