exv4w4






Exhibit 4.4




ASCENT MEDIA CORPORATION


2008
 INCENTIVE PLAN




ARTICLE I




PURPOSE OF PLAN; EFFECTIVE DATE




     1.1. Purpose. The purpose of the Plan is to promote the success of the Company by
providing a method whereby (i) eligible employees of the Company and its Subsidiaries and (ii)
independent contractors providing services to the Company and its Subsidiaries may be awarded
additional remuneration for services rendered and encouraged to invest in capital stock of the
Company, thereby increasing their proprietary interest in the Company’s businesses, encouraging
them to remain in the employ of the Company or its Subsidiaries, and increasing their personal
interest in the continued success and progress of the Company and its Subsidiaries. The Plan is
also intended to aid in (i) attracting Persons of exceptional ability to become officers and
employees of the Company and its Subsidiaries and (ii) inducing independent contractors to agree to
provide services to the Company and its Subsidiaries.



     1.2. Effective Date. The Plan shall be effective as of September 15, 2008 (the
“Effective Date”).



ARTICLE II




DEFINITIONS




     2.1. Certain Defined Terms. Capitalized terms not defined elsewhere in the Plan shall
have the following meanings (whether used in the singular or plural):



     “Affiliate” of the Company means any corporation, partnership or other business association
that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is
under common control with the Company.



     “Agreement” means a stock option agreement, stock appreciation rights agreement, restricted
shares agreement, stock units agreement, cash award agreement or an agreement evidencing more than
one type of Award, specified in Section 11.5, as any such Agreement may be supplemented or amended
from time to time.



     “Approved Transaction” means any transaction in which the Board (or, if approval of the Board
is not required as a matter of law, the stockholders of the Company) shall approve (i) any
consolidation or merger of the Company, or binding share exchange, pursuant to which shares of
Common Stock of the Company would be changed or converted into or exchanged for cash, securities,
or other property, other than any such transaction in which the common stockholders of the Company
immediately prior to such transaction have the same proportionate ownership of the Common Stock of,
and voting power with respect to, the



 









 







surviving corporation immediately after such transaction, (ii) any merger, consolidation or binding
share exchange to which the Company is a party as a result of which the Persons who are common
stockholders of the Company immediately prior thereto have less than a majority of the combined
voting power of the outstanding capital stock of the Company ordinarily (and apart from the rights
accruing under special circumstances) having the right to vote in the election of directors
immediately following such merger, consolidation or binding share exchange, (iii) the adoption of
any plan or proposal for the liquidation or dissolution of the Company, or (iv) any sale, lease,
exchange or other transfer (in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company.



     “Award” means a grant of Options, SARs, Restricted Shares, Stock Units, Performance Awards,
Cash Awards and/or cash amounts under the Plan.



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



     “Board Change” means, during any period of two consecutive years, individuals who at the
beginning of such period constituted the entire Board cease for any reason to constitute a majority
thereof unless the election, or the nomination for election, of each new director was approved by a
vote of at least two-thirds of the directors then still in office who were directors at the
beginning of the period.



     “Cash Award” means an Award made pursuant to Section 10.1 of the Plan to a Holder that is paid
solely on account of the attainment of one or more Performance Objectives that have been
preestablished by the Committee.



     “Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor
statute or statutes thereto. Reference to any specific Code section shall include any successor
section.



     “Committee” means the committee of the Board appointed pursuant to Section 3.1 to administer
the Plan.



     “Common Stock” means each or any (as the context may require) series of the Company’s common
stock.



     “Company” means Ascent Media Corporation, a Delaware corporation.



     “Control Purchase” means any transaction (or series of related transactions) in which (i) any
person (as such term is defined in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), corporation
or other entity (other than the Company, any Subsidiary of the Company or any employee benefit plan
sponsored by the Company or any Subsidiary of the Company) shall purchase any Common Stock of the
Company (or securities convertible into Common Stock of the Company) for cash, securities or any
other consideration pursuant to a tender offer or exchange offer, without the prior consent of the
Board, or (ii) any person (as such term is so defined), corporation or other entity (other than the
Company, any Subsidiary of the Company, any employee benefit plan sponsored by the Company or any
Subsidiary of the Company or any Exempt Person (as defined below)) shall become the “beneficial
owner” (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company



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representing 20% or more of the combined voting power of the then outstanding securities of the
Company ordinarily (and apart from the rights accruing under special circumstances) having the
right to vote in the election of directors (calculated as provided in Rule 13d-3(d) under the
Exchange Act in the case of rights to acquire the Company’s securities), other than in a
transaction (or series of related transactions) approved by the Board. For purposes of this
definition,



     “Exempt Person” means each of (a) the Chairman of the Board, the President and each of the
directors of the Company as of the Effective Date, and (b) the respective family members, estates
and heirs of each of the Persons referred to in clause (a) above and any trust or other investment
vehicle for the primary benefit of any of such Persons or their respective family members or heirs.
As used with respect to any Person, the term “family member” means the spouse, siblings and lineal
descendants of such Person.



     “Disability” means the inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than 12 months.



     “Dividend Equivalents” means, with respect to Restricted Shares to be issued at the end of the
Restriction Period, to the extent specified by the Committee only, an amount equal to all dividends
and other distributions (or the economic equivalent thereof) which are payable to stockholders of
record during the Restriction Period on a like number and kind of shares of Common Stock.



     “Domestic Relations Order” means a domestic relations order as defined by the Code or Title I
of the Employee Retirement Income Security Act, or the rules thereunder.



     “Equity Security” shall have the meaning ascribed to such term in Section 3(a)(11) of the
Exchange Act, and an equity security of an issuer shall have the meaning ascribed thereto in Rule
16a-1 promulgated under the Exchange Act, or any successor Rule.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, or any
successor statute or statutes thereto. Reference to any specific Exchange Act section shall
include any successor section.



     “Fair Market Value” of a share of any series of Common Stock on any day means the last sale
price (or, if no last sale price is reported, the average of the high bid and low asked prices) for
a share of such series of Common Stock on such day (or, if such day is not a trading day, on the
next preceding trading day) as reported on the consolidated transaction reporting system for the
principal national securities exchange on which shares of such series of Common Stock are listed on
such day or if such shares are not then listed on a national securities exchange, then as reported
on Nasdaq or, if such shares are not then listed or quoted on Nasdaq, then as quoted by the
National Quotation Bureau Incorporated. If for any day the Fair Market Value of a share of the
applicable series of Common Stock is not determinable by any of the foregoing means, then the Fair
Market Value for such day shall be determined in good faith by



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the Committee on the basis of such quotations and other considerations as the Committee deems
appropriate.



