**Exhibit10.16**

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**HORIZON PCS, INC.2004 STOCK INCENTIVE PLAN**

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# SECTION 1

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# GENERAL

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1.1                                 Purpose.  The Horizon PCS, Inc. 2004 Stock IncentivePlan (the “Plan”) has been established by Horizon PCS, Inc. (the “Company”) to(i) attract and retain persons eligible to participate in the Plan; (ii)motivate Participants (as defined in Section 1.2 below), by means ofappropriate incentives, to achieve long-range goals; (iii) provide incentivecompensation opportunities that are competitive with those of other similar companies;and (iv) further identify Participants’ interests with those of the Company’sshareholders through compensation that is based on the Company’s common stock;and thereby promote the long-term financial interest of the Company and itsSubsidiaries, as defined in Section 8(i), including the growth in value ofthe Company’s equity and enhancement of long-term shareholder return.  Pursuant to the Plan, Participants mayreceive Options, SARs, or Other Stock Awards, each as defined herein(collectively referred to as “Awards”).

 

1.2                                 Participation.  Subject to the terms and conditions of thePlan, the Committee (as defined in Section 6) shall determine anddesignate, from time to time, from among the Eligible Grantees, as defined in Section 8(f)(including transferees of Eligible Grantees to the extent the transfer ispermitted by the Plan and the applicable Award Agreement, as defined in Section 4.10),those persons who will be granted one or more Awards under the Plan, andthereby become “Participants” in the Plan. In the discretion of the Committee,a Participant may be granted any Award permitted under the provisions of thePlan, and more than one Award may be granted to a Participant. Awards may begranted as alternatives to or in replacement of Awards outstanding under thePlan, or any other plan or arrangement of the Company or a Subsidiary(including a plan or arrangement of a business or entity, all or a portion ofwhich is acquired by the Company or a Subsidiary).

 

1.3                                 Operation, Administration, and Definitions.  The operation and administration of the Plan,including the Awards made under the Plan, shall be subject to the provisions ofSection 4 (relating to operation and administration). Capitalized terms inthe Plan shall be defined as set forth in the Plan (including the definitionprovisions of Section 8 of the Plan).

 

# SECTION 2

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# OPTIONSAND SARs

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## 2.1                                 Definitions.

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### (a)                                  Thegrant of an “Option” entitles the Participant to purchase shares of Stock at an“Exercise Price” established by the Committee. Options granted under this Section 2may either be Incentive Stock Options (“ISOs”) or Non-Qualified Options (“NQOs”),as determined in the discretion of the Committee. An “ISO” is an Option that isintended to satisfy

 

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the requirements applicable to an “incentive stock option” described inSection 422(b) of the Internal Revenue Code of 1986, as amended (the “Code”).An “NQO” is an Option that is not intended to be an “incentive stock option” asthat term is described in Section 422(b) of the Code.

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### (b)                                 A stockappreciation right (an “SAR”) entitles the Participant to receive, in cash orStock (as determined in accordance with Section 2.5), value equal to (orotherwise based on) the excess of: (a) the Fair Market Value (as defined in Section 8(g))of a specified number of shares of Stock at the time of exercise; over (b) anExercise Price established by the Committee.

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2.2                                 Exercise Price.  The Exercise Price of each Option and SARgranted under this Section 2 shall be established by the Committee or shallbe determined by a method established by the Committee at the time the Optionor SAR is granted; provided, however, that the Exercise Price of an ISO shallnot be less than 100% of the Fair Market Value of a share of Stock on the dateof grant of the Award.

 

2.3                                 Exercise.  An Option and an SAR shall be exercisable inaccordance with such terms and conditions and during such periods as may beestablished by the Committee; provided, however, that unless otherwise providedin a Participant’s Award Agreement, if a Participant shall die while in theemploy of the Company or a Subsidiary and shall not have fully exercised anOption or SAR, to the extent that the Participant’s right to exercise suchOption or SAR had accrued pursuant to this Section 2 of the Plan at thetime of his death and had not previously been exercised, the Option or SAR maybe exercised (subject to the condition that no Option or SAR shall beexercisable after the Expiration Date, as defined in Section 2.6 below) atany time within one (1) year after the Participant’s death, by the executors oradministrators of the Participant’s estate or by any person or persons whoshall have acquired the Option or SAR directly from the Participant by bequestor inheritance.  No Option may beexercised after the Expiration Date (as defined in Section 2.6 below)applicable to that Option.

