**Exhibit 10.1**

 

**METALS USA, INC.**

 

**2002 LONG-TERMINCENTIVE PLAN**

 

# 1.                                       PURPOSE.  The purpose of this 2002 Long-Tem incentivePlan (the “Plan”) of Metals USA, Inc., a Delaware corporation (the “Company”),is to advance the interests of the Company and its stockholders by providing ameans to attract, retain and reward executive officers, other key employees,directors and consultants of and service providers to the Company and itssubsidiaries, and to enable such persons to acquire or increase a proprietaryinterest in the Company, thereby promoting a closer identity of interestsbetween such persons and the Company’s stockholders.

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# 2.                                       DEFINITIONS.  The definitions of awards under the Plan,including Options, SARs (including Limited SARs), Restricted Stock, PerformanceShares, Deferred Stock, Stock granted as a bonus or in lieu of other awards,Dividend Equivalents and Other Stock-Based Awards are set forth in Section 6 ofthe Plan.  Such awards, together withany other right or interest granted to a Participant under the Plan, are termed“Awards.” For purposes of the Plan, the following additional terms shall bedefined as set forth below:

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## (a)                                  “AwardAgreement” means any written agreement, contract, notice or other instrument ordocument evidencing an Award.

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## (b)                                 “Beneficiary”shall mean the person, persons, trust or trusts which have been designated by aParticipant in his or her most recent written beneficiary designation filedwith the Committee to receive the benefits specified under the Plan upon suchParticipant’s death or, if there is no designated Beneficiary or survivingdesignated Beneficiary, then the person, persons, trust or trusts entitled bywill or the laws of descent and distribution to receive such benefits.

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## (c)                                  “Board” meansthe Board of Directors of the Company.

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## (d)                                 A “Change inControl” shall be deemed to have occurred if:

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### (i)                                     any Person is or becomes the “Beneficial Owner” (as defined in Rule 13d-3under the Exchange Act), directly or indirectly, of securities of the Company(not including in the securities Beneficially Owned by such Person anysecurities acquired directly from the Company) representing 50% or more of thetotal voting power of the Company’s then outstanding voting securities,excluding the Company or an employee benefit plan of the Company and any Person who becomes such a Beneficial Owner in connection with atransaction described in clause (1) of clause (iii) below or who becomes aBeneficial Owner pursuant to the Reorganization Plan;

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### (ii)                                  the following individuals cease for any reason to constitute a majorityof the number of directors then serving: individuals who, on the Effective Date, constitute the Board and any newdirector (other than a director whose initial assumption of office is inconnection with an actual or threatened election contest, including but notlimited to a consent solicitation, relating to the election of directors of theCompany) whose appointment or election by the Board or nomination for electionby the Company’s stockholders was approved or

 

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### recommendedby a vote of at least two-thirds (2/3) of the directors then still in officewho either were directors on the Effective Date or whose appointment, election,or nomination for election was previously so approved or recommended;

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### (iii)                               there is consummated a merger or consolidation of the Company with anyother corporation other than (1) a merger or consolidation which would resultin the voting securities of the Company outstanding immediately prior to suchmerger or consolidation continuing to represent (either by remainingoutstanding or by being converted into voting securities of the survivingentity or any parent thereof) at least 50% of the combined voting power of thevoting securities of the Company or such surviving entity or any parent thereofoutstanding immediately after such merger or consolidation, or (2) a merger orconsolidation effected to implement a recapitalization of the Company (orsimilar transaction) in which no Person is or becomes the Beneficial Owner,directly or indirectly, of securities of the Company (not including in thesecurities Beneficially Owned by such Person any securities acquired directlyfrom the Company) representing 50% or more of the combined voting power of theCompany’s then outstanding voting securities; or

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### (iv)                              the stockholders of the Company approve a plan of complete liquidationor dissolution of the Company or there is consummated an agreement for the saleor disposition by the Company of all or substantially all of the Company’sassets, other than a sale or disposition by the Company of all or substantiallyall of the Company’s assets to an entity at least 50% of the combined votingpower of the voting securities of which are owned by Persons in substantiallythe same proportions as their ownership of the Company immediately prior tosuch sale.

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## (e)                                  “Code” meansthe Internal Revenue Code of 1986, as amended from time to time.  References to any provision of the Codeshall be deemed to include regulations thereunder and successor provisions andregulations thereto.

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## (f)                                    “Committee”means the Compensation Committee of the Board, or such other Board committee asmay be designated by the Board to administer the Plan.  Any such Committee that is authorized togrant Awards to Participants subject to Section 16 of the Exchange Act (a“Section 16 Committee”) shall, to the extent necessary to comply with Rule16b-3, be comprised of two or more “nonemployee directors” within the meaningof Rule 16b-3 or shall constitute the entire Board, and any such Committee thatis authorized to grant Awards to executive officers of the Company (which mayor may not be the same Committee as the Section 16 Committee) shall, to theextent necessary to comply with Section 162(m) of the Code, be comprised of twoor more “outside directors” within the meaning of Section 162(m); provided,however, that no director who is also an employee of the Company may sit on anyCommittee (other than the full Board when it is sitting as the Section 16Committee).