     “Free Standing SAR” has the meaning ascribed thereto in Section 7.1.



     “Holder” means a Person who has received an Award under the Plan.



     “Nasdaq” means The Nasdaq Stock Market.



     “Nonqualified Stock Option” means a stock option granted under Article VI.



     “Option” means a Nonqualified Stock Option.



     “Performance Award” means an Award made pursuant to Article X of the Plan to a Holder that is
subject to the attainment of one or more Performance Objectives.



     “Performance Objective” means a standard established by the Committee to determine in whole or
in part whether a Performance Award shall be earned.



     “Person” means an individual, corporation, limited liability company, partnership, trust,
incorporated or unincorporated association, joint venture or other entity of any kind.



     “Plan” means this Ascent Media Corporation 2008 Incentive Plan.



     “Restricted Shares” means shares of any series of Common Stock or the right to receive shares
of any specified series of Common Stock, as the case may be, awarded pursuant to Article VIII.



     “Restriction Period” means a period of time beginning on the date of each Award of Restricted
Shares and ending on the Vesting Date with respect to such Award.



     “Retained Distribution” has the meaning ascribed thereto in Section 8.3.



     “SARs” means stock appreciation rights, awarded pursuant to Article VII, with respect to
shares of any specified series of Common Stock.



     “Stock Unit Awards” has the meaning ascribed thereto in Section 9.1.



     “Subsidiary” of a Person means any present or future subsidiary (as defined in Section 424(f)
of the Code) of such Person or any business entity in which such Person owns, directly or
indirectly, 50% or more of the voting, capital or profits interests. An entity shall be deemed a
subsidiary of a Person for purposes of this definition only for such periods as the requisite
ownership or control relationship is maintained.



     “Tandem SARs” has the meaning ascribed thereto in Section 7.1.



     “Vesting Date” with respect to any Restricted Shares awarded hereunder, means the date on
which such Restricted Shares cease to be subject to a risk of forfeiture, as designated



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in or determined in accordance with the Agreement with respect to such Award of Restricted
Shares pursuant to Article VIII. If more than one Vesting Date is designated for an Award of
Restricted Shares, reference in the Plan to a Vesting Date in respect of such Award shall be deemed
to refer to each part of such Award and the Vesting Date for such part.



ARTICLE III




ADMINISTRATION




     3.1. Committee. The Plan shall be administered by the Compensation Committee of the
Board unless a different committee is appointed by the Board. The Committee shall be comprised of
not less than two Persons. The Board may from time to time appoint members of the Committee in
substitution for or in addition to members previously appointed, may fill vacancies in the
Committee and may remove members of the Committee. The Committee shall select one of its members
as its chairman and shall hold its meetings at such times and places as it shall deem advisable. A
majority of its members shall constitute a quorum and all determinations shall be made by a
majority of such quorum. Any determination reduced to writing and signed by all of the members
shall be as fully effective as if it had been made by a majority vote at a meeting duly called and
held.



     3.2. Powers. The Committee shall have full power and authority to grant to eligible
Persons Options under Article VI of the Plan, SARs under Article VII of the Plan, Restricted Shares
under Article VIII of the Plan, Stock Units under Article IX of the Plan, Cash Awards under Article
X of the Plan and/or Performance Awards under Article X of the Plan, to determine the terms and
conditions (which need not be identical) of all Awards so granted, to interpret the provisions of
the Plan and any Agreements relating to Awards granted under the Plan and to supervise the
administration of the Plan. The Committee in making an Award may provide for the granting or
issuance of additional, replacement or alternative Awards upon the occurrence of specified events,
including the exercise of the original Award. The Committee shall have sole authority in the
selection of Persons to whom Awards may be granted under the Plan and in the determination of the
timing, pricing and amount of any such Award, subject only to the express provisions of the Plan.
In making determinations hereunder, the Committee may take into account the nature of the services
rendered by the respective employees and independent contractors, their present and potential
contributions to the success of the Company and its Subsidiaries, and such other factors as the
Committee in its discretion deems relevant.



     3.3. Interpretation. The Committee is authorized, subject to the provisions of the
Plan, to establish, amend and rescind such rules and regulations as it deems necessary or advisable
for the proper administration of the Plan and to take such other action in connection with or in
relation to the Plan as it deems necessary or advisable. Each action and determination made or
taken pursuant to the Plan by the Committee, including any interpretation or construction of the
Plan, shall be final and conclusive for all purposes and upon all Persons. No member of the
Committee shall be liable for any action or determination made or taken by him or the Committee in
good faith with respect to the Plan.



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ARTICLE IV




SHARES SUBJECT TO THE PLAN




     4.1. Number of Shares. Subject to the provisions of this Article IV, the maximum
number of shares of Common Stock with respect to which Awards may be granted
 during the term of the Plan shall be 2 million shares. Shares of Common Stock will be made
available from the authorized but unissued shares of the Company or from shares reacquired by the
Company, including shares purchased in the open market. The shares of Common Stock subject to (i)
any Award granted under the Plan that shall expire, terminate or be annulled for any reason without
having been exercised (or considered to have been exercised as provided in Section 7.2), (ii) any
Award of any SARs granted under the Plan that shall be exercised for cash, and (iii) any Award of
Restricted Shares or Stock Units that shall be forfeited prior to becoming vested (provided that
the Holder received no benefits of ownership of such Restricted Shares or Stock Units other than
voting rights and the accumulation of Retained Distributions and unpaid Dividend Equivalents that
are likewise forfeited) shall again be available for purposes of the Plan. Except for Awards
described in Section 11.1, no Person may be granted in any calendar year Awards covering more than
500,000 shares of Common Stock (as such amount may be adjusted from time to time as provided in
Section 4.2). No Person shall receive payment for Cash Awards during any calendar year aggregating
in excess of $1,000,000.



