**Exhibit 10.21****WHEELING-PITTSBURGH CORPORATION****2003 MANAGEMENT STOCK INCENTIVE PLAN****As Amended and Restated Effective March 10, 2006**
 

 
**TABLE OF CONTENTS**       1. Purpose  1        2. Definitions  1        3. Term of the Plan  4        4. Stock Subject to the Plan  4        5. Administration  4        6. Authorization and Eligibility  5        7. Specific Terms of Awards  5        8. Adjustment Provisions  11        9. Settlement of Awards  13        10. Reservation of Stock  15        11. No Special Employment or Other Rights  15        12. Nonexclusivity of the Plan  15        13. Termination and Amendment of the Plan  15        14. Notices and Other Communications  16        15. Governing Law  16 
 

 
**WHEELING-PITTSBURGH CORPORATION****2003 MANAGEMENT STOCK INCENTIVE PLAN****As Amended and Restated Effective March 10, 2006**1. PURPOSEThis Plan is intended to encourage ownership of Common Stock by employees, consultants anddirectors of the Company and its Affiliates and to provide additional incentive for them to promotethe success of the Company’s business. The Plan is intended to be an incentive stock option planwithin the meaning of Section 422 of the Code, but not all Awards are required to be IncentiveOptions. The Plan was originally adopted and effective as of August 1, 2003. The Plan, as amendedand restated, has been approved by the Board to be effective as of March 10, 2006 (the “RestatedEffective Date”).2. DEFINITIONSAs used in this Plan, the following terms shall have the following meanings:     2.1. Accelerate, Accelerated, and Acceleration, when used with respect to an Option, meansthat as of the time of reference the Option will become exercisable with respect to some or all ofthe shares of Common Stock for which it was not then otherwise exercisable by its terms, and, whenused with respect to Restricted Stock or Stock Units, means that the Risk of Forfeiture otherwiseapplicable to the such Awards shall expire with respect to some or all of the shares underlying orotherwise issuable with respect to such Award then still otherwise subject to the Risk ofForfeiture.     2.2. Acquisition means a merger or consolidation of the Company with or into another personor the sale, transfer, or other disposition of all or substantially all of the Company’s assets toone or more other persons in a single transaction or series of related transactions, unlesssecurities possessing more than 50% of the total combined voting power of the survivor’s oracquiror’s outstanding securities (or the securities of any parent thereof) are held by a person orpersons who held securities possessing more than 50% of the total combined voting power of theCompany immediately prior to that transaction.     2.3. Affiliate means any corporation, partnership, limited liability company, business trust,or other entity controlling, controlled by or under common control with the Company.     2.4. Award means any grant or sale pursuant to the Plan of Options, Restricted Stock, StockGrants or Stock Units.     2.5. Award Agreement means an agreement between the Company and the recipient of an Award,setting forth the terms and conditions of the Award.     2.6. Board means the Company’s Board of Directors.
 

 
     2.7. Change of Control means the occurrence of either of the following:(a) any person or group of persons (within the meaning of Section 13(d)(3) of the SecuritiesExchange Act of 1934, as amended and in effect from time to time), other than the Company oran Affiliate, directly or indirectly acquires beneficial ownership (determined pursuant toSecurities and Exchange Commission Rule 13d-3 promulgated under the said Exchange Act) ofsecurities possessing more than 50% of the total combined voting power of the Company’soutstanding securities pursuant to a tender or exchange offer made directly to the Company’sstockholders that the Board does not recommend such stockholders to accept, or(b) over a period of 36 consecutive months or less, there is a change in the composition ofthe Board such that a majority of the Board members (rounded up to the next whole number, ifa fraction) ceases, by reason of one or more proxy contests for the election of Boardmembers, to be composed of individuals who either (A) have been Board members continuouslysince the beginning of that period, or (B) have been elected or nominated for election asBoard members during such period by at least a majority of the Board members described inthe preceding clause (A) who were still in office at the time that election or nominationwas approved by the Board.     2.8. Code means the Internal Revenue Code of 1986, as amended from time to time, or anysuccessor statute thereto, and any regulations issued from time to time thereunder.     2.9. Committee means any committee of the Board delegated responsibility by the Board for theadministration of the Plan, as provided in Section 5 of the Plan. For any period during which nosuch committee is in existence “Committee” shall mean the Board and all authority andresponsibility assigned to the Committee under the Plan shall be exercised, if at all, by theBoard.     2.10. Common Stock or Stock means common stock, par value $0.01 per share, of the Company.     2.11. Company means Wheeling-Pittsburgh Corporation, a corporation organized under the lawsof the State of Delaware.     2.12. Fair Market Value of a share of Common Stock as of a particular date (the“Determination Date”) means:(a) If the principal trading market for the Common Stock is a securities exchange or TheNasdaq National Market, the average of the closing prices of the Common Stock as reported onsuch exchange or The Nasdaq National Market, as applicable, for each of the five (5)business days immediately preceding the Determination Date; or(b) If the Common Stock is principally traded over-the-counter, the average of the closingbid prices for each of the twenty (20) business days immediately preceding the DeterminationDate; or
