EX-4.1 BLUELINX HOLDINGS INC. EQUITY INCENTIVE PLN



 






EXHIBIT 4.1




BLUELINX HOLDINGS INC.



EQUITY INCENTIVE PLAN




          1. Purpose. The purpose of the BlueLinx Holdings Inc. Equity Incentive Plan is to
motivate and retain certain individuals who are responsible for the attainment of the primary
long-term performance goals of BlueLinx Holdings Inc.




          2. Definitions. When used herein, the following terms shall have the following
meanings.




          “Administrator” means the Board, or a committee of the Board, duly appointed to administer the
Plan.




          “Affiliate” means, as to any Person, any other Person that directly or indirectly controls, or
is under common control with, or is controlled by, such Person. As used in this definition,
“control” (including its correlative meanings, “controlled by” and “under common control with”)
means possession, directly or indirectly, of power to direct or cause the direction of management
or policies (whether through ownership of securities or partnership or other ownership interests,
by contract or otherwise).




          “Award” means, individually or collectively, a grant under this Plan of Nonqualified Stock
Options, Incentive Stock Options or Restricted Stock.




          “Award Agreement” means an agreement entered into by the Company and each Participant setting
forth the terms and provisions applicable to an Award.




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




          “Cause” means, with respect to a Participant, as determined by the Board in its reasonable
judgment, (a) the Participant’s continued failure to substantially perform the Participant’s
duties, (b) the Participant’s repeated acts of insubordination, or failure to execute Company or
subsidiary plans and/or strategies, (c) the Participant’s acts of dishonesty resulting or intending
to result in personal gain or enrichment at the expense of the Company or any subsidiary, (d) the
Participant’s commission of a felony, (e) reasonable evidence presented in writing to the
Participant that the Participant engaged in a criminal act, misconduct or dishonesty, (f) violation
of any written policy of the Company or any subsidiary including, but not limited to, the Company’s
or a subsidiary’s employment manuals, rules and regulations after one (1) written notice from the
Company or a subsidiary regarding such violation, or (g) the Participant engaging in any act that
is intended, or may reasonably be expected to harm the reputation, business, prospects or
operations of the Company, any subsidiary, or their officers, directors, stockholders or employees;
provided that, in the event a Participant is subject to an employment agreement or
other agreement, including, but not limited to a severance agreement, with the Company or a
subsidiary that contains a definition of “Cause,” Cause under the Plan shall have the meaning in
such agreement.




          “Cerberus” means Cerberus Capital Management, L.P. or any of its Affiliates.




          “Code” means the Internal Revenue Code of 1986, as amended, or any successor statute thereto.




          “Company” means BlueLinx Holdings Inc., a Delaware corporation and its successors.




          “Disability” means, with respect to a Participant, a determination by the Administrator that
such Participant is unable to perform his or her job as a result of a physical or mental impairment
sufficient to prevent the Participant from performing the essential functions of his position, with
or without a reasonable accommodation; provided that, in the event a Participant is
subject to an employment agreement or other agreement, including, but not limited to a severance
agreement, with the Company or a subsidiary that contains a definition of “Disability,” Disability
under the Plan shall have the meaning in such agreement.




          “Effective Date” means the date set forth in Section 22 hereof.




 









 








          “Fair Market Value” means, on any day, with respect to common stock which is (a) listed on a
United States securities exchange, the last sales price of such stock on such day on the largest
United States securities exchange on which such stock shall have traded on such day, or if such day
is not a day on which a United States securities exchange is open for trading, on the immediately
preceding day on which such securities exchange was open, (b) not listed on a United States
securities exchange but is included in The NASDAQ Stock Market System (including The NASDAQ
National Market), the last sales price on such system of such stock on such day, or if such day is
not a trading day, on the immediately preceding trading day, or (c) neither listed on a United
States securities exchange nor included in The NASDAQ Stock Market System, the fair market value of
such stock as determined from time to time by the Administrator in good faith in its sole
discretion.




          “Grant Date” means the date on which an Option under the Plan is granted to a Participant.




          “Incentive Stock Option” means an Option that is designated by the Administrator as an
incentive stock option and qualifies as such within the meaning of Section 422 of the Code and is
granted by the Administrator to a Participant.




          “Key Employee” means an employee who owns more than 10% of the total combined voting power of
all classes of stock of the Company, determined at the time an Option is proposed to be granted.