     4.2. Adjustments. If the Company subdivides its outstanding shares of any series of
Common Stock into a greater number of shares of such series of Common Stock (by stock dividend,
stock split, reclassification, or otherwise) or combines its outstanding shares of any series of
Common Stock into a smaller number of shares of such series of Common Stock (by reverse stock
split, reclassification, or otherwise) or if the Committee determines that any stock dividend,
extraordinary cash dividend, reclassification, recapitalization, reorganization, split-up,
spin-off, combination, exchange of shares, warrants or rights offering to purchase such series of
Common Stock or other similar corporate event (including mergers or consolidations other than those
which constitute Approved Transactions, adjustments with respect to which shall be governed by
Section 11.1(b)) affects any series of Common Stock so that an adjustment is required to preserve
the benefits or potential benefits intended to be made available under the Plan, then the
Committee, in its sole discretion and in such manner as the Committee deems equitable and
appropriate, shall make such adjustments to any or all of (i) the number and kind of shares of
stock which thereafter may be awarded, optioned or otherwise made subject to the benefits
contemplated by the Plan, (ii) the number and kind of shares of stock subject to outstanding
Awards, and (iii) the purchase or exercise price and the relevant appreciation base with respect to
any of the foregoing, provided, however, that the number of shares subject to any
Award shall always be a whole number. Notwithstanding the foregoing, if all shares of any series
of Common Stock are redeemed, then each outstanding Award shall be adjusted to substitute for the
shares of such series of Common Stock subject thereto the kind and amount of cash, securities or
other assets issued or paid in the redemption of the equivalent number of shares of such series of
Common Stock and otherwise the terms of such Award, including, in the case of Options or similar
rights, the aggregate exercise price, and, in the case of Free Standing SARs, the aggregate base
price, shall remain constant before and after the substitution (unless otherwise determined by the
Committee and provided in the applicable Agreement). The



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Committee may, if deemed appropriate, provide for a cash payment to any Holder of an Award in
connection with any adjustment made pursuant to this Section 4.2.



ARTICLE V




ELIGIBILITY




     5.1. General. The Persons who shall be eligible to participate in the Plan and to
receive Awards under the Plan shall, subject to Section 5.2, be such Persons who are employees
(including officers and directors) of or independent contractors providing services to the Company
or its Subsidiaries as the Committee shall select. Awards may be made to employees or independent
contractors who hold or have held Awards under the Plan or any similar or other awards under any
other plan of the Company or any of its Affiliates.



     5.2. Ineligibility. No member of the Committee, while serving as such, shall be
eligible to receive an Award.



ARTICLE VI




STOCK OPTIONS




     6.1. Grant of Options. Subject to the limitations of the Plan, the Committee shall
designate from time to time those eligible Persons to be granted Options, the time when each Option
shall be granted to such eligible Persons, the series and number of shares of Common Stock subject
to such Option, and, subject to Section 6.2, the purchase price of the shares of Common Stock
subject to such Option.



     6.2. Option Price. The price at which shares may be purchased upon exercise of an
Option shall be fixed by the Committee and may be no less than the Fair Market Value of the shares
of the applicable series of Common Stock subject to the Option as of the date the Option is
granted.



     6.3. Term of Options. Subject to the provisions of the Plan with respect to death,
retirement and termination of employment, the term of each Option shall be for such period as the
Committee shall determine as set forth in the applicable Agreement.



     6.4. Exercise of Options. An Option granted under the Plan shall become (and remain)
exercisable during the term of the Option to the extent provided in the applicable Agreement and
the Plan and, unless the Agreement otherwise provides, may be exercised to the extent exercisable,
in whole or in part, at any time and from time to time during such term; provided,
however, that subsequent to the grant of an Option, the Committee, at any time before
complete termination of such Option, may accelerate the time or times at which such Option may be
exercised in whole or in part (without reducing the term of such Option).



     6.5. Manner of Exercise.



     (a) Form of Payment. An Option shall be exercised by written notice to the Company
upon such terms and conditions as the Agreement may provide and in accordance with



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such other procedures for the exercise of Options as the Committee may establish from time to
time. The method or methods of payment of the purchase price for the shares to be purchased upon
exercise of an Option and of any amounts required by Section 11.9 shall be determined by the
Committee and may consist of (i) cash, (ii) check, (iii) promissory note (subject to applicable
law), (iv) whole shares of any series of Common Stock, (v) the withholding of shares of the
applicable series of Common Stock issuable upon such exercise of the Option, (vi) the delivery,
together with a properly executed exercise notice, of irrevocable instructions to a broker to
deliver promptly to the Company the amount of sale or loan proceeds required to pay the purchase
price, or (vii) any combination of the foregoing methods of payment, or such other consideration
and method of payment as may be permitted for the issuance of shares under the Delaware General
Corporation Law. The permitted method or methods of payment of the amounts payable upon exercise
of an Option, if other than in cash, shall be set forth in the applicable Agreement and may be
subject to such conditions as the Committee deems appropriate.



     (b) Value of Shares. Unless otherwise determined by the Committee and provided in the
applicable Agreement, shares of any series of Common Stock delivered in payment of all or any part
of the amounts payable in connection with the exercise of an Option, and shares of any series of
Common Stock withheld for such payment, shall be valued for such purpose at their Fair Market Value
as of the exercise date.



     (c) Issuance of Shares. The Company shall effect the transfer of the shares of Common
Stock purchased under the Option as soon as practicable after the exercise thereof and payment in
full of the purchase price therefor and of any amounts required by Section 11.9, and within a
reasonable time thereafter, such transfer shall be evidenced on the books of the Company. Unless
otherwise determined by the Committee and provided in the applicable Agreement, (i) no Holder or
other Person exercising an Option shall have any of the rights of a stockholder of the Company with
respect to shares of Common Stock subject to an Option granted under the Plan until due exercise
and full payment has been made, and (ii) no adjustment shall be made for cash dividends or other
rights for which the record date is prior to the date of such due exercise and full payment.



     (d) Nontransferability. Unless otherwise determined by the Committee and provided in
the applicable Agreement, Options shall not be transferable other than by will or the laws of
descent and distribution or pursuant to a Domestic Relations Order, and, except as otherwise
required pursuant to a Domestic Relations Order, Options may be exercised during the lifetime of
the Holder thereof only by such Holder (or his or her court-appointed legal representative).



ARTICLE VII





SARs




     7.1.
Grant of SARs. Subject to the limitations of the Plan, SARs may be granted by the
Committee to such eligible Persons in such numbers, with respect to any specified series of Common
Stock, and at such times during the term of the Plan as the Committee shall determine. A SAR may
be granted to a Holder of an Option (hereinafter called a
“related 


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Option”) with respect to all or
a portion of the shares of Common Stock subject to the related
 Option (a “Tandem SAR”) or may be granted separately to an eligible employee (a “Free Standing
SAR”). Subject to the limitations of the Plan, SARs shall be exercisable in whole or in part upon
notice to the Company upon such terms and conditions as are provided in the Agreement.