 

2.4                                 Payment of Option Exercise Price.  The payment of the Exercise Price of anOption granted under this Section 2 shall be subject to the following:

 

### (a)                                  Subjectto the following provisions of this Section 2.4, the full Exercise Pricefor shares of Stock purchased upon the exercise of any Option shall be paid atthe time of such exercise (except that, in the case of an exercise arrangementapproved by the Committee and described in Section 2.4(c), payment may bemade as soon as practicable after the exercise).

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### (b)                                 TheExercise Price shall be payable in cash or by tendering (either by actualdelivery of shares or by attestation) shares of Stock that are acceptable tothe Committee, have been held by the Participant for at least six months, andwere valued at Fair Market Value as of the day the shares are tendered, or inany combination of cash, shares, or attested shares, as determined by theCommittee.

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### (c)                                  To theextent permitted by applicable law, a Participant may elect to pay the ExercisePrice upon the exercise of an Option by irrevocably authorizing a third partyto sell shares of Stock (or a sufficient portion of the shares) acquired uponexercise of the Option and

 

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remit to the Company a sufficient portion of the sale proceeds to paythe entire Exercise Price and any tax withholding resulting from such exercise.

 

2.5                                 Settlement of Award.  Shares of Stock delivered pursuant to theexercise of an Option or SAR shall be subject to such conditions, restrictionsand contingencies as the Committee may establish in the applicable AwardAgreement. Settlement of SARs may be made in shares of Stock (valued at theirFair Market Value at the time of exercise), in cash, or in a combinationthereof, as determined in the discretion of the Committee. The Committee, inits discretion, may impose such conditions, restrictions and contingencies withrespect to shares of Stock acquired pursuant to the exercise of an Option or anSAR as the Committee determines to be desirable.

 

2.6                                 Expiration Date.  The “Expiration Date” with respect to anOption means the date established as the Expiration Date by the Committee atthe time of the grant; provided, however, that the Expiration Date with respectto any Option shall not be later than the ten-year anniversary of the date onwhich the Option is granted; and further provided that an Option may beterminated earlier than its Expiration Date in accordance with the terms ofthis Plan or the Award Agreement evidencing the Option.

 

# SECTION 3

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# OTHERSTOCK AWARDS

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3.1                                 Definitions.  The term “Other Stock Awards” means any ofthe following:

 

### (a)                                  A “StockUnit” Award is the grant of a right to receive shares of Stock in the future.

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### (b)                                 A “PerformanceShare” Award is a grant of a right to receive shares of Stock or Stock Unitswhich is contingent on the achievement of performance or other objectivesduring a specified period.

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### (c)                                  A “RestrictedStock” Award is a grant of shares of Stock, and a “Restricted Stock Unit” Awardis the grant of a right to receive shares of Stock in the future, with suchshares of Stock or right to future delivery of such shares of Stock subject toa risk of forfeiture or other restrictions that will lapse upon the achievementof one or more goals relating to completion of service by the Participant, orachievement of performance or other objectives, as determined by the Committee.

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3.2                                 Restrictions on Stock Awards.  Each Stock Unit Award, Restricted StockAward, Restricted Stock Unit Award and Performance Share Award shall be subjectto the following:

 

### (a)                                  Anysuch Award shall be subject to such conditions, restrictions and contingenciesas the Committee shall determine.

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### (b)                                 TheCommittee may designate whether any such Awards being granted to anyParticipant are intended to be “performance-based compensation” as that term isused in Section 162(m) of the Code. Any such Awards designated as intendedto be “performance-based

 

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compensation” shall be conditioned on the achievement of one or morePerformance Measures. The Performance Measures that may be used by theCommittee for such Awards shall be based on any one or more of the following,as selected by the Committee: return on capital or increase in pretax earningsof the Company and/or one or more divisions and/or subsidiaries, return onstockholders’ equity of the Company, increase in earnings per share of theCompany, sales of the Company and/or one or more divisions and/or subsidiaries,pretax earnings of the Company and/or one or more divisions and/orsubsidiaries, net earnings of the Company and/or one or more divisions and/orsubsidiaries, control of operating and/or non-operating expenses of the Companyand/or one or more divisions and/or subsidiaries, margins of the Company and/orone or more divisions and/or subsidiaries, market price of the Company’ssecurities, and solely for an Award not intended to constitute “performance-basedcompensation” under Section 162(m) of the Code, other objectivelymeasurable factors directly tied to the performance of the Company and/or oneor more divisions and/or subsidiaries. For Awards intended to be “performance-basedcompensation,” the grant of the Awards and the establishment of the PerformanceMeasures shall be made during the period required under Code Section 162(m).

