Exhibit 10.16
MASSEY ENERGY
COMPANY
2006 STOCK AND INCENTIVE
COMPENSATION PLAN
(As Amended and Restated
Effective January 1 2009)
ARTICLE I
Establishment, Purpose and
Duration
1.1 Establishment of the Plan
. Massey Energy Company (hereinafter referred to as the
“Company”), a Delaware corporation, hereby establishes
a stock and incentive compensation plan to be known as the
“2006 Stock and Incentive Compensation Plan”
(hereinafter referred to as the “Plan”), as set forth
in this document. Unless otherwise defined herein, all capitalized
terms shall have the meanings set forth in Section 2.1 herein.
The Plan permits, subject to the limitations herein, the grant of
Incentive Stock Options, Non-Qualified Stock Options, Stock
Appreciation Rights, Restricted Stock, Restricted Units,
Unrestricted Stock, and/or Incentive Awards to Members and
Non-Employee Service Providers and Non-Qualified Stock Options,
Restricted Stock and Restricted Units to Non-Employee
Directors.
The Plan was adopted by the Board of
Directors of the Company on February 21, 2006, to become
effective (the “Effective Date”) as of May 16,
2006 once approved by the Company’s shareholders at the
May 16, 2006 annual meeting in accordance with applicable laws
and applicable rules of the New York Stock Exchange. Awards may not
be granted under the Plan prior to shareholder approval of the
Plan. The Plan actually became effective once the results of the
shareholder meeting were finally certified by the independent
inspectors of election on June 28, 2006 and was subsequently
amended effective August 15, 2006 to place further limitation
on awards that did not require shareholder approval.
The Plan was further amended
effective November 14, 2006 in order (1) to revise the
definition of “Fair Market Value” as used in connection
with valuing Stock under the Plan for awards made on or after
November 14, 2006 and (2) to provide for mandatory
equitable adjustments in awards outstanding under the Plan as a
result of a reorganization, merger, consolidation,
recapitalization, restructuring, reclassification, dividend (other
than a regular, quarterly cash dividend) or other distribution,
stock split, reverse stock split, spin-off or the like, or if
substantially all of the property and assets of the Company are
sold.
The plan was further amended
effective January 1, 2009 to add provisions to comply with
Section 409A of the Code.
1.2 Purpose of the Plan. The
purpose of the Plan is to promote the success of the Company and
its Subsidiaries by providing incentives to Members, Non-Employee
Service Providers and/or Non-Employee Directors that will promote
the identification of their personal interest with the long term
financial success of the Company and with growth in shareholder
value. The Plan is designed to provide flexibility to the Company
in its ability to motivate, attract, and retain the services of
Members, Non-Employee Service Providers and/or Non-Employee
Directors upon whose judgment, interest, and special effort the
successful conduct of its operation is largely
dependent.
1.3 Duration of the Plan. The
Plan shall commence on the Effective Date, as described in
Section 1.1 herein, and shall remain in effect, subject to the
right of the Board of Directors to terminate the Plan at any time
pursuant to Article XIV herein, until May 15, 2016, at which
time the Plan shall terminate except with respect to Awards made
prior to and outstanding on that date which shall remain valid in
accordance with their terms.
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ARTICLE II
Definitions
2.1 Definitions. Except as
otherwise defined in the Plan, the following terms shall have the
meanings set forth below:
(a) “Agreement” means a
written agreement implementing the grant of each Award signed by an
authorized officer of the Company or member of the Committee and by
the Participant.
(b) “Award” or
“Grant” means, individually or collectively, a grant
under the Plan of Incentive Stock Options, Non-Qualified Stock
Options, Stock Appreciation Rights, Restricted Stock, Restricted
Units, Unrestricted Stock and/or Incentive Awards.
(c) “Award Date” or
“Grant Date” means the date on which an Award is made
by the Committee under the Plan.
(d) “Board” or
“Board of Directors” means the Board of Directors of
the Company.
(e) “Change in Control”
means, the occurrence of either of the following events (i) a
third person, including a “group” as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended, acquires (or has acquired during the twelve (12)-month
period ending on the date of the most recent acquisition by such
person) shares of the Company having thirty (30) percent or
more of the total number of votes that may be cast for the election
of directors of the Company; or (ii) as the result of any cash
tender or exchange offer, merger or other business combination, or
any combination of the foregoing transactions (a
“Transaction”), the persons who were directors of the
Company before the Transaction shall cease to constitute a majority
of the Board of the Company or any successor to the Company and be
replaced by persons whose appointment or election is not endorsed
by the majority of directors before the Transaction.