     7.2. Tandem SARs. A Tandem SAR may be granted either concurrently with the grant of
the related Option or at any time thereafter prior to the complete exercise, termination,
expiration or cancellation of such related Option. Tandem SARs shall be exercisable only at the
time and to the extent that the related Option is exercisable (and may be subject to such
additional limitations on exercisability as the Agreement may provide) and in no event after the
complete termination or full exercise of the related Option. Upon the exercise or termination of
the related Option, the Tandem SARs with respect thereto shall be canceled automatically to the
extent of the number of shares of Common Stock with respect to which the related Option was so
exercised or terminated. Subject to the limitations of the Plan, upon the exercise of a Tandem SAR
and unless otherwise determined by the Committee and provided in the applicable Agreement, (i) the
Holder thereof shall be entitled to receive from the Company, for each share of the applicable
series of Common Stock with respect to which the Tandem SAR is being exercised, consideration (in
the form determined as provided in Section 7.4) equal in value to the excess of the Fair Market
Value of a share of the applicable series of Common Stock with respect to which the Tandem SAR was
granted on the date of exercise over the related Option purchase price per share, and (ii) the
related Option with respect thereto shall be canceled automatically to the extent of the number of
shares of Common Stock with respect to which the Tandem SAR was so exercised.



     7.3. Free Standing SARs. Free Standing SARs shall be exercisable at the time, to the
extent and upon the terms and conditions set forth in the applicable Agreement. The base price of
a Free Standing SAR may be no less than the Fair Market Value of the applicable series of Common
Stock with respect to which the Free Standing SAR was granted as of the date the Free Standing SAR
is granted. Subject to the limitations of the Plan, upon the exercise of a Free Standing SAR and
unless otherwise determined by the Committee and provided in the applicable Agreement, the Holder
thereof shall be entitled to receive from the Company, for each share of the applicable series of
Common Stock with respect to which the Free Standing SAR is being exercised, consideration (in the
form determined as provided in Section 7.4) equal in value to the excess of the Fair Market Value
of a share of the applicable series of Common Stock with respect to which the Free Standing SAR
was granted on the date of exercise over the base price per share of such Free Standing SAR.



     7.4. Consideration. The consideration to be received upon the exercise of a SAR by
the Holder shall be paid in cash, shares of the applicable series of Common Stock with respect to
which the SAR was granted (valued at Fair Market Value on the date of exercise of such SAR), a
combination of cash and such shares of the applicable series of Common Stock or such other
consideration, in each case, as provided in the Agreement. No fractional shares of Common Stock
shall be issuable upon exercise of a SAR, and unless otherwise provided in the applicable
Agreement, the Holder will receive cash in lieu of fractional shares. Unless the Committee shall
otherwise determine, to the extent a Free Standing SAR is exercisable, it will be exercised
automatically for cash on its expiration date.



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     7.5. Limitations. The applicable Agreement may provide for a limit on the amount
payable to a Holder upon exercise of SARs at any time or in the aggregate, for a limit on the
number of SARs that may be exercised by the Holder in whole or in part for cash during any
specified period, for a limit on the time periods during which a Holder may exercise SARs, and for
such other limits on the rights of the Holder and such other terms and conditions of the SAR,
including a condition that the SAR may be exercised only in accordance with rules and regulations
adopted from time to time, as the Committee may determine. Unless otherwise so provided in the
applicable Agreement, any such limit relating to a Tandem SAR shall not restrict the exercisability
of the related Option. Such rules and regulations may govern the right to exercise SARs granted
prior to the adoption or amendment of such rules and regulations as well as SARs granted
thereafter.



     7.6. Exercise. For purposes of this Article VII, the date of exercise of a SAR shall
mean the date on which the Company shall have received notice from the Holder of the SAR of the
exercise of such SAR (unless otherwise determined by the Committee and provided in the applicable
Agreement).



     7.7. Nontransferability. Unless otherwise determined by the Committee and provided in
the applicable Agreement, (i) SARs shall not be transferable other than by will or the laws of
descent and distribution or pursuant to a Domestic Relations Order, and (ii) except as otherwise
required pursuant to a Domestic Relations Order, SARs may be exercised during the lifetime of the
Holder thereof only by such Holder (or his or her court-appointed legal representative).



ARTICLE VIII




RESTRICTED SHARES




     8.1. Grant. Subject to the limitations of the Plan, the Committee shall designate
those eligible Persons to be granted Awards of Restricted Shares, shall determine the time when
each such Award shall be granted, shall determine whether shares of Common Stock covered by Awards
of Restricted Shares will be issued at the beginning or the end of the Restriction Period and
whether Dividend Equivalents will be paid during the Restriction Period in the event shares of the
applicable series of Common Stock are to be issued at the end of the Restriction Period, and shall
designate (or set forth the basis for determining) the Vesting Date or Vesting Dates for each Award
of Restricted Shares, and may prescribe other restrictions, terms and conditions applicable to the
vesting of such Restricted Shares in addition to those provided in the Plan. The Committee shall
determine the price, if any, to be paid by the Holder for the Restricted Shares; provided,
however, that the issuance of Restricted Shares shall be made for at least the minimum
consideration necessary to permit such Restricted Shares to be deemed fully paid and nonassessable.
All determinations made by the Committee pursuant to this Section 8.1 shall be specified in the
Agreement.



     8.2.
Issuance of Restricted Shares at Beginning of the Restriction
Period. If shares of the
applicable series of Common Stock are issued at the beginning of the Restriction Period, the stock
certificate or certificates representing such Restricted Shares shall be registered in the name of
the Holder to whom such Restricted Shares shall have been awarded. During the



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Restriction Period, certificates representing the Restricted Shares and any securities constituting
Retained Distributions shall bear a restrictive legend to the effect that ownership of the
Restricted Shares (and such Retained Distributions), and the enjoyment of all rights appurtenant
thereto, are subject to the restrictions, terms and conditions provided in the Plan and the
applicable Agreement. Such certificates shall remain in the custody of the Company or its
designee, and the Holder shall deposit with the custodian stock powers or other instruments of
assignment, each endorsed in blank, so as to permit retransfer to the Company of all or any portion
of the Restricted Shares and any securities constituting Retained Distributions that shall be
forfeited or otherwise not become vested in accordance with the Plan and the applicable Agreement.



