exv10w3






Exhibit 10.3




ALLEGHENY ENERGY, INC.

2008 LONG-TERM INCENTIVE PLAN




ARTICLE I




Purpose and Adoption of the Plan




     1.01 Purpose. The purpose of the Allegheny Energy, Inc. 2008 Long-Term Incentive
Plan (as the same may be amended from time to time, the “Plan”) is to assist Allegheny
Energy, Inc., a Maryland corporation (the “Company”), and its Subsidiaries (as defined
below) in attracting and retaining highly competent key employees and directors and to act as an
incentive in motivating selected key employees and directors of the Company and its Subsidiaries
(as defined below) to achieve long-term corporate objectives.



     1.02 Adoption and Term. The Plan has been approved by the Board of Directors of the
Company (the “Board”) to be effective as of the date of approval of the Plan by the stockholders of
the Company (the “Effective Date”). The Plan shall remain in effect until the tenth
anniversary of the Effective Date; provided, however, that, to the extent necessary
to comply with the requirements of Section 162(m) of the Code (as defined below), the provisions of
ARTICLE VII and ARTICLE VIII with respect to performance-based awards to “covered employees” under
Section 162(m) of the Code shall expire as of the fifth anniversary of the Effective Date (unless
subsequently submitted to, and approved by, the Company’s stockholders).



ARTICLE II




Definitions




     For the purposes of this Plan, capitalized terms shall have the following meanings:



     2.01 “Acquiring Corporation” shall have the meaning given to such term in Section
9.08(b).



     2.02 “Award” means any grant to a Participant of one or a combination of Non-Qualified
Stock Options or Incentive Stock Options or Stock Appreciation Rights described in ARTICLE VI,
Restricted Shares and Restricted Stock Units described in ARTICLE VII and Performance Awards
described in ARTICLE VIII.



     2.03 “Award Agreement” means a written or electronic agreement between the Company and
a Participant or a written or electronic notice from the Company to a



 









 




Participant specifically
setting forth the terms and conditions of an Award granted under the Plan.




     2.04 “Award Period” means, with respect to an Award, the period of time set forth in
the Award Agreement during which specified target performance goals must be achieved or other
conditions set forth in the Award Agreement must be satisfied.



     2.05 “Beneficiary” means an individual, trust or estate who or which, by a written
designation of the Participant filed with the Company or by operation of law, succeeds to the
rights
and obligations of the Participant under the Plan and an Award Agreement upon the
Participant’s death.



     2.06 “Board” shall have the meaning given to such term in Section 1.02.



     2.07 “Change in Control” shall be deemed to have occurred at such time as (i) any
individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of 25% or more of the combined voting power of the Company Voting
Securities; or (ii) during any period of not more than two years, individuals who constitute the
Board as of the beginning of the period and any new director (other than a director designated by a
person who has entered into an agreement with the Company to effect a transaction described in
clause (i) or (iii) of this sentence) whose election by the Board or nomination for election by the
Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in
office who either were directors at such time or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority thereof; or (iii) the
stockholders of the Company approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the Company Voting
Securities outstanding immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity) at least 50% of
the combined voting power of the Company Voting Securities or the voting securities of such
surviving entity outstanding immediately after such merger or consolidation, or the stockholders of
the Company approve a plan of complete liquidation of the Company or any agreement for the sale or
disposition by the Company of all or substantially all of the Company’s assets.



     2.08 “Code” means the Internal Revenue Code of 1986, as amended. References to a
section of the Code include that section and any comparable section or sections of any future
legislation that amends, supplements or supersedes said section.



     2.09 “Committee” means the committee established in accordance with Section 3.01;
provided, however, that with respect to Awards that are intended to be “qualified
performance-based compensation” under Section 162(m) of the Code, the “Committee” means a
committee that consists of two or more persons appointed by the



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Board, all of whom shall be
“outside directors,” as defined under Section 162(m) of the Code and related regulations and
“non-employee” directors as defined under Rule 16b-3 promulgated under the Exchange Act.




     2.10 “Company” shall have the meaning given to such term in Section 1.01.



     2.11 “Common Stock” means Common Stock of the Company.



     2.12 “Company Voting Securities” means the combined voting power of all outstanding
securities of the Company entitled to vote generally in the election of directors of the Company.



     2.13 “Date of Grant” means the date as of which the Committee grants an Award. If
the Committee contemplates an immediate grant to a Participant, the Date of Grant shall be the date
of the Committee’s action. If the Committee contemplates a date on which the grant is to be made
other than the date of the Committee’s action, the Date of Grant shall be the date so contemplated
and set forth in or determinable from the records of action of the Committee;
provided, however, that the Date of Grant shall not precede the date of the
Committee’s action.



     2.14 “Effective Date” shall have the meaning given to such term in Section 1.02.



     2.15 “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     2.16 “Exercise Price” shall have the meaning given to such term in Section 6.01(b).



     2.17 “Fair Market Value” means, as of any applicable date, the closing price per share
of the Common Stock as quoted in the NYSE-Composite Transactions listing in The Wall Street
Journal (or such other reliable publication as the Committee, in its discretion, may determine
to rely upon) for the date as of which Fair Market Value is to be determined. If there are no
sales on such date, then Fair Market Value shall be the closing price per share of the Common Stock
as so quoted on the Date of Grant. If the Common Stock is not listed on the New York Stock
Exchange on the date as of which Fair Market Value is to be determined, the Committee shall in good
faith determine the Fair Market Value of the Common Stock on such date. Fair Market Value shall
be determined without regard to any restriction other than a restriction which, by its terms, will
never lapse. Notwithstanding the foregoing, in the case of Options granted in connection with the
assumption by the Company of stock options of acquired companies, as described in Section 9.08(c),
the Committee may determine that the term “Fair Market Value” shall have the same meaning as is
given to such term under the provisions of such assumed stock option. All determinations
regarding Fair Market Value of shares of



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Common Stock shall be consistent with the requirements of
Section 409A of the Code and its corresponding regulations and related guidance.




     2.18 “Incentive Stock Option” means a stock option within the meaning of Section 422
of the Code.