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# SECTION 4

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# OPERATIONAND ADMINISTRATION

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4.1                                 Effective Date; Duration.  Subject to the approval (the “Requisite Approval”)of the stockholders of the Company, or the United States Bankruptcy Court forthe Southern District of Ohio (the “Bankruptcy Court”), the Plan shall beeffective as of the effective date of the Company’s Plan of Reorganization (the“Effective Date”), filed in connection with the Company’s chapter 11 case inthe Bankruptcy Court (the “Chapter 11 Case”). The Plan shall have a duration of ten years from the Effective Date;provided that in the event of Plan termination, the Plan shall remain in effectas long as any Awards under it are outstanding; provided further, however, thatno Award may be granted under the Plan on a date that is more than ten yearsfrom the Effective Date.

 

4.2                                 Awards Subject to Plan.  Awards granted under the Plan shall be subjectto the following:

 

### (a)                                  Subjectto adjustment as provided in the following provisions of this Section 4.2,the maximum number of shares of Stock that may be delivered to Participants andtheir beneficiaries under the Plan shall be 986,702 shares of Stock, all ofwhich may be issued upon the exercise of ISOs, and no Participant may be issuedAwards covering more than 500,000 shares of Stock in any one calendar year.

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### (b)                                 To theextent any shares of Stock covered by an Award are not delivered to aParticipant or beneficiary because the Award is forfeited or canceled, or theshares of Stock are not delivered because the Award is settled in cash or usedto satisfy the applicable tax withholding obligation, such shares shall not bedeemed to have been delivered for purposes of determining the maximum number ofshares of Stock available for delivery under the Plan.  The maximum number of shares of Stockavailable for delivery under the Plan shall not be reduced for shares subjectto plans assumed by the Company in an acquisition of an interest in anothercompany.

 

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### (c)                                  Unlessotherwise determined by the Committee, if the outstanding shares of Stock arechanged into or exchanged for a different number or kind of shares or othersecurities of the Company by reason of any recapitalization, reclassification,stock split, stock dividend, combination, subdivision or similar transaction,or if the Company makes an extraordinary dividend or distribution to itsstockholders (including without limitation to implement a spinoff) (each, a “CorporateTransaction”) then, subject to any required action by the stockholders of theCompany, both (a) the number and kind of shares of Company stock availableunder the Plan and not then subject to outstanding Awards, and (b) the numberand kind of shares set forth as a limit or maximum hereunder shallautomatically be proportionately adjusted, with no action required on the partof the Committee or otherwise.  Unlessotherwise provided in a Participant’s Award Agreement, and subject to anyrequired action by the stockholders, the number and kind of shares covered byeach outstanding Award, and the price per share provided under the terms ofeach such Award, may, at the discretion of the Committee, be proportionatelyadjusted for any increase or decrease in the number of issued shares of theCompany resulting from a Corporate Transaction or any other increase ordecrease in the number of such shares, or any decrease in the value of suchshares, effected without receipt of consideration by the Company.  Notwithstanding the foregoing, no fractionalshares shall be issued or made subject to an Option, SAR or Stock Award inmaking the foregoing adjustments.  Alladjustments made by the Committee under this Section shall be final,conclusive and binding upon the holders of Options, SARs and Stock Awards.