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## (g)                                 “Disability”means:  (a) in the case of a Participantwhose employment with is subject to the terms of an employment agreement, whichagreement includes a definition of “Disability,” the term “Disability” as usedin this Plan or any Award Agreement shall have the meaning set forth in suchemployment agreement during the period that such employment agreement remainsin effect; or (b) the term “Disability” as used in the long-term disabilityplan, if any; or (c) if there is no such plan, the term “Disability” as used inthis Plan or any Award

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## Agreement shall mean aphysical or mental infirmity which impairs the Participant’s ability to performsubstantially his or her duties for a period of one hundred eighty (180)consecutive days.

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## (h)                                 Effective Date means the effective date for the Reorganization Plan (asdefined in the Reorganization Plan).

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## (i)                                     “Exchange Act”means the Securities Exchange Act of 1934, as amended from time to time.  References to any provision of the ExchangeAct shall be deemed to include rules thereunder and successor provisions andrules thereto.

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## (j)                                     “Fair MarketValue” means, with respect to Stock, Awards, or other property, the fair marketvalue of such Stock, Awards, or other property determined by such methods orprocedures as shall be established from time to time by the Committee,PROVIDED, HOWEVER, that if the Stock is listed on a national securitiesexchange or quoted in an interdealer quotation system, the Fair Market Value ofsuch Stock on a given date shall be based upon the last sales price or, ifunavailable, the average of the closing bid and asked prices per share of theStock on such date (or, if there was no trading or quotation in the Stock onsuch date, on the next preceding date on which there was trading or quotation)as reported in the WALL STREET JOURNAL (or other reporting service approved bythe Committee).

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## (k)                                  “ISO” means anyOption intended to be and designated as an incentive stock option within themeaning of Section 422 of the Code.

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## (l)                                     “NonqualifiedStock Option” means an Option that is not an ISO.

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## (m)                               “Participant”means a person who, at a time when eligible under Section 5 hereof, has beengranted an Award under the Plan.

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## (n)                                 “Person” shallhave the meaning given in Section 3(a)(9) of the Exchange Act, as modified andused in Sections 13(d) and 14(d) thereof, except that such term shall notinclude:  (i) the Company or any of itssubsidiaries; (ii) a trustee or other fiduciary holding securities under anemployee benefit plan of the Company or any of its Affiliates; (iii) anunderwriter temporarily holding securities pursuant to an offering of suchsecurities; or (iv) a corporation owned, directly or indirectly, by thestockholders of the Company in substantially the same proportions as theirownership of stock of the Company.

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## (o)                                 “Reorganization Plan” means the plan of reorganization for the Company andcertain of its subsidiaries and affiliates dated September 18, 2002 which wasconfirmed pursuant to an order of the Bankruptcy Court dated October 18, 2002.

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## (p)                                 “Rule 16b-3”means Rule 16b-3, as from time to time in effect and applicable to the Plan andParticipants, promulgated by the Securities and Exchange Commission underSection 16 of the Exchange Act.

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## (q)                                 “Stock” meansthe Common Stock, $.01 par value, of the Company and such other securities asmay be substituted for Stock or such other securities pursuant toSection 4.

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## (r)                                    “Ten-PercentStockholder” means a Participant, who, at the time an Incentive Stock Option isto be granted to him or her, owns (within the meaning of Section 422(b)(6) ofthe Code) Stock possessing more than ten percent (10%) of the total combinedvoting power of all classes of stock of the Company, or of a “parent” or“subsidiary” (as such terms are defined in Section 6(b)(3) hereof).

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# 3.                                       ADMINISTRATION.

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## (a)                                  AUTHORITY OFTHE COMMITTEE.  The Plan shall beadministered by the Committee.  TheCommittee shall have full and final authority to take the following actions, ineach case subject to and consistent with the provisions of the Plan:

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### (i)                                     to selectpersons to whom Awards may be granted;

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### (ii)                                  to determinethe type or types of Awards to be granted to each such person;

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### (iii)                               to determinethe number of Awards to be granted, the number of shares of Stock to which anAward will relate, the terms and conditions of any Award granted under the Plan(including, but not limited to, any exercise price, grant price or purchaseprice, any restriction or condition, any schedule for lapse of restrictions orconditions relating to transferability or forfeiture, exercisability orsettlement of an Award, and waivers or accelerations thereof, performanceconditions relating to an Award (including performance conditions relating toAwards not intended to be governed by Section 7(e) and waivers andmodifications thereof), based in each case on such considerations as theCommittee shall determine), and all other matters to be determined inconnection with an Award;

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### (iv)                              to determinewhether, to what extent and under what circumstances an Award may be settled,or the exercise price of an Award may be paid, in cash, Stock, other Awards, orother property, or an Award may be canceled, forfeited, or surrendered;

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### (v)                                 to determinewhether, to what extent and under what circumstances cash, Stock, other Awardsor other property payable with respect to an Award will be deferred eitherautomatically, at the election of the Committee or at the election of theParticipant;

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### (vi)                              to prescribethe form of each Award Agreement, which need not be identical for eachParticipant;

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### (vii)                           to adopt,amend, suspend, waive and rescind such rules and regulations and appoint suchagents as the Committee may deem necessary or advisable to administer the Plan;

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### (viii)                        to correct anydefect or supply any omission or reconcile any inconsistency in the Plan and toconstrue and interpret the Plan and any Award, rules and regulations, AwardAgreement or other instrument hereunder; and

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### (ix)                                to make allother decisions and determinations as may be required under the terms of thePlan or as the Committee may deem necessary or advisable for the administrationof the Plan.

