**EXHIBIT 10.4**

 

**PINNACLE BANKSHARES CORPORATION**

**2004 INCENTIVE STOCK PLAN**

 

**ARTICLE I**

**Establishment, Purpose, and Duration**

 

1.1 Establishment of the Plan. Pinnacle Bankshares Corporation, a Virginia corporation (the “Company”),hereby establishes an incentive compensation plan for the Company and its subsidiaries to be known as the “2004 Incentive Stock Plan”, as set forth in this document. Unless otherwise defined herein, all capitalized terms shall have themeanings set forth in Section 2.1 herein. The Plan permits the grant of Incentive Stock Options, Non-qualified Stock Options, Stock Appreciation Rights and Restricted Stock. 

 

The Plan was adopted by the Board of Directors of the Company on February 10, 2004, and shall become effective on May 1,2004 (the “Effective Date”), subject to the approval by vote of shareholders of the Company in accordance with applicable laws. Awards under the Plan may not be granted prior to the later of the Effective Date of the Plan or the date ofshareholder approval of the Plan. 

 

1.2 Purpose of thePlan. The purpose of the Plan is to promote the success of the Company and its Subsidiaries by providing incentives to Key Employees that will promote the identification of their personal interest with the long-term financial success of theCompany and with growth in shareholder value. The Plan is designed to provide flexibility to the Company and its Subsidiaries, in its ability to motivate, attract, and retain the services of Key Employees upon whose judgment, interest, and specialeffort the successful conduct of its operation is largely dependent. 

 

1.3 Duration of the Plan. The Plan shall commence on the Effective Date, as described in Section 1.1 herein, and shall remain in effect, subject to the right of the Board of Directors to terminate the Plan at any time pursuant toArticle XI herein, until April 30, 2014, at which time it shall terminate except with respect to Awards made prior to, and outstanding on, that date which shall remain valid in accordance with their terms. 

 

**ARTICLE II**

**Definitions**

 

2.1 Definitions. Except as otherwise defined in the Plan, the following terms shall have the meanings set forth below: 

 

(a) “Affiliate” and “Associate” shall have the respective meanings ascribed to such terms in Rule 12b-2 under theSecurities Exchange Act of 1934, as amended (the “Exchange Act”). 

 

(b) “Agreement” means a written agreement implementing the grant of each Award signed by an authorized officer of the Company and by the Participant. 

(c) “Award” means, individually or collectively, a grant under this Plan ofIncentive Stock Options, Non-qualified Stock Options, Stock Appreciation Rights, and Restricted Stock. 

 

(d) “Award Date” or “Grant Date” means the date on which an Award is made by the Committee under this Plan.

 

(e) “Beneficial Owner” shall havethe meaning ascribed to such term in Rule 13d-3 under the Exchange Act. 

 

(f) “Board” or “Board of Directors” means the Board of Directors of the Company, unless otherwise indicated. 

 

(g) “Change in Control” shall be deemed to have occurred if the conditions set forth in any one ofthe following paragraphs shall have been satisfied: 

 

(i) any Person (other than the Company, any Subsidiary, a trustee or other fiduciary holding securities under any employee benefit plan of the Company, or its Subsidiaries), who or which, together with all Affiliates and Associates of suchPerson, is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing 20% or more of the combined voting power of the Company’s then outstanding securities; or 

 

(ii) if, at any time after the Effective Date, thecomposition of the Board of Directors of the Company shall change such that a majority of the Board of the \Company shall no longer consist of Continuing Directors; or 

 

(iii) if at any time, (A) the Company shall consolidate with, or merge with, any other Person and theCompany shall not be the continuing or surviving corporation, (B) any Person shall consolidate with or merge with the Company, and the Company shall be the continuing or surviving corporation and, in connection therewith, all or part of theoutstanding Stock shall be changed into or exchanged for stock or other securities of any other Person or cash or any other property, (C) the Company shall be a party to a statutory share exchange with any other Person after which the Company is asubsidiary of any other Person, or (D) the Company shall sell or otherwise transfer 50% or more of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any Person or Persons. 

 

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(h) “Code” means the Internal Revenue Code of 1986, as amended from time totime. 

 

(i) “Committee” means thecommittee of the Board appointed to administer the Plan pursuant to Article III herein, all of the members of which shall be “non-employee directors” as defined in Rule 16b-3, as amended, under the Exchange Act, or any similar or successorrule, and “outside directors” within the meaning of Section 162(m)(4)(C)(i) of the Code, as amended. Unless otherwise determined by the Board, the Committee shall consist of compensation committee of the Board. 