     2.19 “Merger” means any merger, reorganization, consolidation, share exchange,
transfer of assets or other transaction having similar effect involving the Company.



     2.20 “Non-Qualified Stock Option” means a stock option which is not an Incentive Stock
Option.



     2.21 “Options” means all Non-Qualified Stock Options and Incentive Stock Options
granted at any time under the Plan.



     2.22 “Participant” means a person designated to receive an Award under the Plan in
accordance with Section 5.01.



     2.23 “Performance Awards” means Awards granted in accordance with ARTICLE VIII.



     2.24 “Plan” shall have the meaning given to such term in Section 1.01.



     2.25 “Pool Limit” shall have the meaning given to such term in Section 4.01.



     2.26 “Restricted Shares” means Common Stock subject to restrictions imposed in
connection with Awards granted under ARTICLE VII.



     2.27 “Restricted Stock Unit” means a Participant’s contractual right to receive a
stated number of shares of Common Stock or, if provided by the Committee on the Date of Grant, cash
equal to the Fair Market Value of such shares of Common Stock, under the Plan at the end of a
specified period of time that is forfeitable by the Participant until the completion of a specified
period of future service, or until otherwise determined by the Committee or in accordance with the
Plan and the applicable Award Agreement.



     2.28 “Retirement” means early or normal retirement under a pension plan or arrangement
of the Company or one of its Subsidiaries in which the Participant participates.



     2.29 “Stock Appreciation Right” means, with respect to shares of Common Stock, the
right to receive a payment from the Company in cash and/or shares of Common Stock equal to the
product of (i) the excess, if any, of the Fair Market Value of one share of Common Stock on the
exercise date over a specified base price fixed by the



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Committee on the Date of Grant, multiplied
by (ii) a stated number of shares of Common Stock.



     2.30 “Subsidiary” means a subsidiary of the Company within the meaning of Section
424(f) of the Code.



     2.31 “Termination of Employment” means the voluntary or involuntary termination of a
Participant’s employment with the Company or a Subsidiary for any reason, including death,
disability, retirement or as the result of the divestiture of the Participant’s employer or any
similar transaction in which the Participant’s employer ceases to be the Company or one of its
Subsidiaries. A leave of absence approved in accordance with Company policy shall not be deemed a
Termination of Employment. Whether entering military or other government service shall constitute
Termination of Employment, or whether a Termination of Employment shall occur as a result of
disability, shall be determined in each case by the Committee in its sole discretion. In the case
of a director who is not an employee of the Company or a Subsidiary, Termination of Employment
shall mean voluntary or involuntary cessation of Board service for any reason. Notwithstanding
the foregoing, Termination of Employment for purposes of determining whether an Award that is
“deferred compensation” and subject to Section 409A of the Code is payable from the Plan means a
“separation from service” as determined under Section 409A of the Code and its corresponding
regulations and related guidance.



ARTICLE III




Administration




     3.01 Committee. The Plan shall be administered by a committee of the Board (the
“Committee”) comprised of at least two directors of the Company. The Committee shall have
exclusive and final authority in each determination, interpretation or other action affecting the
Plan and its Participants. The Committee shall have the sole discretionary authority to interpret
the Plan, to establish and modify administrative rules for the Plan, to impose such conditions and
restrictions on Awards as it determines appropriate, and to take such steps in connection with the
Plan and Awards granted hereunder as it may deem necessary or advisable. Subject to compliance
with applicable legal requirements, the Committee may (i) delegate to any designated executive
officer of the Company the power to determine the employees (other than himself or herself or any
employee to whom such designated executive officer reports) to receive Awards under the Plan and
the types and amounts of such Awards, subject in each case to the terms and conditions of the
Plan, and (ii) delegate to a committee or individual the authority to carry out ministerial
functions in respect of the Plan and Awards granted under the Plan. In addition, the Board may
exercise any of the authority conferred upon the Committee hereunder. In the event of any such
delegation of authority or exercise of authority by the



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Board, references in the Plan to the
Committee shall be deemed to refer to the delegate of the Committee or the Board, as the case may
be.




ARTICLE IV




Shares




     4.01 Number of Shares Issuable. Subject to Section 4.02 and adjustments in accordance
with Section 9.08, the maximum aggregate number of shares of Common Stock initially authorized to
be issued under the Plan shall be 4,600,000 shares of Common Stock (the “Pool Limit”). The
shares to be offered under the Plan shall be authorized and unissued shares of Common Stock, or
issued shares of Common Stock which will have been reacquired by the Company.



     4.02 Treatment of Awards. Each share of Common Stock issued or to be issued in
connection with any Award other than an Option or a Stock Appreciation Right shall be counted
against the Pool Limit as one share of Common Stock. Each share of Common Stock issued or to be
issued in connection with any Option or Stock Appreciation Right shall be counted against the Pool
Limit as 0.49 of a share of Common Stock. For these purposes, the number of shares of Common Stock
taken into account with respect to a Stock Appreciation Right shall be the number of shares of
Common Stock underlying the Stock Appreciation Right at grant, and not the final number of shares
of Common Stock delivered upon exercise of the Stock Appreciation Right. Any shares of Common
Stock previously the subject of an Award that again become available for grant pursuant to Section
4.03 shall be added back to the Pool Limit in the same proportion, and using the same multiplier,
pursuant to which such Awards reduced the shares of Common Stock in the Pool Limit.



     4.03 Shares Subject to Terminated Awards. Shares of Common Stock covered by any
unexercised portions of terminated Options (including canceled Options) granted under ARTICLE VI,
shares of Common Stock forfeited as provided in Section 7.02(d) and shares of Common Stock subject
to any Award that are otherwise surrendered by a Participant or terminated may be subject to new
Awards under the Plan. If any shares of Common Stock are withheld from those otherwise issuable or
are tendered to the Company, by attestation or otherwise, in connection with the exercise of an
Option, the gross number of shares of Common Stock covered by the award as issued or portion
thereof exercised shall be deemed delivered for purposes of determining the maximum number of
shares available for delivery under the Plan.