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## (b)                                 MANNER OFEXERCISE OF COMMITTEE AUTHORITY.  Unlessauthority is specifically reserved to the Board under the terms of the Plan,the Company’s Certificate of incorporation or Bylaws, or applicable law, theCommittee shall have sole discretion in exercising authority under thePlan.  Any action of the Committee withrespect to the Plan shall be final, conclusive and binding on all persons,including the Company, subsidiaries of the Company, Participants, any personclaiming any rights under the Plan from or through any Participant and stockholders,except to the extent the Committee may subsequently modify, or take furtheraction not consistent with, its prior action. If not specified in the Plan, the time at which the Committee must ormay make any determination shall be determined by the Committee, and any suchdetermination may thereafter by modified by the Committee (subject to Section8(e)).  The express grant of anyspecific power to the Committee, and the taking of any action by the Committee,shall not be construed as limiting any power or authority of theCommittee.  The Committee may delegateto officers or managers of the Company or any subsidiary of the Company theauthority, subject to such terms as the Committee shall determine, to performadministrative functions and, with respect to Participants not subject toSection 16 of the Exchange Act, to perform such other functions as theCommittee may determine, to the extent permitted under Rule 16b-3, ifapplicable, and other applicable law.

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## (c)                                  LIMITATION OFLIABILITY.  Each member of the Committeeshall be entitled to, in good faith, rely or act upon any report or otherinformation furnished to him by any officer or other employee of the Company orany subsidiary, the Company’s independent certified public accountants or anyexecutive compensation consultant, legal counsel or other professional retainedby the Company to assist in the administration of the Plan.  No member of the Committee, nor any officeror employee of the Company acting on behalf of the Committee, shall be personallyliable for any action, determination or interpretation taken or made in goodfaith with respect to the Plan, and all members of the Committee and anyofficer or employee of the Company acting on its behalf shall, to the extentpermitted by law, be fully indemnified and protected by the Company withrespect to any such action, determination or interpretation.

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# 4.                                       STOCK SUBJECTTO PLAN.

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## (a)                                  AMOUNT OF STOCKRESERVED.  The total amount of Stockthat may be delivered pursuant to Awards granted under the Plan shall notexceed 2,015,000 shares of Stock. Notwithstanding the foregoing, the number of shares that may bedelivered upon the exercise of ISOs shall not exceed 2,015,000, subject in eachcase to adjustment as provided in Section 4(c), and the number of shares thatmay be delivered as Restricted Stock and Deferred Stock (other than pursuant toan Award granted under Section 7(e)) shall not in the aggregate exceed2,015,000, provided, however, that shares subject to Options, Restricted Stock(including Performance Shares) or Deferred Stock Awards shall not be deemeddelivered if such Awards are forfeited, expire or otherwise terminate withoutdelivery of shares to the Participant. To the extent that an Award is only to be paid in cash or is paid incash, any shares of Stock subject to such Award shall again be available forthe grant of an Award.  Any shares ofStock delivered

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## pursuant to an Award mayconsist, in whole or in part, of authorized and unissued shares, treasuryshares or shares acquired in the market for a Participant’s account.

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## (b)                                 ANNUALPER-PARTICIPANT LIMITATIONS.  During anycalendar year, no Participant may be granted Awards that may be settled bydelivery of more than 500,000 shares of Stock, subject to adjustment asprovided in Section 4(c).  In addition,with respect to Awards that may be settled in cash (in whole or in part), noParticipant may be paid during any calendar year cash amounts relating to suchAwards that exceed the greater of the Fair Market Value of the number of sharesof Stock set forth in the preceding sentence at the date of grant or the dateof settlement of Award.  This provisionsets forth two separate limitations, so that Awards that may be settled solelyby delivery of Stock will not operate to reduce the amount of cash-only Awards,and vice versa; nevertheless, Awards that may be settled in Stock or cash mustnot exceed either limitation.

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## (c)                                  ADJUSTMENTS.  In the event that the Committee shalldetermine that any dividend or other distribution (whether in the form of cash,Stock or other property), recapitalization, forward or reverse split,reorganization, merger, consolidation, spin-off, combination, repurchase orexchange of Stock or other securities, liquidation, dissolution, or othersimilar corporate transaction or event, affects the Stock such that anadjustment is appropriate in order to prevent dilution or enlargement of therights of Participants under the Plan, then the Committee shall, in such manneras it may deem equitable, adjust any or all of (i) the number and kind ofshares of Stock reserved and available for Awards under Section 4(a), includingshares reserved for the ISOs and Restricted and Deferred Stock, (ii) the numberand kind of shares of Stock specified in the Annual Per-Participant Limitationsunder Section 4(b), (iii) the number and kind of shares of outstandingRestricted Stock or other outstanding Award in connection with which shareshave been issued, (iv) the number and kind of shares that may be issued inrespect of other outstanding Awards and (v) the exercise price, grant price orpurchase price relating to any Award (or, if deemed appropriate, the Committeemay make provision for a cash payment with respect to any outstanding Award).  In addition, the Committee is authorized tomake adjustments in the terms and conditions of, and the criteria included in,Awards in recognition of unusual or nonrecurring events (including, withoutlimitation, events described in the preceding sentence) affecting the Companyor any subsidiary or the financial statements of the Company or any subsidiary,or in response to changes in applicable laws, regulations, or accountingprinciples.  The foregoing notwithstanding,no adjustments shall be authorized under this Section 4(c) with respect to ISOsor SARs in tandem therewith to the extent that such authority would cause thePlan to fail to comply with Section 422(b)(I) of the Code, and no suchadjustment shall be authorized with respect to Options, SARs or other Awardssubject to Section 7(e) to the extent that such authority would cause suchAwards to fail to qualify as “qualified performance-based compensation” underSection 162(m)(4)(C) of the Code.