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(c) If there is no public market for the Common Stock, the fair market value thereof, asdetermined in good faith by the Committee.     2.13. Grant Date means the date as of which an Option is granted, as determined under Section7.1(a).     2.14. Incentive Option means an Option which by its terms is to be treated as an “incentivestock option” within the meaning of Section 422 of the Code.     2.15. Nonstatutory Option means any Option that is not an Incentive Option.     2.16. Option means an option to purchase shares of Common Stock.     2.17. Optionee means a Participant to whom an Option shall have been granted under the Plan.     2.18. Participant means any holder of an outstanding Award under the Plan.     2.19. Plan means this 2003 Management Stock Incentive Plan of the Company, as amended fromtime to time, and including any attachments or addenda hereto.     2.20. Restricted Stock means a grant or sale of shares of Common Stock to a Participantsubject to a Risk of Forfeiture.     2.21. Restriction Period means the period of time, established by the Committee in connectionwith an Award of Restricted Stock or Stock Units, during which the shares of Restricted Stock orStock Units are subject to a Risk of Forfeiture described in the applicable Award Agreement.     2.22. Risk of Forfeiture means a limitation on the right of the Participant to retain anAward, including a right in the Company to reacquire from the Participant any shares underlying orotherwise issuable with respect to such Award at less than their then Fair Market Value, arisingbecause of the occurrence or non-occurrence of specified events or conditions.     2.23. Stock Grant means the grant of shares of Common Stock not subject to restrictions orother forfeiture conditions.     2.24. Stock Unit Award means the grant of the right to receive shares of Common Stock in thefuture subject to such terms, conditions and restrictions as the Committee shall establish andotherwise in accordance with the terms of Section 7.4.     2.25 Ten Percent Owner means a person who owns, or is deemed within the meaning of Section422(b)(6) of the Code to own, stock possessing more than 10% of the total combined voting power ofall classes of stock of the Company (or any parent or subsidiary corporations of the Company, asdefined in Sections 424(e) and (f), respectively, of the Code). Whether a
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person is a Ten Percent Owner shall be determined with respect to an Option based on the factsexisting immediately prior to the Grant Date of the Option.3. TERM OF THE PLAN     Unless the Plan shall have been earlier terminated by the Board, Awards may be granted underthis Plan at any time in the period commencing on the date of approval of the Plan by the Board andending immediately prior to the tenth anniversary of the original effective date of the Plan.Awards granted pursuant to the Plan within that period shall not expire solely by reason of thetermination of the Plan.4. STOCK SUBJECT TO THE PLAN     At no time shall the number of shares of Common Stock issued pursuant to or subject tooutstanding Awards granted under the Plan exceed 1,000,000 shares of Common Stock; subject,however, to the provisions of Section 8 of the Plan. For purposes of applying the foregoinglimitation, if any Option expires, terminates, or is cancelled for any reason without having beenexercised in full, or if any Award of Restricted Stock or Stock Units is forfeited by therecipient, the shares not purchased by the Optionee or forfeited by the recipient, as the case maybe, shall again be available for Awards to be granted under the Plan. Shares of Common Stockissued pursuant to the Plan may be either authorized but unissued shares or shares held by theCompany in its treasury.5. ADMINISTRATION     The Plan shall be administered by the Committee; provided, however, that at any time and onany one or more occasions the Board may itself exercise any of the powers and responsibilitiesassigned the Committee under the Plan and when so acting shall have the benefit of all of theprovisions of the Plan pertaining to the Committee’s exercise of its authorities hereunder; andprovided further, however, that the Committee may delegate to an executive officer or officers theauthority to grant Awards hereunder to employees who are not officers, and to consultants, inaccordance with such guidelines as the Committee shall set forth at any time or from time to time.Subject to the provisions of the Plan, the Committee shall have complete authority, in itsdiscretion, to make or to select the manner of making all determinations with respect to each Awardto be granted by the Company under the Plan including the employee, consultant or director toreceive the Award and the form of Award. In making such determinations, the Committee may takeinto account the nature of the services rendered by the respective employees, consultants, anddirectors, their present and potential contributions to the success of the Company and itsAffiliates, and such other factors as the Committee in its discretion shall deem relevant. Subjectto the provisions of the Plan, the Committee shall also have complete authority to interpret thePlan, to prescribe, amend and rescind rules and regulations relating to it, to determine the termsand provisions of the respective Award Agreements (which need not be identical), and to make allother determinations necessary or advisable for the administration of the Plan. The Committee’sdeterminations made in good faith on matters referred to in the Plan shall be final, binding and
