Exhibit 4.03


 


KMG
AMERICA CORPORATION


 


2004
EQUITY INCENTIVE PLAN


 





















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
   

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1.01.

  	
   

  	
  Acquiring
  Person

  	
   

  
	
  1.02.

  	
   

  	
  Affiliate

  	
   

  
	
  1.03.

  	
   

  	
  Agreement

  	
   

  
	
  1.04.

  	
   

  	
  Award

  	
   

  
	
  1.05.

  	
   

  	
  Board

  	
   

  
	
  1.06.

  	
   

  	
  Cause

  	
   

  
	
  1.07.

  	
   

  	
  Change
  in Control

  	
   

  
	
  1.08.

  	
   

  	
  Code

  	
   

  
	
  1.09.

  	
   

  	
  Committee

  	
   

  
	
  1.10.

  	
   

  	
  Common
  Stock

  	
   

  
	
  1.11.

  	
   

  	
  Company

  	
   

  
	
  1.12.

  	
   

  	
  Continuing Director

  	
   

  
	
  1.13.

  	
   

  	
  Control Change Date

  	
   

  
	
  1.14.

  	
   

  	
  Corresponding
  SAR

  	
   

  
	
  1.15.

  	
   

  	
  Disability

  	
   

  
	
  1.16.

  	
   

  	
  Exchange
  Act

  	
   

  
	
  1.17.

  	
   

  	
  Fair
  Market Value

  	
   

  
	
  1.18.

  	
   

  	
  Good
  Reason

  	
   

  
	
  1.19.

  	
   

  	
  Incentive
  Award

  	
   

  
	
  1.20.

  	
   

  	
  Initial
  Value

  	
   

  
	
  1.21.

  	
   

  	
  Named Executive Officer

  	
   

  
	
  1.22.

  	
   

  	
  Option

  	
   

  
	
  1.23.

  	
   

  	
  Participant

  	
   

  
	
  1.24.

  	
   

  	
  Performance Shares

  	
   

  
	
  1.25.

  	
   

  	
  Person

  	
   

  
	
  1.26.

  	
   

  	
  Plan

  	
   

  
	
  1.27.

  	
   

  	
  Related
  Entity

  	
   

  
	
  1.28.

  	
   

  	
  SAR

  	
   

  
	
  1.29.

  	
   

  	
  Stock
  Award

  	
   

  
	
  1.30.

  	
   

  	
  Ten Percent Shareholder

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  	
  PURPOSES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
  ADMINISTRATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  	
  ELIGIBILITY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  	
  COMMON STOCK SUBJECT TO PLAN

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.01.

  	
   

  	
  Common Stock Issued

  	
   

  
	
  5.02.

  	
   

  	
  Aggregate
  Limit

  	
   

  
					



 


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  5.03.

  	
   

  	
  Individual
  Limit

  	
   

  
	
  5.04.

  	
   

  	
  Reallocation of Shares

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
  OPTIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.01.

  	
   

  	
  Grant

  	
   

  
	
  6.02.

  	
   

  	
  Option
  Price

  	
   

  
	
  6.03.

  	
   

  	
  Maximum Option Period

  	
   

  
	
  6.04.

  	
   

  	
  Nontransferability

  	
   

  
	
  6.05.

  	
   

  	
  Transferable Options

  	
   

  
	
  6.06.

  	
   

  	
  Exercise

  	
   

  
	
  6.07.

  	
   

  	
  Payment

  	
   

  
	
  6.08.

  	
   

  	
  Employee
  Status

  	
   

  
	
  6.09.

  	
   

  	
  Change
  in Control

  	
   

  
	
  6.10.

  	
   

  	
  Stockholder Rights

  	
   

  
	
  6.11.

  	
   

  	
  Disposition of Shares

  	
   

  
	
  6.12.

  	
   

  	
  No Liability of Company

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  	
  SARS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7.01.

  	
   

  	
  Grant

  	
   

  
	
  7.02.

  	
   

  	
  Maximum SAR Period

  	
   

  
	
  7.03.

  	
   

  	
  Nontransferability

  	
   

  
	
  7.04.

  	
   

  	
  Transferable
  SARs

  	
   

  
	
  7.05.

  	
   

  	
  Exercise

  	
   

  
	
  7.06.

  	
   

  	
  Change
  in Control

  	
   

  
	
  7.07.

  	
   

  	
  Employee
  Status

  	
   

  
	
  7.08.

  	
   

  	
  Settlement

  	
   

  
	
  7.09.

  	
   

  	
  Stockholder Rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  	
  STOCK AWARDS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.01.

  	
   

  	
  Award

  	
   

  
	
  8.02.

  	
   

  	
  Vesting

  	
   

  
	
  8.03.

  	
   

  	
  Performance Objectives

  	
   

  
	
  8.04.

  	
   

  	
  Employee Status

  	
   

  
	
  8.05.

  	
   

  	
  Change
  in Control

  	
   

  
	
  8.06.

  	
   

  	
  Stockholder Rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  	
  PERFORMANCE SHARE AWARDS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9.01.

  	
   

  	
  Grant

  	
   

  
	
  9.02.

  	
   

  	
  Earning
  the Award

  	
   

  
	
  9.03.

  	
   

  	
  Maximum Performance Share Award Period

  	
   

  
	
  9.04.

  	
   

  	
  Payment

  	
   

  
	
  9.05.

  	
   

  	
  Stockholder Rights

  	
   

  
	
  9.06.

  	
   

  	
  Nontransferability

  	
   

  



 


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  9.07.

  	
   

  	
  Transferable Performance Shares

  	
   

  
	
  9.08.

  	
   

  	
  Employee
  Status

  	
   

  
	
  9.09.

  	
   

  	
  Change
  in Control

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
   

  	
  INCENTIVE AWARDS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10.01.

  	
   

  	
  Grant

  	
   

  
	
  10.02.

  	
   

  	
  Terms and Conditions

  	
   

  
	
  10.03.

  	
   

  	
  Maximum Incentive Award Period

  	
   

  
	
  10.04.

  	
   

  	
  Nontransferability

  	
   

  
	
  10.05.

  	
   

  	
  Transferable Incentive Awards

  	
   

  
	
  10.06.

  	
   

  	
  Employee
  Status

  	
   

  
	
  10.07.

  	
   

  	
  Change
  in Control

  	
   

  
	
  10.08.

  	
   

  	
  Stockholder Rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
   

  	
  ADJUSTMENT UPON CHANGE IN COMMON STOCK

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
   

  	
  COMPLIANCE WITH LAW AND APPROVAL OF
  REGULATORY BODIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12.01.

  	
   

  	
  Compliance.

  	
   

  
	
  12.02.

  	
   

  	
  Postponement of Exercise or Payment.

  	
   

  
	
  12.03.

  	
   

  	
  Forfeiture of Payment.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
   

  	
  GENERAL PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  13.01.

  	
   

  	
  Effect on Employment and Service

  	
   

  
	
  13.02.

  	
   

  	
  Unfunded Plan

  	
   

  
	
  13.03.

  	
   

  	
  Rules of Construction

  	
   

  
	
  13.04.

  	
   

  	
  Tax Withholding and Reporting.

  	
   

  
	
  13.05.

  	
   

  	
  Reservation of Shares.

  	
   

  
	
  13.06.

  	
   

  	
  Governing Law.

  	
   

  
	
  13.07.

  	
   

  	
  Other Actions.

  	
   

  
	
  13.08.

  	
   

  	
  Other
  Conditions.

  	
   

  
	
  13.09.

  	
   

  	
  Forfeiture Provisions.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
   

  	
  AMENDMENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XV

  	
   

  	
  DURATION OF PLAN

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XVI

  	
   

  	
  EFFECTIVE DATE OF PLAN

  	
   

  



 


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ARTICLE I

DEFINITIONS


 


1.01.                     Acquiring
Person


 


Acquiring Person means that a Person,
considered alone or as part of a “group” within the meaning of Section 13(d)(3)
of the Securities Exchange Act of 1934, as amended, is or becomes directly or
indirectly the beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) of securities representing more than fifty percent (50%) of the Company’s
then outstanding securities entitled to vote generally in the election of the
Board.


 


1.02.                     Affiliate


 


Affiliate means any “subsidiary” or “parent”
corporation (as such terms are defined in Section 424 of the Code) of the
Company.


 


1.03.                     Agreement


 


Agreement means a written agreement
(including any amendment or supplement thereto) between the Company and a Participant
specifying the terms and conditions of an Award granted to such Participant.


 


1.04.                     Award


 


Award means an Incentive Award, Option,
Performance Share, SAR or Stock Award granted under this Plan.


 


1.05.                     Board


 


Board means the Board of Directors of the
Company.