 

(j) “Company” means Pinnacle BanksharesCorporation, or any successor thereto as provided in Article XIII herein. 

 

(k) “Continuing Director” means an individual who was a member of the Board of Directors of the Company on the Effective Date or whose subsequent nomination for election or re-election to the Board ofDirectors of the Company was recommended or approved by the affirmative vote of two-thirds of the Continuing Directors then in office. 

 

(l) “Exchange Act” means the Securities Exchange Act of 1934, as amended. 

 

(m) “Fair Market Value” of a Share means the fairmarket value as determined pursuant to a reasonable method adopted by the Committee in good faith for such purpose. 

 

(n) “Incentive Stock Option” or “ISO” means an option to purchase Stock, granted under Article VI herein, which isdesignated as an incentive stock option and is intended to meet the requirements of Section 422 of the Code. 

 

(o) “Key Employee” means an officer or other key employee of the Company or its Subsidiaries, who, in the opinion of theCommittee, can contribute significantly to the growth and profitability of, or perform services of major importance to, the Company and its Subsidiaries. 

 

(p) “Non-qualified Stock Option” or “NQSO” means an option to purchase Stock, granted under Article VI herein, whichis not intended to be an Incentive Stock Option. 

 

(q) “Option” means an Incentive Stock Option or a Non-qualified Stock Option. 

 

(r) “Participant” means a Key Employee who is granted an Award under the Plan. 

 

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(s) “Performance Criteria” means one or more specified performance goals, whichmay be stated in terms of the value of the Stock, return on equity, earnings per share, total earnings, earnings growth, return on assets, or return on capital, with respect to Awards of Restricted Stock pursuant to Article VIII herein. 

 

(t) “Period of Restriction” means the periodduring which the transfer of Shares of Restricted Stock is restricted, pursuant to Article VIII herein. 

 

(u) “Person” shall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and14(d) thereof, including a “group” as defined in Section 13(d). 

 

(v) “Plan” means the Pinnacle Bankshares Corporation 2004 Incentive Stock Plan, as described and as hereafter from time to time amended. 

 

(w) “Related Option” means an Option with respect to which a Stock Appreciation Right has beengranted. 

 

(x) “Restricted Stock”means an Award of Stock granted to a Participant pursuant to Article VIII herein. 

 

(y) “Stock” or “Shares” means the common stock of the Company. 

 

(z) “Stock Appreciation Right” or “SAR”means an Award, designated as a stock appreciation right, granted to a Participant pursuant to Article VII herein. 

 

(aa) “Subsidiary” shall mean a corporation at least 50% of the total combined voting power of all classes of stock of which isowned by the Company, either directly or through one or more of its Subsidiaries. 

 

**ARTICLE III**

**Administration**

 

3.1 The Committee. The Plan shall be administered by the Committee which shall have all powers necessary or desirablefor such administration. The express grant in this Plan of any specific power to the Committee shall not be construed as limiting any power or authority of the Committee. In addition to any other powers and subject to the provisions of the Plan, theCommittee shall have the following specific powers: (i) to determine the terms and conditions 

 

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upon which the Awards may be made and exercised; (ii) to determine all terms and provisions of each Agreement, which neednot be identical; (iii) to construe and interpret the Agreements and the Plan; (iv) to establish, amend, or waive rules or regulations for the Plan’s administration; (v) to accelerate the exercisability of any Award or the termination of anyPeriod of Restriction or other restrictions with respect to Restricted Stock; and (vi) to make all other determinations and take all other actions necessary or advisable for the administration of the Plan. 

 

3.2 Selection of Participants. The Committee shall have the authorityto grant Awards under the Plan, from time to time, to such Key Employees as may be selected by it to be Participants. Each Award shall be evidenced by an Agreement. 

 

3.3 Decisions Binding. All determinations and decisions made by the Board or the Committee pursuant to the provisionsof the Plan shall be final, conclusive, and binding. 

 

3.4Requirements of Rule 16b-3 and Code Section 162(m). Notwithstanding any other provision of the Plan, the Board or the Committee may impose such conditions on any Award, and amend the Plan in any such respects, as may be required to satisfythe requirements of Rule 16b-3, as amended (or any successor or similar rule), under the Exchange Act. 