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conclusive on all persons having or claiming any interest under the Plan or an Award madepursuant to hereto.     The Committee intends that all Options granted under the Plan not be considered to provide forthe deferral of compensation under Section 409A of the Code and that any other Award that doesprovide for such deferral of compensation shall comply with the requirements of Section 409A of theCode and, accordingly, this Plan shall be so administered and construed. Further, the Committeemay modify the Plan and any Award to the extent necessary to fulfill this intent.6. AUTHORIZATION AND ELIGIBILITY     The Committee may grant from time to time and at any time prior to the termination of the Planone or more Awards, either alone or in combination with any other Awards, to any employee of orconsultant to one or more of the Company and its Affiliates or to non-employee members of the Boardor of any board of directors (or similar governing authority) of any Affiliate. However, onlyemployees of the Company, and of any parent or subsidiary corporations of the Company, as definedin Sections 424(e) and (f), respectively, of the Code, shall be eligible for the grant of anIncentive Option. Further, in no event shall the number of shares of Common Stock covered byOptions or other Awards granted to any one person in any one calendar year exceed 25% of theaggregate number of shares of Common Stock subject to the Plan.     Each grant of an Award shall be subject to all applicable terms and conditions of the Plan(including but not limited to any specific terms and conditions applicable to that type of Awardset out in the following Section), and such other terms and conditions, not inconsistent with theterms of the Plan, as the Committee may prescribe. No prospective Participant shall have anyrights with respect to an Award, unless and until such Participant has executed an agreementevidencing the Award, delivered a fully executed copy thereof to the Company, and otherwisecomplied with the applicable terms and conditions of such Award.7. SPECIFIC TERMS OF AWARDS     7.1. Options.(a) Date of Grant. The granting of an Option shall take place at the time specified in theAward Agreement. Only if expressly so provided in the applicable Award Agreement shall theGrant Date be the date on which the Award Agreement shall have been duly executed anddelivered by the Company and the Optionee.(b) Exercise Price. The price at which shares of Common Stock may be acquired under eachIncentive Option shall be not less than 100% of the Fair Market Value of Common Stock on theGrant Date, or not less than 110% of the Fair Market Value of Common Stock on the Grant Dateif the Optionee is a Ten Percent Owner. The price at which shares may be acquired undereach Nonstatutory Option shall not be so limited solely by reason of this Section.
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(c) Option Period. No Incentive Option may be exercised on or after the tenth anniversaryof the Grant Date, or on or after the fifth anniversary of the Grant Date if the Optionee isa Ten Percent Owner. The Option period under each Nonstatutory Option shall not be solimited solely by reason of this Section.(d) Exercisability. An Option may be immediately exercisable or become exercisable in suchinstallments, cumulative or non-cumulative, as the Committee may determine. In the case ofan Option not otherwise immediately exercisable in full, the Committee may Accelerate suchOption in whole or in part at any time; provided, however, that in the case of an IncentiveOption, any such Acceleration of the Option would not cause the Option to fail to complywith the provisions of Section 422 of the Code or the Optionee consents to the Acceleration.(e) Termination of Association with the Company. Unless the Committee shall provideotherwise with respect to any Option, if the Optionee’s employment or other association withthe Company and its Affiliates ends for any reason, including because of the Optionee’semployer ceasing to be an Affiliate, any outstanding Option of the Optionee shall cease tobe exercisable in any respect not later than 90 days following that event and, for theperiod it remains exercisable following that event, shall be exercisable only to the extentexercisable at the date of that event. Military or sick leave or other bona fide leaveshall not be deemed a termination of employment or other association, provided that it doesnot exceed the longer of ninety (90) days or the period during which the absent Optionee’sreemployment rights, if any, are guaranteed by statute or by contract.(f) Transferability. Except as otherwise provided in this subsection (f), Options shall notbe transferable, and no Option or interest therein may be sold, transferred, pledged,assigned, or otherwise alienated or hypothecated, other than by will or by the laws ofdescent and distribution. All of a Participant’s rights in any Option may be exercisedduring the life of the Participant only by the Participant or the Participant’s legalrepresentative. However, the Committee may, at or after the grant of a Nonstatutory Option,provide that such Option may be transferred by the recipient to a family member; provided,however, that any such transfer is without payment of any consideration whatsoever and thatno transfer of an Option shall be valid unless first approved by the Committee, acting inits sole discretion. For this purpose, “family member” means any child, stepchild,grandchild, parent, stepparent, spouse, former spouse, sibling, niece, nephew,mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law,including adoptive relationships, any person sharing the employee’s household (other than atenant or employee), a trust in which the foregoing persons have more than fifty (50)percent of the beneficial interests, a foundation in which the foregoing persons (or theParticipant) control the management of assets, and any other entity in which these persons(or the Participant) own more than fifty (50) percent of the voting interests.