To the extent that a Participant
must consent to the change of this definition, the change will not
be effective unless such consent is obtained. To the extent that a
Participant’s consent has not been obtained, the definition
in effect immediately prior to this amendment shall be controlling
with regard to such Participant.
(f) “Code” means the
Internal Revenue Code of 1986, as amended from time to
time.
(g) “Committee” means
the committee or committees of the Board appointed to administer
the Plan pursuant to Article III herein. With respect to Awards
granted pursuant to the Plan to Members and Non-Employee Service
Providers, all of the members of the Committee shall be
“non-employee directors” as defined in Rule 16b-3, as
amended, under the Exchange Act, or any similar or successor rule,
and “outside directors” within the meaning of Section
162(m)(4)(C)(i) of the Code. Unless otherwise determined
by
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the Board, the Compensation Committee of the
Board, or any successor committee responsible for executive
compensation, shall constitute the Committee with respect to Awards
to Members, Non-Employee Service Providers, and Non-Employee
Directors.
(h) “Company” means
Massey Energy Company, a Delaware corporation, or any successor
thereto as provided in Article XVI herein.
(i) “Exchange Act” means
the Securities Exchange Act of 1934, as amended from time to
time.
(j) “Fair Market Value”
of a Share for purposes of this Plan means as of any date, the
closing market price (that is, the price at which Shares were last
sold in the regular way on the New York Stock Exchange) of the
Stock on the relevant date if it is a trading date or, if no Shares
so traded on the New York Stock Exchange on the date in question,
then for the next preceding date for which Shares so traded on the
New York Stock Exchange or if, in the opinion of the Committee,
this method is inapplicable or inappropriate for any reason, the
fair market value as determined pursuant to a reasonable method
adopted by the Committee in good faith for such purpose.
(k) “Incentive Award”
means an Award, designated as an Incentive Award, which is a bonus
opportunity awarded under Article XI herein pursuant to which a
Participant may become entitled to receive an amount (which may be
payable in cash, Shares or other property) based on satisfaction of
such performance criteria as are specified in the Agreement
evidencing the Award.
(l) “Incentive Stock
Option” or “ISO” means an option to purchase
Stock, granted under Article VI herein, which is designated as an
incentive stock option and meets the requirements of
Section 422 of the Code.
(m) “Member” means a
current or prospective member employed as a common law employee of
the Company or any Subsidiary (including any corporation,
partnership, limited liability company or joint venture which
becomes a Subsidiary after the adoption of the Plan by the
Board).
(n) “Non-Employee
Director” means a director of the Company or any Subsidiary
who is not a common law employee of the Company or any Subsidiary
(including any corporation, partnership, limited liability company
or joint venture which becomes a Subsidiary after the adoption of
the Plan by the Board).
(o) “Non-Employee Service
Provider” means a consultant, advisor or other independent
contractor providing services to the Company or any Subsidiary
(including any corporation, partnership, limited liability company
or joint venture which becomes a Subsidiary after the adoption of
the Plan by the Board).
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(p) “Non-Qualified Stock
Option” or “NQSO” means an option to purchase
Stock, granted under Article VI herein, which is not an Incentive
Stock Option.
(q) “Option” means an
Incentive Stock Option or a Non-Qualified Stock Option.
(r) “Option Price” means
the exercise price per share of Stock covered by an
Option.
(s) “Participant” means
a Member, a Non-Employee Service Provider or a Non-Employee
Director who has been granted an Award or Grant under the Plan and
whose Award or Grant remains outstanding.
(t) “Performance-Based
Compensation Award” means any Award for which exercise, full
enjoyment or receipt thereof by the Participant is contingent on
satisfaction or achievement of a Performance Goal applicable
thereto. If a Performance-Based Compensation Award is intended to
be “performance-based compensation” within the meaning
of Section 162(m)(4)(C) of the Code, the grant of the Award,
the establishment of the Performance Goal, the making of any
modifications or adjustments and the determination of satisfaction
or achievement of the Performance Goal shall be made during the
period or periods required under and in conformity with the
requirements of Section 162(m) of the Code. The terms and
conditions of each Performance-Based Compensation Award, including
the Performance Goal and Performance Period, shall be set forth in
an Agreement or in a subplan of the Plan which is incorporated by
reference into an Agreement.