 


1.06.                     Cause


 


Cause has the same definition as under any
employment or service agreement between the Company or any Affiliate and the
Participant or, if no such employment or service agreement exists or if such
employment or service agreement does not contain any such definition, Cause
means that the Participant (i) has committed fraud or misappropriated, stolen
or embezzled funds or property from the Company or an Affiliate or secured or
attempted to secure personally any profit in connection with any transaction
entered into on behalf of the Company or any Affiliate, (ii) has been convicted
of, or entered a plea of guilty or “nolo
contendere” to, any criminal act or has committed any other act of
willful misconduct which brings the Participant into disrepute or is likely to
cause material harm to the Company’s (or any Affiliate’s) reputation, business,
customer or supplier relations, financial condition or prospects, (iii) has,
notwithstanding not less than 30 days’ prior written notice, willfully failed
to comply with any lawful directives of the Board, the Board of Directors of
any Affiliate or any supervisory personnel of the Participant or otherwise
failed to perform in a satisfactory manner his or her duties with the Company
or any Affiliate (other than by reason of illness or temporary disability),
(iv) has violated or breached


 


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any material law or regulation to the
material detriment of the Company or any Affiliate or its or their business,
(v) has breached any non-competition, non-disclosure or non-solicitation
agreement which causes or is reasonably likely to cause material harm to the
Company or any Affiliate or (vi) has committed any act of willful malfeasance
or gross negligence in a matter of material importance to the Company or any
Affiliate.  For purposes of the Plan,
other than where the definition of Cause is determined under any employment or
service agreement between the Company or any Affiliate and the Participant in
which case such employment or service agreement shall control, in no event
shall any termination of employment or service be deemed for Cause unless the
Company’s Chief Executive Officer concludes that the situation warrants a
determination that the Participant’s employment or service terminated for
Cause; in the case of the Chief Executive Officer, any determination that the
Chief Executive Officer’s employment terminated for Cause shall be made by the
Board acting without the Chief Executive Officer.


 


1.07.                     Change in
Control


 


“Change in Control” means (i) a Person is or
becomes an Acquiring Person; (ii) a transfer of all or substantially all of the
Company’s assets on a consolidated basis, as reported in the Company’s
consolidated financial statements; (iii) a merger, consolidation or statutory
share exchange with a Person, regardless of whether the Company is intended to
be the surviving or resulting entity after the merger, consolidation or
statutory share exchange, other than a
transaction that results in the voting securities of the Company carrying the
right to vote in elections of persons to the Board outstanding immediately
prior to the closing of the transaction continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% (fifty percent) of the Company’s voting
securities carrying the right to vote in elections of persons to the Company’s
Board, or such securities of such surviving entity, outstanding immediately
after the closing of such transaction; (iv) the Continuing Directors cease for
any reason to constitute a majority of the Board; (v) a liquidation of the
Company or the commencement of actions constituting a plan of liquidation or
the closing of a liquidation agreement); or (vi) a majority of the independent
members of the Board adopt a resolution to the effect that, in their judgment,
as a consequence of any one or more transactions or events or series of
transactions or events, a change in control of the Company has effectively
occurred.  The independent members of the
Board shall be entitled to exercise their sole and absolute discretion in
exercising their judgment and in the adoption of such resolution, whether or
not any such transaction(s) or event(s) might be deemed, individually or
collectively, to satisfy any of the criteria set forth in subparagraphs (i)
through (v) above.  Notwithstanding the
foregoing, no event resulting from the initial public offering of the Company’s
securities as contemplated by the Company’s Form S-1 Registration Statement
under the Securities Act of 1933, dated August 3, 2004, as amended (the “Initial
Public Offering”), shall constitute a Change in Control.


 


1.08.                     Code


 


Code means the Internal Revenue Code of 1986,
and any amendments thereto.


 


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1.09.                     Committee


 


Committee means the Compensation Committee of
the Board if the Board appoints one to administer the Plan, or the Board itself
if no such Compensation Committee is appointed. 
If such Compensation Committee is appointed, if and to the extent deemed
necessary by the Board, such Compensation Committee shall consist of two or
more directors, all of whom are “non-employee directors” within the meaning of
Rule 16b-3 under the Exchange Act and, after the transition period prescribed
by the regulations under Code Section 162(m), “outside directors” within the
meaning of Code Section 162(m).


 


1.10.                     Common
Stock


 


Common Stock means the common stock, par
value $0.01 per share, of the Company.


 


1.11.                     Company


 


Company means KMG America Corporation, a
Virginia corporation, or any successor thereto.


 


1.12.                     Continuing
Director


 


Continuing Director means any member of the
Board, while a member of the Board and (i) who was a member of the Board at the
time of the Initial Public Offering or (ii) whose nomination for or election to
the Board was recommended or approved by a majority of the Continuing
Directors.


 


1.13.                     Control
Change Date


 


Control Change Date means the date on which a
Change in Control occurs.  If a Change in
Control occurs on account of a series of transactions, the “Control Change Date”
is the date of the last of such transactions.


 


1.14.                     Corresponding
SAR


 


Corresponding SAR means an SAR that is
granted in relation to a particular Option and that can be exercised only upon
the surrender to the Company, unexercised, of that portion of the Option to
which the SAR relates.


 


1.15.                     Disability


 


Disability has the same definition as under
the Company’s long-term disability insurance plan or, if the Participant does
not participate in such plan or the Company does not sponsor such plan or
discontinues to sponsor such plan, the Participant shall be considered to have
a disability if he or she qualifies for and receives Social Security disability
benefits; provided, however, that with respect to an incentive stock option,
Disability means the inability of a Participant to engage in any substantial
gainful activity by reason of any medically determinable physical or mental


 


3





















 


impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than 12 months as defined in Code Section 22(e)(3).


 


1.16.                     Exchange
Act


 


Exchange Act means the Securities Exchange
Act of 1934, as amended.


 


1.17.                     Fair
Market Value


 


Fair Market Value of a share of Common Stock
means, on any given date, the fair market value of a share of Common Stock as
the Committee in its discretion shall determine; provided, however, that the
Committee shall determine Fair Market Value without regard to any restriction
other than a restriction which, by its terms, will never lapse and, if the
shares of Common Stock are traded on any national stock exchange or quotation
system, the Fair Market Value of a share of Common Stock shall be the closing
price of a share of Common Stock as reported on such stock exchange or
quotation system on such date, or if the shares of Common Stock are not traded
on such stock exchange or quotation system on such date, then on the next
preceding day that the shares of Common Stock were traded on such stock
exchange or quotation system, all as reported by such source as the Committee
shall select.  The Fair Market Value that
the Committee determines shall be final, binding and conclusive on the Company,
any Affiliate and each Participant.


 


1.18.                     Good
Reason


 


Good Reason has the same definition as under
any employment or service agreement between the Company or any Affiliate and
the Participant or, if no such employment or service agreement exists or if
such employment or service agreement does not contain any such definition, Good
Reason means the Participant voluntarily terminates employment or service on
account of and within ninety (90)  days
of (i) a failure by the Company or any Affiliate to comply with any material
provision of any employment or service agreement between the Company or the
Affiliate and the Participant (other than the payment obligations referred to
in clause (v) below) which has not been cured within thirty (30) days after
notice of such noncompliance has been given by the Participant to the Company
or the Affiliate, as applicable; (ii) the assignment to the Participant of any
material duties inconsistent with the Participant’s position with the Company
or any Affiliate or a substantial adverse alteration in the nature or status of
the Participant’s responsibilities, in either event without the Participant’s
consent; (iii) a material reduction in employee benefits, other than a
reduction generally applicable to similarly situated employees of the Company
or the Affiliate, as applicable, without the Participant’s consent; (iv)
relocation of the Participant’s principal place of employment outside a fifty
(50) mile radius of the Participant’s then current principal place of
employment without the Participant’s consent; or (v) any failure by the
Company or an applicable Affiliate to pay the Participant’s base salary or any
incentive bonus to which he or she is entitled, which failure has not been cured
within ten (10) days after notice of such noncompliance has been given by the
Participant to the Company or the Affiliate, as applicable.  For purposes of the Plan, other than where
the definition of Good Reason is determined under any employment or service
agreement between the Company or any Affiliate and the Participant in which
case such employment of service agreement shall control,


 


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the Committee shall determine whether any
termination of employment or service shall be deemed for Good Reason.


 


1.19.                     Incentive
Award


 


Incentive Award means an award stated with
reference to a specified dollar amount which, subject to such terms and
conditions as may be prescribed by the Committee, entitles the Participant to
receive shares of Common Stock from the Company or an Affiliate.


 


1.20.                     Initial
Value


 


Initial Value means, with respect to a
Corresponding SAR, the option price per share of the related Option and, with
respect to an SAR granted independently of an Option, the Fair Market Value of
one share of Common Stock on the date of grant.


 


1.21.                     Named
Executive Officer


 


Named Executive Officer means a Participant
who, as of the last day of a taxable year, is the Chief Executive Officer of
the Company (or is acting in such capacity) or one of the four highest
compensated officers of the Company (other than the Chief Executive Officer) or
is otherwise one of the group of “covered employees”, as defined in the
Treasury Regulations promulgated under Code Section 162(m).


 


1.22.                     Option


 


Option means a stock option that entitles the
holder to purchase from the Company a stated number of shares of Common Stock
at the price set forth in an Agreement.


 


1.23.                     Participant


 


Participant means an employee of the Company
or an Affiliate, a non-employee member of the Board, or a person or entity that
provides services to the Company or an Affiliate and who satisfies the
requirements of Article IV and is selected by the Committee to receive an
Award.