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(g) Method of Exercise. An Option may be exercised by the Optionee giving written notice,in the manner provided in Section 14, specifying the number of shares with respect to whichthe Option is then being exercised. The notice shall be accompanied by payment in the formof cash or check payable to the order of the Company in an amount equal to the exerciseprice of the shares to be purchased or, if the Committee had so authorized on the grant ofan Incentive Option or on or after grant of a Nonstatutory Option (and subject to suchconditions, if any, as the Committee may deem necessary to avoid adverse accounting effectsto the Company) by delivery to the Company of(i) shares of Common Stock having a Fair Market Value equal to the exercise price ofthe shares to be purchased, or(ii) the Optionee’s executed promissory note in the principal amount equal to theexercise price of the shares to be purchased and otherwise in such form as theCommittee shall have approved, provided however that such note shall provide thatthe Company shall not be required to maintain, extend or arrange credit for theOptionee if and when prohibited by applicable law.If the Stock becomes traded on an established market, payment of any exercise price may alsobe made through and under the terms and conditions of any formal cashless exercise programauthorized by the Company entailing the sale of the Stock subject to an Option in a brokeredtransaction (other than to the Company). Receipt by the Company of such notice and paymentin any authorized or combination of authorized means shall constitute the exercise of theOption. Within thirty (30) days thereafter but subject to the remaining provisions of thePlan, the Company shall deliver or cause to be delivered to the Optionee or his agent acertificate or certificates for the number of shares then being purchased. Such sharesshall be fully paid and nonassessable.(h) Limit on Incentive Option Characterization. An Incentive Option shall be considered tobe an Incentive Option only to the extent that the number of shares of Common Stock forwhich the Option first becomes exercisable in a calendar year do not have an aggregate FairMarket Value (as of the date of the grant of the Option) in excess of the “current limit”.The current limit for any Optionee for any calendar year shall be $100,000 minus theaggregate Fair Market Value at the date of grant of the number of shares of Common Stockavailable for purchase for the first time in the same year under each other Incentive Optionpreviously granted to the Optionee under the Plan, and under each other incentive stockoption previously granted to the Optionee under any other incentive stock option plan of theCompany and its Affiliates. Any shares of Common Stock which would cause the foregoinglimit to be violated shall be deemed to have been granted under a separate NonstatutoryOption, otherwise identical in its terms to those of the Incentive Option.(i) Notification of Disposition. Each person exercising any Incentive Option granted underthe Plan shall be deemed to have covenanted with the Company to report to the Company anydisposition of such shares prior to the expiration of the holding periods specified bySection 422(a)(1) of the Code and, if and to the extent that the realization of
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income in such a disposition imposes upon the Company federal, state, local or otherwithholding tax requirements, or any such withholding is required to secure for the Companyan otherwise available tax deduction, to remit to the Company an amount in cash sufficientto satisfy those requirements.(j) Rights Pending Exercise. No person holding an Option shall be deemed for any purpose tobe a stockholder of the Company with respect to any of the shares of Stock issuable pursuantto his Option, except to the extent that the Option shall have been exercised with respectthereto and, in addition, a certificate shall have been issued therefor and delivered tosuch holder or his agent.     7.2. Restricted Stock.(a) Purchase Price. Shares of Restricted Stock shall be issued under the Plan for suchconsideration, in cash, other property or services, or any combination thereof, as isdetermined by the Committee.(b) Issuance of Certificates. Each Participant receiving an Award, subject to subsection(c) below, shall be issued one or more stock certificates in respect of such shares ofRestricted Stock. Such certificate shall be registered in the name of such Participant,and, if applicable, shall bear an appropriate legend referring to the terms, conditions, andrestrictions applicable to such Award substantially in the following form:The transferability of this certificate and the shares represented by thiscertificate are subject to the terms and conditions of theWheeling-Pittsburgh Corporation 2003 Management Stock Incentive Plan and anAward Agreement entered into by the registered owner and theWheeling-Pittsburgh Corporation. Copies of such Plan and Agreement are onfile in the offices of the Company.(c) Escrow of Shares. The Committee may require that the stock certificates evidencing            shares of Restricted Stock be held in custody by a designated escrow agent (which may butneed not be the Company) until the restrictions thereon shall have lapsed, and that theParticipant deliver a stock power, endorsed in blank, relating to the Stock covered by suchAward.(d) Restrictions and Restriction Period. During the Restriction Period applicable to sharesof Restricted Stock, such shares shall be subject to limitations on transferability and aRisk of Forfeiture arising on the basis of such conditions related to the performance ofservices, Company or Affiliate performance or otherwise as the Committee may determine andprovide for in the applicable Award Agreement. Any such Risk of Forfeiture may be waived orterminated, or the Restriction Period shortened, at any time by the Committee on such basisas it deems appropriate.(e) Rights Pending Lapse of Risk of Forfeiture or Forfeiture of Award. Except as otherwiseprovided in the Plan or the applicable Award Agreement, at all times prior to