     4.04 Prohibition Against Repricing. Except to the extent (i) approved in advance by
holders of a majority of the shares of the Company entitled to vote generally in the election of
directors or (ii) pursuant to Section 9.08, the Committee shall not have the power or authority to
reduce, whether through amendment or otherwise, the exercise



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price of any outstanding Option or
base price of any outstanding Stock Appreciation Right or to grant any new Award in substitution
for or upon the cancellation of Options or Stock Appreciation Rights previously granted.




ARTICLE V




Participation




     5.01 Eligible Participants. Participants in the Plan shall be such key employees and
directors of the Company and its Subsidiaries as the Committee, in its sole discretion, may
designate from time to time. The Committee’s designation of a Participant in any year shall not
require the Committee to designate such person to receive Awards in any other year. The
designation of a Participant to receive an Award under a portion of the Plan does not require the
Committee to include such Participant under other portions of the Plan. The Committee shall
consider such factors as it deems pertinent in selecting Participants and in determining the types
and amounts of their respective Awards. Subject to adjustment in accordance with Section 9.08,
during any calendar year no Participant shall be granted Awards in respect of more than 1,000,000
shares of Common Stock (whether through grants of Options or other Awards of Common Stock or rights
with respect thereto); provided, however, that if it is the Committee’s intention
as of the Date of Grant of an Award, as evidenced by the applicable Award Agreement, that such
Award shall be earned by the Participant over a period of more than one calendar year, then for
purposes of applying the foregoing per calendar year share limitation, the shares of Common Stock
subject to such Award shall be allocated to the first calendar year in which such shares may be
earned (determined without regard to possible vesting as a result of a Change in Control or
pursuant to any provision of this Plan authorizing the Committee to accelerate the vesting of an
Award). In the case of Awards that are denominated in cash, during any calendar year no
Participant shall be granted Awards with a dollar value in excess of the Fair Market Value of
1,000,000 shares of Common Stock (such Fair Market Value determined as of the Date of Grant of the
Awards).



ARTICLE VI




Stock Options and Stock Appreciation Rights




     6.01 Option Awards.



     (a) Grant of Options. The Committee may grant, to such Participants as the Committee
may select, Options entitling the Participants to purchase shares of Common Stock from the Company
in such numbers, at such prices, and on such terms and subject to such conditions, not inconsistent
with the terms of the Plan, as may be established by the Committee. The terms of any Option
granted under the Plan shall be set forth in an Award Agreement.



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     (b) Exercise Price of Options. The exercise price of each share of Common Stock which
may be purchased upon exercise of any Option granted under the Plan (the “Exercise Price”)
shall be determined by the Committee; provided, however, that, except in the case
of any substituted Options described in Section 9.08(c), the Exercise Price shall in all cases be
equal to or greater than the Fair Market Value on the Date of Grant.



     (c) Designation of Options. Except as otherwise expressly provided in the Plan, the
Committee may designate, at the time of the grant of an Option, such Option as an Incentive Stock
Option or a Non-Qualified Stock Option; provided, however, that an Option may be
designated as an Incentive Stock Option only if the applicable Participant is an employee of the
Company or a Subsidiary on the Date of Grant.



     (d) Special Incentive Stock Option Rules. No Participant may be granted Incentive
Stock Options under the Plan (or any other plans of the Company and its Subsidiaries) that would
result in Incentive Stock Options to purchase shares of Common Stock with an aggregate Fair Market
Value (measured on the Date of Grant) of more than $100,000 first becoming exercisable by such
Participant in any one calendar year. Notwithstanding any other provision of the Plan to the
contrary, no Incentive Stock Option shall be granted to any person who, at the time the Option is
granted, owns stock (including stock owned by application of the constructive ownership rules in
Section 424(d) of the Code) possessing more than 10% of the total combined voting power of all
classes of stock of the Company or any Subsidiary, unless at the time the Incentive Stock Option is
granted the Exercise Price is at least 110% of the Fair Market Value on the Date of Grant of the
Common Stock subject to the Incentive Stock Option and the Incentive Stock Option by its terms is
not exercisable for more than five years from the Date of Grant.



     6.02 Stock Appreciation Rights.



     (a) Grant of Stock Appreciation Rights. The Committee may grant, to such Participants
as the Committee may select, Stock Appreciation Rights on such terms and subject to such
conditions, not inconsistent with the terms of the Plan, as may be established by the Committee.
Stock Appreciation Rights may be granted in tandem with Options which, unless otherwise determined
by the Committee at or after the Date of Grant, shall have substantially similar terms and
conditions to such Options to the extent applicable, or may be granted on a freestanding basis, not
related to any Option. The terms of any Stock Appreciation Right granted under the Plan shall be
set forth in an Award Agreement.



     (b) Base Price. The base price for any Stock Appreciation Right shall be determined
by the Committee; provided that, except in the case of any substituted Award described in
Section 9.08(c), the base price shall in all cases be equal to or greater than the Fair Market
Value on the Date of Grant.



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     6.03 Terms of Stock Options and Stock Appreciation Rights.



     (a) Conditions on Exercise. An Award Agreement with respect to Options or Stock
Appreciation Rights may contain such waiting periods, exercise dates and restrictions on exercise
(including, but not limited to, periodic installments) as may be determined by the Committee at the
time of grant.



     (b) Duration of Options and Stock Appreciation Rights. Options and Stock Appreciation
Rights shall terminate after the first to occur of the following events:




     (i) Termination of the Award as provided in Section 6.03(e) following the Participant’s
Termination of Employment; or




     (ii) Ten years from the Date of Grant.



     (c) Acceleration of Exercise Time. The Committee, in its sole discretion, shall have
the right (but shall not in any case be obligated), exercisable at any time after the Date of
Grant, to permit the exercise of any Option or Stock Appreciation Right prior to the time such
Option or Stock Appreciation Right would otherwise become exercisable under the terms of the related
Award Agreement.



     (d) Extension of Exercise Time. In addition to the extensions permitted under Section
6.03(e) in the event of Termination of Employment, the Committee, in its sole discretion, shall
have the right (but shall not in any case be obligated), exercisable on or at any time after the
Date of Grant, to permit the exercise of any Option or Stock Appreciation Right after its
expiration date described in Section 6.03(e), subject, however, to the limitation described in
Section 6.03(b)(ii).



     (e) Exercise of Options or Stock Appreciation Rights Upon Termination of Employment.