(u) “Performance Goal”
means one or more performance measures or goals set by the
Committee in its discretion for each grant of a Performance-Based
Compensation Award. The extent to which such performance measures
or goals are met will determine the amount or value of the
Performance-Based Compensation Award to which a Participant is
entitled to exercise, receive or retain. For purposes of this Plan,
a Performance Goal may include any one or more of the following
performance criteria, either individually, alternatively or in any
combination, applied to either the Company as a whole or to a
business unit, subsidiary or business segment, either individually,
alternatively or in any combination, and measured either annually
or cumulatively over a period of years, on an absolute basis or
relative to a pre-established target, to previous years’
results or to a designated comparison group, in each case as
specified by the Committee in the Award: (i) cash flow,
(ii) earnings (including gross margin, earnings before
interest, taxes, depreciation and amortization
(“EBITDA”), earnings before interest and taxes
(“EBIT”), earnings before taxes (“EBT”),
and net earnings), (iii) earnings per share (basic or
diluted), (iv) growth in earnings or earnings per share,
(v) stock price, (vi) return on equity or average
stockholders’ equity, (vii) total stockholder return,
(viii) return on capital, (ix) return on assets or net
assets, (x) return on investment, (xi) revenue,
(xii) produced tons, (xiii) delivered tons,
(xiv) reserve acquisitions, (xv) income or net income,
(xvi) operating income or net operating income,
(xvii) operating profit or net operating profit,
(xviii) operating margin, (xix) return on operating
revenue, (xx) market share, (xxi) contract awards or
backlog, (xxii) overhead or other expense reduction,
(xxiii) growth in stockholder value relative to the one- or
two-year moving average of the S&P 600 Smallcap Index,
Bloomberg U.S. Coal Index, or other index of which the Company is a
part, (xxiv) credit rating, (xxv) strategic plan
development and implementation, (xxvi)
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succession plan development and implementation,
(xxvii) retention of executive talent,
(xxviii) improvement in workforce diversity,
(xxix) improvement in safety records, (xxx) capital
resource management plan development and implementation,
(xxxi) improved internal financial controls plan development
and implementation, (xxxii) corporate tax savings,
(xxxiii) corporate cost of capital reduction,
(xxxiv) investor relations program development and
implementation, (xxxv) corporate relations program development
and implementation, (xxxvi) public policy accomplishments,
(xxxvii) executive performance plan development and
implementation, and (xxxviii) tax provision rate for financial
statement purposes.
The Committee, in its sole
discretion, may adjust any evaluation of performance under a
Performance Goal to take into account any of the following events
that occurs during a performance period: (i) asset
write-downs, (ii) litigation or claim judgments or
settlements, (iii) the effect of changes in tax law,
accounting principles or other such laws or provisions affecting
reported results, (iv) accruals for reorganization and
restructuring programs, and (v) any extraordinary
non-recurring items as described in Accounting Principles Board
Opinion No. 30 (or in any replacement thereof) and/or in
management’s discussion and analysis of financial condition
and results of operations appearing in the Company’s annual
report to stockholders for the applicable year. A Performance Goal
may include a threshold level of performance below which no payment
or vesting may occur, levels of performance at which specified
payments or specified vesting will occur, and a maximum level of
performance above which no additional payment or vesting will
occur. Each of the Performance Goals shall be determined, where
applicable and except as provided above, in accordance with
generally accepted accounting principles. Prior to the payment of
any compensation under an Award intended to qualify as
“performance-based compensation” under
Section 162(m) of the Code, the Committee shall certify the
extent to which any Performance Goal and any other material terms
under such Award have been satisfied (other than in cases where
such relate solely to the increase in the value of
Stock).
(v) “Performance Period”
means the time period during which the Performance Goal must be met
in connection with a Performance-Based Compensation Award. Such
time period shall be set by the Committee.
(w) “Period of
Restriction” means the period during which Restricted Stock
or Restricted Units are restricted as provided in the
Plan.
(x) “Plan” means the
Massey Energy Company 2006 Stock and Incentive Compensation Plan,
as herein described and as hereafter from time to time
amended.