 

Any provision of the Plan to the contrary notwithstanding, and except to the extent that the Committee determines otherwise: (i) transactions by and withrespect to officers and directors of the Company who are subject to Section 16(b) of the Exchange Act (hereafter, “Section 16 Persons”) shall comply with any applicable conditions of SEC Rule 16b-3; (ii) transactions with respect topersons whose remuneration is subject to the provisions of Section 162(m) of the Code shall conform to the requirements of Section 162(m)(4)(C) of the Code; and (iii) every provision of the Plan shall be administered, interpreted, and construed tocarry out the foregoing provisions of this sentence. 

 

Notwithstanding any provision of the Plan to the contrary, the Plan is intended to give the Committee the authority to grant Awards that qualify as performance-based compensation under Code Section 162(m)(4)(C) as well as Awards that do notso qualify. Every provision of the Plan shall be administered, interpreted, and construed to carry out such intention, and any provision that cannot be so administered, interpreted, and construed shall to that extent be disregarded; and anyprovision of the Plan that would prevent an Award that the Committee intends to qualify as performance-based compensation under Code Section 162(m)(4)(C) from so qualifying shall be administered, interpreted, and construed to carry out suchintention, and any provision that cannot be so administered, interpreted, and construed shall to that extent be disregarded. 

 

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3.5 Indemnification. In addition to such other rights of indemnification as they may have asdirectors or as members of the Committee, the members of the Committee shall be indemnified by the Company against reasonable expenses, including attorneys’ fees, actually and reasonably incurred in connection with the defense of any action,suit, or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan or any Award granted or made hereunder, and against allamounts reasonably paid by them in settlement thereof or paid by them in satisfaction of a judgment in any such action, suit, or proceeding, if such members acted in good faith and in a manner which they believed to be in, and not opposed to, thebest interests of the Company and its Subsidiaries. 

 

3.6Certain Determinations. In connection with the Committee’s good faith determination of Fair Market Value as required herein, the Committee may, as guidance, take into consideration the book value of the Stock of the Company, therelationship between the traded price and book value of shares for financial institutions of similar size and similar operating results to the Company and its subsidiary bank, any reasonably recent trades of the Stock of the Company brought to theattention of the Committee and such additional relevant information as the Committee in its judgment deems necessary. In its sole discretion, the Committee may, but is not obligated to, consult with and/or engage an investment banker or otherappropriate advisor to advise the Committee in connection with its good faith determination of Fair Market Value herein. 

 

**ARTICLE IV**

**Stock Subject to the Plan**

 

4.1 Number of Shares. Subject to adjustment asprovided in Section 4.3 herein, the maximum aggregate number of Shares that may be issued pursuant to Awards made under the Plan shall not exceed 100,000. No more than one-third of the aggregate number of such Shares shall be issued in connectionwith Restricted Stock Awards. Except as provided in Section 4.2 herein, the issuance of Shares in connection with the exercise of, or as other payment for Awards, under the Plan shall reduce the number of Shares available for future Awards under thePlan. 

 

4.2 Lapsed Awards or Forfeited Shares. If anyAward granted under this Plan (for which no material benefits of ownership have been received, including dividends) terminates, expires, or lapses for any reason other than by virtue of exercise of the Award, or if Shares issued pursuant to Awards(for which no material benefits of ownership have been received, including dividends) are forfeited, any Stock subject to such Award again shall be available for the grant of an Award under the Plan, subject to Section 7.2. 

 

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4.3 Capital Adjustments. The number and class of Shares subject to each outstanding Award, theOption Price and the aggregate number and class of Shares for which Awards thereafter may be made shall be subject to such adjustment, if any, as the Committee in its sole discretion deems appropriate to reflect such events as stock dividends, stocksplits, recapitalizations, mergers, consolidations or reorganizations of or by the Company. 

 

**ARTICLE V**

**Eligibility**

 

Persons eligible to participate in the Plan and receive Awards are all employees of the Company and its Subsidiaries who, inthe opinion of the Committee, are Key Employees. Key Employees may not include directors of the Company who are not employees of the Company or its Subsidiaries. 