 


1.24.                     Performance
Shares


 


Performance Shares means an award, in the
amount determined by the Committee, stated with reference to a specified number
of shares of Common Stock, that in accordance with the terms of an Agreement
entitles the holder to receive a cash payment or shares of Common Stock or a
combination thereof.


 


1.25.                     Person


 


“Person” means any human being, firm,
corporation, partnership, or other entity. 
“Person” also includes any human being, firm, corporation, partnership,
or other entity as defined in sections 13(d)(3) and 14(d)(2) of the Exchange
Act.  The term “Person” does not include
the Company or any Related Entity, and the term Person does not include any
employee-


 


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benefit plan maintained by the Company or any
Related Entity, or any person or entity organized, appointed, or established by
the Company or any Related Entity for or pursuant to the terms of any such
employee-benefit plan, unless the Board determines that such an
employee-benefit plan or such person or entity is a “Person”.


 


1.26.                     Plan


 


Plan means this KMG America Corporation 2004
Equity Incentive Plan, in its current form and as hereafter amended.


 


1.27.                     Related
Entity


 


Related Entity means any entity that is part
of a controlled group of corporations or is under common control with the
Company within the meaning of Sections 1563(a), 414(b) or 414(c) of the Code.


 


1.28.                     SAR


 


SAR means a stock appreciation right that in
accordance with the terms of an Agreement entitles the holder to receive a
number of shares of Common Stock, or in the discretion of the Committee, a cash
award, or a combination of shares of Common Stock and cash, based on the
increase in the Fair Market Value of the shares underlying the stock
appreciation right during a stated period specified by the Committee.  References to “SARs” include both
Corresponding SARs and SARs granted independently of Options, unless the
context requires otherwise.


 


1.29.                     Stock
Award


 


Stock Award means shares of Common Stock
granted to a Participant under Article VIII.


 


1.30.                     Ten
Percent Shareholder


 


Ten Percent Shareholder means any individual
who (considering the stock attribution rules described in Code Section 424(d))
owns stock possessing more than 10 percent of the total combined voting power
of all classes of stock of the Company or any Affiliate.


 


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ARTICLE II

PURPOSES


 


The Plan is intended to assist the Company
and its Affiliates in recruiting and retaining individuals and other service
providers with ability and initiative by enabling such persons or entities to
participate in the future success of the Company and its Affiliates and to
associate their interests with those of the Company and its stockholders.  The Plan is intended to permit the grant of both
Options qualifying under Section 422 of the Code (“incentive stock options”)
and Options not so qualifying, and the grant of SARs, Stock Awards, Performance
Shares and Incentive Awards in accordance with the Plan and procedures that may
be established by the Committee.  No
Option that is intended to be an incentive stock option shall be invalid for
failure to qualify as an incentive stock option.  The proceeds received by the Company from the
sale of shares of Common Stock pursuant to this Plan shall be used for general
corporate purposes.


 


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ARTICLE
III

ADMINISTRATION


 


The Plan shall be administered by the
Committee.  The Committee shall have
authority to grant Awards upon such terms (not inconsistent with the provisions
of this Plan) as the Committee may consider appropriate.  Such terms may include conditions (in
addition to those contained in this Plan) on the exercisability of all or any
part of an Option or SAR, the transferability or forfeitability of a Stock
Award, or the grant or settlement of Performance Shares or an Incentive
Award.  Notwithstanding any such
conditions, the Committee may, in its discretion, accelerate the time at which
any Option or SAR may be exercised, or the time at which a Stock Award may
become transferable or nonforfeitable or the time at which an Incentive Award
or award of Performance Shares may be settled. 
In addition, the Committee shall have complete authority to interpret
all provisions of this Plan; to prescribe the form of Agreements; to adopt,
amend, and rescind rules and regulations pertaining to the administration of
the Plan; and to make all other determinations necessary or advisable for the
administration of this Plan.  The express
grant in the Plan of any specific power to the Committee shall not be construed
as limiting any power or authority of the Committee.  Any decision made, or action taken, by the
Committee in connection with the administration of this Plan shall be final and
conclusive.  The members of the Committee
shall not be liable for any act done in good faith with respect to this Plan or
any Agreement or Award.  All expenses of
administering this Plan shall be borne by the Company.


 


To the extent applicable law so permits, the
Committee, in its discretion, may delegate to one or more officers of the
Company all or part of the Committee’s authority and duties with respect to
Awards to be granted to individuals who are not subject to the reporting and
other provisions of Section 16 of the Exchange Act and, after the
transition period prescribed by the regulations under Code Section 162(m), who
are not Named Executive Officers.  The
Committee may revoke or amend the terms of a delegation at any time but such
action shall not invalidate any prior actions of the Committee’s delegate or
delegates that were consistent with the terms of the Plan and the Committee’s
prior delegation.  If and to the extent
deemed necessary by the Board, all Awards granted to any individual who is
subject to the reporting and other provisions of Section 16 of the Exchange Act
shall be made by a Committee comprised solely of two or more directors, all of
whom are “non-employee directors” within the meaning of Rule 16b-3 under the
Exchange Act and, after the transition period prescribed by the regulations
under Code Section 162(m), all Awards granted to any individual who is a Named
Executive Officer shall be made by a Committee comprised solely of two or more
directors, all of whom are “outside directors” within the meaning of Code
Section 162(m).


 


The Company shall bear all expenses of
administering this Plan.  The Company
shall indemnify and hold harmless each person who is or shall have been a
member of the Committee acting as administrator of the Plan, or any delegate of
such, against and from any cost, liability, loss or expense that may be imposed
upon or reasonably incurred by such person in connection with or resulting from
any action, claim, suit, or proceeding to which such person may be a party or
in which such person may be involved by reason of any action taken or not taken
under the Plan and against and from any and all amounts paid by such person in
settlement thereof, with


 


8





















 


the Company’s approval, or paid by such person
in satisfaction of any judgment in any such action, suit, or proceeding against
such person, provided he or she shall give the Company an opportunity, at its
own expense, to handle and defend the same before he or she undertakes to
handle and defend it on his or her own behalf. 
Notwithstanding the foregoing, the Company shall not indemnify and hold
harmless any such person if (i) applicable law or the Company’s Articles of
Incorporation or Bylaws prohibit such indemnification or (ii) such person did
not act in good faith and in a manner that such person believed to be
consistent with the Plan or such person’s conduct constituted gross negligence
or willful misconduct.  The foregoing
right of indemnification shall not be exclusive of any other rights of indemnification
to which such persons may be entitled under the Company’s Articles of
Incorporation or Bylaws, as a matter of law or otherwise, or under any other
power that the Company may have to indemnify such person or hold him or her
harmless.  The provisions of the
foregoing indemnity shall survive indefinitely the term of this Plan.


 


9





















 


ARTICLE IV

ELIGIBILITY


 


Any employee of the Company or an Affiliate
(including a corporation that becomes an Affiliate after the adoption of this
Plan) and any non-employee member of the Board is eligible to participate in
this Plan.  In addition, any other person
or entity that provides services to the Company or an Affiliate is eligible to
participate in this Plan if the Board, in its sole discretion, determines that
it is in the best interest of the Company.


 


10





















 


ARTICLE V

COMMON STOCK SUBJECT TO PLAN


 


5.01.                     Common
Stock Issued


 


Upon the issuance of shares of Common Stock
pursuant to an Award, the Company may deliver to the Participant shares of
Common Stock or treasury shares from its authorized but unissued Common Stock.


 


5.02.                     Aggregate
Limit


 


The maximum aggregate number of shares of
Common Stock that may be issued under this Plan shall be the lesser of (i)
1,827,500 shares or (ii) that number that equals nine and one-half percent
(9.5%) of the outstanding shares of Common Stock as of the Initial Public
Offering.  One hundred percent (100%) of
such shares may be issued pursuant to Options or any other type of Award.  In addition, the maximum aggregate number of
shares of Common Stock that may be issued under this Plan and the foregoing
limits shall be subject to adjustment as provided in Article XI.


 


5.03.                     Individual
Limit


 


In any calendar year, no Participant may
receive Options, SARs, Stock Awards, Performance Shares or any combination of
each that relate to more than 350,000 shares. 
This Section 5.03 applies only with respect to Awards that are made at
the end of the transition period prescribed by the regulations under Code
Section 162(m).


 


5.04.                     Reallocation
of Shares


 


If an Option is terminated, in whole or in
part, for any reason other than its exercise or the exercise of a Corresponding
SAR that is settled with shares of Common Stock, the number of shares of Common
Stock allocated to the Option or portion thereof may be reallocated to other
Awards to be granted under this Plan.  If
an SAR is terminated, in whole or in part, for any reason other than its
exercise that is settled with shares of Common Stock or the exercise of a
related Option, the number of shares of Common Stock allocated to the SAR or
portion thereof may be reallocated to other Awards to be granted under this
Plan.  If an award of Performance Shares
is terminated, in whole or in part, for any reason other than its settlement
with shares of Common Stock, the number of shares allocated to the Performance
Shares or portion thereof may be reallocated to other Awards to be granted
under this Plan.  If a Stock Award is
forfeited, in whole or in part, for any reason, the number of shares of Common
Stock allocated to the Stock Award or portion thereof may be reallocated to
other Awards to be granted under this Plan.