     (i) Termination. In the event of Termination of Employment of a Participant other
than by reason of death, disability or Retirement, all Options and Stock Appreciation Rights that
were not exercisable as of the date of the Termination of Employment shall expire as of such date
and the right of the Participant to exercise any Options or Stock Appreciation Rights that were
exercisable as of the date of Termination of Employment shall expire 90 days after the date of such
Termination of Employment, unless the exercise period is extended by the Committee in accordance
with Section 6.03(d). In no event, however, may the Option be exercised later than the date of
expiration of the Option or Stock Appreciation Right determined pursuant to Section 6.03(b)(ii).



     (ii) Disability or Retirement. Unless otherwise provided for in an Award Agreement,
in the event of a Participant’s Termination of Employment by reason of



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disability or Retirement,
the right of the Participant to exercise all Options and Stock Appreciation Rights that were not
exercisable as of the date of the Termination of Employment shall expire as of such date and all
Options and Stock Appreciation Rights that he or she was entitled to exercise upon Termination of
Employment shall expire three years after the date of such Termination of Employment, unless the
exercise period is extended by the Committee in accordance with Section 6.03(d), provided
that, in no event, however, may any Option or Stock Appreciation Right be exercised later than the
date of expiration of the Option determined pursuant to Section 6.03(b)(ii).




     (iii) Death. Unless otherwise provided for in an Award Agreement, in the event of the
death of a Participant while employed by the Company or a Subsidiary and prior to the expiration of
any Option or Stock Appreciation Right as provided pursuant to Section 6.03(e)(i) or Section
6.03(d) above, all Options and Stock Appreciation Rights that were not exercisable as of the date
of death shall expire as of such date and to the extent the right to exercise the Option or Stock
Appreciation Right was accrued as of the date of death, the right of the Participant’s Beneficiary
to exercise the Option or Stock Appreciation Right shall expire one year after the date of the
Participant’s death. In the event of the death of a Participant which occurs within any
post-termination exercise period, and prior to the expiration of any Option or Stock Appreciation
Right as provided pursuant to Section 6.03(e)(i) or 6.03(e)(ii)or Section 6.03(d) above, all such
Options and Stock Appreciation Rights that were not exercisable as of the date of death shall
expire as of such date and to the extent the right to exercise such Option or Stock Appreciation
Right was accrued as of the date of such Termination of Employment and had not expired during such
additional period, the right of the Participant’s Beneficiary to exercise the Option or Stock
Appreciation Right, as the case may be, shall expire upon the later of one year after the date of
the Participant’s death or, if applicable, three years from the date of the Participant’s
Termination of Employment by reason of disability or Retirement. The exercise period may be
extended by the Committee in accordance with Section 6.03(d). In no event, however, may any Option
be exercised later than the date of expiration of the Option or Stock Appreciation Right determined
pursuant to Section 6.03(b)(ii).



     6.04 Option Exercise Procedures. The Committee shall establish procedures governing
the exercise of Options, which procedures shall generally require that written or electronic notice
of exercise thereof be given and that the exercise price thereof be paid in full at the time of
exercise (i) in cash or cash equivalents, including by personal check, or (ii) in accordance with
such other procedures or in such other forms as the Committee shall from time to time determine.
The Exercise Price of any Options exercised may be paid in full or in part in the form of shares of
Common Stock, based on the Fair Market Value of such shares of Common Stock on the date of
exercise, subject to such rules and procedures as may be adopted by the Committee.



     6.05 Stock Appreciation Right Exercise Procedures. Each Stock Appreciation Right
granted under the Plan shall be exercised by written or electronic notice to the



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Company which must
be received by the officer or employee of the Company designated in the Award Agreement at or
before the close of business on the expiration date of the Award. Subject to Section 9.05, upon
exercise of a Stock Appreciation Right, the Participant shall be entitled to receive payment in the
form, determined by the Committee, of cash or shares of Common Stock having a Fair Market Value
equal to such cash amount, or a combination of shares of Common Stock and cash having an aggregate
value equal to such amount, determined by multiplying:





     (i) any increase in the Fair Market Value of one share of Common Stock on the exercise
date over the price fixed by the Committee on the Date of Grant of such Stock Appreciation
Right, by




     (ii) the number of shares of Common Stock with respect to which the Stock Appreciation
Right is exercised;


provided that on the Date of Grant, the Committee may establish, in its sole discretion, a
maximum amount per share that will be payable upon exercise of a Stock Appreciation Right. Stock
Appreciation Rights that are granted in tandem with an Option may only be exercised upon the
surrender of the right to exercise such Option for an equivalent number of shares of Common Stock,
and may be exercised only with respect to the shares of Common Stock for which the related Option
is then exercisable.




     6.06 Rights as a Stockholder. A Participant or a transferee of an Option or Stock
Appreciation Right pursuant to Section 9.04 shall have no rights as a stockholder with respect to
the shares of Common Stock covered by an Option or Stock Appreciation Right until that Participant
or transferee shall have become the holder of record of any such shares, and no adjustment shall be
made with respect to any such shares of Common Stock for dividends in cash or other property or
distributions of other rights on the Common Stock for which the record date is prior to the date on
which that Participant or transferee shall have become the holder of record of any shares covered
by such Option; provided, however, that Participants are entitled to the adjustments set forth in
Section 9.08.



     6.07 Change in Control. Unless otherwise provided by the Committee in the applicable
Award Agreement, in the event of a Change in Control, all Options or Stock Appreciation Rights
outstanding on the date of such Change in Control shall become immediately and fully exercisable.



ARTICLE VII




Restricted Shares and Restricted Stock Units




     7.01 Restricted Share and Restricted Stock Unit Awards. The Committee may grant to
any Participant an Award of such number of shares of Common Stock or



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Restricted Stock Units on such
terms, conditions and restrictions, whether based on performance standards, periods of service,
retention by the Participant of ownership of specified shares of Common Stock or other criteria, as
the Committee shall establish. With respect to performance-based Awards of Restricted Shares or
Restricted Stock Units intended to qualify for deductibility under the “performance-based”
compensation exception contained in Section 162(m) of the Code, performance targets will include
specified levels of one or more of the following (in absolute terms or relative to one or more
other companies or indices): adjusted net income, operating income, operating expenses, return on
investment, return on stockholders’ equity, stock price appreciation, adjusted earnings before
interest, taxes, depreciation and amortization, service unavailability, generator availability,
OSHA recordable incident rate, customer satisfaction, relative total stockholder return, earnings
per share and/or growth in earnings per share. The terms of any Restricted Share Award or
Restricted Stock Unit granted under this Plan shall be set forth in an Award Agreement which shall
contain provisions determined by the Committee and not inconsistent with this Plan.