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### (d)                                 Unlessotherwise provided in a Participant’s Award Agreement, if the Company merges orconsolidates with another corporation, whether or not the Company is asurviving corporation, or if the Company is liquidated or sells or otherwisedisposes of substantially all of its assets while unexercised Options or otherAwards remain outstanding under this Plan, (A) subject to the provisions ofclause (C) below, after the effective date of the merger, consolidation,liquidation, sale or other disposition, as the case may be, each holder of anoutstanding Option or other Award shall be entitled, upon exercise of thatOption or Award or in place of it, as the case may be, to receive, at theoption of the Committee and in lieu of shares of Stock, (i) the number andclass or classes of shares of Stock or other securities or property to whichthe holder would have been entitled if, immediately prior to the merger,consolidation, liquidation, sale or other disposition, the holder had been theholder of record of a number of shares of Stock equal to the number of sharesof Stock as to which that Option may be exercised or are subject to the Awardor (ii) shares of stock of the company that is the surviving corporation insuch merger, consolidation, liquidation, sale or other disposition having avalue, as of the date of payment under subsection 4.2(d)(i), as determinedby the Committee in its sole discretion, equal to the value of the shares ofStock or other securities or property otherwise payable under subsection 4.2(d)(i);(B) if Options or other Awards have not already become exercisable under Section 5hereof, the Board of Directors may waive any limitations set forth in orimposed pursuant to this Plan so that all Options or other Awards, from andafter a date prior to the effective date of that merger, consolidation,liquidation, sale or other disposition, as the case may be, specified by theBoard of Directors, shall be exercisable in full; and (C) all outstandingOptions or SARs may be cancelled by the Board of Directors as of the effectivedate of any merger, consolidation, liquidation, sale or other disposition,provided that any optionee or SAR holder shall have the right immediately priorto such event to exercise his or her Option or SAR to the extent such optioneeor holder is otherwise able to do so in accordance with this Plan (including Section 5hereof) or his or her individual Award Agreement; provided, further, that in

 

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the case of an in-the-money Option or SAR, any such cancellationpursuant to this Section 4.2(d) shall be contingent upon the payment tothe affected Participants of an amount in cash, property or a combinationthereof having an aggregate value equal to the excess of the value of theper-share amount of consideration paid pursuant to the merger, consolidation,liquidation, sale or other disposition, as the case may be, giving rise to suchcancellation, over the per-share exercise price of such Option or SAR,multiplied by the number of shares of Stock subject to the Option or SAR.  No payments will be made for out-of-the-moneyOptions or SARs that are cancelled under this provision.

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### (e)                                  In theevent of a change in the shares of the Company as presently constituted, whichis limited to a change of all of its authorized shares with par value into thesame number of shares with a different par value or without par value, theshares resulting from any such change shall be deemed to be the shares withinthe meaning of this Plan.

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### (f)                                    Anyadjustments pursuant to Section 4.2(d) shall be made by the Board orCommittee, as the case may be, whose determination in that respect shall befinal, binding and conclusive, regardless of whether or not any such adjustmentshall have the result of causing an ISO to cease to qualify as an ISO.

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### (g)                                 Exceptas hereinbefore expressly provided in this Section 4, a Participant shallhave no rights by reason of any subdivision or consolidation of shares of stockof any class or the payment of any stock dividend or any other increase ordecrease in the number of shares of stock of any class or by reason of anydissolution, liquidation, merger, or consolidation or spin-off of assets orstock of another corporation, and any issue by the Company of shares of stockof any class, shall not affect, and no adjustment by reason thereof shall bemade with respect to, the number or price of shares of Stock subject to an Award,unless the Committee shall otherwise determine.

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### (h)                                 Thegrant of any Award pursuant to this Plan shall not affect in any way the rightor power of the Company (A) to make adjustments, reclassifications,reorganizations or changes of its capital or business structure, (B) to mergeor consolidate, (C) to dissolve, liquidate or sell, or transfer all or any partof its business or assets or (D) to issue any bonds, debentures, preferred orother preference stock ahead of or affecting the Stock. If any action describedin the preceding sentence results in a fractional share for any Participantunder any Award hereunder, such fraction shall be completely disregarded andthe Participant shall only be entitled to the whole number of shares resultingfrom such adjustment.

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4.3                                 General Restrictions.  Delivery of shares of Stock or other amountsunder the Plan shall be subject to the following:

 

### (a)                                  Notwithstandingany other provision of the Plan, the Company shall have no liability to deliverany shares of Stock under the Plan or make any other distribution of benefitsunder the Plan unless such delivery or distribution would comply with allapplicable laws (including, without limitation, the requirements of theSecurities Act of 1933), and the applicable requirements of any securitiesexchange or similar entity.