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# 5.                                       ELIGIBILITY.  Executive officers, other key employees ofthe Company and its subsidiaries and the Company’s directors,, and persons whoprovide consulting or other services to the Company deemed by the Committee tobe of substantial value to the Company, are eligible to be granted Awards underthe Plan.  In addition, a person who hasbeen offered employment by the Company or its subsidiaries is eligible to begranted an Award under the Plan, provided that such Award shall be cancelled ifsuch person fails to commence such

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# employment, and no paymentof value may be made in connection with such Award until such person hascommenced such employment.

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# 6.                                       SPECIFIC TERMSOF AWARDS.

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## (a)                                  GENERAL.  Awards may be granted on the terms andconditions set forth in this Section 6. In addition, the Committee may impose on any Award or the exercisethereof such additional terms and conditions, not inconsistent with theprovisions of the Plan, as the Committee shall determine, including termsrequiring forfeiture of Awards in the event of termination of employment orservice of the Participant.  Except asprovided in Section 6(f), 6(h), or 7(a), or to the extent required to complywith requirements of the Delaware General Corporation Law that lawfulconsideration be paid for Stock, only services may be required as considerationfor the grant (but not the exercise) of any Award.

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## (b)                                 OPTIONS.  The Committee is authorized to grant Options(including “reload” options automatically granted to offset specified exercisesof Options) on the following terms and conditions (“Options”):

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### (i)                                     EXERCISEPRICE.  The exercise price per share ofStock purchasable under an Option shall be determined by the Committee;PROVIDED, HOWEVER, that, that, except as provided in Section 7(a), suchexercise price shall be not less than the Fair Market Value of a share on thedate of grant of such Option, and further PROVIDED, that the exercise price pershare shall not be less than 110% of the Fair Market Value on the date of grantin the case of an ISO granted to a Ten-Percent Stockholder.

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### (ii)                                  TIME AND METHODOF EXERCISE.  The Committee shalldetermine the time or times at which an Option may be exercised in whole or inpart, the methods by which such exercise price may be paid or deemed to be paid,the form of such payment, including, without limitation, cash, Stock, otherAwards or awards granted under other Company plans or other property (includingnotes or other contractual obligations of Participants to make payment on adeferred basis, such as through “cashless exercise” arrangements, to the extentpermitted by applicable law), and the methods by which Stock will be deliveredor deemed to be delivered to Participants.

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### (iii)                               ISOS.  The terms of any ISO granted under the Planshall comply in all respects with the provisions of Section 422 of the Code,including but not limited to the requirement that no ISO shall be granted morethan ten years after the Effective Date of the Plan.  An ISO shall not be exercisable after the expiration of ten (10)years from the date it is granted (five (5) years in the case of an ISO grantedto a Ten-Percent Stockholder).  AnOption shall be treated as an ISO only to the extent that the aggregate FairMarket Value (determined at the time the Option is granted) of the shares withrespect to which all ISOs held by a Participant (under the Plan and all otherplans of the Company, its “parent corporation” or “subsidiary corporation” (assuch terms are defined under Sections 424(e) and 424(f) of the Code,respectively)), become exercisable for the first time during any calendar yeardoes not exceed $100,000.  Thislimitation shall be applied by taking Options into account in the order inwhich they were granted.  To the extentthis limitation is exceeded, an Option shall be treated as a Nonqualified StockOption regardless of its designation as an ISO. Should any ISO remainexercisable after three months

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### after employment terminatesfor any reason other than Disability or death, or after one year if employmentterminates due to Disability, the Option shall immediately be converted to aNonqualified Stock Option.  In order toobtain the benefits of an ISO under the Code, no sale or other disposition maybe made of any shares upon exercise of such Option until the later of one yearfrom the date of transfer of the shares acquired pursuant to the exercise ofthe Option, or two years from the grant date of the Option.  The Company shall have no liability in theevent it is determined that any Option intended to be an ISO fails to qualifyas such, whether such failure is a result of a disqualifying disposition or theterms of this Plan or any governing Agreement.

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### (iv)                              TERMINATION OFEMPLOYMENT OR OTHER SERVICE.  Unlessotherwise determined by the Committee, upon termination of a Participant’semployment or other service with the Company and its subsidiaries, suchParticipant may exercise any Options during the three-month period followingsuch termination of employment or other service, but only to the extent suchOption was exercisable immediately prior to such termination ofemployment.  Notwithstanding theforegoing, if the Committee determines that such termination is for cause, allOptions held by the Participant shall terminate as of the termination ofemployment or other service.

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## (c)                                  STOCKAPPRECIATION RIGHTS.  The Committee isauthorized to grant SARS on the following terms and conditions (“SARs”):

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### (i)                                     RIGHT TOPAYMENT.  An SAR shall confer on theParticipant to whom it is granted a right to receive, upon exercise thereof,the excess of (A) the Fair Market Value of one share of Stock on the date ofexercise (or, if the Committee shall so determine in the case of any such rightother than one related to an ISO, the Fair Market Value of one share at anytime during a specified period before or after the date of exercise), over (B)the grant price of the SAR as determined by the Committee as of the date ofgrant of the SAR, which, except as provided in Section 7(a), shall be not lessthan the Fair Market Value of one share of Stock on the date of grant.