(y) “Restricted Stock”
means an Award of Stock granted to a Participant pursuant to
Section 6.7 or 7.6 or Article VIII herein which is subject to
restrictions and forfeiture until the designated conditions for the
lapse of the restrictions are satisfied.
(z) “Restricted Unit”
means an Award, designated as a Restricted Unit, which is a
bookkeeping entry granted to a Participant pursuant to Article IX
herein and valued by reference to the Fair Market Value of a Share,
which is subject to restrictions and forfeiture until the
designated conditions for the lapse of the restrictions are
satisfied. A Restricted Unit is sometimes referred to as a
“Restricted Unit” or a “restricted stock
unit.” Restricted Units represent an unfunded and unsecured
obligation of the Company, except as otherwise provided for by the
Committee.
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(aa) “Stock” or
“Shares” means the common stock of the
Company.
(bb) “Stock Appreciation
Right” or “SAR” means an Award, designated as a
stock appreciation right, granted to a Participant pursuant to
Article VII herein.
(cc) “Subsidiary” means
any subsidiary corporation of the Company within the meaning of
Section 424(f) of the Code (“Section 424(f)
Corporation”) and any partnership, limited liability company
or joint venture in which either the Company or Section 424(f)
Corporation is at least a fifty percent (50%) equity
participant.
(dd) “Unrestricted Stock
Award” means an award of Stock granted to a Participant
pursuant to Article X herein.
ARTICLE III
Administration
3.1 Administration of the Plan by
the Committee. The Plan shall be administered by the Committee
which shall have all powers necessary or desirable for such
administration. The express grant in the Plan of any specific power
to the Committee shall not be construed as limiting any power or
authority of the Committee. In addition to any other powers and,
subject to the provisions of the Plan, the Committee shall have the
following specific powers: (i) to determine the terms and
conditions upon which the Awards may be made and exercised;
(ii) to determine all terms and conditions of each Agreement,
which need not be identical; (iii) to construe and interpret
the Agreements and the Plan; (iv) to establish, amend or waive
rules or regulations for the Plan’s administration;
(v) to accelerate the exercisability of any Award, the end of
a Performance Period or termination of any Period of Restriction or
other restrictions imposed under the Plan; and (vi) to make
all other determinations and take all other actions necessary or
advisable for the administration of the Plan.
For purposes of determining the
applicability of Section 422 of the Code (relating to
Incentive Stock Options), or in the event that the terms of any
Award provide that it may be exercised only during employment or
service or within a specified period of time after termination of
employment or service, the Committee may decide to what extent
leaves of absence for governmental or military service, illness,
temporary disability, or other reasons shall not be deemed
interruptions of employment or service or continuous employment or
service.
Subject to limitations under
applicable law, the Committee is authorized in its discretion to
issue Awards and/or accept notices, elections, consents and/or
other forms or communications by Participants by electronic or
similar means, including, without limitation, transmissions through
e-mail, voice mail, recorded messages on electronic telephone
systems, and other permissible methods, on such basis and for such
purposes as it determines from time to time.
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A majority of the entire Committee
shall constitute a quorum and the action of a majority of the
members present at any meeting, 24 hours notice having been given
or waived, at which a quorum is present (in person or as otherwise
permitted by applicable law), or acts approved in writing by all of
the Committee without a meeting, shall be deemed the action of the
Committee.
The Committee may designate the
Secretary of the Company or other Company employees to assist the
Committee in the administration of the Plan, and may grant
authority to such persons to execute agreements evidencing Awards
made under this Plan or other documents entered into under the Plan
on behalf of the Committee or the Company.
3.2 Selection of
Participants. The Committee shall have the authority to grant
Awards under the Plan, from time to time, to such Members,
Non-Employee Service Providers and/or Non-Employee Directors as may
be selected by it. Each Award shall be evidenced by an
Agreement.
3.3 Decisions Binding. All
determinations and decisions made by the Committee pursuant to the
provisions of the Plan shall be final, conclusive and
binding.
3.4 Requirements of Rule 16b-3 of
the Exchange Act and Section 162(m) of the Code .
Notwithstanding any other provision of the Plan, the Board or the
Committee may impose such conditions on any Award, and amend the
Plan in any such respects, as may be required to satisfy the
requirements of Rule 16b-3 of the Exchange Act, as amended (or any
successor or similar rule).