     8.3. Restrictions. Restricted Shares issued at the beginning of the Restriction
Period shall constitute issued and outstanding shares of the applicable series of Common Stock for
all corporate purposes. The Holder will have the right to vote such Restricted Shares, to receive
and retain such dividends and distributions, as the Committee may designate, paid or distributed on
such Restricted Shares, and to exercise all other rights, powers and privileges of a Holder of
shares of the applicable series of Common Stock with respect to such Restricted Shares; EXCEPT,
THAT, unless otherwise determined by the Committee and provided in the applicable Agreement, (i)
the Holder will not be entitled to delivery of the stock certificate or certificates representing
such Restricted Shares until the Restriction Period shall have expired and unless all other vesting
requirements with respect thereto shall have been fulfilled or waived; (ii) the Company or its
designee will retain custody of the stock certificate or certificates representing the Restricted
Shares during the Restriction Period as provided in Section 8.2; (iii) other than such dividends
and distributions as the Committee may designate, the Company or its designee will retain custody
of all distributions (“Retained Distributions”) made or declared with respect to the Restricted
Shares (and such Retained Distributions will be subject to the same restrictions, terms and
vesting, and other conditions as are applicable to the Restricted Shares) until such time, if ever,
as the Restricted Shares with respect to which such Retained Distributions shall have been made,
paid or declared shall have become vested, and such Retained Distributions shall not bear interest
or be segregated in a separate account; (iv) the Holder may not sell, assign, transfer, pledge,
exchange, encumber or dispose of the Restricted Shares or any Retained Distributions or his
interest in any of them during the Restriction Period; and (v) a breach of any restrictions, terms
or conditions provided in the Plan or established by the Committee with respect to any Restricted
Shares or Retained Distributions will cause a forfeiture of such Restricted Shares and any Retained
Distributions with respect thereto.



     8.4. Issuance of Stock at End of the Restriction Period. Restricted Shares issued at
the end of the Restriction Period shall not constitute issued and outstanding shares of the
applicable series of Common Stock, and the Holder shall not have any of the rights of a stockholder
with respect to the shares of Common Stock covered by such an Award of Restricted Shares, in each
case until such shares shall have been transferred to the Holder at the end of the Restriction
Period. If and to the extent that shares of Common Stock are to be issued at the end of the
Restriction Period, the Holder shall be entitled to receive Dividend Equivalents with respect to
the shares of Common Stock covered thereby either (i) during the Restriction Period or (ii) in
accordance with the rules applicable to Retained Distributions, as the Committee may specify in the
Agreement.



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     8.5. Cash Payments. In connection with any Award of Restricted Shares, an Agreement
may provide for the payment of a cash amount to the Holder of such Restricted Shares at any time
after such Restricted Shares shall have become vested. Such cash amounts shall be payable in
accordance with such additional restrictions, terms and conditions as shall be prescribed by the
Committee in the Agreement and shall be in addition to any other salary, incentive, bonus or other
compensation payments which such Holder shall be otherwise entitled or eligible to receive from the
Company.



     8.6. Completion of Restriction Period. On the Vesting Date with respect to each Award
of Restricted Shares and the satisfaction of any other applicable restrictions, terms and
conditions, (i) all or the applicable portion of such Restricted Shares shall become vested, (ii)
any Retained Distributions and any unpaid Dividend Equivalents with respect to such Restricted
Shares shall become vested to the extent that the Restricted Shares related thereto shall have
become vested, and (iii) any cash amount to be received by the Holder with respect to such
Restricted Shares shall become payable, all in accordance with the terms of the applicable
Agreement. Any such Restricted Shares, Retained Distributions and any unpaid Dividend Equivalents
that shall not become vested shall be forfeited to the Company, and the Holder shall not thereafter
have any rights (including dividend and voting rights) with respect to such Restricted Shares,
Retained Distributions and any unpaid Dividend Equivalents that shall have been so forfeited. The
Committee may, in its discretion, provide that the delivery of any Restricted Shares, Retained
Distributions and unpaid Dividend Equivalents that shall have become vested, and payment of any
related cash amounts that shall have become payable under this Article VIII, shall be deferred
until such date or dates as the recipient may elect. Any election of a recipient pursuant to the
preceding sentence shall be filed in writing with the Committee in accordance with such rules and
regulations, including any deadline for the making of such an election, as the Committee may
provide, and shall be made in compliance with Section 409A of the Code.



ARTICLE IX




STOCK UNITS




     9.1. Grant. In addition to granting Awards of Options, SARs and Restricted Shares,
the Committee shall, subject to the limitations of the Plan, have authority to grant to eligible
Persons Awards of Stock Units which may be in the form of shares of any specified series of Common
Stock or units, the value of which is based, in whole or in part, on the Fair Market Value of the
shares of any specified series of Common Stock. Subject to the provisions of the Plan, including
any rules established pursuant to Section 9.2, Awards of Stock Units shall be subject to such
terms, restrictions, conditions, vesting requirements and payment rules as the Committee may
determine in its discretion, which need not be identical for each Award. The determinations made
by the Committee pursuant to this Section 9.1 shall be specified in the applicable Agreement.



     9.2. Rules. The Committee may, in its discretion, establish any or all of the
following rules for application to an Award of Stock Units:



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     (a) Any shares of Common Stock which are part of an Award of Stock Units may not be
assigned, sold, transferred, pledged or otherwise encumbered prior to the date on which the
 shares are issued or, if later, the date provided by the Committee at the time of the Award.




     (b) Such Awards may provide for the payment of cash consideration by the Person to whom
such Award is granted or provide that the Award, and any shares of Common Stock to be issued
in connection therewith, if applicable, shall be delivered without the payment of cash
consideration; provided, however, that the issuance of any shares of Common
Stock in connection with an Award of Stock Units shall be for at least the minimum
consideration necessary to permit such shares to be deemed fully paid and
nonassessable.




     (c) Awards of Stock Units may provide for deferred payment schedules, vesting over a
specified period of employment, the payment (on a current or deferred basis) of dividend
equivalent amounts with respect to the number of shares of Common Stock covered by the
Award, and elections by the employee to defer payment of the Award or the lifting of
restrictions on the Award, if any, provided that any such deferrals shall comply with the
requirements of Section 409A of the Code.




     (d) In such circumstances as the Committee may deem advisable, the Committee may waive
or otherwise remove, in whole or in part, any restrictions or limitations to which a Stock
Unit Award was made subject at the time of grant.