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lapse of any Risk of Forfeiture applicable to, or forfeiture of, an Award of RestrictedStock, the Participant shall have all of the rights of a stockholder of the Company,including the right to vote, and the right to receive any dividends with respect to, the            shares of Restricted Stock. At any time and from time to time, the Committee may permit orrequire the payment of any cash dividends otherwise due in respect of an Award of RestrictedStock to be deferred and, if the Committee so determines, reinvested in additionalRestricted Stock (at its then Fair Market Value) to the extent shares are available underSection 4.(f) Termination of Association with the Company. Unless the Committee shall provideotherwise for any Award of Restricted Stock, upon termination of a Participant’s employmentor other association with the Company and its Affiliates for any reason during theRestriction Period, including because of the Participant’s employer ceasing to be anAffiliate during the Restriction Period, all shares of Restricted Stock still subject toRisk of Forfeiture shall be forfeited or otherwise subject to return to or repurchase by theCompany on the terms specified in the Award Agreement; provided, however, that military orsick leave or other bona fide leave shall not be deemed a termination of employment or otherassociation, if it does not exceed the longer of ninety (90) days or the period during whichthe absent Participant’s reemployment rights, if any, are guaranteed by statute or bycontract.(g) Lapse of Restrictions. If and when the Restriction Period expires without a priorforfeiture of the Restricted Stock, the certificates for such shares shall be delivered tothe Participant promptly if not theretofore so delivered.     7.3. Stock Grants. Stock Grants shall be awarded in recognition of significant contributionsto the success of the Company or its Affiliates, in lieu of compensation and in such othercircumstances as the Committee deems appropriate. Stock Grants shall be made without forfeitureconditions of any kind.     7.4. Stock Units.(a) Awards of Stock Units. The Committee may grant Stock Units representing the right toreceive shares of Common Stock in the future subject to such terms, conditions, restrictionsor Risk of Forfeiture, whether based on performance standards, periods of service, retentionby the Participant of ownership of specified shares of Common Stock or other criteria, asthe Committee shall establish. The terms of any Stock Unit Award granted under this Planshall be set forth in an Award Agreement which shall contain provisions determined by theCommittee and not inconsistent with this Plan.(b) Settlement of Stock Units. Payments shall be made to Participants with respect to theirStock Unit Awards as soon as practicable after the Committee has determined that the termsand conditions applicable to such Award have been satisfied. Payments to Participants withrespect to Stock Units shall be made in the form of Common Stock, or cash or a combinationof both, as the Committee may determine. The amount of any cash to be paid in lieu ofCommon Stock shall be determined on the basis of the Fair Market
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Value of the Common Stock on the date any such payment is processed. As to shares of CommonStock which constitute all or any part of such payment, the Committee may impose suchrestrictions concerning their transferability and/or their forfeiture as may be provided inthe applicable Award Agreement or as the Committee may otherwise determine, provided suchdetermination is made on or before the date certificates for such shares are first deliveredto the applicable Participant.(c) Stockholder Rights. Until the lapse of the Restriction Period or release of all Risksof Forfeiture or other restrictions applicable to a Stock Unit Award, no shares of CommonStock shall be issued in respect of such Awards and no Participant shall have any rights asa stockholder of the Company with respect to the shares of Common Stock covered by suchStock Unit Award. Notwithstanding the foregoing, at any time and from time to time, theCommittee may, with respect to any cash dividends otherwise payable with respect to theshares underlying a Stock Unit Award, permit or require the payment of such dividends to theParticipant or the reinvestment of such dividends in additional Stock Units (at its thenFair Market Value) to the extent shares are available under Section 4.(d) Waiver of Forfeiture Period. Notwithstanding anything contained in this Section 7.4 tothe contrary, the Committee may, in its sole discretion, waive the Restriction Period andany other forfeiture conditions set forth in any Award Agreement under appropriatecircumstances (including the death, disability or retirement of the Participant or amaterial change in circumstances arising after the date of an Award) and subject to suchterms and conditions (including forfeiture of a proportionate number of shares issuable uponsettlement of the Stock Unit Award) as the Committee shall deem appropriate.(e) Termination of Association with the Company. Unless the Committee shall provideotherwise for any Stock Unit Award, upon termination of a Participant’s employment or otherassociation with the Company and its Affiliates for any reason during the RestrictionPeriod, including because of the Participant’s employer ceasing to be an Affiliate duringthe Restriction Period, all Stock Units still subject to a Risk of Forfeiture with respectto such Award shall be forfeited; provided, however, that military or sick leave or otherbona fide leave shall not be deemed a termination of employment or other association, if itdoes not exceed the longer of ninety (90) days or the period during which the absentParticipant’s reemployment rights, if any, are guaranteed by statute or by contract.     7.5. Provisions Applicable to Performance-Based Awards. To the extent any Award grantedunder the Plan is subject to performance-based targets, goals or criteria with respect to vesting,payment or any other term or condition of such Award, such performance-based targets, goals orcriteria may include such goals related to the performance of the Company or, where relevant, anyone or more of its Affiliates or divisions and/or the performance of a Participant as may beestablished by the Committee in its discretion. The performance targets established by theCommittee may vary from Award to Award and need not be the same for each Participant receiving aparticular type of Award at any given time or with respect to any particular