 

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### (b)                                 To theextent that the Plan provides for issuance of stock certificates to reflect theissuance of shares of Stock, the issuance may be effected on a non-certificatedbasis, to the extent not prohibited by applicable law or the applicable rulesof any stock exchange.

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4.4                                 Tax Withholding.  All distributions under the Plan are subjectto withholding of all applicable taxes, and the Committee may condition thedelivery of any shares or other benefits under the Plan on satisfaction of theapplicable withholding obligations. The Committee, in its discretion, andsubject to such requirements as the Committee may impose prior to theoccurrence of such withholding, may permit such withholding obligations to besatisfied through cash payment by the Participant, through the surrender ofshares of Stock which the Participant already owns, or through the surrender ofshares of Stock to which the Participant is otherwise entitled under the Plan,but only to the extent of the minimum amount required to be withheld underapplicable law.

 

4.5                                 Use of Shares.  Subject to the overall limitation on thenumber of shares of Stock that may be delivered under the Plan, the Committeemay use available shares of Stock as the form of payment for compensation,grants or rights earned or due under any other compensation plans orarrangements of the Company or a Subsidiary, including the plans andarrangements of the Company or a Subsidiary assumed in business combinations.

 

4.6                                 Dividends and Dividend Equivalents.  An Award (including without limitation anOption or SAR Award) may provide the Participant with the right to receivedividend payments or dividend equivalent payments with respect to Stock subjectto the Award (both before and after the Stock subject to the Award is earned,vested, or acquired), which payments may be either made currently or creditedto an account for the Participant, and may be settled in cash or Stock as determinedby the Committee. Any such settlements, and any such crediting of dividends ordividend equivalents or reinvestment in shares of Stock, may be subject to suchconditions, restrictions and contingencies as the Committee shall establish,including the reinvestment of such credited amounts in Stock equivalents.

 

4.7                                 Payments.  Awards may be settled through cash payments,the delivery of shares of Stock, the granting of replacement Awards, or anycombination thereof as the Committee shall determine. Any Award settlement,including payment deferrals, may be subject to such conditions, restrictionsand contingencies as the Committee shall determine. The Committee may permit orrequire the deferral of any Award payment, subject to such rules and proceduresas it may establish, which may include provisions for the payment or creditingof interest, or dividend equivalents, including converting such credits intodeferred Stock equivalents.  EachSubsidiary shall be liable for payment of cash due under the Plan with respectto any Participant to the extent that such benefits are attributable to theservices rendered for that Subsidiary by the Participant.  Any disputes relating to liability of aSubsidiary for cash payments shall be resolved by the Committee.

 

4.8                                 Transferability.  Except as otherwise provided by theCommittee, Awards under the Plan are not transferable except as designated bythe Participant by will or by the laws of descent and distribution.

 

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4.9                                 Form and Time of Elections.  Unless otherwise specified herein, eachelection required or permitted to be made by any Participant or other personentitled to benefits under the Plan, and any permitted modification, orrevocation thereof, shall be in writing filed with the Committee at such times,in such form, and subject to such restrictions and limitations, notinconsistent with the terms of the Plan, as the Committee shall require.

 

4.10                           Agreement with Company.  An Award under the Plan shall be subject tosuch terms and conditions, not inconsistent with the Plan, as the Committeeshall, in its sole discretion, prescribe. The terms and conditions of any Awardto any Participant shall be reflected in such form of written document as isdetermined by the Committee. A copy of such document shall be provided to theParticipant, and the Committee may, but need not, require that the Participantshall sign a copy of such document. Such document is referred to in the Plan asan “Award Agreement” regardless of whether any Participant signature isrequired.

 

4.11                           Action by Company or Subsidiary.  Any action required or permitted to be takenby the Company or any Subsidiary shall be by resolution of its board ofdirectors, or by action of one or more members of the board (including acommittee of the board) who are duly authorized to act for the board, or(except to the extent prohibited by applicable law or applicable rules of anystock exchange) by a duly authorized officer of such company.

 

4.12                           Gender and Number.  Where the context admits, words in any gendershall include any other gender, words in the singular shall include the pluraland the plural shall include the singular.