          “Liquidity Event” means (1) any Person who is not an Affiliate of the Company becomes the
beneficial owner, directly or indirectly, of fifty percent (50%) or more of the combined voting
power of the then outstanding voting securities of the Company (2) the sale, transfer or other
disposition of all or substantially all of the business and assets of the Company, whether by sale
of assets, merger or otherwise to a person other than an Affiliate of Cerberus or (3) if specified
by the Board in an Award Agreement at the time of grant, the consummation of an initial public
offering of common stock of the Company.




          “Nonqualified Stock Option” means an Option, which is not an Incentive Stock Option, granted
by the Administrator to a Participant.




          “Option” means a right granted under the Plan to a Participant to purchase a stated number of
Shares as an Incentive Stock Option or Nonqualified Stock Option.




          “Option Period” means the period within which an Option may be exercised pursuant to the Plan.




          “Participant” means any employee, director or consultant of the Company or any of its
subsidiaries who is selected to participate in the Plan in accordance with Section 4 hereof.




          “Period of Restriction” means the period during which the transfer of Shares of Restricted
Stock is limited in some way (based on the passage of time, the achievement of a performance
target, if applicable, or upon the occurrence of other events as determined by the Administrator,
at its discretion), and the common stock is subject to a substantial risk of forfeiture, as
provided in Section 7 herein.




          “Person” means any individual, partnership, firm, trust, corporation, limited liability
company or other similar entity. When two or more Persons act as a partnership, limited
partnership, syndicate or other group for the purpose of acquiring, holding or disposing of Shares
of the Company, such partnership, limited partnership, syndicate or group shall be deemed a
“Person.”




          “Plan” means the BlueLinx Holdings Inc. Equity Incentive Plan.




          “Plan Year” means the fiscal year of the Company.




          “Restricted Stock” means an Award of Shares granted to a Participant pursuant to Section 7
herein.




          “Shares” means the shares of common stock of the Company.




 









 








          “Stockholders Agreement” means the applicable stockholders agreement of the Company, as may be
amended from time to time.




          3. Administration. The Plan shall be administered by the Administrator. Subject to
the provisions of the Plan, the Administrator shall have the authority to:





	 	(a)  	select the Participants;
	 
	 	(b)  	determine the number of Shares covered by any Award granted to
a Participant; provided, however, that no Award shall be
granted after the expiration of the period of ten (10) years from the Effective
Date;
	 
	 	(c)  	determine whether each Award shall be a grant of an Incentive
Stock Option, a Nonqualified Stock Option or Restricted Stock; and
	 
	 	(d)  	establish from time to time regulations for the administration
of the Plan, interpret the Plan, delegate in writing administrative matters to
committees of the Board or to other persons, and make such other determinations
and take such other action, as it deems necessary or advisable for the
administration of the Plan.





          All decisions, actions and interpretations of the Administrator shall be final, conclusive and
binding upon all parties. With respect to Awards granted or to be granted to a Participant who is
a nonemployee director, the Plan shall be administered by the full Board and any references to the
Administrator shall be deemed to be references to the Board.




          4. Participation. Participants in the Plan shall be limited to those employees,
directors and consultants of the Company or any subsidiary thereof who have been notified in
writing by the Administrator that they have been selected to participate in the Plan.




          5. Shares Subject to the Plan. Awards may be granted by the Administrator to
Participants from time to time. The Shares issued with respect to Awards granted under the Plan
may be authorized and unissued Shares, Shares held in the treasury of the Company, or, if
applicable, Shares purchased on the open market by the Company (at such time or times and in such
manner as it may determine). The Company shall be under no obligation to acquire common stock for
distribution to optionholders before payment in Shares is due. If any Award granted under the Plan
shall be canceled or shall expire without the Shares covered by such Award being purchased by the
applicable Award holder thereunder, new Awards may thereafter be granted covering such Shares.




          The maximum aggregate number of Shares available to be granted under the Plan is equal to Two
Million Two Hundred Twenty-Two Thousand Two Hundred Twenty-Two (2,222,222) Shares and such Shares
shall be reserved for Awards granted under the Plan (subject to adjustment as provided in Section
10).




          The maximum number of Shares that may be granted in the form of Options or Restricted Stock in
any one Plan Year to any one Participant is 100% of the Shares set forth in Section 5.