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### (ii)                                  OTHERTERMS.  The Committee shall determinethe time or times at which an SAR may be exercised in whole or in part, themethod of exercise, method of settlement, form of consideration payable insettlement, method by which Stock will be delivered or deemed to be deliveredto Participants, whether or not an SAR shall be in tandem with any other Award,and any other terms and conditions of any SAR. Limited SARS that may only be exercised upon the occurrence of a Changein Control may be granted on such terms, not inconsistent with this Section6(c), as the Committee may determine. Limited SARs may be either freestanding or in tandem with other Awards.

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## (d)                                 RESTRICTEDSTOCK.  The Committee is authorized togrant Restricted Stock on the following terms and conditions (“RestrictedStock”), including those with respect to which the restrictions lapse upon theachievement of performance goals under Section 7(e) hereof (“PerformanceShares”):

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### (i)                                     GRANT ANDRESTRICTIONS.  Restricted Stock shall besubject to such restrictions on transferability and other restrictions, if any,as the Committee may impose, which restrictions may lapse separately or incombination at such times, under such

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### circumstances (includingthose set forth in Section 7(e)), in such installments, or otherwise, as theCommittee may determine.  Except to theextent restricted under the terms of the Plan and any Award Agreement relatingto the Restricted Stock or Performance Shares, a Participant granted RestrictedStock or Performance Shares shall have all of the rights of a stockholderincluding, without limitation, the right to vote the Restricted Stock or PerformanceShares, and the right to receive dividends thereon.

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### (ii)                                  FORFEITURE.  Except as otherwise determined by theCommittee, upon termination of employment or other service (as determined undercriteria established by the Committee) during the applicable restrictionperiod, Restricted Stock and Performance Shares that are at that time subjectto restrictions shall be forfeited and reacquired by the Company; PROVIDED,HOWEVER, that the Committee may provide, by rule or regulation or in any AwardAgreement, or may determine in any individual case, that restrictions orforfeiture conditions relating to Restricted Stock will be waived in whole orin part in the event of termination resulting from specified causes; provided,however, that no such determinations shall be made with respect to an Award ofPerformance Shares after the grant thereof if the Committee’s discretion tomake such determination shall result in the Award not being qualified asperformance-based pursuant to Section 7(e) hereof and Section 162(m) of theCode.

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### (iii)                               CERTIFICATESFOR STOCK.  Restricted Stock andPerformance Shares granted under the Plan may be evidenced in such manner asthe Committee shall determine.  Ifcertificates representing Restricted Stock and Performance Shares are registeredin the name of the Participant, such certificates may bear an appropriatelegend referring to the terms, conditions, and restrictions applicable to suchRestricted Stock, the Company may retain physical possession of thecertificate, and the Participant shall have delivered a stock power to theCompany, endorsed in blank, relating to the Restricted Stock or PerformanceShares.

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### (iv)                              DIVIDENDS.  Dividends paid on Restricted Stock shall beeither paid at the dividend payment date in cash or in shares of unrestrictedStock having a Fair Market Value equal to the amount of such dividends, or thepayment of such dividends shall be deferred and/or the amount or value thereofautomatically reinvested in additional Restricted Stock, other Awards, or otherinvestment vehicles, as the Committee shall determine or permit the Participantto elect.  Stock distributed inconnection with a Stack split or Stock dividend, and other property distributedas a dividend, shall be subject to restrictions and a risk of forfeiture to thesame extent as the Restricted Stock with respect to which such Stock or otherproperty has been distributed, unless otherwise determined by theCommittee.  An Award of PerformanceShares shall provide that Dividends shall only be payable with respect to suchAward at such time and under such conditions that payment thereof will notcause the Award or payment of the Dividends to qualify as performance-basedcompensation pursuant to Section 7(e) hereof and Section 162(m) of the Code.

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## (e)                                  DEFERREDSTOCK.  The Committee is authorized togrant Deferred Stock subject to the following terms and conditions (“DeferredStock”):

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### (i)                                     AWARD ANDRESTRICTIONS.  Delivery of Stock willoccur upon expiration of the deferral period specified for an Award of DeferredStock by the

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### Committee (or, if permittedby the Committee, as elected by the Participant).  In addition, Deferred Stock shall be subject to such restrictionsas the Committee may impose, if any, which restrictions may lapse at theexpiration of the deferral period or at earlier specified times, separately orin combination, in installments or otherwise, as the Committee maydetermine.  Subject to any rules thatmay be established by the Board with respect to compensation for directors whoare not also employees, such directors may be permitted to defer shares ofStock in lieu of receipt of payment of fees or shares to which they may beentitled for service as directors.

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### (ii)                                  FORFEITURE.  Except as otherwise determined by theCommittee, upon termination of employment or other service (as determined undercriteria established by the Committee) during the applicable deferral period orportion thereof to which forfeiture conditions apply (as provided in the AwardAgreement evidencing the Deferred Stock), all Deferred Stock that is at thattime subject to such forfeiture conditions shall be forfeited; PROVIDED,HOWEVER, that the Committee may provide, by rule or regulation or in any AwardAgreement, or may determine in any individual case, that restrictions orforfeiture conditions relating to Deferred Stack will be waived in whole or inpart in the event of termination resulting from specified causes.