Any provision of the Plan to the
contrary notwithstanding, and except to the extent that the
Committee determines otherwise: (i) transactions by and with
respect to officers and directors of the Company who are subject to
Section 16(b) of the Exchange Act (hereafter, “Section
16 Persons”) shall comply with any applicable conditions of
Rule 16b-3 of the Exchange Act; (ii) transactions with respect
to persons whose remuneration is subject to the provisions of
Section 162(m) of the Code shall conform to the requirements
of Section 162(m)(4)(C) of the Code; and (iii) every
provision of the Plan shall be administered, interpreted, and
construed to carry out the foregoing provisions of this
sentence.
Notwithstanding any provision of the
Plan to the contrary, the Plan is intended to give the Committee
the authority to grant Awards that qualify as performance-based
compensation under Section 162(m)(4)(C) of the Code as well as
Awards that do not so qualify. Every provision of the Plan shall be
administered, interpreted, and construed to carry out such
intention, and any provision that cannot be so administered,
interpreted, and construed shall to that extent be disregarded; and
any provision of the Plan that would prevent an Award that the
Committee intends to qualify as performance-based compensation
under Section 162(m)(4)(C) of the Code from so qualifying
shall be administered, interpreted, and construed to carry out such
intention, and any provision that cannot be so administered,
interpreted, and construed shall to that extent be
disregarded.
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3.5 Indemnification of
Committee. In addition to such other rights of indemnification
as they may have as directors or as members of the Committee, the
members of the Committee shall be indemnified by the Company
against reasonable expenses, including attorneys’ fees,
actually and reasonably incurred in connection with the defense of
any action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of
any action taken or failure to act under or in connection with the
Plan or any Award granted or made hereunder, and against all
amounts reasonably paid by them in settlement thereof or paid by
them in satisfaction of a judgment in any such action, suit or
proceeding, if such members acted in good faith and in a manner
which they believed to be in, and not opposed to, the best
interests of the Company and its Subsidiaries.
ARTICLE IV
Stock Subject to the
Plan
4.1 Number of Shares Authorized
for Issuance during Term of the Plan. Subject to adjustment as
provided in Section 4.4 herein and to the next paragraph of
this Section, the maximum aggregate number (the “Maximum
Aggregate Number”) of Shares that may be issued pursuant to
Awards made under the Plan during the term of the Plan stated in
Section 1.3 shall not exceed the sum of (i) 3,500,000 and
(ii) that number of Shares that (A) are represented by
restricted stock or unexercised vested or unvested stock options
which previously have been granted and are outstanding under the
Massey Energy Company 1988 Executive Stock Plan, the Massey Energy
Company Stock Plan for Non-Employee Directors, the Massey Energy
Company 1996 Executive Stock Plan, the Massey Energy Company 1997
Restricted Stock Plan for Non-Employee Directors, and the Massey
Energy Company 1999 Executive Performance Incentive Plan as of the
Effective Date and (B) expire or otherwise lapse, are
terminated or forfeited, are settled in cash, or are withheld or
delivered to the Company for tax purposes at any time after the
Effective Date. No awards shall be granted under the Massey Energy
Company 1988 Executive Stock Plan, Massey Energy Company Stock Plan
for Non-Employee Directors, Massey Energy Company 1996 Executive
Stock Plan, Massey Energy Company 1997 Restricted Stock Plan for
Non-Employee Directors, and the Massey Energy Company 1999
Executive Performance Incentive Plan on or after the Effective
Date.
Except as provided in Sections 4.2
and 4.3 herein, only Shares actually issued in connection with the
exercise of, or as other payment for Awards, under the Plan shall
reduce the number of Shares available for future Awards under the
Plan. Awards settled in cash shall not count against the Maximum
Aggregate Number.
Stock that may be issued under the
Plan may either be Shares reacquired by the Company, including
Shares purchased in the open market, authorized but unissued
Shares, Shares held in treasury, or Shares held in a grantor trust
created by the Company. Such Shares, however, shall count against
the Maximum Aggregate Number, except as provided in the foregoing
paragraph.
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The Company, during the term of the
Plan and thereafter during the term of any outstanding Award which
may be settled in Stock, shall reserve and keep available a number
of Shares sufficient to satisfy the requirements of the
Plan.