 


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ARTICLE VI

OPTIONS


 


6.01.                     Grant


 


In accordance with the provisions of
Article IV, the Committee will designate each individual or entity to whom
an Option is to be granted and will specify the number of shares of Common
Stock covered by such grant.  Notwithstanding any other provision of the
Plan or any Agreement, the Committee may only grant an incentive stock option
to an individual who is an employee of the Company or an Affiliate.


 


6.02.                     Option
Price


 


The price per share of Common Stock purchased
on the exercise of an Option shall be determined by the Committee on the date
of grant, but shall not be less than the Fair Market Value of a share of Common
Stock on the date the Option is granted. 
However, if at the time of grant of an Option that is intended to be an
incentive stock option the Participant is a Ten Percent Shareholder, the price
per share of Common Stock purchased on the exercise of such Option shall not be
less than 110% of the Fair Market Value of a share of Common Stock on the date
the Option is granted.


 


6.03.                     Maximum
Option Period


 


The maximum period in which an Option may be
exercised shall be determined by the Committee on the date of grant, except
that no Option shall be exercisable after the expiration of ten years from the
date such Option was granted (five years from the date such Option was granted
in the event of an incentive stock option granted to a Ten Percent
Shareholder).


 


6.04.                     Nontransferability


 


Except as provided in Section 6.05, each
Option granted under this Plan shall be nontransferable except by will or by
the laws of descent and distribution.  In
the event of any transfer of an Option (by the Participant or his transferee),
the Option and any Corresponding SAR that relates to such Option must be
transferred to the same person or persons or entity or entities.  Except as provided in Section 6.05, during
the lifetime of the Participant to whom the Option is granted, the Option may
be exercised only by the Participant.  No
right or interest of a Participant in any Option shall be liable for, or
subject to, any lien, obligation, or liability of such Participant.


 


6.05.                     Transferable
Options


 


Section 6.04 to the contrary notwithstanding,
if the Agreement provides, an Option that is not an incentive stock option may
be transferred by a Participant to the Participant’s children, grandchildren,
spouse, one or more trusts for the benefit of such family members or a
partnership in which such family members are the only partners, on such terms
and conditions as appropriate so that such transferees are included in the
class of transferees who may rely on a Form S-8


 


12





















 


Registration Statement under the Securities
Act of 1933 to sell shares issuable upon exercise of Options granted under the
Plan.  The holder of an Option
transferred pursuant to this Section shall be bound by the same terms and
conditions that governed the Option during the period that it was held by the
Participant; provided, however, that such transferee may not transfer the
Option except by will or the laws of descent and distribution.  In the event of any transfer of an Option (by
the Participant or his transferee), the Option and any Corresponding SAR that
relates to such Option must be transferred to the same person or persons or
entity or entities.


 


6.06.                     Exercise


 


Subject to the provisions of this Plan and if
an applicable Agreement does not provide for when Options shall become
exercisable, a Participant’s Options shall become exercisable with respect to
one-fourth of the shares of Common Stock subject to the Options on each of the
first, second, third and fourth anniversaries of the date of grant, provided
the Participant has been continuously employed by or has continuously provided
services to the Company or an Affiliate as of each such date.  Additionally, if the Committee so provides in
an applicable Agreement, the Participant’s outstanding Options shall become
exercisable with respect to one hundred percent (100%) of the shares of Common
Stock subject to the Options that have not previously become exercisable upon
(i) involuntary termination of the Participant’s employment or service by the
Company or an Affiliate other than for Cause, (ii) voluntary termination of the
Participant’s employment or service with the Company or an Affiliate by the
Participant for Good Reason, (iii) the Participant’s death while still employed
by or providing services to the Company or an Affiliate or (iv) the Participant’s
Disability while still employed by or providing services to the Company or an
Affiliate.  Notwithstanding the
foregoing, incentive stock options (granted under the Plan and all plans of the
Company and its Affiliates) may not be first exercisable in a calendar year for
shares of Common Stock having a Fair Market Value (determined as of the date
the Option is granted) exceeding $100,000. 
If the limitation is exceeded, the Options that cause the limitation to
be exceeded shall be treated as nonqualified stock options.  An Option shall be exercised in such a manner
and in compliance with such requirements as the Committee shall determine.  An Option granted under this Plan may be
exercised with respect to any number of whole shares less than the full number
for which the Option could be exercised. 
A partial exercise of an Option shall not affect the right to exercise
the Option from time to time in accordance with this Plan and the applicable
Agreement with respect to the remaining shares subject to the Option.  The exercise of an Option shall result in the
termination of any Corresponding SAR to the extent of the number of shares with
respect to which the Option is exercised.


 


6.07.                     Payment


 


Subject to rules established by the Committee
and unless provided otherwise in an Agreement, payment of all or part of the
Option price may be made in cash, certified check, by tendering shares of
Common Stock (which, if acquired from the Company, have been held by the
Participant for at least six months) or by a broker-assisted cashless exercise.  If shares of Common Stock are used to pay all
or part of the Option price, the sum of the cash and cash equivalent and the
Fair Market Value (determined as of the day preceding the date of exercise) of


 


13





















 


the shares surrendered must not be less than
the Option price of the shares for which the Option is being exercised.


 


6.08.                     Employee
Status


 


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


 


6.09.                     Change in
Control


 


Notwithstanding any provision of any
Agreement, in the event of or in anticipation of a Change in Control, the
Committee in its discretion (i) may declare that some or all outstanding
Options previously granted under the Plan, whether or not then exercisable,
shall terminate as of a date before or on the Control Change Date without any
payment to the holder of the Option, provided the Committee gives prior written
notice to the Participants of such termination and gives such Participants the
right to exercise their outstanding Options before such date to the extent then
exercisable or (ii) may terminate before or on the Control Change Date some or
all outstanding Options previously granted under the Plan, whether or not then
exercisable, in consideration of payment to the holder of the Option, with
respect to each share of Common Stock for which the Option is then exercisable,
of the excess, if any, of the Fair Market Value on such date of the Common
Stock subject to the exercisable portion of the Option over the Option
price.  The payment described in (ii) above
may be made in any manner the Committee determines, including in cash, stock or
other property.  The Committee may take
the actions described in (i) or (ii) above with respect to Options that are not
then exercisable whether or not the Participant will receive any payment
therefor.  The Committee in its
discretion may take the actions described in (i) or (ii) above contingent on
consummation of the Change in Control and with respect to some or all
outstanding Options, whether or not then exercisable, or on an Option-by-Option
basis, which actions need not be uniform with respect to all outstanding
Options.  However, the Options shall not
be terminated to the extent that written provision is made for their
continuance, assumption or substitution by the Company or a successor employer
or its parent or subsidiary in connection with the Change in Control.  If the Committee so provides in an applicable
Agreement, a Participant’s outstanding Options shall be fully exercisable on
and after a Control Change Date or immediately before the date the Options will
be terminated in connection with the Change in Control, as described above,
provided the Participant has been continuously employed by or has continuously
provided services to the Company or an Affiliate as of such time.


 


6.10.                     Stockholder
Rights


 


No Participant shall have any rights as a
stockholder with respect to shares subject to his Option until the date of
exercise of such Option.


 


14





















 


6.11.                     Disposition
of Shares


 


A Participant shall notify the Company of any
sale or other disposition of shares of Common Stock acquired pursuant to an
Option that was an incentive stock option if such sale or disposition occurs
(i) within two years of the grant of an Option or (ii) within one
year of the issuance of shares of Common Stock to the Participant.  Such notice shall be in writing and directed
to the Secretary of the Company.


 


6.12.                     No
Liability of Company


 


The Company shall not be liable to any
Participant or any other person if the Internal Revenue Service or any court or
other authority having jurisdiction over such matter determines for any reason
that an Option intended to be an incentive stock option and granted hereunder
does not qualify as an incentive stock option.


 


15





















 


ARTICLE
VII

SARS


 


7.01.                     Grant


 


In accordance with the provisions of
Article IV, the Committee will designate each individual or entity to whom
SARs are to be granted and will specify the number of shares of Common Stock
covered by such grant.  For purposes of
the foregoing limit, an Option and Corresponding SAR shall be treated as a
single Award.  In addition, no
Participant may be granted Corresponding SARs (under this Plan and all other
incentive stock option plans of the Company and its Affiliates) that are
related to incentive stock options which are first exercisable in any calendar
year for shares of Common Stock having an aggregate Fair Market Value
(determined as of the date the related Option is granted) that exceeds
$100,000.


 


7.02.                     Maximum
SAR Period


 


The term of each SAR shall be determined by
the Committee on the date of grant, except that no SAR shall have a term of
more than ten years from the date such SAR was granted (five years for a
Corresponding SAR that is related to an incentive stock option and that is
granted to a Ten Percent Shareholder).