          6. Terms and Conditions of Options. Each Option granted under the Plan shall be
evidenced by a written agreement, in a form approved by the Administrator, which shall be subject
to the following express terms and conditions and to such other terms and conditions as the
Administrator may deem appropriate:





	 	(a)  	Option Period. Each Option agreement shall specify
that the Option thereunder is granted for a period of ten (10) years, or such
shorter period as the Administrator may determine, from the date of grant and
shall provide that the Option shall expire on such ten (10) year anniversary,
or shorter period, as the case may be (unless earlier exercised or terminated
pursuant to its terms); provided, however, that any Incentive
Stock Option granted to a Key Employee shall specify that the Incentive Stock
Option is granted for a




 









 






	 	   	period of five (5) years from the date of grant and shall expire on such
five (5) year anniversary.
	 
	 	(b)  	Option Price. The Option price per share shall be the
Fair Market Value at the time the Option is granted or, with respect to a
Nonqualified Stock Option, such other price as the Administrator shall
determine; provided, however, that the Option price per share
for any Incentive Stock Option granted to a Key Employee shall equal 110% of
the Fair Market Value at the time the Incentive Stock Option is granted.
	 
	 	(c)  	Vesting. Unless otherwise determined by the
Administrator, in its sole discretion or as otherwise set forth in an Award
Agreement, (i) fifty percent (50%) of the Options granted to a Participant
shall become vested and exercisable in the following manner: One-third (1/3)
on the first anniversary of the Grant Date; one-third (1/3) on the second
anniversary of the Grant Date and one-third (1/3) on the third anniversary of
the Grant Date and (ii) fifty percent (50%) of the Options granted to a
Participant shall become vested and exercisable in the following manner: One
quarter (1/4) on the December 31st following the first, second,
third and fourth anniversaries of the Grant Date if the Company attains certain
performance targets established by the Board, in its sole discretion, as of the
December 31 of the applicable year; provided, however, that in the event that
the Company does not attain the performance target for one year, but achieves
on a cumulative basis the combined performance targets with respect to the
previous year and the current year, all Options not yet vested for the previous
year and all Options subject to vesting for the current year shall be
considered vested. The Administrator reserves the right, in its sole
discretion, to waive or reduce the vesting requirements applicable to any
Options at any time.
	 
	 	(d)  	Limitation on Amount of Incentive Stock Options
Granted. Options shall be treated as Incentive Stock Options only to the
extent that the aggregate Fair Market Value of stock with respect to which
Incentive Stock Options are exercisable for the first time by any optionholder
during any calendar year (whether under the terms of the Plan or any other
stock option plan of the Company or of its parent or any subsidiary
corporation) is $100,000 or less. To the extent that such aggregate Fair
Market Value exceeds $100,000, the Options shall be treated as Nonqualified
Stock Options. Fair Market Value shall be determined as of the time the Option
with respect to such stock is granted.
	 
	 	(e)  	Limitations on Granting of Options. The Administrator
shall have the authority and discretion to grant to an eligible employee either
Incentive Stock Options or Nonqualified Stock Options or both, but shall
clearly designate the nature of each Option at the time of grant in the stock
option agreement. Participants who are consultants or non-employee directors
on the date an Option is granted may only receive Nonqualified Stock Options.
	 
	 	(f)  	Payment of Option Price Upon Exercise. The option
price of the Shares as to which an Option shall be exercised shall be paid to
the Company at the time of exercise in cash or such other method approved by
the Administrator.
	 
	 	(g)  	Termination of Employment or Relationship. Unless
otherwise determined by the Administrator, in its sole discretion or as
otherwise set forth in an Award Agreement:






	 	(i)  	In the event of a Participant’s termination of
employment or relationship for Cause, all unexercised Options granted
to a Participant will terminate as of the date of such termination of
employment or relationship.
	 
	 	(ii)  	In the event of a Participant’s termination of
employment or relationship by the Company or a subsidiary other than
for Cause or the Participant resigns from employment or relationship
for any reason (other than on account of death or Disability), (i) any
unvested portion of the Participant’s Option shall terminate




 









 






	 	   	and (ii) any portion of the Participant’s Option that was vested and
exercisable on the date of his or her termination of employment or
relationship shall remain exercisable for a period of 3 months after
the date of termination, and any portion of such Option not exercised
within such 3 month period shall be forfeited; provided, however,
that in no event may such Option be exercised after the expiration of
the Option Period.
	 