ARTICLE X




CASH AWARDS AND PERFORMANCE AWARDS




          10.1. Cash Awards. In addition to granting Options, SARs, Restricted Shares and Stock
Units, the Committee shall, subject to the limitations of the Plan, have authority to grant to
eligible Persons Cash Awards. Each Cash Award shall be subject to such terms and conditions,
restrictions and contingencies, if any, as the Committee shall determine. Restrictions and
contingencies limiting the right to receive a cash payment pursuant to a Cash Award shall be based
upon the achievement of single or multiple Performance Objectives over a performance period
established by the Committee. The determinations made by the Committee pursuant to this Section
10.1 shall be specified in the applicable Agreement.



          10.2. Designation as a Performance Award. The Committee shall have the right to
designate any Award of Options, SARs, Restricted Shares or Stock Units as a Performance Award. All
Cash Awards shall be designated as Performance Awards.



          10.3. Performance Objectives. The grant or vesting of a Performance Award shall be
subject to the achievement of Performance Objectives over a performance period established by the
Committee based upon one or more of the following business criteria that apply to the Holder, one
or more business units, divisions or Subsidiaries of the Company or the applicable sector of the
Company, or the Company as a whole, and if so desired by the Committee, by comparison with a peer
group of companies: increased revenue; net income



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measures (including income after capital costs and income before or after taxes); stock price
measures (including growth measures and total stockholder return); price per share of Common Stock;
market share; earnings per share (actual or targeted growth); earnings before interest, taxes,
depreciation and amortization (EBITDA); economic value added (or an equivalent metric); market
value added; debt to equity ratio; cash flow measures (including cash flow return on capital, cash
flow return on tangible capital, net cash flow and net cash flow before financing activities);
return measures (including return on equity, return on average assets, return on capital,
risk-adjusted return on capital, return on investors’ capital and return on average equity);
operating measures (including operating income, funds from operations, cash from operations,
after-tax operating income, sales volumes, production volumes and production efficiency); expense
measures (including overhead cost and general and administrative expense); margins; stockholder
value; total stockholder return; proceeds from dispositions; total market value and corporate
values measures (including ethics compliance, environmental and safety). Unless otherwise stated,
such a Performance Objective need not be based upon an increase or positive result under a
particular business criterion and could include, for example, maintaining the status quo or
limiting economic losses (measured, in each case, by reference to specific business criteria). The
Committee shall have the authority to determine whether the Performance Objectives and other terms
and conditions of the Award are satisfied, and the Committee’s determination as to the achievement
of Performance Objectives relating to a Performance Award shall be made in writing.



     10.4. Section 162(m) of the Code. Notwithstanding the foregoing provisions, if the
Committee intends for a Performance Award to be granted and administered in a manner designed to
preserve the deductibility of the compensation resulting from such Award in accordance with Section
162(m) of the Code, then the Performance Objectives for such particular Performance Award relative
to the particular period of service to which the Performance Objectives relate shall be established
by the Committee in writing (i) no later than 90 days after the beginning of such period and (ii)
prior to the completion of 25% of such period.



     10.5. Waiver of Performance Objectives. The Committee shall have no discretion to
modify or waive the Performance Objectives or conditions to the grant or vesting of a Performance
Award unless such Award is not intended to qualify as qualified performance-based compensation
under Section 162(m) of the Code and the relevant Agreement provides for such discretion.



ARTICLE XI




GENERAL PROVISIONS




     11.1. Acceleration of Awards.



     (a) Death or Disability. If a Holder’s employment shall terminate by reason
 of death or Disability, notwithstanding any contrary waiting period, installment period,
vesting schedule or Restriction Period in any Agreement or in the Plan, unless the
applicable Agreement provides otherwise:



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     (i) in the case of an Option or SAR, each outstanding Option or SAR granted under the
Plan shall immediately become exercisable in full in respect of the aggregate number of
 shares covered thereby;




     (ii) in the case of Restricted Shares, the Restriction Period applicable to each such
Award of Restricted Shares shall be deemed to have expired and all such Restricted Shares,
any related Retained Distributions and any unpaid Dividend Equivalents shall become vested
and any related cash amounts payable pursuant to the applicable Agreement shall be adjusted
in such manner as may be provided in the Agreement; and




     (iii) in the case of Stock Units, each such Award of Stock Units shall become vested in
full.



          (b) Approved Transactions; Board Change; Control Purchase. In the event of any
Approved Transaction, Board Change or Control Purchase, notwithstanding any contrary waiting
period, installment period, vesting schedule or Restriction Period in any Agreement or in the Plan,
unless the applicable Agreement provides otherwise:




     (i) in the case of an Option or SAR, each such outstanding Option or SAR granted under
the Plan shall become exercisable in full in respect of the aggregate number of shares
covered thereby;




     (ii) in the case of Restricted Shares, the Restriction Period applicable to each such
Award of Restricted Shares shall be deemed to have expired and all such Restricted Shares,
any related Retained Distributions and any unpaid Dividend Equivalents shall become vested
and any related cash amounts payable pursuant to the applicable Agreement shall be adjusted
in such manner as may be provided in the Agreement; and




     (iii) in the case of Stock Units, each such Award of Stock Units shall become vested in
full, in each case effective upon the Board Change or Control Purchase or immediately prior
to consummation of the Approved Transaction. The effect, if any, on a Cash Award of an
Approved Transaction, Board Change or Control Purchase shall be prescribed in the applicable
Agreement. Notwithstanding the foregoing, unless otherwise provided in the applicable
Agreement, the Committee may, in its discretion, determine that any or all outstanding
Awards of any or all types granted pursuant to the Plan will not vest or become exercisable
on an accelerated basis in connection with an Approved Transaction if effective provision
has been made for the taking of such action which, in the opinion of the Committee, is
equitable and appropriate to substitute a new Award for such Award or to assume such Award
and to make such new or assumed Award, as nearly as may be practicable, equivalent to the
old Award (before giving effect to any acceleration of the vesting or exercisability
thereof), taking into account, to the extent applicable, the kind and amount of securities,
cash or other assets into or for which the applicable series of Common Stock may be changed,
converted or exchanged in connection with the Approved Transaction.



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     11.2. Termination of Employment.