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Restriction Period. Notwithstanding any provision of the Plan to the contrary, the Committeeshall have the authority to adjust any performance goal, performance target or otherperformance-based criteria established with respect to any Award under the Plan if circumstancesoccur (including, but not limited to, unusual or nonrecurring events, changes in tax laws oraccounting principles or practices or changed business or economic conditions) that cause any suchperformance goal, performance target or performance-based criteria to be inappropriate in thejudgment of the Committee.     7.6 Awards to Participants Outside the United States. The Committee may modify the terms ofany Award under the Plan granted to a Participant who is, at the time of grant or during the termof the Award, resident or primarily employed outside of the United States in any manner deemed bythe Committee to be necessary or appropriate in order that the Award shall conform to laws,regulations, and customs of the country in which the Participant is then resident or primarilyemployed, or so that the value and other benefits of the Award to the Participant, as affected byforeign tax laws and other restrictions applicable as a result of the Participant’s residence oremployment abroad, shall be comparable to the value of such an Award to a Participant who isresident or primarily employed in the United States. An Award may be modified under this Section7.6 in a manner that is inconsistent with the express terms of the Plan, so long as suchmodifications will not contravene any applicable law or regulation.8. ADJUSTMENT PROVISIONS     8.1. Adjustment for Corporate Actions. All of the share numbers set forth in the Planreflect the capital structure of the Company as of the effective date of the Company’s Plan ofReorganization in 2003. If subsequent to that date the outstanding shares of Common Stock (or anyother securities covered by the Plan by reason of the prior application of this Section) areincreased, decreased, or exchanged for a different number or kind of shares or other securities, orif additional shares or new or different shares or other securities are distributed with respect toshares of Common Stock or other securities, through merger, consolidation, sale of all orsubstantially all the property of the Company, reorganization, recapitalization, reclassification,stock dividend, stock split, reverse stock split, or other distribution with respect to such sharesof Common     Stock, or other securities, an appropriate and proportionate adjustment will be made in (i)the maximum numbers and kinds of shares provided in Section 4, (ii) the numbers and kinds of sharesor other securities subject to the then outstanding Awards, (iii) the exercise price for each shareor other unit of any other securities subject to then outstanding Options (without change in theaggregate purchase price as to which such Options remain exercisable), and (iv) the repurchaseprice of each share of Restricted Stock then subject to a Risk of Forfeiture in the form of aCompany repurchase right.     8.2. Treatment in the Event of an Acquisition.     Subject to any provisions of then outstanding Awards granting greater rights to the holdersthereof, the Committee shall have the discretion, exercisable in advance of, at the time of, or(except to the extent otherwise provided below) at any time after, an Acquisition, to
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provide for any or all of the following (subject to and upon such terms as the Committee maydeem appropriate): (A) the Acceleration of any or all outstanding Options (including Options thatare assumed or replaced pursuant to clause (C) below) that are not exercisable in full at the timethe Acquisition, such Acceleration to become effective at the time of the Acquisition, or at suchtime following the Acquisition that the employment, consultancy or directorship or otherassociation of the applicable Optionee or Optionees terminates, or at such other time or times asthe Committee shall determine; (B) the termination of any or all of the Company’s repurchase rightswith respect to Restricted Stock Awards, such termination to become effective at the time of theAcquisition, or at such time following the Acquisition that the employment, consultancy,directorship or other association of the Participant or Participants that hold such RestrictedStock Awards terminates, or at such other time or times as the Committee shall determine; (C) theassumption of outstanding Options, or the substitution of outstanding Options with equivalentoptions, by the acquiring or succeeding corporation or entity (or an affiliate thereof); or (D) thetermination of all Options (other than Options that are assumed or substituted pursuant to clause(C) above) that remain outstanding at the time of the consummation of the Acquisition, providedthat, the Committee shall have made the determination to effect such termination prior to theconsummation of the Acquisition and the Committee shall have given, or caused to be given, to allOptionees written notice of such potential termination at least five business days prior to theconsummation of the Acquisition. The provisions of this Section 8.2 shall not be construed as tolimit or restrict in any way the Committee’s general authority under Sections 7.1(d) or 7.2(d)hereof to Accelerate Options in whole or in part at any time or to waive or terminate at any timeany Risk of Forfeiture applicable to shares of Restricted Stock. Each outstanding Option that isassumed in connection with an Acquisition, or is otherwise to continue in effect subsequent to anAcquisition, will be appropriately adjusted, immediately after the Acquisition, as to the numberand class of securities and the price at which it may be exercised in accordance with Section 8.1.     8.3. Treatment in the Event of a Change of Control. Subject to any provisions of thenoutstanding Awards granting greater rights to the holders thereof, upon the occurrence of a Changeof Control, each outstanding Option not then exercisable in full and each Restricted Stock Awardstill then subject to a Risk of Forfeiture shall be automatically Accelerated. Notwithstanding theforegoing, with respect to any Award granted on or after the Restated Effective Date, the Committeeshall have the discretion to establish in the applicable Award Agreement what, if any, effect aChange in Control would have on such Award.     