	 	(iii)  	In the event a Participant’s employment or
relationship shall terminate on account of death or Disability, (i) any
unvested portion of the Participant’s Option shall terminate and (ii)
the Participant (or his or her personal representative) may exercise
all vested and exercisable Options within the earlier of (x) one year
from the date of such death or Disability or (y) the expiration of the
Option Period. Any portion of such Option not exercised within such
period shall be forfeited.






	 	(h)  	Transferability of Options. No Option granted under
the Plan and no right arising under such Option shall be transferable other
than by will or by the laws of descent and distribution. During the lifetime
of the Participant an Option shall be exercisable only by such Participant.
Any Option exercisable at the date of the Participant’s death and transferred
by will or by the laws of descent and distribution shall be exercisable in
accordance with the terms of such Option by the executor or administrator, as
the case may be, of the Participant’s estate (each a “Designated Beneficiary”)
for a period provided in paragraph (g)(3) above or such longer period as the
Administrator may determine, and shall then terminate.
	 
	 	(i)  	Investment Representation. Each Option agreement may
contain an undertaking that, upon demand by the Administrator for such a
representation, the Participant or his Designated Beneficiary, as the case may
be, shall deliver to the Administrator at the time of any exercise of an Option
a written representation that the Shares to be acquired upon such exercise are
to be acquired for such Participant’s or Designated Beneficiary’s own account
and not with a view to, or for resale in connection with, any distribution.
Upon such demand, delivery of such representation prior to the delivery of any
Shares issued upon exercise of an Option shall be a condition precedent to the
right of the Participant or his Designated Beneficiary to purchase any Shares.
	 
	 	(j)  	Optionholders to Have No Rights as Stockholders. No
optionholder shall have any rights as a stockholder with respect to any Shares
subject to such optionholder’s Option prior to the date on which such
optionholder is recorded as the holder of such Shares on the records of the
Company.
	 
	 	(k)  	Other Option Provisions. The form of Award Agreement
applicable to Options authorized by the Plan may contain such other provisions,
consistent with this Plan, as the Administrator may, from time to time,
determine.
	 
	 	(l)  	Notification of Sales of Common Stock. Subject to the
provisions of Section 9 hereof, any optionholder who disposes of Shares
acquired upon the exercise of an Incentive Stock Option either (a) within two
(2) years from the date of the grant of the Incentive Stock Option under which
the common stock was acquired or (b) within one (1) year after the transfer of
such Shares to the optionholder, shall notify the Company of such disposition
and of the amount realized upon such disposition.
	 
	 	(m)  	Stockholders Agreement and Related Agreements. Prior
to the exercise of any Options granted hereunder, the Participant (or legal
representative) shall be required to become a party to the Stockholders
Agreement or any related agreements, as determined by the Company.
Accordingly, the execution of such Stockholders Agreement shall be a condition
precedent to the right to purchase any Shares pursuant to an Option.




 









 






	 	7.  	Restricted Stock.
	 
	 	(a)  	Grant of Restricted Stock. Subject to the terms and
provisions of the Plan, the Administrator, at any time and from time to time,
may grant Shares of Restricted Stock to Participants in such amounts as the
Administrator shall determine.
	 
	 	(b)  	Restricted Stock Agreement. Each Award applicable to
Restricted Stock shall be evidenced by an Award Agreement that shall specify
the restrictions, including restrictions creating a substantial risk of
forfeiture, the Period(s) of Restriction, the number of Shares of Restricted
Stock granted, and as such other provisions as the Administrator shall
determine. Restrictions on Restricted Stock shall lapse at such time(s) and in
such manner and subject to such conditions as the Administrator shall in each
instance determine, which need not be the same for each Award or for each
Participant.
	 
	 	(c)  	Transferability. Except as provided in this Section 7,
the Shares of Restricted Stock granted herein may not be sold, transferred,
pledged, assigned, or otherwise alienated or hypothecated until the end of the
applicable Period of Restriction established by the Administrator and specified
in the Award Agreement, or upon earlier satisfaction of any other conditions,
as specified by the Administrator in its sole discretion and set forth in the
Award Agreement. All rights with respect to the Restricted Stock granted to a
Participant under the Plan shall be available during his or her lifetime only
to such Participant, or in the event of the Participant’s legal incapacity, to
the Participant’s legal guardian or representative.
	 