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## (f)                                    BONUS STOCK ANDAWARDS IN LIEU OF CASH OBLIGATIONS.  TheCommittee is authorized to grant Stock as a bonus, or to grant Stock or otherAwards in lieu of Company obligations to pay cash under other plans orcompensatory arrangements.  Stock orAwards granted hereunder shall be subject to such other terms as shall bedetermined by the Committee.  Subject toany rules that may be established by the Board with respect to compensation fordirectors who are not also employees, such directors may be permitted to electto receive shares of Stock in lieu of receipt of payment of fees to which theymay be entitled for service as directors.

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## (g)                                 DIVIDENDEQUIVALENTS.  The Committee isauthorized to grant Dividend Equivalents entitling the Participant to receivecash, Stock, other Awards or other property equal in value to dividends paidwith respect to a specified number of shares of Stock (“DividendEquivalents”).  Dividend Equivalents maybe awarded on a free-standing basis or in connection with another Award.  The Committee may provide that DividendEquivalents shall be paid or distributed when accrued or shall be deemed tohave been reinvested in additional Stock, Awards or other investment vehicles,and subject to such restrictions on transferability and risks of forfeiture, asthe Committee may specify.

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## (h)                                 OTHERSTOCK-BASED AWARDS.  The Committee isauthorized, subject to limitations under applicable law, to grant such otherAwards that may be denominated or payable in, valued in whole or in part byreference to, or otherwise based on, or related to, Stock and factors that mayinfluence the value of Stock, as deemed by the Committee to be consistent withthe purposes of the Plan, including, without limitation, convertible orexchangeable debt securities, other rights convertible or exchangeable intoStock, purchase rights for Stock, Awards with value and payment contingent uponperformance of the Company or any other factors designated by the Committee andAwards valued by reference to the book value of Stock or the value ofsecurities of or the performance of specified subsidiaries (“Other Stock BasedAwards”).  The Committee shall determinethe terms and conditions of such Awards. Stock issued pursuant to an Award in the nature of a purchase rightgranted under this Section 6(h)

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## shall be purchased for suchconsideration, paid for at such times, by such methods, and in such forms,including, without limitation, cash, Stock, other Awards, or other property, asthe Committee shall determine.  Cashawards, as an element of or supplement to any other Award under the Plan, maybe granted pursuant to this Section 6(h).

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# 7.                                       CERTAINPROVISIONS APPLICABLE TO AWARDS

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## (a)                                  STAND-ALONE,ADDITIONAL, TANDEM, AND SUBSTITUTE AWARDS. Awards granted under the Plan may, in the discretion of the Committee,be granted either alone or in addition to, in tandem with or in substitutionfor, any other Award granted under the Plan or any award granted under anyother plan of the Company, any subsidiary or any business entity to be acquiredby the Company or a subsidiary, or any other right of a Participant to receivepayment from the Company or any subsidiary. Awards granted in addition to or in tandem with other Awards or awardsmay be granted either as of the same time as or a different time from the grantof such other Awards or awards.

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## (b)                                 TERM OFAWARDS.  The term of each Award shall befor such period as may be determined by the Committee; PROVIDED, HOWEVER, thatin no event shall the term of any Award exceed a period of ten years from thedate of its grant (or, the case of any ISO or SAR granted in tandem therewith,such shorter period as may be applicable under Section 422 of the Code).

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## (c)                                  FORM OF PAYMENTUNDER AWARDS.  Subject to the terms ofthe Plan and any applicable Award Agreement, payments to be made by the Companyor a subsidiary upon the grant, exercise or settlement of an Award may be madein such forms as the Committee shall determine, including, without limitation,cash, Stock, other Awards or other property, and may be made in a singlepayment or transfer, in installments or on a deferred basis.  Such payments may include, withoutlimitation, provisions for the payment or crediting of reasonable interest oninstallment or deferred payments or the grant or crediting of DividendEquivalents in respect of installment or deferred payments denominated inStock.

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## (d)                                 LOANPROVISIONS.  With the consent of theCommittee, and subject at all times to, and only to the extent, if any,permitted under and in accordance with, laws and regulations and other bindingobligations or provisions applicable to the Company, the Company may make,guarantee or arrange for a loan or loans to a Participant with respect to theexercise of any Option or other payment in connection with any Award, includingthe payment by a Participant of any or all federal, state or local income orother taxes due in connection with any Award. Subject to such limitations, the Committee shall have full authority todecide whether to make a loan or loans hereunder and to determine the amount,terms and provisions of any such loan or loans, including the interest rate tobe charged in respect of any such loan or loans, must be full recourse againstthe borrower, the terms on which the loan is to be repaid and conditions, ifany, under which the loan or loans may be forgiven.  Notwithstanding the foregoing, the Company shall not make anyloans to any director or executive officer of the Company.