8.4. Dissolution or Liquidation. Upon dissolution or liquidation of the Company, other thanas part of an Acquisition or similar transaction, each outstanding Option shall terminate, but theOptionee (if at the time in the employ of or otherwise associated with the Company or any of itsAffiliates) shall have the right, immediately prior to the dissolution or liquidation, to exercisethe Option to the extent exercisable on the date of dissolution or liquidation.     8.5. Related Matters. Any adjustment in Awards made pursuant to this Section 8 shall bedetermined and made, if at all, by the Committee and shall include any correlative modification ofterms, including of Option exercise prices, rates of vesting or exercisability, Risks of Forfeitureand applicable repurchase prices for Restricted Stock, which the Committee may deem necessary orappropriate so as to ensure the rights of the Participants in their respective Awards are notsubstantially diminished nor enlarged as a result of the adjustment and
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corporate action other than as expressly contemplated in this Section 8. No fraction of ashare shall be purchasable or deliverable upon exercise, but in the event any adjustment hereunderof the number of shares covered by an Award shall cause such number to include a fraction of ashare, such number of shares shall be adjusted to the nearest smaller whole number of shares. Noadjustment of an Option exercise price per share pursuant to this Section 8 shall result in anexercise price which is less than the par value of the Stock.9. SETTLEMENT OF AWARDS     9.1. Violation of Law. Notwithstanding any other provision of the Plan or the relevant AwardAgreement, if, at any time, in the reasonable opinion of the Company, the issuance of shares ofCommon Stock covered by an Award may constitute a violation of law, then the Company may delay suchissuance and the delivery of a certificate for such shares until (i) approval shall have beenobtained from such governmental agencies, other than the Securities and Exchange Commission, as maybe required under any applicable law, rule, or regulation and (ii) in the case where such issuancewould constitute a violation of a law administered by or a regulation of the Securities andExchange Commission, one of the following conditions shall have been satisfied:(a) the shares are at the time of the issue of such shares effectively registered under theSecurities Act of 1933; or(b) the Company shall have determined, on such basis as it deems appropriate (including anopinion of counsel in form and substance satisfactory to the Company) that the sale,transfer, assignment, pledge, encumbrance or other disposition of such shares or suchbeneficial interest, as the case may be, does not require registration under the SecuritiesAct of 1933, as amended or any applicable State securities laws.     The Company shall make all reasonable efforts to bring about the occurrence of said events.     9.2. Corporate Restrictions on Rights in Stock. Any Stock to be issued pursuant to Awardsgranted under the Plan shall be subject to all restrictions upon the transfer thereof which may benow or hereafter imposed by the charter, certificate or articles, and by-laws, of the Company.     9.3. Investment Representations. The Company shall be under no obligation to issue anyshares covered by any Award unless the shares to be issued pursuant to Awards granted under thePlan have been effectively registered under the Securities Act of 1933, as amended, or theParticipant shall have made such written representations to the Company (upon which the Companybelieves it may reasonably rely) as the Company may deem necessary or appropriate for purposes ofconfirming that the issuance of such shares will be exempt from the registration requirements ofthat Act and any applicable state securities laws and otherwise in compliance with all applicablelaws, rules and regulations, including but not limited to that the Participant is acquiring theshares for his or her own account for the purpose of investment and not with a view to, or for salein connection with, the distribution of any such shares.
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     9.4. Registration. If the Company shall deem it necessary or desirable to register under theSecurities Act of 1933, as amended or other applicable statutes any shares of Stock issued or to beissued pursuant to Awards granted under the Plan, or to qualify any such shares of Stock forexemption from the Securities Act of 1933, as amended or other applicable statutes, then theCompany shall take such action at its own expense. The Company may require from each recipient ofan Award, or each holder of shares of Stock acquired pursuant to the Plan, such information inwriting for use in any registration statement, prospectus, preliminary prospectus or offeringcircular as is reasonably necessary for that purpose and may require reasonable indemnity to theCompany and its officers and directors from that holder against all losses, claims, damage andliabilities arising from use of the information so furnished and caused by any untrue statement ofany material fact therein or caused by the omission to state a material fact required to be statedtherein or necessary to make the statements therein not misleading in the light of thecircumstances under which they were made. In addition, the Company may require of any such personthat he or she agree that, without the prior written consent of the Company or the managingunderwriter in any public offering of shares of Stock, he or she will not sell, make any short saleof, loan, grant any option for the purchase of, pledge or otherwise encumber, or otherwise disposeof, any shares of Common Stock during the 180 day period commencing on the effective date of theregistration statement relating to the underwritten public offering of securities. Withoutlimiting the generality of the foregoing provisions of this Section 9.4, if in connection with anyunderwritten public offering of securities of the Company the managing underwriter of such offeringrequires that the Company’s directors and officers enter into a lock-up agreement containingprovisions that are more restrictive than the provisions set forth in the preceding sentence, then(a) each holder of shares of Stock acquired pursuant to the Plan (regardless of whether such personhas complied or complies with the provisions of clause (b) below) shall be bound by, and shall bedeemed to have agreed to, the same lock-up terms as those to which the Company’s directors andofficers are required to adhere; and (b) at the request of the Company or such managingunderwriter, each such person shall execute and deliver a lock-up agreement in form and substanceequivalent to that which is required to be executed by the Company’s directors and officers.     