 

## 4.13                           Limitationof Implied Rights.

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### (a)                                  Neithera Participant nor any other person shall, by reason of participation in thePlan, acquire any right in or title to any assets, funds or property of theCompany or any Subsidiary whatsoever, including, without limitation, anyspecific funds, assets, or other property which the Company or any Subsidiary,in its sole discretion, may set aside in anticipation of a liability under thePlan. A Participant shall have only a contractual right to the Stock oramounts, if any, payable under the Plan, unsecured by any assets of the Companyor any Subsidiary, and nothing contained in the Plan shall constitute aguarantee that the assets of the Company or any Subsidiary shall be sufficientto pay any benefits to any person.

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### (b)                                 ThePlan does not constitute a contract of employment, and selection as a Participantwill not give any participating employee or other individual the right to beretained in the employ of the Company or any Subsidiary, or the right tocontinue to provide services to the Company or any Subsidiary, nor any right orclaim to any benefit under the Plan, unless such right or claim hasspecifically accrued under the terms of the Plan.  Except as otherwise provided in the Plan, noAward under the Plan shall confer upon the holder thereof any rights as a shareholderof the Company prior to the date on which the individual fulfills allconditions for receipt of such rights.

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### (c)                                  ThePlan is intended to be an “unfunded” plan for incentive compensation.  With respect to any payments not yet made toa Participant pursuant to an Award, nothing

 

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contained in the Plan or any Award Agreement will give the Participantany rights that are greater than those of a general creditor of the Company orany Subsidiary.

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4.14                           Evidence.  Evidence required of anyone under the Planmay be by certificate, affidavit, document or other information which theperson acting on it considers pertinent and reliable, and shall be signed, madeor presented by the proper party or parties.

 

4.15                           Forfeiture.  Notwithstanding anything in the Plan to thecontrary, and unless otherwise specifically provided in an Award Agreement, allunvested Awards shall be forfeited upon termination of employment or servicefor any reason, subject to acceleration of vesting in the event of a Change inControl as provided in Section 5 and subject to any provisions containedin an Award Agreement providing for the acceleration of vesting in the event ofthe Participant’s death, disability, or retirement.

 

# SECTION 5

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# CHANGEIN CONTROL

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Subject to the provisions of Section 4.2(d)(relating to the adjustment of shares), and except as otherwise provided in thePlan or the Award Agreement reflecting the applicable Award, upon theoccurrence of a Change in Control as defined in Section 8(d), theCommittee may elect to permit one or more of the following:

 

### (a)                                  Alloutstanding Options (regardless of whether in tandem with SARs) shall becomefully exercisable.

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### (b)                                 Alloutstanding SARs (regardless of whether in tandem with Options) shall becomefully exercisable.

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### (c)                                  AllStock Units, Restricted Stock, Restricted Stock Units, and Performance Sharesshall become fully vested.

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# SECTION 6

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# COMMITTEE

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6.1           Administration.  The authority to control and manage theoperation and administration of the Plan shall be vested in a committee (the “Committee”)in accordance with this Section 6. The Committee shall be selected by the Board, and shall consist of atleast one member of the Board.  If theCommittee does not exist, or for any other reason determined by the Board, theBoard may take any action under the Plan that would otherwise be theresponsibility of the Committee.  Thecomposition of the Committee shall comport with all applicable law and therules of any exchange or quotation system upon which the Stock is traded.

 

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6.2                                 Powers of Committee.  The Committee’s administration of the Planshall be subject to the following:

 

### (a)                                  Subjectto the provisions of the Plan, the Committee will have the authority anddiscretion to select from among the Eligible Grantees those persons who shallreceive Awards, to determine the time or times of receipt, to determine thetypes of Awards and the number of shares covered by the Awards, to establishthe terms, conditions, performance criteria, restrictions, and other provisionsof such Awards, and (subject to the restrictions imposed by Section 7) tocancel or suspend Awards.

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### (b)                                 To theextent that the Committee determines that the restrictions imposed by the Planpreclude the achievement of the material purposes of the Awards injurisdictions outside the United States, the Committee will have the authorityand discretion to modify those restrictions as the Committee determines to benecessary or appropriate to conform to applicable requirements or practices ofjurisdictions outside of the United States.

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### (c)                                  TheCommittee will have the authority and discretion to interpret the Plan, toestablish, amend, and rescind any rules and regulations relating to the Plan,to determine the terms and provisions of any Award Agreement made pursuant tothe Plan, and to make all other determinations that may be necessary oradvisable for the administration of the Plan.