	 	(d)  	Other Restrictions. The Administrator shall impose
such other conditions and/or restrictions on any Shares of Restricted Stock
granted pursuant to the Plan as it may deem advisable and as set forth in an
Award Agreement including, without limitation, a requirement that Participants
pay a stipulated purchase price for each Share of Restricted Stock, time-based
restrictions on vesting following the attainment of a performance target, if
applicable, and/or restrictions under applicable Federal or state securities
laws.
	 
	 	   	The Company or its designee shall retain the certificates representing
Shares of Restricted Stock in the Company’s possession until such time as
all conditions and/or restrictions applicable to such Shares have been
satisfied.
	 
	 	   	Except as otherwise provided in this Section 7, Shares of Restricted Stock
covered by each Restricted Stock grant made under the Plan shall become
freely transferable by the Participant after the last day of the applicable
Period of Restriction.
	 
	 	(e)  	Voting Rights. During the Period of Restriction,
Participants holding Shares of Restricted Stock granted hereunder may exercise
full voting rights with respect to those Shares.
	 
	 	(f)  	Dividends and Other Distributions. During the Period
of Restriction, Participants holding Shares of Restricted Stock granted
hereunder may be credited with regular cash dividends, if any, paid with
respect to the underlying Shares while they are so held. The Administrator may
apply any restrictions to the dividends that the Administrator deems
appropriate.
	 
	 	(g)  	Termination of Employment with the Company or a
Subsidiary. Each Award Agreement shall set forth the extent to which the
Participant shall have the right to receive unvested Restricted Shares
following termination of the Participant’s employment with the Company or a
subsidiary. Such provisions shall be determined in the sole discretion of the
Administrator, shall be included in the Award Agreement entered into with each
Participant, need not be uniform among all Shares of Restricted Stock issued
pursuant to




 









 






	 	   	the Plan, and may reflect distinctions based on the reasons for termination
of employment with the Company or a subsidiary.
	 
	 	(h)  	Stockholders Agreement and Related Agreements. Upon
the grant of Restricted Stock hereunder, the Participant shall be required to
become a party to the Stockholders Agreement or any related agreements, as
determined by the Company.





          8. Effect of Liquidity Event. Notwithstanding any provision of the Plan to the
contrary, unless otherwise determined by the Administrator, in its sole discretion or as otherwise
set forth in an Award Agreement, if there should be a Liquidity Event, the Company shall give each
Participant written notice of such Liquidity Event as promptly as practicable prior to the
effective date thereof and (i) any unvested Awards as of the date of the Liquidity Event shall
become immediately exercisable or vested as of the effective date of such Liquidity Event and (ii)
the Administrator may determine, in its sole discretion, the treatment of any Awards which are
exercisable or vested at the time of the Liquidity Event or become exercisable or vested pursuant
to this Section 8.




          9. Call Right. Prior to a Liquidity Event, the Company may purchase Shares acquired
from exercise of an Award or lapse of restrictions from any Participant whose employment or
relationship has been terminated, on ninety (90) days notice, for an amount equal to (a) in the
event that such employment or relationship terminates for Cause, the Award price paid, if any, by
the Participant for the Shares or (b) in the event that such employment or relationship terminates
for any other reason, the greater of (i) Fair Market Value of the Shares as of the date the Company
exercises its rights under this Section and (ii) the Award price paid, if any. Any Shares
purchased by the Company in connection with the exercise of the Company’s call right may be paid in
cash or by check.




          10. Adjustments in Event of Change in Common Stock. In the event of any change in the
common stock by reason of any stock dividend, recapitalization, reorganization, merger,
consolidation, split-up, combination or exchange of Shares, or of any similar change affecting the
common stock, the number and kind of Shares which thereafter may be optioned and sold under the
Plan and the number and kind of Shares subject to Award in outstanding Award Agreements and the
purchase price per share thereof, if any, shall be appropriately adjusted consistent with such
change in such manner as the Board may deem equitable to prevent substantial dilution or
enlargement of the rights granted to, or available for, Participants in the Plan. Without limiting
the generality of the foregoing, if the common stock is recapitalized into multiple classes of
common stock, the kind of Shares subject to Award shall be those common Shares intended for broad
general ownership rather than any class of special super-voting or other control stock.