 

**ARTICLE VI**

**Stock Options**

 

6.1 Grant of Options.Subject to the terms and provisions of the Plan, Options may be granted to Key Employees at any time and from time to time as shall be determined by the Committee. The Committee shall have complete discretion in determining the number of Sharessubject to Options granted to each Participant, provided, however, that (i) no Key Employee may be granted Options in any calendar year for more than 20,000 Shares, (ii) the aggregate Fair Market Value (determined at the time the Award is made) ofShares with respect to which any Participant may first exercise ISOs granted under the Plan during any calendar year may not exceed $100,000 or such amount as shall be specified in Section 422 of the Code and rules and regulations thereunder, and(iii) no ISO may be granted on or following the tenth anniversary of the earlier of the Effective Date of the Plan or the date of shareholder approval of the Plan. 

 

6.2 Option Agreement. Each Option grant shall be evidenced by an Agreement that shall specify the type of Optiongranted, the Option Price (as defined in Section 6.3 herein), the duration of the Option, the number of Shares to which the Option pertains, any conditions imposed upon the exercisability of Options in the event of retirement, death, disability orother termination of employment, and such other provisions as the Committee shall determine. The Agreement shall specify whether the Option is intended to be an Incentive Stock Option within the meaning of Section 422 of the Code, or NonqualifiedStock Option not intended to be within the provisions of Section 422 of the Code. 

 

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6.3 Option Price. The exercise price per Share of Stock covered by an Option (“OptionPrice”) shall be determined by the Committee subject to the following limitations. The Option Price shall not be less than 100% of the Fair Market Value of such Stock on the Grant Date. In addition, an ISO granted to an employee who, at thetime of grant, owns (within the meaning of Section 424(d) of the Code) Stock possessing more than 10% of the total combined voting power of all classes of Stock of the Company, shall have an Option Price which is at least equal to 110% of the FairMarket Value of the Stock. 

 

6.4 Duration of Options.Each Option shall expire at such time as the Committee shall determine at the time of grant; provided, however, no ISO shall be exercisable after the expiration of ten years from its Award Date. In addition, an ISO granted to a Key Employee who, atthe time of grant, owns (within the meaning of Section 424(d) of the Code) Stock possessing more than 10% of the total combined voting power of all classes of Stock of the Company, shall not be exercisable after the expiration of five years from itsAward Date. 

 

6.5 Exercisability. Options granted underthe Plan shall be exercisable at such times and be subject to such restrictions and conditions as the Committee shall determine, which need not be the same for all Participants. 

 

6.6 Method of Exercise. Options shall be exercised by the delivery of a written notice to the Company in the formprescribed by the Committee setting forth the number of Shares with respect to which the Option is to be exercised, accompanied by full payment for the Shares. The Option Price shall be payable to the Company in full either in cash, by delivery ofShares of Stock valued at Fair Market Value at the time of exercise, by delivery of a promissory note (in the Committee’s discretion and subject to restrictions and prohibitions of applicable law) or by a combination of the foregoing. As soonas practicable after receipt of written notice and payment, the Company shall deliver to the Participant, stock certificates in an appropriate amount based upon the number of Options exercised, issued in the Participant’s name. No Participantwho is awarded Options shall have rights as a shareholder until the date of exercise of the Options. 

 

6.7 Restrictions on Stock Transferability. The Committee shall impose such restrictions on any Shares acquired pursuant to the exercise of anOption under the Plan as it may deem advisable, including, without limitation, restrictions under the applicable Federal securities law, under the requirements of the National Association of Securities Dealers, Inc. or any stock exchange upon whichsuch Shares are then listed and under any blue sky or state securities laws applicable to such Shares. 

 

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6.8 Nontransferability of Options. No Option granted under the Plan may be sold, transferred,pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution. Further, all Options granted to a Participant under the Plan shall be exercisable during his lifetime only by such Participantor his guardian or legal representative. 

 

**ARTICLE VII**

**Stock Appreciation Rights**

 

7.1 Grant of Stock Appreciation Rights. Subject to the terms and conditions of the Plan, Stock Appreciation Rights may be granted to Key Employees,at the discretion of the Committee in connection with the grant, and exercisable in lieu of Options (“Tandem SARs”). No Key Employee may be granted more than 20,000 Tandem SARs in any calendar year. 

 

7.2 Exercise of Tandem SARs. Tandem SARs may be exercised with respectto all or part of the Shares subject to the Related Option. The exercise of Tandem SARs shall cause a reduction in the number of Shares subject to the Related Option equal to the number of Shares with respect to which the Tandem SAR is exercised.Conversely, the exercise, in whole or in part, of a Related Option, shall cause a reduction in the number of Shares subject to the Related Option equal to the number of Shares with respect to which the Related Option is exercised. Shares withrespect to which the Tandem SAR shall have been exercised may not be subject again to an Award under the Plan. 