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### (d)                                 Anyinterpretation of the Plan by the Committee or any decision made by it under thePlan is final and binding on all persons.

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### (e)                                  Incontrolling and managing the operation and administration of the Plan, theCommittee shall take action in a manner that conforms to the certificate ofincorporation and by-laws of the Company, and applicable state corporate law.

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6.3                                 Information to be Furnished to Committee.  The Company and Subsidiaries shall furnishthe Committee with such data and information as it determines may be requiredfor it to discharge its duties. The records of the Company and Subsidiaries asto an employee’s or Participant’s employment (or other provision of services),termination of employment (or cessation of the provision of services), leave ofabsence, reemployment and compensation shall be conclusive unless the Committeedetermines such records to be incorrect. Participants and other personsentitled to benefits under the Plan must furnish the Committee such evidence,data or information as the Committee considers desirable to carry out the termsof the Plan.

 

# SECTION 7

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# AMENDMENTAND TERMINATION

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### (a)                                  ThePlan may be terminated or amended by the Board of Directors at any time, exceptthat the following actions may not be taken without shareholder approval:

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#### (i)                                     anyincrease in the number of shares that may be issued under the Plan (except bycertain adjustments provided for under the Plan);

 

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#### (ii)                                  anychange in the class of persons eligible to receive ISOs under the Plan; or

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#### (iii)                               anyother amendment to the Plan that would require approval of the Company’sshareholders under applicable law, regulation, rule, or listing standard of anyexchange or automatic quotation system.

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Notwithstanding any of the foregoing, adjustmentspursuant to Paragraphs (c) and (d) of Section 4.2 shall not be subject tothe limitations set forth above in Paragraphs (a)(i) and (a)(ii) of this Section 7.

 

### (b)                                 Optionsmay not be granted under the Plan after the date of termination of the Plan,but Options granted prior to that date shall continue to be exercisableaccording to their terms.

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# SECTION 8

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# DEFINEDTERMS

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Except as otherwise provided in a Participant’s AwardAgreement, in addition to the other definitions contained herein, the followingdefinitions shall apply:

 

### (a)                                  AffiliatedCompany.  The term “AffiliatedCompany” means any company controlled by, controlling or under common controlwith the Company.

 

### (b)                                 Award.  The term “Award” shall mean anyaward or benefit granted under the Plan, including, without limitation, thegrant of Options, SARs, Stock Unit Awards, Restricted Stock Awards, RestrictedStock Unit Awards and Performance Share Awards.

 

### (c)                                  Board.  The term “Board” shall mean theBoard of Directors of the Company.

 

### (d)                                 Changein Control.  The term “Change in Control” shall mean:

 

#### (i)                                     Theacquisition by any individual, entity or group constituting a “Person” withinthe meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Actof 1934, as amended (the “Exchange Act”) (other than Apollo Investment Fund IV,LP or its affiliated entities) of “beneficial ownership” (as that term isdefined by Rule 13d 3 under the Exchange Act) of 50% or more of either (A) thethen-outstanding shares of common stock of the Company (the “OutstandingCompany Common Stock”) or (B) the combined voting power of the then-outstandingvoting securities of the Company entitled to vote generally in the election ofdirectors (the “Outstanding Company Voting Securities”); *provided*,*however*, that, for purposes of this Section 8(d),the following acquisitions shall not constitute a Change in Control:  (1) any acquisition directly from theCompany, (2) any acquisition by the Company, (3) any acquisition by anyemployee benefit plan (or related trust) sponsored or maintained by the Companyor any Affiliated Company or (4) any acquisition by any corporation pursuant toa transaction that complies with Sections 8(d)(ii)(A), 8(d)(ii)(B) and8(d)(ii)(C);

 