 


7.03.                     Nontransferability


 


Except as provided in Section 7.04, each SAR
granted under this Plan shall be nontransferable except by will or by the laws
of descent and distribution.  In the
event of any such transfer, a Corresponding SAR and the related Option must be
transferred to the same person or persons or entity or entities.  Except as provided in Section 7.04, during
the lifetime of the Participant to whom the SAR is granted, the SAR may be
exercised only by the Participant.  No
right or interest of a Participant in any SAR shall be liable for, or subject
to, any lien, obligation, or liability of such Participant.


 


7.04.                     Transferable
SARs


 


Section 7.03 to the contrary notwithstanding,
if the Agreement so provides, an SAR, other than a Corresponding SAR that is
related to an incentive stock option, may be transferred by a Participant to
the Participant’s children, grandchildren, spouse, one or more trusts for the
benefit of such family members or a partnership in which such family members
are the only partners, on such terms and conditions as appropriate so that such
transferees are included in the class of transferees who may rely on a Form S-8
Registration Statement under the Securities Act of 1933 to sell shares received
pursuant to Awards granted under the Plan. 
The holder of an SAR transferred pursuant to this Section shall be bound
by the same terms and conditions that governed the SAR during the period that
it was held by the Participant; provided, however, that such transferee may not
transfer the SAR except by will or the laws of descent and distribution.  In the event of any transfer of a
Corresponding SAR (by the Participant or his transferee), the Corresponding SAR
and the related Option must be transferred to the same person or person or
entity or entities.


 


16





















 


7.05.                     Exercise


 


Subject to the provisions of this Plan and if
an applicable Agreement does not provide for when an SAR shall become
exercisable, an SAR shall become exercisable with respect to one-fourth of the
shares of Common Stock covered by the grant on each of the first, second, third
and fourth anniversaries of the date of grant, provided the Participant has been
continuously employed by or has continuously provided services to the Company
or an Affiliate as of each such date. 
Additionally, if the Committee so provides in an applicable Agreement,
an SAR shall become exercisable with respect to one hundred percent (100%) of
the shares of Common Stock covered by the grant that have not previously become
exercisable upon (i) involuntary termination of the Participant’s employment or
service by the Company or an Affiliate other than for Cause, (ii) voluntary
termination of the Participant’s employment or service with the Company or an
Affiliate by the Participant for Good Reason, (iii) the Participant’s death
while still employed by or providing services to the Company or an Affiliate or
(iv) the Participant’s Disability while still employed by or providing services
to the Company or an Affiliate. 
Notwithstanding the foregoing, an SAR may be exercised only to the
extent that the related Option (in the case of a Corresponding SAR) is
exercisable and only when the Fair Market Value of the Common Stock that is
subject to the exercise exceeds the Initial Value of the SAR.  An SAR granted under this Plan may be
exercised with respect to any number of whole shares less than the full number
for which the SAR could be exercised.  A
partial exercise of an SAR shall not affect the right to exercise the SAR from
time to time in accordance with this Plan and the applicable Agreement with
respect to the remaining shares subject to the SAR.  The exercise of a Corresponding SAR shall result
in the termination of the related Option to the extent of the number of shares
with respect to which the SAR is exercised.


 


7.06.                     Change in
Control


 


Notwithstanding any provision of any
Agreement, in the event of or in anticipation of a Change in Control, the
Committee in its discretion (i) may declare that some or all outstanding SARs
previously granted under the Plan, whether or not then exercisable, shall
terminate as of a date before or on the Control Change Date without any payment
to the holder of the SAR, provided the Committee gives prior written notice to
the Participants of such termination and gives such Participants the right to
exercise their outstanding SARs before such termination date to the extent then
exercisable or (ii) may terminate before or on the Control Change Date some or
all outstanding SARs previously granted under the Plan, whether or not then
exercisable, in consideration of payment to the holder of the SAR, with respect
to each share of Common Stock for which the SAR is then exercisable, of the
excess, if any, of the Fair Market Value of such Common Stock on such date over
the Initial Value of the SAR.  The
payment described in (ii) above may be made in any manner the Committee determines,
including in cash, stock or other property. 
The Committee may take the actions described in (i) or (ii) above with
respect to SARs that are not then exercisable whether or not the Participant
will receive any payment therefor.  The
Committee in its discretion may take the actions described in (i) or (ii) above
contingent on consummation of the Change in Control and with respect to some or
all outstanding SARs, whether or not then exercisable, or on an SAR-by-SAR
basis, which actions need not be uniform with respect to all outstanding SARs.  Notwithstanding the foregoing, no


 


17





















 


payment shall be made with respect to a
Corresponding SAR to the extent the Committee made a payment with respect to
the Option that relates to the Corresponding SAR.  No SARs shall be terminated to the extent that
written provision is made for their assumption, continuance or substitution by
the Company or a successor employer or its parent or subsidiary in connection
with the Change in Control.  If the
Committee so provides in an applicable Agreement, a Participant’s outstanding
SARs shall be fully exercisable on and after a Control Change Date or
immediately before the date the SARs will be terminated in connection with the
Change in Control, as described above, provided the Participant has been
continuously employed by or has continuously provided services to the Company
or an Affiliate as of such time.


 


7.07.                     Employee
Status


 


If the terms of any SAR provide that it may
be exercised only during employment or continued service or within a specified
period of time after termination of employment or continued service, the
Committee may decide to what extent leaves of absence for governmental or
military service, illness, temporary disability or other reasons shall not be deemed
interruptions of continuous employment or service.


 


7.08.                     Settlement


 


At the Committee’s discretion, the amount
payable as a result of the exercise of an SAR may be settled in cash, shares of
Common Stock, or a combination of cash and Common Stock.  No fractional share will be deliverable upon
the exercise of an SAR but a cash payment will be made in lieu thereof.


 


7.09.                     Stockholder
Rights


 


No Participant shall, as a result of
receiving an SAR, have any rights as a stockholder of the Company or any Affiliate
until the date that the SAR is exercised and then only to the extent that the
SAR is settled by the issuance of Common Stock.


 


18





















 


ARTICLE VIII

STOCK AWARDS


 


8.01.                     Award


 


In accordance with the provisions of
Article IV, the Committee will designate each individual or entity to whom
a Stock Award is to be granted and will specify the number of shares of Common
Stock covered by such grant.


 


8.02.                     Vesting


 


The Committee, on the date of grant, may
prescribe that a Participant’s rights in the Stock Award shall be forfeitable
and nontransferable for a period of time and subject to such conditions as may
be set forth in the Agreement.  By way of
example and not of limitation, the Committee may prescribe that a Participant’s
rights in a Stock Award shall be forfeitable and nontransferable subject to (a)
the attainment of objectives stated with reference to the Company’s, an
Affiliate’s or a business unit’s attainment of objectives stated with respect
to performance criteria listed in Section 8.03, (b) the Participant’s
completion of a specified period of employment or service with the Company or
an Affiliate, (c) the Participant’s death, disability or retirement or (d)
satisfaction of a combination of any of the foregoing factors.  To the extent the Participant’s rights in a
Stock Award are forfeitable and nontransferable for a period of time, the
Committee on the date of grant shall determine the maximum period over which
the rights may become nonforfeitable and transferable, except that such period
shall not exceed ten years.  If an
applicable Agreement does not provide for when a Participant’s rights in a
Stock Award will become nonforfeitable and transferable, a Participant’s rights
in a Stock Award will become nonforfeitable and transferable with respect to
one-fourth of the shares of Common Stock covered by the grant on each of the
first, second, third and fourth anniversaries of the date of grant, provided
the Participant has been continuously employed by or has continuously provided
services to the Company or an Affiliate as of each such date.  Additionally, if the Committee so provides in
an applicable Agreement, an outstanding Stock Award shall become nonforfeitable
and transferable with respect to one hundred percent (100%) of the shares of
Common Stock covered by the grant upon (i) involuntary termination of the
Participant’s employment or service by the Company or an Affiliate other than
for Cause, (ii) voluntary termination of a Participant’s employment or service
with the Company or an Affiliate by the Participant for Good Reason, (iii) the
Participant’s death while still employed by or providing services to the
Company or an Affiliate or (iv) the Participant’s Disability while still
employed by or providing services to the Company or an Affiliate.


 


8.03.                     Performance Objectives


 


In accordance with Section 8.02, the
Committee may prescribe in an applicable Agreement that Stock Awards will
become nonforfeitable and transferable based on objectives stated with respect
to the Company’s, an Affiliate’s or a business unit’s (a) total stockholder
return; (b) total stockholder return as compared to total return (on a
comparable basis) of a publicly available index; (c) net income; (d) gross,
operating or net earnings before or after taxes; (e) funds from operations; (f)
earnings before interest expense, taxes, depreciation and


 


19





















 


amortization; (g) operating margin; (h)
earnings per share; (i) return on equity, capital, assets, net assets, sales or
investment; (j) working capital; (k) ratio of debt to stockholders equity;
(l) revenue; (m) cash flow or cash flow per share; (n) book value per share;
(o) earnings growth; (p) sales growth; (q) customer growth; (r) Fair Market
Value of the Company or any Affiliate or shares of Common Stock; (s) share
price; (t) market share; (u) economic value added; (v) market value added; (w)
productivity; (x) level of expenses; (y) quality; (z) safety; (aa) customer
satisfaction or (bb) peer group comparisons of any of the aforementioned
performance objectives.  If the
Committee, on the date of grant, prescribes that a Stock Award shall become
nonforfeitable and transferable only upon the attainment of any of the above
performance objectives, the shares of Common Stock subject to such Stock Award
shall become nonforfeitable and transferable only to the extent that the
Committee certifies in writing that such objectives have been achieved.