 

Notwithstanding any other provision of the Plan to the contrary, a Tandem SAR shall expire no later than the expiration of the Related Option, shall betransferable only when and under the same conditions as the Related Option and shall be exercisable only when the Related Option is eligible to be exercised. In addition, if the Related Option is an ISO, a Tandem SAR shall be exercised for no morethan 100% of the difference between the Option Price of the Related Option and the Fair Market Value of Shares subject to the Related Option at the time the Tandem SAR is exercised. 

 

7.3 Other Conditions Applicable to Tandem SARs. No Tandem SAR shall be exercisable after the expiration of ten yearsfrom its Award Date; and the term of any Tandem SAR granted under the Plan shall not exceed ten years from the Grant Date. A Tandem SAR may be exercised only when the Fair Market Value of a Share exceeds the Option Price of the Related Option. ATandem SAR shall be exercised by delivery to the Committee of a notice of exercise in the form prescribed by the Committee. 

 

7.4 Payment Upon Exercise of Tandem SARs. Subject to the provisions of the Agreement, upon the exercise of a Tandem SAR, the 

 

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Participant is entitled to receive, without any payment to the Company (other than required tax withholding amounts), anamount equal to the product of multiplying (i) the number of Shares with respect to which the Tandem SAR is exercised by (ii) an amount equal to the excess of (A) the Fair Market Value per Share on the date of exercise of the Tandem SAR over (B) theOption Price of the Related Option. 

 

Payment to the Participantshall be made in Shares, valued at the Fair Market Value of the date of exercise, in cash if the Participant has so elected in his written notice of exercise and the Committee has consented thereto, or a combination thereof. To the extent requiredto satisfy the conditions of Rule 16b-3(e) under the Exchange Act, or any successor or similar rule, or as otherwise provided in the Agreement, the Committee shall have the sole discretion to consent to or disapprove the election of any Participantto receive cash in full or partial settlement of a Tandem SAR. In cases where an election of settlement in cash must be consented to by the Committee, the Committee may consent to, or disapprove, such election at any time after such election, orwithin such period for taking action as is specified in the election, and failure to give consent shall be disapproval. Consent may be given in whole or as to a portion of the Tandem SAR surrendered by the Participant. If the election to receivecash is disapproved in whole or in part, the Tandem SAR shall be deemed to have been exercised for Shares, or, if so specified in the notice of exercise and election, not to have been exercised to the extent the election to receive cash isdisapproved. 

 

7.5 Nontransferability of Tandem SARs. NoTandem SAR granted under the Plan may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution. Further, all Tandem SARs granted to a Participant under the Planshall be exercisable during his lifetime only by such Participant or his guardian or legal representative. 

 

**ARTICLE VIII**

**Restricted Stock**

 

8.1 Grant of Restricted Stock. Subject to the terms and provisions ofthe Plan, the Committee, at any time and from time to time, may grant Shares of Restricted Stock under the Plan to such Key Employees and in such amounts as it shall determine, provided, however, that no Key Employee may be granted Stock Awards inany calendar year for more than 10,000 shares of Stock. Participants receiving Restricted Stock Awards are not required to pay the Company therefor (except for applicable tax withholding) other than by the rendering of services. 

 

8.2 Restricted Stock Agreement. Each Restricted Stock grant shall beevidenced by an Agreement that shall specify the number of Restricted Stock Shares granted, the applicable Period of Restriction, Performance Criteria or other restrictions and provisions as the Committee shall determine. 

 

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8.3 Transferability. Except as provided in this Article and subject to the limitation in the nextsentence, the Shares of Restricted Stock granted hereunder may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated until the termination of the applicable Period of Restriction and/or the satisfaction of anyPerformance Criteria or other restrictions specified by the Committee in its sole discretion and set forth in the Agreement. All rights with respect to the Restricted Stock granted to a Participant under the Plan shall be exercisable during hislifetime only by such Participant or his guardian or legal representative. 