     (a) General. If a Holder’s employment shall terminate prior to an Option or SAR
becoming exercisable or being exercised (or deemed exercised, as provided in Section 7.2) in full,
or during the Restriction Period with respect to any Restricted Shares or prior to the vesting or
complete exercise of any Stock Units, then such Option or SAR shall thereafter become or be
exercisable, such Stock Units to the extent vested shall thereafter be exercisable, and the
Holder’s rights to any unvested Restricted Shares, Retained Distributions, unpaid Dividend
Equivalents and related cash amounts and any such unvested Stock Units shall thereafter vest, in
each case solely to the extent provided in the applicable Agreement; provided,
however, that, unless otherwise determined by the Committee and provided in the applicable
Agreement, (i) no Option or SAR may be exercised after the scheduled expiration date thereof; (ii)
if the Holder’s employment terminates by reason of death or Disability, the Option or SAR shall
remain exercisable for a period of at least one year following such termination (but not later than
the scheduled expiration of such Option or SAR); and (iii) any termination of the Holder’s
employment for cause will be treated in accordance with the provisions of Section 11.2(b). The
effect on a Cash Award of the termination of a Holder’s employment for any reason, other than for
cause, shall be prescribed in the applicable Agreement.



     (b) Termination for Cause. If a Holder’s employment with the Company or a Subsidiary
of the Company shall be terminated by the Company or such Subsidiary for “cause” during the
Restriction Period with respect to any Restricted Shares or prior to any Option or SAR becoming
exercisable or being exercised in full or prior to the vesting or complete exercise of any Stock
Unit or the payment in full of any Cash Award (for these purposes, “cause” shall have the meaning
ascribed thereto in any employment agreement to which such Holder is a party or, in the absence
thereof, shall include insubordination, dishonesty, incompetence, moral turpitude, other misconduct
of any kind and the refusal to perform his duties and responsibilities for any reason other than
illness or incapacity; provided, however, that if such termination occurs within 12
months after an Approved Transaction or Control Purchase or Board Change, termination for “cause”
shall mean only a felony conviction for fraud, misappropriation, or embezzlement), then, unless
otherwise determined by the Committee and provided in the applicable Agreement, (i) all Options and
SARs and all unvested or unexercised Stock Units and all unpaid Cash Awards held by such Holder
shall immediately terminate, and (ii) such Holder’s rights to all Restricted Shares, Retained
Distributions, any unpaid Dividend Equivalents and any related cash amounts shall be forfeited
immediately.



     (c) Miscellaneous. The Committee may determine whether any given leave of absence
constitutes a termination of employment; provided, however, that for purposes of
the Plan, (i) a leave of absence, duly authorized in writing by the Company for military service or
sickness, or for any other purpose approved by the Company if the period of such leave does not
exceed 90 days, and (ii) a leave of absence in excess of 90 days, duly authorized in writing by the
Company provided the employee’s right to reemployment is guaranteed either by statute or contract,
shall not be deemed a termination of employment. Unless otherwise determined by the Committee and
provided in the applicable Agreement, Awards made under the Plan shall not be affected by any
change of employment so long as the Holder continues to be an employee of the Company.



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     11.3. Right of Company to Terminate Employment. Nothing contained in the Plan or in
any Award, and no action of the Company or the Committee with respect thereto, shall confer or be
construed to confer on any Holder any right to continue in the employ of the Company or any of its
Subsidiaries or interfere in any way with the right of the Company or any Subsidiary of the Company
to terminate the employment of the Holder at any time, with or without cause, subject, however, to
the provisions of any employment agreement between the Holder and the Company or any Subsidiary of
the Company.



     11.4. Nonalienation of Benefits. Except as set forth herein, no right or benefit
under the Plan shall be subject to anticipation, alienation, sale, assignment, hypothecation,
pledge, exchange, transfer, encumbrance or charge, and any attempt to anticipate, alienate, sell,
assign, hypothecate, pledge, exchange, transfer, encumber or charge the same shall be void. No
right or benefit hereunder shall in any manner be liable for or subject to the debts, contracts,
liabilities or torts of the Person entitled to such benefits.



     11.5. Written Agreement. Each Award of Options shall be evidenced by a stock option
agreement; each Award of SARs shall be evidenced by a stock appreciation rights agreement; each
Award of Restricted Shares shall be evidenced by a restricted shares agreement; each Award of Stock
Units shall be evidenced by a stock units agreement; and each Performance Award shall be evidenced
by a performance award agreement (including a cash award agreement evidencing a Cash Award), each
in such form and containing such terms and provisions not inconsistent with the provisions of the
Plan as the Committee from time to time shall approve; provided, however, that if
more than one type of Award is made to the same Holder, such Awards may be evidenced by a single
Agreement with such Holder. Each grantee of an Option, SAR, Restricted Shares, Stock Units or
Performance Award (including a Cash Award) shall be notified promptly of such grant, and a written
Agreement shall be promptly executed and delivered by the Company. Any such written Agreement may
contain (but shall not be required to contain) such provisions as the Committee deems appropriate
(i) to insure that the penalty provisions of Section 4999 of the Code will not apply to any stock
or cash received by the Holder from the Company or (ii) to provide cash payments to the Holder to
mitigate the impact of such penalty provisions upon the Holder. Any such Agreement may be
supplemented or amended from time to time as approved by the Committee as contemplated by Section
11.7(b).



     11.6. Designation of Beneficiaries. Each Person who shall be granted an Award under
the Plan may designate a beneficiary or beneficiaries and may change such designation from time to
time by filing a written designation of beneficiary or beneficiaries with the Committee on a form
to be prescribed by it, provided that no such designation shall be effective unless so filed prior
to the death of such Person.



     11.7. Termination and Amendment.



     (a) General. Unless the Plan shall theretofore have been terminated as hereinafter
provided, no Awards may be made under the Plan on or after the tenth anniversary of the Effective
Date. The Plan may be terminated at any time prior to such date and may, from time to time, be
suspended or discontinued or modified or amended if such action is deemed advisable by the
Committee.



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     (b) Modification. No termination, modification or amendment of the Plan may, without
the consent of the Person to whom any Award shall theretofore have been granted, adversely affect
the rights of such Person with respect to such Award except as otherwise permitted by Section
11.17. No modification, extension, renewal or other change in any Award granted under the Plan
shall be made after the grant of such Award, unless the same is consistent with the provisions of
the Plan, or as otherwise permitted by Section 11.17. With the consent of the Holder and subject
to the terms and conditions of the Plan (including Section 11.7(a)), or as otherwise permitted by
Section 11.17, the Committee may amend outstanding Agreements with any Holder, including any
amendment which would (i) accelerate the time or times at which the Award may be exercised and/or
(ii) extend the scheduled expiration date of the Award (except that no such acceleration or
extension shall result in the imposition of an additional tax under Section 409A (as defined
below)). Without limiting the generality of the foregoing, the Committee may, but solely with the
Holder’s consent unless otherwise provided in the Agreement (or pursuant to Section 11.17), agree
to cancel any Award under the Plan and grant a new Award in substitution therefor, provided that
the Award so substituted shall satisfy all of the requirements of the Plan as of the date such new
Award is made (and shall not result in the imposition of an additional tax under Section 409A).
Nothing contained in the foregoing provisions of this Section 11.7(b) shall be construed to prevent
the Committee from providing in any Agreement that the rights of the Holder with respect to the
Award evidenced thereby shall be subject to such rules and regulations as the Committee may,
subject to the express provisions of the Plan, adopt from time to time or impair the enforceability
of any such provision.