     7.02 Terms of Restricted Share Awards.



     (a) Issuance of Restricted Shares. As soon as practicable after the Date of Grant of
a Restricted Share Award by the Committee, the Company shall cause to be transferred on the books
of the Company or its agent, shares of Common Stock, registered on behalf of the Participant,
evidencing the Restricted Shares covered by the Award, subject to forfeiture to the Company as of
the Date of Grant if an Award Agreement with respect to the Restricted Shares covered by the Award
is not duly executed by the Participant and timely returned to the Company. All shares of Common
Stock covered by Awards under this ARTICLE VII shall be subject to the restrictions, terms and
conditions contained in the Plan and the applicable Award Agreements entered into by the
appropriate Participants. Until the lapse or release of all restrictions applicable to an Award of
Restricted Shares the share certificates representing such Restricted Shares may be held in custody
by the Company, its designee, or, if the certificates bear a restrictive legend, by the
Participant. Upon the lapse or release of all restrictions with respect to an Award as described
in Section 7.02(c), one or more share certificates, registered in the name of the Participant, for
an appropriate number of shares as provided in Section 7.02(c), free of any restrictions set forth
in the Plan and the related Award Agreement shall be delivered to the Participant.



     (b) Stockholder Rights. Beginning on the Date of Grant of a Restricted Share Award
and subject to execution of the related Award Agreement as provided in Section 7.02(a), and except
as otherwise provided in such Award Agreement, the Participant shall become a stockholder of the
Company with respect to all shares subject to the Award Agreement and shall have all of the rights
of a stockholder, including, but not limited to, the right to vote such shares and, unless
otherwise determined by the Committee, in its sole discretion, the right to receive dividends;
provided, however, that,



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unless otherwise determined by the Committee, in its sole discretion,
any shares of Common Stock distributed as a dividend or otherwise with respect to any Restricted
Shares as to which the restrictions have not yet lapsed, shall be subject to the same restrictions
as such Restricted Shares and held or restricted as provided in Section 7.02(a).




     (c) Delivery of Shares Upon Vesting. Upon expiration or earlier termination of the
forfeiture period without a forfeiture and the satisfaction of or release from any other conditions
prescribed by the Committee, or at such earlier time as provided under the provisions of Section
7.06, the restrictions applicable to the Restricted Shares shall lapse. As of the date specified
in the Award Agreement, subject to the requirements of Section 9.05, the Company shall deliver to
the Participant or, in case of the Participant’s death, to the Participant’s Beneficiary, one or
more share certificates for the appropriate number of shares of Common Stock, free of all such
restrictions, except for any restrictions that may be imposed by law.



     (d) Forfeiture of Restricted Shares. Subject to Sections 7.04 and 7.06, Restricted
Shares shall be forfeited and returned to the Company and all rights of the Participant with
respect to such Restricted Shares shall terminate unless the Participant continues in the service
of the Company or a Subsidiary until the expiration of the forfeiture period for such Restricted
Shares and satisfies any and all other conditions set forth in the Award Agreement. The Committee
shall determine the forfeiture period (which may, but need not, lapse in installments) and any
other terms and conditions applicable with respect to any Restricted Share Award.



     7.03 Terms of Restricted Stock Units.



     (a) Rights as a Stockholder. Unless otherwise determined by the Committee at the Date
of Grant and as specified in the Award Agreement, (i) any cash dividends or distributions credited
to the Participant’s account shall be deemed to have been invested in additional Restricted Stock
Units on the record date established for the related dividend or distribution in an amount equal to
the greatest whole number which may be obtained by dividing (A) the value of such dividend or
distribution on the record date by (B) the Fair Market Value of one share of Common Stock on such
date, and such additional Restricted Stock Units shall be subject to the same terms and conditions
as are applicable in respect of the Restricted Stock Units with respect to which such dividends or
distributions were payable, and (ii) if any such dividends or distributions are paid in shares of
Common Stock or other securities, such shares and other securities shall be subject to the same
forfeiture period and other restrictions as apply to the Restricted Stock Units with respect to
which they were paid. Unless and until the Company issues a certificate or certificates to a
Participant for shares of Common Stock in respect of his or her Award of Restricted Stock Units, or
otherwise determined by the Committee at or after the Date of Grant, a Participant holding
outstanding Restricted Stock Units shall not



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be entitled to exercise any voting rights and any
other rights as a stockholder with respect to the shares of Common Stock underlying such Award.




     (b) Settlement of Restricted Stock Units. Unless the Committee determines otherwise
at the Date of Grant and as set forth in the Award Agreement, after the lapse of the forfeiture
period with respect to any Restricted Stock Units and as of the date specified in the Award
Agreement, the Company shall issue the shares of Common Stock underlying such Restricted Stock Unit
(plus additional shares of Common Stock for any Restricted Stock Units credited in respect of
dividends or distributions) or, if the Committee so determines in its sole
discretion, an amount in cash equal to the Fair Market Value of such shares of Common Stock.
Upon such terms and conditions as the Committee may establish from time to time, a Participant may
be permitted to defer the receipt of the shares of Common Stock or cash otherwise deliverable upon
settlement of Restricted Stock Units.



     7.04 Waiver of Forfeiture Period. Notwithstanding anything contained in this ARTICLE
VII to the contrary, the Committee may, in its sole discretion, waive the forfeiture period and any
other conditions set forth in any Award Agreement for a Participant who has terminated employment
prior to the end of the Award Period or under other appropriate circumstances (including the death,
disability or Retirement of the Participant or a material change in circumstances arising after the
Date of Grant) and subject to such terms and conditions (including forfeiture of a proportionate
number of the Restricted Shares or Restricted Stock Units) as the Committee shall deem appropriate.