 


8.04.                     Employee Status


 


In the event that the terms of any Stock
Award provide that shares shall become nonforfeitable and transferable
thereunder only after completion of a specified period of employment or
continuous service, the Committee may decide in each case to what extent leaves
of absence for governmental or military service, illness, temporary disability,
or other reasons shall not be deemed interruptions of continuous employment or
service.


 


8.05.                     Change in Control


 


Notwithstanding any provision of any
Agreement, in the event of or in anticipation of a Change in Control, the
Committee in its discretion may terminate before or on the Control Change Date
outstanding Stock Awards previously granted under the Plan that are not then
nonforfeitable and transferable without any payment to the holder of the Stock
Awards.  The Committee in its discretion
may take the action described in this Section 8.05 contingent on the
consummation of the Change in Control and with respect to some or all
outstanding Stock Awards or on a Stock Award-by-Stock Award basis, which
actions need not be uniform with respect to all outstanding Stock Awards.  The preceding sentences to the contrary
notwithstanding, the Stock Awards shall not be terminated to the extent that
written provision is made for their assumption, continuance or substitution by
the Company or a successor employer or its parent or subsidiary in connection
with the Change in Control.  If the
Committee so provides in an applicable Agreement, a Participant’s outstanding
Stock Awards shall become nonforfeitable and transferable on and after a
Control Change Date or immediately before the date the Stock Awards would
otherwise be terminated in connection with the Change in Control, as described
above, provided the Participant has been continuously employed by or has
continuously provided services to the Company or an Affiliate as of such time.


 


8.06.                     Stockholder Rights


 


Prior to their forfeiture (in accordance with
the applicable Agreement and while the shares of Common Stock granted pursuant
to the Stock Award may be forfeited and are nontransferable), a Participant
will have all rights of a stockholder with respect to a Stock Award, including
the right to receive dividends and vote the shares; provided, however, that


 


20





















 


during such period (i) a Participant may not
sell, transfer, pledge, exchange, hypothecate, or otherwise dispose of shares
granted pursuant to a Stock Award, (ii) the Company shall retain custody of the
certificates evidencing shares granted pursuant to a Stock Award, and (iii) the
Participant will deliver to the Company a stock power, endorsed in blank, with
respect to each Stock Award.  The
limitations set forth in the preceding sentence shall not apply after the
shares granted under the Stock Award are transferable and are no longer
forfeitable.


 


21





















 


ARTICLE IX

PERFORMANCE SHARE AWARDS


 


9.01.                     Grant


 


In accordance with the provisions of
Article IV, the Committee will designate each individual or entity to whom
a grant of Performance Shares is to be made and will specify the number of
shares covered by such grant.


 


9.02.                     Earning the Award


 


The Committee, on the date of grant of the
Performance Shares, shall prescribe that the Performance Shares will be earned
and become payable subject to such conditions as are set forth in the
Agreement.  By way of example and not of
limitation, the Committee may prescribe that the Performance Shares will be
earned and become payable upon (a) the satisfaction of performance objectives
as described below, (b) the Participant’s completion of a specified period of
employment or service with the Company or an Affiliate, (c) the Participant’s
death, disability or retirement or (d) satisfaction of a combination of any of
the foregoing factors.  The performance
objectives may be stated with respect to the Company’s, an Affiliate’s or a
business unit’s (a) total stockholder return; (b) total stockholder return as
compared to total return (on a comparable basis) of a publicly available index;
(c) net income; (d) gross, operating or net earnings before or after taxes; (e)
funds from operations; (f) earnings before interest expense, taxes,
depreciation and amortization; (g) operating margin; (h) earnings per share;
(i) return on equity, capital, assets, net assets, sales or investment; (j)
working capital; (k) ratio of debt to stockholders equity; (l) revenue; (m)
cash flow or cash flow per share; (n) book value per share; (o) earnings
growth; (p) sales growth; (q) customer growth; (r) Fair Market Value of the
Company or any Affiliate or shares of Common Stock; (s) share price; (t) market
share; (u) economic value added; (v) market value added; (w) productivity;
(x) level of expenses; (y) quality; (z) safety; (aa) customer satisfaction
or (bb) peer group comparisons of any of the aforementioned performance
objectives.  If the Committee, on the
date of grant, prescribes that Performance Shares will be earned and payable
only upon the attainment of such performance objectives, no Performance Shares
will be considered earned and no payments will be made with respect to such
Performance Shares unless, and then only to the extent that, the Committee
certifies in writing that such objectives have been achieved.  If an applicable Agreement does not provide
for when a Participant’s rights in Performance Shares will be earned and become
payable, a Participant’s rights in Performance Shares will be earned and become
payable with respect to one-fourth of the shares of Common Stock covered by the
grant on each of the first, second, third and fourth anniversaries of the date
of grant, provided the Participant has been continuously employed by or has
continuously provided services to the Company or an Affiliate as of each such
date.  Additionally, if the Committee so
provides in an applicable Agreement, outstanding Performance Shares shall be
earned and become payable with respect to one hundred percent (100%) of the
shares of Common Stock covered by the grant upon (i) involuntary termination of
the Participant’s employment or service by the Company or an Affiliate other
than for Cause, (ii) voluntary termination of a Participant’s employment or
service with the Company or an Affiliate by the Participant for Good Reason,
(iii) the Participant’s death while still


 


22





















 


employed by or providing services to the
Company or an Affiliate or (iv) the Participant’s Disability while still
employed by or providing services to the Company or an Affiliate.


 


9.03.                     Maximum Performance Share Award
Period


 


The Committee, on the date of grant, shall
determine the maximum period over which Performance Share Awards may be earned,
except that such period shall not exceed ten years.


 


9.04.                     Payment


 


In the discretion of the Committee, the
amount payable when an award of Performance Shares is earned may be settled in
cash, by the issuance of shares of Common Stock, or a combination thereof.  A fractional share of Common Stock shall not
be deliverable when an award of Performance Shares is earned, but a cash
payment will be made in lieu thereof.


 


9.05.                     Stockholder Rights


 


No Participant shall, as a result of
receiving a grant of Performance Shares, have any rights as a stockholder until
and then only to the extent that the Performance Shares are earned and settled
in shares of Common Stock.  After
Performance Shares are earned and settled in shares, a Participant will have
all the rights of a stockholder with respect to such shares, including the
right to receive dividends and vote the shares.


 


9.06.                     Nontransferability


 


Except as provided in Section 9.07
Performance Shares granted under this Plan shall be nontransferable except by
will or by the laws of descent and distribution.  No right or interest of a Participant in any
Performance Shares shall be liable for, or subject to, any lien, obligation, or
liability of such Participant.


 


9.07.                     Transferable Performance Shares


 


Section 9.06 to the contrary
notwithstanding, if the Agreement so provides, an award of Performance Shares
may be transferred by a Participant to the Participant’s children,
grandchildren, spouse, one or more trusts for the benefit of such family
members or a partnership in which such family members are the only partners, on
such terms and conditions as appropriate so that such transferees are included
in the class of transferees who may rely on a Form S-8 Registration Statement
under the Securities Act of 1933 to sell shares received pursuant to Awards granted
under the Plan.  The holder of
Performance Shares transferred pursuant to this Section shall be bound by the
same terms and conditions that governed the Performance Shares during the
period that they were held by the Participant; provided, however that such
transferee may not transfer Performance Shares except by will or the laws of
descent and distribution.


 


9.08.                     Employee Status


 


In the event that the terms of any
Performance Share award provide that no payment will be made unless the
Participant completes a stated period of employment or continued service, the


 


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Committee may decide to what extent leaves of
absence for government or military service, illness, temporary disability, or
other reasons shall not be deemed interruptions of continuous employment or
service.


 


9.09.                     Change in Control


 


Notwithstanding any provision of any
Agreement, in the event of or in anticipation of a Change in Control, the
Committee in its discretion may terminate before or on the Control Change Date
some or all outstanding Performance Shares previously granted under the Plan
that are not then earned and payable without any payment to the holder of the
Performance Shares.  The Committee in its
discretion may take the action described in this Section 9.09 contingent on
consummation of the Change in Control and with respect to some or all
outstanding Performance Shares or on a Performance Share-by-Performance Share
basis, which actions need not be uniform with respect to all outstanding
Performance Shares.  The Performance
Shares shall not be terminated to the extent that written provision is made for
their assumption, continuance or substitution by the Company or a successor
employer or its parent or subsidiary in connection with the Change in
Control.  If the Committee so provides in
an applicable Agreement, a Participant’s outstanding Performance Shares shall
be deemed earned (and any shares of Common Stock to be paid in settlement of
such Performance Shares shall be nonforfeitable and transferable) as of a
Control Change Date or immediately before the date the Performance Shares would
otherwise be terminated in connection with the Change in Control, as described
above, provided the Participant has been continuously employed by or has
continuously provided services to the Company or an Affiliate as of such time.