          11. Plan and Awards Not to Confer Rights with Respect to Continuance of Employment or
Relationship. Neither the Plan nor any action taken thereunder shall be construed as giving
any Participant any right to continue such Participant’s relationship with the Company or a
subsidiary thereof, nor shall it give any employee the right to be retained in the employ of the
Company or a subsidiary, or interfere in any way with the right of the Company or a subsidiary to
terminate any Participant’s employment or relationship, as the case may be, at any time with or
without Cause.




          12. No Claim or Right Under the Plan. No employee, director or consultant of the
Company or any of its subsidiaries shall at any time have the right to be selected as a Participant
in the Plan nor, having been selected as a Participant and granted an Award, to be granted any
additional Award.




          13. Listing and Qualification of Shares. The Plan, the grant and exercise of Awards
thereunder, and the obligation of the Company to sell and deliver Shares under such Awards, shall
be subject to all applicable Federal and state laws, rules and regulations and to such approvals by
any government or regulatory agency as may be required. The Company, in its discretion, may
postpone the issuance or delivery of Shares upon any exercise of an Award until completion of any
stock exchange listing, or other qualification of such Shares under any state or Federal law, rule
or regulation as the Company may consider appropriate, and may require any Award holder to make
such representations and furnish such information as it may consider appropriate in connection with
the issuance or delivery of the Shares in compliance with applicable laws, rules and regulations.
Certificates representing Shares acquired by the exercise of an Award may bear such legend as the
Company may consider appropriate under the circumstances.




 









 








          14. Disposition of Shares of Common Stock. Any Shares acquired with respect to an
Award granted under the Plan or any economic interest therein may only be sold, conveyed,
transferred, assigned, mortgaged, pledged, hypothecated in accordance with the Stockholders
Agreement and related agreements.




          15. Taxes. The Company may make such provisions and take such steps as it may deem
necessary or appropriate for the withholding of all federal, state, local and other taxes required
by law to be withheld with respect to Awards under the Plan including, but not limited to (a)
reducing the number of Shares otherwise deliverable, based upon their Fair Market Value on the date
of exercise, to permit deduction of the amount of any such withholding taxes from the amount
otherwise payable under the Plan, (b) deducting the amount of any such withholding taxes from any
other amount then or thereafter payable to a Participant, or (c) requiring a Participant,
beneficiary or legal representative to pay to the Company the amount required to be withheld or to
execute such documents as the Company deems necessary or desirable to enable it to satisfy its
withholding obligations as a condition of releasing the Share.




          16. No Liability of Administrator. No member of the Administrator shall be personally
liable by reason of any contract or other instrument executed by such member or on his behalf in
his capacity as a member of the Administrator nor for any mistake of judgment made in good faith,
and the Company shall indemnify and hold harmless each employee, officer or director of the Company
to whom any duty or power relating to the administration or interpretation of the Plan may be
allocated or delegated, against any cost or expense (including counsel fees) or liability
(including any sum paid in settlement of a claim with the approval of the Board arising out of any
act or omission to act in connection with the Plan unless such act arises out of the member’s own
fraud or bad faith.




          17. Amendment or Termination. The Administrator may, with prospective or retroactive
effect, amend, suspend or terminate the Plan or any portion thereof at any time and for any reason;
provided, however, that no amendment or other action that requires stockholder approval in order
for the Plan to continue to comply with applicable law, rule or regulation shall be effective
unless such amendment or other action shall be approved by the requisite vote of stockholders of
the Company entitled to vote thereon and no repricing of Awards under the Plan shall occur without
stockholder approval.




          18. Compliance with Section 162(m) of the Code. At all times when Section 162(m) of
the Code is applicable, all Awards granted under the Plan shall comply with the requirements of
Section 162(m) of the Code; provided, however, that in the event the Administrator determines that
such compliance is not desired with respect to any Award of Restricted Stock, compliance with
Section 162(m) of the Code will not be required. In addition, in the event that changes are made
to Section 162(m) of the Code to permit greater flexibility with respect to any Award or Awards
available under the Plan, the Administrator may, subject to Section 17, make any adjustments it
deems appropriate.




          19. Captions. The captions preceding the sections of the Plan have been inserted
solely as a matter of convenience and shall not in any manner define or limit the scope or intent
of any provision of the Plan.




          20. Governing Law. The Plan and all rights thereunder shall be governed by and
construed in accordance with the laws of the State of New York applicable to contracts made and to
be performed entirely within such State.




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




          22. Effective Date. The Plan shall become effective as of August 27, 2004.