     7.05 Restriction on Transferability. None of the Restricted Shares or Restricted
Stock Units may be assigned or transferred (other than by will or the laws of descent and
distribution or to an inter vivos trust with respect to which the Participant is treated as the
owner under Sections 671 through 677 of the Code), pledged or sold prior to the lapse of the
restrictions applicable thereto.



     7.06 Change in Control. Unless otherwise provided by the Committee in the applicable
Award Agreement, in the event of a Change in Control, all restrictions applicable to the Restricted
Share Award or Restricted Stock Unit shall terminate fully and the Participant shall immediately
have the right to the delivery of share certificates for such shares in accordance with Section
7.02(c).



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ARTICLE VIII




Performance Awards




     8.01 Performance Awards.



     (a) Award Periods and Determinations of Awards. The Committee may grant Performance
Awards to Participants. A Performance Award shall consist of the right to receive a payment
(measured by the Fair Market Value of a specified number of shares of Common Stock, increases in
such Fair Market Value during the Award Period and/or a fixed cash amount) contingent upon the
extent to which certain predetermined performance targets have been met during an Award Period.
Performance Awards may be made in conjunction with, or in addition to, any other Awards made under
the Plan. The Award Period shall be determined by the Committee and as specified in the applicable
Award Agreement. The Committee, in its discretion and under such terms as it deems appropriate,
may permit newly eligible Participants, such as those who are promoted or newly hired, to receive
Performance Awards after an Award Period has commenced.



     (b) Performance Targets. The performance targets may include such goals related to
the performance of the Company and/or the performance of a Participant as may be established by the
Committee in its sole discretion. In the case of Performance Awards intended to qualify for
deductibility under the “performance-based” compensation exception contained in Section 162(m) of
the Code, the targets will include specified levels of one or more of the following (in absolute
terms or relative to one or more other companies or indices): adjusted net income, operating
income, operating expenses, return on investment, return on stockholders’ equity, stock price
appreciation, adjusted earnings before interest, taxes, depreciation and amortization, service
unavailability, generator availability, OSHA recordable incident rate, customer satisfaction,
relative total stockholder return, earnings per share and/or growth in earnings per share. The
performance targets established by the Committee may vary for different Award Periods and need not
be the same for each Participant receiving a Performance Award in an Award Period. Except to the
extent inconsistent with the performance-based compensation exception under Section 162(m) of the
Code, in the case of Performance Awards granted to Participants to whom such section is applicable,
the Committee, in its sole discretion, but only under extraordinary circumstances as determined by
the Committee, may change any prior determination of performance targets for any Award Period at
any time prior to the final determination of the value of a related Performance Award when events
or transactions occur to cause such performance targets to be an inappropriate measure of
achievement.



     (c) Earning Performance Awards. The Committee, on or as soon as practicable after the
Date of Grant, shall prescribe a formula to determine the percentage



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of the applicable Performance
Award to be earned based upon the degree of attainment of performance targets.




     (d) Payment of Earned Performance Awards. Payments of earned Performance Awards shall
be made in Options, Stock Appreciation Rights, shares of Common Stock, cash, or a combination
thereof, in the discretion of the Committee and as set forth in the Award Agreement. The
Committee, in its sole discretion and as set forth in the Award Agreement, may provide such terms
and conditions with respect to the payment of earned Performance Awards as it may deem desirable.



     8.02 Terms of Performance Awards.



     (a) Termination of Employment. Unless otherwise provided below or in Section 8.03, in
the case of a Participant’s Termination of Employment prior to the end of an Award Period, the
Participant will not have earned any Performance Awards for that Award Period.



     (b) Retirement. If a Participant’s Termination of Employment is because of Retirement
prior to the end of an Award Period, the Participant will not be paid any Performance Award, unless
the Committee, in its sole and exclusive discretion, determines that an Award should be paid. In
such a case, the Participant shall be entitled to receive a pro-rata portion of his or her Award as
determined under subsection (d).



     (c) Death or Disability. If a Participant’s Termination of Employment is due to death
or to disability (as determined in the sole and exclusive discretion of the Committee) prior to the
end of an Award Period, the Participant or the Participant’s Beneficiary, as the case may be, shall
be entitled to receive a pro-rata share of his or her Award as determined under subsection (d).



     (d) Pro-Rata Payment. The amount of any payment to be made to a Participant whose
employment is terminated by Retirement, death or disability (under the circumstances described in
subsections (b) and (c)) will be the amount determined by multiplying (i) the amount of the
Performance Award that would have been earned through the end of the Award Period had such
employment not been terminated by (ii) a fraction, the numerator of which is the number of
whole months such Participant was employed during the Award Period, and the Denominator of which is
the total number of months of the Award Period. Any such payment made to a Participant whose
employment is terminated prior to the end of an Award Period shall be made as of such date
specified in the Award Agreement. Any partial payment previously made or credited to a deferred
account for the benefit of a Participant in accordance with Section 8.01(d) of the Plan shall be
subtracted from the amount otherwise determined as payable as provided in this Section 8.02(d).



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     (e) Other Events. Notwithstanding anything to the contrary in this ARTICLE VIII, the
Committee may, in its sole and exclusive discretion, determine to pay all or any portion of a
Performance Award to a Participant who has terminated employment prior to the end of an Award
Period or under other appropriate circumstances (including the death, disability or Retirement of
the Participant or a material change in circumstances arising after the Date of Grant), subject to
such terms and conditions (including forfeiture of a proportionate portion of the Performance
Award) as the Committee shall deem appropriate.



     8.03 Change in Control. Unless otherwise provided by the Committee in the applicable
Award Agreement, in the event of a Change in Control, all Performance Awards for all Award Periods
shall immediately become fully payable to all Participants and shall be paid to Participants within
30 days after such Change in Control.