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#### (ii)                                  Consummationof a reorganization, merger, statutory share exchange or consolidation orsimilar corporate transaction involving the Company or any of its subsidiaries,a sale or other disposition of all or substantially all of the assets of theCompany, or the acquisition of assets or stock of another entity by the Companyor any of its subsidiaries (each, a “Business Combination”), in each caseunless, following such Business Combination, (A) all or substantially all ofthe individuals and entities that were the beneficial owners of the OutstandingCompany Common Stock and the Outstanding Company Voting Securities immediatelyprior to such Business Combination beneficially own, directly or indirectly,more than 50% of the then-outstanding shares of common stock and the combinedvoting power of the then-outstanding voting securities entitled to votegenerally in the election of directors, as the case may be, of the corporationresulting from such Business Combination (including, without limitation, acorporation that, as a result of such transaction, owns the Company or all orsubstantially all of the Company’s assets either directly or through one ormore subsidiaries) in substantially the same proportions as their ownershipimmediately prior to such Business Combination of the Outstanding CompanyCommon Stock and the Outstanding Company Voting Securities, as the case may be,(B) no Person (excluding any corporation resulting from such BusinessCombination or any employee benefit plan (or related trust) of the Company orsuch corporation resulting from such Business Combination) beneficially owns,directly or indirectly, 50% or more of, respectively, the then-outstandingshares of common stock of the corporation resulting from such BusinessCombination or the combined voting power of the then-outstanding voting securitiesof such corporation, except to the extent that such ownership existed prior tothe Business Combination, and (C) at least 50% of the members of the board ofdirectors of the corporation resulting from such Business Combination weremembers of the Incumbent Board at the time of the execution of the initialagreement or of the action of the Board providing for such BusinessCombination; or

####  

#### (iii)                               Approvalby the shareholders and the start of effectuation of a complete liquidation ordissolution of the Company.

####  

### (e)                                  Code.  The term “Code” means theInternal Revenue Code of 1986, as amended. A reference to any provision of theCode shall include reference to any successor provision of the Code.

 

### (f)                                    EligibleGrantee.  Withrespect to Awards other than ISOs, the term “Eligible Grantee” shall mean anyemployee, consultant or director of the Company or a Subsidiary. With respectto ISOs, the term “Eligible Grantee” shall mean any employee of the Company, aSubsidiary (but only within the meaning of Section 424 of the Code), and aParent.  An Award may be granted to anemployee, in connection with hiring, retention or otherwise, prior to the datethe employee first performs services for the Company or the Subsidiaries,provided that such Award shall not become vested prior to the date the employeefirst performs such services.

 

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### (g)                                 FairMarket Value.  For purposes of determining the “Fair MarketValue” of a share of Stock as of any date, the following rules shall apply,except as otherwise determined by the Committee:

 

#### (i)                                     Withrespect to certain designated Options to be granted to management of theCompany as agreed to by the Company and the Official Bondholders Committee inthe Chapter 11 Case, the “Fair Market Value” shall equal the average closingprice for the Company’s Stock during the first twenty days after the first dayof trading of the Company’s Stock on either a national securities exchange orthe Nasdaq stock market or as reported on the Nasdaq OTC Bulletin BoardService, the National Quotation Bureau, Incorporated, or a comparable service.

####  

#### (ii)                                  If theprincipal market for the Stock is a national securities exchange or the Nasdaqstock market, then the “Fair Market Value” as of that date shall be the closingsale price of the Stock on the first business day prior to that date on theprincipal exchange or market on which the Stock is then listed or admitted totrading.

####  

#### (iii)                               If saleprices are not available, or if the principal market for the Stock is not anational securities exchange and the Stock is not quoted on the Nasdaq stockmarket, then the “Fair Market Value” as of that date shall be the averagebetween the highest bid and lowest asked prices for the Stock on the firstbusiness day prior to that date, as reported on the Nasdaq OTC Bulletin BoardService, the National Quotation Bureau, Incorporated, or a comparable service.

####  

If paragraphs (i), (ii) or (ii) above are for any reasoninapplicable, then the Fair Market Value of the Stock shall be determined ingood faith by the Committee.

 

### (h)                                 Parent.  The term “Parent” means anypresent or future parent corporation of the Company within the meaning of Section 424(e)of the Code.

 

### (i)                                     Subsidiary.  The term “Subsidiary” means anypresent or future subsidiary corporation of the Company within the meaning of Section 424(f)of the Code, and any present or future business venture designated by theCommittee in which the Company has a significant interest, as determined in thediscretion of the Committee.

 

### (j)                                     Stock.  The term “Stock” shall meanshares of common stock of the Company.

 

# SECTION 9

#  

# GOVERNINGLAW

#  

Except to the extent governed by the General CorporationLaw of Delaware, this Plan shall be governed by and construed in accordancewith the laws of the State of Ohio.

 

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