 

8.4 Other Restrictions. The Committee may impose such other restrictions on any Shares of Restricted Stock granted pursuant to the Plan as it may deem advisable including, without limitation, restrictions underapplicable Federal or state securities laws, and may legend the certificates representing Restricted Stock to give appropriate notice of such restrictions. Unless otherwise determined by the Committee, custody of Shares of Restricted Stock shall beretained by the Company until the termination of the restrictions pertaining thereto. 

 

8.5 Certificate Legend. In addition to any legends placed on certificates pursuant to Section 8.4 herein, each certificate representing Shares of Restricted Stock granted pursuant to the Plan shall bear thefollowing legend: 

 

The sale or other transfer of the Shares ofStock represented by this certificate, whether voluntary, involuntary, or by operation of law, is subject to certain restrictions on transfer set forth in the 2004 Incentive Stock Plan of Pinnacle Bankshares Corporation, in the rules andadministrative procedures adopted pursuant to such Plan, and in an Agreement dated             . A copy of the Plan, such rules and procedures, and such Restricted Stock Agreementmay be obtained from the Secretary of Pinnacle Bankshares Corporation. 

 

8.6 Removal of Restrictions. Except as otherwise provided in this Article, Shares of Restricted Stock covered by each Restricted Stock Award made under the Plan shall become freely transferable by the Participant after the last dayof the Period of Restriction or on the day immediately following the date on which the Performance Criteria have been timely satisfied, as applicable. Once the Shares are released from the restrictions, the Participant shall be entitled to have thelegend required by Section 8.5 herein removed from his Stock certificate. 

 

8.7 Voting Rights. Participants entitled to or holding Shares of Restricted Stock granted hereunder may exercise full voting rights with respect to those Shares while subject to restrictions hereunder.

 

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8.8 Dividends and Other Distributions. Unless otherwise provided in the Agreement, while subjectto restrictions hereunder, Participants entitled to or holding Shares of Restricted Stock granted hereunder shall be entitled to receive all dividends and other distributions paid with respect to those Shares while they are so held. If any suchdividends or distributions are paid in Shares, the Shares shall be subject to the same restrictions on transferability and the same rules for custody as the Shares of Restricted Stock with respect to which they were distributed. 

 

8.9 Termination of Employment Due to Retirement. Unless otherwiseprovided in the Agreement, in the event that a Participant terminates his employment with the Company or one of its Subsidiaries because of normal retirement (as defined in the rules of the Company in effect at the time), any restrictions applicableto the Restricted Stock Shares pursuant to Section 8.3 herein shall automatically terminate and, except as otherwise provided in Section 8.4 herein the Shares of Restricted Stock shall thereby be free of restrictions and freely transferable. Unlessotherwise provided in the Agreement, in the event that a Participant terminates his employment with the Company because of early retirement (as defined in the rules of the Company in effect at the time), the Committee, in its sole discretion, maywaive the restrictions remaining on any or all Shares of Restricted Stock pursuant to Section 8.3 herein and add such new restrictions to those Shares of Restricted Stock as it deems appropriate. 

 

8.10 Termination of Employment Due to Death or Disability. Unlessotherwise provided in the Agreement, in the event a Participant’s employment is terminated because of death or disability while subject to restrictions hereunder, any remaining restrictions applicable to the Restricted Stock pursuant to Section8.3 herein shall automatically terminate and, except as otherwise provided in Section 8.4 herein the Shares of Restricted Stock shall thereby be free of restrictions and fully transferable. 

 

8.11 Termination of Employment for Other Reasons. Unless otherwiseprovided in the Agreement, in the event that a Participant terminates his employment with the Company for any reason other than for death, disability, or retirement, as set forth in Sections 8.9 and 8.10 herein, while subject to restrictionshereunder, then any Shares of Restricted Stock still subject to restrictions as of the date of such termination shall automatically be forfeited and returned to the Company. 

 

8.12 Failure to Satisfy Performance Criteria. In the event that the specified Performance Criteria are not satisfiedwithin the time period established by the Committee, the Shares of Restricted Stock which were awarded subject to the satisfaction of such Performance Goals shall be automatically forfeited and returned to the Company. 