 


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ARTICLE X

INCENTIVE AWARDS


 


10.01.              Grant


 


The Committee shall designate Participants to
whom Incentive Awards are to be granted. 
All Incentive Awards shall be finally determined exclusively by the
Committee under the procedures established by the Committee; provided, however,
that no Participant may receive an Incentive Award payment in any calendar year
that exceeds $750,000.


 


10.02.              Terms and Conditions


 


The Committee, on the date of grant of an
Incentive Award, shall specify in the applicable Agreement the terms and
conditions which govern the grant.  By
way of example and not of limitation, the Committee may prescribe that the
Incentive Award shall be earned and payable upon (a) the satisfaction of
performance objectives as described below, (b) the Participant’s completion of
a specified period of employment or service with the Company or an Affiliate,
(c) the Participant’s death, disability or retirement or (d) satisfaction of a
combination of any of the foregoing factors. 
The performance objectives may be stated with respect to the Company’s,
an Affiliate’s or a business unit’s (a) total stockholder return; (b) total
stockholder return as compared to total return (on a comparable basis) of a
publicly available index; (c) net income; (d) gross, operating or net earnings
before or after taxes; (e) funds from operations; (f) earnings before
interest expense, taxes, depreciation and amortization; (g) operating margin;
(h) earnings per share; (i) return on equity, capital, assets, net assets,
sales or investment; (j) working capital; (k) ratio of debt to
stockholders equity; (l) revenue; (m) cash flow or cash flow per share; (n)
book value per share; (o) earnings growth; (p) sales growth; (q) customer
growth; (r) Fair Market Value of the Company or any Affiliate or shares of
Common Stock; (s) share price; (t) market share; (u) economic value added;
(v) market value added; (w) productivity; (x) level of expenses; (y)
quality; (z) safety; (aa) customer satisfaction or (bb) peer group
comparisons of any of the aforementioned performance objectives.  If the Committee, on the date of grant,
prescribes that the Incentive Awards will be earned and payable only upon the
attainment of such performance objectives, no Incentive Awards will be
considered earned and no payments will be made with respect to such Incentive
Awards unless, and then only to the extent that, the Committee certifies in
writing that such objectives have been achieved.  If an applicable Agreement does not provide
for when a Participant’s rights in an Incentive Award will become earned and
payable, a Participant’s rights in an Incentive Award will be earned and payable
with respect to one-fourth of the value of the Incentive Award on each of the
first, second, third and fourth anniversaries of the date of grant, provided
the Participant has been continuously employed by or has continuously provided
services to the Company or an Affiliate as of each such date.  Additionally, if the Committee so provides in
an applicable Agreement, an outstanding Incentive Award shall be earned and
payable with respect to one hundred percent (100%) of the value of the
Incentive Award that was not previously earned and payable upon
(i) involuntary termination of the Participant’s employment or service by
the Company or an Affiliate other than for Cause, (ii) voluntary termination of
a Participant’s employment or service with the Company or an Affiliate by the
Participant for Good Reason,


 


25





















 


(iii) the Participant’s death while still
employed by or providing services to the Company or an Affiliate or (iv) the
Participant’s Disability while still employed by or providing services to the
Company or an Affiliate.


 


10.03.              Maximum Incentive Award Period


 


The Committee, at the time an Incentive Award
is made, shall determine the maximum period over which the Incentive Award may
be earned, except that such period shall not exceed ten years.


 


10.04.              Nontransferability


 


Except as provided in Section 10.05,
Incentive Awards granted under this Plan shall be nontransferable except by
will or by the laws of descent and distribution.  No right or interest of a Participant in an
Incentive Award shall be liable for, or subject to, any lien, obligation, or
liability of such Participant.


 


10.05.              Transferable Incentive Awards


 


Section 10.04 to the contrary
notwithstanding, if so provided in an Agreement, an Incentive Award may be
transferred by a Participant to the Participant’s children, grandchildren,
spouse, one or more trusts for the benefit of such family members or to a
partnership in which such family members are the only partners, on such terms
and conditions as appropriate so that such transferees are included in the
class of transferees who may rely on a Form S-8 Registration Statement under
the Securities Act of 1933 to sell shares received pursuant to Awards granted
under the Plan.  The holder of an Incentive
Award transferred pursuant to this Section shall be bound by the same terms and
conditions that governed the Incentive Award during the period that it was held
by the Participant; provided, however, that such transferee may not transfer
the Incentive Award except by will or the laws of descent and distribution.


 


10.06.              Employee Status


 


If the terms of an Incentive Award provide
that a payment will be made thereunder only if the Participant completes a
stated period of employment or continuous service, the Committee may decide to
what extent leaves of absence for governmental or military service, illness,
temporary disability or other reasons shall not be deemed interruptions of
continuous employment or service.


 


10.07.              Change in Control


 


Notwithstanding any provision of any
Agreement, in the event of or in anticipation of a Change in Control, the
Committee in its discretion may terminate before or on the Control Change Date
some or all outstanding Incentive Awards previously granted under the Plan that
are not then earned and payable without any payment to the holder of the
Incentive Award.  The Committee in its
discretion may take the action described in this Section contingent on
consummation of the Change in Control and with respect to some or all outstanding
Incentive


 


26





















 


Awards or on an Incentive Award-by-Incentive
Award basis, which actions need not be uniform with respect to all outstanding
Incentive Awards.  The Incentive Awards
shall not be terminated to the extent that written provision is made for their
assumption, continuance or substitution by the Company or a successor employer
or its parent or subsidiary in connection with the Change in Control.  If the Committee so provides in an applicable
Agreement, a Participant’s outstanding Incentive Awards shall be deemed earned
(and shares of Common Stock to be paid in settlement of such Incentive Awards
shall be nonforfeitable and transferable) as of a Control Change Date or
immediately before the date the Incentive Awards would otherwise be terminated
in connection with the Change in Control, as described above, provided the
Participant has been continuously employed by or has continuously provided
services to the Company or an Affiliate as of such time.


 


10.08.              Stockholder
Rights


 


No Participant shall, as a result of
receiving an Incentive Award, have any rights as a stockholder of the Company
or any Affiliate on account of such Incentive Award, unless and until the
Incentive Award is earned and shares of Common Stock paid in settlement
thereof.  After an Incentive Award is
earned and settled in shares, a Participant will have all the rights of a
stockholder with respect to such shares, including the right to receive
dividends and vote the shares.


 


27





















 


ARTICLE XI

ADJUSTMENT UPON CHANGE IN COMMON STOCK


 


The maximum number of shares that may be
issued pursuant to Awards, the terms of outstanding Awards, and the per
individual limitations on the number of shares of Common Stock that may be
issued pursuant to for which Awards shall be adjusted as the Board shall
determine to be equitably required in the event that (i) the Company (a)
effects one or more stock dividends, stock split-ups, subdivisions or consolidations
of shares or (b) engages in a transaction described under Section 424 of
the Code or (ii) there occurs any other event which, in the judgment of the
Board, necessitates such action.  In
addition, the Committee may make such other adjustments to the terms of any
Awards to the extent equitable and necessary to prevent an enlargement or
dilution of the Participant’s rights thereunder as a result of any such event
or similar transaction.  Any
determination made under this Article XI by the Board shall be final and
conclusive.


 


The issuance by the Company of stock of any
class, or securities convertible into stock of any class, for cash or property,
or for labor or services, either upon direct sale or upon the exercise of
rights or warrants to subscribe therefor, or upon conversion of stock or
obligations of the Company convertible into such stock or other securities,
shall not affect, and no adjustment by reason thereof shall be made with
respect to, the maximum number of shares that may be issued pursuant to Awards
may be granted, the per individual limitations on the number of shares that may
be issued pursuant to Awards, or the terms of outstanding Awards.


 


The Committee may grant Awards in
substitution for performance shares, incentive awards, stock awards, stock
options, stock appreciation rights, or similar awards held by an individual who
becomes an employee of the Company or an Affiliate in connection with a
transaction described in the first paragraph of this Article XI.  Notwithstanding any provision of the Plan
(other than the limitation of Section 5.02), the terms of such substituted
Awards shall be as the Committee, in its discretion, determines is appropriate.


 


28





















 


ARTICLE XII

COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES


 


12.01.              Compliance.


 


No Option or SAR shall be exercisable, no
shares of Common Stock shall be issued, no certificates for shares of Common
Stock shall be delivered, and no payment shall be made under this Plan except
in compliance with all applicable federal and state laws and regulations
(including, without limitation, withholding tax requirements), any listing
agreement to which the Company is a party, and the rules of all domestic stock
exchanges on which the Company’s shares may be listed.  The Company shall have the right to rely on
an opinion of its counsel as to such compliance.  Any stock certificate evidencing shares of
Common Stock issued pursuant to an Award may bear such legends and statements
as the Committee may deem advisable to assure compliance with federal and state
laws and regulations.  No Option or SAR
shall be exercisable, no Stock Award or Performance Share shall be granted, no
shares of Common Stock shall be issued, no certificate for shares of Common
Stock shall be delivered, and no payment shall be made under this Plan until
the Company has obtained such consent or approval as the Committee may deem
advisable from regulatory bodies having jurisdiction over such matters.