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## (e)                                  PERFORMANCE-BASEDAWARDS.  The Committee may, in itsdiscretion, designate any Award the exercisability or settlement of which issubject to the achievement of performance conditions as a performance-basedAward subject to this Section 7(e),

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## in order to qualify suchAward as “qualified performance-based compensation” within the meaning of CodeSection 162(m) and regulations thereunder. The performance objectives for an Award subject to this Section 7(e)shall consist of one or more business criteria and a targeted level or levelsof performance with respect to such criteria, as specified by the Committee butsubject to this Section 7(e). Performance objectives shall be objective and shall otherwise meet therequirements of Section 162(m)(4)(C) of the Code.  Business criteria used by the Committee in establishingperformance objectives for Awards subject to this Section 7(e) shall beselected exclusively from among the following:

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(1)                                  Annualreturn on capital;

 

(2)                                  Netearnings;

 

(3)                                  Annualearnings per share;

 

(4)                                  Annualcash flow provided by operations;

 

(5)                                  Changesin annual revenues;

 

(6)                                  Earnings beforeinterest, taxes, depreciation and amortization (“EBITDA”);

 

(7)                                  Fundsfrom operations;

 

(8)                                  Fundsfrom operations per share;

 

(9)                                  Operatingincome;

 

(10)                            Preor after tax income;

 

(11)                            Cashavailable for distribution;

 

(12)                            Cashavailable for distribution per share;

 

(13)                            Returnon equity;

 

(14)                            Returnon assets;

 

(15)                            Shareprice performance;

 

(16)                            Improvementsin the Company’s attainment of expense levels;

 

(17)                            Implementationor completion of critical projects;

 

(18)                            Improvementin cash-flow or (before or after tax).earnings and/or

 

(19)                            Attainment of strategicbusiness criteria, consisting of one or more objectives based on meetingspecified revenue, market penetration,

 

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geographic business expansion goals, cost targets, and goals relatingto acquisitions or divestitures.

 

The levels ofperformance required with respect to such business criteria may be expressed inabsolute or relative levels. Achievement of performance objectives with respect to such Awards shallbe measured over a period of not less than one year nor more than five years,as the Committee may specify. Performance objectives may differ for such Awards to differentParticipants.  The Committee shallspecify the weighting to be given to each performance objective for purposes ofdetermining the final amount payable with respect to any such Award.  The Committee may, in its discretion, reducethe amount of a payout otherwise to be made in connection with an Award subjectto this Section 7(e), but may not exercise discretion to increase such amount,and the Committee may consider other performance criteria in exercising suchdiscretion.  All determinations by theCommittee as to the achievement of performance objectives shall be inwriting.  The Committee may not delegateany responsibility with respect to an Award subject to this Section 7(e).

 

## (f)                                    ACCELERATIONUPON A CHANGE OF CONTROL. Notwithstanding anything contained herein to the contrary, unlessotherwise provided by the Committee in an Award Agreement, all conditions andrestrictions relating to an Award, including limitations on exercisability,risks of forfeiture and conditions and restrictions requiring the continuedperformance of services or the achievement of performance objectives withrespect to the exercisability or settlement of such Award, shall immediatelylapse upon a Change in Control.

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# 8.                                       GENERALPROVISIONS.

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## (a)                                  COMPLIANCE WITHLAWS AND OBLIGATIONS.  The Company shallnot be obligated to issue or deliver Stock in connection with any Award or takeany other action under the Plan in a transaction subject to the registrationrequirements of the Securities Act of 1933, as amended, or any other federal orstate securities law, any requirement under any listing agreement between theCompany and any national securities exchange or automated quotation system orany other law, regulation or contractual obligation of the Company until theCompany is satisfied that such laws, regulations, and other obligations of theCompany have been complied with in full. Certificates representing shares of Stock issued under the Plan will besubject to such stop-transfer orders and other restrictions as may be applicableunder such laws, regulations and other obligations of the Company, includingany requirement that a legend or legends be placed thereon.

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## (b)                                 LIMITATIONS ONTRANSFERABILITY.  No Option shall betransferable by a Participant otherwise than by will or by the laws of descentand distribution or, in the case of an Option other than an ISO, pursuant to adomestic relations order (within the meaning of Rule 16a-12 promulgated underthe Exchange Act), and an Option shall be exercisable during the lifetime ofsuch Participant only by the Participant or his or her guardian or legalrepresentative.  Notwithstanding theforegoing, the Committee may set forth in the Agreement evidencing an Option(other than an ISO) at the time of grant or thereafter, that the Option may betransferred to members of the Participant’s immediate family, to trusts solelyfor the benefit of such immediate family members and to partnerships in whichsuch family members and/or trusts are the only partners, and for purposes ofthis Plan, a transferee of an

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## Option shall be deemed to bethe Participant.  For this purpose,immediate family means the Participant’s spouse, parents, children,stepchildren and grandchildren and the spouses of such parents, children,stepchildren and grandchildren.  Theterms of an Option shall be final, binding and conclusive upon thebeneficiaries, executors, administrators, heirs and successors of theParticipant.  Until all restrictionsupon the shares of Restricted Stock or any other Award awarded to a Participantshall have lapsed or such other Awards shall have vested, shares subject tosuch Awards shall not be sold, transferred or otherwise disposed of, shall notbe pledged or otherwise hypothecated., and shall not be subject to the claimsof creditors.

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## (c)                                  NO RIGHT TOCONTINUED EMPLOYMENT OR SERVICE. Neither the Plan nor any action taken hereunder shall be construed asgiving any employee or other person the right to be retained in the employ orservice of the Company or any of its subsidiaries, nor shall it interfere inany way with the right of the Company or any of its subsidiaries to terminateany employee’s employment or other person’s service at any time.