 

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**ARTICLE IX**

**Change in Control**

 

Inthe event of a Change in Control of the Company, the Committee, as constituted before such Change in Control, in its sole discretion may, as to any outstanding Award, either at the time the Award is made or any time thereafter, take any one or moreof the following actions: (i) provide for the acceleration of any time periods relating to the exercise or realization of any such Award so that such Award may be exercised or realized in full on or before a date initially fixed by the Committee;(ii) provide for the purchase or settlement of any such Award by the Company, upon a Participant’s request, for an amount of cash equal to the amount which could have been obtained upon the exercise of such Award or realization of suchParticipant’s rights had such Award been currently exercisable or payable; (iii) make such adjustment to any such Award then outstanding as the Committee deems appropriate to reflect such Change in Control; or (iv) cause any such Award thenoutstanding to be assumed, or new rights substituted therefor, by the acquiring or surviving corporation in such Change in Control. 

 

**ARTICLE X**

**Modification, Extensionand Renewals of Awards**

 

Subject to the terms and conditionsand within the limitations of the Plan, the Committee may modify, extend or renew outstanding Awards, or, if authorized by the Board, accept the surrender of outstanding Awards (to the extent not yet exercised) granted under the Plan and authorizethe granting of new Awards pursuant to the Plan in substitution therefor, and the substituted Awards may specify a lower exercise price than the surrendered Awards provided the replacement Awards are not granted until at least six months and a dayafter the Awards are surrendered, may provide for a longer term than the surrendered Awards, may provide for more rapid vesting and exercisability than the surrendered Awards, or may contain any other provisions that are authorized by the Plan. TheCommittee may also modify the terms of any outstanding Agreement. Notwithstanding the foregoing, however, no modification of an Award, shall, without the consent of the Participant, adversely affect the rights or obligations of the Participant.

 

**ARTICLE XI**

**Amendment, Modification and Termination of the Plan**

 

11.1 Amendment, Modification and Termination. At any time and from time to time, the Board may terminate, amend, or modify the Plan. Such amendmentor modification may be without shareholder approval except to 

 

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the extent that such approval is required by the Code, pursuant to the rules under Section 16 of the Exchange Act, by anynational securities exchange or system on which the Stock is then listed or reported, by any regulatory body having jurisdiction with respect thereto or under any other applicable laws, rules or regulations. 

 

11.2 Awards Previously Granted. No termination, amendment ormodification of the Plan other than pursuant to Section 4.3 herein shall in any manner adversely affect any Award theretofore granted under the Plan, without the written consent of the Participant. 

 

**ARTICLE XII**

**Withholding**

 

12.1 Tax Withholding. The Company shall have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy Federal, State and local taxes (including theParticipant’s FICA obligation, if any) required by law to be withheld with respect to any grant, exercise, or payment made under or as a result of this Plan. 

 

12.2 Stock Withholding. With respect to withholding required upon the exercise of Nonqualified Stock Options, or uponthe lapse of restrictions on Restricted Stock, or upon the occurrence of any other similar taxable event, Participants may elect, subject to the approval of the Committee, to satisfy the withholding requirement, in whole or in part, by having theCompany withhold Shares of Stock having a Fair Market Value equal to the amount required to be withheld. The value of the Shares to be withheld shall be based on Fair Market Value of the Shares on the date that the amount of tax to be withheld is tobe determined. All elections shall be irrevocable and be made in writing, signed by the Participant on forms approved by the Committee in advance of the day that the transaction becomes taxable. 

 

**ARTICLE XIII**

**Successors**

 

All obligations of the Company under the Plan, with respect to Awards granted hereunder, shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger,consolidation or otherwise, of all or substantially all of the business and/or assets of the Company. 

 

**ARTICLE XIV**

**General**

 

14.1 Requirements of Law. The granting of Awards and the issuance ofShares of Stock under this Plan shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or self regulatory organizations (i.e., exchanges) as may be required. 

 

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14.2 Effect of Plan. The establishment of the Plan shall not confer upon any Key Employee anylegal or equitable right against the Company, a Subsidiary or the Committee, except as expressly provided in the Plan. The Plan does not constitute an inducement or consideration for the employment of any Key Employee, nor is it a contract betweenthe Company or any of its Subsidiaries and any Key Employee. Participation in the Plan shall not give any Key Employee any right to be retained in the service of the Company or any of its Subsidiaries. 

 

14.3 Creditors. The interests of any Participant under the Plan or anyAgreement are not subject to the claims of creditors and may not, in any way, be assigned, alienated or encumbered. 

 

14.4 Governing Law. The Plan, and all Agreements hereunder, shall be governed, construed and administered in accordance with the laws of theCommonwealth of Virginia and the intention of the Company is that ISOs granted under the Plan qualify as such under Section 422 of the Code. 

 

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

 

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