4.2 Lapsed Awards or Forfeited
Shares. If any Award granted under the Plan terminates,
expires, or lapses for any reason other than by virtue of exercise
of the Award, or if Shares issued pursuant to Awards are forfeited,
any Stock subject to such Award again shall be available for the
grant of an Award under the Plan.
4.3 Shares Used as Payment of
Exercise Price or for Taxes. In the event a Participant pays
the Option Price for Shares pursuant to the exercise of an Option
with previously acquired Shares, the number of Shares available for
future Awards under the Plan shall be reduced only by the net
number of new Shares issued upon the exercise of the Option. In
addition, in determining the number of shares of Stock available
for Awards, if Stock has been delivered or exchanged by, or
withheld from, a Participant as full or partial payment to the
Company for payment of withholding taxes, or if the number of
shares of Stock otherwise deliverable by the Company has been
reduced for payment of withholding taxes, the number of shares of
Stock exchanged by or withheld from a Participant as payment in
connection with the withholding tax or so reduced by the Company
shall again be available for the grant of an Award under the
Plan.
4.4 Capital Adjustments. If
the outstanding securities of the class then subject to the Plan
are increased, decreased or exchanged for or converted into cash,
property or a different number or kind of shares or securities, or
if cash, property or shares or securities are distributed in
respect of such outstanding securities, in either case as a result
of a reorganization, merger, consolidation, recapitalization,
restructuring, reclassification, dividend (other than a regular,
quarterly cash dividend) or other distribution, stock split,
reverse stock split, spin-off or the like, or if substantially all
of the property and assets of the Company are sold, then
(i) the Committee shall make appropriate and proportionate
adjustments in the number and class of Shares subject to, or cash
or other property that may be acquired pursuant to, each
outstanding Award and the Option Price therefor in such manner as
the Committee shall determine in order to retain the economic value
or opportunity provided immediately prior to the transaction for
which the adjustment is made and (ii) in all cases, unless the
terms of such transaction shall provide otherwise, the Committee
may make appropriate and proportionate adjustments in the maximum
number and kind of shares or other securities, and the annual
limits on and aggregate number of Shares for which Awards, that may
be issued pursuant to such Awards thereafter granted under the
Plan. Notwithstanding anything to contrary in the foregoing, any
such adjustment shall be made in such a manner that will not affect
the status of any Award intended to be excepted from treatment as
nonqualified deferred compensation under Section 409A of the
Code, qualify as an ISO under Section 422 of the Code or as
“performance based compensation” under
Section 162(m) of the Code. No fractional interests will be
issued under the Plan resulting from any such
adjustments.
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ARTICLE V
Eligibility
Persons eligible to participate in
the Plan are (i) Members, (ii) Non-Employee Service
Providers and (iii) Non-Employee Directors. Multiple grants of
Awards under the Plan may be made in any calendar year to one or
more Participants.
ARTICLE VI
Stock Options
6.1 Grant of Options. Subject
to the terms and conditions of the Plan, the Committee, at any time
and from time to time, may grant Options under the Plan (with one
Option representing one Share) to Members, Non-Employee Service
Providers and Non-Employee Directors in such amounts as it shall
determine; provided, however, that (i) Non-Employee Service
Providers and Non-Employee Directors may only be granted
Non-Qualified Stock Options, (ii) no Participant may be
granted Options in any calendar year for more than 400,000 Shares,
provided that only for purposes of qualifying for the
performance-based compensation exception under Section 162(m)
of the Code, Options which are awarded and then cancelled and
Options for which the exercise price is lowered both continue to
count against this limit, and (iii) the aggregate Fair Market
Value (determined at the time the Award is made) of Shares with
respect to which any Participant may first exercise ISOs granted
under the Plan during any calendar year may not exceed $100,000 or
such amount as shall be specified in Section 422 of the Code
and rules and regulations thereunder.
6.2 Option Agreement. Each
Option grant shall be evidenced by an Agreement that shall specify
the type of Option granted, the Option Price (as hereinafter
defined), the duration of the Option, the number of Shares to which
the Option pertains, any conditions imposed upon the exercisability
of Options in the event of retirement, death, disability or other
termination of employment or service, and such other provisions as
the Committee shall determine. The Agreement shall specify whether
the Option is intended to be an Incentive Stock Option within the
meaning of Section 422 of the Code, or a Non-Qualified Stock
Option not intended to be an Incentive Stock Option within the
meaning of Section 422 of the Code; pro