ARTICLE IX




Terms Applicable to All Awards Granted Under the Plan




     9.01 Plan Provisions Control Award Terms. The terms of the Plan shall govern all
Awards granted under the Plan, and in no event shall the Committee have the power to grant any
Award under the Plan the terms of which are contrary to any of the provisions of the Plan. In the
event any provision of any Award granted under the Plan shall conflict with any term in the Plan as
constituted on the Date of Grant of such Award, the term in the Plan as constituted on the Date of
Grant of such Award shall control. All Awards granted under the terms of the plan and any related
Award Agreement shall be structured to comply with 409A of the Code, its corresponding Treasury
regulations and related guidance. Without limiting the foregoing, if and to the extent that any
Award is deemed to be deferred compensation for purposes of Section 409A of the Code, the payment
of such Award shall only be made upon the occurrence of an event that is permissible payment event
for purposes of Section 409A of the Code.



     9.02 Award Agreement. No person shall have any rights under any Award granted under
the Plan unless and until the Company and the Participant to whom such Award shall have been
granted shall have executed and delivered an Award Agreement or the Participant shall have received
notice of the Award authorized by the Committee.



     9.03 Modification of Award After Grant. No Award granted under the Plan to a
Participant may be modified (unless such modification does not materially decrease the value of
that Award) after its Date of Grant except by express written agreement between the Company and
such Participant, provided that any such change (i) may not be inconsistent with the terms of the
Plan, and (ii) shall be approved by the Committee; provided, however, that, with
the exception of adjustments permitted in Section 9.08, the Exercise Price of any outstanding Award
granted under the Plan may not be reduced after



17









 




the Date of Grant nor may any outstanding Award granted
under the Plan be surrendered to the Company in exchange for a new Award with a lower Exercise
Price nor may any other action that would constitute repricing under the applicable rules of the
New York Stock Exchange be taken with respect to any outstanding Award.




     9.04 Limitation on Transfer. Except as provided in Section 7.05 in the case of
Restricted Shares, a Participant’s rights and interest under the Plan may not be assigned or
transferred other than by will or the laws of descent and distribution and, during the lifetime of
a Participant, only the Participant personally (or, if applicable, the Participant’s Beneficiary)
may exercise rights under the Plan. The Participant’s Beneficiary may exercise the Participant’s
rights to the extent they are exercisable under the Plan following the death of the Participant.
Notwithstanding the foregoing, the Committee may grant Non-Qualified Stock Options that are
transferable, without payment of consideration, to immediate family members of the Participant, to
trusts or partnerships for such family members, or to such other parties as the Committee may
approve (as evidenced by the applicable Award Agreement or an amendment thereto), and the Committee
may also amend outstanding Non-Qualified Stock Options to provide for such transferability.



     9.05 Withholding Taxes. The Company shall be entitled, if the Committee deems it
necessary or desirable, to withhold (or secure payment from the Participant in lieu of withholding)
the amount of any withholding or other tax required by law to be withheld or paid by the Company
with respect to any amount payable and/or shares issuable under such Participant’s Award or with
respect to any income recognized upon a disqualifying disposition of shares received pursuant to
the exercise of an Incentive Stock Option, and the Company may defer payment of cash or issuance of
shares upon exercise or vesting of an Award unless indemnified to its satisfaction against any
liability for any such tax. The amount of such withholding or tax payment shall be determined by
the Committee and shall be payable by the Participant at such time as the Committee determines.
With the approval of the Committee, the Participant may elect to meet his or her withholding
requirement (i) by having withheld from such Award at the appropriate time that number of shares of
Common Stock, rounded up to the next whole share, the Fair Market Value of which is equal to the
amount of the minimum withholding taxes due, (ii) by direct payment to the Company in cash of the
minimum amount of any taxes required to be withheld with respect to such Award or (iii) by a
combination of withholding such shares and paying cash.



     9.06 Surrender of Awards. Any Award granted under the Plan may be surrendered to the
Company for cancellation on such terms as the Committee and the Participant approve.



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     9.07 Cancellation and Rescission of Awards.



     (a) Detrimental Activities. Unless the Award Agreement specifies otherwise, the
Committee may cancel, rescind, suspend, withhold or otherwise limit or restrict any unexpired,
unpaid, or deferred Awards at any time if the Participant is not in compliance with all applicable
provisions of the Award Agreement and the Plan, or if the Participant engages in any “Detrimental
Activity” (as determined by the Committee in its sole discretion). For purposes of this Section
9.07, “Detrimental Activity” shall include: (i) the rendering of services for any organization or
engaging directly or indirectly in any business which is or becomes competitive with the Company,
or which organization or business, or the rendering of services to such organization or business,
is or becomes otherwise prejudicial to or in conflict with the interests of the Company; (ii) the
disclosure to anyone outside the Company, or the use in other than the Company’s business, without prior
written authorization from the Company, of any confidential information or material relating to the
business of the Company, acquired by the Participant either during or after employment with the
Company; (iii) any attempt directly or indirectly to induce any employee of the Company to be
employed or perform services elsewhere or any attempt directly or indirectly to solicit the trade
or business of any current or prospective customer, supplier or partner of the Company; or (iv) any
other conduct or act determined to be injurious, detrimental or prejudicial to any interest of the
Company.



     (b) Certification. Upon exercise, payment or delivery pursuant to an Award, the
Participant shall certify in a manner acceptable to the Company that he or she is in compliance
with the terms and conditions of the Plan. In the event a Participant fails to comply with the
provisions of paragraphs (a)(i)-(iv) of this Section 9.07 prior to, or during the six months after,
any exercise, payment or delivery pursuant to an Award, such exercise, payment or delivery may be
rescinded within two years thereafter. In the event of any such rescission, the Participant shall
pay to the Company the amount of any gain realized or payment received as a result of the rescinded
exercise, payment or delivery, in such manner and on such terms and conditions as may be required,
and the Company shall be entitled to set-off against the amount of any such gain any amount owed to
the Participant by the Company.



     9.08 Adjustments to Reflect Capital Changes.



     (a) Recapitalization. The number and kind of shares subject to outstanding Awards,
the Exercise Price or base price of an Award, the number and kind of shares available for Awards
subsequently granted under the Plan and the maximum number of shares in respect of which Awards can
be made to any Participant in any calendar year shall be appropriately adjusted to reflect any
stock dividend, stock split, combination or exchange of shares, merger, consolidation or other
change in capitalization with a similar substantive effect upon the Plan or the Awards granted
under



19









 




the Plan. The Committee shall have the power and sole discretion to determine the amount of
the adjustment to be made in each case.