9.5. Placement of Legends; Stop Orders; etc. Each share of Common Stock to be issuedpursuant to Awards granted under the Plan may bear a reference to the investment representationmade in accordance with Section 9.3 in addition to any other applicable restriction under the Planand the terms of the Award and to the fact that no registration statement has been filed with theSecurities and Exchange Commission in respect to such shares of Common Stock. All certificates forshares of Common Stock or other securities delivered under the Plan shall be subject to such stocktransfer orders and other restrictions as the Committee may deem advisable under the rules,regulations, and other requirements of any stock exchange upon which the Common Stock is thenlisted, and any applicable federal or state securities law, and the Committee may cause a legend orlegends to be put on any such certificates to make appropriate reference to such restrictions.     9.6. Tax Withholding. Whenever shares of Stock are issued or to be issued pursuant to Awardsgranted under the Plan, or when a Risk of Forfeiture lapses with respect to any Restricted Stockgranted under the Plan, the Company shall have the right to require the recipient
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to remit to the Company an amount sufficient to satisfy federal, state, local or otherwithholding tax requirements if, when, and to the extent required by law (whether so required tosecure for the Company an otherwise available tax deduction or otherwise) prior to the delivery ofany certificate or certificates for such shares. The obligations of the Company under the Planshall be conditional on satisfaction of all such withholding obligations and the Company shall, tothe extent permitted by law, have the right to deduct any such taxes from any payment of any kindotherwise due to the recipient of an Award.10. RESERVATION OF STOCK     The Company shall at all times during the term of the Plan and any outstanding Options grantedhereunder reserve or otherwise keep available such number of shares of Stock as will be sufficientto satisfy the requirements of the Plan (if then in effect) and the Options and shall pay all feesand expenses necessarily incurred by the Company in connection therewith.11. NO SPECIAL EMPLOYMENT OR OTHER RIGHTS     Nothing contained in the Plan or in any Award Agreement shall confer upon any recipient of anAward any right with respect to the continuation of his or her employment or other association withthe Company (or any Affiliate), or interfere in any way with the right of the Company (or anyAffiliate), subject to the terms of any separate employment or consulting agreement or provision oflaw or corporate charter, certificate or articles, or by-laws, to the contrary, at any time toterminate such employment or consulting agreement or to increase or decrease, or otherwise adjust,the other terms and conditions of the recipient’s employment or other association with the Companyand its Affiliates.12. NONEXCLUSIVITY OF THE PLAN     Neither the adoption of the Plan by the Board nor, if any, the submission of the Plan to thestockholders of the Company shall be construed as creating any limitations on the power of theBoard to adopt such other incentive arrangements as it may deem desirable, including withoutlimitation, the granting of stock options and restricted stock other than under the Plan, and sucharrangements may be either applicable generally or only in specific cases.13. TERMINATION AND AMENDMENT OF THE PLAN     The Board may at any time terminate the Plan or make such modifications of the Plan as itshall deem advisable. Unless the Board otherwise expressly provides, no amendment of the Planshall affect the terms of any Award outstanding on the date of such amendment. In any case, notermination or amendment of the Plan may, without the consent of any recipient of an Award grantedhereunder, adversely affect the rights of the recipient under such Award.     The Committee may amend the terms of any Award theretofore granted, prospectively orretroactively, provided that the Award as amended is consistent with the terms of the Plan, but nosuch amendment shall impair the rights of the recipient of such Award without his or her consent.
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14. NOTICES AND OTHER COMMUNICATIONS     Any notice, demand, request or other communication hereunder to any party shall be deemed tobe sufficient if contained in a written instrument delivered in person or duly sent by first classregistered, certified or overnight mail, postage prepaid, or telecopied with a confirmation copy byregular, certified or overnight mail, addressed or telecopied, as the case may be, (i) if to therecipient of an Award, at his or her residence address last filed with the Company and (ii) if tothe Company, at its principal place of business, addressed to the attention of its Treasurer, or tosuch other address or telecopier number, as the case may be, as the addressee may have designatedby notice to the addressor. All such notices, requests, demands and other communications shall bedeemed to have been received: (i) in the case of personal delivery, on the date of such delivery;(ii) in the case of mailing, when received by the addressee; and (iii) in the case of facsimiletransmission, when confirmed by facsimile machine report.15. GOVERNING LAW     The Plan and all Award Agreements and actions taken thereunder shall be governed, interpretedand enforced in accordance with the laws of the State of Delaware, without regard to the conflictof laws principles thereof.
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