     11.8. Government and Other Regulations. The obligation of the Company with respect to
Awards shall be subject to all applicable laws, rules and regulations and such approvals by any
governmental agencies as may be required, including the effectiveness of any registration statement
required under the Securities Act of 1933, and the rules and regulations of any securities exchange
or association on which the Common Stock may be listed or quoted. For so long as any series of
Common Stock are registered under the Exchange Act, the Company shall use its reasonable efforts to
comply with any legal requirements (i) to maintain a registration statement in effect under the
Securities Act of 1933 with respect to all shares of the applicable series of Common Stock that may
be issued to Holders under the Plan and (ii) to file in a timely manner all reports required to be
filed by it under the Exchange Act.



     11.9. Withholding. The Company’s obligation to deliver shares of Common Stock or pay
cash in respect of any Award under the Plan shall be subject to applicable federal, state and local
tax withholding requirements. Federal, state and local withholding tax due at the time of an
Award, upon the exercise of any Option or SAR or upon the vesting of, or expiration of restrictions
with respect to, Restricted Shares or Stock Units or the satisfaction of the Performance Objectives
applicable to a Performance Award, as appropriate, may, in the discretion of the Committee, be paid
in shares of the applicable series of Common Stock already owned by the Holder or through the
withholding of shares otherwise issuable to such Holder, upon such terms and conditions (including
the conditions referenced in Section 6.5) as the Committee shall determine. If the Holder shall
fail to pay, or make arrangements satisfactory to the Committee for the payment to the Company of,
all such federal, state and local taxes required to be withheld by the Company, then the Company
shall, to the extent permitted by law, have the right to deduct from any payment of any kind
otherwise due to such Holder an amount equal to



18









 







any federal, state or local taxes of any kind required to be withheld by the Company with respect
to such Award.



     11.10. Nonexclusivity of the Plan. The adoption of the Plan by the Board shall not be
construed as creating any limitations on the power of the Board to adopt such other incentive
arrangements as it may deem desirable, including the granting of stock options and the awarding of
stock and cash otherwise than under the Plan, and such arrangements may be either generally
applicable or applicable only in specific cases.



     11.11. Exclusion from Pension and Profit-Sharing Computation. By acceptance of an
Award, unless otherwise provided in the applicable Agreement, each Holder shall be deemed to have
agreed that such Award is special incentive compensation that will not be taken into account, in
any manner, as salary, compensation or bonus in determining the amount of any payment under any
pension, retirement or other employee benefit plan, program or policy of the Company or any
Subsidiary of the Company. In addition, each beneficiary of a deceased Holder shall be deemed to
have agreed that such Award will not affect the amount of any life insurance coverage, if any,
provided by the Company on the life of the Holder which is payable to such beneficiary under any
life insurance plan covering employees of the Company or any Subsidiary of the Company.



     11.12. Unfunded Plan. Neither the Company nor any Subsidiary of the Company shall be
required to segregate any cash or any shares of Common Stock which may at any time be represented
by Awards, and the Plan shall constitute an “unfunded” plan of the Company. Except as provided in
Article VIII with respect to Awards of Restricted Shares and except as expressly set forth in an
Agreement, no employee shall have voting or other rights with respect to the shares of Common Stock
covered by an Award prior to the delivery of such shares. Neither the Company nor any Subsidiary
of the Company shall, by any provisions of the Plan, be deemed to be a trustee of any shares of
Common Stock or any other property, and the liabilities of the Company and any Subsidiary of the
Company to any employee pursuant to the Plan shall be those of a debtor pursuant to such contract
obligations as are created by or pursuant to the Plan, and the rights of any employee, former
employee or beneficiary under the Plan shall be limited to those of a general creditor of the
Company or the applicable Subsidiary of the Company, as the case may be. In its sole discretion,
the Board may authorize the creation of trusts or other arrangements to meet the obligations of the
Company under the Plan, provided, however, that the existence of such trusts or
other arrangements is consistent with the unfunded status of the Plan.



     11.13. Governing Law. The Plan shall be governed by, and construed in accordance
with, the laws of the State of Delaware.



     11.14. Accounts. The delivery of any shares of Common Stock and the payment of any
amount in respect of an Award shall be for the account of the Company or the applicable Subsidiary
of the Company, as the case may be, and any such delivery or payment shall not be made until the
recipient shall have paid or made satisfactory arrangements for the payment of any applicable
withholding taxes as provided in Section 11.9.



19









 





     11.15. Legends. Each certificate evidencing shares of Common Stock subject to an
Award shall bear such legends as the Committee deems necessary or appropriate to reflect or refer
to any terms, conditions or restrictions of the Award applicable to such shares, including any to
the effect that the shares represented thereby may not be disposed of unless the Company has
received an opinion of counsel, acceptable to the Company, that such disposition will not violate
any federal or state securities laws.



     11.16. Company’s Rights. The grant of Awards pursuant to the Plan shall not affect in
any way the right or power of the Company to make reclassifications, reorganizations or other
changes of or to its capital or business structure or to merge, consolidate, liquidate, sell or
otherwise dispose of all or any part of its business or assets.



     11.17. Section 409A. Notwithstanding anything in this Plan to the contrary, if any Plan
provision or Award under the Plan would result in the imposition of an additional tax under Code
Section 409A and related regulations and United States Department of the Treasury pronouncements
(“Section 409A”), that Plan provision or Award will be reformed to avoid imposition of the
applicable tax and no action taken to comply with Section 409A shall require the Holder’s consent
or be deemed to adversely affect the Holder’s rights to an Award.



     11.18. Construction. The words “include,” “includes,” “included” and “including” to
the extent used in the Plan shall be deemed in each case to be followed by the words “without
limitation.”



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