     (b) Certain Mergers. After any Merger in which the Company is not the surviving
corporation or pursuant to which a majority of the shares which are of the same class as the shares
that are subject to outstanding Awards are exchanged for, or converted into, or otherwise become
shares of another corporation, the surviving, continuing, successor or purchasing corporation, as
the case may be (the “Acquiring Corporation”), will either assume the Company’s rights and
obligations under outstanding Award Agreements or substitute awards in respect of the Acquiring
Corporation’s stock for outstanding Awards, provided, however, that if the
Acquiring Corporation does not assume or substitute for such outstanding Awards, the Board shall
provide prior to the Merger that any unexercisable and/or unvested portion of the outstanding
Awards shall be immediately exercisable and vested as of a date prior to such Merger, as the Board
so determines. The exercise and/or vesting of any Award that was permissible solely by reason of
this Section 9.08 shall be conditioned upon the consummation of the Merger. Any Awards which are
neither assumed by the Acquiring Corporation nor exercised as of the date of the Merger shall
terminate effective as of the effective date of the Merger. Comparable rights shall accrue to each
Participant in the event of successive Mergers of the character described above.



     (c) Options to Purchase Shares or Stock of Acquired Companies. After any Merger in
which the Company or a Subsidiary shall be a surviving corporation, the Committee may grant Options
or other Awards under the provisions of the Plan, pursuant to Section 424 of the Code or as is
otherwise permitted under the Code, in full or partial replacement of or substitution for old stock
options granted under a plan of another party to the merger whose shares of stock subject to the
old options may no longer be issued following the Merger. The manner of application of the
foregoing provisions to such options and any appropriate adjustments in the terms of such stock
options shall be determined by the Committee in its sole discretion. Any such adjustments may
provide for the elimination of any fractional shares which might otherwise become subject to any
Options. The foregoing shall not be deemed to preclude the Company from assuming or substituting
for stock options of acquired companies other than pursuant to this Plan.



     (d) Adjustments. Any adjustment to outstanding Awards shall be consistent with
Sections 409A and 424 of the Code, to the extent applicable.



     9.09 Recoupment. Pursuant to the Company’s recoupment policies, if applicable, a
Participant may be required to reimburse the Company for any compensation paid to such Participant
with respect to an Award granted under this Plan upon the occurrence of certain specified events
set forth in the Company’s applicable recoupment policies.



20









 





     9.10 Legal Compliance. Shares of Common Stock shall not be issued hereunder unless
the issuance and delivery of such shares shall comply with applicable laws and shall be further
subject to the approval of counsel for the Company with respect to such compliance.



     9.11 No Right to Employment. No Participant or other person shall have any claim of
right to be granted an Award under the Plan. Neither the Plan nor any action taken hereunder shall
be construed as giving any Participant any right to be retained in the service of the Company or
any of its Subsidiaries.



     9.12 Awards Not Includable for Benefit Purposes. Payments received by a Participant
pursuant to the provisions of the Plan shall not be included in the determination of benefits under
any pension, group insurance or other benefit plan applicable to the Participant which is
maintained by the Company or any of its Subsidiaries, except as may be provided under the terms of
such plans or determined by the Board.



     9.13 Governing Law. This Plan, and any agreement or determination shall be governed
by the laws of the State of Maryland, regardless of principles of conflict of laws, except to the
extent that the law of the State of Maryland specifically and mandatorily applies.



     9.14 No Strict Construction. No rule of strict construction shall be implied against
the Company, the Committee or any other person in the interpretation of any of the terms of the
Plan, any Award granted under the Plan or any rule or procedure established by the Committee.



     9.15 Captions. The captions (i.e., all Section headings) used in the Plan are for
convenience only, do not constitute a part of the Plan, and shall not be deemed to limit,
characterize or affect in any way any provisions of the Plan, and all provisions of the Plan shall
be construed as if no captions had been used in the Plan.



     9.16 Severability. Whenever possible, each provision in the Plan and every Award at
any time granted under the Plan shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of the Plan or any Award at any time granted under the
Plan shall be held to be prohibited by or invalid under applicable law, then (i) such provision
shall be deemed amended to accomplish the objectives of the provision as originally written to the
fullest extent permitted by law and (ii) all other provisions of the Plan, such Award and every
other Award at any time granted under the Plan shall remain in full force and effect.



21









 





     9.17 Amendment and Termination.



     (a) Amendment. The Board shall have complete power and authority to amend the Plan at
any time; provided, that no termination or amendment of the Plan may, without the consent of the
Participant to whom any Award shall theretofore have been granted under the Plan, materially
adversely affect the right of such individual under such Award; and provided further, that no such
alteration or amendment of the Plan shall, without approval by the stockholders of the Company (i)
increase the total number of shares of Common Stock which may be issued or delivered under the
Plan, (ii) increase the total number of shares which may be covered by Awards to any Participant,
or (iii) change the minimum Option Exercise Price or base price of a Stock Appreciation Right or
otherwise reprice an outstanding Award.



     (b) Termination. The Board shall have the right and the power to terminate the Plan
at any time. No Award shall be granted under the Plan after the termination of the Plan, but the
termination of the Plan shall not have any other effect and any Award outstanding at the time of
the termination of the Plan may be exercised after termination of the Plan at any time prior to the
expiration date of such Award to the same extent such Award would have been exercisable had the
Plan not been terminated. A termination of the Plan will comply with Section 409A of the Code, its
corresponding Treasury regulations and related guidance.



     9.18 Compliance with Law. The Plan is intended to comply with applicable law.
Without limiting the foregoing, the Plan is intended to comply with the applicable requirements of
Section 409A of the Code and its corresponding regulations and related guidance, and shall be
administered in accordance with Section 409A of the Code to the extent it applies to the Plan. To
the extent that any provision of the Plan or an Award Agreement would cause a conflict with the
requirements of Section 409A of the Code or would cause the administration of the Plan to fail to
satisfy the requirements of Section 409A of the Code, such provision shall be deemed null and void
to the extent permitted by applicable law.




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