 


12.02.              Postponement of Exercise or Payment.


 


The Committee may postpone any grant,
exercise, vesting or payment of an Award for such time as the Committee in its
sole discretion may deem necessary in order to permit the Company (i) to
effect, amend or maintain any necessary registration of the Plan or the shares
of Common Stock issuable pursuant to the Award under the securities laws; (ii)
to permit any action to be taken in order to (A) list such shares of Common
Stock or other shares of stock of the Company on a stock exchange if shares of
Common Stock or other shares of stock of the Company are not then listed on
such exchange or (B) comply with restrictions or regulations incident to the
maintenance of a public market for its shares of Common Stock or other shares
of stock of the Company, including any rules or regulations of any stock
exchange on which the shares of Common Stock or other shares of stock of the
Company are listed; (iii) to determine that such shares of Common Stock in the
Plan are exempt from such registration or that no action of the kind referred
to in (ii)(B) above needs to be taken; (iv) to comply with any other applicable
law, including without limitation, securities laws; (v) during any such time
the Company or any Affiliate is prohibited from doing any of such acts under
applicable law, including without limitation, during the course of an
investigation of the Company or any Affiliate, or under any contract, loan
agreement or covenant or other agreement to which the Company or any Affiliate
is a party or (vi) to otherwise comply with any prohibition on such acts or
payments during any applicable blackout period; and the Company shall not be
obligated by virtue of any terms and conditions of any Agreement or any
provision of the Plan to recognize the grant, exercise, vesting or payment of
an Award or to grant, sell or issue shares of Common Stock or make any such
payments in violation of the securities laws or the laws of any government
having jurisdiction thereof or any of the provisions hereof.  Any such postponement shall not extend the
term of the Award and neither the Company nor its directors and officers nor
the Committee shall have any obligation or liability to any Participant or to
any other person with


 


29





















 


respect to shares of Common Stock or payments
as to which the Award shall lapse because of such postponement.


 


12.03.              Forfeiture of Payment.


 


A Participant shall be required to forfeit
any and all rights under Awards or to reimburse the Company for any payment
under any Award (with interest as necessary to avoid imputed interest or
original issue discount under the Code or as otherwise required by applicable
law) to the extent applicable law requires such forfeiture or reimbursement.


 


30





















 


ARTICLE XIII

GENERAL PROVISIONS


 


13.01.              Effect on Employment and Service


 


Neither the adoption of this Plan, its
operation, nor any documents describing or referring to this Plan (or any part
thereof), shall confer upon any individual or entity any right to continue in
the employ or service of the Company or an Affiliate or in any way affect any
right and power of the Company or an Affiliate to terminate the employment or
service of any individual or entity at any time with or without assigning a
reason therefor.


 


13.02.              Unfunded Plan


 


This Plan, insofar as it provides for Awards,
shall be unfunded, and the Company shall not be required to segregate any
assets that may at any time be represented by Awards under this Plan.  Any liability of the Company to any person
with respect to any Award under this Plan shall be based solely upon any
contractual obligations that may be created pursuant to this Plan.  No such obligation of the Company shall be
deemed to be secured by any pledge of, or other encumbrance on, any property of
the Company.


 


13.03.              Rules of Construction


 


Headings are given to the articles and
sections of this Plan solely as a convenience to facilitate reference.  The reference to any statute, regulation, or
other provision of law shall be construed to refer to any amendment to or
successor of such provision of law.


 


13.04.              Tax Withholding and Reporting.


 


Unless an Agreement provides otherwise, each
Participant shall be responsible for satisfying in cash or cash equivalent
acceptable to the Committee any income and employment (including without
limitation Social Security and Medicare) tax withholding obligations
attributable to participation in the Plan and the grant, exercise, vesting or
payment of Awards granted thereunder.  In
accordance with procedures that the Committee establishes, the Committee, to
the extent applicable law permits, may allow a Participant to pay such amounts
(i) in cash, (ii) by certified check, (iii) by tendering shares of Common
Stock (which, if acquired from the Company, have been held by the Participant
for at least six months) and which do not exceed the Company’s minimum
statutory withholding obligation, (iv) by a broker-assisted cashless exercise
or (v) by any combination of the aforementioned methods of payment.  The Company shall comply with all such
reporting and other requirements relating to the administration of this Plan
and the grant, exercise, vesting or payment of any Award hereunder as applicable
law requires.


 


13.05.              Reservation of Shares.


 


The Company, during the term of this Plan,
shall at all times reserve and keep available such number of shares of Common
Stock as shall be sufficient to satisfy the requirements of the


 


31





















 


Plan.  Additionally, the Company, during the term of
this Plan, shall use its best efforts to seek to obtain from appropriate
regulatory agencies any requisite authorizations needed in order to issue and
to sell such number of shares of Common Stock as shall be sufficient to satisfy
the requirements of the Plan.  However,
the inability of the Company to obtain from any such regulatory agency the
requisite authorizations the Company’s counsel deems to be necessary for the
lawful issuance and sale of any shares of Common Stock hereunder, or the
inability of the Company to confirm to its satisfaction that any issuance and
sale of any shares of Common Stock hereunder will meet applicable legal
requirements, shall relieve the Company of any liability in respect to the failure
to issue or to sell such shares of Common Stock as to which such requisite
authority shall not have been obtained.


 


13.06.              Governing Law.


 


This Plan and all Awards granted hereunder
shall be governed by the laws of the Commonwealth of Virginia, except to the
extent federal law applies.


 


13.07.              Other Actions.


 


Nothing in the Plan shall be construed to
limit the authority of the Company to exercise its corporate rights and powers,
including, by way of illustration and not by way of limitation, the right to
grant options, stock appreciation rights, stock awards, incentive awards or
performance shares for proper corporate purposes otherwise than under the Plan
to any employee or to any other person, firm, corporation, association or other
entity, or to grant options, stock appreciation rights, stock awards, incentive
awards or performance shares to, or assume such awards of any person in
connection with, the acquisition, purchase, lease, merger, consolidation,
reorganization or otherwise, of all or any part of the business and assets of
any person, firm, corporation, association or other entity.


 


13.08.              Other Conditions.


 


The Committee, in its discretion, may, as a
condition to the grant, exercise, payment or settlement of an Award, require
the Participant on or before the date of grant, exercise, payment or settlement
of the Award to enter into (i) a covenant not to compete (including a
confidentiality, non-solicitation, non-competition or other similar agreement)
with the Company or any Affiliate, which may become effective on the date of
termination of employment or service of the Participant with the Company or any
Affiliate or any other date the Committee may specify and shall contain such
terms and conditions as the Committee shall otherwise specify, (ii) an
agreement to cancel any other employment agreement, service agreement, fringe
benefit or compensation arrangement in effect between the Company or any
Subsidiary and such Participant and/or (iii) a shareholders’ agreement with
respect to shares of Common Stock to be issued pursuant to the Award.  If the Participant shall fail to enter into
any such agreement at the Committee’s request, then no Award shall be granted,
exercised, paid or settled and the number of shares of Common Stock that would
have been subject to such Award, if any, shall be added to the remaining shares
of Common Stock available under the Plan.


 


32





















 


13.09.              Forfeiture Provisions.


 


Notwithstanding any other provisions of the
Plan or any Agreement, all rights to any Award that a Participant has will be
immediately discontinued and forfeited, and the Company shall not have any
further obligation hereunder to the Participant with respect to any Award and
the Award will not be exercisable (whether or not previously exercisable) or
become vested or payable on and after the time the Participant is discharged
from employment or service with the Company or any Affiliate for Cause.


 


33





















 


ARTICLE XIV

AMENDMENT


 


The Board may amend or terminate this Plan at
any time; provided, however, that no amendment may adversely impair the rights
of a Participant with respect to outstanding Awards without the Participant’s
consent.  In addition, an amendment will
be contingent on approval of the Company’s stockholders, to the extent required
by law or by the rules of any stock exchange on which the Company’s securities
are traded or if the amendment would (i) increase the benefits accruing to
Participants under the Plan, including without limitation, any amendment to the
Plan or any Agreement to permit a repricing or a decrease in the exercise price
of any outstanding Options, (ii) increase the aggregate number of shares of
Common Stock that may be issued under the Plan, (iii) modify the requirements
as to eligibility for participation in the Plan or, (iv) after the transition
period prescribed by the regulations under Code Section 162(m), change the
performance objectives set forth in Sections 8.03, 9.02 or 10.02.


 


34





















 


ARTICLE XV

DURATION OF PLAN


 


No Award may be granted under this Plan after
December 14, 2014.  Awards granted before
that date shall remain valid in accordance with their terms.


 


35





















 


ARTICLE XVI

EFFECTIVE DATE OF PLAN


 


Awards may be granted under this Plan upon
its adoption by the Board; provided that, this Plan shall not be effective
unless approved by unanimous consent of the Company’s stockholders or by a majority
of the votes cast by the Company’s stockholders, voting either in person or by
proxy, at a duly held stockholders’ meeting at which a stockholder quorum is
present, before December 14, 2004.


 


36