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## (d)                                 TAXES.  The Company and any subsidiary is authorizedto withhold from any Award granted or to be settled, any delivery of Stock inconnection with an Award, any other payment relating to an Award or any payrollor other payment to a Participant amounts of withholding and other taxes due orpotentially payable in connection with any transaction involving an Award, andto take such other action as the Committee may deem advisable to enable theCompany and Participants to satisfy obligations for the payment of withholdingtaxes and other tax obligations relating to any Award.  This authority shall include authority towithhold or receive Stock or other property and to make cash payments inrespect thereof in satisfaction of a Participant’s tax obligations.

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## (e)                                  CHANGES TO THEPLAN AND AWARDS.  The Board may amend,alter, suspend, discontinue or terminate the Plan or the Committee’s authorityto grant Awards under the Plan without the consent of stockholders orParticipants, except that any such action shall be subject to the approval ofthe Company’s stockholders at or before the next annual meeting of stockholdersfor which the record date is after such Board action if such stockholderapproval is required by any federal or state law or regulation or the rules ofany stock exchange or automated quotation system on which the Stock may then belisted or quoted, and the Board may otherwise, in its discretion, determine tosubmit other such changes to the Plan to stockholders for approval; PROVIDED,HOWEVER, that, without the consent of an affected Participant, no such actionmay materially impair the rights of such Participant under any Awardtheretofore granted to him.  TheCommittee may waive any conditions or rights under, or amend, alter, suspend,discontinue, or terminate, any Award theretofore granted and any AwardAgreement relating thereto; PROVIDED, HOWEVER, that, without the consent of anaffected Participant, no such action may materially impair the rights of suchParticipant under such Award.  Notwithstandingthis Section 8(e) or any other provision of the Plan, no Option grantedhereunder may be “repriced” at a lower exercise price, and no modification oramendment of any outstanding Option (including the cancellation of such Optionfor a new Option at a lower exercise price) is permitted hereunder if suchmodification or amendment would qualify as a “repricing.”

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## (f)                                    NO RIGHTS TOAWARDS; NO STOCKHOLDER RIGHTS.  NoParticipant or employee shall have any claim to be granted any Award under thePlan, and there

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## is no obligation foruniformity of treatment of Participants and employees.  No Award shall confer on any Participant anyof the rights of a stockholder of the Company unless and until Stock is dulyissued or transferred and delivered to the Participant in accordance with theterms of the Award or, in the case of an Option, the Option is duly exercised.

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## (g)                                 UNFUNDED STATUSOF AWARDS; CREATION OF TRUSTS.  The Planis intended to constitute an “unfunded” plan for incentive and deferredcompensation.  With respect to anypayments not yet made to a Participant pursuant to an Award, nothing containedin the Plan or any Award shall give any such Participant any rights that aregreater than those of a general creditor of the Company; PROVIDED, HOWEVER,that the Committee may authorize the creation of trusts or make otherarrangements to meet the Company’s obligations under the Plan to deliver cash,Stock, other Awards, or other property pursuant to any Award, which Trusts orother arrangements shall be consistent with the “unfunded” status of the Planunless the Committee otherwise determines with the consent of each affectedParticipant.

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## (h)                                 NONEXCLUSIVITYOF THE PLAN.  Neither the adoption ofthe Plan by the Board nor its submission to the stockholders of the Company forapproval shall be construed as creating any limitations on the power of theBoard to adopt such other compensatory arrangements as it may deem desirable,including, without limitation, the granting of stock options otherwise thanunder the Plan, and such arrangements may be either applicable generally oronly in specific cases.

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## (i)                                     NO FRACTIONALSHARES.  No fractional shares of Stockshall be issued or delivered pursuant to the Plan or any Award.  The Committee shall determine whether cash,other Awards, or other property shall be issued or paid in lieu of suchfractional shares or whether such fractional shares or any rights thereto shallbe forfeited or otherwise eliminated.

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## (j)                                     COMPLIANCE WITHCODE SECTION 162(M).  It is the intentof the Company that employee Options, SARs and other Awards designated asAwards subject to Section 7(e) shall constitute “qualified performance-basedcompensation” within the meaning of Code Section 162(m).  Accordingly, if any provision of the Plan orany Award Agreement relating to such an Award does not comply or isinconsistent with the requirements of Code Section 162(m), such provision shallbe construed or deemed amended to the extent necessary to conform to suchrequirements, and no provision shall be deemed to confer upon the Committee orany other person discretion to increase the amount of compensation otherwisepayable in connection with any such Award upon attainment of the performanceobjectives.

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## (k)                                  GOVERNINGLAW.  The validity, construction andeffect of the Plan, any rules and regulations relating to the Plan and anyAward Agreement shall be determined in accordance with the laws of the State ofDelaware, without giving effect to principles of conflicts of laws, andapplicable federal law.

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## (l)                                     EFFECTIVE DATE;PLAN TERMINATION.  This Plan shall become effective on the Effective Date of theReorganization Plan.  Stockholderapproval of the Plan shall be obtained through the vote on the ReorganizationPlan followed by entry of an order confirming the Reorganization Plan.  The Plan shall terminate on the daypreceding the tenth anniversary of the Effective Date and no Award may begranted thereafter; provided, however,

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## that the Board shall havethe right to earlier terminate the Plan provided that no such terminationshall:  (i) impair or adversely alterany Awards theretofore granted under the Plan, except with the consent of theParticipant, or (ii) deprive any Participant of any Shares which he or she mayhave acquired through or as a result of the Plan.

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